Patna High Court
Ishwar Dayal And Ors. vs State Of Bihar on 10 May, 2002
Equivalent citations: 2002(2)BLJR1463
Author: Brij Nandan Prasad Singh
Bench: Prabhat Kumar Sinha, Brij Nandan Prasad Singh
JUDGMENT Brij Nandan Prasad Singh, J.
1. As usual, on most trivial and petty issue, Raju, in his endeavour for rescue of his grandfather, lost his life due to receipt of the injuries sustained by him, as the factual matrix are that at about 8.30 a.m. on 23rd June, 1974, while Rangila Ram (nowdead) was going to drop ashes kept in a basket in the field, he was intercepted by Dhorha Chamar, when he happened to pass through his way. It was alleged that after Rangila Ram registered his protest, other appellants including Supan Chamar, Janki Chamar, Mithu Chamar, Seth Chamar, Chathu Chamar, Ishwar Dayal Chamar, Mohar Chamar and Hari Chamar happened to come there holding lathis and chhura when assault commenced on Rangila Ram by them, who eventually dropped to the ground. It was alleged that when Bidul Kumar and Raju (deceased), came for his rescue, Seth Chamar dealt blows with knife on Bidul Kumar, and others too dealt blows with lathis on his person. Accusation attributed to Dhorha Chamar and Janki Chamar was about dealing lathi blows on his head, pursuant to which he became unconscious bearing serious injuries on his person. He was removed to Dinara hospital, where he was examined by a doctor and as his condition was quite critical, he was carried to Patna Medical College Hospital, where after three days of the treatment, he succumbed to the injuries sustained by him, and with these accusations, statement of Rangila Ram was recorded by the Police Officer, when Police came into action, recorded statement of witnesses, inspected the place of occurrence, got the injuries on the person of Bidul Kumar examined by the doctor, prepared the inquest report, sent the dead-body to mortuary for post-mortem examination and on receipt of autopsy report and also on conclusion of the investigation, laid charge-sheet before the Court.
2. Charges were framed against all the nine appellants under Section 302/149 of the Indian Penal Code (IPC) for acting in pursuance of common object of the unlawful assembly to commit murder of Raju and having suffered conviction on that count, they were sentenced to suffer rigorous imprisonment for life. Dhora Chamar and Janki Chamar stood charged under Section 302 IPC and they were sentenced to suffer rigorous imprisonment for life. Dhorha Chamar, Janki Chamar, Hari Chamar, Mohar Chamar, Chhotu Chamar, Mithu Chamar, Ishwar Dayal and Supan Chamar stood charged also under Sections 325/34 IPC and were sentenced to suffer rigorous imprisonment for a term of three years for voluntarily causing grievous injury to Rangila Chamar, in furtherance of their common intention. Seth Chamar, the other appellant stood charged under Section 324, IPC and was sentenced to suffer rigorous imprisonment for a term of three years for voluntarily causing hurt to Bidul Kumar.
3. The defence of the appellants before the trial Court and also this Court has been plain denial of entire allegations and they pleaded that as Naini Devi (P.W. 10) was working in the hospital, as a trained maid servant, all the injury reports placed on the record were tainted and fabricated, secured by her. In the eventual trial, the State examined altogether 13 witnesses including Bidul Kumar (P.W. 3) who was also an injured witness. The State also examined Naini Devi (P.W. 10) who happened to be mother of Bidul Kumar and daughter of Rangila Ram Chamar. Two doctors, one of whom examined the injuries on the person of the injured and the other, who held autopsy over the dead body of Raju were also examined at trial by the State. Though the Police Officer, who made major contribution for investigation of the case, was not examined at trial, the State examined Ramadhar Singh, S.I. (P.W. 12) who had prepared inquest report over the dead-body of Raju in Rajendra Surgical Block in Patna Medical College Hospital. He also recorded statement for Naini Devi (P.W. 10) and besides that, the State also examined other host of witnesses to lend assurance to the prosecution allegation. The defence too examined one witness who happened to be Shri I.M. Hussain, the Inspector of Police, who brought on the record, Station Diary entry No. 362, dated 23rd June, 1974, which was marked as Exhibit "A" of the case. The trial Court on appraisal of probative value of the testimony of the witnesses, while rejecting the contentions raised on behalf of the defence about innocence of the appellants, rendered verdict of guilt finding the appellants guilty on various counts and sentencing them in the manner stated above.
