CRIMINAL APPEAL No. 375 (S.) OF 1993 ***** In the matter of an appeal under Section 374 (2) of the Code of Criminal Procedure Code against the judgment of conviction and order dated 7th of December, 1993 passed by Sri Diwakar Jha, 1st Additional Sessions Judge, Bhabua in Sessions Trial No.- 404/16 of 1985/1990. ***** 1. BISHUNI YADAV, S/O- Sri Surat Yadav 2. NATHUNI YADAV, S/O-Sri Surat Yadav Both are Residence/Village/Mohalla & Post Office of -Chhotaka Awaon Via- Hatia, Police Station- Chand, District-Bhabhua. -----------------------------------------------Appellants Versus THE STATE OF BIHAR ----------------------------------------------Respondents ***** For the Appellants : Mr. Suresh Prasad Advocate For the State : Mr. Ali Mozaffar Advocate ***** P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA S.K. Sharma, J. This appeal is against the judgment dated 7th of December, 1993 passed in Sessions Trial No.- 404/16 of 1985/1990 passed by Shri Diwakar Jha, 1st Additional Sessions Judge, Bhabua by which he has convicted the appellants under Section 323 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for one year. 2. On the basis of fardbeyan of Ram Briksh Yadav (P.W. 3) a formal First Information Report was drawn by Raj Kr. Singh, O/C. Chand Police Station at 9.30 P.M. on 22.01.1985 in which the informant (P.W. 3) has alleged that he was on the way to his village Sonao, after selling milk at about 6.45 P.M. when he reached near Bramha Asthan which was situated to the north of 2 village Sonao, the appellant Bishuni Yadav armed with Lathi and appellant Nathuni Yadav armed with Garasa came and suddenly Bishuni Yadav ordered Nathuni Yadav to do away with the life of the informant Ram Briksh Yadav (P.W. 3). Therefore, Nathuni Yadav assaulted the informant with Garasa on his head. The informant sustained injury and fell down. Blood oozed out and the informant raised hulla then Nathuni Yadav gave repeated blows by his Lathi to him causing severe injuries all over the body of the informant. On hearing the cry of the informant Ram Chandra Yadav (P.W. 2) Jitu Yadav (P.W. 1) came. 3. The fardbeyan resulted in the registration of the First Information Report vide Chand P.S. Case No.- 5/1985 under Sections 341, 323, 324 and 307 of the Indian Penal Code. The allegations were investigated into and after investigation, charge sheet was submitted under Sections 341, 323, 324 and 307 of the Indian Penal Code. Cognizance was accordingly taken and the case was committed to the Court of Sessions where after supply of police papers, charges were explained to the appellants under Sections 307/34 and 342 of the Indian Penal Code. Appellant Bishuni Yadav was separately charged under Section 323 of the Indian Penal Code whereas appellant Nathuni Yadav was charged separately under Section 324 of the Indian Penal Code. When both the appellants pleaded not guilty then the trial proceeded. 4. The defence of the appellants was of false implication on account of previous enmity. 5. The witnesses were examined on behalf of the prosecution to prove the charges. Altogether, five witnesses were 3 examined on behalf of the prosecution; they were Jitu Yadav (P.W. 1), Ram Chandra Yadav (P.W. 2), Ram Briksh Yadav, the informant (P.W. 3), Lalita Prasad, a formal witness (P.W. 4) and Bigan Singh, also a formal witness (P.W. 5). 6. The informant of this case Ram Briksh Yadav has been examined as P.W. 3. He has stated in his evidence that while he was on his way to village Sonao after selling milk at Chandouli at about 6.45 P.M. 4 ½ years ago, and he reached near the village, he was kidnapped by the appellants Bishuni Yadav and Nathuni Yadav. They were following the informant at some distance. When the informant P.W. 3 reached near Bramha Asthan at village Sonao then the accused Bishuni Yadav armed with Lathi and Nathuni Yadav with Garasa came and at the behest of Bishuni Yadav, Nathuni Yadav had assaulted the informant P.W. 3 on his head by Garasa. The informant received injury by the blunt portion of the Garasa. On cry raised by the informant, these appellants again assaulted him with Lathi and Garasa. Assault by Lathi was given by Bishuni Yadav also. The assault resulted in the injuries upon the head, right shoulder, left arm and left leg of the informant. On hulla, Jitu Yadav P.W. 1 and Ram Chandra Yadav P.W. 2 came and rescued the informant. Thereafter, the appellants escaped. According to those witnesses the intention of assault was to kill the informant. After this assault the injured was taken to Chand by bus where he made the statement before the Officer-in-Charge and then he was referred to Chand hospital for treatment. The witness stated that the fardbeyan recorded by Officer-in-Charge was read over to him and when he found it correct, he put his 4 signature which has been marked as Ext. 1. According to the informant P.W. 3 after occurrence Narmdeshwar (not examined) and Subedar Singh (not examined) came to the place of occurrence and saw the injuries of the informant. The treatment was at Chand hospital. The informant brought his bloodstained Dhoti, Kurta and Gamachha before the trial court. He displayed the signs of wounds in course of his evidence. He identified the accused persons who were present in the dock in course of the trial before the court. 