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2004 DIGILAW 1033 (PAT)

Ramchandera Prasad v. Ramchandera Prasad

2004-09-24

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C.M. PRASAD, J.:- The appeals are against the judgment dated 19.6.92 of the Vith Additional District & Sessions Judge, Arrah, passed in Session Trial No. 335 of 1987 whereby each of the four appellants has been convicted under section 307 read with section 34 of the Indian Penal Code and santenced to undergo rigorous imprisonment for seven years. The appellant Rajendra Prasad @ Bhagwan has also been convicted under section 324 of the I.P.C. and sentenced to undergo rigorous imprisonment for three years. Each of the two appellants namely Badri Prasad Sao and Kashi Nath has been convicted under section 323 of the Indian Penal Code and sentenced to undergo R.I. for one year. All the sentences were ordered to run concurrently. 2. The fardbeyan (Ext. 2) of the informant Sheo Jatan Sao was recorded by S.I. S.Z. Akhtar, Officer Incharge of Sahar P.S. on 1.11.1986 at 1.45 P.M. at Sahar State Dispensary where the informant was lying for treatment in injured condition. The prosecution case as stated in the fardbeyan is that on that day he, alongwith his son Uttam Kumar Gupta (P.W.2) was cleaning the house on the occasion of Deppawali. His elder brother Badri Prasad (appellant) alongwith his son Ramchandra Prasad Kashi Nath Prasad and Rajendra Prasad @ Bhagwan (appellant) came them and prohibited him from cleaning of the house. Ramchandra and Bhagwan had Bhala and Kashi and Badri had lathi. The appellants obstructed the informant in the cleaning on the ground that the house had not been partitioned whereupon he said that an oral partition had already taken place and that the same was also confirmed by a decree of civil court, whereupon, it is further said that appellant Badri Sao ordered to assault and then appellant Rajenora @ Bhagwan assaulted Uttam Kumar (P.W. 2) with Bhala on his back. Informant went to save his son (Uttam) but appellant Ramchandra assaulted him with Bhala on his neck. Receiving injury informant fell down and it is said that the accused persons further assaulted them with lathi. They were brought to Sahar Hosptial where police arrived at and recorded the fardbeyan. The informant stated in his fardbeyan that he had a decree of civil court relating to partition. The appellant had filed an appeal which was pending in the High Court. 3. As many as five witnesses were examined by the prosecution. They were brought to Sahar Hosptial where police arrived at and recorded the fardbeyan. The informant stated in his fardbeyan that he had a decree of civil court relating to partition. The appellant had filed an appeal which was pending in the High Court. 3. As many as five witnesses were examined by the prosecution. P.W. 1 Nand Keshwar Singh is co-villager who is said to be the eye witness to the occurrence. P.W.3 Sheojatan Sah is the informant himself and P.W.2 Uttam Kumar Gupta is the informant's son, P.W. 6 Bijay Kumar Shrivastava is a formal witness who has proved the injury report Ext. 5 and 5/1 relating to injury on the P.W.S. 2 and 3. 4. The doctor and the Investigating Officer of this case have not been examined by the prosecution. 5. The informant (P.W. 3) deposed about the occurrence on the lines as he has stated in his fardbeyan. He says that while he alongwith his son (P.W. 2) was cleaning the house the appellant objected to it saying that the house had not been partitioned. He (informant) said that a partition-had already been effected which was also confirmed in the partition suit. Appellant Badri Sao ordered to assault and then appellant Rajendra assaulted the P.W.2 with Bhala. He further deposed that when he went to save the P.W.2, appellant Ramchandra Praad assaulted him with Bhala on his neck. Receiving injury, he and P.W.2 fell down whereupon the appellant assaulted with lathi. He further deposed that P.W.2 and 3 were taken to hospital. He also deposed about the recording of his fardbeyan in the hospital. In cross-examination at para 8 he admitted that the P.O. house stands jointly in the name of informant and Badri (appellant). At para 7 (repeated paragraph 7) he further deposed that the rent receipt was being issued in the Joint name i.e. him and the appellant Badri Sao. At para 11 he deposed that Ramchandra Prasad had given only one blow and he had not repeated any blow by means of Bhala. 6. P.W.2 Uttam Kumar is the son of the informant who had deposed on similar lines that in course of cleaning of the house he and his father received Bhala injury respectively at the hands of appellant Rajendra Prasad and Ramchandera Prasad and the remaining two appellants assaulted them with lathi. 6. P.W.2 Uttam Kumar is the son of the informant who had deposed on similar lines that in course of cleaning of the house he and his father received Bhala injury respectively at the hands of appellant Rajendra Prasad and Ramchandera Prasad and the remaining two appellants assaulted them with lathi. At para 6 he further deposed that appellant Rajendra had given only one bhala blow. 7. P.W.1 Nand Kishore Singh is a co-villager who deposed that while he was going towards his agricultural land he heard noise from the house of the informant and he went there and he saw that the informant (P.W. 3) and his son (P.W. 2) were lying with Bhala injury and that the appellants Badri Sao and Kashi Sao were assaulting them with lathi. He further deposed that the injured were taken to the hospital. He also deposed in his cross-examination that the informant (P.W3) and the appellant Badri Sao ate living in the same house. He further deposed in para 7 that he had seen bhala injury on the back of Uttam Kumar (P.W.2) and injury on the neck of P.W 3) Sheo Jatan Sah. 8. During hearing the learned counsel for the petitioner argued that in this case the appellants have been convicted under section 307 read with section 34 of the Indian Penal Code but there is no material to justify the conviction under this section. From the evidence as discussed above. It appears that the occurrence of assault took place inside the house where there was no outsider excepting the family member including the informant and the appellants who were living in the same house. The evidence of P.W1 who is