4. Various contentions were raised at Bar on behalf of the appellants to assail the propriety of the findings recorded by the Court below and it is sought to be urged that as Rangila Ram, informant, who was maker of the fardbeyan, was not examined at trial, the F.I.R., which was a valuable piece of document, cannot be looked into either for corroboration or contradiction of the testimony of the witnesses. Contentions are raised that though the trial Court placed implicit reliance on the testimony of Bidul Kumar (P. W. 4) and Naini Devi (P.W. 10), none of them in view of tenor of their evidences, which expressly exclude their presence, can be ocular witnesses to the incident. While commenting on the credibility of Naini Devi, it is sought to be urged that in view of tenor of admission made by the witnesses about arrival at the place of occurrence shortly after the incident, she cannot be treated to be ocular witness of the incident and her evidence as such, has to be excluded from consideration. In quick succession, it is urged that there are yet other circumstances which deserve exclusion of testimony of P.W. 10, as the name of this witness did not find place in the charge-sheet, laid before the Court by the Police. The non-examination of the shopkeeper to whom Naini Devi stated to have gone to fetch medicine, was also taken to be a ground to suspect the credibility of the prosecution witnesses. Reliance had also been placed by the appellants on a decision of the Apex Court of the land reported in 1994 SCC (Cri.) 1230 Alapati Venkata Satyanarayana Murthy and Ors. v. State of A.P. and in the backdrop of the observation made by Apex Court, it is sought to be urged that as interested and relation witnesses were sought to be examined by the State entirely to the exclusion of independent witnesses, they did not deserve credence. About admissibility of the first information report, learned Counsel would place reliance on a decision of the Andhra Pradesh High Court in 1984 Cr.L.J. 674 Bandela Nagaraju and Ors v. State of A.P. The last argument canvassed at Bar on behalf of the appellants was that taking the prosecution case and also evidence of the witnesses, in proper perspective, it would appear that though Janki Chamar had been found guilty also under Section 302 IPC by the Court below, exclusion of his complicity would expressly appear in the evidence of P.W. 12. such narration having not been made by Naini Devi before him about Janki Chamar assaulting Rangila Ram on his head. The other limb of argument pressed into service on behalf of the appellants was that regard being had to the circumstances in which the offence was allegedly committed, none of the appellants can be saddled with the allegation of sharing common object of the unlawful assembly to make them answerable for the charges under Section 302/149 IPC and reiterating his submission, it is urged that the appellants suffered ordeal of protracted prosecution for not less than 18 years and, if conviction of the appellants is upheld by this Court, this mitigating circumstance should deserve consideration in imposing sentence upon them. Learned Counsel for the State while resisting contention raised on behalf of the appellants, would urge that the case of the appellants would squarely fall within the mischief of Section 302/149 IPC, as evidences were quite explicit that all of them came with common object for killing of Raju though only two of them were suggested to be the assailants.
5. Now, adverting to the evidence placed on the record, we find Rupa Devi (P.W. 1) stating before the Court that she was informed by wife of Naga about assault on Rangila Ram and Raju when the latter became unconscious. She would State that when she met her husband, she was informed about the assault. She, however, would not state about disclosure of the name of the assailant of her husband. P.W. 2 Rupkalia Devi was tendered and as such there was nothing material in her evidence to merit consideration. Hashim Mian (P.W. 3) though did not disclose the name of the assailant, would state about unconsciousness of Rangila Ram who had dropped to the ground. He did not claim to have noticed the injuries either on Rangila or Bidul Kumar. Since this witness has turned volte face to the State, his attention was drawn to his earlier version which he rendered before the Police to impeach his credibility, by the State. Other witness examined by the State was Bakridan (P.W. 5) who stated that on hearing alarm, when he rushed to the house of Rangila Ram, he noticed him having dropped to the ground bearing injuries on his person. This witness too was hostile to the State and his attention was drawn to impeach his credibility. Nandji (P.W. 6) was returning after responding to the nature's call and alarm, he stated to have rushed to the field of Rangila when he noticed Mithu and others quarrelling for matter of throwing ashes in the field. He stated to have noticed Raju having dropped to the ground. Dora Mistry (P.W. 7) too was coming after responding to the nature's call and on alarms, he went to the orchard of Rangila Ram when he noticed a quarrel between Rangila Ram and also some Harijans. This witness would, however, make altogether a different statement before the Court about the assailant of Raju, as he would state that it were Rikhi and Ishwar Dayal who dealt blows on Raju who dropped to the ground. The witness would further state to have noticed Bidul bearing injuries on his person. He would state that Rangila had bleeding injuries on his head though he did not claim to have noticed assailants of either Rangila or Bidul. Md. Rauf Sah (P.W. 11) was another witness put in the witness box on behalf of the State who stated about seizure of basket and baniyan and preparation of the seizure memo by the Police Officer to which he too was a signatory. Ramadhar Singh (P.W. 12) was a Police Officer attached to Pirbahore police station, Patna, and he stated to have prepared inquest report of dead-body of Raju in Rajendm Surgical Ward of Patna Medical College Hospital and as has been stated earlier, he also stated to have recorded statement of Naini Devi {P.W. 10). The last witness Baleshwar Prasad (P.W. 13) was an Advocate's clerk who brought on the record death certificate (Exhibit 6), First Information Report (Exhibit 7) and Paragraph 22 of the Police case diary (Exhibit 8).
