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2014 DIGILAW 1181 (PAT)

Munna Tiwary v. The State of Bihar

2014-12-01

GOPAL PRASAD

body2014
JUDGMENT Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. These ten appellants have been convicted under Sections 147, 148, 323 and 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year for the offence under Section 147 of the Indian Penal Code, two years for the offence under Section 148 of the Indian Penal Code, six months for the offence under Section 323 of the Indian Penal Code and three years for the offence under Section 324 of the Indian Penal Code with fine of Rs.1,000/- each and in default of fine three months rigorous imprisonment. The appellant nos. 3 and 4 have also been convicted under Sections 379 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year for the offence under Section 379 of the Indian Penal Code. However, it has been ordered that all the sentences shall run concurrently. 3. The prosecution case, as alleged in the First Information Report, by the informant Rajendra Tiwary alleging therein inter alia, that at about 6:00 P.M. there was exchange of abuses between full-brother of the informant, namely, Nawal Kishore Tiwary and neighbour of the informant, namely, Munna Tiwary with regard to cutting of ridge and when the dispute proceeded, the informant tried to pacify the matter, in the meantime, Munna Tiwary said that he will kill and rushed towards his house and after five minutes ten appellants as well as Ashu Tiwary and Amarendra Tiwary armed with lathi danda came and when they reached at the place of occurrence, Munna Tiwary ordered to kill and all the accused persons started assaulting. It is further alleged that Munna Tiwary gave farsa blow on the head of the informant and when the son of the informant Pappu Kumar Tiwary and his nephew Gorakh Nath Tiwary came to the rescue of the informant then Munna Tiwary also ordered to kill them. Munna Tiwary assaulted Pappu Kumar Tiwary and Gorakh Nath Tiwary on their head. It is further alleged that Rakesh Tiwary snatched a Sonata wrist watch and a silver Hanumani chain worth Rs.500/- from Pappu Kumar Tiwary and Anirudh Tiwary snatched Rs.1100/- from the pocket of the son of the informant. 4. Munna Tiwary assaulted Pappu Kumar Tiwary and Gorakh Nath Tiwary on their head. It is further alleged that Rakesh Tiwary snatched a Sonata wrist watch and a silver Hanumani chain worth Rs.500/- from Pappu Kumar Tiwary and Anirudh Tiwary snatched Rs.1100/- from the pocket of the son of the informant. 4. On the First Information Report investigation proceeded and after submission of charge-sheet against ten accused persons and final form against Ashu Tiwary and Amarendra Tiwary cognizance taken, case committed to the Court of Sessions and charges framed under Sections 307, 379, 324, 323, 147, 148, 149 and 504 of the Indian Penal Code. During trial ten witnesses were examined on behalf of the prosecution as well as documentary evidence adduced which include the injury report, fardbeyan and formal First Information Report. The trial court taking into consideration the evidence of the witnesses convicted the appellants as mentioned above. However, taking into consideration the injury report that only incised wound on the head of the informant inflicted by Munna Tiwary and there was no any injury of bone cut, acquitted the appellants for the offence under Section 307/149 and 326 of the Indian Penal Code holding that there was no intention of the accused to kill but convicted and sentenced as mentioned above at the outset. 5. Leaned counsel for the appellants, however, challenged the judgment of conviction and order of sentence recorded by the learned lower court. It has been contended that there is delay in lodging the First Information Report. The ocular and medical evidence are contradictory and there is no inconsistency. The genesis of the occurrence has not been proved and place of occurrence has not been established. It has further been contended that except the allegation of assault by Munna Tiwary there are general and omnibus allegation of assault against other co-accused persons and the witnesses have not supported the prosecution case in material particular with specific allegation of assault by the appellants except Munna Tiwary and there is tendency to implicate the entire family members and hence, submitted that the judgment of conviction and order of sentence recorded by the learned lower court are not sustainable in the eye of law. It has also been contended that the appellant no. It has also been contended that the appellant no. 1 Munna Tiwary during investigation and trial had remained in jail for about eleven months and since the occurrence is of the year 2006, hence, the sentence for the period of three years is unreasonable and requires to be reconsidered. 6. Learned counsel for the State, however, opposed the contentions raised by the learned counsel for the appellants and submits that there is allegation of assault and there are injuries on the person of the informant, his son and nephew hence, the judgment of conviction and order of sentence recorded by the learned lower court is sustainable. 