JAGGU SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) AMONG the appellants while Jeggu and Rajdeo Sah suffered conviction under Section 307/34 of the Indian Penal Code, Mahendra Sah suffered conviction under Section 307 of the Indian Penal Code simplicitor and on these counts the appellants were sentenced to suffer rigorous imprisonment for a term of ten years. The appellants suffered conviction also under Sections 452 and 380 of the Indian Penal Code for which they were sentenced to suffer rigorous imprisonment for a term of seven years on each count. Appellant Mahendra Sah suffered conviction also under Section 27 of the Arms Act and he was sentenced to suffer same term of imprisonment, with direction that all sentences awarded to them shall run concurrently.

(2.) AT the earliest I may refer some of the salient features of the prosecution case centering round the incident in question. The factual matrix are that in the midnight of 2nd February, 1990, the appellants having trespassed in the house of Binda Chaudhary (P.W. 6) asked him to spare money and on his resistance, not only assaulted him but also relieved him of Rs. 1100/-. The other accusation attributed to the appellants was that while retreating they also removed boxes and tape recorder from the house, Siyaram Chaudhary and Ram Bharos Chaudhary caught hold of Mahendra Sah and on getting release from them, he also took recourse to firing causing injury to Siyaram Chaudhary on his skull. The appellants were also shown to have removed house belongings from the house of Ram Bharos Chaudhary too. After prosecution was launched on behest of Binda Chaudhary, as usual, investigation commenced during which the police recorded statement of witnesses, got the injured clinically examined by the doctor, visited place of occurrence and on conclusion of investigation, laid charge-sheet before the Court.

(3.) THE foremost criticism canvassed at bar was that through both Siyaram Chaudhary and Binda Chaudhary were shown to have sustained injuries on their persons due to assault allegedly made by the appellants, neither the injury report issued by the doctor was placed on the record nor the doctor who clinically examined them was ever examined at trial and notwithstanding these serious infirmities in the prosecution, the trial Judge rushed to erroneous conclusion, recording verdict of guilt under Section 307 of the Indian Penal Code. THE contentions were raised at her that if Ext. 3 which is injury report issued by the Police Officer was to be given any credence, that too completely belies the prosecution assertion about Siyaram Chaudhary sustaining fire arm injury on his person, as what was noticed by the police was only swelling on the forehead of Siyaram Chaudhary. Though witnesses were claiming identification of the appellants in the flash light of torch, it is urged that non-production of torch at trail is other infirmity in the prosecution version which would belie the claim of witnesses about identification of the appellants. THEre has been no objective finding of the police officer about marks of violence at the place of occurrence and admitted enmity, it is urged, would not rule out possibility of false implication of the appellants, and the last argument canvassed at bar was that since the prosecution was launched against them about 12 years back and the appellants have suffered ordeal of protracted prosecution for such a long period, the ends of justice would be met if instead of sentencing them, the appellants are sentenced to find in case the finding of guilt recorded by the Court below is encouraged by this Court. Learned Counsel appearing for the State resisted contentions raised on behalf of the appellants and would urge that even if witnesses happen to be of the same family that would not warrant rejection of their testimony of clinching nature.