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2013 DIGILAW 354 (PAT)

Balister Raut @ Balister Rai v. State of Bihar

2013-03-14

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT Hemant Kumar Srivastava, J. Heard learned counsel for the appellants as well as learned Addl. Public Prosecutor for the State and perused the record. 2. The appellants have challenged their conviction and sentence dated 4.5.2001 passed by learned Addl. Sessions Judge VIII, East Champaran, Motihari in Sessions trial No. 126 of 1993. Appellant Nos. 1 and 2 were convicted by learned Addl. Sessions Judge VIII, East Champaran, Motihari for the offence punishable under Section 324/34 of the Indian Penal Code and accordingly they were sentenced to undergo rigorous imprisonment for three years under Section 324 of the Indian Penal Code and rest appellants were convicted for the offence punishable under Section 323 of the Indian Penal Code and accordingly they were sentenced to undergo rigorous imprisonment for one year for the above stated offence. 3. In brief the prosecution case is that PW 4 namely Raj Narayan Shukla filed complaint case on 4.11.1991 in the Court of learned Chief Judicial Magistrate, East Champaran, Motihari stating therein that on 28.11.1991 at about 3 p.m. while he was sitting at his door the appellants and other accused armed with lethal weapons came there and assaulted him and furthermore when his brother came to his rescue he too was assaulted by the appellants and others. 4. After enquiry prima facie case was found and accordingly appellants were summoned to face trial. Appellants were put on trial and they were charged for the offences punishable under Sections 148, 307/34, 326, 147, 323/34, 379/34 and 307 read with Section 149 of the Indian Penal Code. 5. The appellants denied the charge and claimed to be tried. 6. The prosecution in course of trial examined altogether five witnesses and also got exhibited some documentary evidence. The statements of appellants were recorded under Section 313 of the Cr PC in which they reiterated their innocence. 7. The defence also examined one witness and got exhibited some documentary evidence. 8. The learned trial Court having considered the materials available on record acquitted the appellants for the offences punishable under Section 307 read with Sections 149, 379 and 147 of the IPC whereas the appellants were convicted and sentenced in the manner as stated above. 9. Learned counsel appearing for the appellants submitted that the learned trial Court failed to appreciate the evidence on right perspective and committed error in convicting and sentencing the appellants. 10. 9. Learned counsel appearing for the appellants submitted that the learned trial Court failed to appreciate the evidence on right perspective and committed error in convicting and sentencing the appellants. 10. On the other hand learned Addl. Public Prosecutor appearing for the State supported the impugned judgment of conviction and sentence arguing that injured as well as the informant supported the story of assault and furthermore PW 5 proved injury found on the person of injured (PW 2) and PW 4 and therefore the learned trial Court rightly convicted and sentenced the appellants. 11. As I have already stated that altogether five prosecution witnesses were examined in this case and out of the aforesaid prosecution witnesses. PW 2 Narsindhu Raman Shukla is injured of this case and he stated that on the alleged date of occurrence he was at his mill and having heard the noise he came at the door of PW 4 where he saw the appellants being armed with deadly weapons and further this witness stated that the appellants assaulted PW 4 with the aforesaid weapons. 12. PW 4 is the informant .and another injured of this case and this witness too supported the story of assault. 13. PW 1 stated that at the time of alleged occurrence he was in the mill and having heard the noise he came at the door of PW 4 and found that the appellants were also present there. This witness further stated that the appellants assaulted PW 4 and when PW 2 came to his rescue he was too assaulted by the appellants. 14. PW 3 also claimed to be eye-witness of alleged occurrence and supported the story of assault. There is nothing in the depositions of the aforesaid witnesses to discredit their testimonies and therefore story of assault was proved by the above stated prosecution witnesses. 15. PW 5 Mahesh Prasad Singh examined both the injured and this witness proved injury reports of PW 2 and PW 4. 16. Although PW 5 has mentioned in his injury report of PW 2 that he had sustained grievous injury but the learned trial Court disbelieved the aforesaid findings and came to the conclusion that PW 2 had sustained simple injury and accordingly the learned trial Court convicted the appellant Nos. 16. Although PW 5 has mentioned in his injury report of PW 2 that he had sustained grievous injury but the learned trial Court disbelieved the aforesaid findings and came to the conclusion that PW 2 had sustained simple injury and accordingly the learned trial Court convicted the appellant Nos. 1 and 2 for the offence punishable under Section 324/34 of the IPC whereas rest appellants were convicted under Section 323 of the IPC. 17. On perusal of the oral evidence of the witnesses as well as documentary evidence available on record it appears that there were series of litigations between the parties and there was previous enmity between them. Moreover the learned trial Court found that simple marpit had taken place between the parties. Admittedly alleged occurrence took place in the year 1991 and the appellants are facing trauma of this case since filing of complaint case. There is nothing on the record to show previous criminal history of the appellants and therefore in my view the ends of justice will meet if the sentence of the appellants is reduced and therefore instead of sending jail to the appellants it will be proper to sentence the appellants for the period already undergone by them in course of trial as well as during the pendency of this appeal. Accordingly their sentence is altered to the extent as stated above. 18. On the basis of the aforesaid discussions this criminal appeal stands dismissed with modification in the sentence as stated above. Appeal dismissed.