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2013 DIGILAW 519 (PAT)

Sarbada Nand Pandey v. State of Bihar

2013-04-17

RAJENDRA KUMAR MISHRA

body2013
ORAL JUDGMENT Rajendra Kumar Mishra, J. Head the parties. 2. This Criminal Revision is directed against the judgment and order dated 19.08.2002 passed in Sessions Trial No. 434 of 1995 by the court of 1st Additional Sessions Judge, Saran at Chapra whereby the petitioners were held guilty under Section 323/34 of the Indian Penal Code instead of Section 307/34 of the Indian Penal Code and sentenced to undergo simple imprisonment for two months and also directed to pay fine of Rs.200/- which would be payable to informant by way of compensation. In default of payment of fine the further simple imprisonment for one month. 3. The prosecution case in brief is that the informant, Ram Pravesh Pandey (C.W.2) gave his Fardebyan (Ext.1) on 10.05.1995 at about 4.40 A.M. at Sadar Hospital, Chapra before the Sub-Inspector, Mathura Prasad of Chapra Town Police Station to the effect that in the preceding night at about 2-2.30 O’ clock he had slept on the Varamdah of his clothes shop and on hearing an alarm he woke up. In the meantime, Sarbadanand Pandey, son of Kamlakar Pandey caught him and his brother Akshyabar Pandey gave the Farsa blow on his head, as a result of which he sustained injury. On alarm being raised by him, Nand Kumar who had also slept there woke up and called his family members and they carried him at Sadar Hospital, Chapra for his treatment. The cause of occurrence is said to be the old land dispute. 4. On the basis of fardebyan of the informant, Ram Pravesh Pandey (C.W.2), as recorded on 10.05.1995, Chapra Town P.S. Case No. 108 of 1995 was instituted under Sections 452, 323, 324 and 307 of the Indian Penal Code. The police on investigation of the case submitted the chargesheet against the petitioners in the aforesaid Sections and on taking cognizance of the offence the case was committed to the court of Sessions where petitioners were charged under Section 307/34 of the Indian Penal Code for trial. 5. In support of its case, prosecution examined three witnesses, namely, Munna Sharma (P.W.1), Ram Naresh Pandey (C.W.1) and Ram Pravesh Pandey (C.W.2) who is the informant of the case. 6. 5. In support of its case, prosecution examined three witnesses, namely, Munna Sharma (P.W.1), Ram Naresh Pandey (C.W.1) and Ram Pravesh Pandey (C.W.2) who is the informant of the case. 6. The learned Ist Additional Sessions Judge, Saran at Chapra on consideration of the materials and evidence available on the record held guilty to the petitioners and sentenced them as stated above through the impugned judgment and order. 7. The learned counsel appearing on behalf of the petitioners submits that the learned Ist Additional Sessions Judge, Saran at Chapra has committed illegally in relying on the evidence of informant, Ram Pravesh Pandey (C.W.II), which is without corroboration and he has also doubted the Fardebyan saying that it was not read over to him by Daroga Ji and he had put his signature on the same but on showing the Fardebyan (Ext.1) told that Fardebyan is not bearing his signature. It has also been submitted that informant has himself admitted that there is old land dispute between him and the petitioners. 8. P.W. 1, Munna Sharma, who is the Advocate’s Clerk, has formally proved the Fardbyan which is marked as Ext. 1, but he has stated in his cross-examination that Fardebyan was not written before him and he has no knowledge about the case. 9. C.W.1, Ram Naresh Pandey, who is the brother of the informant Ram Pravesh Pandey (C.W.-2), has stated in his evidence that on 10.05.1995 at about 2.30 O’ clock, he woke up on sound of Nand Kumar, who is tea-shopkeeper. He informed him that accused Akshibar Pandey and Sarvadanand Pandey have assaulted to his brother Ram Pravesh Pandey (C.W.-2). He went there and found that his brother Ram Pravesh Pandey (C.W.2) pooled with blood and he disclosed that Sarbadanand Pandey had caught hold him and Akshyabar Pandey gave the Farsa blow on his head. This witness has further stated in his cross-examination that there was litigation regarding land under Sections 144 and 145 of the Cr.P.C. and the accused are his cousin. 10. C.W.2, Ram Pravesh Pandey, who is the informant of the case has stated in his evidence that on 10.05.1995, he had slept in his shop. At about 2.30 O’ clock in the night he woke up on hearing an alarm then saw that accused Sarbadanand Pandey and Akshyabar Pandey were present there. 10. C.W.2, Ram Pravesh Pandey, who is the informant of the case has stated in his evidence that on 10.05.1995, he had slept in his shop. At about 2.30 O’ clock in the night he woke up on hearing an alarm then saw that accused Sarbadanand Pandey and Akshyabar Pandey were present there. He tried to flee away, but Sarbadanant Pandey caught hold him and Akshyabar Pandey gave the Farsa blow on his head, as a result of which he sustained injury. Thereafter both the accused fled away. After sometime, he called Nand Kumar who was also slept there at his shop who woke up and called his brother Ram Naresh Pandey (C.W.I). In the meantime, many persons gathered there and carried him at Chapra Hospital for his treatment. The police came there and recorded his statement, but the same had not been read over to him. While he wanted to put his L.T.I. due to injury but Daroga Ji told him to put his signature, thereafter, he put his signature on the Fardebyan. Upon seeing the Fardebyan this witness has stated that this Fardebyan is not bearing his signature which is marked as Ext. 1. 11. On perusal of record it appears that the doctor who examined the informant Ram Pravesh Pandey (C.W.2) has not been examined even the informant has also doubted the Fardebyan saying that the same was not read over to him and he put his signature on Fardebyan (Ext.1), but on seeing the Fardebyan he told that his signature is not on the Fardebyan (Ext.1). As such the conviction and sentence of the petitioners on the basis of uncorroborated testimony of informant Ram Pravesh Pandey (C.W.2) is unjustified and bad in law. 12. In the result this criminal revision is allowed. The impugned judgment and order dated 19.08.2002 is set aside and the petitioners are acquitted of the charge and discharged from the liabilities of their bail bonds.