Patna High Court
Shailendra Yadav @ Shailendra Kumar ... vs The State Of Bihar on 27 October, 2016
Author: Ashwani Kumar Singh
Bench: Ashwani Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.479 of 2016
Arising out of PS.Case No. 72 Year- 1999 Thana Banmankhi District- PURNIA
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1. Shailendra Yadav @ Shailendra Kumar Yadav, son of late Mahadeo Yadav
2. Birendra Yadav, son of late Mahadeo Yadav
3. Adhyanand Yadav, son of late Baiju Yadav
All residents of village Pipra, Police Station Banmankhi, District- Purnea.
.... .... Petitioners
Versus
The State of Bihar
.... .... Respondent
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Appearance :
For the Petitioners : Mr. Viveka Nand Singh, Advocate.
For the State : None.
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
ORAL JUDGMENT
Date: 27-10-2016
Heard learned counsel for the petitioner.
2. This revision application has been filed under
Sections 397 and 401 of the Code of Criminal Procedure for setting
aside the Judgment and order dated 3.2.2016 passed by the learned
Sessions Judge, Purnea, in Cr. Appeal No. 142 of 2014/T.R. No. 153
of 2014 whereby he has dismissed the appeal filed by the petitioners
and affirmed the judgment and order of sentence dated 5.11.2014
passed by the learned Sub Divisional Judicial Magistrate, Purnea, in
G.R. No. 631 of 1999 corresponding to trial No. 625 of 2014
whereby the learned Magistrate has convicted the petitioners under
Sections 323, and 384 of the Indian Penal Code and sentenced them
Patna High Court CR. REV. No.479 of 2016 dt.27-10-2016
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to undergo simple imprisonment for two years and simple
imprisonment for four months respectively. The petitioner No. 1 has
also been convicted under Section 341 of the Indian Penal Code and
sentenced to undergo simple imprisonment for one month. However,
the learned Magistrate has directed that the sentences would run
concurrently.
3. According to the First Information Report lodged
by Janardan Prasad Yadav, it is stated that on 22nd March, 1999 at
2:30 p.m. the informant along with his helper Laxman Paswan
reached Middle School, Dhodhi Pipra, with sand loaded on his
tractor trailer bearing Registration No. BR-11A 5530 and BR-11A
5591 respectively. While he was getting the sand unloaded with the
help of labourers, the petitioners namely, Shailendra Yadav @
Shailendra Kumar Yadav, Birendra Yadav and Adhyanand Yadav
along with four unknown persons came there forming an unlawful
assembly being variously armed with pistol, lathi and danda. They
abused the informant and asked him to leave his tractor and trailer at
their door. The motive attributed for committing the alleged offence
is said to be an ongoing dispute between the parties from before. It is
also alleged that the petitioner Shailendra Yadav assaulted him with
Danda and on the point of pistol deprived him of his vehicle. On the
aforesaid statement of the informant, the Police registered
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Banmankhi P.S. Case No. 72 of 1999 on 23rd March, 1999 under
Sections 147, 341, 323, 379 and 504 of the Indian Penal Code and
investigated the same. On completion of investigation, charge sheet
was submitted against the accused persons under Sections 147, 323,
341, 379 and 504 of the Indian Penal Code.
4. After taking cognizance of the offences and after
supplying the Police papers in terms of the provisions prescribed
under Section 207 of the Code of Criminal Procedure, charges were
framed against the petitioners for the offences punishable under
Sections 147, 379 and 504 of the Indian Penal Code. Since the
accused persons did not plead guilty, the trial commenced.
5. In course of trial, altogether nine witnesses were
examined on behalf of the prosecution. They are; P.W. 1 Laxman
Paswan @ Laxmi, P.W. 2 Randhir Yadav, P.W. 3 Dinesh Pawan,
P.W. 4 Ramkeshwar Mandal, P.W. 5 Haribansh Yadav, P.W. 6
Dayanand Yadav, P.W. 7 Disel Rishi Deo, P.W. 8 Satya Deo Yadav
and P.W. 9 Janardan Prasad Yadav, the informant of the case.