6. Apart from these witnesses, who were either formal or did not claim to have seen the assailants, the State had also examined two witnesses whose evidences were of vital significance and they happened to be Bidul Kumar (P.W. 4) and Naini Devi (P.W. 10). Now, taking the evidence of Bidul Kumar (P.W. 4), we find that the witness would state that while his grand father was coming to drop ashes in the adjacent field, he was intercepted by all the nine appellants who also assaulted him. It was stated by the witness that when Raju came from nearby field, where he was grazing cattle, Dhorha Chamar dealt blows with lathi on his head and when he happened to fall on the ground, successive blows with lathi were given to him by Janki Chamar. The witness would further state that when he came for rescue of his brother, it was Seth Chamar who dealt three successive blows with knife on him and about Ishwar Dayal, Mithu and Chhathu, the witness would state that they too dealt lathi blows on him.
7. Now coming to the evidence of Naini Devi (P.W. 10), we find her stating before the Court that at about 8.30 a.m. in the morning, while she had gone to a medical shop to fetch medicine, on alarm raised by her father from his field, she rushed to the place and noticed all the appellants, who had been indiscriminately assaulting her father with lathi. The witness would state that when Bidul Kumar and Raju came for rescue of grandfather, Dhorha Chamar assaulted Raju with lathi on his head which was followed by another assault by Janki Chamar, and pursuant to receipt of injuries, Raju dropped unconscious. About other assailants, the witness would state that Seth Chamar dealt knife blows on Bidul Kumar and the latter sustained injuries also by lathi by some of the appellants including Chathu Chamar. As Raju dropped unconscious on receipt of injuries, he was carried to Dinara Hospital where he was treated by a doctor. However, as his condition was critical, he was carried to Patna Medical College Hospital where he eventually succumbed to the injuries on 27th June, 1974. This is all the evidence that has been adduced by the State.
8. Before we delve upon to judge the probative value of the testimony of the witnesses, we have noticed that though Rupa Devi.(P.W. 1), Hasim Mian (P.W. 3), Bakridan (P.W. 5) Nandji Singh (P.W. 6) and Dora Mistry (P.W. 7) did not claim to have witnessed assault either on Rangila Ram, Raju or Bidul Kumar, and also that some of them, to some extent, turned volte face to the State lending no assurance to the prosecution allegation about witnessing the assault, still their evidences lend assurance to the prosecution allegations on the factum of incident witnessed by them. Rupa Devi stated to have witnessed Rangila Ram and Raju injured. Hasim Mian (P.W. 3) stated to have noticed Raju lying unconscious. Bakridan (P.W. 5) who was hostile to the State, stated to have noticed Raju lying injured and also Rangila Ram bearing injuries on his person. Similar was the case with Nandji Sing (P.W. 6) who stated to have noticed Raju lying injured though he did not witness assault. Though Dora Mistry (P.W. 7) stated about the assailants who were neither Dorha or Janki, he would state about Raju bearing bleeding injuries on his head. The witness would State about Bidul Kumar also bearing injuries on his person. Rangila Ram too had bleeding injury on his head.
9. Apart from these evidences which were of supporting nature, reliance can be placed on the testimony of Bidul Kumar (P.W. 4) and Naini Devi (P.W. 10) who stated in most certain terms about all the appellants assaulting Rangila Ram dealing indiscriminate blows with lathi on his person. They would also state about Dhorha Chamar assaulting Raju with lathi on his head which was followed by successive assault on him by Janki Chamar, pursuant to which he dropped unconscious. The witness would state about Seth Chamar giving knife blow on Bidul. Narrations made by these witnesses were most coherent about receipt of injuries either by Raju or Bidul Kumar or Rangila Ram.
