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2007 DIGILAW 1346 (PAT)

Awadh Lal Prasad v. State Of Bihar

2007-08-14

MADHAVENDRA SARAN

body2007
Judgment Madhavendra Saran, J. 1. This appeal is directed against the judgment of learned 2nd Additional Sessions Judge, Siwan dated 24.5.1993 rendered in S. Tr. No. 77/92/56/92 under which the appellant has been convicted for the offence u/s. 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. 2. The prosecution case, in short, is that the informant Narendra Giri on 21.1.1992 at 8.00 PM had gone for easing himself towards east of his house. He was returning and reached near Brahma Asthan. Suddenly accused Awadh Lal Prasad appeared and said "Giri Ji Apne Darwaza Par Beizzat Karne Ka Fal Le Lijiye" and saving this he took out a Grassa which he had concealed in his Chadar and assaulted on his head causing injury at the middle of the head. He gave a second blow which caused injury on the back of his head. He gave a third blow aiming towards neck with a view to commit his murder which was resisted by the informant with his hand due to which he sustained serious injury on his left hand. On informants outcry the villagers namely Devendra Giri. Ram Kumar Giri. Baliram Giri. Lalji Giri. Dharmendra Giri and others arrived and saw the occurrence. After seeing the villagers coming the accused fled towards south. The villagers brought the informant to Jamo Hospital. It is said that one day earlier i.e. on 20.1.1992 at 10.00 AM the calf of the accused had grazed the crop of the informant. The informant had caught the calf for sending it to the cattle pond and the accused had forcibly snatched the calf for which the informant had rebuked him. The fardbeyan of the informant was recorded by the police on 22.1.1992 at 15.00 hours at Jamo Hospital. On the basis of fardbeyan the police registered Jamo P.S. Case No. 9/92 and after investigation submitted charge sheet on the basis of which the learned Chief Judicial Magistrate took cognizance on 28.4.1992 under Ss. 307, 326 and 324 of the Indian Penal Code and later on committed the case to the Court of Session. After trial accused was convicted and sentenced to undergo imprisonment as mentioned above. Against the said conviction and sentence, the appellant has preferred the present appeal before this Court. 3. 307, 326 and 324 of the Indian Penal Code and later on committed the case to the Court of Session. After trial accused was convicted and sentenced to undergo imprisonment as mentioned above. Against the said conviction and sentence, the appellant has preferred the present appeal before this Court. 3. In support of the case, the prosecution examined in all seven witnesses namely P.W. 1 Lalji Giri, P.W. 2 Baliram Giri, P.W. 3 Ram Kumar Giri, P.W. 4 Devendra Giri (brother of the informant), P.W. 5 Narendra Giri (informant), P.W. 6 Kali Prasad (dresser) and P.W. 7 Damodar Prasad Singh, Investigating Officer. 4. It appears that the defence of the appellant was that he has been falsely implicated in the case due to enmity. His further defence was that the informant is a man of loose morals and he sustained injuries somewhere else in different manner and no such occurrence did take place in the manner as alleged in the First Information Report. 5. The question that arises for consideration is whether the prosecution has succeeded in bringing home the charge against accused? 6. Learned amicus curiae appearing on behalf of the appellant challenged the finding by firstly pointing out that there is delay in lodging the F.I.R. He further argued that the evidence of P.W. 5 does not get corroborated from other evidence on record. He further argued that at any rate even if the occurrence is held to have been proved, the offence u/s. 307 of the Penal Code is not made out. 7. P.W. 1 Lalji Giri stated before the Court that on 21.1.1992 at 8.00 PM he had gone for easing towards east of his house. He heard outcry of the informant. He then raised alarm and went near the Brahama Asthan. He saw the informant and the accused on road. According to this witness accused Awadh Lal Prasad gave three consecutive garasi blow on the person of Narendra Giri causing injury on his head and left hand. The injury on left hand was sustained in saving the neck. He further stated that Ram Kumar Giri (P.W. 3). Devendra Giri (P.W. 4), Baliram Giri (P.W. 2), Dharmendra Giri and others saw the occurrence. According to this witness as a result of assault Narendra Giri became unconscious. He was then taken at the door of his house. The injury on left hand was sustained in saving the neck. He further stated that Ram Kumar Giri (P.W. 3). Devendra Giri (P.W. 4), Baliram Giri (P.W. 2), Dharmendra Giri and others saw the occurrence. According to this witness as a result of assault Narendra Giri became unconscious. He was then taken at the door of his house. His injuries were bandaged and from there he was carried to hospital by tyre cart. He further stated that the occurrence night was a moonlit night. Then in paragraph-15 this witness admitted that the entire occurrence of assault concluded within two-three minutes. 