Dularchand Rajak, Jagdish Rajak and Sahadeo Rajak vs State of Bihar

S.N. Pathak, J.—The aforesaid appeal and criminal revision were taken up for analogous hearing as they arise out of the same judgment dated 14th August, 2000 passed by 1st Addl. Sessions Judge, Munger, in session case No. 383/88. Appellant Dilip Rajak was convicted for the offence u/s 322 IPC and was directed to furnish bond of Rs. 5,000/- with two sureties of the like amount to maintain peace for one year and to be of good behaviors for the same period. Revisionists were also convicted for the same offence and they were also directed to furnish bond as mentioned above.

The prosecution case was based on FIR lodged by Subodh Rajak (exhibit 1), wherein he alleged that on 24.6.87 at 5 a.m. the accused-revisionists alongwith others came to his house armed with a lathi-danta and entered into the courtyard and assaulted his sister-in-law and wife of his younger brother, when the informant and his cousin went to protest, they were also subjected to assault. Some villagers gathered which prevented further assault upon the victims. In the aforesaid occurrence of assault at the hands of the accused, Sabitri Devi, Usha Devi, Lalita Kumari and other female inmates of the house including cousin of the informant received injury.

The trial court on the basis of the evidence of 9 witnesses held the accused Appellant, revisionists guilty for the offences as stated above.

Revisionists'' lawyer submitted before me that many of the revisionists are government servants and initially, they were charged u/s 307 IPC. Dularchand Rajak alone was simply charged u/s 307 IPC and other Revisionists were charged u/s 307/149 IPC and u/s 448 IPC. No doctor was examined. I.O. was also not examined. It was, therefore, submitted that on account of this, the trial court acquitted the accused-revisionists for the offence u/s 307/149 including 448 IPC. The evidence of P.Ws. was inter-se contradictory and almost all the witnesses were Interested ones. Hence the order of conviction recorded by the trial court was not sustainable. In the aforesaid circumstances, revisionists'' lawyer submitted that the revisionists may be acquitted for the charges. Find that the trial court stated in its judgment that P.Ws. were consistent in their lestimony regarding the alleged assault on his material particulars. Non-examination of the IO did not affect the prosecution story because all P.Ws. were consistent in their evidence on its material particular. Section 307 IPC was not proved due to non-examination of the doctor and that is why the revisionists were convicted for the offence u/s 323 IPC. However, IInd from perusal of the judgment of the hower court that besides the family members of the informant P.Ws. 2, 4 and 5 were Residents of the same village and they were independent witnesses who also sported the alleged occurrence of assault, The evidence of the prosecution witnesses also disclosed that there was also a counter case (Dharahara P.S. Case No. 49/87) in which accused Ramroop Rajak had alleged assault upon men of his side. His occurrence was of the same day and at the same time. It is quite apparent that on the date of the occurrence, both parties had gathered at the same place and perhaps indulged in mutual assault on one another. In such circumstances, presence of all the revisionists was well admitted. In this view of the matter, non-examination of the IO will not fatally affect the prosecution case. Revisionists were charged as I have stated above and yet the trial court convicted them only for the'' offence u/s 323 IPC. Other charges have not been established. There is no rule of law that the interested witnesses would become unreliable. However, in this case, there were independent witnesses as well. In all circumstances, I do not think the-equal court was unjustified in recording the findings of guilt against the revisionists on the basis of the evidence on record. In am further of the opinion that simply because revisionists were government servants, they cannot deserve any leniency from this Court; in so far as government servants should be expected to be more responsible in not breaking law and order and not to indulge in any overt act. The trial court was rather lenient towards them in directing them to furnish bond instead of sentencing them (the revisionists). So, I think there is no scope for further leniency.

So far the appeal is concerned, it was submitted by the Appellant''s lawyer that the Appellant was Junior Engineer. Moreover, so far evidence of prosecution witnesses is concerned, there is no specific allegation against the Appellant that he had indulged in assault upon anybody. It was next submitted that even if there be any omnibus evidence that the Appellant had indulged in assault, the injured persons themselves failed to say that the Appellant had assaulted them. So, Appellant deserves order of acquittal.

However, on perusal of the evidence of P.Ws. I find that the argument of the Appellant''s lawyer is not borne out by the evidence on record. I find that almost all the witnesses said that the accused persons entered into the house and all indulged in assault upon various members of the informant''s family including some females. So far the contention of the Appellant''s lawyer that injured themselves failed to name the Appellant as having assaulted them, I find that besides omnibus evidence of other witnesses P.W. 8, Lalita Kumari, specifically said that she was assaulted by Sahadeo Rajak, Dilip Rajak, Kalendar (not before this Court). From the aforesaid evidence, it is evident that the Appellant had indulged in assault upon some members of the informant''s family. So, the Appellant''s lawyer''s submission is not sustainable. I am, therefore, of the opinion that the finding of the guilt recorded by the trial court against the Appellant does not deserve any interference from this Court. Appellant lawyer submitted that the Appellant being Junior Engineer deserves sympathy from this Court in seeking annulment of the order of conviction so that his career may not be ruined. I am constrained to opine that this Court would not be justified in bringing its sympathy to bear upon its decision simply on the ground that the offender is in government service. There is no scope for sympathy in law. If at all any indulgence is to be granted to the offender that indulgence must be supported by the circumstances on the record and it should also be based on judicial discretion and not only on a sympathetic consideration. I have already stated above that the government servants should seldom take law in their own hands. Perhaps this circumstance weighed with the trial court in directing the Appellant only to furnish bond for maintaining peace instead of awarding any sentence against him. No further leniency is required in the exercise of the power of this Court. However, it is observed that the judgment of the trial court and judgment of this Court shall not affect the career of the Appellant or revisionists, if they are in government service because the occurrence took place on account of a row over petly matter. Perhaps both the parties were related to each other.

In the result, the aforesaid appeal and the criminal revision are accordingly dismissed.