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2002 DIGILAW 42 (PAT)

Bhola Bari v. State Of Bihar

2002-01-10

INDU PRABHA SINGH

body2002
Judgment I.P.Singh, J. 1. Both the appellants have been convicted under section 307/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for five years each. 2. The prosecution case, in brief, is that on 11.8.1981 at 9.30 A.M. a quarrel started between the informant and the appellants who are Gotia in connection with entrance door of the house. Both the appellants were putting obstruction on the entrance of the house. It has been alleged that the informant protested upon which appellant Bhola Bari brought a sword and appellant Brinda Bari brought a Garasa from their house. Appellant Bhola Bari gave a sword blow on the head of the informant as a result of which he sustained cut injury on the left side of his head. It has been further alleged that the appellant Brinda Bari gave several Garasa blows to the wife of the informant causing injuries on the left side of her head, right scapular region and at the root of left hand finger. It has been further alleged that his daughter rushed to save him upon which appellant Brinda Bari gave two Garasa blows on her as a result of which her left shoulder joint were cut at two places. The witnesses, namely, Raghunath Singh, Ram Dayal Mahto (P.W. 1), Dukhan Mahto and others who were present there have witnessed the occurrence. The injured informant, his wife and daughter were taken to Bikramganj police station on a Tamtam where the informant gave his statement on the basis of which F.l.R. (Ext. 2) was recorded. After completion of investigation the police submitted charge sheet against the appellant. Thereafter the cognizance was taken and the trial concluded with the result as stated above. 3. The appellants pleaded not guilty and have stated that they have been falsely implicated in this case due to land dispute. 4. The prosecution in order to prove its case has examined altogether five witnesses out of whom P.W. 5, Harakh Narain Singh is a formal witness who has proved the F.I.R. (Ext. 2) and signature (Ext. 2/1) of the informant. P.W. 2 is Suryamani Devi. P.W. 1 is Ram Dayal Mahto. P.W. 3 is Tara Devi injured. P.W. 4 is Dr. Vinay Kumar who has examined that injuries on the person of the informant, his wife (P.W. 2) and daughter (P.W. 3). 5. 2) and signature (Ext. 2/1) of the informant. P.W. 2 is Suryamani Devi. P.W. 1 is Ram Dayal Mahto. P.W. 3 is Tara Devi injured. P.W. 4 is Dr. Vinay Kumar who has examined that injuries on the person of the informant, his wife (P.W. 2) and daughter (P.W. 3). 5. P.W. 1, Ram Dayal Mahto, has stated that on 11.8.1981 at 6 A.M. while he was at his Darwaja he heard Hulla and went to the house of appellant Bhola Bari. He saw that appellant, Bhola Bari assaulted Seth Prasad with sword on his head who fell down.Thereafter the wife of Seth Prasad came to save him upon which appellant Brinda Bari assaulted with Garasa on her head and left arm. After that Tara Devi the daughter of Seth Prasad came there and she was also assaulted with Garasa by appellant Brinda Bari on his left arm. He has further stated that Raghunath Singh and Dukhan Singh were also present there. Thereafter he and others took the injured informant, his wife and his daughter to Bikramganj Hospital where they were treated. He has stated that the blood had fallen on the ground. 6. P.W. 2 is the wife of the informant. She has stated that on 11.8.1981 at about 6 A.M. while she was in her house she heard Nulla and came out of the house. Saw that appellant Bhola Bari assaulted her husband with sword on his head, she went to save her husband upon which appellant Brinda Bari assaulted her with Garasa on her head, left hand and back. She has further stated that the appellant Brinda Bari also assaulted her daughter Tara Devi with Garasa on her Pakhura when she came there. She has further stated that Dukhan, Raghunath and Ram Dayal (P.W. 1) were present at the place of occurrence and had seen the alleged occurrence. According to her the alleged assault had taken place on account of dispute relating to passage and after the occurrence all the three injured were taken to Bikram Hospital. She has further stated that the appellants are her Gotia. 7. P.W. 3, the daughter of the informant has been declared hostile by the prosecution. 8. According to her the alleged assault had taken place on account of dispute relating to passage and after the occurrence all the three injured were taken to Bikram Hospital. She has further stated that the appellants are her Gotia. 7. P.W. 3, the daughter of the informant has been declared hostile by the prosecution. 8. P.W. 4 is the Doctor who on 11.8.1981 had examined the informant, Seth Prasad and found the following injuries on his person: (i) Incised wound 4" x 1 1/2" over the left side of the scull with the cut of the bone. The brain matter was visible and meningeal artery was bleeding (ii) Pain and tenderness over the back of the level of L1 to L5 vertebrae of the vertebral column. According to the Doctor the injury no. (i) was caused by sharp cutting weapon, such as sword and was grievous in nature and injury no. (ii) was caused by hard blunt substance and was simple in nature. On the same day he has also examned Tara Devi (P.W. 3) and found the following injuries on her person: (i) Incised wound 1" x 1/2" x 1/2 over the left clavical. (ii) Incised wound 1" x 1/4" x 1/4" over the left shoulder joint. In the opinion of the Doctor both the injuries were simple in nature and caused by sharp cutting weapon like Garasa. On the same the Doctor has also examined Suryamani Devi (P.W. 2) and found the following injuries on her person: (i) Incised wound 1" x 1" x 1" over the left side of the skull. (iii) Incised wound 1" x 1/2" x 1/2" over the back of the left hand. According to the Doctor all the injuries were caused by sharp cutting weapon, such as Garasa and were simple in nature. 