KUNJAN MISHRA Vs. JHAGRU JHA AND ORS.

JUDGEMENT

(1.) This criminal appeal and criminal revision arising out of two separate judgments, but in two counter cases, have been heard together with the consent of the parties and for their convenience. This judgment, therefore, will govern both these. In the criminal appeal Kunjan Mishra is the complainant appellant and he figures as an accused in the other case and he is opposite party no. 3 in the criminal revision. Jhagru Jha who is petitioner in the criminal revision was an accused in the other case and he figures as respondent no. 1 in the criminal appeal.

(2.) The case of the prosecution in the criminal appeal briefly stated was as follows. Kunjan Mishra, who is the appellant in criminal appeal is a resident of village Satghara, Police -station Babu Barhi, district Darbhanga and he filed a petition of complaint in the Court of the Sub -divisional Magistrate, Madhubani on the 2nd of January, 1965. His case briefly stated was that on the 31st of December 1964, at about 7 or 8 A.M., he was going to see his field and when he reached near the Government tube -well he saw Naresh (P.W. 6) and Swayambar Jha quarrelling among themselves over taking of water from the tube -well. The grandmother of Swayambar Jha also came there and began to hush up the quarrel, but as a result of the scuffle between P.W. 6 on one hand and Swayambar Jha on the other, the aforesaid grandmother fell down on the tube -well. Kunjan Mishra the appellant then chided both of hem and then went away to his field, but it is alleged that while he was returning back from his field, at about 9 A.M. on the same day and as he reached near the house of Desai Dome, he was surrounded by the accused persons, that is, respondents 1 to 5 of the criminal appeal and on the orders given by Jhagru Jha, respondent no. 1, Pitamber Jha and Shyam Kant Thakur, that is, respondents 3 and 4 assaulted him with fists and slaps and accused Mukund Jha, that is, respondent no. 5 attempted to take out the money from his pocket but he was prevented from doing so and he raised hulla whereupon Bagish Jha, respondent no. 2 assaulted him with bamboo lathi on his head and Mukund Jha then took out Rs. 13/ - in cash and also bunch of keys from his pocket. It is said that after the alleged occurrence the appellant Kunjan Mishra came to Madhubani and got his injury examined by the doctor (P.W. 9) on the same day, at about 3.35 P.M. He then on the 2nd of January, 1965 filed a petition of complaint before the Sub -divisional Magistrate. The Sub -divisional Magistrate ordered the Sub -Inspector of Police, Babu Barhi Police -station to institute a case and investigate into the matter. Shri Dhanushdhari Pandey, who is P.W. 10 in the case was the Officer -in -charge of the Police -station at the relevant point of time and he on receiving the copy of the complaint sent it to Khajauli Police -station for drawing up a first information report. A formal first information report was drawn up which is Ext. 3 by Shri Rajendra Prasad Singh, Officer -in -charge of Khajauli Police -station, but he investigated the case and after completion of investigation submitted charge -sheet against the accused persons, that is, the present respondents 1 to 5 in the criminal appeal.

(3.) The defence of the accused persons was that no such occurrence took place, as alleged on behalf of the prosecution and further they also pleaded that the case instituted by the appellant Kunjan Mishra was only a counter -blast of a case filed by accused Jhagru, that is, the petitioner in the criminal revision against Kunjan Mishra and others and in which those persons were also facing trial. Now according to the version of the defence, the occurrence took place in such a manner that Shrinandan Mishra, who is opposite party no. 1 in the criminal revision was abusing accused Jhagru Jha, that is, the petitioner in the criminal revision from the darwaza of Shiva Shankar Jha and when Jhagru Jha demonstrated then Shrinandan Mishra went away after some time returned back along with Kunjan Mishra/Ganesh Jha and Shiva Shankar Jha armed with Barchhi and lathi to the darwaza of Jhagru Jha. Seeing them Jhagru Jha ran to save himself, but he was struck with a Barchhi on his head and that when the mother of Jhagru Jha protested, she was also assaulted by Shiva Shankar Jha, Ganesh Jha and Kunjan Mishra with lathi and as a result of the assault the teeth of the mother were also broken.