Patna High Court CR. APP (SJ) No.327 of 1997 dt.19-07-2011 1 Criminal Appeal (SJ) No.327 of 1997 -------- Against the judgment and order of conviction dated 02.12.1997 and 03.12.1997 respectively passed by the 9th Additional Sessions Judge, Chapra, in Sessions Trial No. 294 of 1987. --------- =========================================================== Kamal Dev Sharma son of Dileshwar Sharma, resident of village-Sheetalpur Sharma Tola, Police Station-Dighwara, District- Chapra .... .... Appellant/s Versus The State Of Bihar through the District Magistrate, Chapra .... .... Respondent/s =========================================================== Appearance: For the Appellant/s : Mr. Yogesh Chandra Verma, Sr. Advocate with Mr. Binod Kumar Singh, Advocate. For the Respondent/s: Mr. B. B. Singh, A.P.P. =========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT (Per: HONOURABLE JUSTICE SMT. ANJANA PRAKASH) 1. The appellant has been convicted under section 307 Indian Penal Code and sentenced to undergo rigorous imprisonment for two years by the 9th Additional Sessions Judge, Chapra, in Sessions Trial No. 294 of 1987 by judgment dated 2nd December, 1997. 2. The case of the prosecution according to the informant Nand Kishore Sharma is that on 02.12.1985 while the informant along with his uncle Ramadhar Sharma were working in their gram field situated to the east of their house, accused Biranjan Sharma arrived there and asked for an explanation as to why Ramadhar Sharma had protested over grazing of the crops by the buffalos of Biranjan Sharma. Biranjan Sharma offered explanation that the buffalo had grazed small quantity of the gram crop and, therefore, the protest was unjustified. The uncle of the informant replied but the same led to an altercation. Accused Biranjan Patna High Court CR. APP (SJ) No.327 of 1997 dt.19-07-2011 2 Sharma assaulted the informant with lathi and also called his family members. When the present appellant armed with Farsa and other accused persons came, the appellant is said to have given a Farsa blow on the head of his uncle Ramadhar Sharma while the other assaulted with lathi. 3. During trial, the prosecution examined nine witnesses, out of whom, P.W.1 Rang Lal Hazra, P.W.2 Ram Singar Pandey, P.W.3 Nand Kishore Sharma, the informant has been examined as eye witness, out of whom, P.W. 2 Ram Singar Pandey has been disbelieved by the Court below. P.W.4 Dr. Jayant Shekhar was the Medical Officer In charge of Dighwara Primary Health Centre on 02.12.1985 and had examined Ramadhar Sharma and found incised injury on his head but had reserved his opinion with regard to its nature till x-ray report was received. He also purportedly examined the informant and found one simple injury on his right palm allegedly caused by a Lathi. P.W.5 Dr. Rajeshwar Tiwari has stated that on 05.12.1985 injured Ramadhar Sharma had been sent to him for x-ray at which he had been x-rayed. P.W.6 Dr. Janardan Narayan Prasad has proved the out door ticket of the injured Ramadhar Sharma at the Clinic of Dr. H. N. Verma. P.W.7 is the Investigating Officer, whereas, P.W.8 Rajeshwar Tiwary is a Technician, who proved the x-ray plate of the injured Ramadhar Sharma. P.W.9 Dharmnath Singh has proved the prescription with regard to the injured Ramadhar Sharma. 4. On behalf of defence, one Nagendra Prasad Singh was examined to bring on record Ext.-A which was purportedly given by P.W.1 as attendance in a court proceeding. This document was brought on record by the defence to disapprove the presence of P.W.1 at the place of occurrence on the date and time alleged. 5. On going through the evidence of P.W.1, I find that he stated that on 02.12.1985 altercation arose between the parties in course of which Biranjan Patna High Court CR. APP (SJ) No.327 of 1997 dt.19-07-2011 3 Sharma assaulted the informant whereafter the present appellant also assaulted Ramadhar Sharma on the head with Farsa on account of which he fell down and injured and became unconscious. He further stated that rest of the appellants also assaulted him. He remained unshaken in the cross-examination but he conceded that he was examined by police 2-3 days later. He also accepted that he had signed on the affidavit which is Ext.-A prepared the Notary Public at Chapra and, therefore, his presence appears to be doubtful. 6. P.W.2 Ram Singar Pandey has been disbelieved by the Court and, therefore, there is no need for discussion of his evidence. 7. The next eye witness Nand Kishore Sharma, the informant has stated as he did in the fard beyan but many discrepancies arose with regard to the assault and, therefore, the Trial Court considering the same acquitted the rest of the two appellants for the charge under section 323 Indian Penal Code. 8. On going through the evidence of the informant, I find that there is categorical statement that it was the appellant, who had assaulted Ramadhar Sharma, his uncle with farsa and such an injury was found on his person by P.W.4. The x-ray report also reveals that there was fracture of bone further corroborating the prosecution case. Place of occurrence is also fixed by the Investigating Officer (P.W.7), who found trampling marks in the field where the occurrence is said to have taken place. He also stated that he had seen Ramadhar Sharma with a bandage on his head. Thus, confirming that he had been injured and stated that he did not record his statement because he thought sending to the doctor was priority. 9. Having considered the evidence of the material witnesses, there is no manner of doubt that the appellant had in fact assaulted the uncle of the informant Ramadhar Sharma with a Farsa on his head which caused grievous injury on him. However, from the manner depicted by the prosecution, it is difficult to say Patna High Court CR. APP (SJ) No.327 of 1997 dt.19-07-2011 4 conclusively that in fact the intention of the appellant was to cause death and, therefore, conviction of the appellant under section 307 Indian Penal Code is not sustainable. 10. In view of such, the appellant is acquitted of the charge under section 307 Indian Penal Code and instead convicted under section 325 Indian Penal Code. Since the occurrence had taken place more than twenty six years ago, the period undergone during trial shall be sufficient sentence in the interest of justice. 11. In the result, the appeal is dismissed with modification in the sentence as mentioned above. (Anjana Prakash,J.) Patna High Court, Patna Dated the 19th July, 2011 NAFR/ JA/-