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2018 DIGILAW 179 (PAT)

Shyamjit Rai v. State of Bihar

2018-01-25

VINOD KUMAR SINHA

body2018
JUDGMENT : Since nobody has appeared on behalf of the appellants and this case appears to be of the year 2003, I deem it appropriate to appoint Mr. Ranbir Singh as Amicus Curiae to assist the Court. 2. By way of the present appeal, appellants seek to challenge the judgment of conviction and order of sentence dated 31.01.2003, passed by Shri Amaresh Kumar Lal, the then 6th Addl. Sessions Judge, Chapra in Sessions Trial No. 994 of 1994, by which the appellants, above named, stood convicted under Section 323/149 of the Ind ian Penal Code (in short the “IPC”) and was sentenced to undergo imprisonment for four months with a fine of Rs. 5,00/- each with default clause. 3. Prosecution case as narrated by informant – Rajendra Rai (P.W. 2) in short is that there was a vacant land behind darwaza of his house, for which a proceeding under Section 145 Cr.P.C was pending in the court of Executive Magistrate. It is alleged that on 21.11.1991 at about 6. A.M., appellants were collecting hay on that land, which was resisted by father of informant, Benilal Rai (P.W. 3), upon which all the accused person, who were variously armed, inflicted farsa and lathi blow on him and when mother of informant and his aunt came to save him, they were also assaulted by the accused persons, thereafter, villager assembled and the injured were taken to the hospital. On the basis of the said fardbeyan Parsa P.S. Case No. 81 of 1991 was registered against the appellants. 4. Police after investigation submitted charge-sheet. Charges were framed and cognizance of the offence was taken, thereafter the case was committed to the court of sessions, which ultimately came to the file of Shri . Charges were framed and the case was committed to the court of sessions, which ultimately came to the file of Shri Amaresh Kumar Lal, 6th Addl. Sessions Judge, Chapra, for trial and disposal. 5. To prove its charges, prosecution examined altogether three witnesses. They are;- P.W. 1- Mandei Yadav, mother of informant, P.W. 2 – Rajendra Rai (informant) and P.W. 3 – Benilal Rai. In this case I.O. and Doctor has not been examined. Apart from that following documents have been brought on record and marked as; Ext. 1 and 2 - Signature on fardbeyan, Ext. 3- Fardbeyan, Ext. 4 – Formal F.I.R. 6. In this case I.O. and Doctor has not been examined. Apart from that following documents have been brought on record and marked as; Ext. 1 and 2 - Signature on fardbeyan, Ext. 3- Fardbeyan, Ext. 4 – Formal F.I.R. 6. Defence of the accused persons is that the land in question belongs to them and no such occurrence had ever taken place and they have falsely been implicated in this case and claimed to be innocent. From the side of defence also certain documents have been brought on record, which are Ext. A to A/B – Rent receipts and Ext. B to B/3 – Bayana to show that the land in question belonged to them. 7. Learned trial after conclusion of trial conviction appellants under Section 323/149 of the IPC and sentenced them in the manner aforesaid. 8. Contention of learned Amicus Curiae is that in this case neither doctor nor I.O. has been examined, which has caused serious prejudice to the defence and further the documents brought on record by the defence, clearly shows that the land in question belonged to the appellants and in this case, informant and others were the aggressors. Further in this case, it is alleged that the occurrence was witnesses by other persons also but no independent witness has been examined in this case and all the witnesses are members of one family and there is apparent contradictions in the evidence of prosecution witnesses and the trial court without considering all these infirmities have convicted the appellants under Section 323/149 of the IPC, which is out and out perverse and not sustainable in the eye of law. 9. On the other hand, learned counsel for the respondent-State defended the finding of guilt recorded by learned Trial Court and submitted that there are consistent evidence of witnesses with regard to occurrence and assault to them by the appellants and, therefore, there is no infirmity in the impugned judgment and conviction of appellants under Section 323/149 of the IPC is just and proper. 10. Heard the rival contentions of the parties. It appears that in this case, there are only three witnesses and all the three claimed themselves to be injured. Injury report has not been brought on record and even doctor has not been examined in this case. 11. 10. Heard the rival contentions of the parties. It appears that in this case, there are only three witnesses and all the three claimed themselves to be injured. Injury report has not been brought on record and even doctor has not been examined in this case. 11. On scrutiny of evidence of prosecution witnesses, it appears that P.W. 2 - Rajendra Rai is the informant in this case and he has stated in his evidence that there was a proceeding under Section 145 Cr.P.C. on the alleged land and on the day of occurrence, he was present in his Dalan and the appellants were collecting hay in the said land, which was protested by P.W. 3 stating that the land belonged to him and a proceeding is going on, upon which accused persons started abusing P.W. 3 and informant P.W. 2. His evidence further discloses that P.W. 3 was assaulted by appellant - Lalbabu Rai with farsa causing injury to him. Appellant – Wakil Rai assaulted P.W. 3 with blunt portion of the spade and when his mother came to save him, she was also assaulted by appellants – Heera Lal Rai, Rabindra Rai and Wakil Rai. Evidence of this witness further shows that when he went to save them, he was also assaulted by Ramjit Rai with lathi and brick bat. Thereafter, his aunt – Sita Devi also came for their rescue but she was also assaulted by the accused persons. Thereafter villagers assembled and injured were