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2013 DIGILAW 1369 (PAT)

Siya Beldar v. State of Bihar

2013-12-03

ANJANA PRAKASH

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JUDGMENT : Smt. Anjana Prakash, J. The appellants have been convicted under Section 307/34, IPC and sentenced to RI for five years. The appellant No. 1 has been convicted under Section 324, IPC and sentenced to RI for one year by the judgment dated 21.6.2000 in S.Tr. No. 97 of 1994 by the Sessions Judge, Nalanda at Biharsharif. 2. The case of the informant is that on 14.11.1992 he heard a cry upon which he rcached the place from where the cries were being raised and met Binda Manjhi and who told him his brother Gariban Ram is crying. He saw his brother Gariban Ram injured. He told him that Siya Beldar had assaulted him with a dagger on account of which he became unconscious. 3. The defence of the appellants was that the brother of appellant No. 2 had lodged a case against injured Gariban Rai before the present occurrence and it is for this reason that he had been falsely implicated in the transaction. 4. During trial the prosecution has examined three witnesses out of whom PW 1, Gariban Ram has stated that on the date of occurrence when he was returning home after escorting accused who had been arrested by the ASI and reached the field in between village Beldha and Damodarpur he saw accused Siya Beldar and Vijay Prasad who surrounded him and accused, Siya Beldar thereafter instigated Vijay Prasad then he himself proceeded to assault him with dagger on his face and on the left eye as also with the butt of the dagger on the mouth due to which his teeth were broken. He started screaming at which the witnesses gathered and then he was brought to the police station where he became unconscious. He has admitted the fact that Vijay Prasad, appellant No. 2 who was not named in the First Information Party was on litigating terms with him. 5. PW 2, Sheo Thakur stated that while he was sitting at his house he suddenly heard hulla at which he went to the place of occurrence and saw accused appellant No. 2 assaulting Gariban Ram with fists and slaps whereas appellant No. 1 was assaulting him with dagger. The accused then fled away. 6. 5. PW 2, Sheo Thakur stated that while he was sitting at his house he suddenly heard hulla at which he went to the place of occurrence and saw accused appellant No. 2 assaulting Gariban Ram with fists and slaps whereas appellant No. 1 was assaulting him with dagger. The accused then fled away. 6. PW 3, Madan Ram the informant and brother of injured Gariban Ram stated that when he rushed to the place of occurrence on the cries of his brother he found the appellants assaulting his brother after which they fled away and his brother was treated at the hospital. 7. Neither the Doctor nor the Investigating Officer has been examined. The non-examination of the Doctor according to me is fatal to the Prosecution inasmuch as in absence of injury report it would be difficult to conclude that the injuries were of a nature which would suggest the fatal intent of the accused and thus it is difficult to uphold the conviction of the appellants under Section 307, IPC. Moreover, the Prosecution Case is that after the first injury the appellant No. 1 assaulted the informant on the mouth with the butt of the dagger. Had the intention been to kill the dagger could have been used for a second assault. This belies the intent of the appellant No. 1. 8. So far as appellant No. 2 is concerned it appears he was not initially named by the informant in the first Information Report. Evidently, the appellant No. 2 has been roped belatedly. In absence of any explanation for the same and non-examination of the Investigating Officer it would be difficult to accept the developed prosecution case with regard to the appellant No. 2. Hence, for the appellant No. 2, the appeal is allowed and the order of conviction and sentence passed against him on 21.6.2000 by the Sessions Judge, Nalanda at Biharsharif in S.Tr. No. 97 of 1994 is set aside. The appellant No. 2 is discharged of the liability of his bail bonds. 9. As for the appellant No. 1, for the reasons stated above I hold that at best a case under Section 323, IPC is made out. 10. Hence, the Appeal is dismissed with regard to appellant No. 1 with modification in sentence to one already undergone by him during trial. Appeal dismissed.