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2007 DIGILAW 300 (PAT)

Sheojee Sah, Ram Baboo Sah v. State Of Bihar

2007-02-08

C.M.PRASAD

body2007
Judgment C.M.Prasad, J. 1. This revision is against the order dated 17th April 2001 passed by the Sessions Judge, Vaishali at Hajipur in Cr.Appeal No.3 of 2001 affirming the judgment dated 15th December 2000 passed by Sri Nand Kishore Gupta, Sub-Divisional Judicial Magistrate, Hajipur in Complaint Case No.Cl. 873 of 1997 by which the petitioners have been convicted under Sec. 323 IPC and were released after due admonition under Section 3 of the Probation of Offenders Act. 2. The petitioners and O.P.No.2 (complainant) are full brothers. The case of the complainant/ O.P.No.2 was that on 15th May 1997 at about 2:00 P.M. while he was at his house, petitioner Sheojee Sah came upon his land and tried to construct Bhuskar upon his land whereupon he (the informant) prohibited saying that that field fell in his share and that he will not allow the construction of Bhuskar over his land as a result of which it was alleged that the petitioner Ram Baboo Sah gave a Chhura blow causing bleeding injury on the left temple and Sheojee Sah took out a Kajrauta and a blank paper and forcibly obtained his (complainants) L.T.I, on it. Out of fear the complainant left the place and that thereafter the petitioner-accused entered into the house and took out a box of complainants wife. The box contained clothes, ornaments worth Rs.5,000- and cash of Rs.500/-. The complainant alleged that he came to the local Police Station but his case was not taken. Hence, he filed the complaint on 20th May 1997, because the civil court was closed during the period. 3. The defence of the appellants-accused was that actually on the same day and same time of occurrence, the complainant and others had assaulted Ram Baboo Sah, Sheojee Sah and one Monakiya Devi for which they had instituted Mahua P.S.Case No. 98 of 1997 under Sections 447, 323, 324, 504/ 34 IPC against Harendra Sah (complainant), Birendra Sah (P.W.1) on the same day. The petitioners proved the F.I.R. of their case as Ext-A and they also proved the injury reports as Ext-B, B/1 & B/2. The defence of the petitioners was that in order to save their skin from the Police case, instituted by petitioner Ram Baboo Sah, the complainant O.P.No.2 who was an accused in that case instituted this case after four days with false allegations. 4. The defence of the petitioners was that in order to save their skin from the Police case, instituted by petitioner Ram Baboo Sah, the complainant O.P.No.2 who was an accused in that case instituted this case after four days with false allegations. 4. The perusal of the record shows that the complainant deposed as P.W. 3 and he stated in his evidence that when he tried to construct Bhuskar, Ram Baboo Sah gave him a Chhura blow causing injury on his left temple and Sheojee Sah assaulted him with Lathi, fists and slaps. He also deposed that Sheojee Sah forcibly took his L.T.I, and fled away. He further deposed that Ram Baboo Sah took away a box containing ornaments, clothes all worth Rs.5,500/- from the house. In the cross- examination, he deposed that after the occurrence, he had become unconscious and that on regaining consciousness his wife had disclosed before him about the petitioners taking away the box from the house. He also deposed that at the time when his L.T.I., was taken, he was unconscious. 5. P.W. 1 Birendra Sah deposed about the assault on the left temple of the complainant Harendra Sah by means of Chhura at the hands of petitioner Ram Baboo Sah. This witness has also stated about the forcible taking of the L.T.I, of Harendra Sah on plain paper and the taking away of box from the house by Harendra Sah but this witness does not say about the assault on the complainant at the hands of Sheojee Sah. 6. P.W. 2 Kashi Sah deposed on similar line like P.W.1 and this witness also does not say anything about the assault on the complainant at the hands of petitioner Sheojee Sah. P.W. 4 Birendra Sah is a formal witness who simply proved the writings of the doctor on the injury certificate marked Ext-2 which mentions one small cut-mark and one swelling, both simple in nature. This injury certificate has not ben granted by any Hospital doctor but by a private doctor. 