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2013 DIGILAW 156 (PAT)

Parma Chaudhary v. State of Bihar

2013-02-01

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT (ORAL) Hemant Kumar Srivastava, J. Heard learned counsel for the appellant 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 29-09-2001 passed by learned Additional Session Judge (Fast Track Court No. 1). Gopalganj in Sessions Trial No. 45 of 1989/78 of 2001 by which and whereunder, he convicted the appellant for the offence punishable under Section 326 of the Indian Penal Code and, accordingly, sentenced him to undergo rigorous imprisonment for a period of four years under the aforesaid section. 3. The prosecution case, in brief, is that PW 2 Ramdhari Choudhary gave his statement to Officer-in-charge. Mirganj Police Station on 27-05-1987 at about 7.55 a.m. to this effect that on the same day at about 6.00 a.m., she-goat of appellant was grazing latti in the field of Dharmdeo Choudhary. upon which he asked the appellant as to why he had left his she-goat which was grazing the latti of the land of Dharmdeo Choudhary but appellant be-Came furious and started abusing him. In the meantime, Amar Choudhary also came there and forbade the appellant to abuse but the appellant went running to his home and hurled one brick which hit on his head and blood started oozing out from his head and thereafter appellant brought acid from his house and sprinkled acid on his body causing injuries on his head, ear, cheek, chest, arms, abdomen and back. The aforesaid incident was witnessed by son of Dharmdeo Choudhary and others. 4. On the basis of aforesaid statement. Mirganj P.S. Case No. 139 of 1987 under Sections 337 & 334 of the Indian Penal Code was registered against the appellant. After investigation. charge-sheet under Sections 337. 324. 307. 326 of the Indian Penal Code was submitted against the appellant. Cognizance of the offence was taken and the case of the appellants was committed to the Court of Sessions, in usual way. 5. The appellant was charged for the offences punishable under Sections 326, 307 of the Indian Penal Code but he denied the charges and claimed to be tried. 6. Cognizance of the offence was taken and the case of the appellants was committed to the Court of Sessions, in usual way. 5. The appellant was charged for the offences punishable under Sections 326, 307 of the Indian Penal Code but he denied the charges and claimed to be tried. 6. In support of its case, the prosecution examined, altogether, seven witnesses and got exhibited signature of witness on FIR as Ext 1, injury report of PW 2 as Ext-2, photograph of PW 2 as Ext 2/A. supplementary injury report of PW 2 as Ext 2/B. formal FIR as Ext-3 and fardbeyan Ext-4. The statement of appellant was recorded under Section 313 of the Cr PC in which, he reiterated his innocence. No evidence was adduced by the appellant in support of his defence but from perusal of his statement recorded under Section 313. Cr PC, as well as trends of cross-examination of prosecution witnesses, it appears that the defence of appellant is his false implication by the PW 2 on account of land dispute. 7. The learned trial Court, having relied upon the testimony of PW 1. PW 2 and PW 6 as well as Ext 2 series convicted and sentenced the appellant in the manner as stated above whereas; acquitted the appellant of the charges framed under Section 307 of the Indian Penal Code. 8. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and sentence order arguing that according to statement of PW 2 the she-goat of the appellant was grazing latti of the field of Dharmdeo Choudhary but when the aforesaid Dharmdeo Choudhary was examined by the prosecution as prosecution witness No.3, the aforesaid witness has nowhere, stated that she-goat of the appellant was grazing latti of his field. He further submitted that two sons of aforesaid Dharmdeo Choudhary were examined by the prosecution, as prosecution witness No.4 namely. Subhadh Choudhary and prosecution witness No. 5 namely. Amar Chouidhary but the aforesaid witnesses also did not support this fact that on the alleged date of occurrence, the she goat of the appellant was grazing latti of their held and similarly. PW 1 has also not stated that she-goat of the appellant was grazing latti of the filed of PW 3 and. therefore, the proseuciton could not succeed to prove the genesis of the occurrence. PW 1 has also not stated that she-goat of the appellant was grazing latti of the filed of PW 3 and. therefore, the proseuciton could not succeed to prove the genesis of the occurrence. He further submitted that PW 1 admitted in his cross-examination that Bathan of appellant, PW 2 as well as his Bathan was recorded in the name of one Deokaliya who happens to be maternal grandmother of appellant and. therefore, the aforesaid fact clearly suggests that there was land dispute between the parties and reason of false implication of the appellant is nothing but only the aforesaid land dispute. He further submitted that the I.O. of this case was not examined by the prosecution and non-examination of the I.O. caused serious prejudice to the appellant. Lastly, he submitted that alleged occurrence took place on 27-05-1987 and appellant was convicted by the Court in the year. 2001 and. after that he preferred this appeal which remained pending for near about 11 years, so, more than 25 years have already been elapsed. He further submitted that appellant as well as PW 2 are next door neighbours and related with each others, so if the appellant is sent behind the bar to serve out his sentences, the peace and harmony, which has already been restored between the parties, will again be disturbed and no party will get any benefit and, therefore a lenient view should be taken in awarding sentence to the appellant, if otherwise he is found guilty for the offence. 