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2008 DIGILAW 1159 (PAT)

Gora Chamar v. State Of Bihar

2008-08-14

SYED MD.MAHFOOZ ALAM

body2008
Judgment S.M.Mahfooz Alam, J. 1. This Criminal Appeal has been preferred against the judgment and order dated 17.8.1993 passed by Sri Gopal Prasad, 10th Additional Sessions Judge, Gaya, in Sessions Trial No. 356/90/53 of 1991 whereby he has been pleased to convict all the three appellants under Sections 148 and 342 of the Indian Penal Code and sentenced each of the appellants to undergo rigorous imprisonment for six months under Section 342 of the Indian Penal Code and nine months under Section 148 of the Indian Penal Code. Both the sentences were ordered to run concurrently. 2. The prosecution case, as per the fardbayan of Umesh Mistri (P.W. 7) of village Kaldaspur, P.S. Chandauti, District Gaya recorded by A.S.I. Sri S. Khan of Kotwali P.S. on 26.2.89 at 9.50 hrs. in Pilgrim Hospital, Gaya, in brief, is that he had land dispute with Kailash Chamar (appellant No. 3), Fagu Chamar, Bhui Chamar, Gora Chamar (Kailash Chamar Fagu Chamar and Gora Chamar are appellants). In that land dispute, the Court had passed decree in favour of the informant and thereafter in the suit land the informant had grown potato crops. One day before the alleged occurrence he had taken out some potato from the said field. At about 6 A.M. on 26.2.1989 the informant alongwith his family members was at his house. In the meantime, Kailash Chamar having bomb, Fagu Chamar with Gandasa, Bhui Chamar with lathi, Gora Chamar with farsa along with 50-60 unknown persons came to the house of Jhe informant. They entered into the house of the informant and caught hold of his father Nathuni Mistri and thereafter they started dragging his father. When the informant tried to rescue his father then the abovenamed persons started assaulting him and then the informant started running away, whereupon, Kaitash Chamar threw bomb on him, as a result of which, the informant sustained injuries on his leg. In the meantime, all the above said persons dragged away his father but he (informant) managed to escape although the abovementioned persons tried to chase the informant. After the said occurrence the informant alongwith his brother Suresh Mistri came at Pilgrim Hospital where he was admitted for treatment of his injuries and on arrival of the police he gave his fardbayan (Ext. 1/1). 3. After the said occurrence the informant alongwith his brother Suresh Mistri came at Pilgrim Hospital where he was admitted for treatment of his injuries and on arrival of the police he gave his fardbayan (Ext. 1/1). 3. After recording the said fardbayan, A.S.I. Sri S. Khan forwarded the same to Chandauti P.S. where on receipt of fardbayan Chandauti P.S. Case No. 23/1989 dated 26.2.89 under Sections 147, 148, 149, 324, 323 and 342 of the Indian Penal Code and Section 3/5 of the Explosives Substance Act was instituted and investigation was handed over to A.S.I. Sri C.D. Singh (P.W.10) of the same P.S., who investigated the case and submitted charge-sheet against the accused persons. 4. On submission of charge-sheet cognizance of the offence was taken and thereafter vide order dated 23.5.90 passed by Sri S.N. Singh, the then Chief Judicial Magistrate, Gaya, in G.R. Case No. 543/89 the case was committed to the Court of Sessions and then on 30th April, 1992, charges under different heads including under Section 3/5 of the Explosives Substance Act were framed against the appellants by Sri Gopal Prasad, 10th Additional Sessions Judge, Gaya. The appellants denied the charges and, so, they were put on trial and by the impugned judgment they were convicted and sentenced as stated above. 5. From perusal of the impugned judgment, it appears that the Trial Court has acquitted the appellant from the charges under Section 324 of the Indian Penal Code and Sections 3, 4 and 5 of the Explosives Substance Act. The defence case is total denial of the occurrence and of false implication due to enmity. 6. From perusal of the judgment of the Trial Court as well as the lower Court records, it appears that in support of its case the prosecution has examined altogether eleven witnesses, namely, Suresh Mistri (P.W.1), Krishna Mistri (P.W. 2), Mahesh Mistri (P.W.3), Nathuni Mistri (P.W. 4), Ramdeo Yadav (P.W. 5), Kapil Mistri (P.W. 6), Umesh Mistri (P.W. 7), Ramji Prasad (P.W. 8), Dr. Binod Kumar Bihari (P.W. 9), Chandradeo Singh (P.W. 10), Gajendra Paswan (P.W. 11). Besides the oral evidence, the prosecution has also brought certain papers on record which has been marked as exhibits. Ext. 1 is the signature of the informant on the fardbayan, Ext. 1/1 is the fardbayan, Ext. 1/2 is the writing and signature of A.S.I. Sri S. Khan on the fardbayan, Ext. Besides the oral evidence, the prosecution has also brought certain papers on record which has been marked as exhibits. Ext. 1 is the signature of the informant on the fardbayan, Ext. 1/1 is the fardbayan, Ext. 1/2 is the writing and signature of A.S.I. Sri S. Khan on the fardbayan, Ext. 1/3 is another endorsement on fardbayan, Ext. 1/4 is the formal F.I.R., Ext. 2 is the sanction order for prosecution under the Explosive Substance Act, Ext. 3 is the injury report, Ext. 4 is Sanha No. 506 dated 26.2.89, Ext. 5 is the certified copy of the order dated 26.6.89 passed in Misc. Case No. 1063/89, Ext. 6 is the mutation order in Case No. 90/69-70, Ext. 7 is the written statement of the defendant Nos. 1 and 2 in Title Suit No. 181 of 1989. 