Criminal Appeal (SJ) No.177 of 1997
Against the judgment and order of sentence dated
04. 07. 1997, passed by Sri Shyam Kumar Mishra,
Additional Sessions Judge, IV, Nawadah, in Sessions
Trial No. 55 of 1993/13 of 1997.
1. Kaila Chauhan, son of Seba Saran Chauhan.
2. Raghunandan Chauhan, son of Seba Saran Chauhan.
3. Gulaichi Chauhan.
4. Dharmseni Chauhan, son of Sita Ram Chauhan.
5. Arjun Chauhan, son of Sita Ram Chauhan.
6. Prabhu Chauhan, son of Dharanser Chauhan.
7. Pyare Chauhan, son of Seba Saran Chauhan.
All resident of Village- Manghra, P.S. Nawadah, District-
Nawadah.
.... .... Appellants.
Versus
The State Of Bihar
.... .... Respondent.
=
For the Appellants : 1. Mr. Alok Kumar Sinha-1, Advocate.
2. Mr. Bhola Kumar, advocate.
For the Respondent
State : Mr. Parmeshwar Mehta, A.P.P.
PRESENT
THE HONOURABLE MR. JUSTICE GOPAL PRASAD
Gopal Prasad,J. Heard learned counsel for the appellants and
learned counsel for the State.
2. The appellants have been convicted under
Section 307/149 of Indian Penal Code and have been
sentenced to undgergo rigorous imprisonment for five
years. Appellant No. 5 Arjun Chauhan has further been
convicted for offence under Section 379 I.PC. and
sentenced to undergo imprisonment for one year. Further
2
it has been ordered that all the sentences shall run
concurrently.
3. The prosecution case as alleged by the
informant Chameli Devi (P.W.4) that on 27. 05. 1992 at
about 6 A.M. while she was working in her house all the
appellants variously armed with entered into her house and
abused her. Accused Arjun Chauhan enquired about her
husband and when she protested then Arjun gave khanti
blow on her head as a result of which she fell down.
Thereafter, Kaila Chauhan assaulted her with handle of
hand pump by which she got injury on her right hand and
then other appellants have also been assaulted by lathi.
4. On basis of Fardbeyan, F.I.R. lodged. After
investigation, charge sheet submitted. Cognizance taken
and the case was committed to the Court of Sessions and
charge was framed for offence under Section 307 and
other allied Sections.
5. Six witnesses have been examined by the
prosecution and one documentary evidence has also been
adduced. Ext. 1 and 1/A is injury report, Ext. 2,
Fardbeyan, Ext.3 endorsement of the officer-in-Charge
over the same, Ext. 4, Formal F.I.R. and Ext. 5 is certified
3
copy of judgment. After considering both oral and
documentary evidence, order of conviction and sentence
has been passed.
6. Learned counsel for the appellants, however,
contends that, though conviction has been recorded under
Section 307 I.P.C., but report of the Doctor does not
suggest that injury on the person of the injured was
dangerous to life. It has further been contended that,
though, Injury No. 2 to 6 has been shown to be grievous
for the reason of its fracture, but X-Ray has not been
adduced in evidence to infer that injury was grievous in
nature and hence contends that conviction under Section
325 or 326 or 307 is not sustainable. It has further been
contended that appellants Nos. 1, 5 and 7 who have been
attributed of alleged assault have remained in jail for more
than a year and allegation against other appellants are
omnibus and no specific role has been attributed against
them and hence conviction and sentence is not
maintainable.
7. The prosecution case as alleged that accused
persons came and there is specific allegation about assault
by Arjun Chauhan and Kaila Chauhan. However, it is
4
alleged that after assault the injured fell down and other
accused persons have also assaulted by lathi. However,
witnesses have supported the prosecution case.
8. P.W. 1 who is Doctor though, found eight
injuries, but has stated that Injury No. 1 is on the head and
Injury No. 7 is simple, but reserved the opinion regarding
Injury Nos. 2 to 6. However, he has stated that
supplementary injury report has been prepared after receipt
of X-ray report on 02. 06. 1992 and has opined that Injury
Nos. 2, 3, 4, 5, 6 and 7 and 8 shown ribe of right sight
fractured and injuries are grievous in nature. However, in
his cross-examination, he has stated X-ray plate not
appeared before him and X-ray plate is not given in the
supplementary report as he was not found X-ray plate as
there was no X-ray Plant in Nawadah Sadar Hospital at
that time and he can not say the name of X-ray Technician
or Radiologist and he did not know where the injured got
the X-ray done and he can not say whether X-ray had been
done by Government or private technician. He has further
stated that nature of fracture has not been given.
9. Hence in view of evidence of the Doctor that
X-ray report has not been proved on record nor brought in
5
evidence nor was present at the time of X-ray of the
victim. Hence opinion and injury report with regard to
Injury Nos. 2 to 6 as grievous is not acceptable and nor
worthy confidence.
10. Hence, having regard to the evidence and
Injury Nos. 2 to 6 can not be held to be grievous without
any X-ray report. Further regarding fracture, X-ray report
which was produced before the Doctor on which
supplementary injury report was given does not inspire
confidence in absence of X-Ray plate brought and prove in
evidence.
11. Hence, having regard to the facts and
circumstances, since Injury Nos. 1 to 7 are simple and
Injury Nos. 2 to 6 are held to be grievous has not been
established and there is no evidence that injuries were
shown to danger in life and hence conviction and sentence
recorded under Section 307/149 I.P.C. is not sustainable.
Further conviction under Section 325 I.P.C. has also not
established in view of the fact that injuries pointed out
could not be established to be grievous and hence,
conviction under Section 307/379 I.P.C. has not
sustainable and hence conviction at best be sustainable
6
under Section 324/149 I.P.C.
12. However, having regard to the facts and
circumstance, that occurrence is of year 1992 and the
appellants who have been attributed role of assault as
appellant nos. 1, 5 and 7 has remained in jail during trial
and after conviction for more than a year. However, other
appellants have also remained in jail after conviction till
bail granted by Hon’ble High Court.
13. Hence, in the interest of justice shall serve by
sentencing the appellants for the period have already
undergone and hence, appeal is allowed in part.
Patna High Court, ( Gopal Prasad, J.) The 22nd July, 2011. NAFR/m.p.