Bhola Rai @APPELLANT@Hash State of Bihar

Heard learned counsel for the appellants as well as learned APP for the State on this criminal appeal.

This criminal appeal has been preferred against the judgment and order of conviction and sentence dated 24.01.2013 passed by 1st Ad hoc

Additional Sessions Judge, Gopalganj, in Sessions Trial No. 445 of 2004/368 of 2009, arising out of Mohammadpur P.S. Case No. 26 of 2001, whereby

the learned trial Court convicted the accused Bhola Rai under Section 325 IPC and accused Satyendra Rai under Section 324 IPC and sentenced

convict Bhola Rai to undergo three years imprisonment and also slapped him with a fine of Rs. 2000/- and in default of payment of fine to further

undergo R.I. for three months under Section 325 IPC and sentenced accused Satyendra Rai to undergo R.I. for two years and also slapped him with a

fine of Rs. 1000/- and in default of payment of fine to further undergo R.I. for one and half months under Section 324 IPC.

Factual matrix of the case is that Mohammadpur P.S. Case No. 26 of 2001 was instituted under Sections 341/324/307/34 of the Indian Penal Code

against the accused Bhola Rai and Satyendra Rai on the basis of fardbeyan of Rameshwar Rai, son of Gannu Rai recorded by A.S.I. Md. Hasnain

Khan of Police Station Mohammadpur on 15.05.2001 at 3:00 PM at A.P.H.C Mohammadpur with the allegation in succinct that on 15.05.2001 at

around 11:00 AM he along with his father Gannu Rai and brother Chandeshwar Rai was cutting soil from his land to fill his door. In the meantime

Bhola Rai armed with farsa and Satyendra Rai armed with spade arrived there and forbade them from cutting the soil claiming the land of their own.

On protest made by informant Bhola Rai assaulted on his right upper side of the chest (Pakhura) and on the left knee of his father by means of farsa

while Sastyendra Rai assaulted near the left eyebrow of his brother Chandeshwar Rai by means of spade. On hulla made by them, several villagers

including Vidya Rai, Jeetendra Rai and others rushed there and on congregation of the witnesses the accused persons left the scene. The bone of

contention is cutting of the soil from his field.

Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted charge-sheet against the aforesaid accused

persons.

On receiving the charge-sheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against the

aforesaid accused persons and committed the case to the Court of Sessions and after commitment and on transfer finally the case came in the seisin

of 1st Ad hoc Additional Sessions Judge, Gopalganj for trial.

Charge against the accused, namely, Bhola Rai and Satyendra Rai was framed under Sections 307,/34, 326, 324 and 341 of the Indian Penal Code.

Charge was read over and explained to them by the Court to which they pleaded not guilty and claimed to be tried.

During the course of trial, in ocular evidence, the prosecution has examined altogether eight prosecution witnesses, namely, Jitan Rai @ Jitendra Rai

as P.W.1, Harendra Rai as P.W.2, Chandeshwar Rai as P.W.3, Kapil Dev Rai as P.W.4, Raghunath Rai as P.W.5, Gannu Rai as P.W.6, Informant

Rameshwar Rai as P.W.7 and Dr Jitendra Prasad, who has examined the injured, as P.W.8. Out of the aforesaid witnesses, P.W.4 turned hostile.

The Prosecution has also filed and proved several documents by way of documentary evidence in the case.

Statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial

of the occurrence claiming themselves to be innocent. The accused persons neither adduced any ocular nor documentary evidence in buttress of their

case.

After hearing the parties and perusing the record, the learned trial court passed the aforesaid judgment and order of conviction and sentence as

detailed in the earlier paragraph.

Being aggrieved and dissatisfied with the aforesaid judgment and order of conviction and sentence, the convicts have preferred this Criminal

Appeal.

The point for consideration in this case is, as to whether the prosecution has been able to bring home the charges levelled against the appellants

beyond all reasonable doubts or not.

It is submitted by learned counsel for the appellants that P.W. 1 Jitendra Rai, P.W.2 Harendra Rai and P.W.5 Raghunath Rai do not happen to be

eye witness of the occurrence, while P.W.3 Chandeshwar Rai, P.W.6 Gannu Rai and informant P.W.7 Rameshwar Rai are the injured of the case

and father and sons and are interested witnesses of the case. Thus, the prosecution case does not stand established by any independent witnesses of

the occurrence. There is vital contradiction in the testimonies of witnesses regarding manner of occurrence. It is further submitted that the informant

himself happens to be aggressor. Thus, the prosecution has utterly and miserably failed to substantiate the prosecution case against the appellants by

adducing consistent, trustworthy, worth credence evidence hence the judgment and order of conviction and sentence passed by the learned trail Court

is liable to be set aside and the appellants are entitled to be acquitted.

On the other hand,  learned  APP advocating the correctness and validity of the impugned judgment and order of conviction and sentence

submitted that the informant has supported the prosecution case in toto and rest witnesses including the injured witnesses have also corroborated the

prosecution case. The ocular evidence also stands corroborated by the medical evidence and the learned trial Court correctly appreciating the facts

and evidence available on record has rightly passed the aforesaid judgment and order of conviction and sentence which is liable to be upheld and this

appeal is shorn of merit and is liable to be dismissed.

From perusal of the record, it appears that to substantiate the prosecution case seven material witnesses have been examined by the prosecution.

Out of whom P.W.4, Kapil Dev Rai has turned hostile and P.W.7, Rameshwar Rai happens to be informant, P.W.6, Gannu Rai, father of the

informant and P.W.3 , Chandeshwar Rai brother of the informant and all the aforesaid three persons are injured of the case while P.W.1 Jitendra Rai,

P.W.2 Harendra Rai and P.W.5 Raghunath Rai have come forward to corroborate the prosecution case as independent witnesses of the occurrence.

