Research › Search › Judgment

Jharkhand High Court · body

2003 DIGILAW 755 (JHR)

Kailash Paswan v. State of Bihar

2003-07-02

AMARESHWAR SAHAY

body2003
Judgment By Court.-The appellant was charged under section 307 of the Indian Penal Code for assaulting with Bhujali with intention to cause death of Kedar Yadav. However, after trial, the learned Sessions Judge, Sahibganj by his judgment dated 30th May, 1995, in Sessions case no. 343 of 1991 convicted the appellant under section 326 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 10 years holding that the charge under section 307 of the Indian Penal Code was not established rather the case under section 326 of the Indian Penal Code was established by the prosecution. 2. Being aggrieved by the said judgment of conviction and sentence the appellant has preferred the present appeal. 3. The prosecution case in short is that on 3.8.1989 in the evening at 6.15 P.M. the informant was in his house situated at Coolipara P.S. Sahibganj. He saw that two small children were abusing him, at this he objected and gave a slap to one of the child, who was the niece of the appellant, Kailash Paswan. The said girl informed the accused and his wife about the said incident and thereafter the appellant came to the house of the informant with Bhujali and assaulted him with the same causing injuries on his head. Soon thereafter the informant rushed to the hospital where he was treated by the Doctor and there itself his fard beyan was recorded by the police. Fard beyan was containing the signature of two witnesses namely Kishori Yadav (Ext 2/3) and Om Prakash Ram (Ext 2/1). On the basis of the fard beyan (Ext. 2) the F.I.R. (Ext. 1) was registered and after completion of the investigation the police submitted the charge sheet under section 307 of the Indian Penal Code against the appellant. 4. In order to establish the charge prosecution examined altogether seven witnesses. Out of whom, P.Ws. 3 and 4, who are signatories of the Fard beyan, have deposed as eye witnesses to the occurrence. P.Ws. 1 and 2 are the formal witnesses who have proved Exts. 1 and 2 respectively. P.w. 5 is the Informant. P.W. 6 is the Investigating Officer. P.W. 7 is the Doctor who examined the injury on the person of the informant and proved his injury report. The material witnesses are P.Ws. 3, 4 and P.W. 5 i.e. the informant. 5. From perusal of the evidence of P.Ws. 1 and 2 respectively. P.w. 5 is the Informant. P.W. 6 is the Investigating Officer. P.W. 7 is the Doctor who examined the injury on the person of the informant and proved his injury report. The material witnesses are P.Ws. 3, 4 and P.W. 5 i.e. the informant. 5. From perusal of the evidence of P.Ws. 3 and 4, who have deposed as eye witnesses, it appears that in fact they have not seen the occurrence because their version are in contradiction to the statement of the informant on all materials points. Such as in para-5 of his evidence P.W. 5 has stated that at the time of assault, except him, nobody was there and even on his hulla none came to the place of occurrence and therefore, in my opinion, in view of the clear statements of the informant that nobody was present at the time of his assault, the evidence of P.Ws. 3 and 4 cannot be believed. So far as the statements of the P.W. 5, informant is concerned, it appears that injuries sustained by him has fully been corroborated by the evidence of the Doctor P.W. 7. 6. However, from the nature of the injuries which have been found on the person of the informant, in my opinion, it cannot be said that the ingredients of Section 326 of the Indian Penal Code are established. Out of five injuries received by the informant, 4 are simple in nature and one is grievous which is on his palm. Therefore, considering the nature of the injuries, I find that at best it can be a case of under section 325 of the Indian Penal Code. Consequently, the conviction of the appellant is converted from section 326 of the Indian penal Code to Section 325 of the Indian Penal Code. 7. From records it appears that the appellant has already remained in jail for more than two years. 8. In that view of the matter, in my opinion, the ends of justice would be met if the sentence is reduced to the period already undergone. 9. In the result, this appeal is dismissed with modification in conviction and sentence as aforesaid i.e. the period already undergone by the appellant. As the appellant is on bail, he is discharged from the liability of his bail bond.