Dismissed

Badri Singh and Ors. v. State of Bihar

Patna HC15 Apr 2013CR. APP (SJ)/428/2001

Case brief

AI extract

What is this about?

High Court disposed of criminal appeal appealing from conviction and sentence for unlawful assembly causing hurt. Abated appeal of deceased appellants. Held conviction of surviving appellant valid but commuted sentence to release upon fine payment.

What did the court decide?

Criminal appeal dismissed with modification of sentence order; appellant to be released on realisation of fine.

Badri Singh and Ors. Vs State of Bihar — Criminal Trial and Appeal | Patna HC (2013)

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Patna High Court CR. APP (SJ) No.428 of 2001 dt.15-04-2013

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.428 of 2001

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======================================================== (Against the judgment of conviction and order of sentence dated 20-102001 passed by Presiding Officer, Additional Court-I, Buxar in Sessions Trial No. 247 of 1986, arising out of Brahmpur P.S. Case No. 03 of 1985) 1.Badri Singh, S/o Late Kamla Singh 2. Ashok Singh, S/o Late Surendra Mohan Singh

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Dwarika Singh @ Devesh Singh, Son of Late Kamla Singh, All residents of Village-Brahmpur, P.S. Brahmpur, District-Buxar.

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.... .... Appellants . Versus The State Of Bihar

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.... .... Respondent .

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========================================================

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Appearance : For the Appellant/s : Mr. Durgesh Kumar Singh, Advocate. For the Respondent/s : Mr. Mr. Sujit Kumar Singh, A.P.P.

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Dated/ the 15^th day of April, 2013.

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=========================================================

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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA

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JUDGMENT

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Hemant Kumar 1. It has been reported by the Superintendent of Police, Buxar Srivastava,J. vide his letter No. 285 dated 04-04-2013 that the appellants No. 1 & 3 died on 08-01-2013 & 10-05-2002 respectively. The Superintendent of Police, Buxar has given the aforesaid information, on the basis of Death Certificates of the appellants No. 1 & 3.

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Accordingly, the appeal in respect of appellants No. 1 & 3 is

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abated.

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Heard learned counsel appearing for appellant No. 2 as well

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Patna High Court CR. APP (SJ) No.428 of 2001 dt.15-04-2013

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as learned Additional Public Prosecutor for the State and perused the record.

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This Criminal Appeal has been preferred against the judgment of conviction and order of sentence dated 20-10-2001 passed by Presiding Officer, Additional Court-I, Buxar in Sessions Trial No. 247 of 1986, arising out of Brahmpur P.S. Case No. 03 of 1985 by which and whereunder, he convicted the appellant No. 2 under Section-323 of the Indian Penal Code and sentenced him, to undergo simple imprisonment for three months with fine of Rs 500/- for the above-said offence and in default of payment of fine, he was ordered to undergo S.I. for one month. The appellants No. 1 & 3 were convicted under Sections-324 & 323 of the Indian Penal Code, respectively; and they were ordered to undergo R.I. two years and S.I. three months respectively and Rs 500/- each was also imposed upon them with condition that if, they fail to deposit the fine amount, they shall undergo simple imprisonment for one month. Since the appellants No. 1 & 3 have already died during pendency of this Cr. Appeal, there is no need to discuss the case of appellants No. 1 & 3.

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In brief, prosecution case is that P.W. 3, gave his statement on 21-07-1985 at about 9.30 p.m. to Officer-in-charge of Brahmpur Police Station, to this effect that on the same day, at about 8.45 p.m., while he was sleeping on his door, the appellant No. 2 & others came there, being armed with Farsa and lathi and appellant No. 1 gave Farsa blow on his head whereas; appellant No. 3 assaulted him with iron rod on his back and left shoulder. He raised alarm, which attracted his brother Aditya Narayan Singh (P.W. 4) and Janardan Singh who came there but appellant No. 2 and one accused, Surendra Mohan Singh (since

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Patna High Court CR. APP (SJ) No.428 of 2001 dt.15-04-2013

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deceased) assaulted Aditya Narayan Singh (P.W. 3) and Janardan singh with Lathi.

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On the basis of aforesaid statement of P.W. 3, Brahmpur Police drew up FIR and registered a case being Brahmpur P.S. Case No. 03 of 1985 for the offences under Sections-448, 323, 324, 307/34 of the Indian Penal Code against the appellant No. 2 and three others including the appellants No. 1 & 3 (since deceased).

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The matter was investigated and after completion of investigation, charge sheet was submitted for the offences under Sections-448, 323, 307/34 of the Indian Penal Code. Cognizance of the offences was taken and the case was committed to the court of sessions, in usual way.

