Patna High Court
Case Details
Patna High Court CR. APP (SJ) No.178 of 2001 dt.16-05-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.178 of 2001 ========================================================= (Against the judgment of conviction and order of sentence dated 19-02- 2001 passed by learned IInd Additional Sessions Judge, Motihari in Sessions Trial No. 835 of 1992) 1. Biranchi Sah, S/o Mathura Sah 2. Jhakar Sah, S/o Ram Lal Sah 3. Nanhak Sah, S/o Biranchi Sah All residents of village-Harpur-Makarahiya, P.S. Adapur, District-East Champaran. Versus .... .... Appellants. The State of Bihar .... .... Respondent ========================================================= Appearance : For the Appellant/s : Mr. Ajay Kumar Singh For the Respondent/s : Mr. Sujit Kumar Singh, A.P.P. Mr. Satish Kr.Sinha Dated/ the 16th day of May, 2013. ========================================================= CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA JUDGMENT
Legal Reasoning
Hemant Kumar Srivastava,J. 1. Heard learned counsel appearing for the appellants as well as learned Additional Public Prosecutor for the State and perused the record. 2. This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 19-02-2001 passed by learned IInd Additional Sessions Judge, Motihari in Sessions Trial No. 835 of 1992 by which and whereunder, he convicted the appellants for the offences punishable under Sections-447, 323 & 441 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for one year Patna High Court CR. APP (SJ) No.178 of 2001 dt.16-05-2013 2 under Section-147 of the Indian Penal Code, to undergo rigorous imprisonment for six months and to undergo rigorous imprisonment for two months under Section-447 of the Indian Penal Code. Furthermore, the appellant No. 1 was also convicted for the offence punishable under Section 379 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year for the above-said section, however, all the sentences were ordered to run concurrently. By the impugned judgment of conviction and sentence order, the learned trial court found the co-accused Prabhabati Devi guilty for the offences under Sections- 447, 323 & 148 of the Indian Penal Code and released her on execution of bond of Rs 2,000/- with two sureties of the like amount each under Section-4 of Probation of Offenders Act for keeping peace and be of good behaviour for a period of one year. 3. P.W. 5 Jagannath Sah gave his fardbeyan to S.I. of Haraiya O.P. on 01-04-1991 at about 6.00 p.m. in inured condition at Dunkan Hospital, Raxaul to this effect that on the same day, while he was working in his field, the she-buffalo of Nanhku Sah entered his field and started grazing, upon which, he forbade Nanhku Sah and ousted him from his field, which caused annoyance to appellants and accused, Prabhabati Devi as well as one, Udai Chandra Sahand all the aforesaid persons, being armed with Lathi, Farsa and Gadansa, came at his field in the evening at about 5.00 p.m. on the same day and encircled him. He further stated that the appellant No. 1 Biranchi Sah ordered the others to assault him and thereafter, Udai Chand Sah gave one Farsa blow causing injury on back portion of his head and having sustained the aforesaid injury, he fell down on the earth. Thereafter, the accused, Prabhabati Devi gave Patna High Court CR. APP (SJ) No.178 of 2001 dt.16-05-2013 3 Gadansa blow, which hit on his head causing injury to him. Appellants Biranchi Sah, Nanhku Sah and Jhakar Sah started raining lathies on him as a result of which, he sustained injuries on his back, Panjara, shoulder and hands. He raised alarm, which attracted witnesses, who came there and saved his life. The aforesaid witnesses, in course of rescue, also sustained some minor injuries. The appellants and other accused took to their heels after the alleged occurrence and while fleeing from place of occurrence, the appellant No. 1 took out Rs 4500/- from his pocket. 4. On the basis of aforesaid fardbeyan, Adapur (Harpur) P.S. Case No. 18 of 1991 for the offences punishable under Sections-147, 148, 149, 324, 323, 341, 447, 379 & 307 of the Indian Penal Code, was registered and on the same say, formal FIR was drawn up against the appellants and co-accused, Udai Chand Sah and Prabhabati Devi for the above-said offences. The matter was investigated by the I.O. and after completing all the formalities of investigation; the I.O. submitted charge sheet for the offences punishable under Section-307 and other minor sections of the Indian Penal Code against the appellants and two co- accused, namely, Udai Chand Sah and Prabhabati Devi. The cognizance of the offences was taken and the case was committed to the court of sessions, in usual way. 5. All the appellants along with accused, Prabhabati Devi were put on trial as one of the co-accused, namely, Udai Chand Sah had already died before commencement of the trial. The appellants and co- accused, Prabhabati Devi were jointly charged for the offences punishable under Sections-341 & 447 of the Indian Penal Code whereas; appellants were charged for offences punishable under Sections-323 & 147 of the Patna High Court CR. APP (SJ) No.178 of 2001 dt.16-05-2013 4 Indian Penal Code. Similarly, Prabhabati Devi was, separately, charged for the offences punishable under Sections-148, 323 & 307 of the Indian Penal Code whereas; appellant No. 1 namely, Biranchi Sah was separately, charged for the offence punishable under Section-379 of the Indian Penal Code. Charges were denied by the appellants as well as co- accused and they claimed to be tried. 6. In course of trial, prosecution examined altogether, 7 witnesses, besides it, two court witnesses were also examined by the learned trial court. The statements of appellants and co-accused, Prabhabati Devi were recorded u/S 313 of the Cr.P.C. in which, they reiterated their innocence. No evidence was adduced by the appellants as well as co-accused, Prabhabati Devi in support of their defence but from perusal of statements recorded u/S 313 of the Cr.P.C. as well as trends of cross-examination of prosecution witnesses, I find that the defence of appellants as well as co-accused, Prabhabati Devi was total denial of the prosecution story. 