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2001 DIGILAW 302 (PAT)

Gauri Chaudhary v. State Of Bihar

2001-04-04

INDU PRABHA SINGH

body2001
Judgment I.P.Singh, J. 1. Since appellant No. 2. Ram Gati Chaudhary died during the pendency of appeal, his appeal stands abated. 2. All the appellants have been convicted under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. Appellant No. 1 Gauri Chaudhary has been further convicted under Section 304, Part II of the Indian Penal Code and sentenced to under go rigorous imprisonment for seven years. However, his sentences have been ordered to run concurrently. 3. The prosecution case, in short, is that on 9.4.1985 at about 6.30 p.m. the informant all of a sudden on hearing hulla went out of his house and came near the house of Chand Dhari Singh and saw that accused Gauri Chaudhary and accused Ramgati Choudhary were assaulting his cousin brother Rameshwar Thakur (deceased) with lathis and accused Tetar Choudhary, Gaya Choudhary and Shankar Choudhary with lathis in their hands were abusing his brother. The informant rushed towards his cousin to save him. In the meanwhile his cousin being injured fell down on the ground. By that time Nanhak Singh (PW 1), Jamuna Thakur and others assembled there and with their help the informant brought his cousin brother at the house and from there on a cot he brought him to Mahabalipur More and from their on a jeep he took him to Dr. Rajendra Prasad Roy (PW 6) at Paliganj for treatment who after giving first aid to his cousin referred him to PMCH, Patna as his condition was serious. It has been stated that thereafter the informant took his cousin brother Rameshwar Thakur on jeep to emergency ward in PMCH, Patna, where on 11.4.1985 he died in course of treatment. The local Police came there and recorded the fardbeyan (Ex. 6) of the informant and got the postmortem examination done on the dead body of his deceased brother Rameshwar Thakur there. After performing funeral rites the informant went to Paliganj PS where on his statement the FIR was lodged on 13.4.1985 at 4.45 p.m. on the basis of which Paliganj PS Case No. 65/85 was registered under Section 147/323/ 302 of the Indian Penal Code against the appellants. After completion of the investigation charge sheet was submitted, cognizance was taken and the case was committed to the Court of Sessions for trial Ultimately the trial concluded with the result as stated above. After completion of the investigation charge sheet was submitted, cognizance was taken and the case was committed to the Court of Sessions for trial Ultimately the trial concluded with the result as stated above. The appellants pleaded not guilty and stated that they had been falsely implicated in this case due to enmity. 4. In support of its case the prosecution examined altogether 7 witnesses. PW 1 is Nanhak Yadav, PW 2 is Vidwan Mistri, PW 3 is Surendra Singh, PW 4 is Prahlad second Investigating Officer PW 6 is Dr. Rejendra Prasad Roy and PW 7 is Ashok Kumar Singh. He is the first Investigating Officer, who had investigated the case and also inspected the place of occurrence. 5. In this case there are four eyewitnesses on the factum of occurrence and assault on the deceased PW 4, the informant has fully supported the case of the prosecution. He has stated that he reached at the place of occurrence after hearing hulla and he saw his cousin brother Rameshwar Thakur surrounded by the appellants. They were all armed with lathi. Appellant Gauri Chaudhary assaulted his cousin with lathi on his head as a result of which he fell down. He has also stated that the appellant Ramgati Chaudhary assaulted his cousin with lathi over his wrist. He has stated that he went before his cousin and other witnesses also came there. With the help of witnesses brought his cousin in his house and from there on a cot he brought him at Mahabalipur and in a Jeep he brought him to the doctor at Paliganj for his treatment, who after giving first aid and referred him to PMCH, Patna as the condition of the injured was very serious. Thereafter he took his cousin to emergency ward in PMHC at Patna on 11.4.1985. He died during the course of treatment He has stated that thereafter the local Police came and recorded his fardbeyan Ex. 6 and got post mortem examination of the dead body done. After performing funeral he came to Paliganj PS where his fardbeyan was also recorded and FIR was lodged on 13.4.1985 at 4.45 p.m. PW 1 has also stated that he saw the appellant Gauri and Ramgati Chaudhary assaulting the deceased with lathi and other appellants were abusing him. The deceased having head injury fell down on the ground and there was profused bleeding. The deceased having head injury fell down on the ground and there was profused bleeding. PW 2 has stated that the appellants had surrounded the deceased and were abusing him. He has also stated that appellant No. 1 Gauri assaulted him with lathi on his head. Both the lathis blows were given by appellant No. 1 PW 3 has also supported the prosecution story and stated that the appellant No. 1 Gauri Chaudhary gave a lathi blow on the head of the deceased PW 6, is the Doctor. He had given the first aid to the injured and he referred him to PMHC for his better treatment as his condition was serious. PW 7 is the Investigating Officer. He got the FIR recorded on 13.4.1985 on the statement of the informant and started investigation. He investigated the place of occurrence which was shown to him by the informant. He did not find any objective finding on the place of occurrence since he inspected the place of occurrence after two days. The place was dusty road. 6. Learned counsel for the appellants has submitted that there is an intentional delay in lodging the FIR. It has been also submitted that non-examination of independent witnesses who were assembled at the place of occurrence is fatal to the case. It has been further submitted that non-examination of doctor who examined the deceased in the PMHC and also the doctor who held post mortem examination has also prejudiced the case of the defence. If has been