At, High Court of Bihar
By, THE HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA
For the Appearing Parties: Nasrul Hoda Khan, Naushaduzzoha, Ram Briksh Singh Pahepuri, Advocates.
(1.) THIS appeal is directed against the judgment dated 19-1-1993 passed by the 8th Additional Sessions judge, Gaya in Sessions Trial No. 482/96 of 1983/1990 whereby the appellant Nos. 1 and 2 namely, Dulli Bhuyan and Jatah ravldas were convicted under Section 324 of the Indian Penal Code and the appellant no. 3 Kuleshwar Bhuyan was convicted under Section 323 of the Indian Penal Code. Appellant Nos. 1 and 2 were sentenced to undergo R. I. for two years and the appellant No. 3 R. I. for one year. Initially the case was registered under section 307 of the Indian Penal Code on the basis of fardbeyan of P. W. 6 Badri Yadav with regard to an occurrence dated 14-8-1993. He alleged that his son Umesh Yadav (P. W. 4)had gone to graze his buffaloes. At about noon of the day one of the she buffaloes suddenly pulled out thatch-pieces from the roof of Dulli Bhuyan's house. Dull! Bhuyan lost his control and assaulted by fist and slaps to Umesh and also abused him. Umesh returned to his house weeping and narrated about the occurrence to his father and others. Thereafter, P. W. 6 and his son Madan mohan Yadav P. W. 5 went to complaint the accused Dulli. Accused Jatah came out with garasa and Kaleshwar Yadav came out with lathi and they made murderous attack upon the informant and his son. Dulli and Jatah gave garasa blow on the Madan Mohan yadav P. W. 5. Whereas accused Kaleshwar gave lathi blow upon the informant P. W. 6. on cry raised by the injured, the villagers came and the victims could be saved. Madan mohan Yadav and Badri Yadav were carried to their home by the witnesses. In the evening the police came and recorded the fardbeyan of Badri Yadav (Exhibit-1). After investigation the charge sheet was submitted under Section 307/34 of the Indian Penal Code. Charges were explained to the accused. They pleaded their innocence and false implication on account of previous enmiry.
(2.) IN order to prove its case the prosecution examined seven witnesses. Fardbeyan (Exht-1), injury reports (Ext. 2/1) were brought as documentary evidence. P. W. 1 is the formal witness who has proved exhibit-1. P. W. 2 Harihar Yadav has been examined as eye-witness. P. W. 3 has also been examined as eye-witness P. W. 4 Umesh Yadav who is the person about whom it has been submitted that he was grazing she buffaloes after which the occurrence occurred. P. W. 5 Madan Mohan Yadav who is the informant's son and is one of the injured. P,w. 6 the informant Badri Yadav is the injured person. P. W. 7 is the doctor. I. O. has not been examined.
(3.) EVIDENCE of the injured witness p. W. 5 and 6 speaks lot about the date and time of occurrence. Their evidence are almost identical that on 14-8-1983 at about noon one of she buffaloes pulled out thatch-pieces from the roof of the Dulli Bhuyan's house upon which Dulli Bhuyan got infuriated and assaulted. Thereafter Umesh went to his house, narrated about the occurrence. When his father went to complaint then they were brutally assaulted by farsa and lathi by all the accused persons as a result thereof the informant and his son received injuries. The injured came to their house and when the police then the matter was reported to the police then the fardbeyan was recorded. Evidence of the doctor P. W. 7 is that on 15-6-1983 he was poked at Pilgrim Hospital gaya and on that day at 3. 50 p. m. he examined Badri Yadav and found following injuries :
(i) One lacerated wound 1/2 x 1/4" x skin deep on the right side of skull. (ii) One swelling with tenderness on the dorsom of the left hand. (iii) One abrasion 1/4" diameter on the left wrist on its dorsom aspect. (iv) One swelling 1" x 1/2" with tenderness over the back of the right forearm below the right elbow joint. (v) Swelling and tenderness over the right foot and one abrasion 1" x 1/4" on the back of left chest. According to the opinion of the doctor all injuries of P. W. 6 Badri Yadav were simple in nature caused by lathi. That doctor has also examined P. W. 5 madan Mohan Yadav who is the P. W. 5 and found the following injuries : (i) One vertical stitched wound on the right side of the skull in 1/2" length. The breadth and depth cannot be ascertained as the wound was already stitched. (ii) One vertical stitched wound on the left side of the skull size 21/2" in length. The breadth and depth of the wound cannot be ascertained as the wound was already stitched.