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The appellant No. 2 alongwith appellants No. 1 & 3 (since deceased) and other were put on trial and appellants No. 1 & 3 were charged for the offence punishable under Sectkion-307 of the Indian Penal Code whereas; appellant No. 2 and co-accused, Surendra Mohan charged for the offence punishable under Sections/307/34 of the Indian Penal Code. The charge was denied.

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To prove its case, prosecution examined, altogether, five witnesses. Besides it, several documents were also exhibited in evidence on behalf of the prosecution. The statement of appellant No. 2 and others were recorded under Section-313 of the Cr.P.C. in which, they reiterated their innocence. The defence also got exhibited a document as Ext. A.

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The learned trial court, having appreciated the materials available on the record, found that no case under Section-307 of the Indian Penal Code was made out and, accordingly, he convicted the

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Patna High Court CR. APP (SJ) No.428 of 2001 dt.15-04-2013

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appellant, Badri Singh (since deceased) for the offence punishable u/S 324 of the Indian Penal Code and the appellant, Dwarika Skngh @ Devesh Singh (since deceased) alongwith appellant No. 2 Ashok Singh were convicted for the offence punishable under Section-323 of the Indian Penal Code and the appellant No. 2 namely, Ashok Singh was sentenced in the manner as stated above.

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Learned counsel appearing for appellant No. 2, assailed the impugned judgment of conviction and sentence order, arguing that the instant case was brought by P.W. 3 (informant) on account of previous enmity and litigation and except his family members, not a single material witness, came forward to support the prosecution story and, therefore, no reliance can safely be placed upon the testimonies of the prosecution witnesses.

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On the otherhand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that almost all the witnesses have supported the prosecution story and apart from this, P.W. 5 has found injury on the person of P.W. 4 and, therefore, the prosecution succeeded in proving its case in respect of the appellant No. 2.

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Having heard the contention of both the parties and having gone through the materials available on the lower court record, I find that P.W. 4 Aditya Narayan Singh stated that appellant No. 2 gave Lathi blow to him causing injury on his left cheek, shoulder and palm. P.W. 5 Dr. Sidheshwar Singh, who had examined P.W. 4 after the alleged occurrence, found injuries on cheek, shoulder and palm of P.W. 4. Therefore, the statement of P.W. 4 is corroborated by P.W. 5.

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Patna High Court CR. APP (SJ) No.428 of 2001 dt.15-04-2013

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No doubt, all the prosecution witnesses are related with each others but admittedly, the alleged occurrence took place at night at the door of P.W. 3 and, therefore, presence of independent witnesses at the time of alleged occurrence, appears to be not possible. Moreover, it is well settled principle of law that the statement of prosecution witnesses cannot be discarded merely on the ground that they are related witnesses. So far as the fact of enmity is concerned, it is well settled principle of law that the enmity cuts in both ways and in my view, the deposition of prosecution witnesses cannot be thrown, only, on the ground that they have inimical terms with the appellants. Therefore, in my view, the learned trial court has rightly, convicted the appellant No. 2 for the offence punishable under Section-323 of the Indian Penal Code.

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So far as quantum of sentence is concerned, it is obvious from perusal of the impugned order of sentence that prior to initiation of the present case, the appellant No. 2 was convicted in another case for the offence punishable under Sections-147, 323 & 341 of the Indian Penal Code but admittedly, the alleged occurrence took place in the year, 1985 and, the appellant No. 2 was convicted by the trial court on 20-10-2001 and, therefore, it is obvious that the appellant No. 2 faced trial before the trial court for near about 16 years and after conviction, he filed this appeal before this court in the year, 2001 and since then, he has been facing the trauma of the present case. Furthermore, I find that at the time of pronouncement of impugned judgment of conviction and sentence order, the appellant No. 2 was aged about 40 years and now, he has already become more than 50 years. Furthermore, I find that there was land dispute between the appellant No. 2 and P.W. 3 and several litigations

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Patna High Court CR. APP (SJ) No.428 of 2001 dt.15-04-2013

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were pending between them. So, in my view, it would not be proper to send the appellant No. 2 behind the bar and the ends of justice would meet, if, the appellant No. 2 is released after realizing the fine as imposed by learned trial court.

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On the basis of aforesaid discussions, this Cr. Appeal stands dismissed with modification in the sentence order, in the manner as stated above.

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Patna High Court Dated/ the 15^th day of April, 2013 NAFR/AKV

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(Hemant Kumar Srivastava, J)

Badri Singh and Ors. v. State of Bihar

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Badri Singh and Ors. v. State of Bihar

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