Mahesh Rai & Ors. v. The State Of Bihar

.... .... Respondent/s =========================================================== Appearance : (In CR. APP (SJ) No. 151 of 2001) For the Appellant/s : Mr. Arun Kumar Tripathi (Amicus Curiae) (In CR. APP (SJ) No. 156 of 2001) For the Appellant/s : Mr. Pashupati Pd. Sinha For the State : Mr. Sujit Kumar Singh (A.P.P.) =========================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL JUDGMENT Date: 14-03-2013

Both the above stated criminal appeals have arisen out of common judgment of conviction and sentence dated 25.04.2001 passed by Sri Rakeshwar Dayal, Additional Sessions Judge-I, Barh in Sessions Trial No. 797 of 1994 and, accordingly, both the aforesaid criminal appeals were taken together for hearing and are being disposed of by this common judgment. Patna High Court CR. APP (SJ) No.151 of 2001 dt.14-03-2013 2

None appears in Criminal Appeal No. 151 of 2001 for the appellants whereas learned counsel Sri Pashupati Pd. Sinha appears in Criminal Appeal No. 156 of 2001 and, therefore, in the aforesaid circumstance, Sri Arun Kumar Tripathi is appointed amicus curiae for the appellants in Criminal Appeal No. 151 of 2001.

Heard learned amicus curiae appearing for the appellants in Criminal Appeal No. 151 of 2001, learned counsel Sri Pashupati Pd. Sinha for the appellant in Criminal Appeal No. 156 of 2001 as well as learned Additional Public Prosecutor for the State and perused the record.

All the appellants have been convicted for the offence punishable under Section 324 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for three years for the above stated offence by the impugned judgment of conviction and sentence dated 25.04.2001.

The brief fact, which lies to file these criminal appeals, is that P.W.8, Bhola Singh gave his Ferdbeyan to S.I., Barh Police Station on 25.07.1988 to this effect that on the same day at about 06:00 P.M. while he was returning to his home and reached near Rajpura, all of a sudden appellants and 5 to 7 unknown persons having armed with hasuli, kata and lathi encircled him and appellant, Umesh Rai gave hasuli blow causing injury on his head whereas Patna High Court CR. APP (SJ) No.151 of 2001 dt.14-03-2013 3 appellant, Mahesh Rai gave kata blow causing injury on his back, buttock and both the hands and furthermore, appellant, Pramod Rai started assaulting him with lathi and having sustained injury he fell down on the earth. The appellants and others also snatched wrist watch as well as cash from the P.W.8. On the alarm, witnesses came there and after that appellants and others fled away from there. P.W.8 expressed his inability to disclose the reason behind the alleged occurrence.

On the basis of aforesaid Ferdbeyan, Barh P.S. Case No. 272 of 1988 under Section 307 and other minor sections of the Indian Penal Code was registered and accordingly, formal first information report was drawn up against the appellants and 5 to 7 unknown persons. The matter was investigated and after completion of investigation, charge sheet was submitted. The cognizance of the offence was taken and the case was committed to the court of Sessions, in usual way.

The appellants were put on trial and accordingly, they were charged for the offences punishable under Sections 307/34 of the Indian Penal Code to which they denied and claimed to be tried.

In course of trial, prosecution examined, altogether, 12 witnesses and also got exhibited some documents. The statements of appellants were recorded under Section 313 of the Cr.P.C. in which Patna High Court CR. APP (SJ) No.151 of 2001 dt.14-03-2013 4 they reiterated their innocence. No oral evidence was adduced on behalf of the appellants but they also got exhibited some documentary evidences.

The learned trial court having considered the materials available on the record passed the impugned judgment of conviction and sentence in the manner as stated above.

Learned counsel appearing for the appellants submitted that learned trial court himself admitted in the impugned judgment that no injury report was legally produced before the court in course of trial and in absence of injury report, the trial court expressed his inability to convict the appellants for the offence punishable under Section 326 or Section 325 of the Indian Penal Code. Learned counsel for the appellants further submitted that when there was no injury report on the record, the learned trial court was not justified in convicting the appellants for the offence punishable under Section 324 of the Indian Penal Code.

On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence arguing that in course of trial, almost all the prosecution witnesses supported the prosecution case. He further submitted that the doctor, who had examined P.W.8, was examined as prosecution witness no. 10 and the aforesaid witness specifically stated that on Patna High Court CR. APP (SJ) No.151 of 2001 dt.14-03-2013 5

25.07.1988, he examined P.W.8 and found altogether 14 injuries on his person. He further submitted that no doubt, original injury report was not produced before the trial court in course of trial but photostat copy of the aforesaid injury report was marked by the trial court in course of trial.

On perusal of the evidences available on the lower court’s record, I find that almost all the material prosecution witnesses including P.W.8, the informant, supported the story of assault but admittedly, no injury report was brought on record by the prosecution in course of trial and, therefore, in absence of injury report, it is difficult to ascertain the nature of injury which was sustained by the P.W.8. Furthermore, it is also difficult to ascertain this fact that which type of weapon was used in assaulting the P.W.8 and, therefore, I do agree with the submission of learned counsel for the appellants that learned trial court committed error in convicting the appellants for the offence punishable under Section 324 of the Indian Penal Code and in my view, the appellants could have been convicted for the offence punishable under Section 323 of the Indian Penal Code.

On the basis of aforesaid discussions, the conviction of the appellants is altered under Section 323 of the Indian Penal Code in place of Section 324 of the Indian Penal Code.

Admittedly, the alleged occurrence took place in the Patna High Court CR. APP (SJ) No.151 of 2001 dt.14-03-2013 6 year 1988 and since then the appellants are facing trauma of the aforesaid case and furthermore, there is nothing on the record to show any criminal antecedent of the appellants and, therefore, I am of the opinion that the appellants are entitled to get benefit of Section 3 of Probation of Offenders Act, 1958 and, accordingly, they are directed to be released after due admonition under the provision of Section 3 of Probation of Offenders Act, 1958.