CRIMINAL APPEAL No. 87 OF 1998 WITH CRIMINAL APPEAL NO. 121 OF 1998 ***** (In the matter of appeals under Sections 374(2) and 389 of the Code of Criminal Procedure against the judgment of conviction dated 07th February, 1998 and order of sentence dated 09th February, 1998 passed by Shambhu Prasad Sah, 1st Assistant Sessions Judge, Jamui in Sessions Case No. 546 of 1994) ******** PAPPU SINGH @ ASHOK KUMAR SINGH, SON OF TEJ NARAIN SINGH, RESIDENT OF VILLAGE BHACHIAR, POLICE STATION & DISTRICT JAMUI ……………………………………………………..APPELLANTS (in Cr. App. 87/1998) WITH LALAN SINGH, SON OF KARU SINGH, RESIDENT OF VILLAGE BHACHHIYAR, POLICE STATION JAMUI, DISTRICT JAMUI ……………………………………………………..APPELLANTS (in Cr. App.121/1998) VERSUS THE STATE OF BIHAR ………………………RESPONDENTS ( in both appeals) *********** FOR THE APPELLANT :- MR. RAMESH KUMAR CHOUDHARY,ADV (in Cr. App. 121 of 1998) FOR THE APPELLANT :- MR. SUMANT SINGH, ADVOCATE (in Cr. App. 87 of 1998) :- MR. AARUNI SINGH, ADVOCATE FOR THE S T A T E :- MR. S. N. PRASAD, A.P.P. (in both the appeals) ************* P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. These two appeals are taken up together as they were disposed of by the common judgment dated 17th February, 1998 passed by the 1st Assistant Sessions Judge, 2 Jamui in Sessions Trial No. 546 of 1994. By the impugned judgment, Lalan Singh (appellant in Cr. App. No. 121 of 1998) has been convicted under Sections 341, 323, 326 & 307/34 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one month, six months, five years and seven & half years respectively for each offences, whereas Pappu Singh (appellant in Cr. App. No. 87 of 1998) has been convicted under Sections 341, 323, 307/34 of the Indian Penal Code to undergo rigorous imprisonment for one month, three months and seven years respectively for each offences. From the impugned judgment, it is apparent that Lalan Singh had remained in custody for four & half years during the trial and Pappu Singh had remained in custody for two months and 21 days. The prosecution case, in brief, is that on 07.06.1993 at about 09:30 PM, the informant Sarju Chaudhary was sitting on a cot near a local wine shop (hut). It is alleged that the appellants came to the place of occurrence, caught hold him and Pappu Singh took out a revolver and aimed at the informant but the informant caught hold the hand of Pappu Singh whereas appellant Lalan Singh assaulted him by the sword on several parts of his body. The witnesses heard the cry of help raised by the informant and came running to the place of occurrence which saved him from any further assault. 3 Altogether nine witnesses have been examined in this case on behalf of the prosecution and the defence has also examined one witness to show that there is previous enmity between the parties. The defence has also produced several documents to indicate the nature of enmity. PWs 1 and 2 are the eye-witnesses to the occurrence as they came immediately on hearing the informant crying for help. On reaching the place of occurrence, it is said that PW 2 saw the appellants assaulting his brother, whereas PW 1 has stated that he was also visiting the local wine shop when he came upon the scene where he was the appellants assaulting the informant. Learned Counsel for the appellants has tried to point out that there are several inconsistencies in the evidence of PW 2 inasmuch as he states that he was not on good terms with the appellants and further contradicts himself by mentioning that he was at a distance of 20 feet from the place of occurrence, whereas in his examination-in- chief he has made statement that he was sitting in the wine shop. It is also submitted that PW 1 is a witness to Exhibit-A which is the panchanama signed by the parties that they will settle their differences and not enter into any further fights with each other. PW 1 is said to be witness to this panchanama. Learned Counsel submits that obviously PW 1 is not a truthful witness when he says that he has not on 4 good terms with the appellants. However, in his cross- examination, PW 1 has explained that he is not a friend of the informant and is not in visiting terms with him. Learned Counsel, however, is not in a position to raise doubt with respect to the fact that the occurrence took place and that the appellants were the persons who had assaulted the informant. The evidence of PW 2 has been challenged on the ground that he is an interested witness. It is also submitted that PW 2 has stated that he was at 150 yards in a GUL shop when the occurrence was taking place and as such he could not have seen the appellants committing the aforesaid offence. PW 2 has quite firmly in his cross- examination stated that he had came to the place of occurrence when he heard his brother shouting for help and he saw the appellants in the process of assaulting his brother. There is