IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (SJ) NO.80 OF 1998 Against the judgment of conviction dated 27.01.1998 and order of sentence dated 07.02.1998 passed by 3rd Additional District & Sessions Judge, Motihari in Sessions Trial No. 47 of 1987. 1. JIUT SAH, son of late Sahdeo Sah. 2. KISHORI SAH @ KISHORI PRASAD SAH, Both residents of village- Manikpur, P.S. Harsidhi, District- East Champaran. …… …… Appellants Versus State Of Bihar .... .... Respondent For the Appellants : Sri Om Prakash Pandey, Amicus Curiae. For the State : Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. Appellant Jiut Sah was charged under Section 307 and 324 IPC whereas appellant Kishori Sah @ Kishori Prasad Sah was indicted for committing an offence under Section 341 IPC by the learned 3rd Additional District & Sessions Judge, Motihari for being tried in Sessions Trial No.47 of 1987 and by judgment dated 27.01.1998 while appellant Jiut Sah was acquitted under Section 307 IPC he was held guilty of committing the offence under Section 324 and was directed to execute a bond of being good behaviour for 2 a period of two years. Likewise, appellant Kishori Sah @ Kishori Prasad Sah was also held guilty of the offence with which he had been charged and was released after due admonition by the learned Judge. The two appellants have preferred the present appeal against the order of conviction and the sentence which was passed upon them. 2. The prosecution case is that there was proceeding under Section 145 Cr.P.C. pending before the court of an Executive Magistrate, East Champaran, Motihari in between informant Yamuna Sah and accused Jiut Sah. The informant had gone to the court of S.D.O, Motihari for adducing evidence through his witnesses, namely, Jhingan Sah and Dukhi Sah both of whom have not been examined. It is stated that appellant Jiut Sah saw the informant as his witnesses and left the court and when the informant was returning with Nigam Sah(not examined) at about 5 P.M. the two appellants were waiting for his arrival and at a place in between the bus stand and the Kutchari Chawk along with the two unknown criminals surrounded the informant and appellant Jiut Sah, saying that his enemy had come and he should be killed, started dealing Chaku blows after taking out the weapon from his waist band. The informant stated that he was hit by the blows on his chest, below left 3 side of chest as a result of which he fell down and again the appellant Jiut Sah attempted to give another blow and when the informant attempted to ward the blow off, he got his hand injured. The file relating to the litigation also came out of the Jhola which the informant was carrying and that was also picked up by the accused persons who kept surrounding the informant. It was stated that an unknown accused was armed with a gun and he was frightening him during the course of the assault and during that course Yoga Nand and Paras Mishra arrived at the place of occurrence by rickshaw and retrieved the file of litigations from the possession of appellant Kishori Sah @ Kishori Prasad Sah and also saw the occurrence. 3. It was stated by the informant that the reason for the commission of the offence was the same litigation pending before the S.D.M., Motihari in which the informant had got an order in his favour but in spite of that the present set of appellants wanted the informant to relinquish the land in their favour. 4. On the basis of Ext-4, the written report of the informant, P.W.4, the FIR of the case Ext-2 was drawn up and the investigation was proceeded with, during which course, the informant was examined by P.W.5 Dr. Hari Kishore Prasad Verma who was posted on 11.08.1986, i.e., the date of occurrence, in the Sadar 4 Hospital, Motihari as Medical Officer who examined the informant Yamuna Sah and found following injuries:- (i)Incise wound on left back of wrist 1”x1/2”x skin deep. (ii)Stabbed wound on the left side of the abdomen at two places measuring 2”x1/2” skin deep and 1.1/2”x1/2”x skin deep. The two injuries were bleeding in the opinion of P.W.5. The injuries were caused by sharp pointed weapon, like, a Chura within six hours of his examination of P.W.4. The injury report which was prepared by P.W.5 was marked Ext-3. 