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2009 DIGILAW 300 (JHR)

Dilip Bauri v. State of Jharkhand

2009-02-26

PRADEEP KUMAR

body2009
Judgment By Court: Heard the learned counsel for the appellants and counsel for the State. 2. This appeal is directed against the judgment of conviction dated 17.7.2001 and order of sentence dated 21.7.2001 passed by Sri Sharang Dhar Singh, 5th Additional Sessions Judge, Dhanbad, by which he found both the appellants Dilip Bauri and Shankar Bauri guilty for the offence under Section 307/34 of the Indian Penal Code and convicted there under and sentence them to undergo rigorous imprisonment for three years and also to pay a fine of Rs. 2,000/-each and in default of payment further to undergo six months simple imprisonment. 3. The prosecution case was started on the basis of the fard beyan given by the informant Bilas Das, P.W.6 on 3.6.1995 at about 10 P.M. at night, stating therein that, when he along with his wife Lala Devi @ Lalita Devi, mother Jhunia Devi and father, Biru Ravidas were talking regarding the marriage of his daughter Elaichi Kumari out side of their house, then the two accused Dilip Bauri and Shankar Bauri came along with other people. They were fully drunk and making hulla, whereupon Bilas Das came out from the house and asked them to go away since they are talking about the marriage of their daughter. Thereafter, Dilip Bauri and Shankar Bauri started abusing them; thereafter the appellants Dilip Bauri and Shankar Bauri went to their house and thereafter Dilip Bauri came with lathi and Shanker Bauri came with Sabbal in their respective hands. Dilip Bauri gave a lathi blow on the head of Bilas Das, causing injury to him with intention of causing death. Thereafter, his father and mother came out from the house, who were also assaulted by Shankar Bauri and Dilip Bauri with lathi and Sabbal. Thereafter, they went to the police station from where he and his father were sent to the hospital, where they were treated. 4. On the basis of the said fard beyan, the police registered a case under Sections 447, 341, 323, 325, 506, and 307/34 of the Indian Penal Code and after investigation submitted charge-sheet under all the aforesaid sections. After submitting charge-sheet, cognizance was taken by the learned Chief Judicial Magistrate and committed the case to the court of Sessions since the case was exclusively triable by Court or Sessions. After submitting charge-sheet, cognizance was taken by the learned Chief Judicial Magistrate and committed the case to the court of Sessions since the case was exclusively triable by Court or Sessions. The trial was held in the court of Sessions and charges were framed under Sections 307/34 of the Indian Penal Code and after trial the accused persons were found guilty as aforesaid. 5. It appears in the course of trial that the prosecution examined eight witnesses. P.W.1 is Lala Devi @ Lalita Devi, the wife of the informant Bilash Das, P.W.2 Jhunia Devi wife of Biru Ravidas, P.W.3 Elaichi devi, P.W.4 Biru Ravidas, father of the informant, P.W.5 Rameshwar Das, elder brother of the informant, P.W.6 Bilas Das, informant, P.W.7 Jyotish Prasad Das and P.W.8, Doctor Shankar Prasad Singh, who examined the injured witnesses and his medical report. 6. It has been submitted by the learned counsel for the appellants that as far as occurrence is concerned, there is discrepancy in evidences of the Prosecution witnesses. More over, he has submitted that all the witnesses have alleged that they were assaulted with intention to commit murder of informant and the witnesses, but the Doctor has found simple injuries on the person of the informant and his father. The Dr. P.W.8 has found only one incised injury on the head of mother P.W.2, Jhunia Devi which was grievous in nature. There is only allegation by the witnesses but all the circumstances proved that there was no intension to commit murder. Some altercations might have taken place between the neighbours and resulting this scuffle and assault but there was no intention to commit murder and hence the conviction of the appellants under Section 307/34 of the Indian Penal Code is bad and fit to set aside. 7. On the other hand, learned counsel for the State has stated that all the witnesses have stated that they were assaulted by the two appellants. There is no contradiction about it and the injuries support the prosecution case. 8. After hearing the parties and going through the evidence of witnesses, I find that it is an admitted case of the prosecution that both the appellants Dilip Bauri and Shankar Bauri were in drunken condition and they were fighting among themselves. There is no contradiction about it and the injuries support the prosecution case. 8. After hearing the parties and going through the evidence of witnesses, I find that it is an admitted case of the prosecution that both the appellants Dilip Bauri and Shankar Bauri were in drunken condition and they were fighting among themselves. It is also admitted case of the prosecution that first protest was made by the informant P.W.6, Bilas Das where upon some exchange of words took place between the appellants and the informant, thereafter the appellants raised hulla and went to their house and came out with lathi and sabal and then assault took place with intension of committing murder to the injured persons. The doctor has already found simple injury on the person of P.W.6 and P.W.4. 9. The contradictions stated by the appellants’ counsel are also not very vital. The informant has stated in the F.I.R. that his brother Biru Ravidas and daughter Elaichi Devi were also present at the time of occurrence, and the injuries of the witnesses is vital in nature. 10. In my opinion, the allegation of assault has been proved. However, there was no intention to commit murder and as far as the appellant Shankar Bauri is concerned that he has caused simple injury to the P.W.6 and P.W.2 and he is found guilty under Section 323 of the Indian Penal Code and it appears from the record that he remained in jail for about 24 days plus the rigor of trail and appeal and hence sentence of 24 days are sufficient punishment to him. But as far as accused Dilip Bauri is concerned, it appears that he has caused grievous injury by sabbal on the person of P.W.2, Jhunia Devi. 11. In the facts and circumstances of the case, he (Dilip bauri) is found guilty under Section 326 of the Indian Penal Code and his sentence of three years is reduced to six months with a fine of Rs. 2,000/-which he has already been awarded, if realized, will be paid to the injured (P.W.2), Jhunia Devi and in default sentence of six months has already been awarded. It has already been found earlier that even the accused Dilip Bauri had no intention to commit murder of the witnesses and the occurrence took place only due to the conditions of drunkenness and hot exchange. It has already been found earlier that even the accused Dilip Bauri had no intention to commit murder of the witnesses and the occurrence took place only due to the conditions of drunkenness and hot exchange. Accordingly, the conviction and sentences are alter as aforesaid and both the appellants are acquitted from the charge under Section 307 of the Indian Penal Code. 12. This appeal is accordingly allowed in part. The bail of accused No.1 is cancelled and learned Trial Court is directed to issue warrant of arrest on Dilip Bauri for serving out the sentence.