(1.) THIS appeal is filed on behalf of the appellants Mahendra Sah @ nathunl Sah, Paras Sah, Prem Sah and mahendra Sah against the Judgment of conviction and order of sentence dated 3-6-1993 and 4-6-1993 respectively passed by the 1st additional Sessions Judge, Rohtas at sasaram in Sessions Trial No. 201/70 of 1986/89 whereby all the appellants were found guilty and convicted under Section 452 of the IPC and sentenced to undergo r. I. for two years. Appellants Nos. 1, 2 and 4 were also found guilty under Section 323 of the Indian Penal Code and were sentenced to undergo R. I. for further six months. Sentences passed against three appellants namely, 1, 2 and 4 were ordered to run concurrently.
(2.) ACCORDING to the prosecution case, the informant PW 8 gave his fard beyan on 8-9-88 at 10 a. m. which was recorded by A. S. I. of Sasaram Town Police Station in Sadar hospital Sasaram. In that fard beyan he alleged that all the four accused who
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are appellants here came along with 5-6 unknown persons who entered into the house of the informant and started assaulting the informant and his family members. At that time the appellant Mahendra Sah was having garasa, appellant Paras Sah with lathi, appellant Prem Sah was having country made gun, appellant Nathuni Sah @ Mahendra sah and 5-6 unknown were armed with lathles. According to further allegation, mahendra Sah assaulted Ashok Kumar who was the younger brother of the informant by his garasa which caused injury on the head as a result of assault blood came out. Mahendra Sah @ Nathuni Sah gave lathi blow to the informant as a result of which the informant sustained injuries on the left hand between the finger of right hand and on the left side of his head and on the legs. Mahendera Sah hurled garasa which caused injury to the informant's wife. Paras Sah assaulted the informant's brother who received injuries on his left scapula and his legs. At that time Prem Sah was pointing his gun and was uttering to kill/appellant mahendra Sah is alleged to have taken away the HMT wrist watch of the informant's brother. On cry of the informant neighbors govind Sah, Haridwar Sah arrived and the accused persons escaped. Even while escaping the accused persons pelted bricks bats and stones as a result of which roof tiles were damaged.
(3.) THE FIR was registered and after investigation charge sheet was submitted under Sections 147, 148. 149, 323, 324, 448, 380 and 307 of the Indian Penal Code. Cognizance was taken and case was committed to the Court of session. Charges were explained ] to the accused persons. They pleaded innocence so the trial was proceeded. The trial Court charged the accused persons under Sections 323, 380, 452, 307 of the IPC and 27 of the Arms Act but the accused persons were acquitted from the charges under Sections 307, 380, IPC and 27 of the Arms Act but were convicted under sections 352 and 323 of the Indian Penal Code.
(4.) THE learned counsel for the appellant has submitted that the manner of occurrence has not been proved beyond all reasonable oubt as the witnesses have given contradictory evidence on the point of assault and also on the point of place of occurrence but the benefit of contradiction has not been given to the accused persons rather it has been given to the prosecution.
(5.) THE prosecution in order to prove its case has examined 10 witnesses. PW 5 manki Devi sister of the informant and PW 6 Govind Sah were tendered by the prosecution. PW 1 Jitendra Prasad Singh an advocate clerk is a formal witness proved the fard beyan (Ext-1). PW 2 Haridwar Sah, PW 3 Dhansari Devi, PW 4 Chano Devi, PW 7 ashok Kumar Gupta and PW 8 Ramanand sah has been examined as eye witness. PW 9 Dr. Devendra Nath Sinha is the medical officer who has examined three witnesses namely, PWs 4, 7 and 8 and he has proved the injury reports which has been marked as Exhibit 3 to 3/b. The Investigating officer has proved the endorsement in his pen which is marked as Exhibit 1 /a and formal fir (Ext-4). PW 8 the informant Ramanand sah in his statement stated that on 7-9-1985 he was on his roof and his brother Ashok kumar Gupta (PW 7) was also with him. In the mean while bricks started pelting from the northeast side. At the same time Paras sah with lathi, Mahendra Sah with Garasa, prem Sah with country made gun, Nathuni sah @ Mahendra Sah with lathi and 4-5 unknown persons came. Mahendra Sah gave garasa blow on the informant's brother as a result of which he got injury on his head. Mahendra Sah @ Nathuni Sah gave lathi blows which caused injury on the hands and foot of the informant. One watch of Ashok kumar Gupta was taken away by Mahendra sah. Informant's wife was also assaulted. Mahendra Sah @ Nathuni Sah assaulted the informant's brother at that time Paras Sah was exhorting others to kill. At the time of fleeing the accused persons took away the box which sustained loss to Rs. 5,000/- on account of that. The informant could not go to hospital because it was raining. Later on the Informant went to hospital where he was treated.
