Against the judgment of conviction and order of sentence dated 15.10.2001 passed by Sri Amod Prasad Ram, Sessions Judge, Koderma in Sessions Trial No. 369 of 1995.
By Court: Heard the learned counsel for the appellants and learned counsel for the state.
2. The instant appeal is directed against the judgment of conviction and order of sentence dated 15.10.2001 passed by Sri Amod Prasad Ram, Sessions Judge, Koderma in Sessions Trial No. 369 of 1995 by which judgment all the appellants have been convicted u/s147 of the I.P.C and sentenced to undergo R.I for 1 year. Further, they are also convicted u/s 323 of the I.P.C and sentenced to undergo R.I for 6 months. Both the sentences were directed to run concurrently.
3. It is submitted by learned counsel for the appellants that it will appear from the prosecution case that no asault was made with intention to cause the death of the informant and her husband and it was not believed by the trial court also and the trial court acquitted the appellants u/s 307, 448, 504 and 325 of the I.P.C He has further submitted that there is a family dispute from before with regard to the partition of properties between the two families. They are agnates and offspring of the same family and some dispute took place. Accused party attempted for calling the village Sarpanch, Meghlal Sao-Appellant No. 4, who is dead now, but the prosecution instead of coming to a compromise and solution, falsely implicate the appellants. Hence, the conviction of the appellants are bad in law and fit to be set aside.
4. On the other hand, learned counsel for the state as also learned counsel for the informant have submitted that the injured persons were medically examined and it will appear tht the husband of the informant, P.W.1 received grievous injury and the trial court has rightly convicted the appellants and the judgment of the trial court requires no interference by this court.
5. After hearing both the parties and after going through the evidences on record, I find that the prosecution case was started on the basis of the written report given by the informant, Vidya Devi(P.W.3) stating therein that when she was taking bath near the well in her house, then the accused-appellant, Govind Sao along with his wife came there and started rebuking her asked her not take the bath in the well, then she asked them tht they have closed the bathroom and latrine, in that situation, where will she go for bathing and he being her elder ‘Bhaisur’, should not come while she is taking bath. She made complaint to her husband and to her son. Thereafter, her husband and son came and objected, whereupon the son of accused-appellant, Govind Sao namely Kajendra Sao and Umesh Sao called the Sarpanch of the Village Tetariadih namely Meghlal Sao, who came along with Ramprakash Sao, Mahendra Sao, Nandlal Sao and Mahesh Sao, all resident of Domchanch. Thereafter, all of them assaulted her husband and son with fist and blows with in intention to cause the death the death of their only son, Sandeep Kumar. Other villagers came and saved their lives, then they filed this written report to the police.
6. On the basis of the said written report, police registered a case u/s 147/448/323/504 of the I.P.C against the accused and after investigation submitted charge sheet 147/323/325/307/448/504 of the I.P.C Since, section 307 I.P.C is exclusively triable by the court of Sessions, Learned C.J.M committed the case to the court of Sessions Judge, Koderma who himself tried the case and found the appellants guilty and convicted and sentenced them as aforesaid.
7. It appears that in course of examination the prosecution has examined 6 witnesses to prove its case.
P.W.1 is Laxami Narain Sao, Husband of the informant
P.W.2 is Sandip Kumar, son of the informant
P.W.3 isVidya Devi, informant of the case
P.W.4 is Govind Sao, informant of the case
P.W.5 is Raj Kishore Singh, Investigating Officer of the case.
P.W.6 is Dr. R.K Jamaiyar, who examined the husband of the informant.
8. It appears that in course of trial the informant, P.W.3, Vidya Devi, her husband-P.W.1, Laxami Narain Sao and P.W.2, her son, Sandip Kumar have supported the fact that all the appellants assaulted them with fist and blow and even tried to say that they received grievous injuries i.e P.W.1 received injury on his chest which caused fracture and other witnesses P.W.2 and P.W.3 also received injury. The doctor was also examined as P.W.6 He has stated that P.W.1 had received injury on his chest and the X-ray shows fracture of the fifth right rib, but the said injury report and statement of the witnesses were not accepted by the trial in view of the fact that there was no such allegation in the written report and the Investigating Office, who was examined in the court as P.W.5 has very clearly stated in his cross examination at para 11 that he had not issued any injury report of any of the witnesses neither the informant nor her husband and son. He also stated that in her statement, informant, Vidya Devi had not stated that she received any injury on her neck causing break of her neck bone nor her son Sandip Kumar stated that he received any injury. In that view of the matter, learned trial court rightly did not believe the improvement in the case during trial and acquitted the appellants u/s 325, 307, 448 and 504 of the I.P.C and only convicted them u/s 147 and 323 of the I.P.C
9. In my opinion, the conviction of the appellants u/s 323 and 147 of the I.P.C is well founded by the trial court and it does not requires any interference by this court.
10. However, learned counsel for the appellants has submitted that it is apparent from the prosecution story itself that both the parties are members of the same family and only because the appellants - accused party got the judgment in their favour in the partition suit this case was lodged. Learned counsel also submitted that it will also appear from the prosecution case itself that when objection was raised by the husband and son of the informant, they did not take law in their hand rather as per the statement of the informant, they called the serpanch of the village namely, Meghlal Sao, who is now dead, came with other neutral village members and tried to pacify the matter, but they were also made accused and this case was filed. Learned counsel for the appellants has also relied upon a decision reported in the case of “Rajbir v. State of Haryana in A.I.R.1985, Supreme Court page 1278” in which judgment in a similar case the Hon'ble Supreme Court has observed that “when both the parties to the assault were close relatives and there is no material on record to indicate that the appellant had any previous conviction. In the absence of such evidence, we treat the appellant as first offender. He is entitled to be admitted to the benefits of probation under section 3 of the Probation of Offenders Act, 1958 taking into consideration the circumstances of the case, the nature of the offence and the character of the appellant. While maintaining his conviction, we directed that he shall be released on Probation of good conduct under section 4 of the Act. The Chief Judicial Magistrate, before whom the appellant is directed to appear within four weeks from today shall release him with due admonition”.
11. Since, the matter is very much similar in this case and both the parties belonged to same family and there was only scuffle with fist and blow in this case. Also there is no evidence that the appellants have got any previous conviction and in absence that, in my opinion, the appellants are entitled to get benefit of section 4 of Probation of Offenders Act, 1958 and they are entitled to be release on Probation of good conduct. Accordingly, while maintaining their conviction u/s 147 and 323 of the I.P.C, they are directed to appear before the trial court (Sessions Judge, Koderma) within 4 weeks from today and the learned Sessions Judge will release them after due admonition and also on furnishing a bond of Rs. 2000 with two sureties of the like amount each and also to maintain peace for a period of 2 years.
11. In the result, with the aforesaid amendment in the order of sentence, the appeal is dismissed.