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2002 DIGILAW 506 (PAT)

Binod Kahar v. State Of Bihar

2002-04-17

B.N.P.SINGH

body2002
Judgment B.N.P.Singh, J. 1. The appellants suffered conviction under Section 397 of the Indian Penal Code on being tried by 1st Additional Sessions Judge, Nalanda and were sentenced to undergo rigorous 3 imprisonment for a term of five years each. 2. The factual matrixIt was alleged that at 8.30 p.m. on 9th June, 1984 while Manohar Prasad, PW 4, was going to respond to natures call and had hardly reached the cattle fair, he noticed appellants coming holding katar with them who dealt blows on him with the said weapon causing injuries on his person. After the police case had been registered with these accusations on behest of Manohar Prasad, investigation commenced, in course of which the police recorded statement of witnesses, visited place of occurrence, secured injury report from the doctor and on conclusion of investigation laid charge-sheet before the Court. In the eventual trial that commenced against the appellants, the State examined altogether five witnesses including doctor and the injured. 3. The defence of the appellants before the Court below and also this Court has been plain denial of allegations and it was suggested to the witnesses in their defence that Manohar Prasad sustained injuries on his person in drunken state and appellants were falsely implicated due to institution of case by one of the appellants, though neither any witness was examined on behalf of the appellants, nor any document was placed on the record to fortify the defence, and the trial Court on appraisal of evidences placed on the record treating the witnesses credible, recorded verdict of guilt under Section 397 of the Indian Penal Code and sentenced the appellants in the manner stated above. 4. 4. Various contentions were raised at Bar on behalf of the appellants about there being serious infirmity in the prosecution case and it is sought to be urged that documents placed on the record would not fail to suggest that after receipt of alleged injuries by Manohar Prasad at 8.30 on 9th June, 1984, he took recourse to public authority at the Police Station, who drew first information report not before 9.30 p.m., and notwithstanding institution of the Police case at this hour, it would appear from the evidence of the doctor, Ram Nagina Singh, PW 5, that he examined the injured at 9 p.m., and on these premises it is urged that since the first information report itself was drawn up at the Police Station at 9.30 p.m., there was no occasion for referring the injured to the doctor for examination of the injured at 9. p.m. The other contentions raised at bar on behalf of the appellants was that though the witnesses were claiming to be ocular, it would appear from the tenor of the first information report and also the evidences that there was no occasion for them to witness the incident, as they were suggested to have reached the place of occurrence on alarms raised by the victim on receiving injury by Manohar Prasad and the last argument canvassed at bar on behalf of the appellants was that though the prosecution was launched against them in the year 1984, about two decades have elapsed since institution of the case and, hence, it is urged that in case, the finding of guilt recorded by Court below was upheld by this Court, this mitigating circumstances deserves to be taken notice of for consideration of imposition of sentence against them. 5. Learned counsel appearing for the State resisting contentions raised at the Bar on behalf of the appellants urged, that the witnesses examined by the State deserves credence. 6. 5. Learned counsel appearing for the State resisting contentions raised at the Bar on behalf of the appellants urged, that the witnesses examined by the State deserves credence. 6. Manohar Prasad, PW 4, who was the maker of fardbeyan reiterated his early version which he rendered befor the police about the appellants dealing blows with a sharp-edged weapon on upper part of his body, and narrations made by Tilangi Prasad, PW 1, Mahendra Prasad, PW 2 and Jagdish Prasad, PW 3 about Manohar Prasad sustaining injuries on upper part of his person at the hands of appellants with a sharp edged weapon are in tune with the early version of the prosecution. The cattle fair where Manohar Prasad sustained injuries situates at a distance of 50/60 yards east from the village and it is quite possible that the witnesses would have occasion to witness the incident. The doctor who examined the injured had noticed corresponding injuries on his person and they were not less than six in numbers. The doctor noticed following injuries on the person of Manohar Prasad : (i) Incised wound on right partial bone of head. (ii) Incised wound just posterior to right ear. (iii) Incised wound on muscle and left side of head. (iv) Incised wound on right and parital part of heart. (v) Incised wound on upper part of outer pina of right ear. (vi) Incised wound on dorsel surface of right hand. The injury No. 1 caused on right parital bone of head was found to be grievous in nature, while other were simple. The doctor has ruled out the possibility of presence for these injuries due to fall on some pointed substance. 7 Though serious contentions were raised at bar about there being desparity in the time of examination of injured by the doctor and also the drawal of FIR, taking assertions made on behalf of the appellants, there was variation of only half an hour and that apart, error in assessing time cannot be discounted. As has been stated, the witnesses hail from same village and taking their evidences conjointly, and not in isolation, assertion made by the witnesses to witness the occurrence did not appear to be a remote possibility. They hail from the same village and the place of occurrence situates at a distance of only 50/60 yards. As has been stated, the witnesses hail from same village and taking their evidences conjointly, and not in isolation, assertion made by the witnesses to witness the occurrence did not appear to be a remote possibility. They hail from the same village and the place of occurrence situates at a distance of only 50/60 yards. Though suggestions were given to the witnesses about Dina Nath Kahar also instituting a case, as has been stated, neither any witness was examined on behalf of the appellant nor any document was placed on the record. Though some exaggerations too were introduced in statements of some witnesses like that of Jagdish Prasad, PW 3, who would state that the assailants were exhorting to kill the victim, no such narrations were made by other witnesses nor there was such recital in the first information report. 8. Having given my anxious and deepest consideration to the facts and circumstances of the case and also the evidences placed on the record and regard being had to the submissions made at the Bar on behalf of the appellants about the appellants having suffered custody for a month and also the ordeal of protracted prosecution for about eighteen years when they were teenages at the time of commission of offence, while, upholding the conviction recorded by the trial Court they are sentenced to the period already gone and in addition they are also sentenced to pay a fine of Rs. 5,000/- each, in default of which they will suffer rigorous imprisonment for a term of one year. The fine should be deposited with the trial Court within three months of the receipt/production of copy of this order in the Court below and half of the fine so realised shall be payable to the injured or his successor, in case the former is not alive and with this modification, the appeal is dismissed.