Criminal Appeal (SJ) No.181 of 1996 Against the judgment and conviction dated 10. 06. 1996 and order of sentence dated 11. 06. 2011 passed by Smt. Vidyut Prabha Singh, Ist Additional Sessions Judge, Katihar, in Sessions Trial No. 56 of 1985. Sagar Chaudhary, son of Ram Bhajan Chaudhary, Resident of Mohalla- Naya Tola Raharia, Police Station- Katihar, District- Katihar. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. = For the Appellant : Mr. Vikram Singh, Advocate. For the Respondent : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. Sagar Chaudhary, the appellant has been convicted under Sections 326 and 307 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for seven years for offence under Section 307 I.P.C. and further sentenced to undergo rigorous imprisonment for seven years for offence under Section 326 of the Indian Penal Code. However, it has been ordered that both the sentences shall run concurrently. 3. The prosecution case as alleged in the Fardbeyan of the informant Rajendra Chaudhary that while 2 he was going to market from his house then he met Sagar Chaudhary on the road and he enquired from Sagar Chaudhary about collection on the eve of Durga Puja and expenses then Sagar Chaudhary abused and on protest he went toward his house and returned with a Farsa along with his father Ram Bhajju Chaudhary and his mother Ritia Devi who were also armed with lathi and assaulted. Ram Bhajju Chaudhary gave farsa blow which hit left hand thumb causing amputation of his thumb and he fell unconscious. It is alleged that accused persons have injured him by lathi and farsa. On the basis of Fardbeyan, F.I.R. was lodged. After investigation charge sheet submitted and cognizance has been taken for offence under Section 324, 326 and 307 I.P.C. and the case was committed to the Court of Sessions. Charges were framed for offence under Section 307 I.P.C. against three accused Ram Bhajju Chaudhary, Sagar Chaudhary and Mitia Devi. Further charge was framed for offence under Section 326 against Sagar Chaudhary and charge under Section 323 was framed against Mitia Devi. 4. However, during trial nine witnesses were examined as P.W. 1 Surajdeo Choudhary, P.W. 2 Satya 3 Narayan Chaudhary, P.W. 3 Gagandeo Chaudhary, P.W. 4, Ram Karan Chaudhary, P.W. 5 Kapil Prasad Sinha, P.W.6 Rajendra Chaudhary, P.W. 7, Hardeo Roy, P.W. 8 Ramdhari Dinkar and P.W. 9 Dr. Sudhir Kumar Sinha. 5. The defence has adduced evidence three witnesses as D.W. 1, Mostmat Bhagiga Devi, D.W. 2, Mitto Devi and D.W. 3 Sagar Chaudhary. 6. On considering both oral and documentary evidence, appellant Sagar chaudhary convicted for offence under Sections 326 and 307 I.P.C. Other accused persons Ram Bhajju Chaudhary was died during trial and Mitia Devi was acquitted for offence under Section 307 and allied Sections. 7. Learned counsel for the appellant however, contends that prosecution has not been able to prove the charge with regard to the date and time of occurrence. He has also filed a complaint case and in the said complaint case he was filed a petition for calling the Station Diary dated 16. 10. 1984 from the Katihar and Injury Register dated 16. 10. 1984 from Katihar Sadar Hospital which was allowed on 03. 03. 1990, but the same was not received. Further contends that there is allegation of assault by farsa, 4 but there is no mention that farsa was inflicted on the neck for which offence under Section 307 is not made out. It has further been contended that occurrence is of the year 1984 and more than twenty five years has elapsed and the appellant had face trial and appeal and hence lenient view may be taken. 8. However, learned counsel for the State, contends that witnesses have supported the prosecution case and the evidence of the Doctor has also support the amputation of the thumb of the informant and hence prosecution as alleged has been established. 9. However, taking into consideration the prosecution case as alleged in the Fardbeyan that occurrence took place when the informant asked Sagar Chaudhary about collection of fund on the eve of Durga Puja and its expenses, then there was verbal altercation and then Sagar went into the house and took the farsa and gave farsa blow which hit on the thumb causing amputation of the informant. However, Doctor found only injury of amputation of thumb and no other injury was found. 