Criminal Appeal (SJ) No.349 OF 1994 In the matter of an appeal under Sections 374(2) and 389 of the Code of Criminal Procedure ********** Abdul Latif , son of Nazar Mohammad, resident of village Baghmara, P.S. Azam Nagar, Dist Katihar. ------------------ Appellant Versus STATE OF BIHAR ------------------------- Respondent For the Appellant :- Mr. N.A. Shamsi, Adv. For the State :- Mr. R.B. Roy, A.P.P *********** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ************* Anjana Prakash, J. The appellant has been convicted under Section 326 of the Indian Penal Code and sentenced to R.I for five years by a judgment dated 19.8.1994 by 2nd Additional Sessions Judge, Katihar in Sessions Trial No. 4 of 1993. The case of the prosecution is that on 24.6.1992 on account of a theft with regard to fishes from his pond a vigilance was kept there and when appellant attempted to commit theft, he was chased and caught but to extricate himself caused knife blow on the back of the informant. The police after investigation submitted charge sheet under Section 307 of the Indian Penal Code and appellant was also charged under the same offence along with a co-accused but he was acquitted of the charges whereas the appellant was convicted as mentioned above. The prosecution to prove its case examined 9 witnesses out of whom P.W. 8 is the Doctor and P.W. 9 is the Investigating Officer and P.W. 3, 4 and 5 are tendered whereas P.W. 6 and 7 2 are formal witnesses P.W. 2 is the informant and P.W. 1 is not an eye witnesses of the actual assault. The defense of the appellant was a total denial and that he was caught on suspicion. There is total paucity of any evidence with regard to theft and therefore the appellant was acquitted of the charge under Section 379 and 342 of the Indian Penal Code. However, the doctor P.W. 8 found three injuries on the back of injured P.W. 2, and such injuries were opined the grievous in nature. P.W. 2 the informant has fully supported this case that when the appellant was caught after a chase he resorted to giving knife blows on his person. P.W. 3 and P.W. 6 have corroborated the fact that the appellant was caught at spot and therefore I am inclined to accept the prosecution case as having been proved beyond all reasonable doubt. In view of such, the appeal is dismissed. However, it appears that the appellant has remained in custody for a period of 2 years so the period of sentence is modified to the extent which the appellant had already undergone. In addition the appellant (if alive) shall pay a fine of Rs. 2000/- to the victim/family members within 8 weeks from the receipt of notice by the trial Court and in case he fails to do so, shall undergo further imprisonment of six months. The appeal is dismissed. Patna High Court Patna/ Dated, the 4th April, 2011. NAFR/Prakash/- ( Anjana Prakah , J.) 3