6. Certain documents were also proved during trial
and were marked as Exhibits. The learned trial Magistrate has
elaborately discussed the evidence of the witnesses examined on
behalf of the prosecution in paragraphs 9 to 17 of the judgment,
which are as under:
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"9. P.W.1 is Laxman Pathak alias
Laxmi. He has stated in his examination-in-
chief that the occurrence is of more than
two years ago. He was going with Janardan
Yadav to Pipra school after loading sand
on the tractor. When the tractor stopped at
Pipra School, Shailendra Yadav,
Adhyanand Yadav and Birendra came.
Pistol was there in the hands of Shailendra
and Adhyanand and Birendra was carrying
"Lathi". Shailendra Yadav put the pistol on
Janardan Yadav. Adhyanand assaulted
janardan with slapes. Adhyanand and
Sahilendra hurled abuses by calling "Sale"
and asked to unload the tractor and they
said that they would take it their door. This
witness has stated that when he was
unloading the tractor, Janardan fled away.
Prem, Nirmal and narayan Sah also came
there and called Shailendra. Shailendra
again hurled abuse by calling "Sala" and
asked to unload the tractor immediately. He
also threatened to kill. This witness has
further stated that Shailendra took them
forcibly on the tractor to his door and tied
them in "Guhal" Shailendra was opening
the "Diccy" of tractor but Prem asked him
not to do so and took away the tractor
somewhere else. This witness has stated
that in the evening he asked the mother of
Shailendra to untied him as he had to
attend the call of nature upon which she
untied him and he fled away. Later on he
came to know that police had taken away
the tractor to the police station. Shailendra
was saying in the school that he had
demanded the vehicle which was not given.
He will extort.
This witness has stated in his cross-
examination that Janardan Yadav is cousin
of Shailendra Yadav. He has further stated
that he reached the school with the tractor
at 2:30 P.M. He has also stated that about
150 people were assembled in the "Gohal"
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but nobody tried to untied him. He has
stated that he cannot say the name of any
person.
10. P.W.2 is Randhir Yadav. He has
stated in his examination-in-chief that the
occurrence is of two and half years ago of
4.30 P.M. He was at the door of Yoganand
yadav. Prem was driving the tractor on
which Shailednra yadav, Birendra yadav,
Adhyanand Yadav, Nirmal Yadav, Narayan
Sah were there. Tractor stooped at the door
of Shailendra Yadav. Thereafter, they took
the tractor to the northern side. Thereafter,
tractor was stopped at the boring of
Shailendra yadav. Prem and Shailendra
opened the diccy of tractor and took out
rinch etc. Thereafter they also took out self,
battery and hood of the tractor and took
away towards the house of Prem Kumar.
This witness has stated that he also went
behind the tractor and saw the entire
occurrence. When the accused persons
went away, he went near the tractor and
found that the tractor was of Janardan
yadav. The registration number of tractor
was BR11A 5530 and the number of trailor
was BR 11A 5531. Police had come near
the vehicle. This witness has stated that
later on he came to know that Shailendra,
Prem and others used to demand
"Rangdari" from Janardan and on account
of non-payment of "Rangdari" they had
abused Janardan and tied Laxman Paswan
in the house. Janardan Yadav disclosed
this.
This witness has stated in his cross-
examination that it took two hours to the
accused persons in opening the parts of the
tractor. He has further stated that he went
to the tractor alone and he disclosed
Janardan that the accused persons have
taken the parts of the tractor. He has stated
that Birendra took the battery on his head.
Prem Kumar took the hood of the vehicle.
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Shailendra Yadav took the dynamo and
Adhyanand Yadav took the self. He has
further stated that Janardan in his cousin
(Mousera brother). He has stated that he
had seen the opening the parts of tractor
from behind the tree.
11. P.W.3 is Dinesh Paswan. He has
stated in his examination-in-chief that the
occurrence is of 2-2&1/2 years ago of 3
P.M. He was going to Mohania from his
village. When he reached near the field of
Pipra School, Shailendra Yadav, Nirmal
Yadav, Adhyanand Yadav, Virendra Yadav,
Premlal Sah, Narayan Sah were going on
tractor towards East. Premlal was driving
the tractor. Laxman Paswan was also on
the tractor. Tractor was of Janardan
Yadav. He had seen the tractor from the
distance of 4-5 hands. He went to Mohania.
