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2013 DIGILAW 699 (PAT)

Suresh Tanti v. State Of Bihar

2013-06-26

HEMANT KUMAR SRIVASTAVA

body2013
CAV JUDGMENT 1. This criminal appeal has been preferred against the judgment of conviction dated 08.09.2000 and order of sentence dated 11.09.2000 passed by learned 4th Additional Sessions Judge, Bhagalpur in Sessions Trial No. 773 of 1990 by which and whereunder he convicted the appellants for the offences punishable under Sections 426 and 307 read with Section 149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for one month for the offence punishable under Section 426 of the Indian Penal Code and to undergo rigorous imprisonment for five years for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code. However, both the sentences were ordered to run concurrently and the period already undergone by the appellants was ordered to be set off against the above stated sentences. 2. In brief, the prosecution case, is that P.W. 1, Kabir Choudhary gave his Ferdbeyan to S.I., Nathnagar police station on 28.06.1988 at about 11:30 hours in Budhiya Hospital, Nathnagar to this effect that on the same day at about 09:00 A.M. appellants being armed with deadly weapons were cutting the boundary of his field whereupon he went there and forbade them to do so but appellant no. 2, namely, Faudi Tanti ordered the others to assault him and after that appellant, Faudi Tanti gave one spade blow to him causing injury on his left hand. Furthermore, appellant no. 3, namely, Arjun Tanti gave farsa blow to him causing injury on his head. The rest appellants as well as one accused Pancha Tanti assaulted him with lathi. He further stated that his nephew Kamal Choudhary (P.W. 4) and his sons, namely, Arjun Choudhary (P.W. 5) and Janardan Chodhary (P.W. 6) came to his rescue but appellant no. 4, namely, Geno Tanti hurled bhala blow to Kamal Choudhary as a result of which he sustained injury on his right hand whereas appellant no. 3, namely, Arjun Tanti assaulted him with farsa causing injury on his head. The rest persons also assaulted his sons Arjun Choudhary and Janardan Choudhary with lathi. The witnesses, namely, Bhumi Choudhary (P.W. 3), Tulsi Choudhary (P.W. 2) and Naresh Choudhary came there and witnessed the occurrence. 3. 3, namely, Arjun Tanti assaulted him with farsa causing injury on his head. The rest persons also assaulted his sons Arjun Choudhary and Janardan Choudhary with lathi. The witnesses, namely, Bhumi Choudhary (P.W. 3), Tulsi Choudhary (P.W. 2) and Naresh Choudhary came there and witnessed the occurrence. 3. On the basis of aforesaid ferdbeyan, Nathnagar P.S. Case No. 123 of 1988 for the offences punishable under Sections 147, 148, 149, 324, 307, 323 of the Indian Penal Code was registered and accordingly, formal first information report was drawn up against the appellants and accused, Pancha Tanti for the above stated offences. The matter was investigated by the police and after completion of investigation, police submitted charge sheet against the appellants and accused, Pancha Tanti for the offences under Section 307 and other minor sections of the Indian Penal Code. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way. 4. All the appellants and co-accused, Pancha Tanti were put on trial and accordingly, all the appellants along with co-accused, Pancha Tanti were charged for the offences punishable under Sections 426, 307 read with Section 149 of the Indian Penal Code whereas appellant Faudi Tanti was separately charged for the offence punishable under Section 307 read with Section 109 of the Indian Penal Code. The charges were denied by the appellants. 5. In course of trial, prosecution examined, altogether, seven witnesses and also got exhibited injury reports as Exhibit-1 series. 6. During pendency of the trial, accused Pancha Tanti died and accordingly, the proceeding against him was dropped. 7. The statements of appellants were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence and claimed their false implication. The defence also examined one witness who proved para 17 of case diary as Exhibit-A. 8. From perusal of statements recorded under Section 313 of the Cr.P.C. as well as trends of cross examination of prosecution witnesses, it appears that defence of the appellants was total denial of prosecution story and they claimed their false implication on account of filing of previous criminal case against the prosecution party. 9. The learned trial court, having relied upon the testimonies of prosecution witnesses passed the impugned judgment of conviction and order of sentence in the manner as stated above. 10. 9. The learned trial court, having relied upon the testimonies of prosecution witnesses passed the impugned judgment of conviction and order of sentence in the manner as stated above. 10. