Akhilanand Pandey S/O Ram Lakhan Pandey Vs the State of Bihar - Court Judgment

Excerpt:
[r.v. raveendran; a. k. patnaik] indian penal code section 452 - house-trespass after preparation for hurt, assault or wrongful restraint -- after investigation, the police filed two challans on 02.02.2006 before the judicial magistrate, first class, ludhiana. after further investigation, the superintendent of police, city-ii, ludhiana, submitted his report to the deputy inspector general of police, ludhiana range. the relevant portion of the report of the superintendent of police, city-ii, ludhiana, which contains his conclusions after further investigation, is extracted herein below: "i found during my investigation that mohan singh, son of shri sher singh , dharmatma singh, harpal singh, jagdev singh and bhupinder singh, sons of mohan singh, residents of pullanwal, sold one plot of 1 kanal 13 marlas on 09.03.2004 to bharpur sigh, harnek singh, sons of balbir singh, jagjit singh, son of amarjit singh, gurcharan singh, son of hari dass and jagdev singh, son of harpal singh, resident of phulanawal through registered sale deed vasikha no.23895 and the mutation no.10940 duly entered in the name of purchasing party. for deciding the issue, we must first refer to the provisions of section 173 of the cr.p.c. under which the police submits reports after investigation and after further investigation, section 190 of the cr. p.c. under which the magistrate takes cognizance of an offence upon a police report and section 482 of the cr.p.c. under which the high court exercises its powers to quash the criminal proceedings. report of police officer on completion of investigation. cognizance of offences by magistrate. sub-section (8) of section 173 further provides that where upon further investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall also forward to the magistrate a further report regarding such evidence and the provisions of sub-section (2) of section 173, cr.p.c., shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2). thus, the report under sub-section (2) of section 173 after the initial investigation as well as the further report under sub-section (8) of section 173 after further investigation constitute "police report" and have to be forwarded to the magistrate empowered to take cognizance of the offence. r.p. kapur moved the punjab high court under section 561-a of the code of criminal procedure for quashing the proceedings initiated by the first information report. 1.the appellant no. 1 has been convicted under section 323 and 326 i.p.c. and sentenced to rigorous imprisonment for 3 months and 3 years respectively as also under section 27 arms act and sentenced to 3 years rigorous imprisonment whereas appellant no. 2 and 3 have been convicted under section 326/34 i.p.c. and sentenced to rigorous imprisonment for 3 years under section 323 i.p.c. and sentenced to rigorous imprisonment for 3 years. the appellant no. 1 has further been directed to pay a fine of rs. 5000/- to the informant and in default of which 1 year rigorous imprisonment by the learned ist additional sessions judge, west champaran bettiah in sessions trial no. 123 of 1986/ 259 of 1995 by the judgment dated 10.7.1995. 2.the prosecution case is that on 31.5.1985, when the informant found the accused persons digging a parti land he protested over the same, at which the appellant no. 1 got enraged and fired at him causing injury on his chest. when the informant fell down the appellant no. 2 and 3 also reportedly assaulted him. 3.during trial the prosecution examined 8 witnesses out of whom p.w. 6 is the doctor who examined the informant whereas p.w. 8 is the investigating officer, p.w. 7 is the informant and p.w. 2 and 3 were the first information report named witnesses, whereas p.w. 4 and 5 are the two injured witnesses, p.w. 1, 2 and 3 are the witnesses on the factum of occurrence. 4.the defence also proved certain documents on the point that in fact on the same date the appellant no. 1 and 2 had been variously assaulted by the prosecution party and the land in fact belong to the accused persons on the basis of a deed of gift. 5.on going through the evidence of the prosecution, i find that there is complete denial of the counter version and the fact that the appellants had also sustained injuries in the same transaction. this point alone is enough to discard the prosecution since evidently it has not given a truthful version of the occurrence as it happened. 6.in the result, the appeal is allowed and the order of conviction and sentence passed against the appellants by the learned ist additional sessions judge, west champaran, bettiah in sessions trial no. 123 of 1986/ 259 of 1995 by the judgment dated 10.7.1995 are hereby set aside and they are acquitted of their respective charges. the appellants are discharged from the liabilities of their respective bail bonds. however, if the fine has been paid to the informant, on account of long lapse of time, the same may not be refunded to appellant no.1.

Judgment:
1.The appellant no. 1 has been convicted under Section 323 and 326 I.P.C. and sentenced to rigorous imprisonment for 3 months and 3 years respectively as also under Section 27 Arms Act and sentenced to 3 years rigorous imprisonment whereas appellant no. 2 and 3 have been convicted under Section 326/34 I.P.C. and sentenced to rigorous imprisonment for 3 years under Section 323 I.P.C. and sentenced to rigorous imprisonment for 3 years. The appellant no. 1 has further been directed to pay a fine of Rs. 5000/- to the informant and in default of which 1 year rigorous imprisonment by the learned Ist Additional Sessions Judge, West Champaran Bettiah in Sessions Trial No. 123 of 1986/ 259 of 1995 by the judgment dated 10.7.1995.

2.The prosecution case is that on 31.5.1985, when the informant found the accused persons digging a parti land he protested over the same, at which the appellant no. 1 got enraged and fired at him causing injury on his chest. When the informant fell down the appellant no. 2 and 3 also reportedly assaulted him.

3.During trial the prosecution examined 8 witnesses out of whom P.W. 6 is the doctor who examined the informant whereas P.W. 8 is the Investigating Officer, P.W. 7 is the informant and P.W. 2 and 3 were the First Information Report named witnesses, whereas P.W. 4 and 5 are the two injured witnesses, P.W. 1, 2 and 3 are the witnesses on the factum of occurrence.

4.The defence also proved certain documents on the point that in fact on the same date the appellant no. 1 and 2 had been variously assaulted by the prosecution party and the land in fact belong to the accused persons on the basis of a deed of gift.

5.On going through the evidence of the prosecution, I find that there is complete denial of the counter version and the fact that the appellants had also sustained injuries in the same transaction. This point alone is enough to discard the prosecution since evidently it has not given a truthful version of the occurrence as it happened.

6.In the result, the appeal is allowed and the order of conviction and sentence passed against the appellants by the learned Ist Additional Sessions Judge, West Champaran, Bettiah in Sessions Trial No. 123 of 1986/ 259 of 1995 by the judgment dated 10.7.1995 are hereby set aside and they are acquitted of their respective charges. The appellants are discharged from the liabilities of their respective bail bonds. However, if the fine has been paid to the informant, on account of long lapse of time, the same may not be refunded to Appellant no.1.