1 CRIMINAL APPEAL No.304 OF 1993 - - - - - - 1. RAM NARESH SHARMA 2. Anant Lal Sharma Both sons of Bahadur Sharma 3. Nagendra Sharma son of Kalpu Sharma 4. Dhurandhar Sharma son of Nanhipat Sharma All residents of village Akbar Malahi, P.S.Sarai,District Vaishali … … Appellants Versus THE STATE OF BIHAR … … Respondent Against the judgment and order dated 27.8.1993 passed by Additional Sessions Judge III, VAishali at Hajipur, in Sessions Trial No. 65 of 1987, arising out of Sarai P.S. Case No.14 of 1984, G.R. No. 773 of 1984. - - - - - For the appellants: Shri Shrinandan Pd.Singh Shri Ashok Kumar No.1 For the State : Shri Dashrath Mehta, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha, J.- This appeal arises out of the judgment and order of conviction passed by the 3rd Additional Sessions Judge, Vaishali at Hajipur, in Sessions Trial No.65 of 1987 on 27.8.1993. The four appellants were put on trial in the above noted case for a joint charge under Section 307/34 of the Indian Penal Code. There were individual charges also. Appellant Ram Naresh Sharma was charged under Section 326 of the Penal Code for causing grievous hurt to Nevilal Sharma, P.W.5, whereas, appellant Anant Lal Sharma stood charged under Section 324 of the Penal Code for causing hurt to the above noted P.W.5, namely, 2 Nevilal Sharma. The remaining two appellants, namely, Nagendra Sharma and Dhurandhar Sharma were charged under Section 323 of the Penal Code for causing hurt to the informant Nevilal Sharma. The occurrence took place on 28.4.1984. 2. The prosecution story was that the grand son of the informant had defecated in the field of the accused persons and, as such, appellant Nagendra Sharma abused him which was forbidden by the informant and that ensued an altercation between the two sides. It is alleged, at the orders of appellant Nagendra Sharma to assault, appellant Ram Naresh Sharma dealt farsa blows on the head and back of P.W. 5, Nebilal Sharma. Accused Dhurandhar Sharma assaulted P.W.5, Nevilal Sharma with lathi on his waist, whereas, accused Anant Lal Sharma assaulted P.W. 5 with bhala which hit him somewhere around his left elbow. The injured Nebilal Sharma was rushed to Sadar Hospital, Hajipur, and his fardbeyan was recorded and that resulted in investigation by the police and ultimate laying down of the chargesheet and trail of the appellants which ended in judgment and order of conviction, as indicated above. 3. The defence, as set up by the appellants in the court below, was that there was no such occurrence as alleged and that the witnesses had 3 come with false story of assault and other aspects of the matter. The informant was suggested that there was some litigation between the parties and in order to settling scores a false case was lodged by him. 4. It may be relevant to note at this juncture itself that the defence has not examined any witness nor it could produce any document in support of its suggestion. As regards the prosecution, it examined a total of nine witnesses out of whom P.Ws. 1, 2 and 5 have given eye witness account of the occurrence, P.W. 5 being an injured witness also. P.Ws.7 and 8 are the Doctors who examined P.W.5 and P.W.8 being a Radiologist who was attached to the Sadar Hospital, Hajipur, and who gave his opinion on the X-Ray plate which was placed before him for that purpose. After appreciation of the evidence the learned Judge who rendered the judgment of conviction and passed the order of sentence found appellants Ram Naresh Sharma and Anant Lal Sharma guilty of committing offence under Section 324 of the Indian Penal Code, whereas, appellant Nagendra Sharma was convicted for committing offence under Section 324 read with Section 109 of the Penal Code though there was no charge in that behalf. As regards appellant Dhurandhar Sharma, he was found guilty of committing offence under Section 323 of the Penal Code. While 4 hearing on sentence the learned Judge refused to give the benefit of Section 360 of the Code of Criminal Procedure but also did not pass any substantive sentence for any term of imprisonment and proceeded to inflict sentence of fine upon all the appellants which was of Rs. 3,000/- to be paid by each of them found guilty under Section 324 of the Penal Code and in default to rigorous imprisonment for two years. That sentence covered all the appellants except appellant Dhurandhar Sharma who was directed to pay a fine of Rs. 1,000/- for committing the offence under Section 323 of the Penal Code, else, to suffer rigorous imprisonment for one year. The entire amount of fine to be realized from the appellants, was directed to be paid to the victim and the informant as compensation, probably, under Section 357 of the Code of Criminal Procedure. 5. I have herd Shri Shrinandan Prasad Singh, learned counsel for the appellants and shri Dashrath Mehta, learned Additional Public Prosecutor for the State. 6. Learned counsel for the appellants attacked the judgment and order of conviction on the ground that the witnesses were related and, as such, interested. An attempt was also made to impress upon the Court that the witnesses may not be the eye 5 witnesses to the occurrence or if they are held like that then their evidence may not be of that quality as to be accepted as creditworthy. The last contention was that it was an incident which took off from a very minor incident and the appellants have suffered on account of being convicted in 1993 in a case which was instituted sometimes in the year 1984 and are still suffering on account of pendency of the present appeal. It was contended that their sufferance is greater than any punishment which could have been inflicted upon them. 7. I went through the evidence of the witnesses, specially, P.Ws. 1, 2 and 5, i.e., Mahesh Sharma, Khakhan Sharma other family members of the informant and the informant and injured himself, namely, Nevilal Sharma. The 4th