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2003 DIGILAW 77 (PAT)

Shivnandan Singh v. State Of Bihar

2003-01-20

S.N.PATHAK

body2003
Judgment S.N.Pathak, J. 1. These two appeals were heard analogous because they arise of common judgment dated 9-10-1991 rendered by the 1st Addl. Sessions Judge, Nawadah, in sessions trial No. 463/8445/88. Appellant-Baban Singh was convicted under Sec. 324/34, IPC. Moreover all other appellants in other appeal were convic-ted under Sec. 324/34, IPC and appellants-Shivnandan Singh, Janar-dan Singh, Shyamadhin Singh, Pur-shottam Singh and Surendra Singh were convicted under Sec. 27 of the Arms Act. Those who were convicted under Sec. 324/34, IPC were senten-ced to undergo RI for 3 years and those who were convicted under Sec. 27 of the Arms Act were further sentenced to undergo RI for 3 years. 2. The prosecution case origina-ted on the fardbeyan of Bachu Singh, wherein he had alleged that on 11-5-1981 at about 1 p.m., he was at his home in village Hansda. When he heard alarm regarding arson he rushed to the direction of noise alongwith other villa-gers and reached the house of Brihas-pati Manjhi. House of Brihaspati Manjhi was in flame. Several persons were extinguishing the fire. The informant joined the persons who were engaged in extinguishing the fire. In the mean time, he heard the sound of firing. The infor-mant himself, Ramnandan Singh and Mahendra Singh received pellet injuries. Thereafter there was clamor MARO MARO and raising this voice Shivnan-dan Singh, Shyamadhin Singh, Janar-dan Singh, Surendra Singh, Biseshwar Prasad, Purshuttam Singh, all armed with pistols, gun etc., Rajendra Singh, Dwarika Singh and other Bachu Singh armed with lathi came there and surrounded the informant and others who were extinguishing the fire. These persons indulged in firing upon those who were extinguishing the fire. The informant was assaulted by Shivnandan Singh with the arms Shivnandan Singh with fire arms Shyamadhin Singh and Janardan Singh fired upon Ramnandan Singh, who received pellet injuries. Arjun Singh assaulted Mahendra Singh with garasa. Rajendra Singh and Dwarka Singh assaulted Arjun Singh with lathi. The occurrence occurred on account of an altercation between Brihaspati Manjhi on the one hand and Shyamadhin Singh, Rajendra Singh and Arjun Singh on the other when they had asked Brihaspati Manjhi to work for them and Brihaspati Manjhi refused and he also instigated others not to work for them. Rajendra Singh and Dwarka Singh assaulted Arjun Singh with lathi. The occurrence occurred on account of an altercation between Brihaspati Manjhi on the one hand and Shyamadhin Singh, Rajendra Singh and Arjun Singh on the other when they had asked Brihaspati Manjhi to work for them and Brihaspati Manjhi refused and he also instigated others not to work for them. Shyamadhin Singh ordered Rajendra Singh and Arjun Singh to set on fire the house of Brihas-pati Manjhi which led to the aforesaid arson and the assemblage of the villa-gers who were extinguishing the fire during the course of which appellants indulged in assault upon those who were extinguishing the fire. 3. The accused-appellants had taken up the defence of false implication and they had alleged, through the fard-beyan of Janardan Singh, that on the same day at about 12 noon, when the informant was at his baithka, suddenly, several persons named in the fardbeyan (exhibit B) armed with various weapons came to the house of his uncle Ram Balak Singh and they indulged in abuses upon Ram Balak Singh and all those named in the fardbeyan indulged in firing and assault upon various per-sons of the family and they also ordered ransacking of his house. 4. The prosecution had examined in all 12 witnesses. PW 12 was the doc-tor who examined Ramnandan Singh, Umanath Singh, Mahendra Singh and Bachu Singh and he had also examined one Bindeshwari on behalf of the accused. Injury report was marked, exhibit A. PW 11 was the IO of the case. PWs 1, 2 and 4 were declared hostile by the prosecution. PW 3 was tendered. PWs 5, 7, 8, 9 and 10 were eye-wit-nesses to the occurrence and PW 6 was a hearsay witness regarding arson to the house of Brihaspati Manjhi. He did not know who set his house on fire. Out of the aforesaid witnesses, who claimed to be eye-witnesses, injured persons were Ramnandan Singh (PW 7), Bachu Singh (PW 4) and Mahendra Singh (PW 5). 5. It has been submitted by the appellants lawyer that the counter case filed by the accusedappellants ended into a compromise and the Trial court did not accept the compromise filed in this case, because all the injured per-sons did not sign the compromise peti-tion. 5. It has been submitted by the appellants lawyer that the counter case filed by the accusedappellants ended into a compromise and the Trial court did not accept the compromise filed in this case, because all the injured per-sons did not sign the compromise peti-tion. Brihaspati Manjhi was declared hostile and he did not support the occurrence regarding the arson of his house which was genesis of the case of the prosecution regarding assault upon those who were engaged in extinguishing the fire. Moreover, no charge under Sec. 436, IPC was framed nor the accused-appellants were charge-sheeted for the aforesaid offence. So, there was no evidence regarding arson to the house of Brihaspati Manjhi and, therefore, part of the occurrence should have been disbelieved by the Trial court. So far other part of the occurrence is concerned, the prosecution has not come to the Court with clean hands, because it had failed to explain the injury upon one of the men on the side of the accusedappellants. So accused-appellants deserve benefit of doubt. 