The aforesaid witnesses, namely, P.W.1 Jitendra Rai, P.W.2 Harendra Rai and P.W.5 Raghunath Rai appears to have made an abortive bid to

support the prosecution case by stating in their respective examination-in-chief in consonance to the prosecution case to the effect that while the

informant and his father and brother were cutting the soil from his land accused Bhola Rai and Satyendra Rai armed with farsa and spade respectively

arrived there and forbade them from cutting the soil. On protest made by the informant accused Bhola Rai assaulted on the right upper side of the

chest (Pakhura) of the informant and on the left knee of his father by means of farsa while Sastyendra Rai assaulted near the left eye brow of his

brother Chandeshwar Rai by means of spade. But they do not appear to be eye witnesses of the occurrence as P.W.2 Harendra Rai in para-12 of his

cross-examination has stated that when he arrived at the place of occurrence Gannu Rai, Rameshwar Rai and Chandeshwar Rai were lying in their

field sustaining injury. P.W.3 Chandeshwar Rai has stated in para-13 of his cross-examination that the occurrence took place for 5-10 minutes and the

witnesses arrived at the place of occurrence 10 minutes later to the occurrence, while as per prosecution case informant had made hulla after

sustaining injury at the head of appellants and responding hulla witnesses had arrived at the place of occurrence and P.W.6 Gannu Rai has stated in

para-9 of his cross-examination that the aforesaid witnesses had arrived at place of occurrence within five minutes of making hulla and after

assaulting them the accused persons left the scene. The aforesaid prosecution case and testimonies of P.Ws. 2, 3 and 6 conjointly indicates that after

assaulting the informant and other two injured the accused persons had left the scene and the aforesaid witnesses had arrived at the place of

occurrence after culmination of the occurrence and escaping of the accused persons from the place of occurrence and they have not witnessed the

occurrence of assault on the informant and other two injured at the hands of the appellants.

So far as the informant and the other two injured i.e. P.W.3 and P.W.6 are concerned, from the perusal of their testimonies it appears that the

aforesaid three witnesses in their respective examination-in-chief have unanimously stated that at the time of occurrence the informant was cutting the

soil from his field and his father Gannu Rai (P.W.6) and brother Chandeshwar Rai (P.W.3) were present there. In the meantime Bhola Rai armed

with farsa and Satyendra Rai armed with spade arrived there and forbade them from cutting the soil claiming the aforesaid land of their own. On

protest made by them, Bhola Rai assaulted on the right upper side of the chest (Pakhura) of the informant and on the left knee of P.W. 6 by means of

farsa while Sastyendra Rai assaulted on the left eyebrow of his brother Chandeshwar Rai (P.W. 3) by means of spade. They were rushed to the

A.P.H.C., Mohammadpur where they were treated by the doctor. The aforesaid three witnesses were subjected to lengthy cross-examination but

barring some minor contradictions which are bound to happen in the testimony of the natural witnesses recorded years after the occurrence due to

passage of time, no convincing, cogent and material contradiction have been elicited in their cross-examination having potential to rule out their

aforesaid testimony. More so, the aforesaid three witnesses happen to be injured witnesses of the case.

From perusal of the injury report of the aforesaid three injured and the testimony of the Dr. Jitendra Prasad (P.W.8), who had examined the

aforesaid injured, it appears that informant Rameshwar Rai has sustained bone deep incised wound on right upper chest, grievous in nature and bone

deep incised wound on right thumb, simple in nature. Gannu Rai has sustained bone deep incised wound on left leg near the knee grievous in nature

and contusion on the right back, simple in nature while Chandeshwar Rai has sustained muscle deep lacerated wound on left side of forehead near

eye, simple in nature caused by hard and blunt substance. Thus, the aforesaid consistent ocular evidence also stands corroborated by the medical

evidence.

Though, as per the prosecution case Satyendra Rai gave spade blow near the left eyebrow of Chandeshwar Rai by means of spade and the

witnesses have consistently stated about giving of the spade blow over the left eye of Chandeshwar Rai by Satyendra Rai but the doctor has found

muscle deep lacerated wound on the left side of the forehead near eye of Chandeshwar Rai by means of hard blunt substance like lathi but in view of

the consistent ocular evidence, in case of any discrepancy about the nature of injury and the weapon used in the assault, between the ocular evidence

and the medical evidence, the ocular evidence will prevail.

In view of the aforesaid facts and circumstances of the case and the discussions made by me hereinabove, I find and hold that the prosecution has

successfully substantiated its case and the charges levelled against the appellants by adducing consistent, trustworthy and reliable evidence. Hence,

the impugned judgment and order of conviction passed by the learned trial Court does not warrant any interference of this Court and it is upheld.

So far as the sentence is concerned, from perusal of the record it appears that the appellant Bhola Rai is about 69 years old while appellant

Satyendra Rai is 51 years old at present. Both the appellants have faced the rigors of the trial for considerable period of about 17 years and they have

no criminal antecedents, the aforesaid occurrence took place over a land dispute and the Bhola Rai has already gone under custody for 7 months and

4 days while Satyendra Rai for 27 days, hence considering the aforesaid facts and circumstances of the case, the sentence of the appellant Bhola Rai

is reduced to the period of custody already undergone by him while appellant Satyendra Rai, who has been convicted under Section 324 IPC is

slapped with a fine of Rs.10,000/- instead of awarding substantive punishment in addition to the fine slapped by the learned trial Court which in my

considered opinion would subserve end of justice. Accordingly, this appeal is dismissed with the aforesaid reduction and modification in the sentences,

awarded by learned Trial Court.