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2018 DIGILAW 1459 (PAT)

NARESH RAI v. STATE OF BIHAR

2018-09-11

SANJAY PRIYA

body2018
JUDGMENT : SANJAY PRIYA, J. 1. Both the appeals have arisen out of common judgment and as such they have been heard together and are being disposed off by this common judgment. 2. Both the appeals have been preferred against the judgment of conviction and order of sentence dated 30.1.2009 passed by the Additional Sessions Judge Fast Track Court IV, Chapra in Sessions Trial no. 56 of 2006 arising out of Jalalpur P.S. case no. 53 of 2005 , G.R. No. 1854/05 whereby all the appellants have been convicted under Sections 447,147,504 and 307/149 of the Indian Penal Code and all the appellants have been sentenced to undergo rigorous imprisonment for one month each under Section 447 of the IPC. Appellants have been further sentenced to undergo rigorous imprisonment for six months each for the offence under Section 147 IPC, rigorous imprisonment for six months each for the offence under Section 504 of the IPC and rigorous imprisonment for five years each for the offence under Section 307/149 of the Indian Penal Code. All the sentences were directed to run concurrently. 3. None appears on behalf of the appellants in Cr. Appeal no. 84 of 2009 and Cr. Appeal no. 144 of 2009. Mr. Ram Swarup Prasad, learned Advocate is appointed as amicus curiae to defend the appellants in Cr. Appeal no. 84 of 2009 and Mr. Arun Kumar Tripathi, learned Advocate is appointed as amicus curiae to defend the appellants in Cr. Appeal no. 144 of 2009. 4. Heard amicus curiae appearing on behalf of the appellants and learned counsel(s) for the State. 5. The prosecution case in brief, as made out from the farbeyan of the informant is that on 26.6.2005 at 7.30 pm the informant was sitting in front of his house with 'Baba' when accused persons armed with lathi, bhala, garasa reached there and started abusing the informant. The informant raised objection then with intention to kill, accused Dindayal Rai gave Farsa blow on the head of Manik Sah 'Baba' of the informant which hit on his head as a result of which Manik Sah fell down. When Shambhu Kumar Sah (brother of informant) came to save accused Raj Mohan Rai gave Garasa blow on the head of Shambu Kumar Sah. When Shambhu Kumar Sah (brother of informant) came to save accused Raj Mohan Rai gave Garasa blow on the head of Shambu Kumar Sah. The informant raised alarm then ladies of the house of the informant arrived but accused persons have assaulted ladies of the house, namely, Kamala Devi, Karishma Kumari, Basmati Devi, Tetari Devi, Chanda Devi with lathi, danda brick, fats. The motive behind the occurrence is that altercation has taken place between Kalawati Devi and Chinta Devi for attending the Baarat party by some person in the village and thereafter the abuse and assault has taken place. 6. During trial, prosecution has examined thirteen witnesses. No witness has been examined on behalf of the defence. Defence has filed certified copy of complaint petition C 1431 of 2005 which was marked as Ext. A. 7. The amicus curiae appearing on behalf of the appellants in both the appeals have submitted that injuries were found on the persons of the injured to be simple in nature. There is no specific allegation of overt act attributed against the appellants of Cr. appeal no. 84 of 2009. They have further submitted that all the witnesses examined on behalf of the prosecution are family members. Hence, they are interested witnesses. 8. Learned counsel(s) representing the State, on the other hand, has submitted that all the witnesses including the injured(s) have supported the prosecution case. The learned court below has after properly appreciating the evidence had convicted the appellants of both the appeals. This Court, after perusing the evidence of the prosecution witnesses, finds that Binod Tiwari (PW2) has not supported the occurrence. He has been declared hostile. 9. Asha Devi (PW1) and Bhuteli Sah (PW13) have been examined as independent witnesses. PW-1 has stated in her evidence in examination-in- chief that on the date of occurrence accused Dindayal assaulted Manik Sah with farsa and other accused persons have assaulted with lathi. The lady members were also assaulted by the accused persons. 10. Bhuteli Sah (PW13) has stated in his evidence that accused Dindayal gave farsa blow on the head of Manik Sah who fell down and when Shambhu Sah came to save accused Raj Mohan assaulted him with garasi causing injury on his head. Lady members of the house of Manik Sah came to save when they were assaulted by the accused persons with lathi, danda, bricks etc. 11. Lady members of the house of Manik Sah came to save when they were assaulted by the accused persons with lathi, danda, bricks etc. 11. Basmati Devi (PW3), Kamala Devi (PW4), Tetri Devi (PW6), Chanda Devi (PW8) and Karishma Kumari (PW9) have all sustained injuries during the occurrence. They have stated in their respective evidence that accused Dindayal assaulted with farsa on the head of Manik Sah and when Shambhu Sah came to save accused Raj Mohan gave garasi blow on his head. They were also assaulted by the accused persons with lathi, danda and bricks etc. 12. Manik Sah (PW5) is one of the injured of this case. This witness has stated in his examination- in- chief that on the date of occurrence he was assaulted by Dindayal with Farsa on his head with intent to kill. Shambhu reached to save him then accused Dindayal gave garasi blow on his head. The lady members were also assaulted by the accused persons. 