eye witness to the occurrence who came to depose is P.W. 3 Kailash Sharma. After having gone through the evidence of the above noted four witness, what I find is that except a very minor variance in their evidence there is no contradiction or defect which could render their evidence individually or the evidence of the prosecution collectively, not acceptable. If one could minutely consider their evidence one could find that the minor contradiction in the manner of assault might be that P.W. 2 could not state as to 6 from which side the assault wsas given to the injured whereas P.W.3 appears stating the correct position from where the assault could inflict an injury which was found by the Doctor on that particular part, i.e., the lateral parietal area of bone. The informant himself appears telling a different story as regards his position and position of his assailant but that does not make it improbable as regards the site of injury. The feature of the evidence of the four witnesses is that in spite of being related to each other they did not depose against any of the appellants out of enmity. Might be that they are family members among themselves, but one has always to appreciate the difference of being interested on account of being related and being interested in real sense of the term. As I understand it, the meaning of the term ‘interested’ is about a person who is holding an interest in the decree which could be passed by a court or a judgment of sentence which could be passed by a criminal court. If it could be shown by some acceptable probabilities that the witnesses could be interested either in the decree or passing of a judgment of conviction so as to ensuring that the man is convicted and sentenced to a particular term of imprisonment then one could be held interested. Relatedness is never a yardstick 7 to discard the evidence of a witness. It simply puts the Court on a guard. If a witness is related the approach of the court could be cautious in reading the evidence and picking out the truth from it. 8. After having gone through the evidence of the witnesses who are related inter se as may appear from the evidence of P.Ws. 1, 2 and 5, I find that there is clear truth coming therefrom and their evidence is quire acceptable. 9. The Doctor who examined the informant found as many as five injuries on his person as may appear from the evidence of P.W. 7. Injury nos. 1 and 3 were incised wounds on forehead and back of P.W. 5 caused by a weapon which could be something like farsa. As regards the allegation that particular appellant inflicted a bhala injury, that is, appellant Anant Lal Sharma who inflicted bhala injury on the left elbow of the informant. The corresponding injury, as per the evidence of P.W. 7, was injury no. 2. Other injuries, i.e., injury nos. 4 and 5 appear caused by hard and blunt substance. The witness P.W. 7 has opined that those were possible by lathi. Thus, there is a corroboration from the Doctor also as regards the allegation of assault individually made against each of the appellants. 8 10. In the light of above discussions made by me, in the light of the evidence of the prosecution, the judgment passed by the trial court appears perfect, under the facts and circumstances of the case and there was no error either on appreciation of evidence or any part of it. 11. As regards the refusal to act under Section 360 Cr. P.C., the learned Judge did not assign any reason. After coming into force of the Probation of Offenders Act, the court could not proceed to act under Section 360 Cr.P.C. but it has nonetheless to give reason as to why it could not proceed to act under the provision of the Probation of Offenders Act and extend the benefits of different provisions under that Act to a convicted man. It was rightly argued by learned counsel for the appellants that it was the result of a trifle matter, might be, due to some heated debate and exchange of words between the parties. Persons are known to lose composer and patience on a very simple thing and the incident might be the result of some unchecked flow of emotion and also on account of being triggered and egged on to committing an act which ultimately fell within the definition of an offence. The learned Judge appears alive to the situation as he did not choose to pass any substantive sentence of 9 imprisonment and proceeded to pass orders on paying fine as indicated in the earlier part of this judgment. 12. The contention was that the case was instituted sometimes in the year 1984 and the conviction was recorded on 27.8.1993 and sentence of fine was passed on 28.8.1993. It is about 16 years that the appeal has remained under scrutiny in this Court and the appellants could not be free from their worries as to what would befall them on account of the pendency of the present appeal. The injuries were simple so much so that the learned Judge also did not find them sufficient to sustain the charge under Section 307 of the Penal Code for which the appellants were originally charged. It was a case in which the appellants were convicted for committing the offence as minor as under Sections 323 and 324 of the Indian Penal Code. It would have served the ends of justice had the learned Judge extended to the appellants the benefits of either Section 3 or 4 of the Probation of Offenders Act under the above facts and circumstances. 13. After passage of so many years, i.e. more than 20 years, since the inception of the case, I atleast would not pass an order of conviction, rather choose to direct that the appellants could 10 appear before the court below and the court below after admonishing them, let them go free. 14. The judgment, as regards the sentence, is modified to the above extent. Otherwise, it is upheld. 15. The appeal is dismissed with the above modification in sentence. ( Dharnidhar Jha, J.) Patna High Court The 17th February, 2009 Kanth/ N.A.F.R.