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2007 DIGILAW 765 (PAT)

Ekram Pandey v. State Of Bihar

2007-04-17

INDU PRABHA SINGH

body2007
Judgment I.P.Singh, J. 1. Both the appellants have been convicted under Section 307 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for four years with a fine of Rs. 3,000/ each. In default of payment of fine they will further undergo rigorous imprisonment for one year. 2. The prosecution case, in brief, is that on 22.7.1985 at about 8.30 A.M. some dispute arose between Arjun Pandey and accused persons for partition. The accused Bhagwan Pandey is the father and Ekram Pandey is brother of Arjun Pandey. There was altercation between them. In the mean time accused Bhagwan Pandey ordered his son Ekram Pandey to kill Arjun Pandey. Thereupon both the accused persons assaulted Arjun Pandey with lathi. Arjun Pandey sustained injuries on the head and fell down.The informant is Dadan Pandey who is the brother-in-law of Arjun Pandey. It is alleged that the informant and other co-villagers rushed there for rescue but the informant was also assaulted by accused Bhagwan Pandey by lathi on his back.The occurrence was witnesses by Gupta Nath Pandey etc. The informant brought the injured to Agion Bazar police station and lodged the F.I.R. on the same day. After completion of investigation the police submitted charge-sheet against the accused persons. Thereafter the cognizance was taken and the case was committed to the court of session for trial and ultimately the trial concluded with the resulted as indicated above. 3. The appellants pleaded not guilty and has stated that they have been falsely implicated in this case at the instance of their enemies. 4. The prosecution in order to prove its case has examined altogether seven witnesses. P.W. 1 is Arjun Pandey, the injured. P.W. 2 is Guptanath Pandey. P.W. 3, Dadan Pandey is the informant of this case. P.W. 4 is Ramgrihi Pandey. P.W. 5 is Tetari Devi, wife of the injured Arjun Pandey. P.W. 6 is Doctor Kishori Prasad who has examined the injured. P.W. 7 is a formal witness who has proved the injury report and case diary Exts. 2 and 3. 5. P.W. 1, is Arjun Pandey who is victim and injured of this case. He has stated that on the alleged date and time of the occurrence he was assaulted by Ekram Pandey by Rami and by Bhagwan Pandey by Danda. P.W. 7 is a formal witness who has proved the injury report and case diary Exts. 2 and 3. 5. P.W. 1, is Arjun Pandey who is victim and injured of this case. He has stated that on the alleged date and time of the occurrence he was assaulted by Ekram Pandey by Rami and by Bhagwan Pandey by Danda. He has further stated that Dadan Pandey and Ramgrihi Pandey rushed to him for rescue but they were also assaulted by Bhagwan Pandey. According to him he sustained injuries on head by Rami and on right shoulder by Danda. He has further stated that he got injuries on eye also. According to him Dadan Pandey and Grihi Pandey had come to his house for getting partition effected. He became unconscious due to said injuries and he remain in Arrah Sadar Hospital for one month and six days and thereafter he gave statement to the police. 6. P.W. 2 is Guptanath Pandey. He has stated that on the alleged date and time of the occurrence he went to the place of occurrence on Hullah. He saw accused Ekram Pandey and Bhagwan Pandey with lathi. He has further stated that accused Ekram Pandey assaulted Arjun Pandey by Rami on his head and Bhagwan Pandey by lathi. After sustaining injuries he became senseless and then he was brought to the Hospital. In cross examination he has stated that there was dispute for partition between the parties for last five years. 7. P.W. 3, Dadan Pandey is the brother-in-law of the injured Arjun Pandey. He has fully supported the case of the prosecution. According to him he had come to the house of Arjun Pandey for settling dispute of partition in his family. He has further stated that his brother Ramgrihi Pandey had also come for the said purpose. According to him on the alleged date and time of the occurrence Arjun Pandey demanded his share from the accused persons for which there was altercation between them. Thereupon accused Bhagwan Pandey ordered to kill Arjun Pandey. According to him accused Bhagwan Pandey was armed with lathi and Ekram Pandey with Rami. Accused Ekram Pandey gave a Rami blow on the head of Arjun Pandey who sustained injuries.Thereupon he was also assaulted by lathi. Arjun Pandey got bleeding injury on his head and he fell down. Thereupon accused Bhagwan Pandey ordered to kill Arjun Pandey. According to him accused Bhagwan Pandey was armed with lathi and Ekram Pandey with Rami. Accused Ekram Pandey gave a Rami blow on the head of Arjun Pandey who sustained injuries.Thereupon he was also assaulted by lathi. Arjun Pandey got bleeding injury on his head and he fell down. Thereupon he and his brother rushed there for rescue but he was assaulted by Bhagwan Pandey by lathi. He has further stated that Arjun Pandey became senseless for some time. He brought the injured to the police station and gave his statement. 