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2012 DIGILAW 1269 (PAT)

Yugeshwar Singh v. State Of Bihar

2012-09-07

SHEEMA ALI KHAN

body2012
JUDGMENT Sheema Ali Khan, J. This appeal arises out of judgment passed in Sessions Trial No. 302 of 1990 by the 2nd Additional Sessions Judge, Vaishali at Hajipur by which the appellant has been convicted under Section 324 of the Indian Penal Code to undergo R.I. for two years. Three accused persons have been acquitted by the aforesaid judgment and order. 2. The prosecution case, as per the First Information Report lodged by Yudagi Singh, is that his brother Yugeshwar Singh along with his son and wife variously armed came to the field and asked the informant as to why he was working in the field which according to Yugeshwar Singh belonged to him. The informant objected, as a result of which, Yugeshwar Singh gave a farsa blow on the head and the wife and son assaulted Judagi Singh by means of a lathi. It is also alleged that Radha Singh, daughter of Yugeshwar Singh also assaulted the informant with lathi. It is alleged that the occurrence took place due to a partition dispute. 3. The defence of the appellant is that Judagi Singh had assaulted the appellant, when, the appellant had gone to demand the money which his brother had borrowed from him, for which a complaint petition has been filed, which has been marked as Exhibit-A and the injury has been marked as Exhibit-B. The judgment has also been produced and marked as Exhibit-D. The judgment in the counter case is marked as Exihibit-6. 4. The question that arises in this case is as to whether a case has been made out under Section 323 of the Indian Penal Code and whether the appellants could have been convicted on the basis of the evidence that has been led before the Trial Court. 5. Altogether seven witnesses have been examined in this case on behalf of the prosecution. P.W.5 is Dr. Gyan Bhushan who had examined the informant. He has found three injuries; two injuries on the skull and one injury on the finger, caused by a sharp cutting weapon. All the injuries are simple in nature. It has also been admitted by the doctor that the informant was advised an X-ray. 6. P.W.6 was posted as a Radiologist in the Sadar Hospital. The evidence of P.w.6 reveals that the X-ray plate indicates that a portion of the left radius and shaft of the ulna were fractured. 7. All the injuries are simple in nature. It has also been admitted by the doctor that the informant was advised an X-ray. 6. P.W.6 was posted as a Radiologist in the Sadar Hospital. The evidence of P.w.6 reveals that the X-ray plate indicates that a portion of the left radius and shaft of the ulna were fractured. 7. The Investigating Officer Radha Mohan Sharma has been examined as P.W.7 and according to this witness he did not find any disturbance at the place of occurrence nor did he find any sign of blood at the place of occurrence. According to the Investigating Officer he has not examined P.Ws.2, 3 and 4 while investigating the case. 8. P.W.1 Judagi Singh in the informant of this case. He supports the case as made out in the First Information Report in his examination-in-chief. In the cross-examination, this witness has stated as follows: ^^lcls igys ;qxs’oj ekjkA Qjlk dikj ij dgk¡ yxk ;kn ugha gSA eS ugha dg ldrk fd fdldh ykBh dgk¡ yxh dkj.k eSa Qjlk ds ekj ls fxj x;k eSa csgks’k ugha gqvk FkkA esjk f’kj mÙkj if’pe fxjk FkkA xeNh vkSj deht [kwu ls fHkxk Fkk FkksMk&FkksMkA** According to this witness he has stayed in the hospital for over a month. 9. P.Ws. 2, 3 and 4, namely, Parmweshwar Singh, Ram Balak Singh and Suresh Singh have not been examined during the investigation. In the chief, they have supported the case of the prosecution. It is admitted by these witnesses that they have not been examined by the Investigating Officer and that a counter case was filed by Yugeshwar Singh, the appellant, alleging that informant of the present case and his son had assaulted Yugeshwar Singh. As far as the injury report is concerned. The appellant is responsible for one injury, i.e. the incised wound on the head. The other injuries could not have been caused by a sharp cutting weapon as such, obviously they were caused either by falling down or by a lathi as alleged by the informant. The sharp cutting injures on the head is not grievous in nature, it is a simple injury as opined by the doctor. 10. The question then arises as to whether the case has been made out under Section 323 of the Indian Penal Code. The sharp cutting injures on the head is not grievous in nature, it is a simple injury as opined by the doctor. 10. The question then arises as to whether the case has been made out under Section 323 of the Indian Penal Code. In a case of this nature where there is a dispute and a counter dispute between the family members with respect to the land, arising out of difference between them regarding partition of the property, it cannot be said that there was an intention to inflict the injury that would be fatal in nature or likely to cause the death of a person. The occurrence took place when the appellant saw the informant interfering with the so called possession of a portion of a piece of agricultural land. It is also apparent that the evidence of P.Ws. 2, 3 and 4 cannot be taken into consideration as they have come for the first time before the Trial Court to give evidence regarding the occurrence. Such witnesses, who had not been examined by the police under Section 161 of the Code of Criminal Procedure should be rejected by the Court unless there is a good explanation regarding their non-examination at the stage of investigation. It would also appear from Exhbit-6 that the informant has been acquitted giving him the benefit of doubt as the Court found that the prosecution could not fully prove its case. 11. Taking all the facts into account, this Court concludes that this is a case under Section 323 of the Indian Penal Code based on the evidence of the sole witness and the informant in this case. None of the witnesses named in the First Information Report have come forward to support the prosecution version nevertheless, this Court finds that the evidence of the informant is supported by the evidence of the doctor. There is no reason to disbelieve the evidence of the doctor when he has specifically stated that Judagi Singh has received sharp cutting injuries on his head. However, considering that almost 23 years elapsed since the occurrence took place, it is not proper to send the appellant to jail after such a long time. 12. Accordingly, I alter the sentence as period already undergone and direct the appellant to pay a sum of Rs. However, considering that almost 23 years elapsed since the occurrence took place, it is not proper to send the appellant to jail after such a long time. 12. Accordingly, I alter the sentence as period already undergone and direct the appellant to pay a sum of Rs. 2000/- as compensation to the informant under Section 357A of the Code of Criminal Procedure, failing which he is liable to undergo R.I. for six months. The Court below shall issue notice to the appellant Yugeshwar Singh to pay the compensation within a period of four months from the date of valid service of notice. Notice should also be sent to the informant to receive the compensation amount. 13. In the result, this appeal is dismissed with the alteration in the sentence. Appeal dismissed.