IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.173 of 1998 Against the judgment and order of conviction and sentence dated 17.4.1998 passed by Shri V.K. Poddar, Additional District and Sessions Judge VIII, Patna in S.T. No. 64 of 1992. =========================================================== Md. Ekwal Ahmand, son of Md. Bashir, resident of – Lal Bahadur Shashtri Nagar, Police station – Gardanibagh, Shashtri Nagar, District - Patna .... .... Appellant Versus State Of Bihar .... .... Respondent =========================================================== Appearance : For the Appellant/s : Sarvshri Shrinandan Prasad Singh, Ashok Kumar, Raghvendra Kumar & Manish Kumar, Advocates For the Respondent/s : Shri Ajay Mishra, APP =========================================================== PRESENT THE HONOURABLE SHRI JUSTICE DHARNIDHAR JHA ---------- Dharnidhar Jha, J. The present appeal has been preferred by the solitary appellant who was tried by the learned Additional Sessions Judge VIII, Patna in S.T. no. 64 of 1992 after being charged with committing offences under sections 307/34 as also section 307 IPC. By judgment dated 17.4.1998, the appellant was acquitted of the charges under sections 307 or sections 307/34 IPC but was held guilty of committing offence under section 324 IPC in the alternative and was directed to suffer RI for one year. 2. The prosecution case is contained in the fardbeyan of P.W. 5 Lal Babu Singh, a Class IV employee of the Bihar Legislative Council, who stated that he was shifting his household effects from the official quarter no. 111, Shashtri Nagar, Patna into the house of one Ramanand Yadav and after having transported all his belongings, he was going to his new tenanted house on foot and when he had 2 reached a particular place in Shashtri Nagar, two boys, namely, the present appellant and his brother caught hold of the informant and this appellant gave blows on his person with Chhura. The blows fell on belly, left scapula and back of neck as also on his left hand. The informant bled profusely and fell down on the ground where he was brought by one Jha Ji by rickshaw into the emergency ward of PMCH where he was admitted for treatment and where he gave his fardbeyan (Ext.3). 3. So far as the reason for the occurrence was concerned, it was stated by P.W. 5 that on 8.1.1988, i.e., the previous day he was sitting in one medicine shop of his friend who asked him to bring some medicines for one of the purchasers from a neighbouring shop and when he was coming after purchasing the required medicines, this appellant wanted to know as to where did the informant live, to which the informant replied that the appellant had nothing to do with it and that prompted brandishing a chhura by the appellant and the situation could be averted by the intervention of the companions of the appellant and others. The informant stated that on that very account, he had been brutalized by the appellant badly. 4. The I.O. was not examined nor the doctor, who attended first on the injured P.W. 5 but, it appears from the discharge slips, like, Ext. 2 and 2/1 that the injury which was caused to the informant P.W. 5 had ultimately resulted in aneurysm with radial nerve injury which was operated upon by Army Medical Hospital and the patient P.W. 5 was advised physiotherapy and some medicines. While admitting the injured P.W. 5 Dr. Lt. R.K. Singh, who was issuing the admission slip (Ext.2) was noting as follows: “An old case of stab injury over posterior aspect of Rt. Upper arm. He developed a swelling on axilla after it. He was operated in March. After the operation he has developed paralysis of biceps, triceps and flexons and extension of forearm. Brachial plexus injury.” 3 5. Another discharge slip was marked „X‟ for identification, but in my view it was wrong because discharge slips are known to be issued in compliance to a rule in discharge of public duties by a public servant, like, the doctor who is discharging his duties in the hospital. This discharge slip was issued by Rajendra Medical College Hospital, Ranchi where the informant was referred from PMCH and that also indicates that he sustained some injuries on left brachial artery and there was a swelling on his left axilla with weakness in extension of his forearm. The informant was referred to the surgical ward of RMCH where he was operated upon as may appear from admission slip (Ext. 2). Thus, even if the doctor was not examined, who was dead as per paragraph 18 of the judgment, there was sufficient material by way of medical report to indicate that P.W. 5 had been stabbed in such a way as to be virtually rendered a handicap. 6. The evidence of witnesses comprised of P.W. 1 Pyare Ram, who was declared hostile along with P.W. 2 Gauri Shankar Mandal, who also was not supporting the prosecution story. So far as P.W. 3 Ram Pravesh Prasad was concerned, he was stating that the informant was stabbed by some one and he saw it, but he refused to identify the appellant. However, he stated that the man who was stabbed was lying on the ground and was bleeding. So, there was an incident of stabbing in which some one had been stabbed. This much is established even by the evidence of the hostile witness P.W. 3. He was partially declared hostile only on account of not identifying the assailant of P.W. 5. P.W. 4 Ram Babu Singh, who is the full brother of injured P.W. 5, was supporting his brother on all aspects of the case by stating that this appellant and his brother caught hold of P.W. 5 and thereafter this appellant gave a number of blows with Chhura on different vital parts of P.W. 5, as a result of which he bled profusely and was, ultimately, shifted to 4 PMCH. That P.W. 5 was shifted to hospital is indicated by the fardbeyan itself, which was recorded by a police officer in discharge of his duty cast upon him by the rules of Bihar Police Manual, 1978. That particular document indicates that when the statement was recorded P.W. 5 was lying in the emergency ward of PMCH and was being treated. The evidence of P.W. 5, besides stating the story as to how he was stabbed and injured, also states that on account of need of being treated by a neurosurgeon he was referred from PMCH to RMCH, Ranchi where he was admitted and treated. He produced the documents, like, the discharge slip issued by RMCH, Ranchi and those two documents which were issued by the Army Medical College Hospital. Thus, I find from the evidence of P.Ws. 3, 4 and 5 that there is consistent support to the manner of occurrence as also there is clarity as regards identification of the assailant of P.W. 5. 7. I have already indicated that the impugned judgment itself indicates by virtue of paragraph 18 that the doctor who had attended initially on the injured in PMCH was dead and as such, his evidence could not be recorded. There is no dispute that the informant was assaulted and injuries were caused to him by giving blows with chhura. The relevant records by way of discharge slips and the admission slip clearly support the evidence of the informant that he was assaulted with chhura and was injured. 8. The learned trial judge acquitted the appellants in absence of the evidence of the doctor. In my considered view, the acquittal of the appellant under section 307 or 307/34 IPC was not justified inasmuch as the seriousness of the assault and the resultant injury could have been gathered by him from bare perusal of the two documents (Ext. 2 and 2/1) leading to an inference that the appellant intended to cause the death of P.W. 5 and further knew the consequences of giving such serious blows so as to cause such serious injuries under the circumstances, 5 when P.W. 5 was moving on the road unaware of what was to befall to him and that too when he was quite defenceless. Besides, the evidence was sufficiently indicating as to how he was injured requiring treatment by the specialized neurosurgeon. But, now when the judgment of acquittal of the appellant under section 307/34 or section 307 IPC was passed as back as on 17th April, 1998 and in absence of any notice for reversal of the findings and enhancement of sentence, I feel it futile to go into those details. Under the facts, of the case, the conviction of the appellant under section 324 IPC could not be disturbed as it was appropriately recorded. In fact, the appellant has benefited from the magnanimity of the trial judge which could not have been shown to him in such serious a case. 9. The appeal appears merit-less. It is accordingly, dismissed. Let the appellant, who is on bail, be arrested and remanded to custody for serving out the remaining sentence after bail bonds being cancelled. (Dharnidhar Jha, J.) Patna High Court, The 25th November, 2011, AFR/Anil/