taken to the hospital. He proved his signature on fardbeyan (Ext. 1) and signatures of Umesh Rai and Mangal Rai (Ext. 2). This witness has been cross – examined also that shows that Jala Kuer had executed a sale deed in the name of the Kanshi Rai on 11.08.1947. In his cross-examination, he denied a suggestion that accused persons have purchased the land in dispute and he also gave a evasive answer that he does not know as to whether accused persons were paying rents and got the land mutated in their names. He also denied a suggestion that appellant had possession over the said land. His evidence further discloses that his father first gone there and at that time, he was at his dalan, he went there and there was hot exchange of words between them. He also denied a suggestion that appellant had possession over the said land. His evidence further discloses that his father first gone there and at that time, he was at his dalan, he went there and there was hot exchange of words between them. He has categorically stated that none of the accused persons were carrying bhala and Lalbabu Rai was carrying farsa by which he assaulted his father on his head, however, the said assault hit below the neck and the assault was not repeated and appellants Deolal Rai, Rabindra Rai and Motilal Rai assaulted him by lathi, thereafter, accused persons assaulted him, his mother and his aunt. 12. It is also relevant to notice here that the aunt of informant, who was alleged to have been assaulted by the appellants, have not been examined in this case, as a witness. 13. P.W. 1 is the mother of informant and she has also supported the prosecution case with regard to genesis of occurrence and assault and she has stated in her evidence that appellant – Lalbabu Rai assaulted P.W. 3 by farsa and Vakil Rai by blunt portion of the spade and other assaulted by bricks and rods, which is not the prosecution story in F.I.R. Her evidence further disclose that she was also assaulted by Hiralal Rai by brick and iron rod, causing fracture injury to her and when her son went to save her, appellant – Ramjit Ram assaulted him by iron rod. She has also stated about assault to her Gotani (wife of elder brother – in – law). She has also stated in her evidence that as P.W. 3 was wearing sweater, as such, there was no apparent bleeding from his body. 14. P.W. 3 is father of informant and he has also supported the genesis of occurrence and stated in his evidence that appellant Lalbabu Rai assaulted him by means of farsa and appellant Vakil Rai assaulted him by blunt portion of Kudal (spade) and others assaulted him by bricks and lathi. He has stated about assault to other persons. 14. P.W. 3 is father of informant and he has also supported the genesis of occurrence and stated in his evidence that appellant Lalbabu Rai assaulted him by means of farsa and appellant Vakil Rai assaulted him by blunt portion of Kudal (spade) and others assaulted him by bricks and lathi. He has stated about assault to other persons. He also gave a evasive reply on para -5 of his cross-examination that he does not know as to whether the land in dispute was recorded in the name of accused persons and as to whether the land was attached in a proceeding under Section 146 Cr.P.C. and he also could not disclose the date of order and also could not produce copy of the same. He further denied a suggestion that accused persons were keeping hay on his land and had stopped them from doing so. In his cross-examination, this witness has stated that after receiving the farsa and Kudal injuries, he became unconscious and regained his consciousness after eight days. 15. From the above evidence of witnesses, it appears that there was an admitted land dispute between the parties and the appellants had title over the said land and in support of this claim, they have also brought on record, the rent receipts issued in their names as well as copy of Byaynama. No doubt prosecution witnesses have stated about assault to them but in this case Doctor has not been examined to prove whether injuries were caused to P.W. 3, due to farsa and kudal blow and injuries caused to P.W. 1 by iron rod and bricks. Further, I.O. has also not been examined to prove the manner as well as place of occurrence. No doubt non – examination of I.O. in every case does not cause prejudice but in the present case, where the prosecution as well as defence both made a claim over the land in question, non examination of I.O. has certainly caused prejudice to the defence. It also appears from the evidence of witnesses that the enmity is admitted between the parties and in such a situation non examination of any independent witness certainly casts some doubt on the prosecution story as it is the prosecution story that the occurrence was witnesses by the co-villagers, who took the injured to the hospital. It also appears from the evidence of witnesses that the enmity is admitted between the parties and in such a situation non examination of any independent witness certainly casts some doubt on the prosecution story as it is the prosecution story that the occurrence was witnesses by the co-villagers, who took the injured to the hospital. Further one of the injured, namely, Sita Devi has not been examined in this case. 16. Considering the entire discussions made above, it appears that there is evidence available on record to show that the land in question belonged to the appellants and due to non – examination of I.O., place of occurrence could not be determined and it cannot be said with certainty that the appellants were the aggressors in the present occurrence. In such a situation, appellants certainly deserve the benefit of doubt. 17. Consequently, this appeal is allowed. Judgment of conviction and order of sentence dated 31.01.2003, passed by Shri Amaresh Kumar Lal, 6th Addl. Sessions Judge, Chapra in Sessions Trial No. 994 of 1994, is set aside. 18. As the appellants are on bail, they are discharged from liabilities of bail bonds.