CRIMINAL REVISION No.494 of 2002 With CRIMINAL APPEAL(SJ) No.167 of 2002 ------- Against the judgment and order dated 18th March, 2002 passed by the Additional Court-1,Buxar(Fast Track Court) in Sessions Trial No.704 of 1989. In Cr.Revision No.494/2002 RADHA MOHAN OJHA, son of late Ram Chandar Ojha, resident of Ojha Baraon,P.S.-Murar,District-Buxar. .. .. .. .. .. .. Petitioner Versus 1. THE STATE OF BIHAR 2. Nathuni Ojha,son of late Ram Pravesh Ojha 3. Laxman Ojha,son of late Ram Bilash Ojha 4. Sri Kant Ojha 5. Ramjee Ojha Both sons of Gopal Ojha 6. Gopal Ojha,son of late Nageshwar Ojha. All resident of Ojha Baraon,P.S.-Murar, District-Buxar. .. .. .. Opp.Parties ………………… For the Petitioner : M/s Surendra Kr.Singh & Sudha Singh,Advocates For O.P.Nos.2 to 6 : Mr. Kumar Uday Singh,Advocate For the State : Mr. Jharkhandi Upadhyay,APP In Cr.Appeal(SJ) No.167/2002 1. RAMJEE OJHA 2. Srikant Ojha Both sons of Gopal Ojha 3. Laxman Ojha,son of Ram Bilas Ojha 4. Nathuni Ojha,son of Ram Pravesh Ojha 5. Gopal Ojha,son of Nageshar Ojha All residents of village-Ojha Baraon,P.S.- Murar,District-Buxar .. .. Appellants Versus THE STATE OF BIHAR .. .. Respondent ………………… For the Appellants : Mr. Kumar Uday Singh,Advocate For the Informant : M/s Surendra Kr.Singh & Sudha Singh,Advocates For the State : Mr. Jharkhandi Upadhyay,APP ………………… P R E S E N T 2 THE HON'BLE MR.JUSTICE MANDHATA SINGH Mandhata Singh,J.:-As both these cases arise out of the same sessions trial number, they are heard together and being disposed of by a common judgment. Prosecution case in brief is that appellant Gopal Ojha returned at about 4.30 P.M. from Dumraon Consolidation Office, while informant’s son Radha Mohan Ojha was sitting at his door. He was asserting a claim of his share in land of Khata No.92 measuring an area of 6 Acres and 42 Decimals, Gopal Ojha started abusing him, that was protested, which led to an altercation. Gopal Ojha brought a Farsa from his house and Ramjee Ojha, Srikant Ojha, Rambilash Ojha, Laxaman Ojha, Rampravesh Ojha and Nathuni Ojha also appeared there with Lathi. It is said that Gopal Ojha blew farsa on the head of the informant’s son and remaining accused persons assaulted his son by means of Lathi. He became unconscious, taken to hospital by co-villagers. After concluding the trial accused-appellants Ramjee Ojha, Srikant Ojha, Laxaman Ojha and Nathuni Ojha have been convicted for the offences under Sections 147 and 326 of the Indian Penal Code (hereinafter referred to as `the Code’ for the sake of brevity) read with Section 149 of the Code, while appellant Gopal Ojha has 3 been convicted for the offence under Sections 148 and 326 of the Code. So, each of the convicts has been sentenced for two years. No separate sentence has been passed under Sections 147 and 148 of the Code. For the assault diversant claim has been made on behalf of the parties. On behalf of the petitioner in revision it is said that it was a case of 307 of the Code while on behalf of the appellants of appeal it is said that no offence even under Section 326 of the Code ever made out. So, the only point involved in the case is as to whether any offence is made out for the offence under Section 307 of the Code or no offence at all or minimum an offence under Section 324 of the Code is made out. The only use of Farsa has been made ground for bringing the case under Section 307 of the Code. Charge is also accordingly framed for the same. Land dispute is admitted in the case as altercation started from that point only. Informant’s son victim of the case made claim over a plot that was protested and altercation took place and assault, if any, was caused. In all five witnesses have been examined in the case. They are Radhamohan Ojha (P.W.1), 4 Radhagovind Ojha (P.W.2), Rajeshwar Sonar (P.W.3), Nagender Narain (P.W.4) and Krishna Pd. Sharma (P.W.5). P.W.5 is a formal witness who has proved certain paragraphs of the case diary which in no case is admissible. P.W.4 has proved the execution of injury report. P.W.3 declared hostile. Doctor is admittedly dead in the case. Injury report for deciding the nature of the offence may be taken into consideration if corroborating the assertions made by two of the prosecution witnesses