Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 1396 (PAT)

Radhey Sadai v. State of Bihar

2012-10-01

SHEEMA ALI KHAN

body2012
SHEEMA ALI KHAN, J.:–The above named four appellants have been convicted by the 2nd Additional Sessions Judge in Sessions Trial No. 203 of 1992 for the offences punishable under Sections 307 and 323 of the Indian Penal Code to undergo rigorous imprisonment for four years. No separate sentence has been passed under Section 323 of the Indian Penal Code. 2. As per the case made out in the First Information Report by Shiv Shankar Bhagat. It is stated that he was going to his village early in the morning when the appellants stopped him and asked him not to pass through their lands, on which the informant is stated to have claimed that the lands belong to him, which resulted in the appellants assaulting him. The brother of the informant intervened and he too was assaulted by the appellants. On hearing the alarm, the uncle of the informant, namely, Ram Tahal Das also came to the place of occurrence and he too was assaulted. On hearing the sound of fight taking place, Kapileshwar Thakur, Nagey Thakur, Ram Mohan Jha and Ram Kumar Jha came to the place of occurrence and saw the appellants assaulting the informant and others. The informant went to the petitioner and lodged his fardbayan and from the Police Station, he along with the other injured persons were sent to the hospital for examination. Initially, a sanha was instituted which was later treated as fardbayan of the informant. The injury reports have been marked as Exhibits 1, 1/1 and 1/2 which have been sent to the Police Station on 02.08.1992. After which, PW 10 was appointed as the Investigating Officer of this case to examine the witnesses and the place of occurrence and submit chargesheet in this case. 3. The defence on behalf of the appellants is that the case was false and the injury reports have been produced at a belated stage and that the appellants have been dragged in this case due to land dispute. From the cross-examination, it would appear that a Harijan Baithka had been constructed on the land belonging to the informant by the appellants, which has resulted in six cases being filed by the informant against the appellants. On behalf of the defence, two witnesses have also been examined to indicate that the Harijan Baithka has been built by the appellants on the lands belonging to informant. 4. On behalf of the defence, two witnesses have also been examined to indicate that the Harijan Baithka has been built by the appellants on the lands belonging to informant. 4. To support the allegation as made out in the First Information Report, the prosecution has examined 11 witnesses, out of which PWs 9 and 11 are formal witnesses, PW 8 is the doctor whereas PW 10 is the Investigating Officer of this case. The other witnesses are eye-witnesses to the occurrence. 5. PW 1 Ram Mohan Jha is named in the First Information Report as a witness to the occurrence. He supports the prosecution version regarding the occurrence and states that he was 200 yards from the place of occurrence when it took place. He claims that he did not intervene in the ensuing fight that was taking place. He denies that he had stated before the Investigating Officer that the informant and another had fallen in the wheat field. The attention of the Investigating Officer has been drawn to the statement made by this witness as paragraph 10, wherein the Investigating Officer has specifically stated that PW 1 has stated that the informant and others have fallen in the wheat field when he reached at the place of occurrence. The argument on behalf of the appellants is that the place of occurrence has been changed. In fact, this argument is not tenable in view of the fact that while showing the place of occurrence, the informant had shown the route taken by him when the occurrence commenced, and eventually they were assaulted and fell down in the wheat field. In view of the statement made before the Court, there is no reason to disbelieve the deposition of PW 1. 6. PW 2 Nagey Thakur is also mentioned as a witness to the occurrence in the First Information Report. However, he has stated in his cross-examination that when he reached at the place of occurrence, he found that the appellants had left the place of occurrence. In view of the aforesaid statement, he cannot be treated as an eye-witness to the manner of assault. 7. PW 3 Ram Tahal Das is the uncle of the informant and one of the injured of this case. He supports the prosecution case and states that there is enmity between the parties and that there are two cases pending between them. 7. PW 3 Ram Tahal Das is the uncle of the informant and one of the injured of this case. He supports the prosecution case and states that there is enmity between the parties and that there are two cases pending between them. On consideration of evidence, this Court comes to the conclusion that the evidence of PW 3 cannot be disbelieved. 8. PW 4 Kapileshwar Thakur has claimed himself to be an eye-witness to the occurrence. He reached the place of occurrence on hearing the noise and saw the occurrence. The statement made in the cross-examination would indicate that he is not an eye-witness to the occurrence. 