High Court Patna High Court

Sagar Chaudhary vs State Of Bihar on 13 July, 2011

Patna High Court
Sagar Chaudhary vs State Of Bihar on 13 July, 2011
Author: Gopal Prasad
                               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.