Shivanandan Singh and ors. Vs. State of Bihar - Court Judgment

Excerpt:
indian penal code, 1860 - section 324/34--arms act, 1959--section 27--offence thereunder--conviction and sentence--legality of--appellants convicted and sentenced under section 324/34 of ipc--arson took place--common intention of appellant proved--previous enmity existed--appellants failed to lead any evidence to lend support to their own case--recording of findings of conviction of the appellants on the basis of the evidence on record by trial court, held, not illegal--however in view of the facts that perhaps, good feelings were restored between the parties and the accused must have remained in custody, appellants may be let off after furnishing bond under the probation of offenders act. - - so far other part of the occurrence is concerned, the prosecution has not come to the court..... s.n. pathak, j. 1. these two appeals were heard analgous because they arise of common judgment dated 9-10-91 rendered by the ist addl. sessions judge, nawadah, in sessions trial no. 463/84/45/88. appellant-baban singh was convicted under section 324/34 ipc. moreover ail other appellants in other appeal were convicted under section 324/34 ipc and appellants - shivanandan singh, janardan singh, shyamadhin singh, purshottam singh and surendra singh were convicted under section 27 of the arms act. those who were convicted under section 324/34 ipc were sentenced to undergo rl for 3 years and those who were convicted under section 27 of the arms act were further sentenced to undergo r1 for 3 years. 2. the prosecution case originated on the fardbeyan of bachu singh, wherein he had alleged that.....

Judgment:

S.N. Pathak, J.

1. These two appeals were heard analgous because they arise of common judgment dated 9-10-91 rendered by the Ist Addl. Sessions Judge, Nawadah, in sessions trial No. 463/84/45/88. Appellant-Baban Singh was convicted under Section 324/34 IPC. Moreover ail other appellants in other appeal were convicted under Section 324/34 IPC and appellants - Shivanandan Singh, Janardan Singh, Shyamadhin Singh, Purshottam Singh and Surendra Singh were convicted under Section 27 of the Arms Act. Those who were convicted under Section 324/34 IPC were sentenced to undergo Rl for 3 years and those who were convicted under Section 27 of the Arms Act were further sentenced to undergo R1 for 3 years.

2. The prosecution case originated on the fardbeyan of Bachu Singh, wherein he had alleged that on 11-5-81 at about 1 p.m., he was at his home in village Hansda. When he heard alarm regarding arson he rushed to the direction of noise alongwith other villagers and reached the house of Brihaspati Manjhi. House, of Brihaspati Manjhi was in flame. Several persons were extinguishing the fire, the informant joined the persons who were engaged in extinguishing the fire. In the meantime, he heard the sound of firing. The informant himself, Ramnandan Singh and Mahendra Singh received pellet injuries. Thereafter there was claimed 'MARO MARO' and raising this voice Shivnandan Singh, Shyamadhin Singh, Janardan Singh, Surendra Singh, Biseshwa Prasad, Purshuttam Singh, all armed with pistols, gun etc., Rajendra Singh, Dwarika Singh and other Bachu Singh armed with lathi came there and surrounded the informant and others who were extinguishing the fire. These persons indulged in firing upon those who were extinguishing the fir. The informant was assaulted by Shivnandan Singh with fire arms Shyamadhin Singh and Janardan Singh fired upon Ramnandan Singh, who received pellet injuries. Arjun Singh assaulted Mahendra Singh with garasa. Rajendra Singh and Dwarika Singh assaulted Arjun Singh with lathi. The occurrence occurred on account of an altercation between Brihaspati Manjhi on the one hand and Shyamadhin Singh, Rajendra Singh and Arjun Singh on the other when they had asked Brihaspati Manjhi to work for them and Brihaspati Manjhi refused and he also instigated others not to work for them. Shyamadhin Singh ordered Rajendra Singh and Arjun Singh to set on fire the house of Brihaspati Manjhi which led to the aforesaid arson and the assemblage of the villagers who were extinguishing the fire during the course of which appellants indulged in assault upon those who were extinguishing the fire.

3. The accused-appellants had taken up the defence of false implication and they had alleged, through the fardbeyan of Janardan Singh, that on the same day at about 12 noon, when the informant was at his Baithka, suddenly, several persons named in the fardbeyan (exhibit B) armed with various weapons came to the house of his uncle Ram Balak Singh and they indulged in abuses upon Ram Balak Singh and all those named in the fardbeyan indulged in firing and assault upon various persons of the family and they also ordered ransacking of his house.

4. The prosecution had examined in all 12 witnesses. PW 12 was the doctor who examined Ramnandan Singh, Umanath Singh, Mahendra Singh and Bachu Singh and he had also examined one Bindeshwari on behalf of the accused. Injury report was marked, exhibit A. PW 11 was the IO of the case. PWs 1, 2 and 4 were declared hostile by the prosecution. PW 3 was tendered. PWs 5, 7, 8, 9 and 10 were eye-witnesses to the occurrence and PW 6 was a hearsay witness regarding arson to the house of Brihaspati Manjhi. He did not know who set his house on fire. Out of the aforesaid witnesses, who claimed to be eye-witnesses, injured persons were Ramnandan Singh (PW7), Bachu Singh (PW4) and Mahendra Singh (PW5).

