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2014 Supreme(Pat) 942
IN THE HIGH COURT OF JUDICATURE AT PATNA
GOPAL PRASAD, J.
Ram Prasad Rai & Ors.- Appellants
Versus
The State of Bihar - Respondent
Criminal Appeal (SJ) No.93 of 2002
Decided on : 27-11-2014
Advocate Appeared:
For the Respondent: Mr. S.A. Ahmad, APP
Material contradiction in evidence and lack of examination of key witnesses can lead to the setting aside of a conviction.
Headnote:
Conviction - Assault - Land Dispute - Material Contradiction in Evidence
Fact of the Case:
The appellants were convicted under Sections 448, 147, and 323 of the Penal Code for assaulting the informant and others in a land dispute. The lower Court recorded the conviction based on the first information report and evidence on record.
Finding of the Court:
The Court found that there was a material contradiction regarding the assault by the witnesses. It noted that there was a land dispute between the parties and a proceeding under Section 145 of the Criminal Procedure Code was ongoing. The witnesses' non-presence at the time of occurrence, lack of examination of the doctor and investigating officer, and the contradiction in the evidence led the Court to conclude that the order of conviction was not sustainable.
Issues: Material contradiction in evidence, lack of examination of key witnesses, and ongoing land dispute.
Ratio Decidendi: The Court set aside the order of conviction due to material contradiction in the evidence, lack of examination of key witnesses, and the ongoing land dispute between the parties.
Final Decision: The order of conviction recorded by the lower Court was set aside, and the appeal was allowed.
Gopal Prasad, J.
On repeated calls, no one appeared on behalf of the appellants.
2. Heard the learned counsel for the State.
3. Perused the record.
4. The appellants have been convicted under Sections 448 and 147 of the Penal Code and sentenced to undergo simple imprisonment for six months and, further, appellants, Uma Shankar Rai, Ram Bahadur Rai and Yadav Rai have been convicted under Section 323 of the Penal Code and sentenced to undergo simple imprisonment for six months. It has been ordered that the sentences shall run concurrently.
5. The prosecution case, as alleged in the first information report by the informant, Bidhata Mishrain, that at about 09.00 a.m. Jhapsi Rai, Chamru Rai, Bihari Rai and Ram Prasad Rai came to her door armed with lathi and asked her to execute deed with regard to the land in their favour and when the informant refused, Jhapsi Rai commanded to kill her otherwise she will not adhere to the demand. Thereafter, Uma Shankar Mishra, Pappu Paswan, Ram Bahadur Rai and Yadav Rai armed with lathi came and, thereafter, Ram Bahadur Rai and Yadav Rai assaulted her by the hoora of lathi (blunt portion of stick) and Uma Shankar Mishra as well as Raghu Paswan were pressing her neck by rope. It is, further, alleged that other accused persons demolished her house and on her hulla (alarm) Mahandra Naraiyan Mishra came to her rescue, then, he was assaulted by slaps and fists and, thereafter, they abused in filthy language. Thereafter, Shobha Kant Mishra, Awadhesh Rai, Rajendra Choudhary, Biltu Pandey, Hirday Choudhary, Ram Awatar Choudhary and others came and saved her from further assault. It is asserted that for demolish of the house she is at a loss of rupees five hundred.
6. On the fardbeyan, the first information report lodged and the police after investigation submitted charge sheet for offence under Section 307 and allied sections of the Penal Code.
7. On the charge sheet cognizance taken under Section 307 and allied sections of the Penal Code and the case was committed to the Court of sessions and after framing of the charge under Section 307 and allied section of the Penal Code, the trial proceeded.
8. During the trial seven witnesses examined as P.W. 1, Mahendra Narayan Mishra, P.W. 2, Awadhesh Rai, P.W. 3, Smt. Vidhata Mishra, the informant, P.W. 4, Chulhai Pandey, P.W. 5, Biltu Pandey, P.W. 6, Hirday Narayan Choudhary, and P.W. 7, Rajendra Choudhary, and the trial Court convicted the appellants, as mentioned above.
9. However, taking into consideration the first information report and evidence on record, it is apparent that there is land dispute between the parties and a proceeding under Section 145 of the Criminal Procedure Code was going on between the parties There is case and counter case. The witnesses though have supported the prosecution case and have stated that the informant and P.W. 1, Mahendra Narayan Mishra, were assaulted, but, with regard to the description of the assault it is stated that the informant was assaulted by hoora (blunt portion of stick) fists and slaps and the neck of the informant was surrounded by rope and was pressed causing bruises on her neck. P.W. 1 has also stated that he has been assaulted by slaps and fists. However, so far the evidence is concerned, the brother of the informant has also been examined and they have also come to state about the occurrence claiming to be the eye witnesses. However, P.W. 6, the brother of the informant, in his cross examination, in paragraph 8 of his deposition, has stated that he is full brother of Bidhata Mishrain and Rajendra Choudhary and both the brothers do not live with Bidhata Mishrain, hence, this evidence does not inspire confidence. P.W. 1, the injured, Mahendra Narayan Mishra, has stated that with regard to the occurrence a counter case was also filed by Phool Rai Mishrain in which charge sheet has been submitted by the police. He has, further, stated that he was examined by doctor and he has showed injury to Dr. Yu
