Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 183 (PAT)

Ram Bahadur Yadav v. State of Bihar

2014-02-06

AKHILESH CHANDRA

body2014
JUDGMENT : Akhilesh Chandra, J. Heard the learned counsels appearing on behalf of the parties. 2. This appeal has been preferred by the four appellants, who have been convicted for the offences punishable under Sections 448, 323 and 307/34 of the Indian Penal Code and sentence to undergo rigorous imprisonment for one year each under Sections 448 and 323 of the Indian Penal Code and seven years each under Section 307 of the Indian Penal Code and also to pay a fine of Rs. 2,000/- each, as awarded on 27thJune, 2002 by Additional Sessions Judge, Fast Track Court No. 3, Darbhanga in Sessions Trial No. 276 of 1992 arising out of Bahadurpur P.S. Case No. 125 of 1990. However, all the sentences are to run concurrently. 3. The prosecution case in short as reveal from Exhibit-1, the fardbeyan of PW 6, namely, Ram Swarath Yadav, recorded on 1st November, 1990, is that in the previous morning there was some dispute between the kids of the family, in retaliation whereof, the appellants armed with lathi and bhala arrived at his door and started abusing which was objected by his father (died during trial), who on protest, assaulted by Nand Bihari Yadav (appellant No.4) by means of lathi. On alarm, the informant and Ram Julum Yadav arrived and protested, wherein, Ram Bahadur Yadav (appellant No. 1) gave bhala blow upon the informant causing injury on his palm and Shiv Tahal Yadav (appellant No. 3) caused injury by bhala upon Ram Julum Yadav at his eyebrow and Lal Babu Yadav (appellant No. 2) assaulted the informant by lathi since the iron rod part of the bhala had already been damaged. 4. During trial, the prosecution has examined altogether eight witness besides producing following documentary evidence :- (i) Exhibit-1 :- Fardbeyan. (ii) Exhibit-2 :- Injury report of Ram Julum Yadav. (iii) Exhibit-2/1 :- Injury report of Ram Swarth Yadav. (iv) Exhibit-3 :- C.C. of judgment of G.R. 2175/90. On the other hand, in defence, there are two witnesses without any documentary evidence. 5. (ii) Exhibit-2 :- Injury report of Ram Julum Yadav. (iii) Exhibit-2/1 :- Injury report of Ram Swarth Yadav. (iv) Exhibit-3 :- C.C. of judgment of G.R. 2175/90. On the other hand, in defence, there are two witnesses without any documentary evidence. 5. It is contended by learned counsel appearing on behalf of the appellants that the father of the informant, who was, as alleged, initially assaulted has not been examined nor he was examined by the doctor for alleged treatment and neither in the fardbeyan nor as witness during trial any of the prosecution witnesses including the two injured persons, i.e., PWs 4 & 6 have said about re-petition of blow given either of the appellants. The doctor, namely, Vinod Kumar Gupta (PW 8) has examined PWs 4 & 6 and found the following injuries which are simple in nature :- (1) On the person of PW 4, namely, Ram Julum Yadav :- (i) Incised cut over left Zygona of face of the size 1" x 1/2" x skin deep. X-ray reveal normal bony outline. (2) On the person of PW 6, namely, Ram Swarath Yadav :- (i) Bruise on the right half of the back 3" x 1/2". (ii) Cut wound over knuckle of ring finger of the left hand 1-1/2 c.m. x 1/2 c.m. x skin deep. 6. Learned Additional Public Prosecutor while supporting the findings of the Court below submitted that since the informant's father was dead during trial he could not be produced as a witness and taking into consideration the assault by lathi which could not caused any fatal injury to him, he was not taken to doctor for any treatment but the witnesses arc consistent about his assault, so his non-examination or non-production of the injury report, cannot be proved fatal for the prosecution. 7. Out of total eight prosecution witnesses examined. PW 1, namely, Bhola Yadav, has stated about the prosecution version. Nothing relevant could be taken to disbelieve him in cross-examination. Similar is the position of PW 2, namely, Siyaram Yadav, who also accepts about counter case and assault and institution of present one just in retaliation thereof. PW 3, namely, Ram Parichan Yadav, has also stated about the prosecution version and about lathi blow given by Nand Bihari Yadav. Nothing relevant could be taken to disbelieve him in cross-examination. Similar is the position of PW 2, namely, Siyaram Yadav, who also accepts about counter case and assault and institution of present one just in retaliation thereof. PW 3, namely, Ram Parichan Yadav, has also stated about the prosecution version and about lathi blow given by Nand Bihari Yadav. PW 4, namely, Ram Julum Yadav, one of the injured, has also stated the prosecution version and about the injuries sustained by him at the instance of appellant No. 3. PW 5, namely, Bhushan Yadav, likewise other witnesses, has also narrated the prosecution version. PW 6, namely, Ram Swarath Yadav, is the informant-cum-another injured person and there is also nothing from his evidence to disbelieve. And, similar is the position of PW 7, namely, Jittu Yadav. 8. The defence by examining two witnesses, namely, Shri Prasad Yadav (D.W. 1) and Ram Nandan Yadav (D.W.2), has tried to state the undisputed position, i.e. counter version. 9. Undisputedly, the nature of injuries sustained by the injured persons are simple in nature and the appellant Nos. 1 & 3, namely, Ram Bahadur Yadav and Shiv Tahal Yadav, have used bhala, inflicting injuries upon the injured persons on their non-vital parts and in spite of having sufficient opportunity did not repeat. It cannot be said that they ever intended to kill anyone and the remaining appellants, i.e., appellant Nos. 2 & 4, namely, Lal Babu Yadav and Nand Bihari Yadav @ Nand Bihar Yadav, are armed with lathi and inflicted injuries upon the informant's father of such a nature which did not require even first aid. 10. In view of the above, their conviction, for the offence under Section 307 of the Indian Penal Code, is not at all sustainable rather the offence committed by the appellant Nos. 1 & 3 attracts Section 324 of the Indian Penal Code, whereas, remaining appellant Nos. 2 & 4 under Section 323 of the Indian Penal Code and since all of them arrived at the house of the informant, their conviction, for the offence under Section 448 of the Indian Penal Code, needs no interference. 11. 1 & 3 attracts Section 324 of the Indian Penal Code, whereas, remaining appellant Nos. 2 & 4 under Section 323 of the Indian Penal Code and since all of them arrived at the house of the informant, their conviction, for the offence under Section 448 of the Indian Penal Code, needs no interference. 11. Having regard to the facts and circumstances discussed above and the appellants were all along on bail during trial, but suffered detention after conviction for two months till they are released pursuant to order in this appeal, subject to payment of fine of Rs. 1,000/- (Rupees One Thousand) each (half of the awarded amount) within a period of two months from today, their sentence, as awarded by the trial Court, is reduced as already undergone. 12. With the above observation, this appeal is hereby dismissed. 13. Let this order be at once communicated to the Court concerned for needful through FAX at the cost of the appellants. Appeal dismissed.