5. It has been submitted by the appellants' lawyer that the counter case filed by the accused-appellants ended into a compromise and the trial Court did not accept the compromise filed in this case, because all the injured persons did not sign the compromise petition. Brihaspati Manjhi was declared hostile and he did not support the occurrence regarding the arson of his house which was genesis of the case of the prosecution regarding assault upon those who were engaged in extinguishing the fire. Moreover, no charge under Section 436 IPC was framed nor the accused-appellants were chargesheeted for the aforesaid offence. So, there was no evidence regarding arson to the house of Brihaspati Manjhi and, therefore, part of the occurrence should have been disbelieved by the trial Court. So far other part of the occurrence is concerned, the prosecution has not come to the Court with clean hands, because it had failed to explain the injury upon one of the men on the side of the accused-appellants. So accused-appellants deserve benefit of doubt.

6. The fact that there was compromise between the parties is well admitted. This will throw a circumstance regarding hostility of PW 2 Brihaspati to the prosecution. Perhaps, it was under this circumstance that PW 2 failed to support the fact of arson to his house. All other witnesses including injured persons supported the occurrence of arson and it was during the course of extinguishing the fire that the alleged assault upon the members of the prosecution party took place at the hands of the accused-appellants. The trial Court, on the basis of evidence on record, came to a definite finding regarding the alleged assault upon some members of the

prosecution party. The doctor who examined the four persons and found injuries caused by fire-arms and sharp cutting substance also supported the injury upon the members of the prosecution party on the date and time as alleged. The counter version of the case also lend support to the fact that there was occurrence of mutual assault in between the parties at the place and time (near about the same time). It was fardbeyan of the informant which was recorded in Hathua Raj Hospital and, therefore, there might have been some delay in institution of this case. The case of the appellants was already instituted because none of the injured went inside the hospital, and because the informant of the appellants' case went to the police station by outsmarting the prosecution. Now the question is as to which of the parties was agressor. In a case and counter case, where two parties gathered at one place and indulged in assault upon each other, the moot question is which of the parties is the agressor. The informant of the appellants' case stated that the prosecution party had come to the house of their uncle Ram Balak Singh and ordered assault and looting of the house. There does not appear to be a probable motive for the prosecution party to mount an attack at the house of the informant's uncle and indulge in ransacking the house. So, it is quite probable that the accused also might have thought it fit to file a counter case in order to escape from the rigors of the prosecution case and to prove their smartness, they went to the police station earlier than the informant's fardbeyan of this case. Moreover, apart from bringing on record injury report of one Bindeshwari Singh (exhibit A) and fardbeyan of Janardan Singh (Exhibit B), the appellants did not lead any evidence to lend support to their own case.' So, I am of the opinion that the trial Court recorded a finding of conviction of the appellants on the basis of the evidence on record. I do not think it committed any illegality or irregularity here.

7. There was another contention raised on behalf of appellant-Baban Singh, that initially, he was not named in the fardbeyan. Some of the witnesses PWs 5, 7 and 10, do not name Baban Singh in their statement before the police so far his participation in the alleged occurrence is concerned. So, there was sufficient doubt regarding the participation of this appellant in the alleged occurrence. In this connection, I find that at least two of the witnesses, PWs 8 and 9, very much named Baban Singh in Court and they had also named him in their statement before the police. So, the trial Court relied on their evidence and found that Baban Singh was one of the members of unlawful assembly which indulged in assault upon those who were extinguishing the fire. Baban Singh was also chargesheeted by the police. So, I am of the opinion that the trial court was also very well justified in recording the finding of guilt against Baban Singh as well.

8. It was next submitted by appellants' lawyer that all appellants had not participated in the occurrence of firing, nor all of them used sharp cutting instruments in their assault upon the prosecution party and so there was no good case before the Court to convict all of them under Section 324/34 IPC. I find that all the accused-appellants were charged under Section 307/149 IPC. So if the trial Court convicted the appellants under Section 324/34 IPC, I think here also it was not unjustified because graver section may be reduced to an offence under lighter section. Charge under Section 307 IPC failed because the trial Court held that none of the members of unlawful assembly had any intention to kill the victims. Those accused-appellants who were armed with fire-arms and had indulged in firing, were convicted under Section 27 of the Arms Act further besides their conviction under Section 324/34 IPC. So, I think the order of conviction was not also unsupported by the evidence and circumstances on record.

9. It has been submitted that since in the other case, compromise was accepted and accused of that case were acquitted, in this case, sympathetic view may be

taken and the accused-appellants may be afforded the benefit of Section 360 Cr. P.C. or Probation of Offenders Act,

10. In view of the fact that perhaps, good feelings were restored between the parties and the accused-appellants must have remained in custody at least for a month and odd, I think the appellants may be let off after furnishing bond under the Probation of Offenders Act. So, order of sentence passed against them is set aside. The appellants shall furnish security bond of Rs. 2,000/- each, with the sureties of like amount to the satisfaction of the Court below to maintain peace for two years and to be of good behaviour for the same period with all conditions attaching to the same under Section 4 of the Probation of Offenders Act. The appellants shall surrender in the trial Court and furnish the aforesaid bond within 3 months from the date of communication of this Judgment, failing which the appellants shall suffer the sentence awarded by the trial Court.

11. These appeals are disposed of as mentioned above.