Surendra Kumar Keshri alias Tuluwa, etc. vs State of Bihar

Deoki Nandan Prasad, J.—This appeal has been filed against the judgment of conviction and sentence dated 15-9-1993 passed by Shri Chiranjee Singh, 6th Additional Sessions Judge, Dhanbad, in Sessions Trial No. 293 of 1983 by which the appellant No. 2 Nand Kishore Keshri was convicted u/s 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years and u/s 427 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months and also u/s 147 of the Indian Penal Code to undergo rigorous imprisonment for one year whereas u/s 3 of the Explosive Substances Act and sentenced to undergo rigorous imprisonment for two years; whereas the appellant No. 3 Shyam Sunder Keshri alias Shyam Kishore Keshri was convicted under Sections 147/427 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year u/s 147 of the Indian Penal Code and six months'' rigorous imprisonment u/s 427 of the Indian Penal Code. The appellant Nos. 1, 4 and 5 have also been convicted under Sections 307, 148 and 427 of the Indian Penal Code and Section 3 of the Explosive Substances Act but their case was sent to Juvenile Court for passing an order on sentence as they were held to be juvenile. Accordingly, appellant Nos. 1, 4 and 5 were sentenced for furnishing a bond of sureties of Rs. 5,000/- with two sureties of the like amount each for maintaining peace for a period of two years.

The prosecution case in brief, as alleged, is that on 3-2-1991 at about 11 a.m. Ram Narayan Keshri was present at his shop when Ramdhani Pandey came there to purchase some materials from his shop. At that time, accused Surendra Kumar Keshri alias Tuluwa came there along with seven companions and they abused the informant Ram Narayan Keshri. In the meantime, all the accused-persons/appellants came there and they tried to drag Krishna Narayan Keshri by catching his collar and other accused started assaulting Ram Narayan Keshri with fists. On raising alarm by Ram Narayan Keshri, the accused along with companions fled away. Thereafter, Ram Narayan Keshri came at the counter of the shop when the accused-persons started throwing stones in the shop. Accused Surendra Kumar Keshri threw a bomb aiming Ram Narayan Keshri but it could not hit him rather the bomb dashed against the glass of the rack of the shop. All the accused-persons started assaulting as well as the appellant Nand Kishore Keshri also threw a bomb aiming at Ram Narayan Keshri but it could not hit him rather it dashed against the pillar of verandah and thereafter, the informant started shouting and on hulla nearby people came there and thereafter, the accused-persons fled away. The informant also found missing Rs. 2,000/- from his cash box. Accordingly, the First Information Report was lodged against four accused-persons and seven others. The police submitted charge-sheet after completing investigation. The appellant No. 5 (Ramjee Bhagat) was later on apprehended who was also identified.

All the accused-persons appeared in the Court below and charges under Sections .452, 323, 427, 148, 307 and 147 of the Indian Penal Code and u/s 3 of the Explosive Substances Act were framed.

The witnesses were examined in the Court below. After hearing both the sides and perusing the evidence on record, the learned Additional Sessions Judge convicted the appellants and sentenced them in the manner as stated above.

On being aggrieved by the judgment of conviction and sentence, the appellants preferred this appeal claiming therein that the learned Court below committed error in convicting the appellants as material evidence has not been considered properly. No any independent witness has been examined in this case and all the witnesses are relatives. It is also claimed that there is much contradictions in the evidence of the witnesses and the Court below has not considered the evidence of the D.Ws. as well as the plea of alibi as regards to appellant Nos. 1 and 4. It is also claimed that a proceedings u/s 107 of the Code of Criminal Procedure was also started and due to enmity, this case has been cropped up and, a such, the impugned judgment is fit to be set aside.

At this stage, it may be noted here that one supplementary affidavit has been filed on behalf of the appellant claiming that the appellant No. 2 (Nand Kishore Keshri) has already died on 8-7-1999 and as such, the appeal as against appellant No. 2, is abated.

