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2012 DIGILAW 154 (PAT)

Shyam Bihari Yadav v. State of Bihar

2012-01-25

MANDHATA SINGH

body2012
JUDGMENT Mandhata Singh, J.-Statement (fardbeyan) of one Ashok Kumar Singh has been made basis for the F.I.R. which in short is that on 7.6.1993 at about 6.30 a.m. he was lying on a cot near his boring house situated at village Faridpur. In the meantime, accused persons namely Ganauri Yadav, Bal Kishun Yadav, Lal Kishun Yadav, Chutkul Yadav, Tipan Yadav along with 8-10 unknown persons of village Baghar came there, started to enter the boring house of informant and when he asked as to where they were going, one of the accused persons ordered to assault, thereupon all the accused persons assaulted the informant by means of lathi brutally with intention to kill. Informant fell down on the ground and again he was assaulted by the above accused persons, on alarm witnesses namely Rajendra singh, Bhushan Singh and Sudarsan Singh of village Raghopur, Chotan Singh and Jairam Singh of village Govindpur came there and saved the informant. 2. Cause of occurrence is said earlier occurrence of assault between the villagers of Baghar and villagers of informant's village for which a case was lodged. 3. All the accused persons faced trial for the offence under Sections 307, 323, 341 and 147 of the Indian Penal Code which ended in conviction to Ganauri Yadav under Sections 147, 323, 341 and 324 of the Indian Penal Code and rest under Sections 147, 323 and 341 of the Indian Penal Code. 4. In all 11 witnesses are examined in the case. They are PW 1 Rajendra singh, PW 2 Bhushan SinghPW 3 Sudarsan Singh, PW 4 Syaram Singh, PW 5 Chhotan Singh, PW 6 Jairam Singh, PW 7 Rakshapal Singh, PW 8 Ashok Kumar informant of the case, PW 9 Ashok Kumar Singh son of Ram Ekbal, PW 10 Dr Birendra Kumar Singh and PW 11 Dr Dhirendra Narayan Singh. Of witnesses, PWs 5 and 7 are tendered witnesses to state nothing on the point of taking place of the incident. Rest are stating about taking place of the incident specifying coming of accused along with others and their assault to the informant. Of witnesses, PWs 5 and 7 are tendered witnesses to state nothing on the point of taking place of the incident. Rest are stating about taking place of the incident specifying coming of accused along with others and their assault to the informant. In the F.I.R. though there is no mention about causing of assault by means of khanti but that is alleged (stated) by all the material witnesses which was in conformity with their statement under Section 161, Cr.P.C. Informant even in his statement under Section 161, Cr.P.C. when again examined after recording of fardbeyan states about assault by accused Ganauri Yadav by means of khanti 5. Finding no relief on the point of conviction, sentence is challenged rather a prayer is made to take sympathetic and lenient view on the point of sentence more specifically it is submitted on behalf of learned amicus curiae that enmity was there in between the parties for an earlier incident and the case was pending in between the parties and the allegation of assault is vague only. 6. It is further submitted that all the accused appellants are first offender having no criminal antecedent at all and if that is tagged with enmity between the parties, appellants are entitled for relief enumerated under Probation of Offenders Act. Appellant Ganauri Yadav is convicted for the offence under Section 324 of the Indian Penal Code punishable with three years rigorous imprisonment and has been convicted also for the same. 7. Incident is of the year 1993, all the accused persons faced trial till the year 1999 and the appeal also remained pending till today. So, in discussed suggested circumstance I am also of the view that accused appellants are entitled for the relief enumerated under Sections 3 and 4 of the Indian Penal Code. 8. On the observations made above in the facts and circumstances of the case, the appeal is dismissed with modification on the point of sentence and conviction to the appellants for the respective offences is affirmed. 8. On the observations made above in the facts and circumstances of the case, the appeal is dismissed with modification on the point of sentence and conviction to the appellants for the respective offences is affirmed. On the point of sentence appellants Shyam Behari Yadav, Ram Ishwar Yadav, Ram Laddu Yadav, Tipan Yadav, Bal Kishun Yadav, Lal Kishun Yadav and Chutkul Yadav @ Chutkula Yadav are released after due admonition and accused appellant Ganauri Yadav is released on his entering into a probation bond for a period of six months undertaking to keep peace and be of good behaviour during such period. A period of two months is allowed for execution of such bond. 9. As the appellants are on bail, they shall stand discharged from liabilities of their respective bail bonds save and except appellant No.4 who shall be so discharged from liability of his bail bond only on furnishing of his probation bond. 10. Copy of the judgment along with lower Court records be sent back to the trial Court forthwith. 11. Let a copy of first page and last page of this judgment be handed over to learned amicus curiae for needful. Order accordingly.