RAM BALI ISHWAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This Criminal Revision is against the concurrent finding of the Courts below about guilt of the petitioner. The factual matrix are that preceding 11th July, 1987, there had been exchange of abuses between Arjun Kumar Chaudhary, brother of Ram Suwarath Choudhary PW 5, and Kailashpati Ishwar, nephew of Ram Bali Ishwar, the petitioner, on matter of grazing crop by the cattle. Just on the following day ie. on 11th July, 1987, while Ram Suwarath Choudhary, PW 5 was coming with buffalo from the pond, he was taken to task by the petitioner for getting the crop damaged by the cattle and it is alleged that when Ram Swarath Choudhary, registered protest, petitioner dealt blows with a bamboo piece, causing bleeding injury on his head. A Sanha entry was recorded by the Police at Bachhwara Police Station, on strength of which Bachhwara PS Case No. 74 of 1987 was registered at Police Station and investigation commenced. During in- vestigation, a number of witnesses were examined and on its conclusion, the Police laid charge-sheet before the Court. In trial that commenced, the State examined , altogether 8 witnesses including the injured, doctor Police Officer and also those who stated to be convergent with the facts of the case. The defence too examined one witness. Apart from pleading innocence petitioner also took plea of alibi The trial Court, however, after meticulous appreciation of evidences recorded finding of guilt under Section 324 of the Indian Penal Code and sentenced the petitioner to undergo rigorous imprisonment for a term of one year. When the matter was carried in appeal by the petitioner in Cr. Appeal No. 143 of 1990, the appellate Court, while upholding the finding recorded by the Court below about guilt of the petitioner, sentenced the appellant to pay fine of Rs. 10,000/-, in default of which, he was to undergo S.I. for a term of six months.

(2.) Though the facts of the case and narrations made by witnesses, have been broadly spelt out by the Court below in the judgments, I shall discuss them with brevity. At trial, the State examined as stated earlier, 8 witnesses and among them PW 2 to PW 5 had narrated about blows dealt by the petitioner on Ram Swarath Choudhary by a piece of bamboo causing bleeding injury on his person, for which there has been corresponding finding of the doctor who had found lacerated wound 2- 1/2" x 1/2" x bone deep with crack fracture in the frontal bone on the left side of scalp in frontal rigion. There was swelling with tenderness 2"x2" on left arm and yet another swelling with abrasion was found on the middle side of the left foot. Contentions were raised on behalf of the petitioners that First Information Report was a fabricated document and since injured had pitched over his earlier version at trial and had sought to introduce embellishment in his narration which he rendered at trial, about a number of injuries sustained by him, the testimony of the informant should be taken with a pinch of salt. Since First Information Report is not the last say of the prosecution, and all necessary details had been furnished in the Sanha by the injured, the argument canvassed on this score was not tenable. The other contention raised at bar was that even though the report received from the District Probation Officer did not show criminal antecedent of the petitioner, the Court below without assigning good reason has rejected the move made on behalf of the petitioner for releasing him under the beneficial provision of Probation of Offenders Act, on being obsessed with the fact that the petitioner was a member of Police constablary and if he was released without punishment, it will send a wrong message to the public. Since appellate Court too had assigned good reason for not releasing the petitioner under the provisions of Probation of Offenders Act, the finding recorded by the appellate Court cannot be said to be based on untenable reason. The petitioner also took plea of alibi for which he examined his father as DW 1. True it is that the concept of alibi postulates physical impossibilities of a person on a place, at a given time, but for that onus heavily lies on the person pleading alibi Since no evidence of cogent and unimpeachable character was led at trial, rightly the Court below rejected the plea of the petitioner. Yet it is urged that since petitioner happens to be a Police constable, who was in service, hence his absence from the place of occurrence was not a remote possibility. I am afraid that this plea can be accepted in view of evidence led, suggesting that the petitioner was under suspension and hence his physical presence at the place of occurrence, cannot be said to be far fetched feature. However, Court can take notice of the fact that the prosecution was launched against the petitioner in the year 1987 and since more than a decade has elapsed when he suffered ordeal of protracted prosecution for about 15 years.

(3.) Having given my anxious and deepest consideration to the concurrent findings given by both the Courts below, while upholding the findings of guilt of the petitioner, regard being had to the mitigating circumstances, fine is reduced to Rs. 5000/- (five thousand), in default of which he will suffer simple imprisonment for a term of four months. The fine to be deposited with the Court below within three months from the date of receipt/ production of copy of this order, and half of the fine so deposited, shall be payable to the injured and with this modification, this revision is dismissed. Revision dismissed with modification.