also pointed out that there are contradictions in the deposition of the witnesses on the manner of assault. The occurrence as alleged had taken place at about 6.30 p.m. near the house of Chand Dhari Singh where the deceased fell down after assault. The deceased injured was brought to his house and from there he was brought to Mahabalipur More where the informant hired a jeep to take him to Paliganj. At Paliganj he was treated by a Doctor PW 6 who gave him first aid and referred him to PMHC where the deceased reached at 2.30 a.rn, on 10.4.1985. But the fardbeyan Ext. 6 of the informant was recorded by the Patna Police on 11.4.1985 after the death of the deceased. However a formal FIR with the Police was lodged on 13.4.1985 on the basis of which the case was registered. But the fardbeyan Ext. 6 of the informant was recorded by the Patna Police on 11.4.1985 after the death of the deceased. However a formal FIR with the Police was lodged on 13.4.1985 on the basis of which the case was registered. There is explanation given by the informant that he tried to inform the Police at Pali but he was in haste to take the deceased whose condition was very serious, as such, he could not inform the Police. He has stated that he had little time to inform the Police and the Police came after the death of the deceased on 11.4.1985. The explanation of delay is natural in such situation but it was incumbent on the informant or his other members of the family also to inform the Police at the earliest. Even the other members should have informed the local Chaukidar/Dafadar or the Mukhiya or Sarpanch. Though the Court below has held that on account of ignorance the informant may not have Informed the Police and it was the duty of the attending doctor to inform the Police. By non-examination of the doctor who treated the deceased as well as the doctor who held post mortem examination the injuries oh the person of the deceased could not be proved, as such, factum of assault could not be corroborated. It is well settled that the accused can be convicted even on the ocular evidence of the witnesses when their evidence is reliable and trust insprinig, even without corroboration of medical expert. The testimonies of PWs 1 and 2 have been disbelieved by the Court below. The Court below has based its finding on the testimony of PW 4 the informant as well as PW 3 PW 4 have stated that appellant Gauri assaulted his cousin with lathi on his head and Ramagati gave a lathi blow on his wrist. PW 3 has also stated that appellant Gauri assaulted his cousin on his head. This apart their statement could not be corroborated as the doctors were not examined. But the doctor PW 6 who examined the injured at Pali in his deposition also has stated that the deceased was in convulsion state and his neck was rigid due to traumatic injury on his head. This apart their statement could not be corroborated as the doctors were not examined. But the doctor PW 6 who examined the injured at Pali in his deposition also has stated that the deceased was in convulsion state and his neck was rigid due to traumatic injury on his head. Even though none of the independent witnesses could be examined to support the case of the prosecution but the testimony of PWs 4 and 3 cannot not be discarded only because they are interested witnesses. Now a days it has become a general trend that no villager wants to come forward to depose because they do not want to take unnecessary annoyance and also in fear of harassment of the Court proceeding. So far the interested witnesses are concerned, the Court has to be more careful and cautious while scrutinising their testimony. I find that the testimony of PW 4 is consistent and it has been fully corroborated by PW 3 so far as it relates to assault by appellant Gauri PW 6 has also corroborated the nature of injury on the head of the deceased. 7. From the aforesaid discussions it is evident that the appellants armed with lathi formed unlawful assembly and surrounded the deceased at the place of occurrence. Appellant No.1 Gauri Chaudhary gave a lathi blow on the head of the injured resulting into head injury on the person of the deceased thereby subsequently the deceased died after two days during the course of treatment in PMHC. As such, the Court below rightly found all the appellants guilty of the offence punishable under Section 147 of the Indian Penal Code and further convicted appellant No. 1 under Section 304/II of the Indian Penal Code. I do not find any reason to interfere with the conviction of the appellants. 8. Coming to the question of sentence learned counsel for the appellant submitted that the occurrence took place in the year 1985 and the appellant No. 1 Gauri Chaudhary has remaind in jail for about four years and seven months. The other appellants have also remained in jail for some time. It has been also submitted that the appellant are the first offenders and there is no previous conviction against them. Therefore it requires consideration on the point of sentence. The other appellants have also remained in jail for some time. It has been also submitted that the appellant are the first offenders and there is no previous conviction against them. Therefore it requires consideration on the point of sentence. Keeping in view the submission raised on behalf of the appellants that the occurrence took place in 1985 and the appellants have been physically and mentally punished during the prolonged litigation lasting for 16 years now it will not be proper to send them again in jail to serve out the remaining period of sentence. In my view, ends of justice will be met if the period of sentence is reduced to the period they have already undergone in jail custody with a fine of Rs. 500/- to be deposited by appellant No. 1 in default to undergo rigorous imprisonment for a further period of six months. It is made clear that the amount of fine if and when realised from appellant No. 1 Gauri Chaudhary, will be paid to the informant (PW 4) Prahalad Thakur by way of compensation. With the aforesaid modification in sentence this appeal is dismissed.