the only independent witness says that this witness had arrived inside the house when the P.W. 2 and 3 had already received injury as alleged by means of Bhala and in his presence only assault by means of lathi were given to the P.W. 2 and 3. The two injured namely P.W.2 at para 6 and P.W.3 at para 11 have respectively deposed that appellant Rajendra Prasad @ Bhagwan and Ramchandra Prasad had not repeated Bhala blows. Thus each of the two appellants namely Rajendra Prasad @ Bhagwan and Ramchandra Prasad is said to have assaulted each of the two injured namely P.W. 2 and 3 with Bhala but they have not repeated any Bhala blow. Thus each of the two appellants namely Rajendra Prasad @ Bhagwan and Ramchandra Prasad is said to have assaulted each of the two injured namely P.W. 2 and 3 with Bhala but they have not repeated any Bhala blow. In the circumstances of the case the assault by means of Bhala was caused at a time when there was no outsider and there was no intervening circumstances preventing the two appellants Rajendera Prasad @ Bhagwan and Ramchandra Prasad in giving further Bhala assault if they actually intended or attempted to kill the P.W. 2 and 3. But no sort of any repeated assault was perpetrated. In this connection I find that there is no ground in believe that any of the appellants had any intention to kill or they had attempted to kill the P.W.2 and 3. In such view of the matters, I find that the conviction of each of the appellants under section 307 read with section 34 of the I.PC. is not Justified. 9. However in the evidence of the two injured witnesses namely P.W.2 and 3 which stands corroborated with the evidence of P.W.1 it has come that the appellant Rajendra Prasad assaulted P.W.2 with Bhala causing injury on his back and appellant Ramchandra Prasad assaulted P.W.3 causing injury with bhala on his neck and the remaining appellants namely Badri Sao and Kashi Sao assaulted P.W. 2 and 3 with lathi. In this case the doctor has not been examined but the Injury report with respect to the P.W. 3 and 2 have been formally proved respectively as Ext. 5 and 5/1. The perusal of the injury report shows two bruises caused by hard blunt substance on the back of chest and one incised penetrating injury on the neck of the P.W. 3. The doctor has mentioned the injury as grievous in nature but he has not mentioned any reason for the injury being grievous nor in the evidence of the witnesses any of the circumstances as enumerated in section 320 of the Indian Penal Code has come. Likewise two bruises and one incised wound of size 1/2" x 1/4" have been found on the P.W.2. The incised injury has been shown to be grievous in nature but the doctor has not mentioned any reason for the injury being grievous. Likewise two bruises and one incised wound of size 1/2" x 1/4" have been found on the P.W.2. The incised injury has been shown to be grievous in nature but the doctor has not mentioned any reason for the injury being grievous. In the circumstances only this much can be held that the incised and• penetrating injuries had been found on the P.W.2 and 3 are not proved to be grievous in nature. The bruise injury on the P.W.2 and 3 also establishes simple injury caused by means of hard blunt substance that is lathi as per the evidence of the injured and the eye witness having been caused at tile hands of the appellants Badri Sao and Kashi Sao. 10. During the hearing the learned counsel for the appellant argued that the doctor and the I.O. of this case have not been examined. No doubt the doctor has not come to depose about the injuries, therefore, in the circumstances of the case the ocular evidence as adduced by the prosecution and the injury report formally proved is sufficient in my opinion to hold the existence of the injuries and that it were caused by the appellants in the manner as stated above. 11. In view of the facts and the evidence discussed above, I find that the conviction of the appellant under section 307 read with section 34 of, the I.P.C. cannot be upheld. However, on the basis of the evidence it stands proved that the appellants Rajendra Prasad @ Bhagwan and Ramchandra Prasad caused injury respectively to the P.W.2 and 3 by means of bhala hence they need to be convicted under section 324 of the I.P.C. The two appellants namely Badrj and Kashi Nath assaulted the P.W.2 and 3 by means of lathi hence they deserve to be convicted under section 323 of the Indian Penal Code. Therefore, each of the two appellants Ramchandra Prasad and Rajendra Prasad @ Bhagwan is convicted under section 324 of the Indian Penal Code and the remaining two appellants namely Badri Sao and Kashi Sao is convicted under section 323 of the I.P.C. As to the quantum of sentence the learned counsel for the appellants submitted that the appellants have no criminal antecedent and any previous conviction has not been brought on record. It has also been submitted that the informant and the appellants are brother and nephew and the occurrence of assault as alleged was a simple dispute between the family members and that any serious injuries were not caused. It was also submitted that taking all the period of custody during the pendency of the case the appellant Rajendra Prasad @ Shagwan and Ramchandra Prasad have remained in custody for a period of near about two months. The learned counsel also submitted that in view of the relationship between the parties and also the nature of the offence the appellants may be released on probation under section 360 Cr. P.C. in the interest of justice so that the relationship between the appellants and the informant may remain congenial. Thus considering the circumstances of the case each of the four appellants is ordered to be released on the probation bond instead of sentence of substantive imprisonment. Each of the appellants is directed to be released on entering into a bond of Rs.3000/- with two sureties of like amount each for a period of one year with a direction to maintain peace-and be of a good behaviour and be ready to appear and receive any type of sentence when called upon during such period. The appellants are directed to appear before the trial court for executing the bonds within a period of one month. In the result both the appeals are dismissed with the modification in the conviction and sentence as indicated above.