CRIMINAL APPEAL No.5 OF 1998(S.J.) (Against the judgment dated 12.12.1997 and order of conviction dated 17.12.1997 passed by 2nd Additional Sessions Judge, Gopalganj in Sessions Trial No. 480/1993) 1. Chandrama Dubey son of late Shiv Kumar Dubey, 2. Ram Dayal Dubey son of late Shuv Kumar Dubey, 3. Subash Dubey Son of Chhathu Dubey, (Resident of Sawareji P.S.Mirganj,Dist. Gopalganj ------ (Appellants) Versus State of Bihar ------ (Respondent) For the Appellants : Mr. Aminuddin Ahmad Khan Advocate. For the Informant : Mr. Raj Dular Sah, 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.Mandal,J. Challenge in this appeal is to the judgment dated 12.12.1997 and order of conviction dated 17.12.1997 passed by 2nd Additional Sessions Judge, Gopalganj in Sessions Trial No. 480/1993 whereby appellant Chandrama Dubey has been held guilty under Section 323 of the Penal Code and sentenced to undergo S.I. for three months. Appellant Ram Dayal 2 Dubey has been held guilty for the offence punishable under Section 326 of the Penal Code and sentenced to undergo R.I. for a term of three years. Appellant Subash Dubey has been held guilty under Sections 324 and 379 of the Penal Code and sentenced to undergo R.I. for six months under each count. The sentences have been directed to run concurrently. 2. The back ground facts, in a nut shell, are as follows: P.W.4 Rajendra Mishra lodged a complaint recorded by A.S.I. R.P. Singh of Hathwa police outpost on 26.07.1993 at 1 P.M. at Hathwa State dispensary alleging therein that as the informant was getting ready to go at work at Tubewell Division Mirganj and he was at his ‘dalan’, all on a sudden appellant Subash Dubey arrived there armed with dagger. He caught him by his hand and thereafter dealt a dagger blow on him which hit him above his right eye. In the meanwhile, appellant Ram Dayal Dubey and Chandrama Dubey also arrived there armed with ‘bhala’ and ‘farsa’ respectively. Other accused persons had also come there armed with ‘lathi’. Appellant Ram Dayal Dubey exhorted accused persons present there to take out the eyes of the informant and himself inflicted a ‘bhala’ blow which hit the informant below 3 his right eye. Appellant Chandrama Dubey also assaulted by means of ‘farsa’ which luckily hit the informant on his back with the back portion of ‘farsa’. The informant fell down thereafter accuseds Jitendra Dubey and Harendra Dubey (since acquitted) began assaulting him by means of ‘lathi’. The prosecution case further is that the appellant Subash Dubey snatched his wrist watch. The accused persons thereafter entered inside the house and looted house hold articles kept inside. As per the ‘fardbeyan’ ( Exhibit-4) the occurrence was witnessed by Motilal Turha, Ramanand Choudhary (both not examined) and Dudhnath Sah (P.W.3) and others. On the basis of the said ‘fardbeyan’ a formal F.I.R. (Exhibit-3) was drawn up. The Investigating Officer ( not examined) thereafter investigated the case and having found the allegations true against the present appellants and others submitted charge-sheet on 31.10.1993 under diverse Sections of Penal Code including Section 307 of the Penal Code. Learned Chief Judicial Magistrate took cognizance of the offence of the case under those sections of the Penal code and subsequently committed the case to the court of Sessions. The charges under diverse Sections of the Penal Code including Sections 307,324,379,448 were framed 4 against the appellants to which they pleaded not guilty and thus claimed to be tried. 3. The defence of the appellants was total denial of the occurrence as projected by the prosecution. A plea was further taken that this was a counter blast to the case instituted by some of the accused persons of the present case. 4. To prove the case, the prosecution examined as many as 06 witnesses. P.W.1 Jaleshwar Mishra is cousin of the informant (P.W.4), P.W.2 Gopalji Mishra is the step brother of the informant ( P.W.4). P.W.3 is a witness named in the F.I.R. P.W.4 Rajendra Mishra is informant of the case. P.W.5 Dr. Anil Kumar Verma is the doctor who treated the informant of his injuries and issued injury report (Exhibit 2), P.W.6 Srinivas Singh is a formal witness who has proved the formal F.I.R. (Exhibit-3) and the writings of the Officer-in- Charge in which the ‘fardbeyan’ was recorded (Exhibit- 4). The accused/appellants also adduced evidence and brought on record certain documents to prove their innocence. D.W.1 Dr. gangadhar Tiwary has deposed that on or around the date of occurrence he had examined Manoj Kumar Dubey and found 5 sharp cut injury 3”x1/2”x1/4” on midscalp. It is noted here that Manoj Kumar Dubey is the informant of the alleged counter case being Mirganj P.S. Case No. 176 of 1993. The F.I.R. of which is Exhibit-B. According to Exhibit-B some of the accuseds/appellants of the present case were busy in filling earth in their own land when the prosecution party assaulted them. Exhibit-B further indicates that PW 1 Jaleshwar Mishra and P.W.2 Gopalji Mishra are accuseds in the said case. 5. On consideration of the materials available on record including the deposition of PW’s 1, 2 and 4 as also keeping in focus the injuries sustained by the informant (PW-4) and the positive evidence in this regard adduced by the Doctor (PW 5), the trial court, under the impugned judgment, found and held the appellants guilty under different charges noted above and sentenced thereunder. 