Patna High Court CR. APP (SJ) No.145 of 1997 dt.20-07-2011 1 Criminal Appeal (SJ) No.145 of 1997 ----------- Against the judgment dated 14th May, 1997, passed by the 3rd Additional Sessions Judge, Begusarai, in Sessions Case No.17 of 1982. ----------- =========================================================== Bhagwat Paswan son of Late Misri Paswan resident of village-Sahabpur Kamal, P.S.-Sahabpur Kamal, District- Begusarai .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Akhileshwar Pd. Singh, Sr. Advocate For the Respondent/s: Mr. R. B. Roy ‘Suman’, APP =========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT (Per: HONOURABLE JUSTICE SMT. ANJANA PRAKASH) 1. The appellant has been convicted under section 326 and 148 Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and two years respectively and a fine of rupees two thousand in default of which further imprisonment for three months by the 3rd Additional Sessions Judge, Begusarai, in Sessions Case No.17 of 1982 by judgment dated 14th May, 1997. 2. The case of the prosecution according to PW 3 Umesh Yadav is that on 10.05.1978, the informant Umesh Yadav had gone to Pachbir Market for purchase of certain articles and was returning along with PW 1 (Ramji Sah) and Bipat Paswan (now dead) and when they reached in front of Jolaha Tola some 9-10 persons variously armed suddenly came there and assaulted the informant. The appellant Bhagwat Paswan is said to have assaulted him on his head, whereas, one Natho Paswan is said to have given a dagger blow on the temporal region. Rest of the two accused are supposed to have given Bhala blow on account of which he fell Patna High Court CR. APP (SJ) No.145 of 1997 dt.20-07-2011 2 down. It is said that Bhusan Paswan also committed theft of his money. It is said that the reasons for the occurrence was that a civil litigation was going on between the informant (PW 3) and his Gotia Bano Yadav in which assault took place in 1971 and, therefore, this occurrence took place. 3. During trial, the prosecution examined five witnesses, out of whom, PW 5 Abu Baqar Hussaini is a formal witness and has proved the First Information Report as Ext.5. PW 4 Md. Abdul Quddus is the Compounder of Dr. Raj Kishore Singh and proved the injury report given by the Doctor as Ext.3 in absence of the Doctor, who died in the meanwhile. PW 1 Ramji Sah, PW 2 Kamli Paswan, PW 3 Umesh Yadav, the informant are the three eye witnesses to the occurrence. 4. On behalf of the defence, three documents were brought on record to show that the informant was previously an accused in another case and to raise doubt that in fact he had been assaulted in another manner and the appellant implicated for the reasons of land dispute which is admitted by the informant. 5. During trial, PW 1 Ramji Sah stated that when he was coming along with Umesh Prasad Yadav (informant) and Bipat Paswan, who were sitting as passengers on his TAMTAM suddenly 7-8 persons surrounded his TAMTAM and assaulted the informant. He identified appellant Bhagwat Paswan, who was armed with Farsa, whereas, Ajo Mistri was armed with Bhala. He further stated that the appellant Bhagwan Paswan gave a farsa blow on the head of the informant, whereas, Ajo Mistri gave a Bhala blow on the chin of the informant. After the assault, 7-8 persons fled away. 6. PW 3 Kamli Paswan stated that when he was going to ease himself in the night of occurrence he saw 8-9 persons variously armed having surrounded the TAMTAM of PW 1, out of whom, he identified the appellant Bhagwat Paswan with farsa and accused Ajo Mistri having a Bhala, and accused Bhushan Paswan Patna High Court CR. APP (SJ) No.145 of 1997 dt.20-07-2011 3 having a lathi. Allegedly appellant Bhagwat Paswan gave a farsa blow on the head of the informant, whereas, Ajo Mistri assaulted him with Bhala. When he fell down, they removed certain articles from his pocket. From his cross-examination, it appears that he had earlier filed a case of arson against the accused persons in which they have been acquitted and, therefore, enmity was admitted between this witness and the accused persons. PW 3 Umesh Yadav, the informant of this case has supported the fard-e-beyan and once again reiterated that apart from others who had assaulted him, the appellant Bhagwat Paswan assaulted him with farsa on his head. 7. Evidently, the Investigating Officer has not been examined and it is pleaded that great prejudice has been caused to the accused on account of his non- examination since the objective evidence about the place of occurrence has remained unproved. PW 4, who proved the injury report of PW 3, was obviously not in a position to explain the injuries sustained by the informant and he merely brought on record the injury report. From the injury report, I find that that the doctor had opined that one incised wound sustained by the informant was grievous in nature but the said injury was 4” x 1” x ½ ’’ and, therefore, the depth was only ½” and possibly not a grievous injury. In absence of the examination of the Doctor, the accused persons have been deprived of cross-examining him on this vital point. 8. Under the circumstances, even accepting the prosecution case that the appellant had assaulted the informant on his head with farsa, in any view of the matter, conviction of the appellant is not sustainable under section 326 Indian Penal Code. Therefore, he is acquitted of the charge under section 326 Indian Penal Code. However, he is convicted under section 324 Indian Penal Code but considering the long lapse of time between the date of occurrence and the present appeal being taken up, he (if alive) is given benefit of section 360 Cr. P.C. on execution of bond Patna High Court CR. APP (SJ) No.145 of 1997 dt.20-07-2011 4 of Rs.2,000/- for maintaining peace for a period of one year. 9. In the result, the appeal is dismissed with modification in the sentence. (Anjana Prakash,J.) Patna High Court, Patna. Dated the 20th July, 2011 NAFR/ JA/-