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2003 DIGILAW 745 (PAT)

Sadhu Yadav v. State Of Bihar

2003-07-23

INDU PRABHA SINGH

body2003
Judgment INDU PRABHA SINGH, J. 1. The sole appellant has been convicted under Section 307 of the Indian Penal Code and was sentenced to undergo R.I. for ten years. He was further convicted under Section 27 of the Arms Act and sentenced to undergo R.I. for two years. However, both the sentences were ordered to run concurrently. 2. The prosecution case, as per the fardbeyan of the informant Dharmanedra Kumar, is that on 18.4.1946 at about 5 a.m. while the informant along with his cousin Sanjay Kumar and villager Narayan Singh had gone to bring Cucumber [kakari] from his field, known as Ashrafchak Khandha, all of a sudden the appellant Sadhu Yadav came there and gave a lathi blow in the left leg of the informant. The informant, sustaining lathi injury, started fleeing away and when went at some distance then the appellant Sadhu Yadav fired a pistol upon the informant which caused injuries in the right thigh of the informant. Thereafter, the witnesses Sanjay Kumar and Narayan Singh, who were also present in the field brought him near the Khandha and thereafter with the help of the witnesses he came to the police station, where the fardbeyan of the informant was recorded. The cause of occurrence has been disclosed that one week prior to the occurrence, the appellant Sadhu Yadav wanted to cross through the grains of the informant which was kept in his khalihan. When he was objected, the appellant threatened him of dire consequences and due to the same the occurrence took place. On the basis of the fardbeyan of the informant, the formal FIR was registered in Bind Police Station under Section 307 of the Indian Penal Code and also under Section 27 of the Arms Act. The police after investigation submitted charge-sheet against the appellant and accordingly cognizance was taken and the case was committed to the Court of Session for trial. Ultimately, trial concluded with the result as indicated above. The appellant pleaded not guilty and stated that he had been falsely implicated in this case due to enmity. 3. The prosecution, in support of its case, has examined altogether seven witnesses. PW 1 is Pinku Kumar PW 2 is Sanjay Kumar. He is cousin brother of the informant, PW 3 is Dharmendra Kumar, the informant-injured of the case. PW 4 is Sato Singh. 3. The prosecution, in support of its case, has examined altogether seven witnesses. PW 1 is Pinku Kumar PW 2 is Sanjay Kumar. He is cousin brother of the informant, PW 3 is Dharmendra Kumar, the informant-injured of the case. PW 4 is Sato Singh. He is the uncle of the informant, PW 3, PW 5 is Ranjeet Singh. He is tender. PW 6 is Dr. Chandeshwar Prasad. He has examined the informant-injured, (PW 3). PW 7 is Krishna Jiwan Prasad. He is the I.O. of this case. PW 3, the informant has fully supported the case of the prosecution. According to him, on the day of occurrence, i.e. on 18.4.1986 at about 5.30 a.m. while he along with his cousin Pinku Kumar and Sanjay Kumar and Narayan Singh had gone to bring Cucumber [kakari] from the field and when he was plucking the same, the appellant came there and gave lathi blow on his leg, sustaining the injury he started fleeing away from the field and when he went at some distance, the appellant fired his pistol upon him (the informant) causing him injury on his thigh. Thereafter he fell down. His nephew Sanjay Kumar and villager Narayan Singh came there. Having seen them the appellant fled away. It has been further stated that the informant was carried by these witnesses near Khandha and they raised alarm from there and on their alarm, villagers came and they took him to the police station where his fardbeyan was recorded. He has further stated that he was brought to Biharasharif Hospital for his treatment. According to him, cause of the occurrence was that one week prior to this occurrence, the appellant wanted to go through the massor grains which was kept in his khalihan and when he objected the appellant threatened him of dire consequences. The other witnesses PWs 1 and 2 have also supported the version of the informant as stated in the fardbeyan. PW 4 is although the hearsay witness but he has also corroborated to evidence of other witnesses. PW 6 is Dr. Chandeshwar Prasad. The other witnesses PWs 1 and 2 have also supported the version of the informant as stated in the fardbeyan. PW 4 is although the hearsay witness but he has also corroborated to evidence of other witnesses. PW 6 is Dr. Chandeshwar Prasad. He has examined the informant-injured on 18.4.1986 at 10 a.m. and found following injuries on the person of the injured : (i) One bullet injury entry being on the right thigh laterally of half inch diameter penetrating and passing through the milscles medially with exit of 3/4" diameter and again entering in the muscles of a left thigh posteriarly. (ii) Bruise with swelling and abrasion of 3" x 2" on the left ankle laterally. According to opinion of the doctor, injury No. 1 was caused by fire arm such as pistol and injury No. 2 was caused by hard and blunt substance such as lathi Nature of injury No. 1 was grievous and was dangerous to life and injury No. 2 was simple. PW 7 Krishna Jiwan Prasad, who is the Investigating Officer of this case, has also supported the case of the prosecution. According to him, on the date of occurrence, he was posted at Bind Police Station as the Officer -in-charge and on that day, the informant Dharmendra Kumar came at his police station in injured condition and he recorded his fardbeyan (Exhibit-3) and thereafter, it was sent to Asthawan Police Station along with his forwarding report (Exhibit-4) for registering a case. He started investigation and in course of investigation he again took the statement of informant Dharmendra Kumar. He also recorded the fardbeyan of other witnesses PWs 1, 2 and 4. He had stated that he inspected the place of occurrence and has given the full description of the same. He also found the trempling marks in the Cucumber [kakari] field but he did not find blood stain in the place of occurrence. 