CRIMINAL APPEAL No.309 OF 1993 ***** Against the judgment of conviction and order of sentence dated 16th of September, 1993 passed by Shri Prabhat Kumar Singh, Additional District and Sessions Judge, Muzaffarpur in Sessions Trial No.- 181 of 1987. ***** 1. RAJDEO MAHTO ……………………..S/O-Desai Mahto 2. KAPILDEO THAKUR ……………………..S/O-Nathuni Thakur 3. CHULAHAI THAKUR ……………………..S/O-Aklu Thakur 4. JIYA LAL THAKUR ……………………..S/O-Chulhai Thakur 5. MURLIDHAR THAKUR …………………… S/O-Chulhai Thakur 6. BASUDEO THAKUR ……………………..S/O-Nathuni Thakur 7. SUKAN THAKUR ……………………..S/O-Nathuni Thakur All are R/O-Vill/Moh./P.O.-Muza Partahiya, P.S.-Saraya, Dist.-Muzaffarpur. ------------------------------------------------(Appellants) Versus THE STATE OF BIHAR ----------------------------------------------(Respondent) For the Appellants : Mr. Yogendra Pd. Sinha (Advocate) : Mr. Nirmal Kumar Sinha (Advocate) : Mr. Arun Kumar (Advocate) For the State : Mr. Ali Mozaffar (APP) For the Informant : Mr. Vindhya Keshry Kumar (Sr. Advocate) : Mr. Radheshyam Kumar (Advocate) P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA ***** S.K. Sharma, J. This appeal has been preferred against judgment and order dated 16.09.1993 passed by Shri Prabhat Kumar Sinha, The learned Additional District and Sessions Judge, Muzaffarpur in Sessions Trial No. 181 of 1987 by which the appellants have been convicted under Section 326 read with 2 Section 149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for six years. Appellants Jiyalal Thakur, Murlidhar Thakur, Sukan Thakur and Rajdeo Mahto have further been convicted under Section 324 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for one year. Appellants Kapildeo Thakur and Chulhai Thakur have also been convicted under Section 323 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for one month. All the sentences have been ordered to run concurrently. It was further directed that period already undergone by them in custody shall be set off against their sentences. 2. With regard to an occurrence dated 13.07.1986 at about 7 a.m. the case was registered on the fardbeyan of the informant Prabhu Dayal Thakur (P.W. 7) who stated that while he along with Hardeo Thakur (P.W. 1), Bhagirath Thakur (not examined), Ram Chandra Bhagat (P.W. 6) and Nasruf Mian (not examined) was preparing mud in his field, then suddenly the appellants along with Rudal Thakur (since dead) and 8 to 10 unknown persons assembled there. They were armed with traditional weapons namely, Lathi, Bhala, Farsa and Sword and asked the informant and his persons to stop preparing mud but when the informant refused then at the behest of Chaturbhuj Mishra (since acquitted) the assault 3 was made initially by Chatubhuj Mishra himself to the informant on his head, back, hand and shoulder as a result of which he received serious injuries and fell down. Indradeo Thakur assaulted the informant on his back with Bhala, Jiya Lal Thakur assaulted with Farsa, Murlidhar Thakur assaulted Bhagirath Thakur on his head and wrist. Rudal Thakur, Kapildeo Thakur and Dharamdeo Thakur were having Lathi and Farsa and they assaulted Ramchandra Bhagat with Farsa and Sword. Sukan Thakur assaulted Nasruf Mian on the head and at the hand with Farsa. Unknown persons also indiscriminately assaulted them. Dhanai Rai (P.W. 2), Sukh Nandan Rai (not examined), Yogendra Mahto (P.W. 3), Shabdul Mian (not examined) and Ram Naresh Thakur were witnesses of the occurrence. 3. The fardbeyan of the informant resulted in registration of a case i.e. Saraiya P.S. Case No.- 93 of 1986 dated 13.07.1986. The formal First Information Report was registered on the basis of fardbeyan. The allegations were investigated into and after completion of investigation charge sheet was submitted under Sections 147, 148, 149, 323, 324, 326 and 307 of the Indian Penal Code. Cognizance was taken and after completing paraphernalia, the case was committed to the court of Sessions where charge under Section 307 of the Indian Penal Code was framed against all the accused persons. Charge under Section 324 of the Indian 4 Penal Code was framed against the appellants Jiya Lal Thakur, Murlidhar Thakur and Sukan Thakur. Charge under Section 326 of the Indian Penal Code was framed against appellant Dharamdeo Thakur. Charges were explained to the accused persons who pleaded innocence and preferred to face the trial. 4. The defence of the appellants was not only of false implication rather it was the case of the appellants that the informant and his associates came and indiscriminately assaulted the appellants and his persons. For that a complaint case was filed. The injuries were exhibited before the trial court and the appellants were implicated so that they could succumb due to pressure of the complaint case. 5. The prosecution in order to prove its case has examined altogether eleven witnesses. They were Hardeo Thakur P.W. 1, Dhanai Rai P.W. 2, Yogendra Mahto P.W. 3, Bhagirath Thakur P.W. 4, Masroof Mian P.W. 5, Ram Chandra Bhagat P.W. 6, the informant Prabhu Dayal Thakur P.W. 7, Achhey Lal Mahto P.W. 8, Dr. Nawal Kishore Jha P.W. 9, Dinesh Prasad P.W. 10 and Hari Charan Rai P.W. 11. 