CRIMINAL APPEAL No.157 of 1993 (Against the judgment and order dated 19th May, 1993 passed by Sri V.D. Mandal, IIIrd Additional Sessions Judge, Madhepura passed in Sessions Trial No. 120/1986 ) 1. MD. SASIQUE . SON OF MD. MASRAF 2. SIYA SHARAN SAH SON OF DHANAI SAH 3. SITA RAM SAH SON OF DHANAI SAH(since Dead) ALL ARE RESIDENT OF VILLAGE-BARDAHA TOLA-MOHANPUR, POLICE STATION- GHAILADH, DISTRICT MADHEPURA ----------Appellants Versus 1. STATE OF BIHAR- 2. MD JALALUDDIN, SON OF MD MASRAF, RESIDENT OF VILLAGE-BARDAHA TOLA-MOHANPUR, POLICE STATION- GHAILADH, DISTRICT MADHEPURA ------------Respondents For the appellants : Mr. Shankar Sharma, Advocate Mr. Ranjit Jha, Advocate For the State : Mr. S.N. Prasad, APP P R E S E N T THE HON'BLE MR. JUSTICE KISHORE KUMAR MANDAL Kishore K. Kandal,J Challenge in this appeal is thrown to the judgment and order dated 19th May, 1993 recorded by learned Addl. Sessions Judge-III, Madhepura in Sessions Trial No. 120/1996 whereby and whereunder the appellants were found guilty under sections 452 and 324 of Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and 6 months respectively. The sentences have been directed to run concurrently. 2. Before I proceed further, this is to be recorded that during the pendency of the appeal, learned counsel for the - 2 - appellants had produced a xerox copy of death certificate respecting appellant no. 3 Sita Ram Sah before this Court to show that the aforesaid Sita Ram Sah (appellant no. 3) had died on 23.12.2000. Under order dated 17.1.2008, a report was called for from the Superintendent of Police, Madhepura as to whether aforesaid appellant is dead or not. A report dated 19.6.2008 submitted pursuant to the order of this Court is at Flag ‘A’. The Superintendent of Police, on making appropriate inquiries, found that the aforesaid appellant had died during the pendency of the appeal. In that view of the matter, the present appeal, so far as appellant no. 3 Sita Ram Sah stands abated and is, accordingly, dismissed as having been abated. The office shall carry out necessary correction in the cause title of the present memo of appeal. 3. The present appeal germinates out of an F.I.R. being Madhepura P.S. case no. 73/1985 lodged on 10.5.1985 by the informant Md. Jalaluddin (P.W. 6). The formal F.I.R. is on record as Ext.8. The allegations set out in the F.I.R., in brief, is/are that on 9.5.1985, the informed returned home and in the night, he was sleeping in his house with his family members after closing the door. At about 12 p.m., he heard sound of knocking the door. It seemed to him that some persons were pushing the door from outside. The informant woke up and tried to push the door from inside. It is also alleged that he inquired about them but no body replied. In the mean time, he called his - 3 - wife Bibi Sakina (P.W. 4) to assist him in keeping the door in tact. However, the accuseds were successful in breaking open the door. 17 persons including the appellants were seen standing on the door. All of them entered into the room, dragged the informant outside on to the ‘Varanda’. The informant claimed to have identified as many as 14 accused persons including the present appellants who were seen armed with ‘lathi’ and ‘phatta’(bamboo stick). Co-accused Sarjug and Sitaram Sah (A-3 since dead) ordered to beat him up so that he may not remain physically fit. On the orders of the aforesaid accuseds, it is alleged, all the accuseds assaulted the informant with’ lathi’ and ‘phatta’ on his both legs. In the mean while, his wife (P.W. 4) came to save him. She is also said to have been beaten up by them with ‘phatta’. Thereafter they entered into the room and took out certain documents relating to land as also the ‘Quran’ and two-cell torch from the Almirah fitted on the wall. On hulla raised by him, villagers namely Bhogi Tanti, Jagdish Tanti, Binod Sada, Anup Sah, Rasul Mian and Md. Jakir (P.W. 1) and others came there and witnessed the occurrence. The informant further alleged that the motive for occurrence was enmity between the parties. It is to be noted here that appellant no. 1 is full brother of the informant. Next morning the A.S.I. of Police (P.W. 7) visited the place of occurrence and, accordingly, recorded the ferdbeyan of the informant (P.W. 6). P.Ws 2 and 3 became witnesses to the - 4 - recording of the said ferdbeyan. P.W. 6,( the informant) has identified his signature on the ferdbeyan as Ext. 4. P.W. 2 and P.W. 3 have proved their signatures on the ferdbeyan as Ext.1 and Ext. 3 respectively. 