LC—78 v. Naveen butt

a First Information Report in the Polj |ce Station Pusor mentioning therein that he had gone to his bore well obout 11.00 a.m., at that time accused persons were digging foundat| ton for construction of a house over the land, which was allotte^ to them. Accused Naveen Dut started abusing him with filthy longualge and stated that he shall not allow him to go from this way. Wher| the complainant protested that he is required this way to go to |his borewel, he was again abused and threatened of his life. Ther^after \ both the accused persons chased him to beat, at that time 'jbudi Padbudi (PW-2), Ghurau <& Bhawani Shankar (PW-3) were present in the| tank, they came there and separated them. In the meanwhile, acciised Naveen brought lathi from his house and assaulted the complainan'1 on his head as a result of which he fell down on the ground and be4ame unconscious. He was taken to the hospital. The complainant lo|jged the report in Police Station Pusor.

The complainant was sent For medical examination to Community Health Centre, Pusor where Pr. AA.K. Patel (PW-4) examined him and found one lacerated wound oni jthe occipital region over the head in the size of 4 x icm. The complaijnant was admitted in the hospital and he ^^.__ XI-HC—78 3:^£T^MT^T, ^^^1(5, fsl^l'Hy WHvi{ ^Wfh ^ 200 an^yr 'q^w (4<iif^<^r) ^3?T1^T ^FT f^li^ ^[STT 3TR[?T $^^1<=^ '^TT^R ^Tf^T 3:?T^T -z. <=hl14{d<4S'i 'RTH^Tf '^5tfN-31T^T ^f.'fe^ <F3l^l< was advised for X-ray and on rjadiological examinQtion one fracture was found on the right parietal reg|i< ion. MLC report of the doctor is Ex.P-9. The doctor has opined thojt injury present over the head of complainant was sufficient to| ]cause death in the ordinory course of nature. After completing the investigation, charge sheet was filed against the accused persons tnder Sections 294, 506-B, 307/34 of the IPC and after committal (earned trial court framed the charges under aforesaid sections.

The prosecution in order to establish the charges against the accus ;^d persons examined 8 witnesses. Statements of accused persor 1s were recorded under Section 313 of Cr.P.C. in which they pleaded ijinocence & false implication and stated that they were allotted abadi |and under Indira Awaas Yozna, quarrel was only in relation to the all|5tment and the false report has been lodged. Accused persons have Jexamined one Mahabir Pradhan (bW-1) in their defence. Learned Additional Sess ons Judge after hearing the arguments of learned counsel for the res^ective parties, convicted and sentenced the accused/appellants, as menfioned hereinabove. Learned counsel for th0 appellant submits that genesis of the offence has been deliberately |suppressed, the quarrel, as it appears, XI-HC—78 3:wT ^)|<il<^<4, t$TH-yJI<S, fsf(?i)|-y^< 'WTcTT *^(ch ^ 200 3TT^?T t^W ( lliG<?^<4^ ) ^n^T^Tl^ri^T TT^TT 3TR^T 5b<-ll<=h '^T^R ^rit^T W^I -^. <=fr)i<4f<n<4li ^i^<?il ^l^^ <psi<^i< ^3tRR3^T occurred because of the ccjnstruction by the appellants over allotted abadi land.

However, |)n the basis of partisan investigation the charge sheet has been filed 1| [hat the accused persons obstructed the complainant from coming to| his borewel and in that process the complainant was assaulted. It| |was further contended that comptainant Ravishankar Choudhary hasj made material improvements in his deposition before the court| |as he has stated that Gppellant No.2- Santram caught hold of hi^ hands and thereafter appellant No.l assaulted him by lathi, thougl^ this version is missing in the FIR as well as in biary statement of Ex.b-1. It was further argued that investigating officer has admjtted this fact that accused Naveen t)ut was sent for medical examincjition but his injury report has not been adduced in the evidence. It vfas also argued that if the version of the complainant is to be believe(p, then he was unconscious immediately after the incident, gained his consciousness only in the hospital and in that case FIR, allegedly l|)dged by him in the Police Station immediately after the inciden becomes a suspicious document.

On the other hand, lea^ned Panel Lawyer for the State submits that conviction is based on ^he testimony of injured complainant as also three other eyewitnesse who have stated specific role played by both the accused persons in ojssaulting the complainant. Version of the complainant and eyewitness^s is duly corroborated by the injury XI-HC—78 •5^ ^ll-lll^, ^Tfl'H^KS, Rl^iy^ ® ^llNdl ^^l* •^ 200 W^ 'q^? (^f^^) 3T1^T ?FT f<^i<=h Tl^T ^TT^T $f)^i<=t) '^iTW^f^T ^TT^T -c' <=bl<Ll(<n<fl<1 TTTR^?f ^f.fe^ iFal^K ^3?Rma?n^T report of Ex.P-9 as also X-ji|ray, which has been proved by Dr. M.b. Joshi (PW-7). Injury was 4" the vital part of the head and as per radiological examination repojrt occipital bone was found fractured. I have heard Mr. R.P. 'ripathi, Advocate for the appellants and Mr. U.K.S. Chandel, Panel LG(A|yer for the respondent/State. Having heard learned counsel for the parties, I have perused the record including the impL|gned judgment.