5. So far as the witnesses are concerned, it is true that Jhingan Sah and Dukhi Sah who had accompanied the informant P.W.4 up to the court of Executive Magistrate had not been examined so as to telling the court that indeed the present appellant Jiut Sah also attended the proceeding but considering the evidence on record, it appears that the probability was that because the appellant Jiut Sah was one of the necessary parties to the proceedings who was seriously litigating with the informant, it could be possible that he had been present and had visited the court. As such, the inference drawn by the learned Judge that the appellant Jiut Sah had attended the court and the proof of the fact by virtue of the 5 evidence of witnesses, like, P.W.4, the informant of the case; P.W.1 Yoganand Singh who had arrived at the place of occurrence by rickshaw along with P.W.2 Paras Mishra appears to be the right conclusion which was arrived by the court below. P.Ws.1 and 2 had no axe to grind against the present set of appellants, specially appellant Jiut Sah, as they were completely alien to the litigation or to the cause of any of the parties to the litigation and appear independent persons who had arrived in the usual course of their journey at the place of occurrence and as an ordinary onlooker had intervened into the occurrence as a part of the civilized society. They have stated that when they saw the informant being assaulted by the appellant still without knowing the name of appellant Jiut Sah, intervened in order to specify the fact which was one sided and saw Jiut Sah giving blows with chura on different parts of the body of P.W.4. Consistency, a ring of truth, which are the main features of acceptability of evidence of witnesses, I find, appearing in the evidence of the two witnesses and on that account I do not have any hesitation in holding that the learned court below was perfectly justified in using their evidence as trustworthy enough to record the conviction. 6. It is true that P.W.4 was a strong enemy 6 of appellant Jiut Sah but there does not appear any suggestion given to any of the witness that on that particular day hearing of the proceeding under Section 145 Cr.P.C. was not slated before the S.D.O., Motihari as may appear from paragraph-5 of cross-examination part of the evidence of P.W.4 and as such it appears the ordinary natural conduct of a litigant that appellant Jiut Sah must have, on account of some compulsions of the litigation which most often propel some of the parties to the litigation to take some drastic action out of impulsive behaviour and may be that having seen his enemies and might also be that there had been some adverse order, though no copy of order was placed on record, the appellant Jiut Sah would have thought out a plan. However, as regards the complicity of Kishori Sah @ Kishori Prasad Sah, the other appellant the evidence is completely absent that he was also present any where in the court premises or that he was seen going out of the court premises with his father. The village from which the informant and the present set of appellants were reaching Manikpur under police station Harsiddhi, was quite away from the district headquarters of East Champaran at Motihari and there is complete lack of evidence which indicates that by any means which were available in 1986, the appellant Jiut Sah could have solicited the 7 presence of the other appellant Kishori Sah @ Kishori Prasad Sah, so as to acting with him in assaulting the informant. Due to the absence of evidence on these aspects on the conduct and participation of appellant Kishori Sah @ Kishori Prasad Sah, what I find is that his implication is by way of the natural dislike and the tendency which is generally found in litigating parties to rope as many and as important members of the family as could be possible by him. The son is being roped probably on account of that animus so as to paralyse the whole family by being harassed due to implication of some innocent persons. 7. In the result, what I find is that the conviction of Kishori Sah @ Kishori Prasad Sah was not justified. He, as such, is acquitted of the charge for which he had been found guilty. 8. So far as appellant Jiut Sah is concerned, considering the consistent evidence of witnesses and the supporting evidence of P.W.5, Dr. Hari Kishore Prasad Verma, I find no reason to interfere with his conviction and the same is hereby sustained. 9. In the result, the appeal is partly allowed on account of the acquittal of Kishori Sah @ Kishori Prasad Sah and dismissed in part on account of there being no merit in the appeal of appellant Jiut Sah. 8 10. Sri Om Prakash Pandey, Amicus Curiae has assisted this Court and he deserves one fee of argument, which is directed to be paid by the Patna High Court Legal Services Committee for which purpose, let a copy of the first and the last page of the judgment be made over to him. Patna High Court, Dated, the 25th day of November, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)