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2013 DIGILAW 154 (PAT)

Durendra Kamkar v. State of Bihar

2013-02-01

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT (ORAL) Hemant Kumar Srivastava, J.- Heard learned counsel for the appellants and learned Additional Public Prosecutor for the State and perused the record 2. This criminal appeal has been preferred against the judgment of conviction and sentence order dated 06-09-2001 passed by learned Additional Sessions Judge-III. Gopalganj in Sessions Trial No. 141 of 1994 by which and where under, he convicted the appellants for the offence punishable under Sections 324/34 of the Indian Penal Code and. accordingly, sentenced the appellant Nos. 1 & 2 to undergo rigorous imprisonment for three years under Section 324 of the Indian Penal Code whereas; appellant No.3 was ordered to be released on furnishing bonds of Rs. 2.000/-(two thousand) with two sureties of the like amount each for a period of two years to be of good behaviour and keep peace during the aforesaid period. 3. The prosecution case, in brief, is that PW 3 Gorakh Kamkar gave his fardbeyan to S.I. of Gopalganj Police Station on 26-05-1993 at about 5.30 p.m. in Sadar Hospital. Gopalganj to this effect that on the same day at about 11.00 p.m., while he was at his door appellants and one other started digging earth in front of his house upon which, he made protest which led to an altercation and appellant No.3 ordered the others to kill the PW 3 (informant) and his daughter and son and thereafter appellants No. 1 & 2 went running to their home and brought farsa and after that, appellant No. 1 gave farsa blow to him causing injury on his head and again appellant No. 1 repeated his farsa blow on his left hand. He tried to flee from there but appellants and one other encircled him and. seeing this, his son namely. Banarsi Kamkar came running to his rescue but appellant No. 3 again ordered the others and thereafter appellant No. 2 gave farsa blow which hit on the back of his son. His daughter, namely. Hemanti Kumari tried to save Banarsi Kamkar but appellant No. 1 also gave farsa blow to her which, caused injury on back side of her waist. The occurrence was witnessed by his wife. Sona Devi, daughter-in-law. Kanti Devi, co-villager. Purushottam Tiwary. Nagendra Tiwary, Nityanand Tiwary and others. The villagers brought all the injured to Kuchaikot Government Hospital from where, all the injured persons were referred to Gopalganj and. The occurrence was witnessed by his wife. Sona Devi, daughter-in-law. Kanti Devi, co-villager. Purushottam Tiwary. Nagendra Tiwary, Nityanand Tiwary and others. The villagers brought all the injured to Kuchaikot Government Hospital from where, all the injured persons were referred to Gopalganj and. thereafter, they were brought to Gopalganj Sadar Hospital on tractor. In Gopalganj Sadar Hospital, all the injured were admitted and thereafter the doctor gave information to police and having got the information police reached there and recorded his fardbeyan. 4. On the basis of aforesaid fardbeyan of the PW 3. Gopalganj P.S. Case No. 30 of 1993 under Sections 324. 307/34 of the Indian Penal Code was registered and after investigation charge-sheet was submitted against the appellants whereas; one accused Shankar Kamkar was not sent up for trial. Cognizance of the offence was taken and the case of the appellants was committed to the Court of Sessions in usual way. 5. All the appellants were jointly charged for the offences punishable under Sections 307/34 of the Indian Penal Code. whereas; appellant Nos. 1 & 2 were jointly charged for the offence punishable under Section 324 of the Indian Penal Code and appellant No. 1 was separately charged for the offence punishable under Section 326 of the Indian Penal Code. The appellants denied the charges and claimed to be tried. 6. In support of its case, the prosecution examined, altogether five witnesses and got exhibited injury reports, formal FIR etc. The statements of appellants were recorded under Section 313 of the Cr PC in which, they denied the prosecution story. No evidence was adduced by the appellants in support of their defence. 7. The learned trial Court, having considered the materials available on the record. acquitted the' appellants of the charges framed under Sections 307/34 and 326 of the Indian Penal Code but convicted all the appellants for the offence punishable under Section 324/34 of the Indian Penal Code and sentenced them in the manner as stated above. 8. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order arguing that prosecution could not succeed to prove the place of occurrence as well as manner of occurrence and the I.O. of this case, was not examined by the prosecution and. therefore, non-examination of the I.O. caused serious prejudice to the appellants. 8. