Patna High Court CR. APP (SJ) No.160 of 1997 dt.08-07-2011 1 Criminal Appeal (SJ) No.160 of 1997 -------- Against the judgment and order of conviction dated 18.06.1997 passed by the 7th Additional Sessions Judge, Saran at Chapra, in Sessions Trial No.201 of 1991. ---------- =========================================================== 1. Amin Rai son of Jibodhan Rai, 2. Ram Prasad Rai son of Jibodhan Rai, 3. Supan Rai son of Late Yugeshwar Rai, 4. Sita Ram Rai son of Late Kishuni Rai, 5. Ram Lagan Rai son of Late Kishuni Rai & 6. Kariman Rai son of Late Kaza Rai All resident of village-Santha, P.S.-Awatar Nagar, District-Chapra (Saran) .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s =========================================================== Appearance: For the Appellant/s : Mr. Mukesh Kr. Singh, Advocate For the State : Mr. R. B. Roy ‘Suman’, A.P.P. For the informant : MR. Arun, Advocate =========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT (Per: HONOURABLE JUSTICE SMT. ANJANA PRAKASH) 1. All the appellants have been convicted under section 307 and 149 Indian Penal Code, whereas, appellant no.1 has been sentenced to undergo rigorous imprisonment for six years, appellant nos. 2 and 3 have been sentenced to undergo rigorous imprisonment for five years and rest of the appellants have been sentenced to undergo rigorous imprisonment for three years. In addition to that, appellant nos. 2 and 3 have also been convicted under section 148 Indian Penal Code and sentenced to undergo rigorous imprisonment for two years by the 7th Additional Sessions Judge, Chapra, by judgment dated 18.06.1997 passed in Sessions Trial No.201 of 1991. 2. The prosecution case is that on 23.04.1990 at about 4.00 PM the accused persons variously armed came to the Bathan of the informant where he and his family Patna High Court CR. APP (SJ) No.160 of 1997 dt.08-07-2011 2 members were sitting and started abusing him as to why his son had participated in a Panchaiti a day before. Thereafter, the accused persons got further enraged and it is alleged that appellant no.2 Ram Prasad Rai gave a Bhala blow on the elbow of the informant and appellant no.3 assaulted the informant on the knee and appellant no.1 gave a Bhala blow on the head of the informant. The rest of the three remaining accused persons assaulted the informant, his son and family members with lathi, on account of which, they were injured. 3. During trial, the prosecution examined seven witnesses, out of whom, P.W.1, 2, 3, 4 and 5 are the eye witnesses and out of same P.W.3, 4 and 5 are the three injured witnesses and P.W.5 himself is the informant. P.W. 6 is the Investigating Officer and P.W.7 is the doctor, who examined the three injured. 4. During trial, all the eye witnesses supported the case of the prosecution. But, on perusing the evidence of three injured, first I find that P.W.3 Ram Pukar Rai, who is the son of the informant, has stated that on the date of occurrence the accused persons variously armed came to their door and thereafter the appellant Supan Rai ordered at which appellant no.2 Ram Prasad and appellant no.3 Supan Rai assaulted the informant with Bhala on his hand, whereas, appellant no.1 Amin Rai assaulted with Farsa on the head. Appellant Sita Ram Rai, Ram Lagan Rai and Kariman thereafter assaulted him with lathis. As for his mother (P.W.4), it was alleged that appellant no.2 Ram Prasad Rai assaulted on her head with Bhala, whereas, appellant no.1 Amin Rai assaulted her with Fasa twice on her head due to which the head was fractured. Appellant Sita Ram Rai, Ram Lagan Rai and Karimal assaulted with lathis. About himself, he stated generally that he was also assaulted by the accused persons. This witness does not say about any intervening circumstances on account of which the accused persons further desisted from assault on the injured. Patna High Court CR. APP (SJ) No.160 of 1997 dt.08-07-2011 3 5. The next injured witnesses i.e. P.W. 4 (Kaliya Devi) has stated that on the date of occurrence the accused persons came to their door while she was sitting then Appellant no.2 Ram Prasad Rai assaulted her on the head with a Bhala and when she fell down appellant Sita Ram Rai, Ram Lagan Rai and Kariman assaulted her with lathis on the head on account of which she sustained fractured. She specifically alleged that appellant