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2014 Supreme(Pat) 434
Patna High Court
DHARNIDHAR JHA, J.
(29.4.2014)
Cri. Appeal (SJ) Nos. 90 with 92 of 2002
Sanjay Kumar Sinha
@ Babloo (in 90) : Appellant
Binod Singh (in 92)
Vs.
State of Bihar : Respondent
(in both)
For the Appellant : None (in both).
For the Respondent: Sri Sujit Kumar Singh (in both).
Headnote:Indian Penal Code, 1860–Section 307–Attempt to murder–Appellants assaulting the informant with fists and slaps–Injuries found were simple tenderness with swelling and linear scratch with tenderness, which were caused by hard and blunt substance–Doctor not given any categrical opinion that there was any injury found on the person of informant which could have been dangerous to his life–Conviction under Section 307 is illegal and unfounded. (Paras 8 & 12)
Indian Penal Code, 1860–Section 448–House Trespass–Conviction–In view of definition of house/respass given in Section 442 IPC or Criminal trespass' given in Section 441 IPC, the property has firstly, to be in possession of another person which means that the property must have the nature of being a private property belonging to a particular person or at least being in possession of a particular person–In the present case, the place of occurrence was the office of the Building Division and was an establishment run under a particular Government Department–The nature of the premises was of a public place and it was never private nor in possession of any particular individual–Mere entry into the office of the Building Division could not be said to be falling within the category of any sort of tres-pass–Conviction under Section 448 IPC is completely outside the purview of law–Appellant acquitted of the offence under Section 448 IPC accordingly–However, the appellants having entered into the office and assaulting the informant, committed an offence under Section 323 IPC and Convicted accordingly. (Paras 10 & 13)
DHARNIDHAR JHA, J.:–No one appears on repeated calls and in spite of sending words and the peon for informing the counsel whose names appear in the list, no one turned up. I have heard Sri Sujit Kumar Singh, learned Additional Public Prosecutor and have perused the record myself for delivering the judgment.
2. The two appellants were put on trial by being charged with committing offences under Sections 307 and 450 IPC and by judgment of conviction and order of sentence both dated 18.0.2.2002 they were held guilty of committing offences under Sections 307 and 448 IPC and each of them was directed to suffer rigorous imprisonment for three years as also to pay a fine of Rs.1,000/- each under Section 307 IPC and in case of making default in paying the fine, was directed further to undergo rigorous imprisonment for six months each. Each of the two appellants was also directed to suffer rigorous imprisonment for six months on account of being convicted under Section 448 IPC.
3. The two appellants have preferred two appeals separately to challenge the judgment of conviction and order of sentence passed against them.
4. P.W.7 Bhuneshwar Rai was working as Accounts Clerk in the Building Division, Vaishali at Hajipur on 19.05.1988. He filed a written report (Ext-1) stating that while he was working in his office, the two appellants came to him and asked him to produce the two files in respect of M/S Trishul Construction and contractor Ratan Kumar. The informant stated that the two files were lying with the Estimates Officer of the department upon which he was asked by the appellants to bring those files from there. The informant refused by pointing out that it was none of his business, upon which the two appellants started abusing and also started assaulting him with fists and slaps. The two appellants caught the neck of the informant and put him down on the ground and kicked him around, as a result of which, he lost his consciousness. The employees of the office came and revived his consciousness. It was stated by the informant that on account of pressing of his neck and assault given to him, there was some injury on his throat and his hearing had also been impeared. It was lastly stated by P.W.7 that while he was leaving the office the two appellants gave threats to him.
On the basis of the written report of P.W.7, FIR of the case was drawn up and the investigation was taken up which ultimately resulted into submission of the charge-sheet under Sections 307 and 448 IPC.
5. The defence of the appellants was of false implication on account of the informant having demanded some money from one Upendra Singh who was the brother of appellant Binod Singh which was refused being paid by the said Upendra Singh.
6. During course of the trial, a total number of ten prosecution witnesses had been examined, out of whom P.W.2 Ram Dharan Singh, P.W.3 Ram Jee Singh, P.W.4 Lal Bahadur Sah, P.W.5 Ishwar Chandra Singh, P.W.6 Birendra Mishra, P.W.8 Rama Nand Jha and P.W.9 Rabindra Kishore Singh were declared hostile on account of having not supported the prosecution story narrated by P.W.7 Bhuneshwar Rai , the informant. The case was supported by P.W.1 (Ranbir Singh), one of the employees of the Building Division, Hajipur in its entirety. P.W.10 Dr. Ram Govind Prasad had examined the informant on 21.05.1988 and had issued the injury certificate (Ext-2).
7. As I have already noted, no one appeared on behalf of the two appellants to make submissions on the merits of the appeal and I have heard Sri Sujit Kumar Singh, the learned Additional Public Prosecutor on the merits of the appeal.
8. P.W.7 Bhuneshwar Rai, the informant of the case has supported the allegations in its entirety and what I find after considering his evidence in cross-examination is that he appears sticking to his case and no fact which could be detrimental to the merit of the evidence appears brought on record. In fact the consistency of his evidence was such that not even a single att