clearly no material to dispel the statements made by PW 2 as he is very consistent regarding the manner in which the occurrence had taken place and also quite clear about the fact that it was Lalan Singh who was assaulting the informant by means of sword. The evidence of doctor (PW 3) who had examined the informant reveals that there were ten incised wounds on different parts of his body. The doctor has found that the injury nos. 5 to 11 were grievous in nature. I see no 5 reason to doubt the evidence of the doctor. He has described the injuries quite vividly and also stated in his cross- examination that it took about three hours to treat the informant and to administer medicines and to stitch him up as the wounds of the neck, temporal region and abdomen were grievous in nature. Learned Counsel submits that the doctor’s evidence disclose that it took three hours to treat the informant who was, according to the doctor, in his sense but “semi-comatosed” during the entire period of treatment and as such the fardbayan could not have been recorded in the same night. It is stated that the recording of the fardbayan can not be doubted, in view of the fact that the time of institution is mentioned by the Police whereas no such time has been mentioned when the fardbayan was recorded. The B.D.O. was also called at the hospital as it was apprehended that the informant may die due to the serious nature of the injuries. These aspects of the case have been supported by the Investigating Officer in his evidence. The evidence of PW 5 who is the informant can hardly be challenged because the defence has not been able to illicit any statement from the informant to create doubt on the manner of the occurrence. PW 4, 7, 8 and 9 are formal witnesses who proved the seizure list, blood-stained cloths and also the bed head ticket, out door slips issued by the Patna Medical 6 College and Hospital, Patna made with respect to these exhibits, except to say that the Investigating Officer has not mentioned in the seizure list certain details with respect to the seized cloths and size of slippers seized. Much emphasis has been made by the defence on Exhibit-C and A to A/3. Exhibit-C is a panchanama signed by the appellants and the informant wherein it is said that they would not fight in future. The said panchanama is dated 22.03.1992 whereas the alleged occurrence is of dated 07.06.1993. Similarly, exhibits A to A/3 are the proceedings with respect to the panchayati that was held between parties to maintain good relationships between them. It is submitted that the appellants have been named because of the previous enmity and actually they were not the persons who had assaulted the informant but in order to take revenge, their names have been implicated in this case. I do not find that the defence taken on behalf of the appellants is of much help to them in view of the fact that the defence has not been able to show that the occurrence had not taken place in the manner prescribed or the appellants were not the persons who had attacked the informant and assaulted him. With respect to Pappu Singh, the submission made is that he has not inflicted any injury on the informant and if at all he was merely a by-stander. There is really no 7 evidence to show that he had inflicted any injury and infact the allegation that he was armed with pistol/revolver is not borne out by the testimony of PW 1. However, from the evidence of the informant, PW 5, it would be clear that Pappu Singh was accompanying Lalan Singh for the purpose of assault and as such it can not be said that he should be completely exonerated from the offences alleged against him. Considering the fact that the appellant Lalan Singh has remained in custody for four and half years before filing of the appeal and perhaps a month or so after the appeal was filed and also considering that this case has remained pending for quite some time before this Court, it would not be proper to send him back to jail for perhaps a period of one year if the period of remission would be granted to the appellant. I accordingly alter the sentence as the sentence already undergone with a fine of Rs. 7,000/- to be paid to the informant within four months on receipt of the notice. The appellant would have to undergo rigorous imprisonment for six months in default of payment of fine. The conviction and sentence of Pappu Singh @ Ashok Kumar Singh is also altered to the period already undergone and he too would be required to pay a fine of Rs. 7000/- to the informant Sarju Choudhary within a period of four months from the date of receipt of the notice in this regard. Failure to pay the fine would result in to rigorous 8 imprisonment for a period of six months. The appeal is disposed of with the aforesaid observations and directions. (Sheema Ali Khan, J. ) Patna High Court April 10, 2009 N.A.F.R./ANAND