So far as the convicti4n of the appellants under Section 307/34 of IPC is concerned, taking |nto consideration the injury report given by br. M.K. Patel (PW-4), cc|nsidering that the complainant sustained fracture injury on the occi| )ital region and further considering the weapon of offence, manner |of assault and the part of the body on which assault was made, the jfinding of the trial court that the assault was made with an intention l-o cause death cannot be faulted and os such, the trial court has no committed any illegality or infirmity in convicting the appellants undi sr Section 307/34 of IPC. Now coming to th( second question that whether prosecution has been able |o establish by reliable and trustworthy evidence the involvement of jthe appellants in the crime in question is concerned, PW-1 RavishankarJ' Choudhary has stated that on the date of incident he had gone to h|is borewel through his field, however, he XI-9C—78 3-^T ^l^l^^l, ^TH^'KS, fsl^KH^ Nl^dl ^N(ch •^ 200 3?T^T ^T5^ ( ^?1^<^ ) ^TT^T ^T [<^|ch 'cT^H 3TT^T $ti^|ci>) cbi^t<n<fl'i ^i^^T ^f^^i' <psi^i< ^^tRman^T was stopped by the accused perso|is saying that they shall not permit him togo through that way.

When he >rotested that this is the only way to go to his borewel, he was abused by fj Ithy language by accused persons and he was also threatened that they sha| murder him. In the meanwhile, accused Naveen butt ran to his house/br^ >ught a lathi and when he was trying to flee from the place of occurrenc{ 2, accused Santram caught hold of him and accused Naveen assaulted on \\s head by lathi as a result of which he became unconscious and fell down] on the ground. He further stated that at the time of incident Panbudi (P\ V-2), Bhawani Shankar (PW-3) & Ghurau were present and thereafter he lo{jged the report. In the cross examination ofl PW-1 Ravishankar omission in the diary statement of Ex. D-1 has been poi| ited out in which the fact that accused Santram caught hold of him is ^nissing. Even in the FIR this fact missing. However, Panbudi (PW-2^ Bhawani Shankar (P.W.-3), Sahnu Ram (P.W.-5) have corroborated the s-| 1-atement of the comploiinant and stated that when Ravishankar was co|ning from his bore, accused Tumba (Santram) caught hold of him and bccused Naveen Outt assaulted him with lathi on his head as a result of whil ibh Ravishankar fell down.

Learned counsel the| appellant has tried to impeach the credibility of these witnesse^ branding them as interested XI-HC—78 3^cT ^1^1<7'>^, ^Tll'y^KS, [s)01'H^< ^Wvi\ ^Wfh •^ 200 3n^r xrsra? (4^?1<S<^) ^n^T^T ^i^ 'cT^T'STT^T ^-RT^ 'i^TW^rftTT ^TI^T <^i^f<n<fl'ri <-ii<-{<?ff '^..'fe1^ 'rf^R^R ^^TfOT^TT^T witnesses, QS they are servant and >rother of the complainant. However/in the considered opinion of this Courft the version given by these witnesses inspired confidence and therefore )mission on the part of the complainant in mentioning the foct that he was :aught by accused Santram at the time of incident looses its relevance in t-he light of the fact that other three witnesses have stated on oath abolit the said fact and corroborated the statement of complQinant to that e-\ ffect. In the light of the aforesojid discussion, I am of the considered opinion that the judgment of the tr|i |ial court is based on sound appreci'Qtion of evidence available on record {^nd the same does not calt for any interference.

Now coming to the question |)f sentence imposed on the appellants, learned counsel for the appellants ^ubmits that appellant Santram was 60 years old at the time of inciderjt and therefore, while imposing the sentence the trial court ought to hc|ve considered the same. In the result, the appeal fi(ed by the appellants is partly allowed whiie maintaining their conviction nder Sections 307/34, 294 <& 506-11 (B) of the IPC. Hbwever, their sen|ence under Section 307/34 is reduced to R.I. for 3 years in place of RJ. f^r 10 years. It is stated that appellant No.l-Naveen butt is in custody for |ast more than 7 years, thereby he has XI-HC—78 ^v^ r^iqi^^l, ?$Tf1-y<t(S, (sl^l^^ W^^\ sh^lch ^ 200 3TT^?T V ( ^f^<^T) ^STI^T ?TF f^-ljch ^SH 3T^T $h^|ich '^IT^R'5crf^TT'3?T^I CM^I<n^1i ^|^<?1? 'fiffe^t "^" 3tRp7 ^n^T <f^^i< already served the sentence impot sed upon him, therefore, he be set at liberty forthwith if he is not requirjed ed in any other case. However, appellant No.2-SQ|itram is directed to surrender before the trial court in order to underg| the remaining sentence imposed upon him and his bail bonds are cancelled. Sd/- Dhirendra Mishra Judge Roshan/-