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and order of sentence arguing that the learned trial court completely over-looked the materials available on the record and passed the impugned judgment of conviction and order of sentence on the basis of surmises and conjectures. Learned counsel appearing for the appellants further submitted that learned trial court failed to appreciate this fact that no X-ray reports or X-ray plates were produced by the prosecution in course of trial and in absence of X-ray plates as well as X-ray reports, it was very hard to believe that the injured had sustained grievous injury. He further submitted that the learned trial court also failed to appreciate this fact that even if the prosecution story assumed to be true in toto, then also, no case under Section 307 of the Indian Penal Code was made out but in spite of that the learned trial court convicted the appellants for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code. He also submitted that prosecution could not succeed to prove the place of occurrence as in para 17 of the case diary, the Investigating Officer incorporated the place of occurrence which shows that the place of occurrence was a plough land whereas the case of the prosecution is that the place of occurrence was a parti land. He further submitted that the Investigating Officer has not been examined by the prosecution and non-examination of Investigating Officer caused serious prejudice to the appellants. He also submitted that the learned trial court failed to appreciate this fact that the appellants had filed criminal case for the occurrence of the same day and the appellants had also sustained injury and, therefore, the prosecution party was aggressor. In the backdrop of the aforesaid submissions, learned counsel for the appellants prayed for setting aside the impugned judgment of conviction and order of sentence. 11. In the backdrop of the aforesaid submissions, learned counsel for the appellants prayed for setting aside the impugned judgment of conviction and order of sentence. 11. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and order of sentence arguing that not only informant (P.W. 1) but P.W. 4, P.W. 5 and P.W. 6 also supported the prosecution case and furthermore, P.W. 7, the doctor, who had examined the injured persons of this case, also proved the prosecution case. He further submitted that no doubt, the Investigating Officer has not been examined in this case but there was nothing on the record to show that any prejudice was caused to the appellants due to non examination of the Investigating Officer. He further submitted that so far as non production of X-ray reports and X-ray plates is concerned, admittedly, P.W. 7 proved this fact that the injured persons of this case had sustained injury and, therefore, even if X-ray reports and X-ray plates were not produced before the trial court, then also, it does not make any difference. 12. Admittedly, prosecution has examined, altogether, seven witnesses to prove its case and out of them P.W. 1, P.W. 4, P.W. 5 and P.W. 6 are said to be injured persons of this case. P.W. 2 is said to be an eye witness whereas P.W. 3 has been tendered by the prosecution. P.W. 7 is doctor who examined P.W. 1, P.W. 4, P.W. 5 and P.W. 6 just after the alleged occurrence. 13. P.W. 1 stated in his deposition that appellants and co-accused, Pancha Tanti were cutting boundary of his field which was situated towards southern side of his house. This witness also admitted that the house of appellants were situated towards western side of his house. Similarly, P.W. 2 stated that the alleged occurrence had taken place due to cutting of boundary of field of P.W. 1. P.W. 4, P.W. 5 and P.W. 6 also stated that the alleged occurrence took place due to cutting of boundary of field of P.W. 1. Similarly, P.W. 2 stated that the alleged occurrence had taken place due to cutting of boundary of field of P.W. 1. P.W. 4, P.W. 5 and P.W. 6 also stated that the alleged occurrence took place due to cutting of boundary of field of P.W. 1. Although, Exhibit-A is not admissible in evidence but since para 17 of the case diary has already been exhibited by the trial court in course of trial, I think it proper to peruse para 17 of the case diary which shows that Investigating Officer visited the place of occurrence and noted in the aforesaid paragraph of the case diary that the place of occurrence was a parti land situated towards southern side of house of P.W. 1. So far as plough land is concerned, the Investigating Officer has specifically mentioned that the aforesaid plough land was of appellants. Therefore, it is established by the above stated evidence that the place of occurrence of this case was parti land of P.W. 1 and there is no doubt to come on this conclusion that prosecution succeeded to prove the place of occurrence. 14. It has been argued on behalf of the appellants that appellants had lodged criminal case against the prosecution party for the occurrence of the same day and the appellants had sustained injury in the aforesaid occurrence and, therefore, the prosecution party was aggressor and the appellants had every right to defend themselves. 15. No doubt, the P.W. 1 has admitted in his deposition that the appellants had filed a criminal case against him and others for the occurrence of the same day but the appellants did not bring any injury report on record in course of trial and, therefore, it is very difficult to say as to whether the appellants had sustained any visible injury or not and, therefore, even if it assumed that the appellants had sustained injury in the aforesaid occurrence, then also, it was not a duty of prosecution party to explain the aforesaid injuries. Moreover, there is nothing on the record to show this fact that prosecution party was aggressor and the appellants caused injury to prosecution party in their private defence. 