This witness has further stated that on the
next day when he returned from Mohania,
he came to know from his brother Laxman
that Shailendra and other accused persons
were demanding extortion from Janardan
Yadav. Therefore, they took away the
tractor and opened the parts of the tractor
and tied him and he fled away on the
pretext of latrine.
This witness has stated in his cross-
examination that he had gone to Mohania
in the house of his aunt (Fua) who was ill.
He has further stated that the school runs
from 10 A.M. to 4 A.M. where people from
nearby come to study.
12. PW.4 is Ram Keshwar Mandal.
He has stated in his examination-in-chief
that the occurrence is of 5-6 years ago of 2
P.M. He was in the house. The driver of the
tractor of Janardan Yadav namely Laxman
Paswan who is his co-villager disclosed
him that when he was coming with sand on
the tractor, his tractor was snatched. He
did not say anything more. He had
disclosed that Shailendra Yadav and his
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associates had snatched the tractor.
P.W.4 has stated in his cross-
examination that Laxman disclosed him at
4-5 P.M. He was passing by his door.
13. P.W.5 is Haribansh Yadav. He
has stated in his examination-in-chief that
the occurrence is of the year 1999 of 2.30
P.M. At that time he was near the school.
Tractor of Janardan Yadav with sand of
Contractor Dayanand Yadav reached the
school. Prem Kumar Sah, Shailendra
Prasad Yadav, Birendra Yadav, Narayan
Sah reached near the vehicle and asked
Janardan to unload the sand from the
vehicle immediately. Janardan unloaded
the sand immediately out of fear. Thereafter
Prem Kumar Sah and others who were four
in number took the vehicle to the door of
Shailendra and did not return to Janardan.
The vehicle was released from the Police
Station and the vehicle is in possession of
Janardan at present.
This witness has stated in his cross-
examination that Janardan is his
"Bhagina". He has further stated that his
house is at a distance of one kilometre from
the house of Janardan.
14. P.W.6 is Dayanand Yadav. He
has stated in his examination-in-chief that
he does not know anything about the
incident. He has been declared hostile. In
his cross-examination, this witness has
denied the suggestion that he had given
statement to the police.
15. P.W.7 is Disel Rishi Deo. He
has stated in his examination-in-chief that
he does not known anything about the
occurrence. This witness has also been
declared hostile. In his cross-examination,
this witness has also denied the suggestion
that he had given statement to the police.
16. P.W.8 is Satya Deo Yadav. He
has stated in his examination-in-chief that
he does not know anything about the
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incident. He has been declared hostile. In
his cross-examination this witness has also
denied the suggestion that he had given
statement to the police.
17. P.W.9 is the informant
Janardan Prasad Yadav. He has stated in
his examination-in-chief that the
occurrence is of 22/3/99 of 2.30 P.M. He
was getting the sand unloaded from the
tractor in Middle School, Dhothai Pipra.
The number of the tractor is BR 11A 5530
and the number of trailor is BR 11A 5531.
Shailendra Yadav, Nityanand Yadav,
Birendra Yadav came with others. Pistol
was there in the hand of Shailendra and
"Lathi" were there in the hands of others.
The said that "Rangdari" had not been
given and they would take the vehicle. They
also started beating. Shailendra put pistol
on him. They also assaulted Laxman
Paswan. They took away the tractor and
Laxman Paswan to their door. Gurudev,
Heli, Durganand Yadav, Dayanand Yadav,
Harbansh Yadav, Laxman Paswan and
Dinesh Yadav witnessed the occurrence.
This witness has proved his written
application to the police which has been
marked as Exhibit "1".
In his cross-examination, the
informant has stated that "Jhanjhat"
occurred within half an hour. People were
there near the place of occurrence but they
did not come. He has further stated that
Shailendra Yadav is his cousin maternal
uncle. He has stated that the distance in
between his house and the house of
Shailendra is two kilometre. He has denied
the suggestion that prior to 7-8 days of this
occurrence he and his brother Rudal had
stolen the pump set of Shailendra and in the
"Panchayati" he had promised to return
the pump set but did not return it and has
filed this false case."
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7. On behalf of the defence, it was contended before
the learned Magistrate that no independent witness had come
forward to support the case of the prosecution and those examined on
behalf of the prosecution are all interested and related witnesses. It
was further contended that the testimonies of the witnesses suffered
from vice of material contradiction. Hence, no reliance can be placed
on their testimonies. It was also pleaded that non-examination of the
Investigating Officer has seriously prejudiced the case of the defence
and, hence, the accused persons are entitled to be acquitted.