8. P.W. 4 is Ramgrihi Pandey. He is the brother of the injured informant Dadan Pandey. He has fully supported the version of the informant. He has stated that the occurrence took place as stated on the date of occurrence. He has further stated that he also come for partition of land alongwith his brother, Dadan Pandey, a night prior to the occurrence. 9. P.W. 5, Tatari Devi is the wife of injured Arjun Pandey. She has also supported the version of her husband Arjun Pandey. According to her on the alleged date and time of the occurrence her husband went to medicine shop outside her house and demanded partition from the accused persons. She has further stated that her two brothers had also come one day before the occurrence. She has further stated that some altercation took place between them and Ekram Pandey gave Rami blow on her husband on the head by which he sustained injury on head and left eye. She has further stated that accused Bhagwan Pandey assaulted her husband by lathi. 10. P.W. 6 is Doctor Kishori Prasad. He has examined the injured Arjun Pandey on 22.7.1985 and found the following injuries on his person: 1. Oblique incised wound 1 "½ x ¼" deep up to bone on upper middle part of left partial part of scalp. 2. Swelling of entire upper eye lid of left side. 3. Oblique swelling 2" x 1" on lateral surface of upper right forearm. According to injury no. 1 was grievous caused by sharp cutting weapon may be Rami and other injuries are simple in nature caused by hard and blunt substance. 11. 2. Swelling of entire upper eye lid of left side. 3. Oblique swelling 2" x 1" on lateral surface of upper right forearm. According to injury no. 1 was grievous caused by sharp cutting weapon may be Rami and other injuries are simple in nature caused by hard and blunt substance. 11. Learned counsel for the appellants has submitted that in this case I.O. has not been examined and the court below has not given any reason for his non-examination. He has further submitted that though the informant has stated in the Fard beyan that the appellant, Ekram Pandey assaulted him with lathi but in his deposition he has stated that he was assaulted by Rami. He has further submitted that all the witnesses are related and interested. As such their evidences are not reliable. 12. So far as submission of the learned counsel that the I.O. has not been examined is true that he was not examined but it appears that after an hour of the occurrence the Fard beyan of the informant was recorded. The injury memo issued by him and case diary have been proved by the witness (P.W. 7). As such non-examination of the I.O. is not fatal to this case. The submission of the learned counsel that it was not mentioned by the informant in the Fard beyan that the appellant Ekram Pandey assaulted with Rami and the informant has stated that Ekram Pandey assaulted with lathi. Later on in his deposition he changed his version. But it is evident from the deposition of the Doctor (P.W. 6) who examined the injured and he found sharp cutting incised injury on the head of the injured caused by Rami. As such it could be said that this was a minor contradiction which might have occurred in such a situation when his brother-in-law was critically ill and then was perturbed. The other submission of the learned counsel that all the witnesses are related and interested but it appears that no independent witness has come forward to support the case of the appellant as it was fight between the brothers, sons and father and villagers do not generally like to be a party in such dispute due to fear of wrath of one of them. However, simply because the witnesses are related and interested their testimony can not be discarded. However, simply because the witnesses are related and interested their testimony can not be discarded. I have carefully gone through the judgment under appeal from which it appears that the learned court below has properly taken into consideration the evidence on record and has come to the conclusion that the charges against the appellants have been proved and convicted the appellants under Section 307 of the Indian Penal Code. I do not find any reason to interfere with the conviction of the appellants. 13. Coming to the question of sentence, learned counsel for the appellants has submitted that the occurrence took place 21 years back and there was Marpit between the brothers, father and sons for the partition of the land. It has been further submitted that the appellants have remained in custody for about three months. As such some lenient view may be taken while awarding sentence to the appellants. 14. Considering the submissions of the learned counsel and in the facts and circumstances of the case, I am of the view that the ends of justice will be met if the sentence of appellants is reduced to the period they have already gone in jail with a fine of Rs. 2500/- each to be deposited by them within a period of four months from the date of receipt/production of a copy of this order. In default of payment of fine they shall further undergo rigorous imprisonment for one year. The amount of fine if and when deposited by the appellant the same shall be paid to the injured, Arjun Pandey by way of compensation. 15. With the aforesaid modification in the sentence as well as in the fine this appeal is dismissed.