6. During the pendency of the present appeal an affidavit jointly affirmed by Ram Dayal Dubey (one of the appellants in the present appeal) and Rajendra Mishra (informant of the present case) has been filed. Paragraph nos. 1 and 2 of the said affidavit read thus: “1. That the matter has amicably been settled between the 6 parties. 2. That further continuance of the criminal proceeding will create bad blood among the parties.” 7. Mr. Aminuddin Ahmad Khan learned counsel for the appellants submits that although the appellants have good case, but, in view of the fact, that good relations have now prevailed between the parties who are not only co-villagers but also distantly related to each other he would submit that the court should take a lenient view in the matter of inflicting sentence, particularly, keeping in view the fact that the occurrence in the present case as alleged by the prosecution case had taken place way back on 26.07.1993. 8. Mr. Raj Dular Sah, learned counsel appearing on behalf of the informant (PW4) admits the genuineness of the affidavit filed before this court and supports the contention of the learned counsel for the appellants that good relations have since been restored between both the parties who are living side by side in the village. Both the counsels, therefore, in one voice, submit before the court, that while inflicting sentence this aspect of the matter should be borne in mind by the court. 9. Learned counsel for the State points 7 out that one of the appellants, namely, Ram Dayal Dubey has been found guilty and convicted under Section 326 of the Penal Code which is a non- compoundable offence, and, as such, the compromise so entered into between the parties and placed by way of an affidavit shall have no consequence so far as the said appellant no.2 Ram Dayal Dubey is concerned. Mr. Aminuddin Ahmad Khan looking to the records of the case states before this court that appellant no.2 Ram Dayal Dubey had already suffered incarceration for close to 11 months before he was granted bail on merit by the court during investigation/trial. Said appellant Ram Dayal Dubey has been found guilty and convicted under Section 326 of the Penal code and sentenced to undergo R.I. for three years under the impugned judgment. Learned counsel for the State does not dispute this statement made on behalf of the appellant. 10. This court cannot be oblivious of the fact that the occurrence in the present case had taken place about 16 years ago. Both the parties are related to each other and reside side by side in a village. In the light of the facts placed before this court by way of joint affidavit filed by both the parties, this 8 court is of the view that while confirming the judgment and order of conviction recorded by the learned trial court the following sentences shall subserve the cause of justice. (i) Appellant Chandram Dubey who has been sentenced to undergo S.I. for three months is directed to pay a fine of Rs. 1,000/- ( one thousand) in stead of the substantive sentence so imposed upon him. In default of payment of fine he shall undergo S.I. for one month. (ii) Appellant Ram Dayal Dubey is sentenced to the period already undergone by him. He is imposed a fine of Rs. 1,000/- (one thousand). In default whereof, he shall undergo imprisonment for a period of two months R.I. (iii) Appellant Subash Dubey who has been found guilty and convicted under Sections 324 and 379 of the Penal Code and sentenced to undergo R.I. for six months under each count is directed to pay a fine of Rs. 1,000/- ( one thousand) under each count/head in stead of the sentence(s) so awarded by the learned trial court. In case of default in making payment of fine, he shall undergo a period of one months R.I. Fines, if realized, shall be paid to Rajendra Mishra (PW-4) and/or his legal heir. Bail 9 bonds of the appellants are hereby cancelled. 11. In the result, the appeal stands dismissed with modification in sentence(s) as noted above. Patna High Court, Dated the 3rd March,2009 Sym/NAFR ( Kishore K. Mandal, J.)