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order arguing that prosecution could not succeed to prove the place of occurrence as well as manner of occurrence and the I.O. of this case, was not examined by the prosecution and. therefore, non-examination of the I.O. caused serious prejudice to the appellants. He further submitted that learned trial Court has not appreciated the evidences available on the record in perspective way and erroneously convicted and sentenced the appellants passing impugned judgment of conviction and sentence order. 9. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that all the injured supported the prosecution case and the doctor has 'proved the injury reports of the injured persons and therefore, prosecution succeeded to prove this fact that on the alleged date of occurrence, the injured persons of this case, were assaulted by the appellants in the manner as stated by PW 3 in his fardbeyan. 10. On perusal of evidences available on the record, I find that PW 4, Dr. Janak Lal Bishwakarma has proved the injury reports of the injured persons as Ext 1series. This witness stated that on 26-05-1993, he examined PW 1, PW 2 and PW 3 and found one incised bleeding wound and defuse tenderness on the person of PW 2 Banarsi Kamkar and in his opinion injury No. 1 of PW 2 was caused by sharp cutting weapon; such as farsa, gadansa etc. He further stated that on the same day, he examined PW 3 and found two incised wounds and defuse tenderness over the body and according to his opinion, incised .wounds of PW 3 were caused by sharp cutting weapons, such as farsa. He further stated that on the same day he examined PW 1 Hemanti Kumari and one incised bleeding wound and tenderness were found on her person. He opined that injury No.1 of PW 1 had been caused by farsa. Therefore, this witness has proved this fact that PWs ], 2 & 3 had sustained injury on their persons. Although, defence challenged the genuineness of injury reports arguing that the aforesaid injury reports were manufactured documents but there is nothing on the deposition of this witness to show this fact that he prepared Ext-l series in collusion of injured persons of this case. 11. Although, defence challenged the genuineness of injury reports arguing that the aforesaid injury reports were manufactured documents but there is nothing on the deposition of this witness to show this fact that he prepared Ext-l series in collusion of injured persons of this case. 11. PW 1 Hemawanti Devi, PW 2 Banarsi Kamkar, PW 3 Gorakh Kamkar are injured persons of this case and have supported the manner of occurrence as well as place of occurrence saying that on the alleged date of occurrence, they were assaulted by the appellants in the manner as stated by PW 3 in his fardbeyan (Ext-3). 12. PW 5 Nagendra Mishra is a formal witness and he has proved some documents and there is nothing worth mentioning in his deposition. 13. On careful scrutiny of impugned judgment as well as materials available on the record. I find that the trial Court rightly convicted the appellants for the offence punishable under Sections 324/34 of the Indian Penal Code and there is no scope for this Court to interfere with the impugned judgment of conviction. 14. So far as quantum of sentence is concerned, learned counsel appearing for appellants submitted that the alleged occurrence took place in the year. 1993 and appellants faced trial before the trial Court till year. 2001. It is further contended by him that the appellants are next door neighbours of PW 3 and the alleged occurrence took place on account of dispute of the drainage and there was no intention of the appellants to kill the PW3 and other injured rather a sudden fight took place between the parties. It is further pointed out by him that in course of trial. appellant No. 1 remained in jail custody for more than ten months and similarly. appellant No. 2 remained in jail custody for near about two months, so both the appellants have sufficiently been punished and no purpose would be served if they are sent to jail to serve out their sentences. I am in agreement with the submission of learned counsel for the appellants and therefore, instead of sending the appellant Nos. 1 & 2 to jail to serve out their sentences, the end of justice would be met if the appellant Nos. 1 & 2 are sentenced to period already undergone by them in course of trial and, accordingly, it is held that appellant Nos. 1 & 2 to jail to serve out their sentences, the end of justice would be met if the appellant Nos. 1 & 2 are sentenced to period already undergone by them in course of trial and, accordingly, it is held that appellant Nos. 1 & 2 are sentenced to the period already undergone by them in course of trial. So far as sentence of appellant No.3 is concerned, the same is affirmed. 15. On the basis of aforesaid discussions, this Cr. Appeal stands dismissed with aforesaid modification of sentence in the manner as stated above. Appeal dismissed.