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Judgment
B.N.P. Singh, J.—The Appellants suffered conviction u/s 397 of the Indian Penal Code on being tried by 1st Additional Sessions Judge, Nalanda and were sentenced to undergo rigorous imprisonment for a term of five years each.
The factual matrix-It was alleged that at 8.30 P.M. on 9th June, 1984 while Manohar Prasad, P.W. 4, was going to respond to nature''s call and had hardly reached the cattle fair, he noticed Appellants coming, holding Katar with them who (sic)alt blows on him with the said weapon using injuries on his person. After the police case had been registered with these accusations on behest of Manohar Prasad, investigation commenced, in course of which the police recorded statement of witnesses, visited place of occurrence, secuired injury report from the doctor and on conclusion of investigation laid chargesheet before the Court. In the eventual trial that commenced against the Appellants, the late examined altogether five witnesses including doctor and the injured.
The defence of the Appellants before the Court below and also this Court has been plain denial of allegations and it (sic)as suggested to the witnesses in their defence that Manohar Prasad sustained (sic) ories on his person in drunken state and Appellants were falsely implicated due to institution of case, by one of the Appellants, (sic)ough neither any witness was examined (sic) behalf of the Appellants, nor any document was placed on the record to fortify (sic)e defence, and the trial Court on ap(sic)aisal of evidences placed on the record (sic)ating the witnesses credible, recorded (sic)dict of guilt u/s 397 of the Indian Penal Code and sentenced the Appellants in the manner stated above.
Various contentions were raised at (sic)on behalf of the Appellants about there (sic)g serious infirmity in the prosecution (sic) and it is sought to be urged that (sic)uments placed on the record would not (sic) to suggest that after receipt of alleged (sic) ries by Manohar Prasad at 8.30 P.M. on (sic) June, 1984, he took recourse to public (sic)hority at the police station, who drew information report not before 9.30 P.M., (sic) notwithstanding institution of the police (sic) at this hour, it would appear from the (sic)ence of the doctor, Ram Nagina Singh, (sic) that he examined the injured at 9 P.M., and on these premises it is urged that since the first information report itself was drawn up at the police station at 9.30 P.M., there was no occasion for referring the injured to the doctor for examination of the injured at 9 P.M. The other contention raised at bar on behalf of the Appellants was that though the witnesses were claiming to be ocular, it would appear from the tenor of the first information report and also the evidences that there was no occasion for them to witness the incident, as they were suggested to have reached the place of occurrence on alarms raised by the victim on receiving injury by Manohar Prasad and the last argument canvassed at bar on behalf of the Appellants was that, though the prosecution was launched against them in the year 1984, about two decades have elapsed since institution of the case and, hence, it is urged that in case, the finding of guilt recorded by Court below was upheld by this Court, this mitigating circumstance deserves to be taken notice of for consideration of imposition of sentence against them.
Learned Counsel appearing for the State resisting contentions raised at the bar on behalf of the Appellants urged, that the witnesses examined by the State deserves credence.
Manohar Prasad, P.W. 4, who was the maker of fardbeyan reiterated his early version which he rendered before the police about the Appellants dealing blows with a sharp edged weapon on upper part of his body, and narrations made by Tilangi Prasad, P.W. 1, Mahendra Prasad, P.W. 2 and Jagdish Prasad, P.W. 3 about Manohar Prasad sustaining injuries on upper part of his person at the hands of Appellants with a sharp edged weapon are in tune with the early version of the prosecution. The cattle fair where Manohar Prasad sustained injuries situates at a distance of 50/60 yards east from the village and it is quite possible that the witnesses would have occasion to witness the incident. The doctor who examined the injured had noticed corresponding injuries on his person and they were not less than six in numbers. The doctor noticed following injuries on the person of Manohar Prasad:
i. Incised wound on right parital bone of head.
ii. Incised wound just posterior to right ear.
iii. Incised wound on muscle and left side of head.
iv. Incised wound on right and parital part of heart.
v. Incised wound on upper part of outer pina of right ear.
vi. Incised wound on dorsel surface of right hand.
The injury No. 1 caused on right parital bone of head was found to be grievous in nature, while other were simple. The doctor has ruled out the possibility of presence for these injuries due to fall on some pointed substance.
Though serious contentions were raised at bar about there being disparity in the time of examination of injured by the doctor and also the drawal of F.I.R. taking assertions made on behalf of the Appellants, there was variation of only half an hour and that apart, error in assessing time cannot be discounted. As has been stated the witnesses hail from same village and taking their evidences conjointly, and not in isolation, assertion made by the witnesses to witness the occurrence did not appear to be a remote possibility. They hail from the same village and the place of occurrence situates at a distance of only 50/60 yards. Though suggestions were given to the witnesses about Dina Nath Kahar also instituting a case, as has been stated, neither any witness was examined on behalf of the Appellant nor any document was Placed the record. Though some exaggera(sic) too were introduced in statements of (sic) witnesses like that of Jagdish Prasad, P. (sic) who would state that the assailants (sic) exhorting to kill the victim, no such nations were made by other witnesses (sic) there was such recital in the first information report.
Having given my anxious and de(sic)est consideration to the facts and circumstances of the case and also the evidence placed on the record and regard being ha(sic) to the submissions made at the bar on behalf of the Appellants about the Appellants having suffered custody for a mo(sic) and also the ordeal of protracted prosecution for about eighteen years when (sic) were teenages at the time of commission of offence, while, upholding the convic(sic) recorded by the trial Court they are s(sic)tenced to the period already undergo(sic) and in addition they are also sentenced pay a fine of Rs. 5,000/- each, in default (sic) which they, will suffer rigorous imprisonment for a term of one year. The f(sic) should be deposited with the trial Court within three months of the receipt/production of copy of this order in the Court below and half of the fine so realised shall be payable to the injured or his successor, (sic) case the former is not alive and with the modification, the appeal is dismissed.