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2008 DIGILAW 701 (PAT)

Sudhir Prasad v. State Of Bihar

2008-05-16

REKHA KUMARI

body2008
Judgment Rekha Kumari, J. 1. This appeal is directed against the judgment of conviction and sentence dated 20.7.1993 passed by Shri Chandra Mohan Prasad, 2nd Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No. 284 of 1987/232 of 1987 by which he has convicted the appellant under Section 324 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for one year. 2. The prosecution case, in brief, is that on 30.7.1985 at about 7.00 P.M. the informant had gone towards south of his village for attending the call of nature and after easing himself while he was taking water for cleaning, the appellant came there and caught hold of him and started rasping his neck with Pasuli. The informant tried to stop him by holding the Pasuli with his left hand due to which his left thumb got cut injury and the neck started bleeding. When the people of the village assembled, the accused fled away. 3. On the basis of the Fardbeyan recorded by the police on 31.7.1985 at 3.00 p.m., a case vide Hilsa P.S. Case No. 133/85 under Section 307/324 of the Indian Penal Code was registered and the case was investigated and the chargesheet was submitted under Sections 341,307 and 324 of the Indian Penal Code. 4. Charge was framed under Section 307 of the Indian Penal Code to which the appellant pleaded not guilty. 5. The prosecution in order to substantiate its case examined altogether five witnesses, out of whom P.W. 3 Arvind Kumar is the informant himself, P.W.1 Chandrika Ram and P.W.2 Jodhan Ram are said to be the eye witnesses of the occurrence but both of them have turned hostile, P.W.4 Krishnadeo Prasad is a formal witness who has proved the endorsement of S.I. Sant Kumar (Ext. 1/2) on the Fardbeyan, Ext. 1 is the signature of the informant on the Fardbeyan, Ext.2 is the formal F.I.R., Ext. 3 is the injury report and P.W.5 is Dr. Dukhharan Sinha who had examined the injury of the informant. No witness was examined by the appellant. 6. The Learned Trial Court after considering the evidence adduced on behalf of the prosecution found the appellant guilty under Section 324 of the Indian Penal Code in place of Section 307 of the Indian Penal Code and convicted and sentenced him, as mentioned above. 7. No witness was examined by the appellant. 6. The Learned Trial Court after considering the evidence adduced on behalf of the prosecution found the appellant guilty under Section 324 of the Indian Penal Code in place of Section 307 of the Indian Penal Code and convicted and sentenced him, as mentioned above. 7. The appellant being aggrieved by and dissatisfied with the impugned judgment of conviction and sentence, preferred this appeal. 8. The point for consideration in the present appeal is whether the Court below was justified in convicting the appellant and passing the above order of sentence. 9. Sri Ranbir Singh, learned counsel appearing for the appellant as amicus curiae assailed the impugned judgment on the grounds, inter alia, that the appellant has been convicted on the basis of the sole testimony of the informant and his evidence has not been corroborated by any other evidence muchless any independent witness and, hence, the impugned order of conviction and sentence is fit to be set aside. 10. In order to appreciate the argument of the learned counsel for the appellant, I would like to discuss the evidence adduced by the prosecution during trial. 11. The evidence of P.W. 5 Dr. Dukhharan Sinha is that on 30.7.1985 at 8.45 P.M. he examined Arvind Kumar (informant) and found the following injuries on his person: (i) Superficial skin deep iinear incised wound, size 2"x1/4"x skin deep in front of neck. (ii) Incised wound size 3/4" x1/4" x skin deep on the tip of left thumb. 12. According to the doctor, both the injuries were caused by sharp cutting weapon, may be Hasuli and the age of the injury was within six hours. 13. The evidence of the doctor, hence, supports the prosecution case as according to him the informant had sustained injuries caused by sharp cutting weapon on the neck and the tip of the left thumb. 14. The injuries found on the neck and on the tip of the left thumb corroborate the prosecution case. The age of the injuries given by the doctor also corroborates the prosecution case regarding the time of occur-rence. 15. The next question is whether the above injuries had been caused by the appellant in the manner as alleged. 16. 14. The injuries found on the neck and on the tip of the left thumb corroborate the prosecution case. The age of the injuries given by the doctor also corroborates the prosecution case regarding the time of occur-rence. 15. The next question is whether the above injuries had been caused by the appellant in the manner as alleged. 16. P.W. 3 Arvind Kumar, the informant, has stated in his evidence that about six years ago at about 7.00 p.m. he had gone east of the village to attend the call of nature at a distance of about 100 yards. While he was to get up after cleaning himself, he saw the appellant coming towards him and the appellant suddenly started cutting his neck by Pasuli and as he tried to save himself his left thumb also sustained cut Injury. On alarm raised by him the witnesses came and the appellant fled away. He was taken to the Hospital where his Fardbeyan was recorded. The witness has further stated that he and the appellant used to live at Delhi and the appellant was in the habit of stealing money from him and from the others on which the witness made protests and being annoyed by it, he committed the above offence. The witness has been cross examined and I do not find anything to disbelieve his testimony. His Fardbeyan (Ext.1/1) fully supports his testimony. 17. The evidence of P.Ws.1and 2 is that they do not remember as to whether any incident of assault with Arvind Kumar (P.W.3) had taken place. Both the witnesses have been declared hostile, and their attention have been drawn to their earlier statements before the police to show that they had given eye witness account there but the I.O. has not been examined. So, it has not been proved that they are actually suppressing the truth. Anyway, the fact remains that the evidence of these two witnesses do not lend any support to the prosecution case. 18. But, though there is no other eye witness in this case, even the sole testimony of the informant, if reliable, may be ground for conviction. In this case the evidence of the informant is unimpeachable that the appellant has caused the above injuries and his evidence is fully corroborated by the doctor. Therefore, the evidence on record is sufficient to convict the appellant. In this case the evidence of the informant is unimpeachable that the appellant has caused the above injuries and his evidence is fully corroborated by the doctor. Therefore, the evidence on record is sufficient to convict the appellant. The evidence of the informant also shows that the appellant had motive for the assault. 19. Therefore, I find that the Trial Court was justified in holding the appellant guilty under Section 324 of the Indian Penal Code. As regards the sentence, as the occurrence had taken place more than 20 years ago, it would not be proper to send the appellant to jail. 20. Accordingly, while maintaining the order of conviction, the sentence is reduced to a fine of Rs. 2500/- (Two thousand five hundred only) and in default to undergo simple imprisonment for six months. On realization of fine, the same would be paid to the informant. 21. With the above modification in sentence, this appeal is dismissed. The learned Trial Court would send a notice to the appellant for depositing the fine amount. 22. Before parting with the judgment, the Court expresses its thanks to the learned amicus curiae for his able assistance to this Court in the disposal of the appeal. Let a copy of this judgment be handed over to him to enable him to get his fee from the Patna High Court Council of Legal Aid and Advice.