16. P.W. 1 stated that after the alleged occurrence he was taken to Budhiya hospital where his treatment was done. Moreover, there is nothing on the record to show this fact that prosecution party was aggressor and the appellants caused injury to prosecution party in their private defence. 16. P.W. 1 stated that after the alleged occurrence he was taken to Budhiya hospital where his treatment was done. P.W. 1 further stated that police came in hospital at about 11:00 A.M. and recorded his Ferdbeyan as well as his further statement. He stated that he remained in hospital for near about three months. P.W. 4, P.W. 5 and P.W. 6 also stated that their treatment was done in Budhiya hospital. 17. P.W. 7, Dr. M. Prasad stated that on 27.07.1988 he examined P.W. 1, P.W. 4, P.W. 5 and P.W. 6. This witness found two simple injuries caused by hard and blunt substance on the person of P.W. 4, one simple injury caused by hard and blunt substance on the person of P.W. 5, two simple injuries caused by hard and blunt substance on the person of P.W. 6 and three injuries on the person of P.W. 1. This witness stated that injuries no. 1 and 2 of P.W. 1 were simple in nature but he did not mention either in injury report of P.W. 1 or in his deposition as to which weapon was used for causing injury to P.W. 1. This witness kept his opinion reserved in respect of injury no. 3 of P.W. 1 and suggested for X-ray of the aforesaid injury. Therefore, it is clear from the deposition of P.W. 7 as well as from perusal of Exhibit-1/3 that P.W. 7 did not give any opinion in respect of injury no. 3 of P.W. 1 and suggested for X-ray of the aforesaid injury. Admittedly, neither any X-ray plate nor any X-ray report was produced before the trial court in course of trial and the reports of doctors who examined P.W. 1 after examination of P.W. 7 were exhibited under Section 294 of the Cr.P.C. Admittedly, both the aforesaid doctors were not examined by the prosecution. Admittedly, neither any X-ray plate nor any X-ray report was produced before the trial court in course of trial and the reports of doctors who examined P.W. 1 after examination of P.W. 7 were exhibited under Section 294 of the Cr.P.C. Admittedly, both the aforesaid doctors were not examined by the prosecution. Therefore, in my view, in absence of non examination of the aforesaid two doctors as well as in absence of non production of X-ray reports as well as X-ray plates, it cannot be said that P.W. 1 had sustained grievous injury and, therefore, I am of the opinion that prosecution has succeeded only to this extent that all the injured persons of this case had sustained simple injury on their person. 18. It is admitted case of the prosecution that the alleged occurrence took place on account of cutting of boundary of the field of P.W. 1 and, therefore, it is apparent that the alleged occurrence took place on account of land dispute. Furthermore, there is nothing on the record to show this fact that there was any intervening circumstance to prevent the appellants to fulfil their desire and, therefore, in my view, if the appellants had intention to commit the murder of P.W. 1, there was no intervening circumstance to prevent them to fulfil their desire and so, the application of Section 307 of the Indian Penal Code appears to be doubtful and I find that it is a case of simple assault. 19. On the basis of aforesaid discussions, I am of the opinion that the learned trial court committed error in convicting and sentencing the appellants for the offences punishable under Section 307 read with Section 149 of the Indian Penal Code and, at best, the appellants could have been convicted for the offence punishable under Section 323 of the Indian Penal Code and, therefore, the conviction of the appellants for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code is altered under Section 323 of the Indian Penal Code. 20. So far as conviction under Section 426 of the Indian Penal Code is concerned, I do not think it proper to interfere with the aforesaid conviction and in my view, prosecution has successfully proved its case for convicting the appellants for the offence punishable under Section 426 of the Indian Penal Code. 21. 20. So far as conviction under Section 426 of the Indian Penal Code is concerned, I do not think it proper to interfere with the aforesaid conviction and in my view, prosecution has successfully proved its case for convicting the appellants for the offence punishable under Section 426 of the Indian Penal Code. 21. As I have already discussed that the appellants have been found guilty for the offence punishable under Section 323 of the Indian Penal Code instead of Section 307 read with Section 149 of the Indian Penal Code, it would not be proper to send the appellants behind the bars and ends of justice will meet, if the appellants are sentenced to period already undergone by them in course of trial as well as during the pendency of this appeal. 22. On the basis of aforesaid discussions, this criminal appeal stands dismissed with modification in impugned judgment of conviction and order of sentence in the manner as stated above. Appeal dismissed.