It may further be noted here that the appellant Nos. 1, 4 and 5 have been held to be juvenile by the learned trial Court and after conviction, their case was sent to Juvenile Court for passing sentence against them. Accordingly, the learned Chief Judicial Magistrate, being a Juvenile Court sentenced Appellant No. 1 (Surendra Keshri alias Tuluwa), appellant No. 4 (Munna Keshri alias Rajesh Keshri) and appellant No. 5 (Ramjee Bhagat) to execute a bond of Rs. 5,000/- for maintaining peace and they were released accordingly by order dated 10-12-1993. Thus, it is clear that appellant No. 3 (Shyam Sunder Keshri) is the only appellant, said to have been sentenced fora period of one year rigorous imprisonment u/s 147 of the Indian Penal Code and six months'' rigorous imprisonment u/s 427 of the Indian Penal Code.

As many as 12 witnesses have been examined by the prosecution. P.Ws. 1 and 2 are the injured and they have consistently deposed about the assault. According to them, all the accused-persons/appellants assaulted them with fists and slaps and there was also scuffle. According to them, the accused-persons also damaged the property of shop by pelting stones and breaking glass-panes, etc.

P.W. 4 is the mother of the informant who also sustained injury and she is also consistent in her evidence about the assault committed by the accused-persons. P.W. 5 is the doctor who examined the injured and found several injuries on their persons. He proved the injury report (Ext. 4 Series).

P.W. 7 (Ramdhani Pandey) is said to be an independent witness who was present at the shop at the time of occurrence and he also supported the prosecution case. According to him, the accused-persons assaulted the informant and others.

P.W. 8 proved the sanction order (Ext. 5) and P.W. 9 is the Controller of Explosives who found the remains sent for examination to be the explosive materials. P.W. 10 is the Investigating Officer and he narrated the fact that he had visited the place of occurrence and also examined the witnesses and found the case true. P.W. 12 is the Judicial Magistrate who held the test identification parade as the appellant No. 5 (Ramjee Bhagat) identified by the witness.

Seven defence witnesses have also been examined. D.Ws. 1 and 2 stated about the fact that the appellant Nos. 1 and 4 were not present at the time of occurrence as they were attending their classes. But, in view of eye-witnesses coupled with independent witness and the doctor, the plea of alibi cannot be believed. Moreover, there is much contradiction in the evidence of D.Ws. and the Court below has rightly discarded their testimony.

All the P.Ws. including the independent witness (P.W. 7) are consistent in their evidence in supporting the prosecution case. The Doctor, who examined the injured, also corroborated the injury caused. Thus, it is evident from the evidence oral and documentary collected that the prosecution has fully established the charge against the accused-persons/appellants beyond all reasonable doubts. Hence, the story as to assault as well as throwing bomb has totally been established from the oral as well as documentary evidence.

In the result, I find that the learned Court below has rightly convicted the appellants for the offence charged which does not require to be interfered with. Accordingly, the conviction is hereby confirmed.

So far as the sentence is concerned, I have already discussed above that the appellant Nos. 1, 4 and 5 who were held to be juvenile, have already been released on executing bond of Rs. 5,000/- for maintaining peace for two years. In this view of the matter, I find that the learned Juvenile Court has rightly passed the order of sentence against appellant No. 1 (Surendra Keshri alias Tuluwa), appellant No. 4 (Munne Keshri alias Rajesh Keshri) and appellant No. 5 (Ramjee Bhagat) which does not require to be disturbed. Hence, their sentence is hereby confirmed. Appellant No. 2 (Nand Kishore Keshri) has already died on 8-7-1999 and, as such, this appeal against him is abated.

So far as the sentence of appellant No. 3 (Shyam Sunder Keshri) is concerned, he was sentenced to undergo rigorous imprisonment for one year u/s 147 of the Indian Penal Code and six months u/s 427 of the Indian Penal Code respectively.

This case was initiated as back as in the year 1983 and as such, 17 years have already elapsed. There appears no criminal antecedent against the appellant No. 3 and this accused-appellant is said to be the first offender. In the above circumstance, this appellant No. 3 (Shyam Sunder Keshri) is also released on executing a bond of Rs. 1,000/- (Rupees one thousand) with two sureties of the like amount for maintaining peace for one year u/s 360 of the Code of Criminal Procedure which, in my view, will be suffice for the ends of justice in the instant case.

In the result, this appeal is dismissed with the modification in the sentence only, as indicated above.