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2002 DIGILAW 1309 (PAT)

Dudhnath Ram v. State Of Bihar

2002-11-28

GHANSHYAM PRASAD

body2002
Judgment Ghanshyam Prasad, J. 1. This appeal has been preferred by the appellants against the judgment of conviction and sentence dated 28.11.2004 passed by Fast Track Court. No.1. Bhabhua in Sessions Trial No. 630 of 1995/214 of 2001. Appellant Bishuni Ram has been convicted u/s. 304 part II as well as 147 of the Indian Penal Code and has been sentenced to undergo R.I. for ten years u/s. 304 part II and R.I. for one year u/s. 147 of the Indian Penal Code. Appellant Dudhnath Ram, Lachhan Ram and Lakshuman Ram have been convicted under Ss. 323 and 147 of the Indian Penal Code and have been sentenced to undergo R.I. for one year on each count. Appellant Deonath Ram has been convicted under Ss. 323/109 and 147 of the Indian Penal Code and has been sentenced to undergo R.I. for one year on each count. All the sentences are directed to run concurrently. 2. Prosecution case in brief is that about fortnight before the alleged date of the occurrence the she-goat of the informant Lal Muni Ram (P.W. 3) fell in the field of appellant Dudhnath Ram for which some altercation, took place between both the parties and tention also persisted. On 19.2.1995 at about 10.00 A.M., the informant went to appellant Dudhnath Ram for settlement of the dispute. Other appellants were also present there. The appellant Dudhnath Ram directed them to talk and settle the dispute. However, in course of it, they entered into exchange of hot words. In the meantime, deceased Ramdeo Ram, Ram Murat Ram (P.W. 2) and Hiria Devi (P.W. 4) also came there. Ultimately, on order of Deonath Ram other appellants alongwith one Chhabi Nath Ram fell upon the prosecution party with lathi. Appellant Lachhan Ram, Lakshuman Ram and Dudhnath Ram assaulted the informant Lal Muni Ram and Ram Murat Ram who sustained injuries on various parts of the body. Appellant Bishuni Ram and Chhabi Nath Ram assaulted Ramdeo Ram with lathi on head and other parts of the body. Hiria Devi was also assaulted by appellants. However, with intervention of the villagers life of the informant and others was saved. 3. All injured persons were brought to State Dispensary Durgawati for treatment. S.I. N. Pandey of Durgawati RS. recorded statement of the informant in State Dispensary at 5.15 P.M. and registered case under Ss. 341, 323 and 342 of the Indian Penal Code. However, with intervention of the villagers life of the informant and others was saved. 3. All injured persons were brought to State Dispensary Durgawati for treatment. S.I. N. Pandey of Durgawati RS. recorded statement of the informant in State Dispensary at 5.15 P.M. and registered case under Ss. 341, 323 and 342 of the Indian Penal Code. However, the victim Ramdeo Ram died next day in course of the treatment at Varanasi and accordingly, Sec. 302 was also added. After investigation charge-sheet was submitted under Ss. 302, 325, 323, 147, 148, 149/109 of the Indian Penal Code. 4. In course of the trial, the prosecution examined seven witnesses including the informant Lalmuni Ram as P.W. 3. The doctor Ram Chandra Sahu as P.W. 5 and P.W. 6 Dr. Sunil Kumar Tripathi who conducted the post-mortem. 5. Defence of the appellants is plea of innocence and the right of private defence. According to them, informant and other members of the prosecution party armed with lathis came in the Chamber of the appellant Dudhnath Ram and assaulted him and his other men for which Durgawati P.S. was lodged. In that very case, the informant and his men has already been convicted under Ss. 147, 323/149 of the Indian Penal Code. This case is counter blast of the above case of the appellant Dudhnath Ram. The certified copy of the judgment has been filed which is Ext. A. 6. Learned counsel for the appellants challenged the judgment in question both in law as well as on facts. It is submitted that the appellants have been seriously prejudiced in their defence due to non-examination of the I.O. of the case. The learned lower court has also not properly considered the effect of non-explanation of the injury on person of the appellants alleged to be caused by the prosecution party. It is further submitted that, the circumstances clearly go to show that the prosecution party was aggressor who entered into the Chamber of the appellant Dudhnath Ram and assaulted him. It is further submitted that the learned lower court has not properly considered the provision of Sec. 360 of the Cr. P.C. and has awarded maximum sentence provided under the Act. The appellant Bishuni Ram has already remained in jail custody for more than five years. Others have also sufferred imprisonment for different periods. 