8. After hearing the parties and carefully analyzing
the evidence brought on record, the learned Magistrate has acquitted
the accused persons of the charges under Sections 147, 379 and 504
of the Indian Penal Code. However, the learned Magistrate held that
the accused persons are guilty of the charges under Sections 323 and
384 of the Indian Penal Code. The learned Magistrate also held the
accused Shailendra Yadav guilty of the charge under Section 341 of
the Indian Penal code.
9. The reasonings assigned for holding the
petitioners guilty for the aforesaid charges have been discussed in
paragraphs 23 to 27 of the impugned Judgment which are as under:
"23. So far as the charge under
Section 147 of the Indian Penal Code is
concerned although it is the case of the
prosecution that the accused persons namely
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Shailendra Yadav, Birendra Yadav and
Adhyanand Yadav came with their 4
unknown associates but the police has
submitted charge sheet only against the
present three accused persons which shows
that the name of four unknown associates of
the present accused persons could not be
traced out in course of investigation. P.W.1,
Laxman Paswan alias Laxmi has stated in
this respect in his evidence that Prem,
Nirmal and Narayan Sah also came and
called Shailendra. However, aforesaid
Prem, Nirmal and Narayan Sah are not
accused in this case and said P.W.1 has not
stated about the fourth person. Similarly,
P.W. 2 and P.W. 3 namely Randhir Yadav
and Dinesh Paswan have stated the names of
only Prem, Nirmal and Narayan Sah and
they have also not stated about the fourth
person. P.W.5 Haribans Yadav has stated in
his evidence that Prem Kumar Sah,
Shailendra Prasad Yadav, Birendra Yadav
and Narayan Sah came. Therefore, this
witness has stated only about four persons.
PW.9, Janardan Prasad Yadav who is the
informant of this case has although stated in
his evidence that Shailendra Yadav,
Nityanand Yadav, Virendra Yadav came with
others but he has neither stated the names of
other persons nor the numbers of other
persons. Therefore, in my considered view,
there are vital and major contradictions in
the testimonies of the prosecution witness on
the point that the present three accused
persons who are facing trial namely
Shailendra Yadav, Adhyanand Yadav and
Birendra Yadav came with other persons. In
my considered opinion, the testimonies of the
prosecution witnesses are not sufficient
enough to prove that the number of culprits
at the place of occurrence is five or more
than five and they formed an unlawful
assembly. Accordingly, I find and held that
the prosecution has failed to prove the
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charge against the accused persons under
section 147 of the Indian Penal Code beyond
all reasonable doubts and the accused
persons are entitled to be acquitted of the
aforesaid charge.
24. So far as the charge under
section 379 of the Indian Penal Code is
concerned, from the perusal of the charge it
transpires that the accused persons have
been charged under the aforesaid section for
committing theft of dynamo, battery and self
of the tractor of the informant. It is not the
case of the prosecution in the First
Information Report that the accused persons
took away the parts of the tractor of the
informant. The informant namely Janardan
Prasad Yadav (P.W.9) has also not stated in
his evidence that the accused persons took
away the parts of his tractor. PW.2 namely
Randhir Yadav has stated in his evidence
that Shailendra and Prem took out rinch
from the diccky of the tractor and they also
took away self, dynamo, battery, and hood of
the tractor. This witness has stated in
paragraph no. 7 of his evidence that he has
disclosed to Janardan that the accused
persons have taken the parts of the tractor
but as stated above, the informant has not
stated in his evidence that the accused
persons took away the parts of this tractor.
This fact has also not been mentioned in the
F.I.R. whereas the First Information Report
of this case has been lodged after one day of
the occurrence. Had the witness Randhir
Yadav disclosed about the theft of parts of
tractor by the accused persons, this fact
would have been mentioned in the First
Information Report and the informant would
have stated this fact in his evidence but as
stated above, the fact of theft of parts of
tractor is neither there in the First
Information Report nor the informant has
stated in his evidence that the accused
persons took away the parts of his tractor.
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Therefore, the evidence of P.W.2, Randhir
Yadav is not believable on the point of theft
of parts of tractor by the accused persons.