9. In trial Court, altogether 7 prosecution witnesses were examined by the prosecution but prosecution witness Nos. 3. 4 & 5 have been declared hostile and out of the aforesaid prosecution witness, only PW 3. namely. Dharmdeo Choudhary has stated to this effect that after two days of the alleged occurrence, when he came to his home, he learnt that an altercation had taken place between the appellant and PW 2 on account of lands and after that, he went to Hathua hospital to see the PW 2. He further admitted that he found burn injuries on the person of PW 2 and PW 2 disclosed that it was appellant who threw acid on him. PW 4 & 5 have stated nothing. 10. He further admitted that he found burn injuries on the person of PW 2 and PW 2 disclosed that it was appellant who threw acid on him. PW 4 & 5 have stated nothing. 10. PW 1 Chandradeo Choudhary stated that on the alleged date of occurrence, he was sitting at his door and having heard the noise, he went running near PW 2 and saw that the appellant threw acid on the body of PW 2. He further stated that after the occurrence. PW 2 was taken to police station where his statement was recorded. This witness was cross-examined by the defence but except only minor contradictions. defence could not succeed to elicit anything from the deposition of this witness. 11. PW 2 Ramdhari Choudhary supported his case and stated that appellant hurled brick which hit on his head and after that, he threw acid on his body. He further stated that after the occurrence, he was taken to police station where his statement was recorded and after that, he was sent to hospital for treatment where his treatment was done. 12. PW 6 Dr. Ramesh Mishra stated that on 29-05-1987. he examined the PW 2 and found one lacerated wound l"x1/2"x/l2" on his head and superficial burn injuries were also found on different parts of body of PW 2. He further submitted that again on 16-06-1987, he examined PW 2 and found disfigurement of his face and other parts of body and accordingly, he opined that the burn injuries found on the person of PW 2, were grievous in nature. 13. PW 7 is a formal witness who proved formal FIR and fardbeyan. 14. On careful scrutiny of the evidence available on the record. 1 find that PW 2 has fully proved his case and his statement is corroborated by PW 1 and, furthermore, the statement of PW 2 is corroborated by PW 6 as well as Ext 2 series. 15. PW 7 is a formal witness who proved formal FIR and fardbeyan. 14. On careful scrutiny of the evidence available on the record. 1 find that PW 2 has fully proved his case and his statement is corroborated by PW 1 and, furthermore, the statement of PW 2 is corroborated by PW 6 as well as Ext 2 series. 15. So far as genesis of occurrence is concerned, no doubt PW 3, and his two sons i.e. PW 4 and PW 5 have been declared hostile but even if the deposition of PW 3 is taken into consideration, then also, he had admitted that on the alleged date of occurrence, he was not at his house and he came to his home after two days of the alleged occurrence and therefore, it is apparent from the statement of PW 3 that he had not Seen the she-goat of appellant grazing his field. Apart from this, PW 2 has stated in his deposition that on the alleged date of occurrence, she-goat was grazing latti of the Geld of PW 3, so, in the aforesaid circumstance, it cannot be said that prosecution could not succeed to prove the genesis of occurrence. So far as the land dispute between the parties is concerned, mere land dispute is not sufficient to discard the deposition of prosecution witnesses because it is settled principle of law that enmity cuts in both ways. 16. On the basis of aforesaid discussion. I come to conclusion that the learned trial Court has rightly convicted the appellant under Section 326 of the Indian Penal Code and there is no scope for this Court to interfere with the findings of conviction of the appellant. 17. So far as quantum of sentence is concerned, admittedly, the appellant has been sentenced to undergo rigorous imprisonment for a period of four years but admittedly, in course of trial as well as during pendency of this appeal, he spent in jail custody for near about four months. Furthermore, it is admitted position that the alleged occurrence took place in the year. 1987 and more than 25 years have elapsed since the occurrence. Furthermore, it is admitted position that the alleged occurrence took place in the year. 1987 and more than 25 years have elapsed since the occurrence. Furthermore, it is an admitted position that appellant and PW 2 are next door neighbours rather they are related with each other to some extent and therefore, in my view, it would not be proper to send the appellant behind the bar to serve out his sentences, particularly, in the above-said circumstances and end of justice' would be met, if the appellant is sentenced to the period already undergone by him during course of trial as well as during pendency of this appeal and furthermore, if some fine is imposed upon him. 18. Accordingly, a fine of Rs. 5.000/- is imposed upon the appellant and he is sentenced to the period already undergone by him in course of trial as well as during pendency of this appeal. The amount of fine shall be paid to the PW 2. informant of this case and furthermore, it is made clear that if the appellant fails to pay the aforesaid fine amount, he shall undergo simple imprisonment for six months. 19. On the basis of aforesaid discussions, this Cr. Appeal stands dismissed with modification in sentence order in the manner as stated above. Appeal dismissed.