Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.192 of 2000 =========================================================== 1. Parmeshwar Pandit, Son of Late Narayan Pandit. 2. Nageshwar Kahar, Son of Late Hari Kahar. Both residents of Village Pachamba Tola, Bhatu Bigha, P.S. Nawadah Town, District Nawadah. .... .... Appellants Versus The State of Bihar .... .... Respondent =========================================================== Appearance : For the Appellants : Mr. Abhimanyu Sharma No. 1, Advocate For the State : Ms. Abha Singh, A.P.P. =========================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT Date: 06-07-2012 S.A. Khan, J. The two appellants have challenged the judgment of conviction passed in Sessions Trial No. 96 of 1987/65 of 1990 dated 17th May, 2000, passed by the 2nd Additional Sessions Judge, Nawadah by which they have been sentenced to undergo R.I. for 10 years for offences under [STATUTE] . Both the sentences are directed to run concurrently. 2. The First Information Report has been instituted by Md. Irfan Alam on 3.5.1986 alleging therein that during the communal riots that took place in the year 1986 in village Pachamba, the informant along with Mehmood Alam, his uncle (Khalu Mausa) Patna High Court CR. APP (SJ) No.192 of 2000 dt.09-07-2012 2 / 11 2 had gone to buy some articles and were proceeding towards the shop of Parmeshwar Pandit. When they were approaching the shop, they saw 20 to 25 persons standing near the shop. These persons raised ‘hulla’ and caught hold of Mahmood Alam whereas the informant ran away from the place of occurrence. It is alleged that these persons dragged away Mahmood Alam to some unknown place. The informant made efforts to trace him but was unable to do so. 3. After lodging the First Information Report, investigation proceeded in this case. In the subsequent statement given by the informant, he has named several persons including these two appellants Parmeshwar Pandit and Nageshwar Kahar. The informant has been examined as P.W. 1 who has made specific allegations against Nageshwar Kahar and alleged that he was carrying a sword by which he assaulted Mahmood Alam whereas, Parmeshwar Pandit assaulted his uncle by means of a dagger. 4. The only question to be decided in this appeal is whether the prosecution have been able to prove the case beyond reasonable doubt i.e. whether these appellants were the persons responsible for dragging and assaulting the victim Mahmood Alam. 5. Learned counsel for the appellants has argued that the case has been instituted after a delay of 5 days of the occurrence, although there was a posse of policemen posted in the village, it has Patna High Court CR. APP (SJ) No.192 of 2000 dt.09-07-2012 3 / 11 3 been argued that the appellants or for that matter none of the persons who have been named in the subsequent statement before the Investigating Officer under Section 161 Cr.P.C. were named in the First Information Report and as such the implication of the appellants is completely false and is deliberate because there was an earlier dispute between the parties. Lastly, it has been argued that P.Ws. 4 to 7 who claim to be the eye witnesses were not examined under Section 161 Cr.P.C. and their names have been included in the charge sheet by interpolating the same which has been produced on behalf of the defence as Ext. A. 6. In this background I will first take into account of the evidence of P.W. 8. P.W. 8 is the Investigating Officer who has proved the signature of the Officer who has registered the First Information Report. It would be relevant to state that he has supported the prosecution case to the extent that he along with the Deputy Superintendent of Police have supervised the case and found that Mahmood Alam was missing during the riots and that he had been kidnapped or dragged away by persons as mentioned by the informant in his subsequent statement. The attention of P.W. 8 has been drawn to the statement made by the informant in his further examination under Section 161 Cr.P.C. P.W. 8 denies at paragraph 14 of his evidence that P.W. 1 (informant) had stated before him that Patna High Court CR. APP (SJ) No.192 of 2000 dt.09-07-2012 4 / 11 4 Parmeshwar Pandit had inflicted a dagger blow on Mahmood Alam and that Nageshwar Kahar had inflicted a sword blow on the victim. Similarly his attention has been called to the statement made by Md. Usman, P.W. 2 and Sakil Ahmad, P.W. 3 regarding specific allegations against these appellants. The Court below while discussing the evidence of P.W. 8 has considered the submission made on behalf of the defence that the evidence of P.Ws. 4 to 7 should be ignored by the Court as their names have been interpolated in the charge sheet (Ext. A) which is torn. A carbon copy of the charge sheet had also been produced which does not include the name of these witnesses. Having examined Ext. A, this Court finds that there is no difference in handwriting and the charge sheet may have been torn by either parties. It is not very important for this Court to rely on this aspect of the matter in view of the fact that the Investigating Officer has denied that P.Ws. 4 and 7 were examined in the case diary. This Court had looked into the case diary but since I am not relying on any of the statements therein, it has been done only to satisfy myself as to whether these witnesses were examined by the Investigating Officer under Section 161 Cr.P.C. This Court comes to the conclusion that infact they were not examined under Section 161 Cr.P.C. and to this extent the submission of the appellants that the evidence of such witnesses should not be taken into account is a valid Patna High Court CR. APP (SJ) No.192 of 2000 dt.09-07-2012 5 / 11 5 point on behalf of the defence. For this purpose I may refer to a judgment of this Court passed in the case of Maga Ram Rajak & Ors

Applicable IPC Section: 147

Statute Text:
Section 147 of the Indian Penal Code. Rioting. Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.