13. Shambhu Kumar Sah is another injured witness who has been examined as PW-7. He has stated in his evidence that accused Dindayal with intent to kill his grandfather gave farsa blow on his head and when this witness reached to save him accused Raj Mohan Rai gave him garasi blow on his head. The lady members were also assaulted by the accused persons. 14. Shankar Prasad Sah (PW10) is the informant of this case. He has also supported his fardbeyan in his examination-in-chief. 15. Dr. Birendra Kumar Upadhyaya (PW12) has examined all the injured and has proved the injury report of all the injured persons. The doctor has found one lacerated wound on right side of head ( parietal region) 1 " x " skin deep and scratch on right side of head just above the right ear "x " simple, caused by hard and blunt substance on the person of the injured, namely, Manik Sah. The injury report has been marked as Ext. 5.He has also examined Shambhu Sah on the same day and found lacerated wound on the left side of scalp 3" x " x skin deep. Simple, caused by hard and blunt substance. He has proved the injury report as Ext. 5/1. The injury report has been marked as Ext. 5.He has also examined Shambhu Sah on the same day and found lacerated wound on the left side of scalp 3" x " x skin deep. Simple, caused by hard and blunt substance. He has proved the injury report as Ext. 5/1. Besides these injuries, he has also proved the injury report of Tetri Devi, Kamala Devi, Karishma Kumari, Basmati Devi and Chanda Devi and injury report of those injured(s) have been marked as Ext(s). 5/2 to 5/6. All the injuries on the person of the injured(s) were found to be simple caused by hard and blunt substance. This witness has also proved the supplementary injury report of Tetari Devi and Manik Sah respectively which have been marked as Ext(s). 5/7 and 5/8. 16. Bibhuti Bhushan Singh (PW11) is the I.O. of this case. He has proved the Fardbeyan and formal F.I.R. He has issued injury slip with regard to all the injured and also inspected the place of occurrence and recorded the statement of the informant and other witnesses. 17. In this manner, from the evidence of the prosecution witnesses, this Court finds that there are consistent evidence of the witnesses that accused Dindayal assaulted Manik Sah with Farsa on his head and co accused Raj Mohan Rai assaulted with Garasi on the person of Shambhu Sah. All the other witnesses have stated that lady members were also assaulted but there is no any allegation of specific overt act against any of the accused of assaulting the lady members. The injury report has been proved by Doctor (PW12). The doctor has found simple injuries on the person of Manik Sah and Shambhu Sah caused by hard and blunt substance which has been marked as Ext(s) 5 and 5/1. Similarly, the doctor has found all the injuries to be simple in nature on the persons of the ladies which has been marked as Ext(s). 5/2 to 5/6. 18. This Court, after evaluation of the evidence, does not find any reliable evidence levelling specific allegation of overt act against the appellants of Cr. Appeal No. 84 of 2009 for the offence under Section 307/149 and other allied Sections of the IPC. Accordingly, the impugned judgment of conviction and order of sentence dated 30.1.2009 passed by the Additional Sessions Judge Fast Track Court IV, Chapra in Sessions Trial no. Appeal No. 84 of 2009 for the offence under Section 307/149 and other allied Sections of the IPC. Accordingly, the impugned judgment of conviction and order of sentence dated 30.1.2009 passed by the Additional Sessions Judge Fast Track Court IV, Chapra in Sessions Trial no. 56 of 2006 arising out of Jalalpur P.S. case no. 53 of 2005 , G.R. No. 1854/05 passed against the appellants (Cr. Appeal. no. 84 of 2009) are hereby set aside. They are acquitted from the charges levelled against them. 19. This court further finds from the evidence of the witnesses and the nature of injuries sustained by the injured, namely, Manik Sah (PW5) and Shambhu Kumar Sah (PW7), marked as Ext. 5 and 5/1 that there is no cogent evidence for conviction of the appellants of Cr. Appeal no. 144 of 2009 for the offence under Section 307/149 IPC. Therefore, the judgment of conviction and order of sentence dated 30.1.2009 passed by the Additional Sessions Judge Fast Track Court IV, Chapra in Sessions Trial no. 56 of 2006 arising out of Jalalpur P.S. case no. 53 of 2005 , G.R. No. 1854/05 passed against the appellants (Cr. Appeal no.144 of 2009) under Sections 307/149 IPC is set aside . However, on the basis of the evidence available against them and the injuries sustained by the injured(s), the conviction against these appellants (Cr. Appeal no. 144 of 2009) under Section 307/149 IPC is modified for the offence under Section 324 of the IPC besides the other Sections as mentioned in the impugned judgment. 20. The learned trial Court has mentioned in the impugned judgment that convicts are the first offenders. Therefore after looking into the nature of the injury caused by the appellants (Cr. Appeal no. 144 of 2009) and the nature of injury sustained by the injured(s) the order of sentence passed against these appellants is modified as sentence already undergone by them. Both the appellants will not be required to be sent to custody any further. 21. Accordingly. Cr. Appeal no. 84 of 2009 is allowed and Cr. Appeal no. 144 of 2009 is allowed in part with modification in sentence as stated above.