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2002 DIGILAW 299 (PAT)

Agnivesh Tiwary v. State Of Bihar

2002-03-05

INDU PRABHA SINGH

body2002
Judgment I.P.Singh, J. 1. All the appellants have been convicted under section 304 part ll/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years each. They have been further convicted under section 337 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three months. However, the sentences have been ordered to run concurrently. 2. The prosecution case, in short, is that on 6th June, 1981 at about 8 P.M. appellants began to threw brick bats at the house and Darwaja of Jai Kishun Rai informant at the instigation of appellant Fulena Tiwary. The brick bats thrown by the appellant Agnivesh Tiwary hit the testicle of the deceased Beni Rai, younger brother of the informant which caused injury to him. He became unconscious after sustaining injury. In the morning of 7th June, 1981, the deceased was brought to Motihari for treatment and Dr. M.P. Verma on 8.6.81 at 1 P.M. treated him and told the informant to take the deceased Beni Rai to his house, as there was no chance of his survival. The deceased was while being brought to the village, in the way he died of the injuries. It has been stated that the occurrence took place because Fulena Tiwary was a rich man of the village and the members of the prosecution party were poor men but they were leading good life by dint of their labour. This caused jealousness of the accused persons and due to that they threw brick bats causing death of the deceased. Fardbeyan of the informant was recorded on 8.6.81 at Kotwa P.S. on the basis of which formal F.I.R. was drawn up. After completion of investigation charge sheet was submitted against ;the accused persons. Accordingly, cognizance was taken and case was committed to the court of sessions where the trial concluded with the result as indicated above. The appellants pleaded not guilty. 3. The prosecution in support of its case examined altogether ten witnesses. P.W. 1 is Badri Rai, eye witness, P.W. 2 is Sheo Balak Rai, eye witness, P.W. 3 is Ganesh Thakur, eye witness, P.W. 4 is Nathuni Upadhya, eye witness, P.W. 5 is Ram Chandra Upadhya, eye witness, P.W. 6 is Bishwa Nath Tiwary, P.W. 7 is Jai Kishun Rai, informant, P.W. 8 is Dr. Maheshwari Pd. P.W. 1 is Badri Rai, eye witness, P.W. 2 is Sheo Balak Rai, eye witness, P.W. 3 is Ganesh Thakur, eye witness, P.W. 4 is Nathuni Upadhya, eye witness, P.W. 5 is Ram Chandra Upadhya, eye witness, P.W. 6 is Bishwa Nath Tiwary, P.W. 7 is Jai Kishun Rai, informant, P.W. 8 is Dr. Maheshwari Pd. Verma, P.W. 9 is Bharat Rai and P.W. 10 is Deo Dhari Rat, a tendered witness. 4. P.W. 7, the informant of the case has fully supported the case of the prosecution. According to him, on 6.6.81 he was at his Darwaja, he saw the accused persons throwing brick bats towards his house and his younger brother Beni Rai sustained injury on his testicle. He has stated that Sheo Balak Rai (P.W. 3) and Bharat Rai (P.W. 9) were also assaulted by brick bats. In the next morning his brother Beni Rai was taken to Dr. M.P. Verma, Motihari for his treatment. After examining him he suggested to take him to his house as there was no chance of his survival and he was brought to his house but in the way he died. Thereafter he went to the police station with Ram Chandra Upadhya (P.W. 5) and his Fardbeyan was recorded by S.I. of police. P.Ws. 1, 2, 3, 4, 5 and 9 they all are eye witnesses of the occurrence and have supported and corroborated the version of the informant (P.W. 7). 5. P.W. 8 is Dr. M.P. Verma, who examined the injured on 7.6.81. According to him the deceased was suffering from strangulation inguinal hernia and due to increase in intra abdominal pressure, hernia can strangulate. In his cross examination he has stated that it was a strangulated case of hernia and the deceased was an old patient of hernia. The doctor who conducted the post mortem examination has not been examined but the injury report issued by the doctor has been exhibited as Ext. IV from which, it transpires that the death of the deceased was not normal and it was caused due to strangulation inguinal hernia and on scrotem there was redish swelling and lower right portion of the abdomen was also swelling. 6. Learned counsel for the appellants has submitted that the death of the deceased was due to hernia and the appellants have been falsely implicated in this case due to enmity. 6. Learned counsel for the appellants has submitted that the death of the deceased was due to hernia and the appellants have been falsely implicated in this case due to enmity. It has been further submitted that the witnesses have stated that the deceased got injuries on his testicle by brick bats thrown by the appellants but the doctor did not find brick bats injury on the testicle of the deceased. 7. From the evidence of the eye witnesses it is apparent that the deceased Beni Rai was assaulted by the appellants with brick bats which hit his testicle. All the witnesses are consistent and their testimony is reliable and trust inspiring. Though the doctor has not supported the assault to be the cause of death of the deceased but according to the doctor death was due to strangulation of hernia and deceased was an old patient of hernia. However, on the face of ocular evidence it is evidently clear that the deceased was assaulted by brick bats and due to sudden assault on testicle in process he might have developed intra abdominal pressure resulting into strangulation of hernia. 8. Considering the above facts and circumstances of the case I am of the view that the court below has rightly come to the conclusion and convicted the appellants for the offence punishable under sections 304, part 11/34 and 337 of the Indian Penal Code. However, coming to the question of sentence learned counsel for the appellants submitted that the occurrence took place in 1981 about 20 years ago and the appellants have been amply harassed and punished, and they have also remained in jail for some time. It has been also submitted that there is no criminal antecedent and previous conviction against them. As such, some lenient view may be taken while awarding sentence to the appellants. Having regard to the submissions as raised I am of the view that ends of justice will be met if the sentence of these appellants is reduced to the period they have already undergone in jail with 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 one year. The amount of fine, if and when realised from the appellants, shall be given to the widow of the deceased Bent Rai. 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 one year. The amount of fine, if and when realised from the appellants, shall be given to the widow of the deceased Bent Rai. With the aforesaid modification in sentence this appeal is dismissed.