4. On recording the ferdbeyan, a formal F.I.R (Ext. 8 ) was drawn up and thereafter the informant P.W. 7 embarked on investigation. On concluding the investigation, a charge sheet was submitted on 31.12.1985 against 17 accuseds named in the F.I.R. holding that the case was found true under sections 147, 148, 452, 307, 380 and 325 of Indian Penal Code. The Court took cognizance of the case. The learned C.J.M., Madhepura, under order dated 4.4.1986 committed the case to the Court of Sessions for taking up the trial of the case as the same was found triable by the Court of Sessions. On 18.7.1988, the learned Trial Court framed charges against the accused persons including the appellants under various sections of the Penal Code noticed above. 5. The appellants pleaded not guilty. Specific plea was made that no occurrence had taken place in the manner alleged by the prosecution and because of enmity existing from before between the parties, a false and concocted case had been filed against them. Since the accused had abjured the guilt, the trial was followed. 6. In order to bring home the charges, the prosecution examined as many as 10 (ten) witnesses. It is to be noted here - 5 - that P.Ws 9 and 10 are formal witnesses. They are Court Muharrirs (Advocate Clerks). P.W. 1 is Md. Jakir who is said to have reached at the place of occurrence on hearing hulla raised by the informant (P.W. 6). P.W. 2 Satyendra Yadav and P.W. 3 Birendra Kumar Yadav are also the witnesses who came to the place of occurrence on ‘hulla’ raised by the informant. They are also witnesses to the recording of the ferdbeyan. P.W. 4 Bibi Sakina is the wife of the informant. P.W. 5 Samida Khatoon appears to be daughter of the informant. P.W. 6 Md Jalaluddin is informant of the present case. P.W. 7 Sri Ram Vilas Singh is a police official (A.S.I) who conducted investigation into the allegations spelt out in the F.I.R. and laid charge sheet. P.W. 8 Dr. Moinuddin Ansari is said to have medically examined P.W. 4, Bibi Sakina and the informant (P.W. 6) and issued injury reports (Ext. 6 and Ext. 6/1) 7. Learned Trial Court on consideration of the evidence on record found and held that there was no sufficient oral or documentary evidence on record to show/indicate that on the date of occurrence, the informant (P.W. 6) and his wife (P.W. 4) were beaten up seriously by the accused persons. The evidence brought on record in the shape of deposition of P.Ws 4 and 6 reflected that the injureds were only given a thrashing with ‘phatta.’ The Court below also noticed the contradictions in the evidence of P.W. 4 and the evidence of I.O. (P.W. 7). The Trial Court further found that P.W. 4 had not stated about the - 6 - assault by ‘Khanti’ (a weapon of assault) before the Investigating Officer. The evidence of the prosecution read along with document placed on record by the defence, do indicate that enmity between the informant and the accuseds/appellants is/was somewhat admitted by both the parties. Considering the lacuna in the injury reports (Exts. 6 & 6/1) and also in the evidence of the Doctor (P.W. 8), it was found and held that no case under sections 307 and 380 of Indian Penal Code was/were made out. The Trial Court further found evidence on record highly deficient and discrepant respecting 14 other accused persons facing the trial and as such they were not found guilty. 8. Learned counsel for the appellants submits that the Trial Court erred in law in convicting the present appellants on the same set of evidence when 14 others were let off. He further emphasized that enmity between the parties are manifest from the documents placed on record and the deposition of the witnesses particularly those of P.Ws 1, 2, 3 and 6. According to him, learned Trial Court ought to have applied principles of due care and caution. Per Contra, learned A.P.P supported the judgment and order under appeal and submitted that Court below has carefully evaluated the deposition and has sifted the truth from falsehood which is permissible in law. - 7 - 9. I have carefully considered the submissions made on behalf of the appellants in the light of oral as well as documentary evidence brought on record. The evidence of P.Ws. 1, 2 and 3 (co-villagers) do indicate that they are/were not eye witnesses to the occurrence. They appeared to have reached the scene of occurrence subsequently. P.W. 1 in his examination-in-chief has candidly deposed that he arrived at the