7. The informant Umesh Mistri is P.W. 7 in this case. I would like to discuss his evidence first in order to come to the conclusion whether he has supported his fardbayan or not? His evidence is that the occurrence took place about three years four months ago. It was Sunday and time was about 6 A.M. At that time, he was at his house. Kailash Chamar, Bhui Chamar, Gora and Fagu alongwith 50-60 other persons came there. Firstly, Fagu called his father, whereupon, his father opened the door and then all the abovenamed four persons entered into the house and caught hold of his father. Gora was armed with farsa, Fagu was armed with Gandasa, Bhui was armed with lathi and Kailash had bomb in his hand. All the four persons dragged out his father outside. He tried to rescue his father but they ail started assaulting him. Thereafter, they took away his father with them. Fagu and Gora were catching his father. He also tried to follow the abovementioned persons but Kailash threw bomb. The bomb fell down on the surface but the splinters of the bomb caused injury to him. He received injuries in his thigh and below knee. Thereafter, all the abovenamed persons fled away. His brother Suresh brought him to Pilgrim Hospital, where he was admitted for treatment and on arrival of police he gave his fardbayan. He has further deposed that the occurrence of assault took place due to land dispute as the accused persons wanted to grab the land of the informant. 8. Thereafter, all the abovenamed persons fled away. His brother Suresh brought him to Pilgrim Hospital, where he was admitted for treatment and on arrival of police he gave his fardbayan. He has further deposed that the occurrence of assault took place due to land dispute as the accused persons wanted to grab the land of the informant. 8. From perusal of the evidence of P.W. 7, who is the informant of this case, it appears that he has fully corroborated his fardbayan and there appears no vital contradiction in his statement made before the police and the evidence given in the Court. At para 11 of his cross-examination he has deposed that he was assaulted by the accused-appellants outside his house. At para 16, he has deposed that as a result of throwing of bomb he had sustained injuries on his persons and from the injury blood was coming out. 9. The fact that P.W. 7 had injuries on his person caused by the explosives substance finds support from the evidence of P.W. 9 Dr. Binod Kumar Bihari, who has deposed that on examination of injured Umesh Mistri (P.W. 7) he had found following injuries on his person: "I. Lacerated wound 1/4 x 1/6" x muscle deep with charred margin on middle aspect of right thigh 2" above knee joint. II. Lacerated wound 1" x 1/6" x muscle deep with charred margin on front of left thigh in middle region. III. Abrasion 1/2" x 1/2 with charring on front of right knee in the middle. IV. Lacerated wound 1" x 1/2" x skin deep with charred margin 1/2 below injury No. 3. He has opined that the abovementioned injuries were caused by explosives substance may be by bomb. He has proved his injury report which has been marked as Ext. 3. 10 Thus, the evidence of doctor, who is P.W. 9 fully corroborates that the informant had received injuries on his person caused by explosion of bomb on 26.2.89 i.e. the date of occurrence. 11. Let me see whether other witnesses have corroborated the evidence of P.W. 7 or not? P.W. 1 is Suresh Mistri. He happens to be the own brother of the informant. 11. Let me see whether other witnesses have corroborated the evidence of P.W. 7 or not? P.W. 1 is Suresh Mistri. He happens to be the own brother of the informant. He has deposed that on the alleged date of occurrence the appellants alongwith 50-60 other persons came to his house at about 6 A.M. variously armed with Gandasa, Farsa and Lathi and they all entered into his house and started dragging his father. His brother Umesh Mistri wanted to intervene, whereupon, the appellants tried to assault the informant, his brother, who started running away. He has further deposed that Kailash Chamar threw bomb, as a result of which, his brother Umesh sustained injury due to explosion of bomb. He took his elder brother to Pilgrim Hospital. Thus, it appears that P.W.1, who is the brother of the informant and appears to be an eye witness, has fully supported the prosecution case. He has been cross-examined at length by the defence but nothing could be elicited. 12. P.W. 2 Krishna Mistri and P.W. 3 Mahesh Mistri are also brothers of the informant. They have fully supported the prosecution case and I do not want to reproduce their evidence as similar type of the evidence has been given by them as P.Ws. 1 and 7 have deposed. There is nothing in their cross-examination which can demolish their evidence. 