8. P.W. 2 Baliram Giri is also a named witness in the First Information Report. He deposed that on hearing hulla he went running. In his presence the accused gave three garasi blows on the person of the informant due to which he sustained injuries on his head and wrist of left hand. After making assault accused Awadh Lal Prasad fled away towards south. He has further stated that Dharamveer. Ram Kumar Giri, Devendra Giri and Lalji Giri also saw the occurrence. According to this witness, as a result of assault Narendra Giri became unconscious and fell down. They brought Narendra Giri at the door of his house and from there he was taken to Jamo Hospital. Then in paragraph-12 this witness stated that he reached the place of occurrence in half minute after hearing alarm. According to this witness Ram Kumar. Devendra and Dharmendra met him in the way. 9. P.W. 5 Narendra Giri is the injured of this case. He is also the informant. He stated before the Court that on 21.1.1992 at about 8.00 PM he was returning back after easing and when he reached near Brahma Asthan accused Awadh Lal Prasad surrounded him from the front and told to take the fruit of his misbehaviour. This witness out of fear cried. He further stated that the accused took out garasi which he had concealed in the Chadar and assaulted him on head. He gave another blow which hit on the back of the head. He then gave third blow aiming towards neck but he saved the neck and sustained injury on his left hand. On his alarm Ram Kumar Giri (P.W. 3), Devendra Giri (P.W. 4), Baliram Giri (P.W. 2), Lalji Giri (P.W. 1) and others arrived and saw the occurrence. He gave another blow which hit on the back of the head. He then gave third blow aiming towards neck but he saved the neck and sustained injury on his left hand. On his alarm Ram Kumar Giri (P.W. 3), Devendra Giri (P.W. 4), Baliram Giri (P.W. 2), Lalji Giri (P.W. 1) and others arrived and saw the occurrence. He further stated that after receiving the injuries he fell down and became senseless. According to this witness it was moonlit night. He received senses on the next day in the hospital and thereafter the police at about 3.00 PM recorded his statement over which his signature is Exhibit-1. According to this witness, a day before the alleged occurrence the calf of the accused had grazed the wheat crop of this witness. There was an altercation for that. In paragraph 16 this witness has said that the occurrence lasted for three minutes during which he received three garasi blows. P.W. 3 Ram Kumar Giri is father of the informant. P.W. 4 Devendra Giri is brother of the informant. Both these two witnesses have also narrated the prosecution case. 10. P.W. 7 is the Investigating Officer of this case. On 22.1.1992 he recorded the fardbeyan of Exhibit-3 of Narendra Giri. He prepared the injury requisition Exhibit-6 of Narendra Giri. According to this witness at the time of preparation of Exhibit-6, informant Narendra Giri (P.W. 5) was senseless. He further stated that on the next day at 3.00 PM he recorded the statement of the informant. P.W. 6 Kali Prasad is a dresser. He was posted at Jamo Hospital. According to this witness on 21.1.1992 Dr. B.K. Mishra was the Medical Officer incharge of the hospital. On that day he treated the informant Narendra Giri. He has proved the injury report Exhibit-2 of the informant. According to this witness Dr. B.K. Mishra has died. Exhibit-2 is the injury report of Narendra Giri. It shows that he was examined by Dr. B.K. Mishra on 21.1.1992 at 9.20 PM at Jamo State Dispensary and the doctor found the following injuries on his person : - (i) One cut injury 5" x 1/2" x bone deep over middle of the scalp. (ii) One cut injury 4" x 1/4" x bone deep over left parietal area of scalp (iii) one cut injury 2" x 1/4" x muscle deep over left forearm lower and medial part. 11. (ii) One cut injury 4" x 1/4" x bone deep over left parietal area of scalp (iii) one cut injury 2" x 1/4" x muscle deep over left forearm lower and medial part. 11. In the opinion of the doctor. Injury nos. 1 and 2 were grievous and no. 3 was simple in nature. All the injuries were caused by sharp cutting weapon. Age of injury was within six hours. 