IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.396 of 2011 1. ANNRUDH MAHTO SON OF LATE RAM PRASAD MAHTO 2. SUNIL SINGH @ SUNIL KUMAR MAHTO @ SUNIL KUMAR @ SUNIL MAHTO SON OF ANNIRUDH MAHTO, BOTH ARE RESIDENTS OF VILLAGE BISUNPURA, POLICE STATIONS NOKHA, DISTRICT ROHTAS(BIHAR) …PETITIONERS Versus THE STATE OF BIHAR …OPPOSITE PARTIES ----------- 02. 04.04.2011 Rule confined to the question of sentence only. Learned APP waives service of notice on behalf of the State. Heard. With the consent of the parties, this application is now being disposed of. The two petitioners herein are father and son. They are aggrieved by judgment and order dated 28.01.2011, passed by learned Addl. Sessions Judge, F.T.C.II, Rohtas at Sasaram on Cr. Appeal No. 50/08, whereby judgment and order of sentence dated 30.06.2008, passed by learned Judicial Magistrate, 1st Class, Sasaram in G.R.No.1514/99/T.R.No.673/08 have been partly allowed inasmuch as the conviction under section 323 recorded against them was set aside, whereas conviction recorded against them under sections 341 and 325 IPC was sustained. With respect to an occurrence that had taken place on 28.09.1999, an FIR(Ext. 6) was lodged by the informant Arjun Singh(P.W.7) alleging therein that while he was 2 engaged in raising the height of Chabutra, the informant objected to it on the ground that this would create obstacles in free flow of water. Petitioner no.1 is said to have pushed the informant and exhorted other accused persons to assault him. Thereafter accused Ishwar Chand Mahto assaulted the informant on his forehead with Lathi whereafter co-accused Kishori Mahto is said to have assaulted Bhim Singh(P.W.3) with Lathi as a result whereof he too sustained injury. The nephew of the informant(P.W.4) in the meanwhile intervened whereafter it is alleged that both the petitioners assaulted him with Lathi as a result of which he sustained grievous injuries on his thumb. Petitioners along with others were thus put on trial wherein eight prosecution witnesses including three injured witnesses, namely, P.Ws.3,4 and 7 were examined. The doctor (P.W.5) was also examined who is said to have proved the injury report(s). On a consideration of materials on record, learned trial court found and held them guilt under sections 341,323 and 325/34 IPC and sentenced to undergo S.I. for one month under section 341 IPC, R.I. for two years with a fine of Rs. 2000/- under section 325 IPC and in case of default of fine both the convicts were directed to undergo R.I. for a period of two months. Aggrieved over the said judgment, petitioners preferred appeal wherein evidence/materials on record were reappraised and conviction under section 323 IPC was set aside, whereas conviction recorded under section 341 and 325 was sustained. Learned counsel for the petitioners while assailing 3 the order submits that going by the narration in the FIR (Ext.3) it would appear that both the parties are residing adjacent to each other. There was a quarrel with regard to construction of a Chabutra which, accordingly to the accused side, was bound to obstruct free flow of water. It is further contended that the occurrence had taken place in a flash of temper and there was no pre-meditation or pre-planning. It is next contended that for about nine years petitioners had to undergo ordeal/ rigours of trial which had telling effects on the mental and economic condition of the petitioners. It is also contended that the trial court has not found the petitioners carrying any murky past inasmuch as the submission on behalf of petitioners was made that they are the first offenders. Learned APP, on the other hand, submits that there is/are concurrent findings of guilt recorded by the two courts below based on appraisal and re-appraisal of evidence on record which have not been shown to be perfunctory and/or perverse meriting interference. Having considered the submissions made on behalf of the parties, this Court is in agreement with the submissions of petitioners that the occurrence had taken place on a flash of temper. There is nothing on record to decipher that there was any pre-planning. It further appears that petitioners had to undergo ordeal/rigours of trial for about nine years. Learned counsel is further correct in his submission that they were found the first convicts by trial court. 4 Having regard to all these facts appearing from records this Court is satisfied that petitioners deserve a lenient sentence for proven charge(s). Accordingly, while upholding the conviction recorded under section 341 and 325 IPC, the sentence awarded under section 325 IPC is reduced to R.I. for nine months. Other part(s)/condition(s) of sentence shall remain untouched/unchanged. With this modification in sentence, the application is dismissed. hr ( Kishore K. Mandal )