1. The present appeal arises out of judgment dated 05.07.2002 passed by the learned Presiding Officer, Fast Track Court No.IV, East Champaran at Motihari in Sessions Trial 285 of 1987 by which the appellants were acquitted of the charges under Sections 341, 235 and 307/34 of the IPC but were convicted of different offences. Appellants Sheo Balak Raut and Siyaram Raut were held guilty of committing offences under Sections 447 and 324 IPC and they were directed to suffer simple imprisonment for three months and two years respectively. Likewise, appellant Nand Kishore Raut was also convicted under Sections 447 and 323 IPC and was directed to suffer simple imprisonment for three years and six months respectively on the two counts.
2. It appears that the appellants and the informant were residing in the same Angan and it appears further from the evidence as also from the first information report that when the informant was feeding his animal at his Darwaja accused Radhe Shyam Raut who was also convicted for the offences, came and started digging up a Nala for flowing water which was objected to by the informant upon which the accused persons came there. Appellant Sheo Balak Raut was armed with a bhala, appellant Siyaram Raut was carrying a farsa whereas appellant Nand Kishore Raut had a lathi in his hand. Accused Radhe Shyam Raut was carrying a Kudal. It was stated that as soon as the accused persons reached there appellant Sheo Balak Raut dealt blows with bhala on the right palm and right leg of the informant whereas appellant Siyaram Raut assaulted him with farsa on the head causing bleeding injury to him. Appellant Nand Kishore Raut gave a lathi blow whereas accused Radhe Shyam Raut also assaulted the informant with the handle of Kudal on his both hands and the left leg.
3. Ram Swroop Rai (P.W.2) rushed there to save the informant and he was caught by convicted accused Radhe Shyam Raut and was assaulted by him also. It was alleged that appellant Sheo Balak Raut dealt a bhala blow to P.W.2 Ram Swroop Rai, as a result of which he was injured in his left hand. The witnesses came and saw the occurrence.
4. The informant and another injured P.W.2 were brought to the hospital where they were hospitalized and the statement of the informant was reduced into writing and was also incorporated into Station Diary Entry No.513 dated 29.06.1986 and after obtaining the injury certificates Exts-1 and 1/A, the FIR of the case was drawn up on 30.06.1986 at 6 P.M. The investigation was proceeded with and ultimately the three appellants along with convicted accused Radhe Shyam Raut were sent up for trial, which ended in their conviction by the impugned judgment.
5. During the course of the hearing of the present appeal, Sri Animesh Kumar Mishra, the learned Amicus Curiae took me through the evidence of witnesses and submitted that there were many discrepancies in their statements and non-examination of the I.O. was a material defect in the prosecution case. Submission also was that some part of the evidence was in excess of the earliest version of the prosecution case rendering the witnesses not acceptable. It was also contended that the evidence of P.W.1 was not admissible under Section 33 of the Evidence Act as was held by the learned trial Court.
6. Sri Sujit Kumar Singh, learned A.P.P has submitted that the witnesses were consistent on the manner of occurrence and they had no reason to falsely implicate the accused persons and as appears from the evidence the judgment does not require any interference from this Court.
7. As appears from the record of the case, the investigating officer was not examined and six witnesses were produced by the prosecution in support of the charges, out of whom, P.W.6 Ganesh Sah was a witness of formal character who had brought on record the FIR of the case as Ext-2. P.W.5 Dr.Brahmeshwar Nath Gupta had examined P.W.1 (Chhathu Raut) and P.W.2 (Ram Swroop Rai) and had issued the injury certificates Exts-1 and 1/A. It appears from perusal of Ext-1 which was the injury certificate in respect of injuries found by P.W.5 on the person of Chhathu Rai (P.W.1) that there were as many as eight injures on the person of P.W.1 and as may appear from the evidence of P.W.5, out of those eight injures there were two punctured wounds one on the right hand and other on the outer part of right leg and as may appear from the dimension of the injury, the same was caused by a weapon like bhala. The other six injuries were either lacerations or bruises suggestive of the fact that P.W.1 had been assaulted by some hard and blunt substance too. None of the injuries was grievous in nature and none of the injuries at the same time was found on any vital part of the body, as such, the acquittal of the accused persons for the charge under Section 307 IPC appears appropriately passed.
8. But the evidence is very clear that appellant Sheo Balak Raut dealt a bhal blow hitting the informant P.W.1 on his right hand and right leg whereas appellant Siyaram Raut gave a farsa blow on the head of the informant to cause a bleeding injury. There was a single injury on the head of the informant which has been described as a lacerated wound measuring 5 cm.x1/2 cm x ¼ cm and it appears caused in the case of P.W.5 by hard and blunt substance.
9. In the case of Hallu and Others v. State of Madhya Pradesh reported in AIR 1974 SC 1936 the allegation was that a sharp cutting weapon was used in giving the blows to the deceased but no injury by such a weapon was found on the dead body and on considering this anomaly in the oral testimony and the medical evidence, the Supreme Court extended benefit of doubt to the accused persons.
