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2012 DIGILAW 946 (PAT)

CHANDRA MOULI CHOUHAN v. STATE OF BIHAR

2012-07-09

SHEEMA ALI KHAN

body2012
JUDGMENT Sheema Ali Khan, J. Nobody appears on behalf of the appellants to press this appeal. Accordingly, Mr. Ranbir Singh is appointed as Amicus Curiae to assist this Court. 2. The above named appellants have preferred this appeal against the judgment of conviction and the order of sentence dated 29th July, 2000 passed by the 1st Additional Sessions Judge, Barh in Sessions Trial No. 357 of 1993 by which the appellants have been convicted under Sections 324/34 and were sentenced to undergo rigorous imprisonment for three years. 3. The fardbeyan of the informant, Bundela Chauhan was recorded by the police on 19.03.1992 at about 7.30 P.M. for an occurrence which allegedly took place at 2.30 P.M. The place of occurrence is supposedly the “Bathan” of Nandu. There were exchange of hot words and Brijnandan Chouhan ordered the others to kill the informant, on which Chandramauli Chauhan fired hitting the left thigh of the victim, which shot passed through his left buttock, after which he fell down. It is also alleged that the other accused persons assaulted with Lathi. 4. The defence raised on behalf of the appellants is that there is a counter case with respect to the same occurrence on 19.03.1992. The defence case is that the prosecution party came to the house of Ram Lagan and there was a hot exchange of words and “mar-pit” took place, in which two person sustained injuries. The said occurrence was on the eve of “Holi” and obviously because of some argument between them, the occurrence took place. 5. In support of the defence, two witnesses were examined. One of them proved the injury report which were marked as Exhibits A and A/1. Another witness has proved the complaint petition and the formal First Information Report which were marked as Exhibits B, C and D. 6. In the aforesaid background, this Court would now examine the evidence of the eight prosecution witnesses in this case. P.W.1 is the formal witness and has proved Exhibit 1, the First Information Report. 7. P.W. 2 Chandrika Prasad who is an eye witness to this case has stated that on hearing alarm, he went to the Bathan of Nandu where he supposedly saw the occurrence. This witness admits at paragraph 4 that he is an accused in a criminal case which is pending before the Sub-divisional Judicial Magistrate. 7. P.W. 2 Chandrika Prasad who is an eye witness to this case has stated that on hearing alarm, he went to the Bathan of Nandu where he supposedly saw the occurrence. This witness admits at paragraph 4 that he is an accused in a criminal case which is pending before the Sub-divisional Judicial Magistrate. He admits that it was a day of “Holi”. It appears from the evidence that this witness along with others have formed a group which provides private entertainment by putting plays (Natak) in the village. There was some dispute regarding this matter as well. 8. P.W.3 Shiya Sharan Prasad also claims to be the eye witness to the occurrence. He has given detailed description of the manner of occurrence supporting the assault on the informant of this case. 9. P.W.4 Md. Naimuddin is the doctor at Barh who had examined the informant Bundela Chauhanon 19.03.1992. He finds that there is an injury of “lacerated wound of about ¼” x ¼” x track deep size with margin blackened and inverted on left buttock (would of entry). (ii)One lacerated wound of about ½” x ½” x track deep size with margin everted on middle pubic resonator age” Whereas there is a wound of exit from the back of the bottom. No opinion has been given with regard to the seriousness of the injury as the Doctor was waiting for the X-ray report which was never supplied to him. Therefore, the Court is not in a position to judge as to whether the injuries are simple or grievous. In this context Exhibit 7 may be examined. It is said that the informant went to Patna for further treatment. The Head of the Department of Surgery vide letter dated 11th of May, 1996 accepts that Bundela Chauhan was admitted on 20.03.1992 and has been examined by Dr. S. N. Hussain who was Surgeon at the relevant time and as such he is not in a position to give his opinion. A discharge slip issued by Dr. Shambhu Mishra bearing the names of Dr Yugal Kishore and Dr. Nirmal Kumar Sinha has been produced and marked as Exhibit 6. It seems that the informant was examined as an out-door patient. He was given medicine and sent home, to report after one month. This document has not been proved during the trial. A discharge slip issued by Dr. Shambhu Mishra bearing the names of Dr Yugal Kishore and Dr. Nirmal Kumar Sinha has been produced and marked as Exhibit 6. It seems that the informant was examined as an out-door patient. He was given medicine and sent home, to report after one month. This document has not been proved during the trial. Although signature on the document discussed above which was sent by Dr. S. N. Hussain has been formally proved by P.W.8. 10. The most important witness is the informant and injured of this case who was examined as P.W.6. He has supported his case, however, at paragraph 9 of his evidence he admits that Ram Lagan Chauhan had also filed a case against him and has alleged that this informant had assaulted him with lathi. 11. P.W.7 Sk. Noor Mohammad is the Investigating Officer of this case who has examined the witnesses during the investigation and has proved the First Information Report and signatures on the First Information Report. On the basis of the aforesaid evidence, the Court has convicted the appellants under Section 324/34 of the Indian Penal Code. 12. I may firstly deal with the evidence that has come regarding occular and medical evidence with respect to the allegations that apart from Chandramauli, appellant no. 1, the appellants no.2, 3 and 4 had assaulted the informant by means of a lathi. The ocular evidence and the medical evidence contradict each other as the Doctor P.W. 4, who has not found even a single bruise or any type of injury on the body of the informant and as such the ocular evidence in this regard appears to be an exaggeration and it cannot be said that these appellants had assaulted the informant. 13. With regard to the evidence which has come on record regarding the injury found by P.W.4 on the informant Bundela Chauhan, it appears from the evidence that the prosecution has been able to prove that the appellant received a fire-arm injury on his thigh which passed through his left buttock. I, therefore, find that the injuries inflicted on Chandramauli Chauhan cannot be doubted. In the opinion of this Court, Chandramauli Chauhan is convicted independently under Section 324 of the Indian Penal Code whereas the rest appellants should be convicted under Section 324/34 of the Indian Penal Code. I, therefore, find that the injuries inflicted on Chandramauli Chauhan cannot be doubted. In the opinion of this Court, Chandramauli Chauhan is convicted independently under Section 324 of the Indian Penal Code whereas the rest appellants should be convicted under Section 324/34 of the Indian Penal Code. Having concluded that the prosecution has proved this case, this Court modifies the sentence as period already undergone with respect to the appellants 2, 3 and 4 are concerned. The appellant no. 1, Chandramauli Chauhan is further directed to pay a fine of Rs. 2,500/- to the informant (injured) Bundela Chauhan or his legal heirs, if he is not alive, failing which he is required to undergo simple imprisonment for six months. The fine will be deposited in the Trial Court within three months of valid service of notice, to be paid to Bundela Chauhan. 14. In the result, this appeal is dismissed with the modification in the sentence. All the appellants are discharged from the liabilities of the bail bonds furnished earlier in this case, except appellant no. 1 Chandramauli Chauhan, who will be discharged from the liabilities of the bail bonds only when he deposits the amount of fine.