Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.384 of 2000 =========================================================== Ramashish Choudhary son of Late Kuleshwar Choudhary Resident of vill.-Sematapur, P.S.-Mairwa, Distt.-Siwan .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. L. C. Ram, Advocate Mr. Ramesh Kumar Verma, Advocate For the Respondent/s : Mr. Jharkhandi Upadhayaya, APP. =========================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT Date: 16-07-2012 This appeal is directed against the judgment and order dated 23.9. 2000 passed in Sessions Trial No.114 of 1987 by the 2nd Additional District and Sessions Judge, Siwan, convicting the sole appellant to undergo rigorous imprisonment for seven years under [STATUTE] and rigorous imprisonment for one year under section 27 of the Arms Act. Two persons were put on trial. Nagendra Choudhary has been acquitted in this case and whereas the appellant has been convicted. The prosecution story as per the statement of Harendra Chaudhary, who is the informant in this case, is that on 22.8.1986 at about 4 p.m. when he was returning to his house, appellant, namely, Ramashish Chaudhary along with Harendra Chaudhary and one Shambhu Chaudhary, did not allow him to pass, saying that the Patna High Court CR. APP (SJ) No.384 of 2000 dt.16-07-2012 2 / 8 2 route he was taking was not a “Rasta ”. There was hot exchange of words and thereafter Shambhu Chaudhary, Ramashish Chaudhary opened fire at the informant hitting the left side of the rib-cage. It is also alleged that when he tried to run away Shambhu Chaudhary fired at him which hit his chest. Thus, the condition of the injured Harendra Chaudhary became serious and, as such, the then Judicial Magistrate was called to take his dying declaration which is marked as Ext.3. In the statement made at Ext.3 at 10 p.m. recorded by the Judicial Magistrate, Harendra Chaudhary has stated that he was accompanied by Birendra Chaudhary. On order being given by Ramashish, Birendra Chaudhary did not fire at him, therefore, Ramashish fired which did not hit him, Ramashish thereafter chased the informant and fired from a close range, which hit his wrist. Again it is alleged that Shambhu Chaudhary fired at the informant. It is also alleged that Rajendra Chaudhary assaulted the informant with lathi. I will first refer the evidence of the doctor, P.w.9 in this case. He has examined the informant on 22.8.1986 at 9-30 p.m. and found two wounds which are, according to the doctor, grievous in nature. Thus, it would appear from the statement of the doctor as well as the other witnesses informant was grievously injured. The manner of occurrence cannot be doubted in view of the fact that Patna High Court CR. APP (SJ) No.384 of 2000 dt.16-07-2012 3 / 8 3 Ext.3 is the subsequent statement given before the Judicial Magistrate. Even though it is not a dying declaration because the man did not die, but there is an expectation that a person who is expected to die would speak the truth. Therefore, it is for this reason the court has treated the statement of the informant to be a dying declaration. Apart from the aforesaid statement given by the informant several other witnesses have been examined to substantiate the prosecution version. P.W.1, P.W.5 and P.W.7 have been mentioned to be the eye witnesses to the occurrence in the F.I.R. P.W.1 supports the prosecution case in his statement. Learned counsel for the appellant points out that at para-9 he has stated that there was no dispute with respect to the use of the way earlier to this occurrence. Learned counsel further points out that this witness states at para-7 that he did not hear the sound of firing. On the basis of the aforesaid contradiction made in the statement of P.W.1, this court finds that two facts emerge. Firstly, although P.W.1 reached the place of occurrence as soon as the firing took place as a result of alarm being made by the family members of the informant, it cannot be said that he actually saw the firing or he could not have heard the sound of firing. The second fact that is apparent is that there was no Patna High Court CR. APP (SJ) No.384 of 2000 dt.16-07-2012 4 / 8 4 previous dispute regarding the use of way between the informant and the appellant and that the above occurrence took place on the spur of the moment. P.W.2 is the uncle of the informant Harendra Chaudhary. He supports the prosecution version and says that he did not witness the occurrence. It is apparent that P.W.2 was examined on 2.6.1992 and again recalled on 28.8.1998 for cross- exanimation, as a compromise petition has been filed by the parties. On re-examination he admits not to have seen the occurrence and also claims that he did not see the person who fired at the informant. P.W. 4 has supported the prosecution version and claims to be a chance witness to the occurrence. In his cross- examination at paragraph-4, he, however, said that when he reached the place of occurrence, he saw the accused persons running away and also says that family members of Harendra Chaudhary had gathered around him. It is submitted on behalf of the appellant that these witnesses, therefore, did not see the actual manner of assault. P.W. 4 , Ram Deni Chaudhary claims to be related to both sides. He also claims to be a chance witness, as he has stated that he was grazing the cattle in the field when he heard the sound Patna High Court CR. APP (SJ) No.384 of 2000 dt.16-07-2012 5 / 8 5 of firing. He ran to the place of occurrence and found that the injured(P.W.8) was lying on the ground and two persons were running away from the place of occurrence. According to these witnesses, P.W. 8 was lying in the courtyard belonging to the appellant. P.W. 5, Jag Lal Chaudhary, is named in the First Information Repo

Applicable IPC Section: 326

Statute Text:
Section 326 of the Indian Penal Code. Voluntarily causing grievous hurt by dangerous weapons or means. Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.