IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. REV. No.396 of 2011
1. ANNRUDH MAHTO SON OF LATE RAM PRASAD
MAHTO
2. SUNIL SINGH @ SUNIL KUMAR MAHTO @ SUNIL
KUMAR @ SUNIL MAHTO SON OF ANNIRUDH
MAHTO, BOTH ARE RESIDENTS OF VILLAGE
BISUNPURA, POLICE STATIONS NOKHA, DISTRICT
ROHTAS(BIHAR)
...PETITIONERS
Versus
THE STATE OF BIHAR
...OPPOSITE PARTIES
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02. 04.04.2011 Rule confined to the question of sentence only.
Learned APP waives service of notice on behalf of
the State.
Heard. With the consent of the parties, this
application is now being disposed of.
The two petitioners herein are father and son. They
are aggrieved by judgment and order dated 28.01.2011, passed
by learned Addl. Sessions Judge, F.T.C.II, Rohtas at Sasaram on
Cr. Appeal No. 50/08, whereby judgment and order of sentence
dated 30.06.2008, passed by learned Judicial Magistrate, 1st
Class, Sasaram in G.R.No.1514/99/T.R.No.673/08 have been
partly allowed inasmuch as the conviction under section 323
recorded against them was set aside, whereas conviction
recorded against them under sections 341 and 325 IPC was
sustained.
With respect to an occurrence that had taken place
on 28.09.1999, an FIR(Ext. 6) was lodged by the informant
Arjun Singh(P.W.7) alleging therein that while he was
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engaged in raising the height of Chabutra, the informant
objected to it on the ground that this would create obstacles in
free flow of water. Petitioner no.1 is said to have pushed the
informant and exhorted other accused persons to assault him.
Thereafter accused Ishwar Chand Mahto assaulted the informant
on his forehead with Lathi whereafter co-accused Kishori
Mahto is said to have assaulted Bhim Singh(P.W.3) with Lathi
as a result whereof he too sustained injury. The nephew of the
informant(P.W.4) in the meanwhile intervened whereafter it is
alleged that both the petitioners assaulted him with Lathi as a
result of which he sustained grievous injuries on his thumb.
Petitioners along with others were thus put on trial wherein eight
prosecution witnesses including three injured witnesses, namely,
P.Ws.3,4 and 7 were examined. The doctor (P.W.5) was also
examined who is said to have proved the injury report(s). On a
consideration of materials on record, learned trial court found
and held them guilt under sections 341,323 and 325/34 IPC and
sentenced to undergo S.I. for one month under section 341 IPC,
R.I. for two years with a fine of Rs. 2000/- under section 325
IPC and in case of default of fine both the convicts were directed
to undergo R.I. for a period of two months. Aggrieved over the
said judgment, petitioners preferred appeal wherein
evidence/materials on record were reappraised and conviction
under section 323 IPC was set aside, whereas conviction
recorded under section 341 and 325 was sustained.
Learned counsel for the petitioners while assailing
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the order submits that going by the narration in the FIR (Ext.3) it
would appear that both the parties are residing adjacent to each
other. There was a quarrel with regard to construction of a
Chabutra which, accordingly to the accused side, was bound to
obstruct free flow of water. It is further contended that the
occurrence had taken place in a flash of temper and there was
no pre-meditation or pre-planning. It is next contended that for
about nine years petitioners had to undergo ordeal/ rigours of
trial which had telling effects on the mental and economic
condition of the petitioners. It is also contended that the trial
court has not found the petitioners carrying any murky past
inasmuch as the submission on behalf of petitioners was made
that they are the first offenders.
Learned APP, on the other hand, submits that there
is/are concurrent findings of guilt recorded by the two courts
below based on appraisal and re-appraisal of evidence on record
which have not been shown to be perfunctory and/or perverse
meriting interference.
Having considered the submissions made on behalf
of the parties, this Court is in agreement with the submissions of
petitioners that the occurrence had taken place on a flash of
temper. There is nothing on record to decipher that there was
any pre-planning. It further appears that petitioners had to
undergo ordeal/rigours of trial for about nine years. Learned
counsel is further correct in his submission that they were found
the first convicts by trial court.
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Having regard to all these facts appearing from
records this Court is satisfied that petitioners deserve a lenient
sentence for proven charge(s). Accordingly, while upholding the
conviction recorded under section 341 and 325 IPC, the
sentence awarded under section 325 IPC is reduced to R.I. for
nine months. Other part(s)/condition(s) of sentence shall remain
untouched/unchanged.
With this modification in sentence, the application is
dismissed.
( Kishore K. Mandal )
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