Nagendra Rajwar and ors. Vs. State of Bihar and anr.

Nagendra Rajwar and ors. vs State of Bihar and anr.

Disposition Appeal allowed Court Jharkhand Decided Jun 23, 2006

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Citation: sooperkanoon.com/523367
Court: Jharkhand High Court
Judge: D.P. Singh, J.
Decided On: Jun 23, 2006
Subject: Criminal
Disposition: Appeal allowed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Criminal
Outcome / disposition: Appeal allowed

Parties & Advocates

Appellant / Petitioner

Nagendra Rajwar and ors.

Respondent

State of Bihar and anr.

Legal References

Reported In: [2007(3)JCR128(Jhr)]

Excerpt

.....extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - according to this memo of appeals, all the witnesses have turned hostile and in absence of the doctor and investigating officer the conviction was bad in law......sessions judge, palamau at daltonganj in s.t. no. 464 of 1994 whereby and whereunder all the four appellants have been convicted under section 325/34 of the indian penal code and have been sentenced to undergo r.i. for three years.2. brief facts leading to this appeal are that in the night of 2.2.1991 the informant chandrika ram was coming back from hussainabad market when the appellants at about 9 p.m. asked him as to why he has not paid rs. 2000/- as demanded earlier. it is further alleged that when he asked for time to pay the amount he was assaulted by all the appellants resulting in fracture of his right and left hand. it is further alleged that on his alarm witnesses came and saved his life. he reported the matter to police in the morning of 3.2.1991 on the basis of which hussainabad p.s. case no. 14/1991 under sections 323, 325, 307/34 of the indian penal code was registered against all the appellants. the police investigated the case and finally submitted charge-sheet against all the appellants under the aforesaid sections of the indian penal code. the case was committed to the court of sessions where charges were framed against the appellants. the trial court found and held the appellants not guilty under section 307 of the indian penal code but held them guilty under section 325/34 of the indian penal code and sentenced them to serve r.i. for three years.3. the present appeals has been preferred on the grounds that the learned trial court has committed an error on records and law. according to this memo of appeals, all the witnesses have turned hostile and in absence of the doctor and investigating officer the conviction was bad in law. it is further asserted that in the event of compromise entered upon between the parties, the learned trial court committed an error of law by not accepting the compromise petition just because it was not signed by the informant, chandrika ram who is admittedly dead. it is also admitted that the counter case filed.....

Full Judgment

ORDER

D.P. Singh, J.

1. All the four appellants have preferred this appeal against the judgment and order of conviction and sentence dated 25.1.2001/27.1.2001 passed by 7th Additional Sessions Judge, Palamau at Daltonganj in S.T. No. 464 of 1994 whereby and whereunder all the four appellants have been convicted under Section 325/34 of the Indian Penal Code and have been sentenced to undergo R.I. for three years.

2. Brief facts leading to this appeal are that in the night of 2.2.1991 the informant Chandrika Ram was coming back from Hussainabad market when the appellants at about 9 p.m. asked him as to why he has not paid Rs. 2000/- as demanded earlier. It is further alleged that when he asked for time to pay the amount he was assaulted by all the appellants resulting in fracture of his right and left hand. It is further alleged that on his alarm witnesses came and saved his life. He reported the matter to police in the morning of 3.2.1991 on the basis of which Hussainabad P.S. Case No. 14/1991 under Sections 323, 325, 307/34 of the Indian Penal Code was registered against all the appellants. The police investigated the case and finally submitted charge-sheet against all the appellants under the aforesaid sections of the Indian Penal Code. The case was committed to the Court of Sessions where charges were framed against the appellants. The trial Court found and held the appellants not guilty under Section 307 of the Indian Penal Code but held them guilty under Section 325/34 of the Indian Penal Code and sentenced them to serve R.I. for three years.

3. The present appeals has been preferred on the grounds that the learned trial Court has committed an error on records and law. According to this memo of appeals, all the witnesses have turned hostile and in absence of the doctor and Investigating Officer the conviction was bad in law. It is further asserted that in the event of compromise entered upon between the parties, the learned trial Court committed an error of law by not accepting the compromise petition just because it was not signed by the informant, Chandrika Ram who is admittedly dead. It is also admitted that the counter case filed by the appellants against the informant and his witnesses have been compromised and on the basis of which they were acquitted, therefore the appellants also deserve to be acquitted.

4. I have gone through the entire case records and after anxious consideration of the submissions. It appears that in the present case it is admitted fact on record that prosecution has examined only five witnesses out of which PW 1 is formal witness who has proved the signature of the Officer-in-Charge on FIR and PW 2 Ramashish Singh, PW 3 Kailash Singh have been declared hostile. The I.O. has not been examined nor the medical officer. However, the son of the informant Sukhdeo Singh and so-called eye-witness of the occurrence Dwarika Singh have been examined as PWs 4 and 5. PW 4 has admitted that he was narrated about the incident by his father. He has proved the X-ray plates (Ext. X-X10 series). He further admitted in the cross-examination that incident did not take place in his presence and for an occurrence of the same day a case was lodged by the wife of the appellant Darbari Rajwar in which PW 5 and others along with his father were accused. According to him the said criminal case was compromised resulting in their acquittal. This witness has further admitted in para 11 that he has signed on the compromise petition which was filed after the death of his father and proved it as Ext. A. PW 5 Dwarika Ram though supported the prosecution version, admitted in cross-examination that he was not examined by police neither they have given any written report. He further admitted vide para 6 that for an occurrence of the same day Darwari Singh appellant has also filed a case against them in which they were sent to Jail and' ultimately acquitted on the basis of compromise petition.

5. Learned Counsel for the appellants drew my attention towards the provision of Section 320 Clause 4(b) of the Cr PC in which a compromise petition may be filed on behalf of the informant after his death by anyone who has got interest. In the present case the compromise petition Ext. A has been filed by the son of the informant PW 4, Sukhdeo Singh who was an accused in the counter case. This fact has also been supported by PW 5, eye-witness of the occurrence. Therefore, if the compromise petition was filed without any pressure it should have been considered by the learned trial Court.

6. I further find and hold that in absence of the I.O. and Medical Officer and positive evidence on the records, the appellants deserve to be acquitted of the charges. In result, I find that the present appeal has got merit and deserves to be allowed. Accordingly the appeal be allowed. The appellants having been acquitted of the charges under Section 325/34 of the Indian Penal Code stand released from the-liabilities of their bail bond.

7. Let a copy of this judgment along with original case records be sent back to the Court concerned for information and needful.

Same Court & Year Jharkhand · 2006 Same Parties Nagendra Rajwar and ors. vs State of Bihar and anr. Same Subject Criminal Same Judge D.P. Singh, J.

Criminal