10. Now coming to the positive finding recorded by the doctor, Dr. Pramudh Narain Singh (P.W. 8), who clinically examined injured Raju Kumar, stated to havfi noticed following injuries on his person:
(i) One swelling 4" × 3" on middle and left side of head.
(ii) Swelling with ecchymosis of left upper eye lid and left side of forehead.
(iii) Blood coming out from both nostrils.
Injury No. 1 was grievous in nature, which in estimation of the doctor, was caused by hard and blunt substance causing fracture of skull bone underneath and damage to brain. Injury Nos. 2 and 3 on Raju were effect of injury No. 1. Dr. Rai Sudhir Prasad (P.W. 9) stated to have held autopsy over the dead-body of Raju and he noticed following injuries on his person:
(i) Stitched wound 2-1/2" × 1/2" on left side of parieto frontal region of head about 1/2" from the midline.
(ii) Stitched wound 2" × 1/2" on the right side parieto frontal region of head about 1" from the midline.
On dissection, blood clot was seen in the full area underneath the scalp. Both the parietal, both the temporal and the frontal bone on both sides were found fractured. Two surgical wounds were seen, one on the frontal bone slightly towards left side and the other on the right parietal bone near frontal line. Both the injuries in the opinion of the doctor were caused by hard and blunt substance such as lathi, cause of death being due to bleeding, and injuries of the skull and brain. The doctor who first clinically examined Raju, when he was alive, also examined Rangila Ram and he noticed as many as 11 number of injuries on different parts of his person, which were either swelling or bruises and among them while injury Nos. 2 and 4 were grievous, rest were simple caused by hard and blunt substance. On the same day, the doctor stated to have examined also Bidul Kumar (P.W. 4), and on his person, there were penetrating wounds on his left ring finger, on posterior part of left axila and left elbow. Besides these penetrating wounds, the doctor stated to have noticed six number of injuries which were swelling with bruises on the left side of back, middle of head, right side of waist, right forearm and left wrist. All these injuries, except injury Nos. 1, 2 and 3, were caused by hard and blunt substance, while injury Nos. 1, 2 and 3 were the result of blows caused by sharp cutting weapon.
11. Now, on analysing the evidences of these two witnesses, we have noticed Bidul Kumar (P.W. 4) stating about all the appellants assaulting Rangila Ram indiscriminately from all sides and the doctor, who examined Rangila Ram, noticed corresponding injuries on his person, which were not less than 11 in number which were in the nature of swelling with bruises, and two of them were also grievous in nature. Similar has been the evidence of Naini Devi (P.W. 10) about all the appellants assaulting Rangila Ram. In her estimation, her father sustained not less than 25 blows with lathi.
12. Now coming to other injured, who happens to be Bidul Kumar (P.W. 4), we have noticed him stating before the trial Court that when he went for rescue of his brother Raju, appellant Seth Chamar inflicted three successive blows with knife on him. About other appellants, he was stating that Ishwar Dayal, Chathu and Mithu dealt blows with lathi on him. As for Naini Devi (P.W. 10), she would state that it was Seth who dealt blows with knife on him and that apart, Chathu too dealt blows with lathi on his person. The doctor, who clinically examined Bipul, as has been noticed, found three penetrating wounds on his person caused by sharp cutting weapon, of which none else but Seth Chamar can be said to be the author. As has been stated, the doctor also noticed six number of swellings on the person of Bidul Kumar for which, as per the evidence of P.W. 4, Ishwar Dayal, Chatthu, and Mithu were the authors. Now coming to the injuries sustained by Raju both Dhorha Chamar and Janki Chamar had been saddled with the allegation of dealing blows on his head with lathi. Bidul Kumar (P.W. 4) would make similar statements before the Court and that is also the testimony of Naini Devi (P.W. 10). However, we have noticed some disturbing features in the prosecution case on this score, which,cannot remain unnoticed. Though Naini Devi (P.W. 10) was stating before the Court about Janki Chamar also dealing blows with lathi on the head of Raju, such narrations were conspicuously wanting before the Police and on this score, there has been evidence of P.W. 12 who recorded statement of Naini Devi. Though Dr. Rai Sudhir Prasad (P.W. 9), who held autopsy over the dead body of Raju, stated to have noticed two stitched wounds on region of head, yet there is other evidence of vital significance which deserves consideration. Dr. Pramudit Narain Singh, (P.W. 8), who clinically examined Raju on 23rd June, 1974, when he was alive, had noticed only one swelling injury on middle and left side of head. Injury was caused by hard and blunt and heavy weapon causing fracture of skull bone underneath and damage to brain. Injury Nos. 2 and 3 in the estimation of the doctor were the effect of injury No. 1 and the doctor was more explicit that injury No. 1 was the result of only one blow and in this view of the matter, regard being had to the positive finding recorded by the doctor and also the solitary statement of Bidul Kumar, Dhorha Chamar only can be suggested to be the author of the injury found on the person of Raju. Complicity of the other appellant, namely, Janki Chamar, said to be one of the authors of the injuries noticed on Raju, deserves exclusion from consideration.