7. It is further submitted that the learned lower court has not properly considered the provision of Sec. 360 of the Cr. P.C. and has awarded maximum sentence provided under the Act. The appellant Bishuni Ram has already remained in jail custody for more than five years. Others have also sufferred imprisonment for different periods. 7. So far evidence on the record is concerned, it would go to justify the findings of the learned lower court that the appellants assaulted the deceased Ramdeo Ram and others. Apart from the informant (P.W. 3), there are two injured witnesses, namely, P.W. 2 Ram Murat Ram and P.W. 4, Hiria Devi who has fully supported the prosecution story. P.W. 2 Ram Murat Ram has stated in his evidence that the prosecution party including the informant had gone to appellant Dudhnath Ram for settlement of dispute of grazing of field by she-goat upon which the appellants on order of Deonath Ram began to assault them with lathi. He has further stated that Chhabi Nath Ram and appellant Bishuni Ram assaulted the deceased Ramdeo Ram with lathi on his head and other parts of the body. He has given details of the injuries received by his wife and others. 8. P.W. 4 Hiria Devi is other injured witness. She has also narrated the story as alleged in the fard beyan. She has stated that on order of Deonath Ram, other appellants assaulted her and others with lathi. She received injuries on both legs and waist. Apart from her informant Lalmuni Ram and her husband Ram Murat Ram also received injuries. She has further stated that Ramdeo Ram received injuries on his head and other parts of the body. She has further stated that all injured persons were treated at Durgawati Hospital. Ramdeo Ram was shifted to Banaras where he died. 9. P.W. 4 Lal Muni Ram is the informant. He in his evidence has narrated the story of previous incident of grazing field by she-goat. On the alleged date and time, he aiongwith others had gone to the appellants for settlement of dispute upon which on order of Deonath Ram, all appellants assaulted them causing injuries to four persons including himself, Hiria Devi, Ram Murat Ram and the deceased Ramdeo Ram. He has specifically stated that appellant Bishuni Ram and Chhabi Nath Ram assaulted the deceased Ramdeo Ram on his head. He has specifically stated that appellant Bishuni Ram and Chhabi Nath Ram assaulted the deceased Ramdeo Ram on his head. He has also supported the fact that all injured persons were treated at Durgawati Hospital and deceased Ramdeo Ram was shifted to Varanasi in B.H.U. Hospital where he died. He also supported the fact that his statement was recorded in Hospital by S.I. and lodged case against the appellants. 10. P.W. 5 Dr. Prem Chandra Sah was the then C.A.S. at Durgawati Hospital. He has proved injuries on Ramdeo Ram, Ram Murat Ram, Lal Muni Ram and Hiria Devi. Injury reports are Ext. 1 series. He has also stated that Ramdeo Ram was referred to B.H.U. Hospital for specialized treatment. 11. P.W. 6 Dr. Sunil Kumar Tripathi was then posted at medical institute of Medical Science, B.H.U., Varanasi. He had conducted post-mortem on the dead body of Ramdeo Ram. He found following injuries on the dead body: "Contused swelling of scalp on the top of head in an area of 15 C.M. x 12 C.M. at Vertex area on opening the scalp and Cranial cavity the following injuries were found. Hematoma found at all over top of the scalp aiongwith contusion of scalp. Hematoma was of the size of 6 C.M. x 2 C.M. and 3 C.M. x 2 C.M. This Hematoma was also found extended upto adjacent part of frontal area and both sides head scalp. Fracture of both sides Cronal sutures also 7 C.M. long and this fracture also reached up to base of scalp." 12. According to him, cause of death was due to injuries on the head. Ext. 2 is the post-mortem report. 