Patna High Court
Ram Bahadur Yadav & Ors vs State Of Bihar on 6 February, 2014
Author: Akhilesh Chandra
Bench: Akhilesh Chandra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.319 of 2002
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1. Ram Bahadur Yadav, Son of Ram Kishun Yadav
2. Lal Babu Yadav, Son of Ram Bahadur Yadav
3. Shiv Tahal Yadav, Son of Manna Yadav
4. Nand Bihari Yadav @ Nand Bihar Yadav, Son of Paryag Yadav
All resident of Village-Ghorghatta, P.S.-Bahadurpur, District-Darbhanda.
.... .... Appellants
Versus
The State of Bihar
.... .... Respondent
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Appearance :
For the Appellants : Mr. Iqbal Asif Niazi, Advocate
For the State : Mr. Damodar Prasad Tiwary, Additional Public Prosecutor
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CORAM: HONOURABLE MR. JUSTICE AKHILESH CHANDRA
ORAL JUDGMENT
Date: 06-02-2014 Heard the learned counsels appearing on behalf of the parties.
2. This appeal has been preferred by the four appellants, who have been convicted for the offences punishable under Sections 448, 323 and 307/34 of the Indian Penal Code and sentence to undergo rigorous imprisonment for one year each under Sections 448 and 323 of the Indian Penal Code and seven years each under Section 307 of the Indian Penal Code and also to pay a fine of Rs. 2,000/- each, as awarded on 27th June, 2002 by Additional Sessions Judge, Patna High Court CR. APP (SJ) No.319 of 2002 dt.06-02-2014 2/6 Fast Track Court No. 3, Darbhanga in Sessions Trial No. 276 of 1992 arising out of Bahadurpur P.S. Case No. 125 of 1990. However, all the sentences are to run concurrently.
3. The prosecution case in short as reveal from Exhibit- 1, the Fardbeyan of P.W.6, namely, Ram Swarath Yadav, recorded on 01st November, 1990, is that in the previous morning there was some dispute between the kids of the family, in retaliation whereof, the appellants armed with Lathi and Bhala arrived at his door and started abusing which was objected by his father (died during trial), who on protest, assaulted by Nand Bihari Yadav (appellant no. 4) by means of Lathi. On alarm, the informant and Ram Julum Yadav arrived and protested, wherein, Ram Bahadur Yadav (appellant no. 1) gave Bhala blow upon the informant causing injury on his palm and Shiv Tahal Yadav (appellant no. 3) caused injury by Bhala upon Ram Julum Yadav at his eye-brow and Lal Babu Yadav (appellant no. 2) assaulted the informant by Lathi since the iron rod part of the Bhala had already been damaged.
4. During trial, the prosecution has examined altogether eight witness besides producing following documentary evidence:-
(i) Exhibit-1 :- Fardbeyan.
(ii) Exhibit-2 :- Injury report of Ram Julum Yadav.
(iii) Exhibit-2/1 :- Injury report of Ram Swarth Yadav.
(iv) Exhibit-3 :- C.C. of judgment of G.R. 2175/90. Patna High Court CR. APP (SJ) No.319 of 2002 dt.06-02-2014 3/6 On the other hand, in defense, there are two witnesses without any documentary evidence.
5. It is contended by learned counsel appearing on behalf of the appellants that the father of the informant, who was, as alleged, initially assaulted has not been examined nor he was examined by the doctor for alleged treatment and neither in the Fardbeyan nor as witness during trial any of the prosecution witnesses including the two injured persons, i.e., P.Ws. 4 & 6 have said about re-petition of blow given either of the appellants. The doctor, namely, Vinod Kumar Gupta (P.W.8) has examined P.Ws. 4 & 6 and found the following injuries which are simple in nature:-
(1) On the person of P.W.4, namely, Ram Julum Yadav:-
(i) Incised cut over left Zygona of face of the size 1" x ½" x skin deep. X-ray reveal normal bony outline.
(2) On the person of P.W.6, namely, Ram Swarath Yadav:-
(i) Bruise on the right half of the back - 3" x ½".
(ii) Cut wound over knuckle of ring finger of the left hand - 1 ½ c.m. x ½ c.m. x skin deep.
6. Learned Additional Public Prosecutor while supporting the findings of the court below submitted that since the informant's father was dead during trial, he could not be produced as a witness and taking into consideration the assault by Lathi which Patna High Court CR. APP (SJ) No.319 of 2002 dt.06-02-2014 4/6 could not caused any fatal injury to him, he was not taken to doctor for any treatment, but the witnesses are consistent about his assault, so, his non-examination or non-production of the injury report, cannot be proved fatal for the prosecution.
7. Out of total eight prosecution witnesses examined, P.W.1, namely, Bhola Yadav, has stated about the prosecution version. Nothing relevant could be taken to disbelieve him in cross- examination. Similar is the position of P.W.2, namely, Siyaram Yadav, who also accepts about counter case and assault and institution of present one just in retaliation thereof. P.W.3, namely, Ram Parichan Yadav, has also stated about the prosecution version and about Lathi blow given by Nand Bihari Yadav. P.W.4, namely, Ram Julum Yadav, one of the injured, has also stated the prosecution version and about the injuries sustained by him at the instance of appellant no. 3. P.W.5, namely, Bhushan Yadav, likewise other witnesses, has also narrated the prosecution version. P.W.6, namely, Ram Swarath Yadav, is the informant-cum-another injured person and there is also nothing from his evidence to disbelieve. And, similar is the position of P.W.7, namely, Jittu Yadav.
8. The defense by examining two witnesses, namely, Shri Prasad Yadav (D.W.1) and Ram Nandan Yadav (D.W.2), has tried to state the undisputed position, i.e., counter version. Patna High Court CR. APP (SJ) No.319 of 2002 dt.06-02-2014 5/6
9. Undisputedly, the nature of injuries sustained by the injured persons are simple in nature and the appellant nos. 1 & 3, namely, Ram Bahadur Yadav and Shiv Tahal Yadav, have used Bhala, inflicting injuries upon the injured persons on their non-vital parts and in spite of having sufficient opportunity did not repeat. It cannot be said that they ever intended to kill anyone and the remaining appellants, i.e., appellant nos. 2 & 4, namely, Lal Babu Yadav and Nand Bihari Yadav @ Nand Bihar Yadav, are armed with Lathi and inflicted injuries upon the informant's father of such a nature which did not require even first aid.
10. In view of the above, their conviction, for the offence under Section 307 of the Indian Penal Code, is not at all sustainable rather the offence committed by the appellant nos. 1 & 3 attracts Section 324 of the Indian Penal Code, whereas, remaining appellant nos. 2 & 4 under Section 323 of the Indian Penal Code and since all of them arrived at the house of the informant, their conviction, for the offence under Section 448 of the Indian Penal Code, needs no interference.
11. Having regard to the facts and circumstances discussed above and the appellants were all along on bail during trial, but suffered detention after conviction for two months till they are released pursuant to order in this appeal, subject to payment of fine of Patna High Court CR. APP (SJ) No.319 of 2002 dt.06-02-2014 6/6 Rs. 1,000/- (Rupees One Thousand) each (half of the awarded amount) within a period of two months from today, their sentence, as awarded by the trial court, is reduced as already undergone.
12. With the above observation, this appeal is hereby dismissed.
13. Let this order be at once communicated to the court concerned for needful through FAX at the cost of the appellants.
(Akhilesh Chandra, J) Praveen-II/-
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