CRIMINAL APPEAL No.40 OF 1998
Against the judgment and order, dated 27.1.1998 passed in Sessions Trial No.
259 of 1990 by Shri Someshwar Nath Pathak, Dist. & Sessions Judge, Buxar.
Md. Hanif, son of Late Sannu Mian, resident of Koirpurwa, PS Buxar Town,
District Buxar .. .. Appellants.
Vs.
The State of Bihar.
...
For the Appellant : Ms. Pallavi Thakur, Amicus Curia.
For the S t a t e : Mr. Rajendra Nath Jha, A. P. P.
…
P R E S E N T
Hon’ble Justice Smt. Sheema AlI Khan.
S.A.Khan,J. When no one appeared for the appellant in this case, Ms.
Pallavi Thakur, Advocate assisted this court as Amicus Curia.
This appeal is directed against the judgment and order,
dated 27.1.1998 passed in Sessions Trial No. 259 of 1990 by which
the appellant has been convicted for the offences under section 326 of
the Penal Code and sentence to undergo rigorous imprisonment for
four years.
2. Ext. 2 is the fardbayan of Ashraf Ali, the informant,
PW 4 who has stated that when he went to demand Rs. 2000/- from
Md. Hanif, the present appellant, asked him to meet him at the tailor’s
shop known as Raushan Tailor in the evening. Subsequently at about
7.30 P.M. Ashraf Ali went to Raushan Tailor where the appellant was
present and on demand being made, the appellant is said to have
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thrown acid on the face of the informant. The occurrence was
witnessed by one Sagir Mian who has been examined as PW 1 and
Shahabuddin has been examined as PW 3.
3. Learned counsel for the appellant submits that the
genesis of the occurrence has not been proved in this case inasmuch as
that the informant has not stated in court during the trial that he had
earlier visited the shop of the appellant to make demand of Rs. 2000/-
which the appellant owed to the informant. It is, therefore, stated that
the case as made out by the informant before the court below appears
to be doubtful in view of the fact that if the informant had not earlier
visited the appellant and fixed an appointment at Raushan Tailor, as
such there was no occasion for the appellant to be present at Raushan
Tailor at the given time of the occurrence. It is further submitted that
Saghir Mian, PW 1 who is a witness in the F.I.R. has not been able to
describe the place of occurrence and appears to be a co-villager and
has, therefore, deposed in favour of the informant. A challenge has
also been made to the evidence of Shahabuddin, PW 3, also an F.I.R.
witness on the ground that he claimed that he cannot describe the
place of occurrence and that he does not remember anything about the
occurrence.
4. This court finds that as far as oral evidence is
concerned, it appears that although the genesis of the occurrence is not
supported part of the occurrence has been supported by the informant
and PW 1 who said that the appellant had thrown acid on the
informant at the place of occurrence i.e. Raushan Tailor .
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5. The next contention on behalf of the appellant is that
the Investigating Officer of the case has not been examined which
prejudices the case of the appellant. From the case diary, the material
that is relevant for consideration of this court is the injury report. The
injury report, dated 19.3.1998 issued by the Civil Assistant surgeon,
Buxar indicates that there are certain burn injuries on the face and the
neck. The size and extent of injury nos. 1 and 2 have not been
explained in the report, whereas injury no. 3 has been described as
burn injury on the scalp 6″ x 5″. With respect to 3rd injury it is
submitted that it is not grievous in nature as it could not come within
the 6th and 8th classification of the grievous injury described under
section 320 of the Penal Code. Section 320 of the Penal Code
describes grievous injury :
“Sixthly-. Permanent disfiguration of the head or face.
“Eightly-. Any hurt which endangers life or which
causes the sufferer to be during the space of twenty days in severe
bodily pain or unable to follow his ordinary pursuits.”
6. It has been submitted that the injury report does not
disclose that there was a permanent disfiguration on the head.
Moreover, the diary or the evidence of the witnesses do not disclose
whether the informant as a result of the said injury was detained in
hospital or unable to conduct his ordinary pursuits for a period of
more than two weeks. It is, therefore, cannot be contended on behalf
of the prosecution that the informant suffered grievous injury as a
result of the occurrence described above.
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7. This court agrees with the submissions made by
counsel appearing on behalf of the appellant and I find that it cannot
be held that injury no.3 is grievous in nature and, thus, the conviction
under section 326 of the Penal Code cannot be sustained. Therefore,
this court holds that in the facts of the present case the appellant
would be entitled for conviction under section 323 of the Penal Code
for causing hurt to the informant.
8. Accordingly, the conviction of the appellant under
section 326 of the Penal Code for a period of four years is set aside
and the appellant is convicted under Section 323 of the Indian Penal
Code and directed to pay a fine of Rs. 1000/- within a period of two
months on receipt of notice from the trial court, failure to pay the said
amount of fine would result in simple imprisonment for a period of
two months.
9. In the result, this appeal is dismissed with the
modification in the sentence as aforesaid.
(Sheema Ali Khan, J.)
Patna High Court,
March 26, 2009,
N.A.F.R. / Haque.