place of occurrence after the occurrence and saw the informant in an injured condition lying on the ‘Varanda’. P.W. 2, in his deposition, has stated that he arrived at the place of occurrence on 10.5.1985 at 8 O’clock in the morning. Documents placed on record by the defence in the shape of Exts A, A/1 & A/2, the judgments (Exts B, B/1 & B/2) and the depositions (Exts D and D/1) read along with depositions of P.Ws 1, 2, 3 and 6 go to prove for sure that the witnesses bore hostility from before against the appellants. On appraisal of entire evidence on record, the Trial Court also found that the witnesses had embellished the allegations and interluded therein allegation of theft and participation of several persons (17 in number) which are/were discrepant. The Trial Court has, therefore, rightly acquitted 14 accuseds who were put on trial along with present appellants. The testimonies of P.Ws 4, 5 and 6 (informant) however, appear to be coherent on the point that these appellants on the date of occurrence forcibly entered into the - 8 - room, caught hold of the informant, dragged him outside and thrashed him with ‘danta’ or ‘phatta’ (bamboo stick) and when the wife (P.W. 4) came to save him, she was also assaulted. The Doctor, P.W. 8) found injuries on their persons and after examining them, he issued injuries reports (Exts. 6 and 6/1) although without any radiological test(s) to show the nature of injuries sustained by the informant. True it is that those injury reports were forwarded to and received by the Investigating Officer (P.W. 7) about two months after occurrence as per the evidence of the Investigating Officer but on this score itself, the ocular evidence of the witness available on record cannot be completely ignored or disbelieved. Having thoughtfully reflected over the evidence available on record, it appears to me that the evidence of P.Ws 4, 5 and 6 is/are at least consistent on the point that the appellant did commit house trespass, having made preparation for causing hurt or assault and in the process, caused injuries to the informant (P.W. 6) and his wife (P.W. 4) by ‘danda’ or ‘phatta’. The prosecution has, therefore, been able to sustain the charges framed under sections 452 and 324 of Indian Penal Code. Incidentally, it may again be observed that the evidence on record do sustain the allegation of assault at the hands of the appellants. 10. The question is now as to what should be the appropriate sentence to be inflicted upon the appellants. Counsel for the appellants, referring to the judgment submits - 9 - that on the date of judgment, appellant no. 1, who is full brother of the informant, was found aged about 55 years. Appellant no. 2 Siya Sharan Sah was aged about 35 years. It has been submitted before this Court, as was submitted before the Trial Court, that there is/was no previous conviction recorded against these appellants. Counsel for the appellants further emphasized that the Court should take into consideration the fact that the occurrence had taken place way back on 9.5.1985 and since then the appellants are pursuing the litigation and as such undergoing the rigours of trial and appeal. It has further been argued that appellant no. 1 is by now 70 years of age whereas the appellant no. 2 Siya Sharan Sah has since already settled in life and earning livelihood for himself and his family members. 11. Having taken into account all these aspects, I am of the view that the following sentence shall meet the ends of justice: (i) Both the appellants are sentenced to undergo rigorous imprisonment for 3 (three) months under section 452 of Indian Penal Code. They are also imposed a fine of Rs. 500/- each in addition to sentence. In case of default of payment of fine, they shall further go rigorous imprisonment for 15 days. (ii) Appellants are also sentenced to undergo - 10 - rigorous imprisonment for one month under section 324 of Indian Penal Code. (iii) The sentences so imposed shall run concurrently. (iv) In case of realization/payment of fine by the appellants, the same shall be paid to either the informant (P.W. 6) or his wife (P.W.4) 12. In the result, the appeal stands dismissed with modification in the sentence as indicated above. The bail bonds of the appellants are hereby cancelled. They are directed to surrender before the Court below within a period of six weeks for serving out the sentence/remainder part of sentence. (Kishore K. Mandal, J.) Patna High Court, Dated 5th February, 2009 NAFR/(pkj)