Research › Search › Judgment

Patna High Court · body

2008 DIGILAW 71 (PAT)

Bhalu Yadav v. State of Bihar

2008-01-11

body2008
S.K. SHARMA, J.:-Both the above-noted appeals have arisen out of common judgment as such they have been heard together and are being disposed of by this common judgment. 2. The appellant Bhalu Yadav has filed Cr. Appeal No. 115 of 1993 and the another appellant Ram Pravesh Yadav has filed Cr. Appeal No. 138 of 1993 against the judgment of conviction and order of sentence dated 8th April, 1993 passed by Sri Amod Prasad Ram in Sessions Trial No. 34 of 1986 whereby the appellants were found guilty for the offence under section 307 of the Indian Penal Code and were sentenced to undergo R.I. for 7 years and to pay fine of Rs.200/- each and in default to undergo further R.I. for 2 month. 3. At the very outset, learned counsel for the appellant Ram Pravesh Yadav of Cr. Appeal No. 138 of 1993 submits that he has died on 2.3.2003 for which a death certificate granted by the Mukhiya of the concerned Panchayat has been filed. So he prays that the appeal against Ram Pravesh Yadav may abate. This prayer has not been opposed by the learned APP. Accordingly, the Cr. Appeal No. 138 of 1993 filed by Ram Pravesh Yadav stands abated. 4. According to the prosecution case, on 20.11.1983 at 1.30 PM the accused persons were harvesting their paddy. That was protested. Thereafter, appellant Bhallu Yadav assaulted with Farsa on the head and left hand finger of the informant PW 1, Another accused assaulted by lathi, On alarm witnesses PW 2 Sheojathan Singh, PW 3 Ram Bharos Singh etc. arrived. The case initially was registered as Udwanth Nagar P.S. Case No. 162 of 1983 under sections 323 and 324 of the Indian Penal Code. After investigation charge-sheet was submitted under sections 324, 323, 307, 326/34 of the Indian Penal Code. Cognizance was taken and case was committed to the Court of Sessions. When the charges were explained to the accused persons they pleaded their innocence and preferred to face trial. Their defence was that when daughter of one of the co-accused Ram Pravesh Yadav was cutting grass then the informant tried to outrage her modesty. At that moment fhat lady Sheorati Devi assaulted with sickle on the head of the informant who received injury. 5. Prosecution in order to prove its case examined 5 witnesses. The informant has been examined as PW 1. At that moment fhat lady Sheorati Devi assaulted with sickle on the head of the informant who received injury. 5. Prosecution in order to prove its case examined 5 witnesses. The informant has been examined as PW 1. Other witnesses of the prosecution were PW 2 Sheojatan Singh, PW 3 Rambharos Singh and PW 4 Bankatesh Sharma. PW 4 has been tendered. PW 5 is the Dr. Umesh Chandra Srivastava who has medically examined the informant. 6. Before coming to oral evidence it will be appropriate to discuss evidence of the doctor PW 5. According to the PW 5 at 2.55 PM on 20.11.1983 he examined the informant and found:- (i) Incised wound 3" x 1/4" x deep to skull bone on right frontal region of head. (ii) Lacerated wound 31/2 x 1/4 deep to skull bone (bone exposed) with extra vacation and swelling over an area 4" x 21/2 on occipital region of head. (iii) Lacerated wound 1" x 1/8" x 1/ 8"on outer side of right elbow. (iv) Incised wound 3/4" x 1/8" on anterior side of left elbow. (v) Lacerated wound 1/2 x 1/8" x 1/8" on dorsom aspect of left index finger of middle phalanx. (vi) Lacerated wound 11/2 x1/4” x1/10 on doresom region of left palm. (vii) Abrasion 1/4" x 1/8" x 1/8" on dorsom region of left middle finger. (viii) Abrasion 1/4" x 1/4" on left chin. 7. According to PW 5 injury no. ii was dangerous to life and rest injuries were simple in nature. Injury nos. i and iv ere caused by sharp cutting weapon like Farsa and rest injury caused by hard blunt substance like lathi. The injury report has been marked as Exhibit-2. Signature of the informant has been marked as Exhibit-1 and 1/1 on FIR and protest complaint respectively. PW 5 has proved the injury report Exhibit-2. 8 PW 1 has stated that on 30th November, 1983 at 1.30 PM both the accused persons assaulted him on his head and hand by means of farsa and lathi as a result thereof, he received severe injury and was brought to the hospital where he was treated. He has denied that he has given wrong statement. He has proved his signature on the fardbeyan (Exhibit-1/1). He has denied that he has given wrong statement. He has proved his signature on the fardbeyan (Exhibit-1/1). Learned counsel for the appellant stated that if the statement of this witness is taken into consideration, it is clear that occurrence took place on 30.11.1983 and not on 20.11.1983, so on this score alone the case is not to be believed. 9. In my view, it was just a clerical error. Every things are showing that the occurrence was of 20.11.1983. PW 1 is a person aged about 85 years so it was a slip of tongue as 30 in place of 20 or the slip of writing. I am satisfied that the prosecution has been able to prove this fact. 10. Oral evidence of PWs 2 and 3 have supported the story as stated by PW 1. 11. The injury report given by the doctor (Exht.-2) shows that the injury caused by this appellant was simple in nature rather injury casued by the another accused by lathi was grievous in nature which was dangerous to life. Author of that injury is the father of the appellant who has already dead. So, at best even if the entire allegation is accepted to be true, then the prosecution has been able to prove only that the injury caused to PW 1, namely, the informant by this appellant was simple in nature and not grievous or danger to life. 12. The I.O. has not been examined but it is not caused any prejudice to the defence as no such vital contradiction was pointed out which is being prejudiced to the appellant. 13. If the entire case be considered as a whole then it comes that allegation against the appellant is only of causing simple injury to the informant. So, I am of the view that the prosecution has not able to prove its charge under section 307 IPC rather it could only be proved that it is a case of 323 IPC. So, conviction of the appellant is altered to be conviction under section 323 IPC. 14. On the question of sentence it has been submitted that the appellant has remained in custody for more than three months in course of trial, therefore, period undergone by him may be deemed to be sufficient for the ends of justice. 15. So, conviction of the appellant is altered to be conviction under section 323 IPC. 14. On the question of sentence it has been submitted that the appellant has remained in custody for more than three months in course of trial, therefore, period undergone by him may be deemed to be sufficient for the ends of justice. 15. Accordingly, the sentence of the appellant is modified to the extent that the period undergone by him deemed to be sufficient for the ends of justice. The appellant is discharged from the liabilities of his bail bonds. 16. So far the appellant Ram Pravesh Yadav of Cr. Appeal No. 138 of 1993 is concerned his appeal is abated as stated above. 17. With the aforesaid modification in the sentence this appeal is dismissed.