7. Learned trial court, having analyzed the evidences adduced on behalf of the prosecution, passed the impugned judgment acquitting accused, Prabhabati Devi of the charge framed against her for the offence under Section-307 of the Indian Penal Code whereas; appellants as well as accused, Prabhabati Devi were also acquitted of the charge framed against them for offence under Section-341 of the Indian Penal Code but the learned trial court convicted the appellants for the offences punishable under Sections-447, 323 & 147 of the Indian Penal Code in the manner, as stated above. 8. Learned counsel appearing for the appellants, challenged Patna High Court CR. APP (SJ) No.178 of 2001 dt.16-05-2013 5 the impugned judgment of conviction and order of sentence, arguing that the learned trial court failed to appreciate the evidences available on the record. He submitted that the prosecution witnesses made contradictory statements in course of trial and P.W. 5, specifically, stated that Udai Chand Sah gave Farsa blow whereas; Prabhabati Devi gave Gadansa blow on his head but Ext. 2 reveals that the doctor found only one injury on the head of P.W. 5 and therefore, the version of P.W. 5 is not supported by the medical evidence and the learned trial court failed to look into the aforesaid contradiction of ocular as well as medical evidence. He further submitted that P.W. 5 admitted in his deposition that blood had fallen on the place of occurrence but the I.O. did not find any blood on the place of occurrence and, therefore, the aforesaid circumstance, clearly, negates the manner of occurrence as well as entire prosecution story. 9. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and order of sentence arguing that P.W. 5 being injured witness, is the most competent witness who stated about the manner of occurrence and specifically, stated that appellants and other accused assaulted him with different weapons as a result of which, he sustained injury. Learned Additional Public Prosecutor also drew my attention towards Ext. 2 and submitted that the doctor wrote the injury report in a prescribed form in which, he disclosed that three injuries were found on the scalp of P.W. 5 though all the aforesaid three injuries were simple in nature but the same was caused by sharp weapon and, therefore, learned trial court, rightly, convicted the appellants as well as co-accused, Prabhabati Devi. 10. P.W. 1, Nathuni Hajara, P.W. 2 Sarfuddin Mian and court Patna High Court CR. APP (SJ) No.178 of 2001 dt.16-05-2013 6 witness No. 1 as well as court witness No. 2 also supported the story of assault and they, specifically, stated that the appellants alongwith co- accused, Udai Chand Sah and Prabhabati Devi assaulted P.W. 5 on different parts of body. 11. P.W. 5 who is informant as well as injured witness, stated that on the alleged date and time of the occurrence, accused, Udai Chand Sah gave Farsa blow causing injury on the back side of the head whereas; the wife of Udai Chand Sah gave Gadansa blow on his head. The appellants assaulted him with Lathi and in that course, appellant No. 1 snatched Rs 4500/- from him. This witness also supported the genesis of the occurrence saying that she buffalo of Biranchi Sah was grazing in his field and he ousted the son of Biranchi Sah from his field and the aforesaid incident caused annoyance to the appellants and other accused. This witness was cross-examined by the defence and defence tried to make dent in the prosecution case but except some minor contradictions, there appears to be nothing in the deposition of P.W. 5 to disbelieve his statement. 12. Admittedly, the doctor who examined P.W. 5 after the alleged occurrence was not examined before the trial court and the learned trial court, refused to rely upon the injury report (Ext. 1) and that was the reason, the learned trial court did not convict the accused, Prabhabati Devi for the offence punishable under Section-307 of the Indian Penal Code. 13. On perusal of evidence of aforesaid eye witnesses as well as evidence of P.W. 5 , it is established that the appellants along with other accused, having formed an unlawful assembly, assaulted P.W. 5 by Patna High Court CR. APP (SJ) No.178 of 2001 dt.16-05-2013 7 entering into his field. Therefore, I am of the opinion that learned trial court rightly, convicted the appellants for the offences punishable under Sections-447, 323 & 147 of the Indian Penal Code. So far as conviction of appellants under Section-379 of the Indian Penal Code, is concerned, it appears to me that the factum of snatching of money was brought by P.W. 5 with a view to make the offence graver and admittedly, P.W. 2 learnt the fact of snatching of the money from P.W. 5. P.W. 2 had not seen snatching of money and so far as P.W. 1 is concerned, he claimed to have seen the incident of snatching of money but it is very surprising that P.W. 2 could not see the incident of snatching of the money and, therefore, in my view, no reliance can, safely, be placed on the factum of snatching of the money and, therefore, appellant No. 1 namely, Biranchi Sah is entitled to get the benefit of doubt in respect of Section-379 of the Indian Penal Code and, accordingly, his conviction under Section-379 of the Indian Penal Code is set aside. 14. So far as quantum of sentence is concerned, admittedly, the alleged occurrence took place on a very petty issue and the P.W. 5 lodged the case against the appellants in the year, 1991 and the appellants were convicted in the year, 2001 and, therefore, it is apparent that they faced their trial for near about ten years and after that, they preferred this appeal in the year, 2001. Therefore, from the aforesaid fact, it is obvious that the appellants have already suffered a lot and there is no need to send the appellants behind the bar and it would be sufficient if, they are sentenced to the period already undergone by them in course of trial as well as during pendency of this Cr. Appeal. 15. On the basis of aforesaid discussions, this Cr. Appeal is Patna High Court CR. APP (SJ) No.178 of 2001 dt.16-05-2013 8 partly, allowed and the conviction of appellant No. 1 u/S 379 of the Indian Penal Code is set aside and the conviction of appellants under Sections- 323, 147 & 447 of the Indian Penal Code is, hereby, affirmed but the order of sentence is modified to the above-said extent. Patna High Court Dated/ the 16th day of May, 2013 A.K.V./- (Hemant Kumar Srivastava, J)