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1989 DIGILAW 96 (PAT)

Lalo Choudhary v. State Of Bihar

1989-03-08

BINODANAND SINGH

body1989
Judgment Binodanand Singh, J. 1. The sole appellant has been convicted under Sec. 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years as also to pay a fine of Rs. 1,000.00 , in default to suffer further simple imprisonment for six months. This appellant has further been convicted under Sec. 326 of the Indian Penal Code, but no separate sentence has been awarded for this offence. 2. The relevant facts giving rise to this appeal are that the Fardbeyan (Ext. 5) was recorded on 25.4.1976 at 10 a.m. at Manjhaul District Board Dispensary by A.S.I. D.P. Singh of Manjhaul Out-post (P.W. 12) on the statement of Shaligram Singh (P.W. 9). On the basis of the aforesaid Fardbeyan a police case was instituted at Cheria Bariarpur Police Station on the same date at 4.10 p.m. The allegations as contained in the Fardbeyan are that the informant Shaligram Singh (P.W. 9) had sold 12 mds. of chilly worth Rs. 600.00 on credit to the appellant prior to the occurrence. The informant (P.W. 9) had made demand for the payment of the price of the chilly several times from the accused but it was not paid. A day prior to the occurrence the informant had again demanded the price of chilly from the appellant in the morning and the appellant had assured him that payment will be made to him in the evening of 24.4.1976. The informant, however, could not go to the place of the appellant in the evening of 24.4.1976 for taking payment of money since he had to go Simaria Ghat for taking part in cremation of the dead body of a lady who was his grand aunt. On the date of occurrence, i.e., on 25.4.1976 he along with one Shyam Nandan Singh (since dead) went to the house of the appellant for taking payment of his money. On demand the appellant turned a deaf year as a result of which there was exchange of hot words between the informant and the appellant. Thereafter, the appellant dealt a farsa blow which hit on the back side of the head of the informant. The appellant repeated another farsa blow hitting left index finger near the nail. Jaideo Singh (P.W. 8) and others saw the occurrence. 3. Thereafter, the appellant dealt a farsa blow which hit on the back side of the head of the informant. The appellant repeated another farsa blow hitting left index finger near the nail. Jaideo Singh (P.W. 8) and others saw the occurrence. 3. After the occurrence the informant (P.W. 9) was removed to Manjhaul District Board Dispensary where he was medically examined and treated by P.W. 11 (Dr. Parmanand Choudhary). P.W. 11, the doctor found the following injuries on the person of the informant: (i) Clean cut wound 3-1/4" × 1/2" bone deep on the left side of scalp on its front to parietal region. Bone cut to the extent of 3/4" in length posteriorly on the front to parietal region. (ii) Incised wound 1/2" × 8" nail deep on the upper portion of the nail of the left index finger lying transversely. Both the injuries were grievous in nature. Injury report has been marked as Ext. 4. On the information sent by PW 11 (Parmanand Choudhary) PW 12 (D.P. Singh) who was then posted as Assistant Sub-inspector of Police at Majhaul Out-post which was within the Cheria Bariayapur Police Station reached the District Board Dispensary and recorded the Fardbeyan referred to above. PW 12 himself took up investigation. He seized the blood-stained clothes of the informant which has been marked as Ext. 1/A. Thereafter PW 12 also inspected the place of occurrence which was at a distance of 300 yards from the house of the appellant on the pitch road. He found blood like substance at the place of occurrence and seized the same. Seizure list has been marked as Ext. 1/B. 4 PW 11, the doctor again examined the injuries of the informant. The Investigation Officer after completing investigation submitted the charge sheet against the appellant. After cognizance and commitment the appellant was put on trial before the 2nd Additional Sessions Judge, Begusarai. The appellant was charged under Sec. 307 of the Indian Penal Code as well as under Sec. 326 of the Indian Penal Code to which he pleaded not guilty. 5. In support of its case the prosecution examined 13 witnesses. The appellant was examined under Sec. 313 of the Code of Criminal Procedure. Two witnesses have also been examined on behalf of the defence. The case of defence was that the appellant is innocent and bad not committed any offence as alleged by the prosecution. 5. In support of its case the prosecution examined 13 witnesses. The appellant was examined under Sec. 313 of the Code of Criminal Procedure. Two witnesses have also been examined on behalf of the defence. The case of defence was that the appellant is innocent and bad not committed any offence as alleged by the prosecution. He has been falsely implicated in this case as counter blast to the criminal case filed earlier by his brother, Ramautar Choudhary, at Cheria Bariarpur Police Station and the instant case has been instituted. 6. The learned trial Court while concluding the trial did not accept the defence version and accepting the prosecution case convicted and sentenced the appellant as stated in the very beginning. The learned Counsel appearing for the appellant while attacking the finding of the learned trial Court with respect to the guilt of the appellant for the offence for which be has been convicted was mainly confined his argument to the effect that the allegations as put forward by the prosecution do not constitute an offence under Sec. 307 as well as under Sec. 326 of the Indian Penal Code. From the record it appears that out of 13 witnesses examined on behalf of the prosecution only material witnesses are PWs 7, 8 and 9, who are eye-witnesses, besides PW 11, the doctor and PW 12 the Investigation Officer. So far as PWs 1 to 6 are concerned their evidence is absolutely formal in nature. PW 13 is on the point of sale of chilly by the informant to the appellant. But with respect to this witness it can be at this very stage stated that admittedly this witness was never examined before the police and he deposed in the Court for the first time. Hence no reliance can be placed on him. Regarding PW 7, Chano Singh it has been argued that he should also not be relied upon since he is not named in the F.I.R. The submission of the learned Counsel for the appellant is not without substance. 