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Judgment
Appellant Brahmdeo Poddar @ Bipat Poddar in Criminal
Appeal No. 432 of 2002 and appellants Rajendra Paswan, Sahindra
Paswan, Nagina Paswan, Binda @ Bindeshwari Paswan and
Mahindra Paswan in Criminal Appeal No. 463 of 2002 have been
convicted by the judgment and order rendered on 29.06.2002 by the
Additional Sessions Judge, Fast Track Court, Madhepura in
Sessions Trial No. 30 of 1988. The appellant Brahmdeo poddar in
Cr. Appeal No. 432 of 2002 has been convicted to undergo five
years rigorous imprisonment for the offence punishable under
Section 307 of the Indian Penal Code and four years for the offence
under Section 326, IPC and one year for the offence under Section
148, IPC . And the appellants in Cr. Appeal No. 463 of 2002 have
been sentenced to undergo rigorous imprisonment for six months for
offence punishable under Sections 147, 148, 149 and 307, IPC .
It is the case of the prosecution that the informant Jaikant
Jha recorded a Fardi on 09.11.1975 at 12.15 hours at Madhepura
Hospital to the effect that 12 days prior to the date when the Fardi
was lodged, Brahmdeo Poddar had assaulted a child belonging to the
informant''s family and on the date of incident, i.e. on 09.11.1975, at
about 7.30 hours when the informant''s son Ramendra Narain Jha
was coming through the village Dighi, Murliganj, through the field
of Brahmdeo Poddar, the accused Brahmdeo Poddar was harvesting
his paddy crops and the accused persons were also present in the
field while harvesting paddy crops. When the appellant Brahmdeo
Poddar and other enquired from the informant''s son as to why he
does not make his father understanding that he should not insult
other people in the Panchayati. It was said that son of the informant
replied by saying that he (Brahmdeo poddar) has assaulted the child
and a case has also been filed, on which it is said, that all them
present there assaulted the informant''s son in the paddy field. When
the altercation was going on, the informant called his son when he
saw it and thereafter the main accused Brahmdeo Poddar is said to
have gave a sword blow on the neck of the informant''s son.
The appellants have been prosecuted. However, in the
prosecution, PW 1 Rameshwar Mandal, PW 2 Bhuvaneshwar Jha
and PW 3 Kaladhar Jha have turned hostile and have not supported
the case of the prosecution. PW 4 Pitambar Jha speaks that he has
seen Brahmdeo Poddar with a sword in his hand while the other
persons armed with lathi. He only speaks about Brahmdeo Poddar
giving a sword blow over the back of the neck of Ramendra Narain
Jha. PW 5 Deep Narayan Jha speaks about having seen the incident.
The injured victim Ramendra Narain Jha himself PW 6 supports the
case of the prosecution. PW 7 is Madan Chandh does not support the
case of the prosecution. He has been declared hostile.
The medical evidence goes to show that that one incised
wound over back and lateral part of the left side of the root of the
neck of the victim was caused. However, interestingly, neither the
doctor who examined the injured witness and submitted the injury
report Ext. 2 nor the Investigating Officer had been examined with
regard to the issue in question. This is a serious lacuna in the case of
the prosecution and apart from the appellant Brahmdeo Poddar in
Cr. Appeal No. 432 of 2003 there is no allegation against any of the
accused persons who are appellants in Cr. Appeal No. 463 of 2002
except for the fact that they were present in the field harvesting
paddy along with Brahmdeo Poddar. Nothing has been indicated
with regard to any overt act attributed to them.
As far as Brahmdeo Poddar is concerned, statement of
witnesses who are independent witnesses like Rameshwar Mandal
PW 1, Kaladhar Jha PW 3, they have turned hostile and have not
supported the case of the prosecution. The witnesses who have been
testified against the appellants are all family members and there are
cases pending between them as is evident from the material
available on record. However, the injury caused and the medical
examination of the injured witness has not been proved by
examining of the doctor. When the said offence is said to have been
committed in the year 1976 and the judgment was pronounced in the
year 2002, appellant no. 1 Brahmdeo Poddar was shown to be 65
years of age.
Taking note of all the circumstances of the case in the
absence of their being medical evidence to prove the nature of the
injury, the conviction of Brahmdeo Poddar in Cr. Appeal No. 432 of
2002 is unsustainable and so far as the other appellants in Cr.
Appeal No. 463 of 2002 are concerned, no specific act is attracted
even to the ingredients necessary for making out a case under
Sections 147 and 148, IPC against them.
Accordingly, the conviction of the appellants cannot be
sustainable and both the appeals are allowed. They are acquitted of
the charges levelled against them. Their bail bonds are discharged
and they be set free.