who have come forward to favour the prosecution case, they are P.Ws.1 and 2. P.W.1 is the sole victim while P.W.2 is a co-villager. Admittedly, injury is caused by Farsa that also on head but there is no repetition at all. Rests of the accused persons were armed with Lathi which were used also and if the intention of all was to kill the victim, injury should disclose the same. Three injuries caused by Lathi are found on the person of the victim that also not on vital part, which independently goes to show that intention was not to kill as submitted. So, it has rightly been disbelieved by the trial court. Now it is for the Court to consider if any offence under Section 326 of the Code is made out or not and for that the injury report is relevant. 5 For determining the gravity for concluding 326 of the Code definition given in Section 320 of the Code is relevant. Eight categories are given when any injury can be accepted as grievous but nature of injury no.1 which is by Farsa blow never covers any of the categories. It is 3¼” x ½” x 1/3”. So, nature of the injury speaks about constituting an offence under Section 324 of the Code. Now it is to be considered if the liability can be fiexed upon the appellant Gopal Ojha and extended to rest of the accused persons. Victim P.W.1 is there to state that Farsa blow was given by appellant Gopal Ojha and that is corroborated by P.W.2 also. On this point nothing has appeared in cross-examination to doubt or disbelieve. So, the liability of causing assault constituting of offence under Section 324 of the Code is cast upon Gopal Ojha, that has rightly been concluded by the learned Addl.Sessions Judge(Fast Track Court)-I, Buxar. As about involvement of rest of the appellants for fixing liability of Section 147 of the Code, it is pointed out on behalf of the appellants that though P.W.1 names all the appellants but P.W.2 names only two as assailant and they are named in examination-in-chief itself 6 as Ramjee Ojha (appellant no.1) and Srikant Ojha (appellant no.2). So, presence of two accused- appellants, namely Laxaman Ojha and Nathuni Ojha is doubted and that is further corroborated by number of injuries as all accused persons having in their possession Lathi are said to use the same but only three injuries appeared on the person of the victim by Lathi. That is further strengthened by strained relation between both the families for land dispute. I find relevancy of the fact that a counter case was also filed for the incident of the same day on behalf of the appellants party, which resulted into acquittal on the basis of compromise. According to the appellants really both the cases were compromised. The case filed on their behalf was decided basing the compromise in acquittal but later that could not be complied in the instant case rather revisionist preferred to contest the trial. After above discussions it is clear that number of the assailants needed for application of Section 149 of the Code do not come after doubting presence of appellants no.3 and 4. So, no liability can be extended for the offence under Section 326 of the Code, which now has come to 324 7 of the Code read with 149 of the Code. Now any liability is fixed for the offence under Section 324 of the Code which really is constituting. Using of Lathi can be taken for intention to kill, which is case is disbelieved but that can never be taken to constitute any offence under Sections 326 and 324 of the Code. On the observations made above the revision application is dismissed while appeal is partly allowed. Conviction of appellant no.5 under Section 326 of the Code is converted into one under Section 324 of the Code while he is acquitted for the offence under Section 148 of the Code and rest of the appellants are acquitted for all the offences. Incident is of the year 1987 and it was decided by the trial court only in the year 2002, thereafter remained pending in revision and appeal till today. On account of strained relation between the parties and decision of the appellants’ case on the basis of compromise, sentence of appellant Gopal Ojha is also reduced to the period already undergone. ( Mandhata Singh, J.) Patna High Court,Patna Dated the 27th October,2009 A.H./A.F.R.