9 Learned counsel appearing on behalf of the appellant has submitted that I.O. of this case has not been examined and non-examination of the l.O. has prejudiced the case of the defence. He has further submitted that the evidence of the witnesses are not convincing and consistent. He has further submitted that the appellants did not repeat their blows, therefore, the appellants had no intention to kill the informant, his wife and daughter. He has further submitted that there was land dispute between them. 10. He has further submitted that the evidence of the witnesses are not convincing and consistent. He has further submitted that the appellants did not repeat their blows, therefore, the appellants had no intention to kill the informant, his wife and daughter. He has further submitted that there was land dispute between them. 10. In this case the informant could not be examined since he died before the trial and two charge sheet witnesses also died before the trial. The whole case of the prosecution naturally rest on P.W. 1 who took the injured informant, his wife and his daughter to the Hospital for their treatment. He has fully supported the factum of assault. P.W. 2 has also supported the case of the prosecution as narrated by the informant in his F.l.R. Though I.O. has not been examined but P.W. 5 has proved the Fardbeyan (Ext. 2) which was recorded by the then Officer Incharge. The Doctor had also found the injuries on the person of the injured as stated in his deposition. As such by examination of the I.O. the statement of P.W. 3 could have been controverted as such non-examination of the I.O. has not prejudiced the case of the defence rather it has prejudiced the prosecution case. As it has been stated that the witnesses are interested and related and no independent witness has been examined but P.W. 2 is no way related to the injured informant and his family members neither any thing was brought to show that he had inimical term with the appellants. As submitted by the learned counsel that the appellants did not repeat the blows of sword and Garasa on the injured, as such they had no intention to kill the injured. 11. From the deposition of the witnesses it appears that it all started with the entrance door and the appellants came armed with sword and appellant, Bhola Bari, gave a sword blow on the head of the informant and according to the Doctor the nature of one injury on informant was grievous, but as the appellant did not repeat his blow it shows that he had no intention to kill the informant neither it was a pre-meditated act of the appellant, as such, his act does not attract for the offence punishable under section 307 of the Indian Penal Code. At best it attracts the offence punishable under section 326 of the Indian Penal Code for voluntarily causing hurts by dangerous weapon, as such his conviction is altered for the offence punishable under section 326/34 of the Indian Penal Code. The appellant, Brinda Bari, was accompanying the appellant, Bhola Bari and he assaulted the wife of the informant by Garasa on her person and according to the Doctor those injuries were simple in nature, as such his act attracts for the offence punishable under section 326 of the Indian Penal Code. However, as he was also accompanying the appellant, Bhola Bari and assaulted the injured informant and this act was done in common intention by both the appellants, as such his acts attracts for the offence punishable under section 326/34 of the Indian Penal Code also. Accordingly, his conviction under section 307/34 of the Indian Penal Code is also altered for the offence punishable under section 326/34 of the fndian Penal Code and further he is also convicted under section 324 of the Indian Penal Code. 12. Coming to the question of sentence the learned counsel appearing on behalf of the appellants has submitted that the occurrence took place in the year 1981 i.e. 21 years ago. He has further submitted that there has been compromise between the informant and the appellants and the matter has been settled outside the court, therefore, it, requires consideraton on the point of sentence. 13. Learned counsel has cited a decision reported in A.I.R. 1999 S.C. 2181 (Surendra Nath Mohanty and another V/s. State of Orissa) in which it was held that the appellants were convicted under section 326 of the Indian Penal Code and the matter was settled outside the court and as the occurrence was having 10 years back and the accused persons have already remained in jail for three years so their sentences were reduced to the period they have already undergone in jail. 14. In this case aiso as stated by the learned counsel that the matter has been settled between the parties out side the court and this fact has also been mentioned in the judgment of the court below and the compromise petition is also on the record. It has also been submitted that the appellants have remained in jail for a month. 15. It has also been submitted that the appellants have remained in jail for a month. 15. Taking into consideration the submissions raised by the learned counsel for the appellants and in the facts and circumstances of the case, I am of the view that the ends of justice will be met if the sentence of these appellants are reduced to the period they have already undergone in jail with a fine of Rs. 3,000/- each to be deposited by them within three months from the date of receipt/production of a copy of this order. In default they will have to undergo rigorous imprisonment for three months. It is made clear that the amount of line, if and when, realised by the appellants, a sum of Rs. 5,000/- shall be paid to the injured, Surajmani Devi, wife of the informant, Seth Prasad. 16. With the aforesaid modification in the conviction and sentence this appeal is dismissed.