IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.115 of 2011 1. BADRI SHARMA. 2. CHHOTELAL SHARMA. Both Sons of Sri Mangal Sharma. 3. SUSHIL SHARMA S/O SRI BADRI SHARMA. All residents of Village-Surajganj, Bazar, P.S. Gamharia, District- Madhepura. Petitioners. Versus THE STATE OF BIHAR ……….Opposite Party. ----------- 03 07.02.2011 Heard both sides. 2. An application, seeking condonation of delay has been filed vide Interlocutory Application No. 153 of 2011. Having regard to the statements made therein and submission made in support thereof, the same is allowed. Delay condoned. 3. Three petitioners herein, challenge the sustainability of judgment and order dated 19th March, 2010 passed on their Appeal being Criminal Appeal No. 05 of 2000, whereby conviction and sentence recorded by learned trial court by judgment and order dated 24.01.2000 passed in Trial No. 478 of 2000 has been confirmed/affirmed. 4. Petitioners were tried for an occurrence that had taken place on 31.07.1993. According to the prosecution case, informant (P.W.1) had gone to his field to feed his 2 ploughmen. After serving the ploughmen he sat on the ridge of the field, in the meanwhile accused persons above named came there. Petitioner No. 1 (Badri Sharma) wrapped Gamachha around the neck of the informant and tried to pull it by both hands. Petitioner no. 2 (Chhotelal Sharma) is said to have assaulted him by means of Lathi. Accused Mangal Sharma is alleged to have taken away two oxen and plough. Petitioner no. 3 (Sushil Sharma) is said to have snatched his wrist watch. On Hulla, the ploughmen and the witnesses reached whereafter the accused persons fled away. 5. In order to prove the charge(s), six witnesses were examined on behalf of the prosecution, besides exhibiting documents. On a consideration of the material/evidence on record, the trial court found and held them guilty under Sections 323 and 447 of the Indian Penal Code and sentenced to undergo R.I. for one year, R.I. for three months respectively. Petitioner no. 3 (Sushil Sharma) was also held guilty under Section 379 of the Indian Penal Code and sentenced to undergo R.I. for one year. 6. Aggrieved over the said judgment, they preferred Appeal which was considered and dismissed. 7. Learned counsel for the petitioners while 3 assailing the order submits that both the courts below have relied on the evidence of P.Ws. 1, 2 and 3 in order to find that their testimonies in the light of evidence of P.W.6 prove the prosecution case and accordingly they were held guilty. It is submitted that P.Ws. 1, 2 and 3 in their respective depositions have not stated about any assault at the hands of petitioner no. 3. So far as, P.W. 4 is concerned, he is said to have made a general statement which is contradictory to the evidence of P.Ws. 1, 2 and 3. In this connection, counsel for the petitioners drew the attention of the court to paragraph no. 9 of the appellate court’s judgment. On a perusal of the discussions made in paragraph no. 9, in the light of the First Information Report (Exhibit-1) it appears that there is no allegation of assault attributed to petitioner no. 3. In that view of the matter, conviction and sentence recorded against him under Section 323 of the Indian Penal Code is quashed and set aside. This court on a perusal of the materials on record, finds that so far as conviction of petitioner nos. 1 and 2 under Sections 323 and 447 of the Indian Penal Code is/are concerned, there is/are adequate materials on record, justifying their conviction. Further there cogent and convincing materials to justify conviction of petitioner no. 3 4 under Section 379 of the Indian Penal Code is concerned. This court, therefore, is not inclined to interfere with those findings of guilt recorded by the two courts below. 8. Learned counsel for the petitioners, next submits that the occurrence in the present case had taken place on 31.07.1993 and the trial of the petitioners consumed more than seven years. Thereafter, the Appeal also remained pending for more than nine years. For all these years, the petitioner(s) had to undergo the rigours of trial which need to be kept in focus while inflicting sentence(s) for the proven charge(s). It is submitted that from the trial court’s judgment, it would appear that a submission was made that the petitioners are first convicts and keeping in view the injury said to have been sustained by the injured P.W.1 and other material on record a lenient view so far as imposition of sentence should be taken in the matter. It is, thus, contended that the petitioners deserve lesser quantum of sentence. 9. Learned counsel for the State on the other hand, submits that there are concurrent findings of guilt recorded by the two courts below in so far as conviction of petitioner nos. 1 and 2 under Sections 323 and 447 of the Indian Penal Code is/are concerned. It is submitted that 5 allegations of theft and trespass levelled against petitioner no. 3 have also been supported by the eye witnesses examined in the case. He, thus, contends that they do not require any interference. 10. Admittedly the petitioners had to face criminal litigation for about seven years, when the trial court recorded judgment and order of conviction on 24th January, 2000. It further appears from the trial court’s judgment that the petitioners were the first convicts. Having regard to the aforesaid submissions and facts appearing from the two judgments, this Court is satisfied that a lesser quantum of sentence, in the facts and circumstances of the case, would meet the ends of justice. Accordingly, while upholding conviction of petitioner nos. 1 and 2 under Sections 323 and 447 of the Indian Penal Code and that of petitioner No. 3 under Sections 447 and 379 of the Indian Penal Code, the sentence(s) inflicted on them are reduced in the following manner:- I. Petitioner Nos. 1 (Badri Sharma) and 2 (Chhotelal Sharma) shall undergo R.I. for 05 months under Section 323 of the Indian Penal 6 Code. II. Petitioner No. 3 (Sushil Sharma) shall undergo R.I. for 05 months under Section 379 of the Indian Penal Code. Other parts/conditions of sentence shall remain unaltered. The application stood rejected with modification in sentence(s) as indicated above. Safik (Kishore K. Mandal, J.)