Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.390 of 2000 AGAINST THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 19TH SEPTEMBER, 2000 PASSED IN SESSIONS TRIAL NO. 169/95/13 OF 1994 BY SHRI UDAI NARAIN SINGH, IIND ADDITIONAL SESSIONS JUDGE, JEHANABAD =========================================================== BISHRAM SHARMA, SON OF KEDAR SHARMA, RESIDENT OF VILLAGE KOILI, P.S. MAKHDUMPUR, DISTRICT JEHANABAD .... .... APPELLANT/S VERSUS THE STATE OF BIHAR .... .... RESPONDENT/S =========================================================== APPEARANCE : FOR THE APPELLANT/S : MR.DINU KUMAR, ADVOCATE MR.SHIV KUMAR PRABHAKAR, ADV. MR. ARVIND KR. SHARMA, ADV. FOR THE RESPONDENT/S : MRS.ABHA SINGH, A.P.P. =========================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT Date: 30-08-2012 Sheema Ali Khan, J. Out of the eleven accused persons named in this case ten have been acquitted by the court below. The sole appellant Bishram Sharma has been convicted under [STATUTE] to undergo rigorous imprisonment for three years and rigorous imprisonment for one year under Section 27 of the Arms Act by the 2nd Additional Sessions Judge, Jehanabad in Sessions Trial No. 169 of 1995/13 of 1994. 2. The case has been instituted by Sheo Ram Prasad on 9.12.1985 at 11.30 A.M. at Jehanabad Hospital for an occurrence which took place on 08.12.1985 at 7 P.M. 3. The prosecution case is that the informant along with Deena Nath Yadav and Bhubneshwar Yadav was going Patna High Court CR. APP (SJ) No.390 of 2000 dt.30-08-2012 2 towards the cabin of Sheo Ram Prasad, when they came across the eleven named accused persons armed with guns who fired upon them. It is said that it was a dark night however, since they were carrying lantern and torches, they were able to identify the accused persons and also identified the accused who had opened fire. It is alleged that Hari Singh and Surendra Singh fired at the informant which hit his right hand, right leg and right side of his body. Prem Prakash is said to have fired on Dayananand whereas Binod Sharma and Bishram Sharma (appellant) fired on Bhuneshwar, hitting his elbow and stump. The motive as disclosed for the occurrence is that the accused persons had asked the appellant to participate in forming a co-operative, which the appellant refused, as a result of which the occurrence had taken place. 4. The defence on behalf of the appellant is that on 08.12.1985 there was a dacoity in the house of the appellant, as a result of which the appellant and his family members and others were vigilant and were keeping vigil over their house. It is stated that a family member of Bishram Sharma was killed by the dcoits. On seeing persons moving about in the dark night the appellant and others have fired which was due to a misunderstanding and not because of any enmity with the Patna High Court CR. APP (SJ) No.390 of 2000 dt.30-08-2012 3 informant and others. 5. The Counsel appearing on behalf of the appellant has argued that the First Information Report has been lodged after a delay at Jehanabad whereas the nearest Police Station was at Makhdumpur. It is further submitted that the First Information Report was sent to the Court of the Chief Judicial Magistrate, Jehanabad after 72 hours which is a circumstance to show that in fact the informant had not seen the miscreants who had fired and the names of these persons have been added after deliberation because both the accused persons and the informant in this case belong to two groups in the village and support different Mukhiyas. It is further submitted that the C.I.D., who was monitoring this case and the police had initially come to a finding that firing was because of a misunderstanding due to the previous occurrence. 6. Before proceeding any further with this case, I would like to point out that the trial court has utilized the case diary to confirm as to whether the witnesses had changed their version in the Court, which is permissible under Section 172(2) of the Code of Criminal Procedure. The case diary can be only utilized for the purposes of confirming and to aid the Court when the Investigating Officer has not been examined, and attention of Patna High Court CR. APP (SJ) No.390 of 2000 dt.30-08-2012 4 the witness is drawn to the statements made under Section 161 of the Code of Criminal Procedure. 7. The prosecution has examined eight witnesses out whom P.W.2, 3 and 6 were injured during the occurrence. P.W.9 is the Assistant in the office of the Civil Surgeon. He has proved the handwriting of the Medical Officer who has prepared the injury report. P.W.7 is the Investigating Officer of this case. 8. I should begin with the injury report which has been proved, however, the appellant did not get an opportunity to cross examine the doctor regarding injuries as he was not examined in this case. The injury report reveals that all 3 persons had received injuries on the back portion of the body. It has thus, been argued that even if it is presumed that the occurrence had taken place in the manner alleged, none of the injured could have seen as to which of the accused persons fired at him. Specific allegations have been made against six accused persons in this case would fall on the ground, because as per the injury report, the firing took place while the informant and others had their back to the person who fired. Thus, without going into the evidence of any of the witnesses, this Court concludes that since all the injuries were found on the back portion of the body, it would not be possible for the informant or Dinanath Yadav or Patna High Court CR. APP (SJ) No.390 of 2000 dt.30-08-2012 5 Bhuneshwar Yadav to have made a specific statement regarding the person who had inflicted the injury. 9. P.W.1, Bibhishan Yadav claims to be an eye witness to the occurrence. He is a chance witness as according to his statement he had been gone to the Pok

Applicable IPC Section: 324

Statute Text:
Section 324 of the Indian Penal Code. Voluntarily causing hurt by dangerous weapons or means. Whoever, except in the case provided for by section 334, voluntarily causes 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 of either description for a term which may extend to three years, or with fine, or with both.