Prabhu Sah and Others vs State of Bihar

S.N. Pathak, J.—This appeal is directed against the judgment dated 26.7.1991 passed by Addl. Sessions Judge V. Chapra (Saran) in Session Trial No. 258/86. Appellant No. 4, Sipahi Sah, appellant No. 5, Kanhaiya Sah and appellant No. 6 Dablu Sah were released u/s 4 of the Probation of Offenders Act. Appellant No. 1, Prabhu Sah was convicted under Sections 325 and 147 IPC and sentence to undergo RI for 3 years and 1 year. Appellant No. 2 Bishwanath Sah, appellant No. 3, Sheonath Sah and appellant No. 7 Indrasan Sah were convicted under Sections 323 and 147 IPC and sentenced to undergo RI for 6 months and 1 year.

The prosecution case originated on the fardbayan of Bachani Devi (informant) alleging therein that on 24.4.1985 she found that garbage was stacked in front of her door. This lady raised alarm which attracted Indrasan Sah and he abused her for raising any grievance at the stack of garbage at her door. When the informant protested to the abuse, son of Indrasan Sah and other accused-persons who were members of the same family, gathered and started assaulting the informant. When the father in law of the informant and others came to the rescue of he informant, they were also subjected to assault by various accused-persons variously. Victim Gaya Sah was assaulted by appellant Prabhu Sah with bhala and other accused-appellants assaulted other members of the informant''s family with hard and blunt substance.

The accused-appellant took up a defence of dental of the alleged occurrence and false implication on account of enmity.

The trial Court, on the basis of the testimony of 12 witnesses, found the accused-appellants guilty and convicted and sentenced them as stated above. Out of the witnesses examined some were formal and PWs. 9, 10 and 11 were doctor and Radiologist. PWs 2 to 6 were the eye-witnesses to the occurrence. The trial Court held that injured witnesses had supported the occurrence of assault on Gaya Sah and other family members. The evidence of eye-witnesses was also supported by medical evidence. Although I.O. was not examined the case did not suffer from any fatal infirmity, in the opinion of the trial Court because, there was no vital contradiction between their statements in Court and the (sic) made before the Police. The trial Court, on perusal of the case diary, stated that there is no vital contradiction in the evidence of the eye-witnesses. So non-examination of the I.O. will not prejudice the case. Prabhu Sah was charged u/s 304 IPC but his charge failed as the prosecution failed to prove that Gaya Sah died on account of alleged assault on stomach with bhala as alleged by the prosecution.

So far the evidence regarding the assault on the members of the informant''s family is concerned, of course, I do not find any vital discrepancy or infirmity so as to belie the alleged occurrence. Enmity, of course, is admitted as it transpires from the record of the case. There may be possibility of false implication and it also may give good motive to commit such an occurrence which arose on sudden provocation. When the informant protested on the throwing of garbage, the reaction of the accused-appellants further suggested that it were they who threw garbage at the door of the informant. Accused-appellants were neighbours of the informant and, admittedly, they both parties are collateral. In such circumstances, probability of accused-persons committing the alleged occurrence cannot be ruled out.

As a result of the aforesaid, discussions, I am of the opinion that the order of conviction recorded by the trial Court does not invite any interference by this Court, So far sentence is concerned, Prabhu Sah was sentenced to undergo RI for 3 years and 1 year for the offence u/s 325 and 147 IPC and other appellants were sentenced to undergo RI for six months u/s 323 IPC and 1 year u/s 147 IPC.

It has been submitted by the appellant'' lawyer that 17 years have elapsed and the accused persons are collaterals of the informant. So a lenient view may be taken.

Taking in view the entire set of circumstances on the record, I think the sentence of fine shall meet the ends of justice. Appellant No. 1 Prabhu Sah, appellant No. 2 Bishwanath Sah and appellant No. 7, Indrasan Sah are directed to pay a consolidated fine of Rs. 2,000/-each and in default they shall suffer RI for one month. The fine shall be paid by the appellant within four months from the date of receipt of a copy of this judgment in the Court below.

This appeal is dismissed with the above modification in the sentence, confirming the order of conviction.