(6.) THE defence has tried to show that there is contradiction in the evidence of informant. As his first statement in the fardbeyan does not show that any attack was on the roof rather the attacks were in the house. It has been submitted that that was the vital contradiction and the trial Court has erred in disbelieving the vital contradiction of the occurrence.
(7.) THE evidence of other prosecution witnesses is identical to the Informant that at the date and time of occurrence the accused persons in furtherance of common intention entered into the house of the informant and they caused various overt acts which caused injuries to different persons and later on those persons were examined by the doctor. PW 9 in his evidence stated that on 7-9-1985 he was posted at Sadar Hospital, Sasaram as Civil Assistant Surgeon and on the same day at 9. 30 PM he examined Chono Devi wife of the informant and found abrasion 1/2" x 1/4" into right parietal region. The injury was simple in nature and caused by hard blunt substance, time elapsed within 12 hours. On the same day he at 9. 30 p. m. he examined the informant Ramanand Sah and found abrasion 14" x 1 /8" in between space of left thumb and left index finger. The injury is simple in nature, time within 12 hours caused by hard blunt substance. And on the same day at 9. 40 p. m. he examined ashok Kumar Gupta PW 7 and found one lacerated wound 1" x '4 x bone deep on the back side in the middle upper part of occipital region. The injury was simple in nature and caused by hard and blunt substance as lathi, within 12 hours.
(8.) THE defence has tried to suggest the doctor that whether such injuries can be manufactured or not. The doctor replied that it can be manufactured but only if a person take risks of pain. The informant and other injured witnesses were examined by the doctor, they in their evidences have stated in the same manner as stated by the informant and they remained intact that at the date and time of occurrence they were assaulted by the accused persons who have made criminal house trespass and committed various overt acts. Besides the injured witnesses other witnesses have also supported that at the date and time of occurrence the accused persons entered into the house and committed various overt acts. This fact has been admitted by the doctor while stated that three persons were injured who were treated by him.
(9.) THERE is consistent evidence that the accused persons committed house tres-pass in the house of the informant on 7th September, 1985 after entering into they assaulted three persons who received injuries.
(10.) THOUGH it has been argued by the learned counsel for the appellant that there is contradiction in the evidences but no such contradiction is available on the record. Therefore, the evidence are consistent that the accused persons committed the house trespass and assaulted. Therefore, in my view the trial Court was right in believing the evidences and passing the order of conviction. I, therefore, find no illegality or impropriety in the impugned judgment. After analyzing the evidence brought on the record, I came to the opinion that the prosecution has been able to prove its case against the appellant. There is no merit in this appeal, accordingly, the judgment and conviction is upheld.
(11.) ON the question of sentence it has been argued by the counsel for the appellants that the occurrence is of about 20 years earlier and the appellants have remained in jail during investigation so their sentences may be modified or they may be let off after due admonition or may be granted benefit of Probation of Offenders Act.
(12.) THE accused persons in furtherance of common intention had entered into the house and committed various overt acts. Considering the seriousness of the offences the trial Court was right in not granting benefit of Probation of Offenders Act. However, considering the fact that the case is of more than two decades old and the appellants have already remained in custody for some days, no useful purpose is going to be served in again sending him to jail, the sentences awarded to them is modified to the extent that the period undergone by them in custody shall be deemed to be sufficient for the ends of justice. The appellants are discharged from the liabilities of their bail bonds.
(13.) WITH the aforesaid modification this appeal is dismissed. Appeal dismissed