7. However, from the First Information Report, itself it is apparent that there is specific allegation of assault by Munna Tiwary on the person of the informant, his son, Pappu Kumar Tiwary and his nephew Gorakh Nath Tiwary. However, the witnesses have supported the prosecution case that the occurrence took place at the Darbaza of the informant and witnesses supported the prosecution case with specific allegation against Munna Tiwary having armed with farsa and other accused persons with lathi, iron rod etc. There is allegation of assault by Munna Tiwary on the head of the informant as well as Pappu Kumar Tiwary and Gorakh Nath Tiwary. However, the injury reports of the three injured show one incised wound on the head of the three injured i.e. the informant, Pappu Kumar Tiwary and Gorakh Nath Tiwary. However, the other injury is lacerated wound or tenderness and hence, substantial injury is only one injury on each injured. However, the other injuries are only simple or superficial and though the witnesses have supported the prosecution case about the assault by other accused persons but the allegation against the appellants other than appellant no. 1 Munna Tiwari are general and omnibus. There is no specific allegation that the other accused specifically assaulted any other. However, there is allegation that Rejesh Tiwary snatched Sonata wrist watch and silver Hanumani chain and Anirudh Tiwary snatched cash worth Rs.1,100/- from the pocket of the son of the informant Pappu Kumar Tiwary. However, the allegation itself appears to be vague and only ornamental in view of the fact that had there been intention to kill, the accused persons may not have snatched cash and wrist watch. However, the allegation itself appears to be vague and only ornamental in view of the fact that had there been intention to kill, the accused persons may not have snatched cash and wrist watch. However, some of the witnesses as P.W. 4 though stated specifically about the assault but their evidence do not inspire confidence as they identified only four accused persons and have stated that Anirudh Tiwary was not armed with any weapon and they were resolving the dispute. 8. Hence, having regard to the facts and circumstances of the case, the prosecution has not been able to prove the charges leveled against appellants except appellant no. 1 Munna Tiwary. However, the occurrence took place at about 6:00 P.M. and the First Information Report lodged at 7:45 A.M. There is delay in lodging the First Information Report. However, the delay is not as such to disbelieve and no prejudice has been shown in lodging the First Information Report. So far the allegation of assault by appellant no. 1, Munna Tiwary is concerned, there is specific allegation of assault against him and the medical evidence also supported the injury and the place of occurrence has been established at Darbaza of the informant. 9. There is general and omnibus allegation of assault by the appellants except appellant no. 1 Munna Tiwary and there is no specific allegation of assault by the other appellants. Hence, the judgment of conviction and order of sentence recorded against the other appellants except appellant no. 1 Munna Tiwary is hereby set aside in view of the fact that allegation against them are general and omnibus and no specific injury of assault attributed to the injured. 10. So far appellant no. 1 Munna Tiwary is concerned, there is specific allegation of assault against him by farsa but having regard to the fact that other appellants got acquitted of the charge under Sections 147 and 148 of the Indian Penal Code hence, the conviction of appellant no. 1 Munna Tiwary for the offence under Sections 147 and 148 of the Indian Penal Code is not sustainable and is hereby set aside. 11. However, having regard to the fact that appellant no. 1 Munna Tiwary for the offence under Sections 147 and 148 of the Indian Penal Code is not sustainable and is hereby set aside. 11. However, having regard to the fact that appellant no. 1 Munna Tiwary convicted for the offence under Sections 323 and 324 of the Indian Penal Code, he has remained in jail during investigation and trial for the period of eleven months and the occurrence is of the year 2006, the ends of justice shall meet by sentencing the appellant no. 1 for the period already undergone by him for the offence under Sections 323 and 324 of the Indian Penal Code. 12. So far the conviction of the appellant no. 3 Rakesh Tiwary and appellant no. 4 Anirudh Tiwary for the offence under Section 379 of the Indian Penal Code is concerned, from the nature of allegation and the evidence it is evident that these allegations are only ornamental beyond reasonable doubt and hence, the judgment of conviction and order of sentence recorded under Section 379 of the Indian Penal Code is hereby set aside against the appellant nos. 3 and 4. Hence, the appeal is allowed in part. Appeal partly allowed.