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2012 DIGILAW 1189 (PAT)

Brahmdeo Mandal v. State of Bihar

2012-08-27

SHEEMA ALI KHAN

body2012
JUDGMENT S.A. Khan, J. Nobody appears for the appellant. Mr. Maqbool Ahmad is appointed as Amicus Curiae to assist this Court. 2. This appeal is directed against the order of conviction dated 28.1.2000 and order of sentence dated 31.1.2000, passed by the 1st Additional Sessions Judge, Jamui in Sessions Trial No. 647 of 1988/158 of 1997 convicting the appellant for an offence under Section 326 of the Indian Penal Code to undergo R.I. for 3 years and to pay a fine of Rs. 500/-and in default of payment of fine, the appellant would further have to undergo imprisonment for 6 months. It was ordered that both the sentences shall run consecutively. 3. The prosecution case as narrated by Nityanand Dubey, the informant is that his younger brother Parmanand Dubey was irrigating the paddy field at Kanhaiya-bahiyar. Mahadeo Mandal objected to the irrigation of the field. As a consequence of which there was a hot exchange of words. It is alleged that Mahadeo Mandal (since deceased) ordered his son to assault, who ran with a saif in his hand and assaulted Bachcha Dubey, the father of the informant. The informant tried to intervene in the matter, and was also assaulted by Mahadeo Mandal by Farkhanti. 4. A defence was taken on behalf of the accused persons that for the same occurrence a case was instituted by Brahmdeo Mandal, the appellant in which he has stated that there was a dispute with respect to irrigation of the field. There was a hot discussion and thereafter there was exchange of assault. The trial of the counter case ended in acquittal. From perusal of the judgment of the Trial Court, it would appear that the injuries of the appellant has been disbelieved by the Court below and, therefore, he has acquitted Parmanand Dubey and Nityanand Dubey from the charges under Section 323 of the Indian Penal Code. It, therefore, appears that there is no denial that an occurrence took place. What is denied by the appellant is the manner in which the occurrence had taken place. 5. Seven witnesses have been examined in this case to support the prosecution version. 6. P.W. 5 Bachcha Dubey, the injured was examined by the doctor and he supports the manner of occurrence as he has found two injuries one on the head and one on the parietal region and bruises on the body. 5. Seven witnesses have been examined in this case to support the prosecution version. 6. P.W. 5 Bachcha Dubey, the injured was examined by the doctor and he supports the manner of occurrence as he has found two injuries one on the head and one on the parietal region and bruises on the body. The doctor has also said that although the injury no. 1 is simple in nature, it could be dangerous to life. The injury on Nityanand Dubey was inflicted by Mahadeo Mandal who is not before this Court and as such his injury is not very relevant for the purposes of considering the merits of this case. 7. P.W. 1 is an independent witness who has supported the prosecution case. According to this witness that Kanhaiya-bahiyar consists of 20 to 25 Bighas of land. Brahmdeo Mandal has about 1½ Bighas of land whereas Nityanand Dubey has about 4 Bighas of land. It is apparent from the evidence of this witness that outlet of the water of Nityanand Dubey’s field passes through the field of Brahmdeo Mandal which had caused the dispute. At paragraph 5 this witness has stated that he came to the place of occurrence when it was dark and he heard the voices of the parties. He categorically states that when he came to the place of occurrence he found that Bachcha Dubey had fallen on the ground. It is, therefore, submitted that this witness is not an eye witness with respect to the manner of occurrence. 8. P.W. 2 has been tendered for cross-examination. P.W. 3, Umesh Chandra Mishra supports the prosecution version. At paragraph 3 he too has stated that the dispute is because of outlet of water which is through the field of Brahmdeo Mandal. There is nothing in the evidence of this witness which would lead this Court to conclude that his evidence should be rejected as being false and untrue. He supports the prosecution version. He admits that there was a counter case filed by the appellant’s side against them. He also admits that the occurrence had taken place because of the problem in irrigation of the field. Attention of this witness has been drawn to the statement given before the Investigating Officer regarding the manner of occurrence and the injuries received by the parties in the counter case. 9. He also admits that the occurrence had taken place because of the problem in irrigation of the field. Attention of this witness has been drawn to the statement given before the Investigating Officer regarding the manner of occurrence and the injuries received by the parties in the counter case. 9. The next witness P.W. 5 Bachcha Dubey is an injured in this case. He supports the prosecution version and admits that the occurrence took place because of irrigation of the field. Surprisingly this witness states at paragraph 10 that the Investigating Officer had not examined him in this case. Apart from this fact there is no other reason why this Court should disbelieve the evidence of P.W. 5. 10. Nityanand Dubey, the informant has been examined as P.W. 7. He supports the case made out in the First Information Report in his chief. He admits that he went to the place of occurrence when he heard his brother’s voice and the voice of the accused persons. It is admitted by all the witnesses that the occurrence took place at about 6 P.M. in the evening and that several persons came to the place of occurrence when they heard the sound of raised voices. The informant has supported the First Information Report. 11. On consideration of the evidence, it is apparent that there was a case and counter case regarding the same occurrence. It is also an admitted fact that the occurrence had taken place because of a dispute between the parties with respect to irrigation of the field. The Trial Court while considering the evidence has come to the conclusion that the occurrence is true and has convicted the appellant for 3 years considering that 13 years have passed before this case could be taken up for trial. 12. Now after a gap of more than 24 years, this Court does not feel it proper to send the appellant to jail and, therefore, dismisses this appeal by altering the sentence to period already undergone and further directs the appellant to pay a fine of Rs. 1,000/-. Failure to pay fine would lead to R.I. for six months. 12. The Trial Court shall issue notice to the appellant to deposit the said fine within a period of four months of valid service of notice. 1,000/-. Failure to pay fine would lead to R.I. for six months. 12. The Trial Court shall issue notice to the appellant to deposit the said fine within a period of four months of valid service of notice. The fine should be paid to Nityanand Dubey or his legal heir in case he is not alive. The Trial Court shall also issue notice to the informant for receiving fine from the Trial Court. The appellant shall be discharged from liability of his bail bond subject to payment of fine. 13. This appeal is dismissed for the aforesaid observations.