AYODHYA RAI Vs. PRABHU RAI

JUDGEMENT

(1.) These two applications in revision under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (hereinafter called the 'Code') are directed against the judgment passed in Criminal Appeal No, 294/6 of 1982/ 1985 by Shri Sohailur Rahman, 9th Additional Sessions Judge, Patna dismissing the appeal and confirming the judgment of conviction passed in Case No. 353(c) of 1977/T. R. No. 39 of 1982 by Satyender Pratap Narain Sahi, Judicial Magistrats, 1st Class, Danapur, by which the learned Magistrate had convicted the petitioners under Section 323 of the Indian Penal Code and had sentenced them to undergo rigorous imprisonment for one year each. He further convicted all the petitioners except the petitioner, Prabhu Rai, under Section 147 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for three months each. So far as petitioner, Prabhu Rat, is concerned, he was convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three months. All these sentences were ordered to run concurrently. Since these two revision applications arise out of the same judgment they have been heard together and are being disposed of by the common judgment.

(2.) On Jai Mangal Rai was the complainant in this case. However, after the institution of the complaint petition he died and therefore, he could not be examined as a prosecution witness. His case was that his house was situated in villege Sahpur Daudpur in Dinapore Sub-division and was located towards west of the municipal lane running from south to north. The house of the petitioners were also located in the vicinity west of this municipal lane. The petitioners had put up barbed wire facing to the western wall of their houses due to which this municipal land had narrowed down. The complainant and his family members found difficulty in passing through this municipal lane. On 3-7-1977 at 7.30 p.m. the complainant was coming back from Punaichak to his residence on a bicycle. The petitioners suddenly appeared before him. Petitioner, Ram Chandra Rai, ordered to assault on which petitioner, Prabhu Rai, who was armed with iron road hit the complainant on his left leg. The complainant fell down on which petitioners, namely, Ayodhya Rai and Satya Narain Rai, who were armed with lathies assaulted him with the same. Witnesses came there and the complainant was taken into Dinapore hospital from where he was removed to P.M. C. H. He was kept in P.M. C. H. from 3-7-1977 to 3 9-1977. Thereafter he filed a complaint petition on the basis of which the cognizance was taken. The case was transferred to the court of the learned Magistrate named above who convicted the petitioners in the manner indicated above.

(3.) In these revision application, the petitioners have contended that no occurrence, as alleged by the prosecution, has taken place and they have been falsely implicated. There has been a great delay in lodging the complaint petition inasmuch as the alleged occurrence is said to have taken place on 3-7-1977 whereas the complaint petition was filed on 7-9-1977. This delay has been left unexplained. Only four P. Ws. have been examined, out of whom, P. W. 4 is the Doctor, Vijay Shanker Singh. At the time of his examination no injury report, X-ray report or any other document was available to him. Only interested witnesses have been examined in this case The petitioners and respectable person of the locality and, therefore, the learned trial court should have dealt with them under the provisions of Section 360 of the Code. On these grounds, amongst others, it was contended that the judgment of conviction of the learned Magistrate as also the judgment passed by the learned Additional Sessions Judge be set aside and the petitioners be acquitted.