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2003 DIGILAW 985 (JHR)

Budhan Pandit v. State of Bihar

2003-08-12

AMARESHWAR SAHAY

body2003
JUDGMENT Amareshwar Sahay, J.- The appellant no. 1 was convicted for committing the offence punishable under Section 325 of the Indian Penal Code and was sentenced to undergo Rigorous Imprisonment for two years and was ordered to pay a sum of Rs. 500/- as compensation to the injured Ramjee Pandit. The appellant no. 2 was convicted for committing the offence punishable under Section 324 of the Indian Penal Code and was sentenced to undergo Rigorous Imprisonment for one year and was also ordered to pay a sum of Rs. 500/- as compensation to Rupial Pandit, son of the injured Damar Pandit as Damar Pandit was dead. In default of payment of compensation both the appellants were ordered to undergo Simple Imprisonment for three months each, by the Judgment dated 22;8.1997 passed by the 2nd Additional Sessions Judge, Giridih in S.T. no. 130 of 1992. The other four accused, who were tried together with the present appellants, were, however, acquitted by the said judgment. 2. Being aggrieved by the said judgment, the appellants have filed the present appeal. 3. The prosecution case in brief is that on 25.3.1986 at about 8 P.M. while the informant was in his house in village, Barki Sariya in the district of Giridih, he heard some noise of Char Char. On hearing this, he came out from his house along with his brother and saw Tejo Pandit, Budhan Pandit, Mitlal Pandit, Mangar Pandit and Daulat Pandit were raising hulla. He saw that two persons of Chotki Sariya were surrounded by all the above named persons. It is said that Tejo Pandit was armed with lathi, Mitlal Pandit was armed with Farsa and all other persons, named above, were armed with Lathi in their hands. The informant and his brother intervened and told that those two persons, who were surrounded. were not thieves and they were known to him from before and thereafter the informant and his brother got those two persons released. This caused annoyance to th8 accused persons. Tejo Pandit asked the other accused persons to assault the informant and thereafter accused Tejo Pandit assaulted Rupial Pandit with lathi, Dwarika Pandit assaulted the informant with lathi causing bleeding injury on his head and he also assaulted the informant on his right hand. Mit Lal Pandit (appellant no. This caused annoyance to th8 accused persons. Tejo Pandit asked the other accused persons to assault the informant and thereafter accused Tejo Pandit assaulted Rupial Pandit with lathi, Dwarika Pandit assaulted the informant with lathi causing bleeding injury on his head and he also assaulted the informant on his right hand. Mit Lal Pandit (appellant no. 2) assaulted Damar Pandit on the left side of his chest by Farsa due to which Damar Pandit fell down, accused Mahadeo Sonar assaulted Damar Pandit with lathi and also the informant on his back. It is further stated that the accused persons also assaulted the informant and his brother. Budhan Pandit (appellant no. 1) caused grievous hurt to Ramjee Pandit. The occurrence was witnessed by Budhan Rabidas. Govind Pandit and Prayer Ram and other villagers. 4. The learned trial court framed charges against Tejo Pandit (acquitted). Budhan Pandit (appellant no. 1), Mangar Pandit (acquitted), Daulat Pandit (acquitted), Nilkant Pandit (acquitted) and Mitlal Pandit (appellant no. 2) under sections 147/148/ and 307 of the Indian Penal Code read with Section 149 of the Indian Penal Code. Budhan Pandit (appeliant no. 1) was further charged under section 325 of the Indian Penal Code whereas Mitlal Pandit (appellant no. 2) was also charged under sections 148, 324 and 307 of the Indian Penal Code. 5. In order to establish the charges altogether six prosecution witnesses were examined and on behalf of the defence one witness was examined. 6. On the basis of the evidence on record, the learned trial court acquitted other four accused who where tried along with present two appellants but convicted these two appellants as stated in earlier paragraph. 7. P.W 1 Damar Pandit, P.W 2 Rupial Pandit, P.W 3 Govind Pandit and P.W 5 Ramjee Pandit were the injured witnesses and P.W 4 is Dr. Tiwary who examined the injured Damar Pandit, Ramjee Pandit and Rupial Pandit. P.W. 6 Dr. S.S. Sahay examined Ramjee Pandit and found the following injuries on his person:- Fracture of proximal phalanx of index and Middle fingers of right hand. The said injury was caused by Hard and blunt substance and was grievous in nature. 8. The learned counsel for the appellants has submitted that the Doctor who examined the injured did not give age of the injury and since X' Ray was not conducted, therefore. The said injury was caused by Hard and blunt substance and was grievous in nature. 8. The learned counsel for the appellants has submitted that the Doctor who examined the injured did not give age of the injury and since X' Ray was not conducted, therefore. the opinion of Doctor that the injury caused on Ramjit Pandit was grievous in nature and fractured one was only on presumption arid therefore the conviction under Section 325 of the Indian Penal Code is bad. He has further submitted that no independent witness has been examined by the prosecution, which makes the prosecution case doubtful. It has further been urged that the prosecution has not been able to prove the geresis and manner of the occurrence and because of non-examination of I.O. serious prejudice was caused to the appellants. Lastly he has submitted that in any view of the matter, the petitioners were entitled to the benefit of Section 360 Cr. PC. which was not applied by the trial court and no reason has been assigned for not extending the benefits of Section 360 Cr.PC. to the appellants. 9. From a close scrutiny of the evidence of the prosecution, I find that the conviction of the appellant no, 1 under section 325 of the Indian Penal Code is required to be altered to conviction under Section 324 of the Indian Penal Code. However, the conviction of the appellant no. 2 under section 324 of the Indian Penal Code does not require any interference which is accordingly affirmed. 10. From the records as well as from the judgment of the trial court it appears that it was their first offence and informant, injured and the appellants are all related to each other and further that they settled their dispute outside the court and good relations prevailed between them now they are on visiting terms with each other. 11. In that view of the matter, in my opinion, it was a fit case in which benefit of Section 360 Cr. PC. should have been given to the appellants instead of awarding the sentence of imprisonment and fine. 12. Accordingly the appellants are being given the benefit of section 360 Cr. PC. and they are directed to be released on execution of bond of Rs. PC. should have been given to the appellants instead of awarding the sentence of imprisonment and fine. 12. Accordingly the appellants are being given the benefit of section 360 Cr. PC. and they are directed to be released on execution of bond of Rs. 5000/- (Rupees five thousand) with two sureties of the like amount each, for a period of one year and in the meantime they should keep peace and good behaviour. 13. In the result this appeal is dismissed with the aforesaid observations and directions.