10. However, P.W. 6 has supported the 5 prosecution case and in his evidence has stated that when the informant asked Sagar for collection and expense of Durga Puja, then Sagar abused and went into the house and brought with Farsa along with mother and father who were also armed with lathi and Sagar gave farsa blow on his neck which the informant tried to save the blow on him which caused injury on his thumb and amputated the thumb. However, P.W. 1, 2 and 4 has also supported P.W. 6 in same and similar manner. However, in Fardbeyan, (Ext.1) there is specifically mentioned that on asking for income and expense of Durga Puja , Sagar abused and went to the house and brought farsa and assaulted him by farsa which hit on his left hand. However, there is no averment in the Fardbeyan that farsa was brandish on the neck while he was asking for collection of Durga Puja, he raised his thumb on which he got injury. Hence this is development in the prosecution case that Farsa was brandish on the neck. Attention of the statement of P.W. 6 has been drawn in para 10 of his evidence that he has stated before Daroga which is not correct and he has not stated before Daroga that Sagar brandish farsa on the neck. However, Daroga has not been examined after 6 examination of this witness and so contradiction not from Daroga, though, the Fardbeyan which is Ext. 1 which is apparently contradiction to the evidence of P.W. 6 in trial as in the Fardbeyan there is not mentioned of assault by Farsa on the neck and there is nothing mentioned the farsa was inflicted on the neck and in saving neck, thumb was amputated and hence this part of evidence that farsa blow given on the neck suffer from development and leading to contradiction and hence conviction under Section 307 I.P.C. is not reliable and sustainable as there is only one injury as alleged to have been given on the thumb. There is no other injury except amputation of the thumb and on the Fardbeyan there is not mentioned that assault was made with intention to kill. 11. Hence taking into consideration the entire evidence and all material witnesses, who are eye witnesses, there is nothing in the evidence to suggest that assault was made with intention to kill even the injury of amputation of thumb is established and hence order of conviction and sentence recorded under Section 307 I.P.C. is not sustainable and is hereby set aside. 12. However, having regard to the facts and 7 circumstances, witnesses have supported the prosecution about assault by farsa causing injury on the thumb which caused amputation of thumb and Doctor has also supported the prosecution case about injury and even amputation of thumb and injury report has been proved. 13. Learned counsel for the appellant however, submitted that he has also filed a petition to call for Station Diary and Injury Register and even order dated 01. 03. 1990 and 03. 03. 1990, to show that Station Diary entry and Injury Register was called for. However, neither the Station Diary entry nor Injury Register received in the case and Doctor who has proved the injury of the informant in his evidence has stated in his cross-examination. that he has no knowledge about any order has been passed by trial court, though, he has stated that he examined Ram Bhajju Chaudhary. However, this witness has stated that he has examined Ram Bhajju Chaudhary and Mitia Devi and found injury. 14. However, there is not mentioned about nature of injury and evidence of Doctor on the basis of photo copy has got no significance about nature of injury is simple or superficial. 8 15. However, defence has examined in the case that Rajendra Chaudhary entered into courtyard and assaulted mother and father of Sagar Chaudhary. However, evidence of witnesses have also supported that there was altercation between Sagar and Rajendra Chaudhary with regard to collection of Durga Puja. However, claimed that occurrence took place in the courtyard. However, it is stated that father and mother has been injured, but the injury report was not called for. However, injury has not been proved in the case and father and mother of the defence emphatically stated a petition has been filed which was submitted in the court. However, from perusal of the record, it appears that a petition was filed only 1990 which was allowed by the court on 03. 03. 1990, but the appellant did not press it and there is nothing on the record to show the appellant pursue the matter, though, the case was disposed of in the year 1996 after five years of the filing of the petition. But the appellant did not pursue the same and hence there is no merit in the submission and prejudice when the appellant convicted and slumber was made. 16. However, taking into consideration the 9 evidence that witnesses have supported the prosecution case and P.W. 2, 4 and 6 are material witnesses who are also supported the prosecution case and the allegation of assault corroborated by the medical evidence of P.W. 6. Hence, I find and hold that prosecution has been able to prove the charges under Section 326 of Penal Code for alleged injury causing amputation of thumb. 17. However, taking into consideration the fact that occurrence is of the year 1984 and the appellant suffer a lot during trial and appeal and during trial the appellant remained in jail four about ten months from 10.11. 1984 to 12. 09. 1985 and from 01. 12. 1995 to 26. 08. 1996. Hence, the end of justice shall meet by sentencing the appellant for period already undergone and spent in jail during investigation and after conviction. Hence order of sentence is modified to the effect of the period which has already undergone and the appeal is allowed in part. Patna High Court The 13th July, 2011. NAFR/m.p. ( Gopal Prasad, J.)