B.N.P. Singh, J.@mdashAmong the appellants while Jeggu and Rajdeo Sah suffered conviction u/s 307/34 of the Indian Penal Code, Mahendra Sah suffered conviction u/s 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 u/s 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 defence of the appellants both before the Court below and also this Court had been denial of entire allegations and they ascribed their false implication by Binda Chaudhary, as they did not permit him to irrigate his land from their pumping set. In the eventual trial that commenced, the state examined altogether 8 witnesses who were family members of Binda Chaudhary and also the police officer who carried to investigation of the case. The trial Court, however, on consideration of the evidence that were placed on the record, while rejected the plea of innocence, recorded finding of guilt under various sections and sentenced the appellants in the manner stated above.
4. Before I appreciate the contentions raised at baron behalf of the appellants which have been canvassed to assail the finding recorded by the Court below I wish to analyse the evidences on which the Court below placed implicit reliance for recording the verdict of guilt against the appellants, and I may notice Binda Chaudhary P. W. 6, who was the maker of fardbeyan, reiterating his earlier version which he rendered before the police to set the criminal law in motion, about the appellants having removed tape recorder and boxes from his house and also assaulting Siyaram Chaudhary, when Mahendra Sah took recourse to firing. The other witness examined on behalf of the State was Ram Bharos Chaudhary, P.W. 4, who states at trial that the appellants pushed door of his house and when he opened the door, they trespassed in his house and while Jaggu Sah removed tape recorder, box was removed by Rajdeo Sah. The witness would make similar narration as that of P.W. 6 about Mahendra Sah having taken recourse to firing causing injury to Siyaram Chaudhary and making good their escape thereafter. Siyaram Chaudhary, P.W. 8, son of Binda Chaudhary, would make narration in similar terms about appellants having removed box and tape recorder from his house,v d on resistance having fired a shot on him. The witness states also about removal of Rs, 1100/- by the appellants as stated by his father. Surendra Chaudhary, P.W. 1, Ram Bilas Chaudhary, P.W. 2, Nand Lal Chaudhary P.W. 3 and Ramanand Chaudhary P.W. 5 too would make similar narration about removal of box and tap recorder from the house of Siyaram Chaudhary by the appellants and also about Siyaram Chaudhary having suffered injury at the hands of Mahendra Sah who took recourse to firing. Md. Moinuddin Khan, P.W. 7, the police officer who carried out investigation of the incident stated to have instituted Bairgania P.S. Case No. 6 of 1990 on behest of the informant, pursuant to which investigation commenced. He stated to have referred the injured to doctor for clinical examination and visiting place of occurrence, pursuant to which some of the appellants were apprehended by him. The witness states about securing sanction from the District Magistrate for prosecution of Mahendra Sah and having laid charge-sheet on conclusion of investigation. This is all the evidences that has been adduced on behalf of the State.
5. 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 u/s 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.
6. As has been noticed earlier, the witnesses have made narrations with sustained consistency at trial about appellants removing house belongings from the house of Binda Chaudhary and Ram Bharos Chaudhary, on trespassing in their houses. Some disturbing features of the prosecution case, however, cannot remain unnoticed. Once the prosecution was alleging about assault on Binda Chaudhary and Siyaram Chaudhary the prosecution was obliged to place on the record the evidence of clinching nature about assault on them. However, as has been urged at bar, neither the injury reports were placed on the record nor the doctor was examined at trial. True it is that to fetch conviction u/s 307 of the Indian Penal Code, it was not always necessary for the State to allege injury as at some times, though assaults are intended to be made, the aim is lost. However, when the prosecution alleges assault, it is expected that it is established by cogent evidence but there being such infirmity in the prosecution version, I find that the finding recorded by the trial Court convicting the appellants under Sections 307/34 and 307 simplicitor was not sustainable in law, and that apart even the injury report issued by the doctor would not necessarily suggest that injury was of such nature which was intended to be murderous. The finding of the trial Court on these two counts are accordingly set aside. However, so far as accusation attributed to the appellants through narrations made by the witnesses at trial, I find evidence of positive nature about appellants, trespassing in the house of Binda Chaudhary and committing theft of house articles. However, regard being had to the mitigating nature of the case about prosecution of the appellants for about last ten years, while upholding the conviction of the appellant under Sections 452 and 380 of the Indian Penal Code, and setting aside the sentence imposed on him, I sentence the appellants to pay fine of Rs. 600/- (six hundred) each on each count. However, in case of Mahendra Sah, while upholding conviction u/s 27 of the Arms Act, no separate sentence is awarded to him. In default of payment of fine, the appellants would suffer rigorous imprisonment for six months. The fine is to be deposited with the trial Court within two months of the receipt/production of this order.
7. With the above modification, the appeal is dismissed.