6. The defence has examined five witnesses in support of his defence. They were Suresh Paswan D.W. 1, Dr. Ram Narain Kumar D.W. 2, Harendra Singh D.W. 3, Puneet Bhagat D.W. 4 and Ram Chandra Bhagat D.W. 5. 7. The trial court after considering all the materials on 5 record and facts and circumstances of the case acquitted Chaturbhuj Mishra, Dharamdeo Thakur and Indradeo Thakur and convicted the appellants as stated above. 8. Dr. Nawal Kishore Jha P.W. 9 has found the following injuries on the person of Achhey Lal Mahto : (i) Incised wound 4”x1”x muscle deep on the left scapular region, caused within 12 hours by sharp cutting weapon which might have been caused by Pharsa, Ext.-1. 9. Dr. Nawal Kishore Jha P.W. 9 has found the following injuries on the person of Masroof Mian : (i) Incised wound 1, ½”x ½” x scalp deep over left parietal region. (ii) Incised wound 1”x ½” x skin deep over back of left index finger. Both the injuries were simple, caused within 12 hours by some sharp cutting weapon such as Pharsas. 10. The doctor has found the following injuries on the person of Hardeo Thakur : (i) Incised wound 3”x ½” x scalp deep over left parietal region. (ii) Incised wound 1”x ¼” x muscle deep over back of lower portion 6 of right arms. (iii) Incised wound 1”x ½” x muscle deep over back of the right elbow joint. (iv) Incised wound 1”x ½” x skin deep back of left fore-arm. 11. The doctor has found the following injuries on the person of Ram Chandra Bhagat : (i) Incised wound over the back of left hand amputating medial four fingers and amputating fingers were hanging. The fingers were removed as those had become dead. The injury was grievous in nature Ext.-3. 12. The doctor has found the following injuries on the person of Bhagirath Thakur, father of the informant : (i) Lacerated wound 3” x ½” x scalp deep over the frontal region of skull. (ii) Incised wound 1” x ¼” x skin deep over back of right hand. (iii) Swelling and tenderness over left deltoid region All the injuries were caused by hard and blunt 7 substances. Injury No. 3 was by hard and blunt substance and Injury No. 2 was by sharp cutting weapon might be Pharsa. The injuries were simple. 13. The informant was examined by the doctor and the following injuries were found : (i) Incised wound 4”x ½” x scalp deep over left parietal region. (ii) Incised wound 1”x ½” x ¼” over left side of the nose. (iii) Incised wound 5”x1” x bone deep with piece of bone hanging over back of right lower arm. (iv) Incised wound 2”x ¼” x skin deep over back of left right finger in the middle phalan. (v) Incised wound 2”x ¼” x skin deep over front of right lower arm. (vi) Incised wound 1”x ¼” x skin deep over right clavieular region. (vii) Tenderness over right clavicle in the middle. The injured was X rayed and the X ray exhibited fracture of right clavicle. The Injury No. 1, 2, 4, 5 and 6 were caused by sharp cutting weapon might be by Pharsa but were simple in nature whereas 3 and 7 were grievous. The 8 injury report is Ext. 5. 14. The informant is P.W. 7 of the case. He has stated in his evidence that Chaturbhuj Mishra gave 5-7 Pharsa blows on left side of the head and neck and also at the right hand as well as the right side of the nose. He has shown his injuries to the court. He further stated that Jiya Lal Thakur, appellant no. 4 had given 4 – 6 blows by Pharsa to Hardeo Thakur P.W. 1 whereas Chulhai Thakur, appellant no. 3 had assaulted Bhagirath Thakur P.W. 4 with Lathi and Murlidhar Thakur, Appellant No. 5 assaulted Bhagirath Thakur P.W. 4 with Pharsa. Kapildeo Thakur, appellant no. 2 and Dharmdeo Thakur assaulted Ram Chandra Bhagat with Lathi whereas Dharamdeo Thakur gave him Pharsa blows on his left hand. This witness has detailed the assault of others also. On the point of actual assault he has not stated that Indradeo Thakur had hit him on his back, though this fact was mentioned in his first version given by him which has resulted in registration of the First Information Report. P.W. 7 and other witnesses have not stated that Indradeo Thakur had hit the informant on his back with Bhala blow. 15. Therefore, some variations have been found in the evidence of the informant P.W. 7 though the factum of assault has been supported by all the witnesses but the manner is somewhat different. All the witnesses except P.W. 6 stated that Chaturbhuj Mishra assaulted 5 - 7 times by 9 Pharsa to Prabhu Dayal Thakur P.W. 7. Dhanai Rai P.W. 2 was examined as eye witness but he has not given the number of blows in his evidence. Hardeo Thakur P.W. 1 and Dhanai Rai P.W. 2 have given different versions with regard to same occurrence from other five witnesses who have stated that Chulhai Thakur has hit Bhagirath Thakur with Lathi. Only one witness Yogendra Mahto P.W. 3 had stated that Rudal Thakur had also hit him with Pharsa. Bhagirath Thakur P.W. 4 and the informant P.W. 7 have stated that Murlidhar Thakur assaulted Bhagirath Thakur P.W. 4 with Pharsa but such injuries were not found by the doctor. Two injuries of Bhagirath Thakur were by hard and blunt substance and only one by sharp cutting weapon. So, the version has differed. 