Surendra Chauhan & Ors v. State Of Bihar

1. Surendra Chauhan s/o Late Sanichar Chauhan

2. Ram Kishun Chauhan, s/o Late Sanichar Chauhan Both are residents of village- Hacchalpur, Tola Lacchmipur, P.S. Kadwa, District- Katihar.

3. Etwari Kanjar @ Etwari Katiar s/o Late Kanhai Kanjar (Expunged)

4. Sk. Gafoor s/o Late Sk. Jumrati

5. Sk. Bashir, son of Late Sk. Kailu

6. Sk. Karim, son of late Sk. Samiruddin

7. Sk. Mannan, son of late Abdul Aziz,

8. Sk. Giyasuddin @ Sk. Gyas, son of late Abdul Aziz,(Expunged)

9. Sk. Samad, son of late Abdul Aziz.

10. Sk. Ziyaul @ Sk. Jabul s/o Late Sk. Abdul Gaffar.

11. Sk. Mansah @ Sk. Mansa, son of Late Sk. Abdul Gaffar.

12. Sk. Mustafa, son of Late Sk. Abdul Jabbar

13. Sk. Murtaza son of Late Sk. Abdul Jabbar

14. Sk. Barik @ Sk. Bari, son of late Sk. Abdul Gaffar Petitioners No. 3 to 14 are resident of village Gairya P.S. Kadwa, District- Katihar.

... Petitioners.

======================================================= Appearance :

For the Petitioner/s :Mr.Ashutosh Ranjan Pandey, Adv.

:Mr. Abdul Wadood, Adv.

:Mr. Rakesh Nanain Singh, Adv.

:Mr. Kulanand Jha, Adv.

For the informant :Mr. B. K. Baiviav, Adv. For the Respondent/s :Mr. A. M. P. Mehta, A.P.P. ======================================================= CORAM: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) Patna High Court CR. REV. No.362 of 2002 dt.14-11-2011 2 Amaresh Kumar Lal, J. I. A. No. 2064 of 2011 has been filed for the expunction of petitioner nos. 3 and 8 as they are dead.

The petitioner no. 3 Etwari Kanjar @ Etwari Katiar died on 8.11.2010 and the petitioner no. 8 Sk. Giyasuddin @ SK Gyas died on 16.8.2004. No one disputes this fact.

Let the name of petitioner nos. 3 and 8 be deleted.

This interlocutory application is allowed.

the judgment and order dated 9.4.2002 passed by the learned 1st Additional Sessions Judge, Katihar in Cr. Appeal No. 5 of 1997 by which the judgment of conviction and sentence passed by the learned trial court has been confirmed and the appeal has been dismissed.

The prosecution case, in brief, is that the informant in the capacity of Sikmidar of Plot nos. 222 and 223 having an area of three bighas claiming his possession over the land since long alleged to have been sown and grown maize crops over the land in dispute, Patna High Court CR. REV. No.362 of 2002 dt.14-11-2011 3 but on 2.5.1988 at about 7.30 a.m. all the accused petitioners after forming an unlawful assembly armed with deadly weapons and 25-30 labourers started looting the maize crops standing on the aforesaid land. The informant Mahavir Chouhan and his nephew Baijnath Chauhan rushed to the field when they are about to reach on the land, one of the accused Sk. Bari fired at them causing gun shot injury in the leg of Baijnath Chouhan. Hearing the sound of firing the villagers started assembling and proceeding towards the place of occurrence, then accused Sk. Bari and Sk. Jabbar again fired from their guns causing pellet injury to Tala Murmur, Jetha Soren and Karu Rishi. Due to causing of said gun injuries the informant and his men could not reach the land in question due to fear and death and getting opportunity the accused persons looted the maize crops and took away after loading on the tractor causing a loss of Rs.4000/-.

On the fard beyan Kadwa P. S. Case No. 63 of 1988 was registered against 19 persons. After investigation the I. O. sent all the four injured to the hospital for their Patna High Court CR. REV. No.362 of 2002 dt.14-11-2011 4 treatment. Four injury reports have been submitted by the doctors. After investigation charge-sheet was submitted. After trial, all the accused have been convicted and sentenced to rigorous imprisonment for five years under Sections 307 and 149 I.P.C., One year rigorous imprisonment under Section 147 I.P.C. and two years rigorous imprisonment under Section 379 I.P.C. and the accused Sk. Bari was convicted and sentenced to undergo rigorous imprisonment for two years under Section 27 of the Arms Act and also for two years under Section 148 I.P.C. and all the sentences to run concurrently vide order dated 20.1.1997. The petitioners preferred Criminal Appeal no. 5 of 1997 against the aforesaid judgment of conviction and sentence. The appeal has been dismissed vide impugned order dated 9.4.2002.

Learned counsel for the petitioners assailed the judgment of learned Appellate Court on various grounds. It has been submitted that the appellate Court has not considered the material on record on right perspective. The learned courts below have failed to consider the injuries found on the person of P.W. 1 Tala Murmu, P.W. 2 Jetha Patna High Court CR. REV. No.362 of 2002 dt.14-11-2011 5 Soren, P. W. 3 Karu Rishi and P. W. 4 Baijnath Chauhan which are simple in nature and not dangerous to life. The evidence of P.W. 8, Dr. Jagarnath Prasad has not been considered properly. The doctor has not found any injury dangerous to life rather they have been found simple in nature and not by firearms. The doctor has also found that the age of injury was 48 hours and the prosecution had not given any explanation for it.

Learned counsel for the State assisted by learned counsel for the informant has submitted that there is a concurrent finding of fact and this Court should not interfere with the impugned order.

Normally, the revisional court should not enter into the reappraisal of the evidence, but at the same time it cannot ignore the finding of fact which is perverse in nature. Reappreciation of evidence by the appellate court is essential and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone, particularly when the appeal has been admitted and placed for final hearing. Upholding such a procedure would amount to Patna High Court CR. REV. No.362 of 2002 dt.14-11-2011 6 negation of valuable right of appeal of an accused, which cannot be permitted under law. A reference may be made to the decision of Hon'ble Apex Court in the case of Rama & ors. vs. State of Rajasthan reported in (2000) 4 SCC 571.

Considering the facts and circumstances stated above, the impugned order passed by the learned appellate court is set aside. The matter is remitted back to the appellate Court for disposal of appeal in accordance with law after giving proper opportunity of hearing to both the parties.