7. In view of the submission of the learned Counsel appearing for the appellant and on consideration of the evidence of PW 8 and 9, the eyewitnesses, it would appear that the allegation against the appellant is that he dealt two farsa blows hitting on the left side of the head and on the left index finger. 7. In view of the submission of the learned Counsel appearing for the appellant and on consideration of the evidence of PW 8 and 9, the eyewitnesses, it would appear that the allegation against the appellant is that he dealt two farsa blows hitting on the left side of the head and on the left index finger. From the evidence of PW 11, the doctor Parma Nand Choudnary this part of the evidence of PW 8 and 9 is fully supported and thus the hading of the learned trial Court that PW 9 the informant had been assaulted by the appellant in the manner as alleged by the prosecution appears to be quite justified. So far as the conclusion of the learned trial Court that the appellant was guilty under Sec. 307 of the Indian Penal Code is concerned I am of the view that the prosecution allegations do not constitute the offence under Sec. 307 of Indian Penal Code since if the appellant would have intended to kill the informant there was no intervening circumstance to prevent him from doing so. The appellant would have repeated further farsa blow on the informant and could have killed him since the place of occurrence was just near the house of the appellant and there was nothing to prevent him from killing PW 9 the informant. In the above circumstance, it is difficult to hold that an attempt had been made by the appellant to kill the informant. The appellant has, therefore, to be acquitted of the charge under Sec. 307 of the Indian Penal Code. The orders of conviction and sentence passed by the learned trial Court on this count ate hereby set aside, but from the evidence of the eye-witnesses, namely, PW 8 and PW 9 supported by the evidence of PW 11, the doctor and PW 12 the Investigation Order, it is quite clear that the appellant had dealt farsa blows on the person of the informant, PW 9. The learned trial Court has convicted the appellant under Sec. 326 of the Indian Penal Code as well for causing grievous injury to PW 9 in his finger. But the description of the injury as given of PW 11 in his deposition discloses that it was incised wound 1/2" × 1/8" × nail deep on the upper portion of the left index finger. But the description of the injury as given of PW 11 in his deposition discloses that it was incised wound 1/2" × 1/8" × nail deep on the upper portion of the left index finger. This kind of injury can not be termed as grievous injury although the doctor has opined that has injury was also grievous. The opinion of the doctor to this extent that injury No. 2 on the finger was also a grievous injury can not be accepted. Or course from the description the injury appears to be a simple one. 8. The evidence of PWs 8 and 9 amply proves that appellant gave a farsa blow on the head of the informant, PW 9, which caused a clean cut wound which has been described by the doctor as grievous. But from the deposition of PW 11 it appears that he found dimension of the injury to be 3-1/4" × 1/2" × bone deep on the left side of scalp, on its from to parietal region. Although the doctor has Said that this injury was grievous on account of the fact that the bone was cut to an extern of 3/4" in length posteriorly on the fronto parietal region. But first part of the description of the injury given by him snows that the injury was only up to bone deep. The doctor does not say in the first part of the description of this injury that the bone was also cut. Besides, it does not appear that this injury was dangerous to life since from the evidence of witnesses it would appear that every after receiving this injury the informant travelled on cycle upto the hospital and so the claim of some of the witnesses that he was unconscious can not be held to be true. In these circumstances, it has to be held that this injury was also simple in uature. Since it does not fulfil the requirement of Sec. 320 of the Indian Penal Code the learned trial Court has convicted the appellant under Sec. 307 for one blow and for another blow under Sec. 326 of the Indian Penal Code which, in my opinion, does not appear to be desirable. A person cannot be convicted for each separate blow separately having been dealt on the same person. Of course he can be convicted for the major kind of offence. 9. A person cannot be convicted for each separate blow separately having been dealt on the same person. Of course he can be convicted for the major kind of offence. 9. The judgment and order of conviction passed by the trial Court against the appellant is, therefore, modified to the extent that he is convicted under Sec. 124 of the Indian Penal Code for causing injury to the informant on the head as well as on the finger and the sentence imposed on the appellant is modified to the extent that he is sentenced to pay a fine of Rs. 2500.00 , in default to suffer simple imprisonment for 1-1/2 years for the offense under Sec. 324 of the Indian Penal Code. The am mat of fine, if realised, shall be paid to the informant. 10. With the above modification in the orders of conviction and sentence, this appeal is dismissed.