P.W.3 namely Dinesh Paswan has also
stated in his evidence that Laxman disclosed
him that the accused persons took away the
parts of the tractor but from the perusal of
the testimony of said Laxman Paswan alias
Laxmi (P.W.1), it transpires that he himself
has not stated in his evidence that the
accused persons took away the parts of the
tractor. Therefore, testimony of P.W.3,
Dinesh Paswan also cannot be believed that
the accused persons took away the parts of
the tractor. Apart from the aforesaid two
witnesses no other witness including the
informant Janardan Prasad Yadav (P.W.9)
has stated in their evidences that the accused
persons took away the parts of the tractor of
the informant. Therefore, in view of the
discussions made hereinabove I find and
held that the prosecution has failed to prove
the charge under section 379 of the Indian
Penal Code beyond all reasonable doubts
and the accused persons are entitled to be
acquitted of the aforesaid charge.
25. So far as the charge under
section 341 of the Indian Penal Code is
concerned, it is the case of the prosecution
in the First Information Report that the
accused Shailendra Yadav put pistol on the
informant. The informant namely Janardan
Prasad Yadav (P.W.9) has stated in his
evidence also that the accused Shailendra
Yadav put pistol on him. This fact also finds
corroboration from the testimony of P.W.1,
Laxman Paswan alias Laxmi who has also
stated in his evidence that the accused
Shailendra put pistol on Janardan Yadav.
From the perusal of the entire testimony
including the cross-examination of the
aforesaid witnesses i.e. the informant
Janardan Prasad Yadav (P.W.9) and P.W.1
namely Laxman Paswan alias Laxmi, I find
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nothing on the basis of which the fact of
putting pistol by Shailendra Yadav on the
informant Janardan Prasad Yadav can be
disbelieved. Therefore, from the testimony of
the informant Janardan Prasad Yadav and
Laxman Paswan alias Laxmi, it is clear that
the accused Shailendra Yadav put pistol on
the informant and thus wrongfully restrained
the informant. However, there is nothing in
the testimonies of the prosecution witnesses
to show that the other two accused persons
namely Birendra Yadav and Adhyanand
Yadav wrongfully restrained the informant.
Therefore, in view of the discussions made
hereinabove, I find and held that the
prosecution has successfully proved the
charge under section 341 of the Indian
Penal Code against the accused Shailendra
Yadav beyond all reasonable doubts and the
accused Shailendra Yadav is the guilty of the
charge under section 341 of the Indian
Penal Code but the prosecution has failed to
prove the charge under section 341 of the
Indian Penal Code against the rest two
accused persons namely Birendra Yadav and
Adhyanand Yadav and both the said accused
persons are entitled to be acquitted of the
aforesaid charge under section 341 of the
Indian Penal Code.
26. So far as the charge under
section 504 of the Indian Penal Code against
the accused persons is concerned, it is the
case of the prosecution that the accused
persons abused the informant. However,
from the testimony of the informant namely
Janardan Prasad Yadav (P.W.9) it
transpires that he has not stated in his
evidence that the accused persons abused
him. Only P.W.1 namely Laxman Paswan
alias Laxmi has stated in his evidence that
the Shailendra and Adhyanand called the
informant "Sala" but the testimony of P.W.1
in this respect does not find corroboration
from the testimony of any other witness
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including the testimony of the informant.
Therefore, in view of the discussions made
hereinabove, I find and held that the
prosecution has failed to prove the charge
under section 504 of the Indian Penal Code
against the accused persons beyond all
reasonable doubts and the accused persons
are entitled to be acquitted of the charge
under section 504 of the Indian Penal Code.
27. So far as the charges under
sections 323 and 384 of the Indian Penal
Code against the accused persons are
concerned, it is the case of the prosecution
that on 22/03/99 at 2.30 P.M. when the
informant with his helper Laxman Paswan
was getting the sand unloaded from his
tractor bearing no. BR-11A-5530 and trailor
no. BR-11A-5531 at Middle School Dothai
Pipra, the accused persons namely
Shailendra Yadav, Birendra Yadav and
Adhyanand Yadav along with their four
associates came there forming unlawful
assembly armed with pistol, "lathi" and
"Danda", abused the informant and asked
him to keep the tractor at his door.
