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2002 DIGILAW 289 (PAT)

Basu Sahni v. State Of Bihar

2002-03-01

INDU PRABHA SINGH

body2002
Judgment I.P.Singh, J. 1. All the appellants have been convicted under section 452 of the Indian Penal Code (hereinafter referred to as the Penal Code) and sentenced to undergo rigorous imprisonment for six months each. Appellants Raj Kumar Sahni, Mahadeo Sahani and Chutiya Sahani have been also convicted under Section 324 of the Penal Code and sentenced to undergo rigorous imprisonment for six months each. Appellants Sudama Sahani and Chutiya Sahani have been further convicted under Section 323 of the Penal Code and sentenced to undergo rigorous imprisonment for three months each. Appellants Mahadeo Sahani, Raj Kumar Sahani and Chutiya Sahani have been further convicted under Section 148 of the Penal Code and sentenced to undergo rigorous imprisonment for three months each and the remaining seven appellants have been also convicted under Section 147 of the Penal Code and sentenced to undergo rigorous imprisonment for one month each. However, the sentences passed under different counts against the appellants have been ordered to run concurrently. 2. The case of the prosecution in brief is that on 18.1.83 the duck of the informant was missing and he made enquiry from the appellant Sudama Singh about missing of the duck. The appellant expressed his ignorance about the missing of the duck. Thereafter the informant came back to his house along with his family members. It is alleged that at about 7.00 P.M. alt of a sudden a mob consisting of the accused persons armed with Bhala, Farsa and Lathi came there. It has been alleged that the appellant Mahadeo Sahani gave a Bhala blow on the thigh of the informant and appellant Chutiya Sahani gave a Lathi blow on him. On receiving injury the informant fell down. Thereafter the rest of the accused persons who were also armed with Bhala, Farsa and Lathi entered the house of the informant and assaulted his father Natai Mistry and fled away. It has been further stated that the injured were taken to Colgong Hospital where they were treated and the statement of the informant was recorded. On the basis of the statement of the informant a formal F.I.R. was registered. After completion of the investigation charge sheet was submitted, cognizance was taken and the case was committed to the court of sessions where the trial concluded with the result as stated above. 3. The appellants pleaded not guilty. On the basis of the statement of the informant a formal F.I.R. was registered. After completion of the investigation charge sheet was submitted, cognizance was taken and the case was committed to the court of sessions where the trial concluded with the result as stated above. 3. The appellants pleaded not guilty. The prosecution in support of its case examined altogether seven witnesses, out of them P.W. 1 is informant-Lakhan Mistry, P.W. 2 is Laliya Devi, mother of the informant, P.W. 3 is Gauri Devi wife of the informant, P.W. 4 is Bhagiya Devi, daughter of the Natai Mistry, P.W. 5 is Natai Mistry. father of the informant, P.W. 6 is Dr. S.N. Gupta who had examined the informant and his father and P.W. 7 is I.O. of this case. 4. P. W. 1 the informant has stated that on the alleged date of occurrence he went in search of his missing duck to the house of appellant Sudama and he found that his duck was not there. He came back. According to him, in the evening at 7 P.M. when he and his family members were sitting in his house all the appellants having Farsa, Bhala and Lathi came and appellant Rajkumar gave a Farsa below, Mahadeo a Bhala blow and Sudama a Lathi blow on him. According to him, his father was also assaulted by the accused persons. According to him he identified the appellants in the electric light coming out from the house of Janardan.The other witnesses PWs. 2, 3, 4 and 5 they all have supported the case of the version of the informant (P. W. 1). 5. P.W. 6, Dr. S. N. Gupta examined Natai Mistry at B.M.C. Hospital and found the following injuries on his person : (i) Lacerated wound on the left ear in the middle (ii) Three incised cut injuries at left side of scalp above the left ear of about 2 1/2" x 1//2" x bone deep each (iii) Incised cut injury over the base and dorpyn of left middle finger and ring finger (iv) Lacerated wound of 1" x 1/4" over left supraorbital margin. (v) Punctured wound at left side mid chest wail of 1 cm diameter with local surgical physes. (vi) 3 lacerated wound of about 3/4" x 1/2" x 1/2" each at left lower loin. (v) Punctured wound at left side mid chest wail of 1 cm diameter with local surgical physes. (vi) 3 lacerated wound of about 3/4" x 1/2" x 1/2" each at left lower loin. (vii) Incised cut at lateral side of left lower limb of about 2" x 1/4" x skin deep. In the opinion of the doctor injury nos. 1, 6 and 9 were caused by hard and blunt weapon and injury nos. 2, 3 and 7 were caused by sharp cutting weapon and injury no. 5 was caused by sharp pointed weapon which was grievous in nature. So far Lakhan Mistry-informant is concerned, Dr. Kamlesh Kumar who examined him has not been examined by the prosecution. Ext. 5 is the injury report issued by the Investigating Officer which has been proved by him (I.O.). 6. P.W. 7, I.O. has stated that he was officer-in-charge and he inspected the place of occurrence and also recorded the statement of the informant and other witnesses. In cross examination he has stated that he had not stated about blood stains on the electric pole in his case diary. According to him, witnesses Gauri Devi and Laliya Devi did not state before him about the weapons used. 7. Learned counsel for the appellants submitted that there are contradictions in the deposition of the witnesses and all the witnesses are interested and related. As such, they are not reliable and trust worthy. So far the contradictions in the deposition of the witnesses are concerned, those contradictions are very minor and are bound to happen. The submission of the learned counsel that all the witnesses were interested but they are natural and competent witnesses as they were present at the time of occurrence and the informant and his father were assaulted by these appellants. The case of the prosecution will not be discarded on this ground only, rather in such cases their evidence should be scrutinised with more care and caution. 8. From the evidence of the witnesses it is apparent that all the appellants forming an unlawful assembly came to the house of the informant and assaulted the informant and also his father Natai Mistry which has been supported and corroborated by other witnesses including the doctor P.W. 6. Although the doctor who treated the informant was not examined but the injury report has been proved by the I.O. Ext. 5. Although the doctor who treated the informant was not examined but the injury report has been proved by the I.O. Ext. 5. As the appellants came and voluntarily (siccaused ?) hurt to the informant and his father, the court below has rightly convicted these appellants for the offences punishable under sections 452, 324, 323, 148 and 147 of the Penal Code. 9. Coming to the question of sentence learned counsel submitted that the occurrence took place in 1983 and since then the appellants have been sufficiently punished during the prolonged litigation. It has been also submitted that there is no criminal antecedent and previous conviction against them and there was no intention to kill the informant. The occurrence took place for a very triffling matter. As such it requires consideration on the point of sentence. Having regard to the submission and in the facts and circumstances of the case I am of the view that ends of justice will be met if the appellants are sentenced to pay a fine of Rs. 500/- each to be deposited by them within three months from the date of receipt/production of a copy of this order, in default, to undergo rigorous imprisonment for three months. The amount of fine, if and when realised from the appellants, Rs. 2500/- will be paid to the informant, Lakhan Mistry (P.W. 1) and Natal Mistry (P.W. 5) each. With the aforesaid modification in sentence this appeal is dismissed.