16. On the factum of assault, witnesses have supported the informant but the contradictions have appeared with regard to causing the grievous injury to the injured persons. Varying statements have been given by the witnesses with regard to the injuries which were described as grievous injuries by the doctor. P.W. 1 has accounted that he was hit by Pharsa. P.Ws. 1, 4 and 7 stated about the Pharsa blows to Hardeo Thakur but the doctor P.W. 9 had found different types of injuries upon Hardeo Thakur. The injuries have been described by the doctor P.W. 9 which are different from the allegations made by the injured persons. 10 17. With regard to Appellant No. 1 Rajdeo Mahto, P.Ws. 1, 3, 4, 5 and 7 have stated that he has assaulted Achhey Lal Mahto with Pharsa. P.Ws. 1 and 3 have been stated that Rajdeo Mahto had assaulted Achhey Lal Mahto on his left scapula. The doctor has found the injury on the same portion. With regard to other appellants it has also been mentioned in the First Information Report that they were having Lathi and Pharsa and they have assaulted Ram Chandra Bhagat P.W. 6. P.Ws. 1, 2, 3 and 4 have said that Kapildeo Thakur and Dharamdeo Thakur have assaulted P.W. 6 with Lathi whereas Rajdeo Mahto assaulted him with Pharsa. Ram Chandra Bhagat P.W. 6 has himself said that Kapildeo Thakur and Basudeo Thakur had hit him with Lathi whereas Dharamdeo Thakur had hit him with Pharsa. P.W. 7 has also supported about the Pharsa blow stating that Dharamdeo Thakur had hit Ram Chandra Bhagat with Pharsa on his left hand but there was a lot of variations with regard to that statement as the injuries indicated by the doctor P.W. 9 were found at different places. The aforesaid variations were considered by the trial court but it was held that there were minor variations and so such benefit could not go to the accused persons and it was held that the that injuries were found and a case under Section 326 of the Indian Penal Code was believed to be true. 18. So far as charge under Section 326 of the Indian 11 Penal Code is concerned, the prosecution has to establish the grievous injury by stabbing or any instrument which used as a weapon of offence was likely to cause death or by means of any heated substance or by means of any such substance etc. The prosecution has to prove that the injuries have been done voluntarily. If it is not proved then the injury was voluntarily caused then charge under Section 326 of the Indian Penal Code could not stand. If the prosecution has made out a case that the accused persons have voluntarily caused grievous then it was incumbent upon the prosecution to prove that it was voluntarily caused and for that evidence must have been brought. Section 326 of the Indian Penal Code postulates voluntarily causing grievous injury by the accused. However, after going through the entire evidences on the record, I have found that the prosecution has not been able to prove the allegation. 19. Learned Counsel for the informant has pointed out that the prosecution has remained consistent that on the date and time of occurrence the accused persons voluntarily caused grievous injuries to the injured person. 20. After analyzing the evidences it appears that the major allegation is against Chaturbhuj Mishra who allegedly caused grievous injury to the informant P.W. 7 but he has been acquitted. Dharamdeo Mahto and Indradeo Thakur who were also having similar allegations have also been acquitted 12 though witnesses have named them also in different capacities of the assault. 21. Considering the entire aspects of the matter I am of the view that the prosecution has not been able to prove the charges under Section 326/149 of the Indian Penal Code against the appellants. The injuries have been brought on the record. The injured and other eye witnesses have supported the factum of assault so, I am of the view that the prosecution has established the charge under Section 324 of the Indian Penal Code against Raj Deo Mahto and Murlidhar Thakur. Regarding others charge has been proved under Section 323 of the Indian Penal Code. So, their conviction under the said Sections are maintained. 22. On the question of sentences of all the appellants, it has been argued that the appellants have remained in custody during trial and the appeal as they are the first offenders so lenient view may be taken in the matter of sentences and if the sentences are reduced to the period already undergone by them then it may be sufficient for the ends of justice. 23. After taking into consideration the submission of the learned Counsel for the appellants, State and the informant and facts and circumstances of the case, sentence of all the appellants are reduced to the period already undergone by them which will be sufficient for the ends of 13 justice. 24. In the result, the appeal is dismissed with modification in conviction and sentence, as mentioned above. Patna High Court Dated 21st August, 2009 kksinha/-N.A.F.R. ( Shyam Kishore Sharma, J. )