7. P.W. 4 has proved formal First Information Report whereas P.W. 5 has proved the writing and signature of Ram Kr. Singh, Officer-in-Charge of Chand Police Station on the requisition of the police marked as Ext. 3. He has also identified the writing and signature of Dr. Dwarika Pd. Civil Assistant Surgeon, Chand on the injury report marked as Ext. 4. 8. P.W. 1 in his evidence has stated that in evening Ram Briksh Yadav was walking ahead of that witness. In the meanwhile, he heard the sound of cry and when he reached near Bramha Asthan then saw Bishuni Yadav and Nathuni Yadav assaulting Ram Briksh Yadav. According to this witness, Ram Briksh Yadav was assaulted by Nathuni Yadav by Garasa Bishuni Yadav by Lathi. As soon as the accused persons saw P.W. 1, they escaped immediately. P.W. 2 also came and according to him, P.W. 3 received injuries on various parts of his body. The witnesses have identified the accused persons/appellants. P.W. 2 has not seen the occurrence and he has been declared hostile. 9. Learned Counsel for the appellant has argued that in 5 view of the contradictory evidences of the informant with regard to the manner and the place of occurrence, the prosecution has failed to prove the charges against the appellants. The definite case of the prosecution is that the informant was treated by the doctor. The doctor has not been examined in this case. It has also been argued that non-examination of the investigating officer caused prejudice to him because he has failed to bring on record the vital contradictions which were mentioned. There is no explanation by the prosecution as to why those material witnesses were not produced. Further contention of the learned Counsel for the appellants is that P.W. 1 is a chance witness who has arrived at the place of occurrence by chance. It has also been pointed out that Bishuni Yadav one of the appellants has earlier filed a case against P.Ws. 1, 2 and 3 for the offences under Sections 379, 323, 341 of the Indian Penal Code vide G.R. Case No.- 619 of 1985/T.R. No.- 563 of 1988. In that case, Jitu Yadav P.W. 1 was held guilty for the offences under Sections 323/341 of the Indian Penal Code and he was let off on execution of bond of Rs. 1000/- for keeping peace and good behaviour for one year under Section 4(i) of Probation of Offenders Act. The witness was having grudge against the accused and on account of that he has implicated the appellants. Further contention is that the injury report marked as Ext. 4 has been proved by P.W. 5 and the same has not been brought into evidence by any doctor who might have made rational answer in respect of question with regard to injury. Learned Counsel contended that the injury report formerly proved cannot be relied upon in evidence. Learned Counsel also 6 contended that the prosecution has not been able to bring the charge against the accused on trial. 10. Though the charges were framed under Section 307/34 of the Indian Penal Code also but in absence of examination of the doctor, a charge under Section 307/34 of the Indian Penal Code was found not to be correct and so the appellants were granted benefits of non-examination of the doctor. The informant has described the manner in which he was assaulted by the appellants while he was returning after selling his milk. He has been supported by P.W. 1. 11. The injury reports are on the record. So, I am of the view that the sufficient materials were brought on record for proving the allegations under Section 323 of the Indian Penal Code also the prosecution was able to prove the charges against the appellants beyond all reasonable doubts. 12. It has been submitted on behalf of the appellants that the appellants are the first offenders and they should be granted benefits of Probation of Offenders Act of Section 360 of the Code of Criminal Procedure. 13. The circumstances in which the offence was committed do not justify and the appellants should not have been released by giving them benefit of the Provisions of the Probation of Offenders Act. However, considering the quantum of sentence, I am of the view that since the occurrence is of 22nd January, 1985 and so 24 years have passed since then and the appellants have entered into their advanced stage as on the date of their examination under Section 313 of the Code of Criminal Procedure, appellant Bishuni Yadav was of 40 years and the 7 appellant Nathuni Yadav was of 45 years and so, the sentenced awarded by the trial court requires to be modified. 14. Accordingly, the sentence is modified to the extent that the period undergone by the appellants as the trial prisoners is deemed to be sufficient for the ends of justice. 15. With the aforesaid modification in the order of sentence the appeal stands dismissed. Patna High Court Date 20th of August, 2009 kksinha/- N.A.F.R. ( Shyam Kishore Sharma, J. )