13. P.W. 4 Nathuni Mistri is the father of the informant. He appears to be the main witness in this case as the prosecution case is that the appellants and others had come to assault him. His evidence is that the occurrence took place about three years ago on a Sunday. The time was 6 A.M. On being called by appellant Fagu (appellant No. 2) from outside, he opened the door and saw other accused persons, namely, Gora, Kailash and Bhui with Fagu. They all entered into his house and caught hold of him. They started dragging him outside the house. There were 50-60 other persons alongwith abovementioned persons. Fagu was armed with Gandasa, Gora was armed with farsa, Bhui was armed with lathi, Kailash was armed with bomb. They all started dragging him, then his son Umesh wanted to save him. The accused persons took him outside the house and tied him with a palm tree. He has further deposed that he heard the sound of explosion of bomb. They all started dragging him, then his son Umesh wanted to save him. The accused persons took him outside the house and tied him with a palm tree. He has further deposed that he heard the sound of explosion of bomb. He has further deposed that the accused persons started holding meeting for imposing penalty upon him but in the meantime the police arrived there and then the accused persons fled away. He has further deposed that he knew that due to the bomb exploded by accused Kaiiash Chamar, Umesh Mistri had sustained injury and he was admitted to hospital. The above evidence of P.W. 4, who happens to be the main witness in this case, fully corroborates the fardbayan of the informant. His cross-examination shows that he has fully stood to the test of cross-examination and there is nothing in his cross-examination for discussion. 14. P.W. 5 Ramdeo Yadav and P.W. 6 Kapi! Mistri appear to be co-villagers of the informant. The evidence of both the witnesses shows that they have supported this fact that on hearing sound of explosion of bomb they came to the house of the informant and saw informant Umesh Mistri in injured condition, who had sustained injuries from explosion of bomb. They have also deposed that peoples were telling that Kailash and Fagu had exploded bomb. The evidence of P.Ws. 5 and 6 shows that although they are not the eye witnesses of the occurrence but they have supported this fact that they had seen the informant in injured conditions and had also heard the sound of explosion of bomb. Thus, it appears that the abovementloned two witnesses have also supported the occurrence. 15. P.W. 8 Ramji Prasad is a formal witness. He has proved the sanction order which has been marked Ext. 2. P.W. 9 Dr. Binod Kumar Bihari is the doctor whose evidence has aiready been discussed above. P.W.10 Chandradeo Singh is the I.O. of this case and P.W. 11 Gajendra Paswan is again a formal witness. The evidence of P.W. 10 shows that he had investigated this case and during investigation the witnesses have supported the occurrence. He has further deposed that he had inspected the place of occurrence and near the place of occurrence he had seen the mark of explosion of bomb. The evidence of P.W. 10 shows that he had investigated this case and during investigation the witnesses have supported the occurrence. He has further deposed that he had inspected the place of occurrence and near the place of occurrence he had seen the mark of explosion of bomb. From the scrutiny of the evidence of the above witness it is established beyond doubt that the prosecution has fully succeeded in proving its case and, as such, I am of the view that the appellants were rightly convicted by the Trial Court. 16. The appellants have taken plea that they have been falsely implicated in this case due to previous land dispute. I am of the opinion that the enmity is double edged weapon and it can be used for falsely implicating the enemy but at the same time it can also be the reason for committing the offence and, so, this argument of the learned Advocate of the appellants is of no avail. 17. Learned Advocate appearing on behalf of the appellants submitted that this occurrence is of the year 1989 meaning thereby that the occurrence had taken place about nineteen years ago and during this long time there is every possibility that good feelings between the parties would have been restored. He submitted that if the sentence awarded to the appellants is upheld then in that case the appellants will have to go behind the bar and this may create a new chapter of enmity. So, in the interest of maintaining peace the appellants may be released on probation for maintaining peace and good behaviour. I am of the view that the argument advanced by the learned counsel for the appellants is appealing and there is every likelihood that if the appellants are sent to jail animosity between the parties will rise and fresh litigation may start. I, therefore, agree with the submission of the learned Advocate of the appellants that the appellants should be released on probation for maintaining peace and good behaviour under the provision of Section 360 of the Code of Criminal Procedure read with Section 4 of the Probation of Offenders Act. 18. I, therefore, agree with the submission of the learned Advocate of the appellants that the appellants should be released on probation for maintaining peace and good behaviour under the provision of Section 360 of the Code of Criminal Procedure read with Section 4 of the Probation of Offenders Act. 18. In the result, the conviction of the appellants under Sections 148 and 342 of the Indian Penal Code is hereby upheld but the order of sentence passed against the appellants is hereby set aside and it is ordered that the appellants shall be released on their furnishing bonds under the provision of Section 360 of the Code of Criminal Procedure read with Section 4 of the Probation of Offenders Act for maintaining peace and good behaviour for a period of one year. 19. With the above modification in the sentence, the appeal filed by the appellants is hereby dismissed.