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2014 DIGILAW 286 (PAT)

Hari Shankar Rai v. Ram Awadesh Rai

2014-02-25

AKHILESH CHANDRA

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JUDGMENT : Akhilesh Chandra, J. - Heard the parties. 2. Both the Appeals since arise out of the same judgment heard together and being disposed of by this common order. 3. All the five appellants have preferred these Appeals against their conviction for the offence under Sections 147, 148 and 307/149 of the Indian Penal Code. The solitary appellant in Crl. Appeal (SJ) No. 411 of 2002 is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2,000/- for the offences under Section 307/149 of the Indian Penal Code, in default whereof to undergo rigorous imprisonment for nine months as well rigorous imprisonment for two years for the offences under Section 148 of the Indian Penal Code. All the four appellants in Crl. Appeal (SJ) No. 399 of 2002 are sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- each for the offences under Section 307/149 of the Indian Penal Code in default to undergo rigorous imprisonment for six months. Hridaya Rai, Mithilesh Rai and Dinesh Rai arc also sentenced to undergo rigorous imprisonment for one year for the offences under Section 148 of the Indian Penal Code. Whereas appellant No. 1, Hari Shankar Rai was also sentenced to undergo rigorous imprisonment for six months for the offence under Section 147 of the Indian Penal Code. However, all the sentences are to run concurrently as awarded by 5th Additional Sessions Judge. Bhojpur, Arrah on 26th July, 2002 in Sessions Trial No. 13 of 95 arising out of Koilwar P.S. Case No. 82 of 93. 4. The prosecution has come out with a case as revealed from Ext. 2. fardbeyan of the informant. Daya Shankar Rai recorded on 28th June, 1993 at 12:15 P.M. at Government Hospital. Koilwar that while ploughing the land through tractor, appellant Hari Shankar Rai encroached 3 feet which was observed and being corrected by younger brother of the informant then Hari Shankar Ray protested and claimed the land during such incident and had dictated all the appellants surrounded prosecution side and inflicted injuries by fire-arms and any how brought to PHC for treatment. 5. In order to substantiate the charges, the prosecution produced the following documentary evidence, which is as under:- "Ext. 1 Fardbeyan. 5. In order to substantiate the charges, the prosecution produced the following documentary evidence, which is as under:- "Ext. 1 Fardbeyan. Ext.2 Fardbeyan written by SI Hari Narain Prasad Singh, Ext.3 FIR." Eight witnesses have also been examined, out of whom PW 8. Murat Ram is a formal witness proved Exts.2 and 3. Whereas Ganesh Rai (PW 2) one of the injured, Krishna Roy (PW 4). Jyoti Kumar (PW 5) and Sanjai Kumar Singh (PW6) have been declared hostile. PW 3, Daya Shankar Ray is the informant who stated the prosecution version and proved Ext. 1 but in cross-examination he could not identify any of the assailants but named them on the basis of receiving information from others. Though he admits that he along with others injured was brought to the hospital. PW 7, Parmeshwar Rai one of the injured states the prosecution version and also stated about his treatment etc. at the hospital. PW 1, Krishna Kumar Rai could not be followed in cross-examination hence, trial Court did not accept his testimony. 6. All the three injured persons have specifically stated about their being brought to PHC and treated by doctor but for the reasons best known to the prosecution neither the doctor has been examined nor injury report is on record. Investigation Officer is also withheld. Law is very much clear on the point when one claims sustaining injury by any means and due treatment by the doctor unless his assertion finds corroboration by medical evidence conviction of the assailant is not at all sustainable. This alone cuts the very root of the prosecution case and makes the conviction and sentence of all the appellants unsustainable. 7. Accordingly, the conviction and sentenced as awarded by the trial Court is set aside. Consequently, both the appeals are hereby allowed and the appellants are set free from the liabilities of the bail bonds furnished on their behalf. Appeals allowed.