Amin Rai and Ram Prasad Rai had hit her on the head. She alleged that her son had been assaulted on the head by the appellant no.2 Ram Prasad Rai with a Bhala, whereas, appellant no. 3 Supan Rai assaulted on the chest. She stated that she was in the hospital for about twenty two days and had been unconscious for about twelve days. 6. P.W.5 (Motilal Rai) also an injured witness has likewise narrated that the appellants came to his Darwaza and on the orders of Supan Rai, appellant Ram Prasad Rai gave Bhala blow on his hand as also appellant Supan Rai gave Bhala blow on his hand. Appellant no.1 Amin Rai is said to have given a Farsa blow on his head and when he fell down rest of the accused persons assaulted him with lathis. He stated that appellant Amin Rai assaulted his wife (P.W.4) twice on the head with Farsa, whereas, Ram Prasad Rai assaulted her with Bhala on the head and rest of the appellants also assaulted her with lathis. He also does not speak of any intervening circumstances at the time of occurrence which stopped the accused persons from further assaulted the three injured. 7. P.W. 1 and 2, the rest of the two eye witnesses have given more or less similar evidence but admitted that they were inimical to the accused persons. P.W.7, the doctor found two simple injuries on the persons of P.W.3, the son of the informant but there is no specific overt act as to who caused which injuries. As for P.W.4 (Kaliya Devi), the doctor found six injuries on her person out of which injury nos. 1, 2 and 3 were caused by sharp cutting and rest by hard and blunt substance. He reserved the Patna High Court CR. APP (SJ) No.160 of 1997 dt.08-07-2011 4 opinion with regard the injuries nos. 1, 2 and 3, but there is no final report in this regard and he stated that injuries were grievous because she had been hospitalized for three weeks. He also stated that injury no.6 sustained by her on the left hand was also grievous. 8. On a close examination of the three grievous injuries of P.W.4 on the head, there is no manner of doubt that they were grievous even though there is no final report with regard to the same. The specific case of the prosecution is that appellant nos. 1, 2 and 3 had assaulted her on the head. As for the injuries sustained by the informant, it appears that doctor had noticed about 7-8 injuries on his persons out of which there were 3-4 bruises on him, whereas, two injuries were on hand and one on the head. The informant alleged that it was appellant no.1, who had assaulted him on the head with Farsa. 9. On a fair assessment of the prosecution case, as narrated before the Court, there is no doubt that in fact the appellants had participated in the occurrence and assaulted in the manner as stated by the three important witnesses. However, undoubtedly the occurrence is said to have taken place in an open area and despite the same there was no allegation that there was any intervention by any neighbours which compelled the appellants to stop the assault. From the manner of occurrence narrated by the eye witnesses, it is difficult to conclude positively that the appellants had the intention to commit the murder of three injured persons. In my view, therefore, the conviction of the appellants under sections 307/149 Indian Penal Code is not sustainable. 10. As a result, they are acquitted of the charges under sections 307/149 Indian Penal Code and appellant nos. 1, 2 and 3 are instead convicted under section 325 Indian Penal Code and sentenced to the period already undergone by them during trial. Appellant nos. 4, 5 and 6 are also convicted under sections 325/149 Indian Penal Code Patna High Court CR. APP (SJ) No.160 of 1997 dt.08-07-2011 5 and they are sentenced also to the period already undergone by them during trial. The conviction under section 148 Indian Penal Code of appellant nos. 2 and 3 is set aside. 11. Further, appellant nos. 1, 2 and 3 are directed to pay a sum of Rs.2,500/- (two thousand five hundred) to the informant/his family members within four months from the date of receipt of notice from the Trial Court and if they fail to do so, they shall have to undergo rigorous imprisonment for six months. 12. In the result, the appeal is dismissed with modification in the conviction and sentence. (Anjana Prakash,J.) Patna High Court, Patna. Dated the 8th July, 2011 NAFR/ JA/-