13. In course of the submission, the learned counsel for the appellants failed to offer any meaningful criticisms against the evidence of above witnesses. I have also gone through their cross-examination, I do not find any vital contradiction throwing any doubt upon their testimony. 14. Under the circumstances of the case and material available on the record, I am of the view that non-examination of the I.O. of the case is not a serious lacuna. There are enough direct evidence on the record to prove the occurrence as alleged. Therefore, non-examination of the I.O. in this particular case is of no consequence. The learned counsel for the appellants failed to show any serious prejudice being caused due to non-examination of the I.O. 15. There are enough direct evidence on the record to prove the occurrence as alleged. Therefore, non-examination of the I.O. in this particular case is of no consequence. The learned counsel for the appellants failed to show any serious prejudice being caused due to non-examination of the I.O. 15. So far question of right of private defence is concerned, learned counsel for the appellants relied upon Ext. A. Ext. A is the certified copy of the judgment dated 19.7.1999 passed by Judicial Magistrate, Kaimur in Trial No. 78 of 1989. Appellant Dudhnath Ram is the informant and four persons including informant only are accused. In that very case, neither the deceased Ramdeo Ram nor the injured persons were made as accused. There is no allegation that they assaulted the informant or even they were present at the spot. All accused persons of that case have been convicted under Ss. 147, 323 and 149 of the Indian Penal Code but have been released on admonition. Surprisingly, the alleged injuries has neither been mentioned in the judgment, nor have been brought on the record. None of the witnesses examined on behalf of the prosecution has admitted about injury on the persons of the appellants. They all have denied about the assault to any of the appellants. Under the circumstances, Ext. A is not sufficient to make out a case of right of private defence. Therefore, the prosecution was not bound to explain the injuries on the person of the appellants. 16. For the reasons stated above, it is quite clear that the appellants have failed to make out any case for interference in the finding of conviction recorded by the learned lower court. Accordingly, the conviction of the appellants passed by the lower court is hereby confirmed. 17. So far the sentence of the appellants is concerned, appellant Bishuni Ram has been sentenced to undrgo R.I. for ten years u/s. 304 part II of the Indian Penal Code and one year u/s. 147 of the Indian Penal Code. Other appellants have been sentenced to undergo R.I. for one year under different counts. This is a case of the year 1995. The assault was inflicted by the lathi. Other appellants have been sentenced to undergo R.I. for one year under different counts. This is a case of the year 1995. The assault was inflicted by the lathi. Therefore, under the circumstances of the case, the sentence awarded to the appellant Bishuni Ram is hereby modified to the extent of period of six years instead of R.I. for ten years u/s. 304 part II of the Indian Penal Code. However, the sentence awarded u/s. 147 of the Indian Penal Code is hereby maintained. 18. So far the sentence of other four accused persons is concerned, they have been sentenced under various sections to undergo R.I. for one year. In the facts and circumstances of the case as well as the role played by them the sentence awarded to them is hereby modified to R.I. for six months from R.I. for one year under different counts. All the sentences passed under different counts shall run concurrently. The period, already undergone by all the appellants in jail shall be set off in the period of sentence. The appellants Dudhnath Ram, Deonath Ram, Lachhan Ram and Lakshman Ram are on bail. Their bail bonds are hereby cancelled and they are directed to surrender before the lower court to serve out the remaining period of their sentence, if any. Appellant Bishuni Ram is already in jail custody. 19. In the result, this appeal is dismissed with above modifiction in the sentence.