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2013 DIGILAW 1437 (PAT)

Birendra Pande v. State of Bihar

2013-12-11

ANJANA PRAKASH

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JUDGMENT Smt. Anjana Prakash, J. The appellant has been convicted under Sections 341 and 323, IPC and Section 27 of the Arms Act and sentenced to RI for one year and two years respectively by the Additional Sessions Judge-II, Bhojpur at Ara in S.Tr. No. 284 of 1993 by judgment and order dated 27.8.2001. 2. The case of the Informant, Rambachan Pandey is that on 28.7.1992 at 9 P.M. while he was participating along with the rest of the singing party in a Kirtan the accused persons variously armed entered the temple and Gorakh Pandey and Hare Ram Pandey assaulted the pujari, Harish Tiwary and took away the idols and also some other articles of the temple. The reason for the occurrence was that they wanted to assert their control over the temple Birendra Pandey also assaulted the informant with a butt of the gun twice on the waist and thereafter fired which hit him on his knee. When he fell down his wife came who was also assaulted with fists and slaps later he was taken to the hospital where he was given medical attention. 3. During trial the prosecution examined twelve witnesses. PW 1, Shyam Bihari, PW 2, Janardan Upadhyay and PW 4, Bhutti Singh are hearsay witnesses. PW 5, Jairam Upadhyay is also partially hearsay witness. PW 3 is the wife of the Informant and an eye-witness. PW 6, Ram Bachchan Gond is the Informant. PW 7, Shirish Tiwary is the pujari of the temple and one of the injured. PW 8, Arshad Alam is the Doctor who examined the injured Informant. PW 9, Mohammad Nayeem is the Investigating Officer who did not turn up for the cross-examination. PW 10, Dr. Krishna Kumar Singh, Radiologist who proved his report on X-ray (Ext.-3) and (Exts.-2 and 2/1) respectively. PW 11, Murat Ram is a formal witness, PW 12 who proved the indoor patient registered at Sadar Hospital, Ara was also more or less formal in nature. 4. On behalf of the defence one witness, Ramji Pandey who was also charge-sheet witness has been examined to deny the prosecution version. 5. The hearsay evidence of PW 1, Shyam Bihari Pandey is inadmissible since he has not disclosed the source of information. 6. 4. On behalf of the defence one witness, Ramji Pandey who was also charge-sheet witness has been examined to deny the prosecution version. 5. The hearsay evidence of PW 1, Shyam Bihari Pandey is inadmissible since he has not disclosed the source of information. 6. PW 2, Janardan Upadhyay has supported the factum of occurrence and that when he arrived he saw the accused Birendra Pandey firing on the Informant causing bullet injury below the knee of the right leg. PW 3, Taramani Devi, wife of the Informant is also on the same point. 7. PW 4, Bhutti Singh saw gunshot injury on the leg of the informant and is hearsay on the manner of occurrence. He thus proved the factum of the occurrence. 8. PW 5, Jairam Upadhyay did not see any part of the occurrence and is only on the factum of occurrence. 9. PW 6, the Informant stated that the appellant assaulted him with a butt of the fire-arms and thereafter causing injuries below his knee. 10. PW 7, the pujari of the temple had stated that he was hit by accused, Gorakh Pandey but he was not examined by the Doctor and thus it appears that apart from PW 6 no other injured has been medically examined in the present case. 11. PW 8 examined the informant on 29.7.2002 and found two injuries one caused by hard and blunt substance whereas other was caused by fire-arm. Some bullets were seen to be embedded in the leg. However, the opinion was that the injuries were simple. 12. PW 10 has merely proved the X-ray report of the informant. 13. I find from the prosecution case that the motive and genesis of the occurrence was control over the temple which was claimed by the parties who were agnates and the consistent evidence of all the witnesses which is medically corroborated is entirely trustworthy. Hence I am of the view that prosecution has succeeded to prove its case beyond all reasonable doubt. 14. Hence, the conviction is maintained. However, considering that the appellant has remained in custody for about one month the sentence is reduced to one already undergone by him during trial. 15. In the result, the appeal is dismissed with the aforesaid modification. Appeal dismissed.