I have already noted that the consistency of evidence was that appellant Siyaram Raut had given a farsa blow on the head of the informant P.W.1 to cause bleeding injury. It has to be presumed that the sharp cutting part of the weapon farsa had struck the head of P.W.1 and in that case it has also to be presumed that the injury which could be resulting out of such a blow could never be lacerated as was found by P.W.5. Going by the principles laid down in the case of Hallu and Others (Supra) there is a doubt as regards the allegation against Siyaram Raut of giving a farsa blow to the head of the informant and that doubt benefits him and on that account his conviction appears not sustainable.
10. As regards other appellants, I have already noted that the doctor found two punctured wounds and bruises and lacerations on the person of P.W.1. But then, the question was that P.W.1 after being examined in chief and cross-examine to a single line did not turn up for his evidence. There is no dispute in it that there was a report that after being discharged on account of the adjournment sought by and granted in favour of the defence by the court he did not turn up only because he died. The learned trial Judge has held that his evidence was admissible under Section 33 of the Evidence Act. The learned counsel appearing for the appellants has disputed the finding recorded by the learned trial Judge that the evidence of P.W.1 could be relevant under Section 33 of the Evidence Act. Section 33 of the Evidence Act reads as under:-
33.Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. - Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable:
Provided”
that the proceeding was between the same parties or their representatives in interest;
that the adverse party in the first proceeding had the right and opportunity to cross-examine;
that the questions in issue were substantially the same in the first as in the second proceeding.?
11. On a perusal of the provisions extracted above what may appear is that the evidence given by a witness in a proceedings, may be in the same judicial proceedings, is relevant if the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party or if his presence cannot be obtained without an amount of delay or acceptance which under the circumstances of the case appear to the court unreasonable. The explanation appended to the provisions makes it clear that a criminal trial shall be deemed to be a proceeding between the prosecution and the accused persons within the meaning of the section. Undeniably P.W.1 was examined in chief and it does not appear from the record that the court had shortage of time that he could not proceed with the cross-examination of the witness rather from the deposition sheet of P.W.1 indicates that a prayer was made before the trial Court by the by the defence seeking the adjournment of hearing of the witness and on that prayer the hearing of the witness was adjourned for that day. There was subsequent two dates and the witness did not appear upon which warrant of arrest was issued to enforce the appearance of the witness. The police reported to the court while returning warrant of arrest that the witness was dead. The witness had deposed in the same proceeding and the reason for his non-appearance was very much in consonance with the provisions of Section 33 of the Evidence Act. It was not a case in which the witness had intentionally not appeared before the court on account of circumstance which could be vis-major, that the witness could not appear and on that account the evidence appears relevant under Section 33 of the Evidence Act.
12. After having settled the dispute which was raised by the learned counsel for the appellants, what this Court finds is that as regards the participation of Sheo Balak Raut and Nand Kishore Raut besides, the oral testimony and its consistently, support appears amply coming from the evidence of P.W.5 that the informant had been assaulted by bhala and lathi. So far as the prosecution story, that appellant Sheo Balak Raut dealt a bhala blow on Ram Swroop Rai (P.W.2) which hit him on his left hand is concerned, the witnesses besides being consistent were getting from the evidence of P.W.5 who had found one punctured wound measuring 1?x1/4?x1/2? on the back of left forearm of P.W.2. Thus, the evidence clearly indicated that the act besides being voluntarily was with an intent to cause the effect(i.e., the injury) by employing a means (i.e., weapon) and, as such, the acts committed by both appellants Sheo Balak Raut and Nand Kishore Raut come within the purview of Section 324 and 323 IPC for which offences they had duly been convicted by the learned trial Judge.
13. As regards the conviction of the appellants under Section 447 IPC, the evidence of the prosecution itself suggests that it was a joint Angan and the parties were residing in the same Angan having their house on all sides of it. Thus, there could not be any case of criminal trespass with any intent because the very premises belonged to every one who was in possession of it by residing thereon and in that view, the conviction of the appellants under Section 447 IPC appears perverse.
14. With the above modification in the order of sentence passed on the appellants as regards conviction under Section 447 IPC and conviction of appellant Siyaram Raut under Section 324 IPC, I do not find any perversity in the judgment of conviction. Appellant Siyaram Raut deserves to be acquitted on account of being extended the benefit of doubt and all the three appellants deserve to be acquitted also under Section 447 IPC.
15. With the above modification as regards the finding of guilt in respect of the three appellants, there does not appear any need to interfere with that part of the judgment. The learned counsel appearing for the appellants was making submissions on the quantum of sentence and was submitting that the occurrence had taken place in June, 1986, the judgment in which respect was delivered on 05.07.2002, i.e., after about 14 years and this Court has taken up the appeal after 12 years. For a total period of 26 years, the appellants had been continuously under extreme stress and strain of being convicted to different terms of imprisonment. It was suggested to this Court that they had already suffered and now they have attain quite some advance ages, which may yet be another circumstance to reduce the sentence. Considering the submissions and the period of pendency of litigation both before the lower court as also before this Court, it is directed that appellants, Nand Kishore Raut and Sheo Balak Raut be punished to the periods already undergone by each of them.
16. With the above modification in sentence, the appeal stands disposed of except that it stands allowed against appellant Siyaram Raut.
17. Sri Animesh Kumar Mishra has assisted the Court quite satisfactorily and the Court directs that he should be paid one fee of hearing by the Patna High Court Legal Services Committee and for that purpose let copies of first and last pages be made over to him.