(4.) ACCORDING to the doctor nature of injuries cannot be ascertained as the injuries were already stitched. The injuries were caused by garasa.
(5.) STATEMENT of RW. 6 and 7 that on the date and time of occurrence they received injuries at the hands of the accused persons is supported from the evidence of the doctor.
(6.) OTHER independent witnesses of the occurrence namely, P. Ws. 2, 3 and 4 have given their statement that on the date and time of occurrence the accused persons assaulted the victim, namely, P. W. 6 and P. W. 5 as a result thereof they received injuries. All the witnesses have been cross-examined on the manner of occurrence but they in their evidence remained intact that on the date and time of occurrence there was attack upon the victims by sharp cutting weapon as well as by hard blunt substance. The evidence of the injured is corroborated by the eye witnesses of the occurrence could not point out any vital contradiction in the evidence of the witnesses so, the evidence on the date and time of occurrence there was assault by the sharp cutting weapon as well as by hard blunt substance remained intact. The doctor has also found that the alleged victims whose name has been stated by the witnesses got injuries on the date and time mentioned by them. Therefore, there is consistent evidence that there was injury to the P. W. 5 and 6. These injuries were caused by the appellants.
(7.) IT has been submitted by the learned counsel for the appellants that the I. O. has not been examined to prejudice the case as they could not point out the contradictions in their evidences. Further submission is that the story of injured that after receiving injury they went their house cannot be believed because as soon a person received injuries he brought to hospital first but in the present case the informant as stated that he kept the injured at the house so it has been submitted that the entire allegation becomes doubtful.
(8.) LEARNED APP submits that the injuries were not such in nature which could have compelled the informant to rush the hospital. The police got information and came to the house and thereafter recorded the statement and on the next date the injured were treated at the Government Hospital, Yaya.
(9.) IN this case non-examination of the i. O. has not caused any prejudice to the defence because evidence of injury has been fully supported by the medical reports. Even in the evidence of the witnesses, there is no vital contradiction which could create any doubt that the witnesses were the interested or there was no injury. So, in my view, the prosecution was fully able to prove the charges beyond all reasonable doubt. However, the conviction was already altered under Section 307, IPC to 324 and 323, IPC considering the fact that it could not be proved by the prosecution that injuries were of dangerous in nature or there was not intervening circumstances. In my view, the prosecution has been able to prove only that there was injury to P. Ws. 5 and 6 in the manner as stated by the prosecution. So, I am of the view that the prosecution has been able to prove the charges beyond all reasonable doubt and the trial Court has passed the reasoned order after considering the entire facts and circumstances.
(10.) HOWEVER, on the question of sentence it has been submitted that the appellants have
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remained in custody during trial and investigation. The alleged occurrence is of the year 1983 and about 24 years elapsed and the judgment was passed in the year 1993 and one of the appellant was aged about 60 years and is also of advance aged near 50 years. (11.) HEARD the learned counsel for the appellant and learned APP. I have perused the record, it appears that the appellant has remained in custody for some period during investigation and trial of the case. So, I am of the view that the period of sentence should be modified and it is accordingly modified to the extent that the period undergone by the appellants shall be deemed to be sufficient for the ends of justice. The appellants are discharged for the liabilities of their bail bonds. (12.) WITH the aforesaid modification in the sentence, the appeal is dismissed. Order accordingly.