7. On consideration of evidence, the learned trial court convicted and sentenced the petitioners as above. The conviction and sentence was confirmed by the lower appellate court. 8. During the hearing learned counsel for the petitioners submitted that perusal of . This injury certificate has not ben granted by any Hospital doctor but by a private doctor. 7. On consideration of evidence, the learned trial court convicted and sentenced the petitioners as above. The conviction and sentence was confirmed by the lower appellate court. 8. During the hearing learned counsel for the petitioners submitted that perusal of . evidence brought on the record will show that the evidence is not sufficient to prove the charge and the conviction but the petitioners have been convicted due to wrong appreciation of evidence and the conviction thereby an illegality in convicting the petitioners has occurred, hence, this illegality has to be redressed. 9. Learned counsel submitted that the petitioners and the complainant O.P.No.2 are full brothers and due to dispute regarding partition the complainant had himself assaulted the two brothers and one lady Monakia Devi for which F.I.R. (Ext-A) was lodged by the petitioner Ram Baboo Sah against the complainant with allegation of assault at the hands of complainant and that the three injured, namely, Monakia Devi, Ram Baboo Sah and Sheojee Sah were examined by Government doctors on Police requisition and their injury reports were brought on record as Ext-B, B/1 and B/2. It was further submitted that the complainant/ O.P.No.2 in order to save his skin from the case filed by the petitioner Ram Baboo Sah filed his complaint with false allegations. It was also contended that allegations of theft and forcible taking L.T.I, were false and could not be proved by the O.P.No.2, hence, the trial court acquitted the petitioners of the charges under Sections 380 and 384 IPC. Learned counsel also submitted that the learned trial court relied on the injury report with regard to the injury on the complainant but the doctor was not produced for his examination in order to prove the injuries examined by him. Therefore, the learned counsel submitted that the learned court below also acquitted the petitioner Ram Baboo Sah of the charge under Sec. 324 IPC. 10. Both the petitioners have been convicted under Sec. 323 IPC. In this context it is pointed out that the complainant stated about the assault on him by means of Lathi, fists and slaps at the hands of petitioner Sheojee Sah but P.Ws. 1 & 2 who were examined as eye witness do not say anything about such assault at the hands of petitioner Sheojee Sah. In this context it is pointed out that the complainant stated about the assault on him by means of Lathi, fists and slaps at the hands of petitioner Sheojee Sah but P.Ws. 1 & 2 who were examined as eye witness do not say anything about such assault at the hands of petitioner Sheojee Sah. The conviction of petitioner Ram Baboo Sah under Sec. 323 IPC was also challenged on the ground that any medical certificate was not proved by examination of the doctor. It was argued that the certificate has been obtained from a private doctor for the purpose of lodging a case and the doctor who is said to have issued the certificate has not been examined by the complainant/ O.P.No.2. Learned counsel also submitted that, in fact, the complainant did not go to Police whereas the petitioners had immediately rushed to Police and lodged their F.I.R. with regard to the assault at the hands of complainant and they were also examined by a government doctor. The learned counsel continues to submit that in order to save his skin from the Police case lodged by the petitioners, the complainat/O.P.No.2 filed his complaint with false allegations as a defence measure to save his own skin. 11. Mr. S.N.Prasad, learned A.P.P. supported the judgment of conviction saying that the Judgment was correct. 12. Thus, hearing and considering I find the evidence brought on the record is not sufficient to prove the allegation of assault so as to warrant conviction under Sec. 323 IPC. The learned courts below have not appreciated the evidence properly and, therefore, an order of conviction has been passed which has caused illegality in convicting the petitioners. Therefore, by exercising the power of revision, I hereby set aside the impugned judgment of conviction and order of sentence passed against the petitioners.