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2012 DIGILAW 1179 (PAT)

Dinesh Kumar v. State of Bihar

2012-08-24

SHEEMA ALI KHAN

body2012
JUDGMENT (ORAL) Smt. Sheema Ali Khan, J.- This appeal is directed against the judgment of conviction and the order of sentence dated 29th September. 2000 passed in Sessions Trial No. 260 of 1992/33 of 1992 whereby the 3rd Additional Sessions Judge, Nalanda at Biharsharif has found and held the appellant guilty for the offences punishable under Section 324 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for two years and further to pay a fine of Rs. 500/-, in default of which, the appellant will have to suffer three months simple imprisonment. 2. It has been alleged in the First Information Report recorded by the A.S.I. Bihar Police Station that on 18.10.1991 when the informant was returning from the field, he was surrounded by six persons, named in the First Information Report, who were carrying rifles. The informant on seeing them began to flee. Chandeshwar Mahto gave an order to fire, on which the appellant Dinesh Kumar opened fire, which hit the informant on his left leg near the knee. The cause of the occurrence is a land dispute as per the First Information Report. 3. In this case, altogether seven witnesses have been examined on behalf of the prosecution. PW 6 is Dr. Md. Safi Ahmad who has proved the injury report (Exhibit-2). PW 7 Umesh Prasad is a formal witness who has proved the fardbeyan (Exhibit-3), the endorsement on the fardbeyan (Exhibit-3/1) and the signature of M.M. Pathak on the formal First Information Report (Exhibit-1/l). PW 4 Tunnu Paswan who is said to be the eye-witness to the occurrence has turned hostile. PW 1 Ramjatan Prasad is the son-in-law of the informant. PW 2 Mahendra Prasad is the brother of the informant and PW 5 Baso Mahto is the father of the informant. The informant Bindeshwar Mahto has been examined as PW 3 in this case. 4. The trial Court after going through the evidence of all the witnesses has come to the conclusion that PW 1 Ramjatan Prasad, PW 2 Mahendra Prasad and PW 5 Baso Mahto were not the eye-witnesses to the occurrence. It would appear on perusal of their evidence that they came to the place of occurrence after they heard the sound of gun-shot. It is also not in doubt that all these witnesses reside near the place of occurrence. It would appear on perusal of their evidence that they came to the place of occurrence after they heard the sound of gun-shot. It is also not in doubt that all these witnesses reside near the place of occurrence. They have given consistent evidence that they found Bindeshwar Mahto, the informant, lying in the field of Ramashish Choudhary, which is situated at Gaurha Khandahah. Therefore, from the evidence of these witnesses, it would appear that the place of occurrence is established. 5. It has been argued that all the witnesses are interested witnesses and. this Court should not rely on the sole testimony of the informant, PW 3. The evidence of PW 3 has to be examined with care to see as to whether he has given the correct picture of the alleged occurrence. PW 3, in his evidence has supported the case as made out in the First Information Report. There is no discrepancy in his examination-in-chief vis-a-vis the allegations in the First Information Report. In his cross-examination, he has stated that when he reached Gaurha Khandahah, the accused persons surrounded him. He tried to escape by running away, however, a shot was fired by Dinesh Kumar causing injury in his left leg near the knee. It is well settled that the victim of the occurrence is the best witness if his version is reliable and consistent. This witness has admitted although there is no civil dispute regarding the lands in question but there is a dispute between the accused Chandeshwar who is the uncle (CHACHA) and his father, PW 5. He admits that the receipts with regard to the lands are being issued separately in the names of his father and uncle since a long time. He also admits that, a complaint case was earlier filed by Chandeshwar with respect to the harvesting of the crops, which is still pending. The cross-examination with regard to the manner of the occurrence is consistent and the appellant has not been able to dislodge the version of the informant regarding the manner in which he received the injury. Therefore, this Court finds that the defence has not been able to dislodge the evidence of this witness. 6. The cross-examination with regard to the manner of the occurrence is consistent and the appellant has not been able to dislodge the version of the informant regarding the manner in which he received the injury. Therefore, this Court finds that the defence has not been able to dislodge the evidence of this witness. 6. From the cross-examinations of all the witnesses, it transpires that both the parties are closely related to each other and that there seems to be a dispute regarding lands which had been partitioned a long time back. The doctor has found the injury with blackening and tattooing on the left thigh. The injury is simple in nature as per the evidence of the doctor. In this manner, the evidence of PW 3 is supported by the evidence of the doctor, which leads to the conclusion that the occurrence took place in the manner alleged. 7. Counsel for the appellant submits that the occurrence took place in the year 1991, both the parties are closely related to each other and there appears to be some land dispute between the parties, which has led the occurrence. Apart from which, it is submitted that the injury is simple in nature and as such this Court should not send the appellant back to jail after a lapse of two decades. The appellant has remained in custody for over four months, as such, this Court confirms the conviction of the appellant, but alters the sentence as period already undergone, with a further direction to the appellant to pay a fine of Rs. 2,000/- to the injured and informant of this case Bindeshwar Mahto within a period of four months, failure to pay the said amount would entail simple imprisonment for four months. The appellant would be discharged from the liabilities of the bail bonds only after he deposits the amount of fine. 8. In the result, this appeal is dismissed with the modification in the sentence. Appeal dismissed.