13. Now, coming to the credibility of these two witnesses on whom reliance was placed, the criticism levelled against them by the learned Counsel for the appellants deserves consideration. Though much stress was laid by the learned Counsel for the appellants on the testimony of Bidul Kumar (P.W. 4), that in view of the narration made by him about arrival of Naini Devi after receipt of injuries by the injured, she was not to be treated as ocular witness, we find submission meritless, as taking into consideration the totality of the evidence of the witness, Naini Devi (P.W. 10) appears to be the ocular witness of the incident, and that apart, while evaluating the probative value of the witness, the entire narration made by a witness has to be taken into consideration and not the astray or isolated statement made by a witness. It was urged on behalf of the appellants that none of the witnesses examined by the State would state about Naini Devi to be an ocular witness to the incident. We have noticed that Bidul Kumar (P.W. 4) had expressly stated about arrival of his mother and simply because the witness would state to have met his mother after the incident, that would not exclude the possibility of her being an ocular witness. True it is that name of Naini Devi (P.W. 10) did not appear in the charge-sheet but even the Police Officer (P.W. 12) would state to have examined Naini Devi during investigation and on this score, too her claim to be the ocular witness to the incident cannot be rejected on these submissions. Though it was admitted by Naini Devi that she was trained maid servant in the hospital but on this score alone there was no legitimate ground for presumption that injury reports placed on the record were manufactured and tainted piece of document, secured by her. The evidence of the doctor had been tested by the defence through lengthy cross examination and we have noticed that no dent has been caused to his testimony. Even death of Raju, cannot be questioned in view of the evidence of the doctor and also ocular testimony of the witnesses. Simply because some of the persons residing in the vicinity were not examined by the State that did not warrant rejection of the testimony of even other witnesses who happen to be house inmates and even when their evidences were free from blemishes. We have not noticed any serious infirmity in the testimony of two witnesses who claimed to be ocular, for their rejection and to keep them outside consideration.
14. Though defence witness too was examined at trial to bring on record station diary entry No. 362 which suggests that for uprooting of bamboos, there was a quarrel in which Dhorah Chamar sustained injuries, and rightly the defence contention on this score had been rejected by the Court below with sound reasonings, as even the Investigating Officer who visited the place of occurrence did not find stack of bamboos. The doctor, who clinically examined Raju, Rangila Ram and Bidul Kumar also stated to have examined Dhorha Chamar, one of the appellants and found lacerated wound and swelling on his person. But all these injuries were simple in nature, caused by hard and blunt substance. The doctor stated to have noticed injuries even on the person of Ishwar Dayal Chamar but that injuries too was simple in nature, caused by hard and blunt substance. These injuries were not on vital part on the person nor they were grievous in nature that can be taken notice of and that apart, the maker of fardbeyan had himself explained injuries noticed on the person of others and on this score too the prosecution version cannot be rejected.
15. Though much stress was laid by the learned Counsel for the appellants about admissibility of the first information report in view of death of Ram Rangila, who was its maker, this argument too was devoid of merit. Reliance placed in the case reported in 1991 (2) BLJ 343 Shyam Nandan Singh and Ors. v. State of Bihar was quite misconceived, as in the case cited at Bar, the informant was the only eye witness to the incident and the trial Court had relied on the circumstantial evidence. The facts of the case in hand is not akin to the case cited at Bar. We can profitably quote the observations made by the Apex Court of the land reported in 1984 Cr. L.J. 674 (supra) in which observations were made by the Apex Court of the land that FIR can be used under Section 6 of the Evidence Act which provides that facts, which though not in issue, are so connected with a fact in issue, as to form a part of same transaction, are relevant, whether they occur at the same time and place or at different time and place. The observations were made by the Apex Court that whatever was stated by the maker of the FIR, even if he was dead, forms part of the same transaction and was relevant under Section 6 of the Evidence Act. While commenting on the credibility of the witnesses, who were family members of the deceased, reliance was also placed by the learned Counsel for the appellant on a decision of the Apex Court of the land reported in 1994 SCC (Cri.) 1230 (supra). But on this score too, we find that the reliance placed was quite misconceived, as in the case cited at Bar, on the testimony of interested witnesses, presence of accused was not corroborated even by the injured witness. Contrary to that, we have noticed that in the instant case, Bidul Kumar was an injured witness who had lent full assurance to the prosecution allegation about injuries sustained by him or Raju or Rangila Ram. He himself was an injured witness and he being stamped witness, deserves all credence and his presence at material time of incident cannot be questioned.