4. Learned counsel for the appellant has submitted that all the witnesses are interested and partisan and not a single independent witness has been examined in this case. He has further submitted that the appellant had no intention to kill the informant as he did not fire at the vital part of the body of the informant and the fire was not repeated. He has further submitted that the appellant had no intention to kill the informant as he did not fire at the vital part of the body of the informant and the fire was not repeated. Learned counsel for the appellant further submits that in this case apart from the informant, Dharmendra Kumar (PW 3), Sanjay Kumar (PW 2) and Pinku Kumar (PW 1), one Narayan Singh had also gone to the Cucumber field and was present when the occurrence took place there, but he has not been examined by the prosecution. PW 4 is not the eye-witness of the occurrence and PW 5 is the tender witness. As such the case is based on the evidence of PW 1, 2 and 3. Learned counsel further submits that though they are competent witnesses but they are interested witnesses as well. 5. On consideration of the submission advanced by the learned counsel appearing on behalf of the appellant, case of the prosecution cannot be discarded on the ground that the prosecution witnesses of the case were interested witnesses. The plea of the appellant that there was no intention of the appellant to kill the informant seems to be convincing in the facts and circumstances of the case as it has been alleged that the appellant came and gave a lathi blow on the left leg of the informant and not on the vital part of the body. The story of the prosecution is also that the appellant had pistol with him but he did not fire and gave a lathi blow when he came at the place of occurrence and the pistol was fired when the informant started fleeing and reached at some distance. The fire hit the informant on the lower portion of his body i.e. thigh of the right leg. As such appellant had no intention to kill the informant. It also appears that the genesis of the occurrence was the protest made by the informant on appellant when he wanted to cross through the grain which was kept in his khalihan, few days earlier the present occurrence took place. On that day, the appellant had threatened the informant of dire consequences and it appears that in order to terrorise the informant and to show his superior muscles power and ran-gadari over the informant, he fired at him on his leg from some distance. On that day, the appellant had threatened the informant of dire consequences and it appears that in order to terrorise the informant and to show his superior muscles power and ran-gadari over the informant, he fired at him on his leg from some distance. Though in the opinion of the doctor injury No. 1, supported by the X-ray report, was not grievous in nature but it does not come under Section 320 of the IPC as enunciated in the section. From the report of the doctor, it appears that the bullet entered into the muscles of the thigh of the informant and was extracted by the doctor, as such the nature of the injury was not grievous and it also appears that it had not touched the bone of the leg. 6. In view of the above act of the appellant causing injuries on the thigh of the informant by dangerous weapon attracts the offence under Section 324 of the IPC and not under Section 307 of the IPC. As such the conviction of the appellant under Section 307 of the IPC is altered to that under Section 324 of the IPC. However, conviction under 27 of the Arms Act is maintained. 7. Coming to the question of sentence, learned counsel for the appellant has submitted that the occurrence is of 1986 i.e. more than seventeen years ago and the petitioner has been amply punished and harassed during the prolonged-litigation. It has also been submitted that the appellant had no intention to kill the informant and there is no criminal antecedent and previous conviction against him. Moreover, he has remained in jail for some time. As such it requires consideration on point of sentence. 8. Having regards to the submissions so raised, I am of the view that it will be expedient in the interest of justice if the sentence of the appellant is reduced to the period already undergone by the appellant with a fine of Rs. 4,000/- (four thousand) to be deposited by the appellant within three months from the date of receipt of a copy of this order. In default, he shall undergo R.I. for one year. It is made clear that the amount of fine, if and when deposited by the appellant, shall be paid to the injured-informant Dharmendra Singh (PW 3) s/o Bal Kishore Singh. In default, he shall undergo R.I. for one year. It is made clear that the amount of fine, if and when deposited by the appellant, shall be paid to the injured-informant Dharmendra Singh (PW 3) s/o Bal Kishore Singh. With the aforesaid modification in the sentence, the appeal is dismissed. Appeal dismissed with modifications.