12. Now coming to the motive "of the occurrence I find that it is the case of prosecution in the fardbeyan that a day before the alleged occurrence, the calf of the accused has grazed the crop of the informant. The informant had caught the calf for sending it to cattle pond but accused forcibly snatched the calf for which the informant had rebuked him. P.W. 5 in paragraph 6, P.W. 4 in paragraph 3 and P.W. 2 in paragraph 3 have supported the informants version that a day before the alleged occurrence an altercation had taken place between the informant and the accused over grazing of crop of the informant by calf of the accused. 13. It appears from the formal F.I.R. that the place of occurrence is situated at a distance of 1 km from Jamo Police Station. The alleged assault took place on 21.1.1992 at 8.00 PM. The doctor examined the injured on 21.1.1992 at 9.20 PM. The injury requisition was prepared on 21.1.1992. P.W. 7 recorded the fardbeyan of the informant on 22.1.1992 at 15.00 hours after he regained the senseless. Therefore it cannot be accepted that there is delay in lodging the F.I.R. 14. P.W. 5, who is injured of this case, has fully narrated the story of alleged occurrence. Injuries inflicted on his body find support from injury report prepared by the doctor. From evidence of P.Ws. 1 to 4 it is established that on hearing outcry of the informant they rushed and found the informant lying injured on the road. They also saw the accused fleeing away. It was moonlit night. According to P.W. 5 before assault the accused told him to take the fruit of his misbehaviour. It has also come in evidence that right from the time of assault and till recording of fardbeyan the informant remained unconscious. So there is no question of any concoction in the statement. The evidence given by the witness appear to be truthful and reliable. It has also come in evidence that right from the time of assault and till recording of fardbeyan the informant remained unconscious. So there is no question of any concoction in the statement. The evidence given by the witness appear to be truthful and reliable. 15. As mentioned above it has been argued by amicus curiae appearing on behalf of the appellant that on the basis of evidence on record no case u/s. 307 of the Indian Penal Code is made out. The appellant has been convicted u/s. 307 of the Indian Penal Code by learned Court below. In this connection it is relevant to mention here that nature of weapon used, the intention expressed by accused at the time of assault, the motive for commission of the offence, the nature and size of injuries, the parts of the body selected for causing injuries and the severity of blow or blows are the important factors that may be taken into consideration in coming to a finding whether in this case the accused can be convicted for an attempt to murder. The circumstances appearing in the present case indicates that there was strained relationship between the injured and the accused. The accused gave three consecutive blows on the person of the injured. He thus caused grievous injury on the scalp of the informant which is vital part of the body. As mentioned above, before making assault the accused told the informant to bear the fruit of his misbehave and thereafter the assault took place. All these circumstances would lead us to an inference that it was the intention of accused to cause death of the victim. After examining oral and documentary evidence adduced in the case. I find that the Trial Court has rightly convicted the appellant. I also find that the Trial Court has examined the evidence meticulously. The judgment of the Trial Court is well discussed. The view taken by the Trial Court is not unreasonable. 16. Now coming to the question of sentence I find that the appellant is facing this criminal prosecution since last 13 years. It appears that no previous conviction was proved against him before the Trial Court. It is settled view that the punishment should be proportionate to the gravity of the occurrence but passing of the time is good reason for imposing lesser sentence. 17. It appears that no previous conviction was proved against him before the Trial Court. It is settled view that the punishment should be proportionate to the gravity of the occurrence but passing of the time is good reason for imposing lesser sentence. 17. In the facts and circumstances of the case, appellant Awadh Lal Prasad is sentenced to undergo rigorous imprisonment for five years u/s. 307 of the Penal Code. 18. It appears that bail has been granted to him by this Court during the pendency of this appeal. His bail bond is accordingly cancelled. He is directed to be taken into custody to serve out the remaining period of his sentence. With the modification in sentence, the appeal is dismissed.