Shailendra Yadav assaulted the informant
with pistol and "Danda" and also put pistol
on the informant and forcibly took away the
tractor to their door.
The informant who has been
examined as P.W.9 has stated in this respect
in his evidence that the occurrence is of
22/03/99of 2.30 P.M. He was getting the sand unloaded from the tractor in Middle School, Dhothai Pipra. The number of the tractor is BR 11A 5530 and the number of trailor is BR 11A 5531. Shailendra Yadav, Nityanand Yadav, Birendra Yadav came with others. Pistol was there in the hand of Shailendra and "lathi" were there in the hands of others. The said that "Rangdari" had not been given and they would take the vehicle. They also started beating.
Shailendra put pistol on him. They also Patna High Court CR. REV. No.479 of 2016 dt.27-10-2016 15/20 assaulted Laxman Paswan. The testimony of the informant in this respect does find positive corroboration from the testimonies of P.W.1, Laxman Paswan alias Laxmi, P.W.2, Randhir Yadav, P.W.3, Dinesh Paswan, P.W.4, Ramkeshwar Mandal and P.W.5, Haribansh Yadav. P.W.1 namely Laxman Paswan alias Laxmi has stated in his evidence that the occurrence is of more than two years ago. He was going with Janardan Yadav to Pipra school after loading sand on the tractor. When the tractor stopped at Pipra School, Shailendra Yadav, Adhyanand Yadav and Birendra came. Pistol was there in the hands of Shailendra and Adhyanand and Birendra was carrying "Lathi". Shailendra Yadav put the pistol on Janardan Yadav. Adhyanand assaulted Janardan with slaps. Adhyanand and Sahilendra asked to unload the tractor and they said that they would take it their door. This witness has stated that when he was unloading the tractor, Janardan fled away. Prem, Nirmal and Narayan Sah also came there and called Shailendra.
Shailendra again asked to unload the tractor immediately. He also threatened to kill. This witness has further stated that Shailendra took them forcibly on the tractor to his door. P.W.2 Randhir Yadav has also stated in his evidence that the occurrence is of two and half years ago of 4.30 P.M. He was at the door of Yoganand Yadav. Prem was driving the tractor on which Shailendra Yadav, Bivendra Yadav, Adhyanand Yadav, Nirmal Yadav, Narayan Sah were there. Tractor stooped at the door of Shailendra Yadav. Thereafter, they took the tractor to the northern side. P.W.3 Dinesh Yadav has stated in his evidence in this respect that the occurrence is of 2-2&1/2 years ago of 3 P.M. He was going to Mohania from his village. When he reached near the field of Pipra School, Shailendra Yadav, Nirmal Patna High Court CR. REV. No.479 of 2016 dt.27-10-2016 16/20 Yadav, Adhyanand Yadav, Virendra Yadav, Premlal Sah, Narayan Sah were going on tractor towards East. Premlal was driving the tractor. Laxman Paswan was also on the tractor. Tractor was of Janardan Yadav. He had seen the tractor from the distance of 4-5 hands. Therefore, from the perusal of the testimonies of P.W.2, Randhir Yadav and P.W.3, Dinesh Paswan it is clear that they had seen the accused persons taking away the tractor of the informant. P.W.4, Ramkeshwar Mandal has also stated that Laxman had disclosed him that Shailendra Yadav and his associates snatched the tractor. P.W.5, Haribansh Yadav has stated in his evidence that the occurrence is of the year 1999 of 2.30 P.M. At that time he was near the school. Tractor of Janardan Yadav with sand of Contractor Dayanand Yadav reached the school. Prem Kumar Sah, Shailendra Prasad Yadav, Birendra Yadav, Narayan Sah reached near the vehicle and asked Janardan to upload the sand from the vehicle immediately. Janardan unloaded the sand immediately out of fear. Thereafter Prem Kumar Sah and others who were four in number took the vehicle to the door of Shailendra and did not return to Janardan. All the aforesaid witnesses i.e. the informant, P.W.9, P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 have been cross-examined at length by the defence but in my considered opinion, defence has failed out any dent in their creditibility so far as the charges under sections 323 and 384 of the Indian Penal Code is concerned. From the analysis of the testimonies of the informant Janardan Prasad Yadav (P.W.9), Laxman Paswan @ Laxmi (P.W.1), Randhir Yadav (P.W.2), Dinesh Yadav (P.W.3), Ramkeshwar Mehta (P.W.4) and Haribansh Thakur (P.W.5), it is clear and is proved beyond all reasonable doubts that on 22/03/1999 when the informant was getting the sand unloaded Patna High Court CR. REV. No.479 of 2016 dt.27-10-2016 17/20 from his tractor and trailor, all the three accused persons namely (1) Shailendra Yadav (2) Birendra Yadav and (3) Adhyanand Yadav came there armed with pistol, "lathi" and "Danda". They assaulted the informant and snatched and also took away the tractor of the informant by putting the informant in fear of death.