9. PW 5 Sheo Shankar Bhagat is the informant and one of the injured of this case. He supports the prosecution version. The appellants have tried to make out a case that this witness has not produced the discharge slip of the hospital to indicate that they were examined at the hospital and that they were discharged. PW 5 has stated that they had the papers, but have not been able to produce them. However, it is not very important as it is stated that the injured persons were not admitted in the hospital, rather they were examined and thereafter allowed to go back to their homes. It is next submitted on behalf of the appellants that this witness admits that there is a dispute between the parties, which has led to filing cases as many as 6 cases. He also admits the land dispute between the parties. The evidence of this witness is consistent regarding the assault by the appellants with lathis. 10. PW 6 Deo Shankar Bhagat came to the place of occurrence when he heard his brother shouting for help. He was at his wine shop which is about 10-12 feet from the place of occurrence. He claims that he received injuries when he was trying to intervene when his brother was assaulted by the appellants and it is, thus, apparent that this witness was injured in the occurrence. 11. PW 7 Md. Yusuf is an eye-witness to the occurrence. He is named in the First Information Report by the informant as a witness to the occurrence. This witness has stated to have come to his shop which is just nearby to the place of occurrence. 11. PW 7 Md. Yusuf is an eye-witness to the occurrence. He is named in the First Information Report by the informant as a witness to the occurrence. This witness has stated to have come to his shop which is just nearby to the place of occurrence. Nothing has been illicited from his evidence which would indicate that he was not present at the place of occurrence at the time of occurrence. 12. PW 8 is Dr. Shiv Shankar Jha. He has found simple injuries on Sheo Shankar Bhagat (the informant), Ram Tahal Das and Deo Shankar Bhagat. Regarding Deo Shankar Bhagat, it is said that the injury no. 1 which is abrasion ecchymosis on the both sides of the neck. According to the doctor, it would be dangerous to life. Although, no details have been given regarding the factors which would lead this Court to conclude that the injury on the neck was in fact dangerous to life or grievous in nature and as such, the opinion of the doctor is rather incomplete an cannot be made the basis of holding that the injury was dangerous to life. 13. PW 10 Ram Balak Singh is the Investigating Officer of this case. He admits that he had not recorded the further statement of Sheo Shankar Bhagat. According to the Investigating Officer, the informant and others had fallen in the wheat field and entered the land behind the house of the appellants. The evidence of the Investigating Officer is based on the statement of the informant. In the circumstances, it cannot be said that the prosecution has not been able to prove the place of occurrence. 14. After going through the evidence of all the witnesses as well as the doctor, it would appear that the Investigating Officer did not find a case under Section 307 of the Indian Penal. The evidence of the informant as well as the other witnesses on the other hand, would indicate that the occurrence took place on the spur of the moment and that the informant by himself at a time when the occurrence commenced and it was only later on that he was joined by PW 3 and who were also assaulted by the appellants. The manner in which the occurrence has been described does not indicate that there was any intention or that the appellants had pre-planned the occurrence and were at the place of occurrence in order to commit the crime which would lead this Court to the conclusion that they had no intention to badly injure the informant and others. The evidence of PW 1 specifically indicates that the villagers who had come to the place of occurrence had not intervened at the time when the occurrence had taken place. All these factors indicate that no case is made out under Section 307 of the Indian Penal Code. This fact is further supported by the evidence of the doctor who has found the injuries on the non-vital parts of the body, such as legs, thigh, back etc. 15. In the facts aforesaid, this Court concludes that the appellants cannot be held guilty for the offences under Section 307 of the Indian Penal Code. All the appellants have remained in custody for at least three weeks. The occurrence has taken place in the year 1990 and under such circumstances, this Court does not think it fit to impose the sentence of imprisonment in this case. The appellants are, therefore, convicted under Section 323 of the Indian Penal Code and are directed to pay a compensation of Rs. 300/- each to the informant within a period of four months from the date of valid service of notice by the Trial Court. The Trial Court shall also send a notice to the informant to receive the compensation amount on his behalf and on behalf of the other two injured persons. Failure to pay the compensation would entail simple imprisonment for three months. The appellants would be discharged from the liabilities of the bail bonds furnished earlier in this case only after payment of compensation amount. 16. In the result, this appeal is dismissed in the alteration of the sentence.