6. The fact that there was com-promise between the parties is well admitted. This will throw a circumstance regarding hostility of PW 2 Brihaspati to the prosecution. Perhaps, it was under this circumstance that PW 2 failed to support the fact of arson to his house. All other witnesses including injured persons supported the occur-rence of arson and it was during the course of extinguishing the fire that the alleged assault upon the members of the prosecution party took place at the hands of the accusedappellants. The Trial Court, on the basis of evidence on record, came to a definite finding regarding the alleged assault upon some members of the prosecution party. The doctor who examined the four persons and found injuries caused by fire-arms and sharp cutting substance also supported the injury upon the members of the prosecution party on the date and time as alleged. The counter version of the case also lend support to the fact that there was occurrence of mutual assault in between the parties at the place and time (near about the same time). It was fardbeyan of the informant which was recorded in Hathua Raj Hospital and, therefore, there might have been some delay in institution of this case. The counter version of the case also lend support to the fact that there was occurrence of mutual assault in between the parties at the place and time (near about the same time). It was fardbeyan of the informant which was recorded in Hathua Raj Hospital and, therefore, there might have been some delay in institution of this case. The case of the appellants was already instituted because none of the injured went inside the hospital, and because the informant of the appe-llants case went to the police station by outsmarting the prosecution. Now the question is as to which of the parties was aggressor. In a case and counter case, where two parties gathered at one place and indulged in assault upon each other, the moot question is which of the parties is the aggressor. The informant of the appellants case stated that the prosecution party had come to the house of their uncle Ram Balam Singh and ordered assault and looting of the house. There does not appear to be a probable motive for the prosecution party to mount an attack at the house of the informants uncle and indulge in ransacking the house. So, it is quite probable that the accused also might have thought it fit to file a counter case in order to escape from the rigors of the prosecution case and to prove their smartness, they went to the police station earlier than the informants fardbeyan of this case. Moreover, apart from bringing on record injury report of one Bindeshwari Singh (exhibit A) and fardbeyan of Janardan Singh (exhibit B), the appellants did not lead any evidence of lend support to their own case. So, I am of the opinion that the Trial Court recorded a finding of con-viction of the appellants on the basis of the evidence on record. I do not think it committed any illegality or irregularity here. 7. There was another contention raised on behalf of appellant-Baban Singh, that initially, he was not named in the fardbeyan. Some of the witnesses PWs 5, 7 and 10, did not name Baban Singh in their statement before the police so far his participation in the alle-ged occurrence is concerned. So, there was sufficient doubt regarding the participation of this appellant in the alleged occurrence. Some of the witnesses PWs 5, 7 and 10, did not name Baban Singh in their statement before the police so far his participation in the alle-ged occurrence is concerned. So, there was sufficient doubt regarding the participation of this appellant in the alleged occurrence. In this connection, I find that at least two of the witnesses, PWs 8 and 9, very much named Baban Singh in Court and they had also named him in their statement before the police. So, the Trial Court relied on their evidence and found that Baban Singh was one of the members of unlawful assembly which indulged in assault upon those who were extinguishing the fire. Baban Singh was also charge-shee-ted by the police. So, I am of the opinion that the Trial Court was also very well justified in recording the finding of guilt against Baban Singh as well. 8. It was next submitted by appe-llants lawyer that all appellants had not participated in the occurrence of firing, nor all of them used sharp cutting instruments in their assault upon the prosecution party and so there was no good case before the court to convict all of them under Sec. 324/34, IPC. I find that all the accused-appellants were charged under Sec. 307/149, IPC. So if the Trial Court convicted the appellants under Sec. 324/34, IPC, I think here also it was not unjustified because graver section may be reduced to an offence under lighter section. Charge under Sec. 307, IPC failed because the Trial court held that none of the members of unlawful assembly had any intention to kill the victims. Those accused-appellants who were armed with fire-arms and had indulged in firing, were convicted under Sec. 27 of the Arms Act further besides their conviction under Sec. 324/34, IPC. So, I think the order of conviction was not also unsupported by the evidence and circumstances on record. 9. It has been submitted that since in the other case, compromise was accepted and accused of that case were acquitted, in this case, sympathetic view may be taken and the accused-appe-llants may be afforded the benefit of Sec. 360, Cr.P.C. or Probation of Offenders Act. 10. 9. It has been submitted that since in the other case, compromise was accepted and accused of that case were acquitted, in this case, sympathetic view may be taken and the accused-appe-llants may be afforded the benefit of Sec. 360, Cr.P.C. or Probation of Offenders Act. 10. In view of the fact that per-haps, good feelings were restored bet-ween the parties and the accused appellants must have remained in custody at least for a month and odd, I think the appellants may be let off after furni-shing bond under the Probation of Offenders Act. So, order of sentence passed against them is set aside. The appellants shall furnish security bond of Rs. 2,000.00 each, with two sureties of like amount to the satisfaction of the Court below to maintain peace for two years and to be of good behaviour for the same period with all conditions attaching to the same under Sec. 4 of the Probation of Offenders Act. The appellants shall surrender in the Trial Court and furnish the aforesaid bond within 3 months from the date of communication of this judgment, failing which the appellants shall suffer the sentence awarded by the Trial Court. 11. These appeals are disposed of as mentioned above.