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2013 DIGILAW 236 (PAT)

Nagendra Singh v. State of Bihar

2013-02-20

HEMANT KUMAR SRIVASTAVA

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JUDGMENT (CAV) Hemant Kumar Srivastava, J.- This criminal appeal has been preferred against the judgment of conviction and sentence order dated 20.09.2001 passed by Sri Hem Shankar Kumar Singh, 4th Additional Sessions Judge. Samastipur in Sessions Trial No. 426 of 1999 by which and where under he convicted all the appellants for the offences punishable under Sections 323. 337 and 504 of the Indian Penal Code and all the appellants were sentenced to undergo rigorous imprisonment for one year under Section 323 of the Indian Penal Code. six months under Section 337 of the Indian Penal Code and two years under Section 504 of the Indian Penal Code., Furthermore, all the appellants were convicted for the offences punishable under Sections 147, 148 and 149 of the Indian Penal Code and they were sentenced to undergo rigorous imprisonment for two years under the above stated sections. Furthermore, appellant No.4, namely. Pappu @ Prahlad Singh was convicted for the offence punishable under Section 379 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for two years under the above stated section and appellant No. 1. namely, Nagendra Singh and appellant No.3. namely, Manoj Singh were convicted for the offence punishable under Section 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years under Section 324 of the Indian Penal Code. The learned Additional Sessions Judge directed that all the sentences would run concurrently. 2. In brief, the prosecution case is that Court witness No.7, namely. Vijay Singh gave his fardbeyan to AS.I., Vidyapati Nagar Police Station on 16.07.1999 at about 10:00 a.m. to this effect that on 15.07.1999 at about 05:00 p.m. he was having a talk with Bangali Singh to leave passage and then construct the latrine near his house but in the meantime. all the appellants being armed with lathi, bhala,. chhura and danda came at his door and appellant No. 1. Nagendra Singh ordered the others to kill him and after that appellants. Manoj Singh and Nagendra Singh assaulted him with lathi and chhura respectively. Having heard the noise his, mother came to his rescue but appellant Akhilesh Singh assaulted her with lathi whereas Saraswati Devi was assaulted by appellant. Manoj Singh with chhura and Jalka Devi and Amit Kumar were assaulted by appellants. Pappu Singh. Rinku and Sintu by bricks. lathi, khanti and danda. Having heard the noise his, mother came to his rescue but appellant Akhilesh Singh assaulted her with lathi whereas Saraswati Devi was assaulted by appellant. Manoj Singh with chhura and Jalka Devi and Amit Kumar were assaulted by appellants. Pappu Singh. Rinku and Sintu by bricks. lathi, khanti and danda. Furthermore, he stated that appellant Pappu @ Prahlad Singh snatched gold ornaments from Saraswati Devi. The reason behind the aforesaid occurrence was said to be land dispute. 3. On the basis of aforesaid fardbeyan, Vidyapati Nagar P.S. Case No. 46 of 1999 under Sections 147, 148, 149, 323, 324, 447, 337, 379 and 504 of the Indian Penal Code was registered. The matter was investigated and after completion of investigation charge-sheet for the offences punishable under Section 307 and other minor sections of the Indian Penal Code was submitted. The cognizance of the offences was taken and the case was committed to the Court of Sessions, in usual way. 4. The appellants were put on trial and accordingly, all the appellants were jointly charged for the offences punishable under Sections 323, 337, 504 and 307 of the Indian Penal Code. Appellant No.1. Nagendra Singh and appellant No.3, namely. Manoj Singh were jointly charged for the offence punishable under Section 324 of the Indian Penal Code and appellant No.4, namely. Pappu @ Prahlad Singh was separately, charged for the offence punishable under Section 379 of the Indian Penal Code and similarly, all the appellants were jointly charged for the offences punishable under Sections 147, 148 and 149 of the Indian Penal Code. 5. In course of trial, prosecution examined three witnesses but learned trial Court examined witness No. 1 to witness No. 10 as Court witnesses under Section 311 of the Cr PC. The statements of appellants were recorded under Section 313 of the Cr PC before examination of Court witnesses. No evidence was adduced on behalf of the appellants in Support of their defcnce. 6. The learned trial Court having analyzed the materials available on the record came to conclusion that prosecution could not succeed to prove charge under Section 307 of the Indian Penal Code and accordingly, all the aforesaid appellants were acquitted of the charge framed under Section 307 of the Indian Penal Code but convicted the appellants for other offences in the manner as stated above. 7. 7. Learned counsel appearing for the appellants, half heartedly challenged the impugned judgment of conviction but he seriously challenged the impugned order of sentence contending that the alleged occurrence took place in the year 1999 and according to prosecution case, the aforesaid incident occurred on account of very petty issue and appellants have already suffered a lot and therefore, the appellants should be given benefit of provision of Probation of Offenders Act. 8. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order. 9. I went through the lower Court record. I find that injured witnesses as well as informant supported the story of assault and the doctor, who had examined the injured persons of this case after the alleged occurrence, has also proved this fact that after the alleged occurrence injured persons of this case were examined by him and he found injuries on their person. Although. there is a very minor variance in the evidence of witnesses examined in course of trial but it is apparent that the aforesaid variance does not go to the root of the prosecution case and if the evidence available on the record is looked in its totality, the guilt of the appellants is well proved and therefore, in my view, the learned trial Court rightly convicted the appellants but so far as conviction under Section 337 of the Indian Penal Code is concerned, in my view, when the appellants had already been convicted under Section 323 of the Indian Penal Code, there was no need to convict the appellants under Section 337 of the Indian Penal Code and accordingly, the conviction of the appellants under Section 337 of the Indian Penal Code is set aside. 10. So far as quantum of sentence is concerned, admittedly, the alleged occurrence took place on 15.07.1999 and the appellants were convicted on 20.09.2001 and they are still suffering on account of pendency of the present appeal and, therefore, sufferance of appellants is greater than any punishment which could have been inflicted upon them. Moreover, the appellants are agnates of informant and other injured persons and there was land dispute between them. Furthermore, the appellants have no criminal record and the alleged occurrence took place on petty issue on account of sudden altercation. Moreover, the appellants are agnates of informant and other injured persons and there was land dispute between them. Furthermore, the appellants have no criminal record and the alleged occurrence took place on petty issue on account of sudden altercation. Furthermore, I find that the learned trial Court without assigning any reason for not giving the benefit of either under Section 360 of the Cr PC or the Probation of Offenders Act passed the order of sentence and. therefore, in my view, the learned trial Court ought to have given the benefit of provision of Probation of Offenders Act to the appellants. 11. On the basis of aforesaid discussions, the impugned judgment of conviction is confirmed with slight modification as stated above but so far as order of sentence is concerned, instead of sending the appellants to jail for serving out their sentences as imposed by the learned trial Court vide impugned order of sentence dated 20.09.2001. I think it proper to direct the learned trial Court to let the appellants, except appellants No. 1 and 3, go free after due admonition under the provision of Probation of Offenders Act. So far as appellants No. 1 and 3 are concerned, they should be given the benefit of Section 4 of Probation of Offenders Act. 1958. For the aforesaid purposes, the appellants must appear before the trial Court and the learned trial Court shall pass a fresh sentence order in the light of this order. The learned trial Court shall take appropriate step to procure the attendance of appellants for the above stated purposes. 12. In the aforesaid manner, this appeal is partly allowed with modification in judgment of conviction and sentence order. Appeal partly allowed.