Criminal Appeal (SJ) No.181 of 1996
Against the judgment and conviction dated 10. 06. 1996
and order of sentence dated 11. 06. 2011 passed by
Smt. Vidyut Prabha Singh, Ist Additional Sessions Judge,
Katihar, in Sessions Trial No. 56 of 1985.
Sagar Chaudhary, son of Ram Bhajan Chaudhary,
Resident of Mohalla- Naya Tola Raharia, Police
Station- Katihar, District- Katihar.
.... .... Appellant.
Versus
The State Of Bihar
.... .... Respondent.
=
For the Appellant : Mr. Vikram Singh, Advocate.
For the Respondent : Mr. Sujit Kumar Singh, A.P.P.
PRESENT
THE HONOURABLE MR. JUSTICE GOPAL PRASAD
Gopal Prasad, J. Heard learned counsel for the appellant and
learned counsel for the State.
2. Sagar Chaudhary, the appellant has been
convicted under Sections 326 and 307 of the Indian Penal
Code and has been sentenced to undergo rigorous
imprisonment for seven years for offence under Section
307 I.P.C. and further sentenced to undergo rigorous
imprisonment for seven years for offence under Section
326 of the Indian Penal Code. However, it has been
ordered that both the sentences shall run concurrently.
3. The prosecution case as alleged in the
Fardbeyan of the informant Rajendra Chaudhary that while
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he was going to market from his house then he met Sagar
Chaudhary on the road and he enquired from Sagar
Chaudhary about collection on the eve of Durga Puja and
expenses then Sagar Chaudhary abused and on protest he
went toward his house and returned with a Farsa along
with his father Ram Bhajju Chaudhary and his mother
Ritia Devi who were also armed with lathi and assaulted.
Ram Bhajju Chaudhary gave farsa blow which hit left
hand thumb causing amputation of his thumb and he fell
unconscious. It is alleged that accused persons have
injured him by lathi and farsa. On the basis of Fardbeyan,
F.I.R. was lodged. After investigation charge sheet
submitted and cognizance has been taken for offence
under Section 324, 326 and 307 I.P.C. and the case was
committed to the Court of Sessions. Charges were framed
for offence under Section 307 I.P.C. against three accused
Ram Bhajju Chaudhary, Sagar Chaudhary and Mitia Devi.
Further charge was framed for offence under Section 326
against Sagar Chaudhary and charge under Section 323
was framed against Mitia Devi.
4. However, during trial nine witnesses were
examined as P.W. 1 Surajdeo Choudhary, P.W. 2 Satya
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Narayan Chaudhary, P.W. 3 Gagandeo Chaudhary, P.W.
4, Ram Karan Chaudhary, P.W. 5 Kapil Prasad Sinha,
P.W.6 Rajendra Chaudhary, P.W. 7, Hardeo Roy, P.W. 8
Ramdhari Dinkar and P.W. 9 Dr. Sudhir Kumar Sinha.
5. The defence has adduced evidence three
witnesses as D.W. 1, Mostmat Bhagiga Devi, D.W. 2,
Mitto Devi and D.W. 3 Sagar Chaudhary.
6. On considering both oral and documentary
evidence, appellant Sagar chaudhary convicted for offence
under Sections 326 and 307 I.P.C. Other accused persons
Ram Bhajju Chaudhary was died during trial and Mitia
Devi was acquitted for offence under Section 307 and
allied Sections.
7. Learned counsel for the appellant however,
contends that prosecution has not been able to prove the
charge with regard to the date and time of occurrence. He
has also filed a complaint case and in the said complaint
case he was filed a petition for calling the Station Diary
dated 16. 10. 1984 from the Katihar and Injury Register
dated 16. 10. 1984 from Katihar Sadar Hospital which was
allowed on 03. 03. 1990, but the same was not received.
Further contends that there is allegation of assault by farsa,
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but there is no mention that farsa was inflicted on the neck
for which offence under Section 307 is not made out. It
has further been contended that occurrence is of the year
1984 and more than twenty five years has elapsed and the
appellant had face trial and appeal and hence lenient view
may be taken.
8. However, learned counsel for the State,
contends that witnesses have supported the prosecution
case and the evidence of the Doctor has also support the
amputation of the thumb of the informant and hence
prosecution as alleged has been established.
9. However, taking into consideration the
prosecution case as alleged in the Fardbeyan that
occurrence took place when the informant asked Sagar
Chaudhary about collection of fund on the eve of Durga
Puja and its expenses, then there was verbal altercation
and then Sagar went into the house and took the farsa and
gave farsa blow which hit on the thumb causing
amputation of the informant. However, Doctor found only
injury of amputation of thumb and no other injury was
found.
