Balister Raut @ Balister Rai v. State of Bihar

.... .... Respondents =========================================================== Appearance: For the Appellants : Mr. Hamendra Pd. Singh, Sr. Advocate Mr. Hitesh Suman, Advocate Mr. Sanjay Kumar, Advocate For the State : Mrs. Abha Singh, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL JUDGMENT Date: 14-03-2013

1. Heard learned counsel for the appellants as well as learned Addl. Public Prosecutor for the State and perused the record.

2. The appellants have challenged their conviction and sentence dated 4.5.2001 passed by learned Addl. Sessions Judge VIII, East Champaran, Motihari in Sessions trial no. 126 of 1993. Appellant nos. 1 and 2 were convicted by learned Addl. Sessions Judge VIII, East Champaran, Motihari for the offence punishable under section 324/34 of the Indian Penal Code and accordingly, they were sentenced Patna High Court CR. APP (SJ) No.203 of 2001 dt.14-03-2013 2 to undergo rigorous imprisonment for three years under section 324 of the Indian Penal Code and rest appellants were convicted for the offence punishable under section 323 of the Indian Penal Code and accordingly, they were sentenced to undergo rigorous imprisonment for one year for the above stated offence.

3. In brief, the prosecution case, is that P.W. 4, namely, Raj Narayan Shukla filed complaint case on 4.12.1991 in the court of learned Chief Judicial Magistrate, East Champaran, Motihari stating therein that on 28.11.1991 at about 3 p.m. while he was sitting at his door, the appellants and other accused armed with lethal weapons came there and assaulted him and furthermore, when his brother came to his rescue, he, too, was assaulted by the appellants and others.

4. After enquiry, prima facie case was found and accordingly, appellants were summoned to face trial. Appellants were put on trial and they were charged for the offences punishable under sections 148, 307/34, 326, 147, 323/34, 379/34 and 307 read with section 149 of the Indian Penal Code.

5. The appellants denied the charge and claimed to be tried.

6. The prosecution in course of trial examined, altogether, five witnesses and also got exhibited some documentary evidence. The statements of appellants were recorded under section 313 of the Cr.P.C in which they reiterated their innocence.

7. The defence also examined one witness and got exhibited some documentary evidence.

8. The learned trial court, having considered the materials available on record, acquitted the appellants for the offences Patna High Court CR. APP (SJ) No.203 of 2001 dt.14-03-2013 3 punishable under section 307 read with sections 149, 379 and 147 of the IPC whereas the appellants were convicted and sentenced in the manner as stated above.

9. Learned counsel appearing for the appellants submitted that the learned trial court failed to appreciate the evidence on right perspective and committed error in convicting and sentencing the appellants.

10. On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and sentence arguing that injured as well as the informant supported the story of assault and furthermore, P.W.5 proved injury found on the person of injured (P.W.2) and P.W.4 and therefore, the learned trial court rightly convicted and sentenced the appellants.

11. As I have already stated that, altogether, five prosecution witnesses were examined in this case and out of the aforesaid prosecution witnesses, P.W.2, Narsindhu Raman Shukla is injured of this case and he stated that on the alleged date of occurrence, he was at his mill and having heard the noise, he came at the door of P.W.4 where he saw the appellants being armed with deadly weapons and further this witness stated that the appellants assaulted P.W.4 with the aforesaid weapons.

12. P.W.4 is the informant and another injured of this case and this witness, too, supported the story of assault.

13. P.W.1 stated that at the time of alleged occurrence, he was in the mill and having heard the noise, he came at the door of P.W.4 and found that the appellants were also present there. This Patna High Court CR. APP (SJ) No.203 of 2001 dt.14-03-2013 4 witness further stated that the appellants assaulted P.W.4 and when P.W.2 came to his rescue, he was, too, assaulted by the appellants.

14. P.W.3 also claimed to be eye-witness of alleged occurrence and supported the story of assault. There is nothing in the depositions of the aforesaid witnesses to discredit their testimonies and, therefore, story of assault was proved by the above stated prosecution witnesses.

15. P.W.5, Mahesh Prasad Singh examined both the injured and this witness proved injury reports of P.W.2 and P.W.4.

16. Although P.W.5 has mentioned in his injury report of P.W.2 that he had sustained grievous injury but the learned trial court disbelieved the aforesaid findings and came to the conclusion that P.W.2 had sustained simple injury and accordingly, the learned trial court convicted the appellant nos. 1 and 2 for the offence punishable under section 324/34 of the IPC whereas rest appellants were convicted under section 323 of the IPC.

17. On perusal of the oral evidence of the witnesses as well as documentary evidence available on record, it appears that there were series of litigations between the parties and there was previous enmity between them. Moreover, the learned trial court found that simple Marpit had taken place between the parties. Admittedly, alleged occurrence took place in the year 1991 and the appellants are facing trauma of this case since filing of complaint case. There is nothing on the record to show previous criminal history of the appellants and, therefore, in my view, the ends of justice will meet, if the sentence of the appellants is reduced and therefore, in stead of Patna High Court CR. APP (SJ) No.203 of 2001 dt.14-03-2013 5 sending jail to the appellants, it will be proper to sentence the appellants for the period already undergone by them in course of trial as well as during the pendency of this appeal. Accordingly, their sentence is altered to the extent as stated above.

18. On the basis of the aforesaid discussions, this criminal appeal stands dismissed with modification in the sentence as stated above. Shahid/AFR (Hemant Kumar Srivastava,J)