Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 1173 (PAT)

Ram Prasad Rai v. The State of Bihar

2014-11-27

GOPAL PRASAD

body2014
JUDGMENT Gopal Prasad, J. On repeated calls, no one appeared on behalf of the appellants. 2. Heard the learned counsel for the State. 3. Perused the record. 4. The appellants have been convicted under Sections 448 and 147 of the Penal Code and sentenced to undergo simple imprisonment for six months and, further, appellants, Uma Shankar Rai, Ram Bahadur Rai and Yadav Rai have been convicted under Section 323 of the Penal Code and sentenced to undergo simple imprisonment for six months. It has been ordered that the sentences shall run concurrently. 5. The prosecution case, as alleged in the first information report by the informant, Bidhata Mishrain, that at about 09.00 a.m. Jhapsi Rai, Chamru Rai, Bihari Rai and Ram Prasad Rai came to her door armed with lathi and asked her to execute deed with regard to the land in their favour and when the informant refused, Jhapsi Rai commanded to kill her otherwise she will not adhere to the demand. Thereafter, Uma Shankar Mishra, Pappu Paswan, Ram Bahadur Rai and Yadav Rai armed with lathi came and, thereafter, Ram Bahadur Rai and Yadav Rai assaulted her by the hoora of lathi (blunt portion of stick) and Uma Shankar Mishra as well as Raghu Paswan were pressing her neck by rope. It is, further, alleged that other accused persons demolished her house and on her hulla (alarm) Mahandra Naraiyan Mishra came to her rescue, then, he was assaulted by slaps and fists and, thereafter, they abused in filthy language. Thereafter, Shobha Kant Mishra, Awadhesh Rai, Rajendra Choudhary, Biltu Pandey, Hirday Choudhary, Ram Awatar Choudhary and others came and saved her from further assault. It is asserted that for demolish of the house she is at a loss of rupees five hundred. 6. On the fardbeyan, the first information report lodged and the police after investigation submitted charge sheet for offence under Section 307 and allied sections of the Penal Code. 7. On the charge sheet cognizance taken under Section 307 and allied sections of the Penal Code and the case was committed to the Court of sessions and after framing of the charge under Section 307 and allied section of the Penal Code, the trial proceeded. 8. 7. On the charge sheet cognizance taken under Section 307 and allied sections of the Penal Code and the case was committed to the Court of sessions and after framing of the charge under Section 307 and allied section of the Penal Code, the trial proceeded. 8. During the trial seven witnesses examined as P.W. 1, Mahendra Narayan Mishra, P.W. 2, Awadhesh Rai, P.W. 3, Smt. Vidhata Mishra, the informant, P.W. 4, Chulhai Pandey, P.W. 5, Biltu Pandey, P.W. 6, Hirday Narayan Choudhary, and P.W. 7, Rajendra Choudhary, and the trial Court convicted the appellants, as mentioned above. 9. However, taking into consideration the first information report and evidence on record, it is apparent that there is land dispute between the parties and a proceeding under Section 145 of the Criminal Procedure Code was going on between the parties There is case and counter case. The witnesses though have supported the prosecution case and have stated that the informant and P.W. 1, Mahendra Narayan Mishra, were assaulted, but, with regard to the description of the assault it is stated that the informant was assaulted by hoora (blunt portion of stick) fists and slaps and the neck of the informant was surrounded by rope and was pressed causing bruises on her neck. P.W. 1 has also stated that he has been assaulted by slaps and fists. However, so far the evidence is concerned, the brother of the informant has also been examined and they have also come to state about the occurrence claiming to be the eye witnesses. However, P.W. 6, the brother of the informant, in his cross examination, in paragraph 8 of his deposition, has stated that he is full brother of Bidhata Mishrain and Rajendra Choudhary and both the brothers do not live with Bidhata Mishrain, hence, this evidence does not inspire confidence. P.W. 1, the injured, Mahendra Narayan Mishra, has stated that with regard to the occurrence a counter case was also filed by Phool Rai Mishrain in which charge sheet has been submitted by the police. He has, further, stated that he was examined by doctor and he has showed injury to Dr. Yunus, but, neither the doctor nor the investigating officer has been examined. The occurrence is of the year 1986. 10. He has, further, stated that he was examined by doctor and he has showed injury to Dr. Yunus, but, neither the doctor nor the investigating officer has been examined. The occurrence is of the year 1986. 10. Hence, having regard to the fact that there is land dispute between the parties and there is case and counter case from both sides, some of the witnesses claiming to be the eye witnesses showed their non-presence at the time of occurrence and the injured, P.W. 1 though has stated that he was assaulted and examined by the doctor, but, the doctor has not been examined and injury report not proved and investigating officer has also not been examined causes prejudice to accused and the brother of the informant stated that they do not live together so their evidence does not inspire confidence, hence, I find that the order of conviction, recorded by the lower Court, is not sustainable and there is material contradiction regarding the assault by the witnesses. 11. Hence, the order of conviction, recorded by the lower Court, is hereby set aside and the appeal is allowed.