10. However, P.W. 6 has supported the
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prosecution case and in his evidence has stated that when
the informant asked Sagar for collection and expense of
Durga Puja, then Sagar abused and went into the house
and brought with Farsa along with mother and father who
were also armed with lathi and Sagar gave farsa blow on
his neck which the informant tried to save the blow on him
which caused injury on his thumb and amputated the
thumb. However, P.W. 1, 2 and 4 has also supported P.W.
6 in same and similar manner. However, in Fardbeyan,
(Ext.1) there is specifically mentioned that on asking for
income and expense of Durga Puja , Sagar abused and
went to the house and brought farsa and assaulted him by
farsa which hit on his left hand. However, there is no
averment in the Fardbeyan that farsa was brandish on the
neck while he was asking for collection of Durga Puja, he
raised his thumb on which he got injury. Hence this is
development in the prosecution case that Farsa was
brandish on the neck. Attention of the statement of P.W. 6
has been drawn in para 10 of his evidence that he has
stated before Daroga which is not correct and he has not
stated before Daroga that Sagar brandish farsa on the neck.
However, Daroga has not been examined after
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examination of this witness and so contradiction not from
Daroga, though, the Fardbeyan which is Ext. 1 which is
apparently contradiction to the evidence of P.W. 6 in trial
as in the Fardbeyan there is not mentioned of assault by
Farsa on the neck and there is nothing mentioned the farsa
was inflicted on the neck and in saving neck, thumb was
amputated and hence this part of evidence that farsa blow
given on the neck suffer from development and leading to
contradiction and hence conviction under Section 307
I.P.C. is not reliable and sustainable as there is only one
injury as alleged to have been given on the thumb. There
is no other injury except amputation of the thumb and on
the Fardbeyan there is not mentioned that assault was
made with intention to kill.
11. Hence taking into consideration the entire
evidence and all material witnesses, who are eye
witnesses, there is nothing in the evidence to suggest that
assault was made with intention to kill even the injury of
amputation of thumb is established and hence order of
conviction and sentence recorded under Section 307 I.P.C.
is not sustainable and is hereby set aside.
12. However, having regard to the facts and
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circumstances, witnesses have supported the prosecution
about assault by farsa causing injury on the thumb which
caused amputation of thumb and Doctor has also
supported the prosecution case about injury and even
amputation of thumb and injury report has been proved.
13. Learned counsel for the appellant however,
submitted that he has also filed a petition to call for Station
Diary and Injury Register and even order dated 01. 03.
1990 and 03. 03. 1990, to show that Station Diary entry
and Injury Register was called for. However, neither the
Station Diary entry nor Injury Register received in the case
and Doctor who has proved the injury of the informant in
his evidence has stated in his cross-examination. that he
has no knowledge about any order has been passed by trial
court, though, he has stated that he examined Ram Bhajju
Chaudhary. However, this witness has stated that he has
examined Ram Bhajju Chaudhary and Mitia Devi and
found injury.
14. However, there is not mentioned about nature
of injury and evidence of Doctor on the basis of photo
copy has got no significance about nature of injury is
simple or superficial.
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15. However, defence has examined in the case
that Rajendra Chaudhary entered into courtyard and
assaulted mother and father of Sagar Chaudhary.
However, evidence of witnesses have also supported that
there was altercation between Sagar and Rajendra
Chaudhary with regard to collection of Durga Puja.
However, claimed that occurrence took place in the
courtyard. However, it is stated that father and mother has
been injured, but the injury report was not called for.
However, injury has not been proved in the case and father
and mother of the defence emphatically stated a petition
has been filed which was submitted in the court.
However, from perusal of the record, it appears that a
petition was filed only 1990 which was allowed by the
court on 03. 03. 1990, but the appellant did not press it and
there is nothing on the record to show the appellant pursue
the matter, though, the case was disposed of in the year
1996 after five years of the filing of the petition. But the
appellant did not pursue the same and hence there is no
merit in the submission and prejudice when the appellant
convicted and slumber was made.
16. However, taking into consideration the
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evidence that witnesses have supported the prosecution
case and P.W. 2, 4 and 6 are material witnesses who are
also supported the prosecution case and the allegation of
assault corroborated by the medical evidence of P.W. 6.
Hence, I find and hold that prosecution has been able to
prove the charges under Section 326 of Penal Code for
alleged injury causing amputation of thumb.
17. However, taking into consideration the fact
that occurrence is of the year 1984 and the appellant suffer
a lot during trial and appeal and during trial the appellant
remained in jail four about ten months from 10.11. 1984 to
12. 09. 1985 and from 01. 12. 1995 to 26. 08. 1996.
Hence, the end of justice shall meet by sentencing the
appellant for period already undergone and spent in jail
during investigation and after conviction. Hence order of
sentence is modified to the effect of the period which has
already undergone and the appeal is allowed in part.
( Gopal Prasad, J.)
Patna High Court
The 13th July, 2011.
NAFR/m.p.