In view of the discussions made hereinabove, I find and held that the prosecution has successfully proved the charges against all the three accused persons under sections 323 and 384 of the Indian Penal Code beyond all reasonable doubts and all the three accused persons namely (1) Shailendra Yadav, (2) Birendra Yadav and (3) Adhyanand Yadav are guilty of the charges under sections 323 and 384 of the Indian Penal Code."
10. Being aggrieved by the Judgment of conviction and order of sentence, the petitioners preferred an appeal in the court of Sessions Judge, Purnea, vide Cr. Appeal No. 142 of 2014. The Appellate Court re-appreciated the entire evidences adduced on behalf of the prosecution and concurred with the findings of the trial Magistrate. Accordingly, the appeal was dismissed.
11. Being aggrieved by the Judgment of the appellate court, the instant revision application has been filed before this Court.
12. Learned counsel for the petitioners has submitted that since there was no demand of money, the ingredients of the offence punishable under Section 384 of the Indian Penal Code are Patna High Court CR. REV. No.479 of 2016 dt.27-10-2016 18/20 not attracted. He has further contended that the accused persons are closely related to the informant of the case and, hence, the allegation that they demanded any extortion money from the informant is highly unbelievable. Advancing his argument, he has contended that in any view of the matter the punishment awarded by the trial court is disproportionate to the offences alleged and since the petitioners have already remained in custody for about six months, this revision application may be allowed at least on the point of sentence.
13. Despite repeated calls, none has appeared on behalf of the State.
14. I have heard learned counsel for the petitioners and perused the record. So far as the judgments passed by the courts below are concerned, I find that the evidences brought on record have correctly been appreciated. The contention of the learned counsel for the petitioners that since there was no demand of rangdari, the ingredient of the offence under Section 384 of the Indian Penal Code are not attracted, is misconceived.
15. It would be evident from the evidence brought on record that the informant was deprived of his tractor and trailer by the accused persons on the point of pistol. Such an action would certainly attract the ingredients of the offence punishable under Section 384 of the Indian Penal Code. I also find that the reasonings Patna High Court CR. REV. No.479 of 2016 dt.27-10-2016 19/20 assigned by the trial Magistrate and approved and concurred by the appellate court are well founded. There is neither any illegality nor any perversity in the impugned judgments.
16. So far as the question of sentence is concerned, the maximum sentence awarded to the petitioners by the courts below is two years under Section 384 of the Indian Penal Code and the sentences awarded for the other offences have been ordered to run concurrently. Section 384 of the Indian Penal Code prescribes punishment which may extend to three years or with fine or with both.
17. It would be evident from the impugned judgment of the learned Magistrate that the petitioner Nos. 1, 2 and 3 were aged about 52, 47 and 62 years respectively on the date of judgment.
It would also be evident from the record that there was an ongoing dispute between the parties and the parties are related to each other.
The petitioners have got no criminal antecedent and they have been made accused in criminal case for the first time.
18. Taking into consideration the aforesaid aspects as also the fact that the occurrence took place about 17 years ago, the sentence awarded against the petitioners by the trial court for the offence punishable under Section 384 of the Indian Penal Code is reduced to one year from two years.
Patna High Court CR. REV. No.479 of 2016 dt.27-10-2016 20/20
19. With the aforesaid modification in the sentence awarded by the trial court, the revision application stands dismissed.
(Ashwani Kumar Singh, J) S.Ali/-
AFR/NAFR NAFR CAV DATE N/A. Uploading Date 30.10.2016 Transmission 30.10.2016 Date