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2008 DIGILAW 141 (PAT)

Prabodh Ojha @ Prabood Jha v. State Of Bihar

2008-01-22

SHYAM KISHORE SHARMA

body2008
Judgment SHYAM KISHORE SHARM, J. 1. In view of order dated 14.1.2008 learned counsel for the appellant could not get instruction regarding death of the appellant and submits that it may presume that he is alive and the appeal may be heard and disposed of. Learned Addl.P.P. does not raise any objection. 2. Heard learned counsel for the appellant as well as the Addl.P.P. 3. The appellant has filed this appeal against the judgment dated 20.4.1993 passed by 4th Additional Sessions Judge, Muzaffarpur in Sessions Trial No. 45 of 1983 by which the appellant has been convicted under Sec. 436 of the Indian Penal Code and has been sentenced thereunder to undergo rigorous imprisonment for five years. 4. According to prosecution case, on 14.6.1981 while the informant Jagdish Paswan was ploughing the field of one Thakur Singh, he was informed by his wife Patiya Devi that the accused persons namely, Prabodh Ojha, Lakshmi Ojha, Munni Lal Ojha and Rameshwar Ojha had come to his residence having arm in their hands and had started ploughing the land which was in front of his house and when she objected, she was assaulted by them. She also informed that accused Prabodh Ojha had started to put their huts on fire which was also witnessed by Pakhiya Devi wife of Ran Jappu Paswan. On receiving such information, the informant Jagdish Paswan came running to his house and found his house and his brothers house burnt. The motive of the occurrence, as given in the F.I.R., was that a sahan land in front of the informants house was purchased by informants father but the said sahan land was being claimed illegally by accused persons and a case was going on between the parties with regard to the said land. The matter was reported to the police for which Kanti P.S.Case No. 127 of 1981 under Sections 323,447 and 436 of the Indian Penal Code was registered. The matter was investigated into and alter completion of investigation, charge sheet was submitted against four accused persons. Cognizance taken and case was committed to the court of Sessions. The trial proceeded only against three persons and against whom charges under Sections 323 and 436/34 were framed against them.. Fourth accused Munni Lal Oha absconded and his case was separated. 5. Cognizance taken and case was committed to the court of Sessions. The trial proceeded only against three persons and against whom charges under Sections 323 and 436/34 were framed against them.. Fourth accused Munni Lal Oha absconded and his case was separated. 5. The defence of the accused persons was that the land in question belongs to Prabodh Ojha namely, appellant and Lakshmi Ojha. The said land was entered in their name in the revisional survey and mutation of land bears Khesara No. 1302, Khata No. 129. Further defence was that a proceeding under Sec. 144 of the Code of Criminal Procedure was also going on which has been decided by execution court in favour of accused Prabodh Ojha and Lakshmai Ojha. The occurrence was totally denied and it was also stated that the prosecution party themselves have burnt the houses only with a view to implicate the accused persons. 6. In this case, in order to prove its case, the prosecution has examined six witnesses. P.W.I is Patiya Devi, wife of the informant and P.W.2 is Gajadhar Thakur. These two witnesses have been examined as eye witnesses. P.W.2 has stated about putting the houses on fire but has stated nothing about assault. So later on, he was declared hostile. P.W.3 is Chaturbhuj Thakur. He has proved his signature (Ext.1) on the seizure list (Ext.3) . P.W.4 is Pankhi Devi,. P.W.5 is Ramjappu Paswan and P.W.6 is Jagdish Paswan , informant and they have supported the prosecution case. 7. After analyzing the evidences of the witnesses, the trial court found that no case under Sec. 323 of the Indian Penal Code has been proved by the prosecution. So the accused persons were acquitted under the said Section. 8. P.W.I in her evidence has stated that the accused persons assaulted her and her gotani and thereafter Prabodh Ojha put her house and house of his gotani on fire by the help of match box and their houses were accordingly burnt. Another witness P.W.4 Pankhi Devi who is gotani of P.W. 1 has stated in her evidence that she has seen accused Prabodh Ojha putting her house and house of her gotani on fire with the help of match box. The evidence of these two witnesses has been supported by other witnesses who stated that later on they came to know that the houses were burnt by accused Prabodh Ojha. The evidence of these two witnesses has been supported by other witnesses who stated that later on they came to know that the houses were burnt by accused Prabodh Ojha. Therefore, there is consistent evidence upon which the trial court came to the conclusion that on the date of occurrence, accused Prabodh Ojha was in possession of match box and he alone put the houses on fire and the trial court has rightly found the appellant guilty under Sec. 436 of the Indian Penal Code and convicted him thereunder. So the conviction of the appellant is maintained. 9. However, on the question of sentence, learned counsel for the appellant submits that the appellant has remained in custody during appeal and his age on the date of judgment ( 20.4.1993) was 60 years and now the appellant has become 75 years of age. Further submission is that no previous conviction has been brought on record. So the sentence awarded to the appellant may be modified to the period already undergone by him which my be deemed to be sufficient for the ends of justice. 10. Taking into consideration the submissions of the learned counsel for the appellant, I am also of the view that the sentence awarded to the appellant should be modified. Accordingly, the sentence awarded to the appellant is modified to the period already undergone by him which will be sufficient for the ends of justice. 11. In the result, the appeal is dismissed with modification in sentence.