16. Now analysing the evidences and also discussions made above, we find that in view of certain infirmity that has crept in the evidence about complicity of Janki Chamar and also regard being had to the positive findings recorded by the doctor, Janki Chamar cannot be convicted for being author of injuries on Raju. Finding of trial Court convicting and sentencing Janki Chamar under Section 302 IPC is accordingly set aside and he is acquitted of the charge. We have taken notice of the fact that the incident took place in heat of passion and also on spur of moment. It is not case of the prosecution that Raju also came when Dhorha registered protest before Rangila Ram. It is only after altercation, which ensued between Rangila Ram and others, that the incident took place and that too shows that there was no premeditation on part of the appellants to act in pursuance of common object of the unlawful assembly. As has been the prosecution case, one of them, Seth Chamar, was holding knife with him, but on this score too, the prosecution does not have a case about any of the appellants dealing blows with any lethal weapon on Raju and in the backdrop of these circumstances, it can be inferred that though the assailants acted with the knowledge which was likely to cause death but without intention to cause death, or to cause much bodily injury as was likely to cause death, the act attributed to Dhorha Chamar would squarely fall within the mischief of Section 304 Part II of the Penal Code. The conviction and sentence awarded by the Court below against Dhorha Chamar under Section 302 IPC is accordingly, set aside and he is convicted under Section 302 Part II of the Penal Code and is sentenced to undergo rigorous imprisonment for a term of ten years. There being no evidence of either preconcert or premeditation, rest appellants, who were not suggested to be author of killing of Raju, cannot be saddled even with accusation of sharing common object of unlawful assembly by legal fiction, in prosecution of which Raju was killed. They, being not vicariously liable for killing of Raju, are accordingly acquitted of the charge under Section 302/149 IPC. However, these appellants including Dorha Chamar, Janki Chamar, Seth Ram, Hari Chamar, Lal Mohar Chamar, Chathu Chamar, Mithu Chamar, Ishwar Dayal Chamar and Supan Chamar, had been saddled also with the allegation of causing hurt to Rangila Ram and there has been evidence of ocular witnesses and also positive finding of the doctor to make them answerable under Section 325/34 IPC, for which they are convicted accordingly. It is brought to our notice that these eight appellants have suffered custody as undertrial prisoner and also during post conviction period. They have also suffered the ordeal of protracted prosecution for about 18 years and in that view of the matter, we do not consider it expedient to sentence them further for being sent to prison and, hence they are sentenced to the period already undergone by them. The other appellant Seth Chamar was convicted by the Court below also under Section 324 IPC and we too endorse the findings recorded by the trial Court about the guilt of this appellant who was shown to be the author of the injuries sustained by Bidul Kumar and in his case also, in view of his custody and also protracted trial, we sentence him to the period already undergone by him. The other appellants namely, Ishwar Dayal, Chatthu, and Mithu were convicted by the trial Court under Section 323 IPC for which they were sentenced to rigorous imprisonment for a term of one year. However, in view of solitary testimony of P.W. 4 about Ishwar Dayal and Mithu Chamar also to be his assailant, which did not find corroboration from the testimony of P.W. 10, we exonerate Ishwar Dayal and Mithu of the charges under Section 323 IPC. However, we uphold the findings recorded by the Court below against appellant Chathu on this count. In his case too, in view of his custody and also protracted prosecution, we sentence him to the period already undergone and with these modifications, both the appeals, which arise out of the common judgment, are being disposed of by this common order and are accordingly, dismissed. The bail bond of appellant Dhorha Chamar is cancelled and the trial Court is directed to take coercive steps for apprehension of Dhorha Chamar in custody forthwith to serve out the sentence.
Prabhat Kumar Sinha, J.
I agree.