AMBIKA MISHRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) The appellant Nawal Kishore Mishra suffered conviction under Section 324 of IPC and was sentenced to suffer R.I. for a term of two years. Appellant Ambika Mishra suffered conviction under Sections 324/109 and 323 of the IPC and was sentenced to suffer R.I. for a term of one year and six months respectively on these counts. The appellant Deo Narain Mishra suffered conviction under Section 323 of the IPC sinxpliciter and was sentenced to suffer RI, for a term of six months. However, sentence of Ambika Mishra was directed to run concurrently.

(2.) The factual matrix, the prosecution was launched against the appellants on behest of Ram Narain Mishra (PW 10) with accusation that at about 1 p.m. on 3rd May, 1982, the appellants came to the house of Teju Mishra arid asked him to compromise the case and on refusal of the later, there was abuses by them. It was alleged that when Teju Mishra registered protest, on being exhorted by Ambika Mishra, Nawal Kishore Mishra and Deo Narain Mishra brought weapons from their houses pursuant to which on further exhortation made by Ambika Mishra, Nawal Kishore Mishra, dealt blows with Gandasa on head of Ram Narain Mishra when he wanted to pacify them. After he dropped to the ground, Ambika Mishra and Deo Narain Mishra too dealt blows with wooden substance on his person. After the police was set in motion, investigation commenced, and to course of investigation the police recorded statement of witnesses visited the place of occurrence, got the injured clinically examined by the Doctor and on conclusion of investigation laid charge sheet before the Court. In the eventual trial that commenced, the State examined altogether 13 witnesses including the injured, the Doctor, the police officer and host of other witnesses who stated to be conversant with the incident. The defence too examined five witnesses and while four of them brought sale deeds on the record, DW 5 stated about exchange of land between Ram Narain Mishra and Ambika Mishra, which was an oral transaction. While all the appellants were prosecuted for the charge under Sections 307/34 of the IPC, Ambika Mishra and Nawal Kishore Mishra also stood charged under Sections 307/109 and 323 of the IPC. Likewise while Kishore Mishra was also charged for offence punishable under Sections 307 and 326 of the IPC, Deo Narain Mishra was charged for offence punishable under Section 323 of the IPC simpliciter. The trial Court on consideration of evidences placed on the record while negativing contentions raised on behalf of the appellants, though did not find the appellants guilty under Sections 307/34, 307/109, 307 and 326 of the IPC, rendered verdict of guilt against the appellants and sentenced them in the manner stated above.

(3.) Volume of arguments were sought to be urged on behalf of the appellants by learned counsel appearing for them and it is sought to be urged that though the genesis of the incident was shown to be refusal of Teju Mishra to compromise the case pending with the appellants, if tacit narration made by Ram Narain Mishra, PW 10, who was the maker of the fardbeyan was given due consideration, about the said judicial proceeding having already been compromised, the genesis of the incident was non est and hence it is urged that on this ground alone, the bona fide of the prosecution case had to be thrown of over board. Contentions were raised that though parrot like statement about the appellants assaulting also Sita Ram Mishra and Teju Mishra were made by witnesses, such narrations were conspicuously wanting in the early version of Ram Narain Mishra which he rendered before the police and hence this part of evidence must be construed to be embellishment over the early version of the prosecution. In quick succession it is sought to be urged that those who were examined at trial, were partisan and interested witnesses, entirely to the exclusion of independent witnesses, who could have been competent to narrate incident. Yet it is urged that there has been tacit admission of the witnesses that land dispute was persisting between the parties and hence false implication of the appellants could not be possibly ruled out, and the last argument canvassed on behalf of them was that as the prosecution was launched against the appellants as early as on 24th June, 1982, the appellants have suffered or deal of protracted trial for about 20 years and while considering imposition of sentence on them, if they are found guilty of the charges, this mitigating circumstance also has to be taken into consideration by the Court.