IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APP (SJ) No.1056 of 2008 SHASHI KUMAR GUPTA Versus STATE OF BIHAR Counsel for the appellant : Mrs. M. Chatterjee, Advocate Counsel for the State : Mr. Binod Kumar, A.P.P. 3 13.01.2009 I.A. No. 2311/2008 The aforesaid application has been preferred seeking condonation of delay in filing the present appeal. Counsel for the appellant-petitioner submits that the delay is about 67 days. It further appears that the two other appeals arising out of the same judgment have already been entertained and finally disposed of by this Hon'ble Court. Having regard to the said facts and the explanations set out in the application seeking condonation of delay, this Court grants the said application. The delay in filing the present appeal stands condoned. I.A. No. 2311/2008 stands disposed of. The appellant was charged along with several other co- accuseds for having committed offences punishable under sections 307/149 and under sections 379/149 Indian Penal Code. The learned Trial Court on appreciation of the evidence adduced on behalf of the prosecution came to the conclusion that the prosecution has been able to bring home the charge against all the accused (including the appellant herein) only under section 323 of Indian Penal Code. It further appears that thereafter the matter was posted for hearing on the point of sentence. The learned Trial Court having found that the present appellant has remained in custody for - 2 - about 6 months convicted him for the period already undergone by him. Similarly, other accused persons who were convicted under the impugned order were also directed to serve the sentence already undergone by them. Counsel for the appellant draws attention of this Court to the order dated 14.8.2008 passed in Cr. Appeal (S.J.) No. 745/2008 (Prabhakar Bharti & Diwakar Bharti Versus State of Bihar) and Cr. Appeal (S.J.) No. 741/2008 (Laliteshwar Prasad Singh Versus State of Bihar). It appears that the said two appeals (arising from the impugned judgment) were considered and disposed of at the admission stage itself. Counsel for the appellant submits that the case of the present appellant stands on the identical footings and she shall have no objection if the present appeal is also disposed of at the admission stage itself. This Court perused the order dated 14.8.2008 referred to above. While upholding the conviction, this Court in paragraph no. 6 of the order held as follows: “This Court thus find that the learned Trial Court has rightly altered charge of section 307 I.P.C. to section 327 I.P.C. and acquitted the appellants charged under section 379. In view of the aforesaid findings, this court does not find any reason to interfere with the judgment of conviction under section 323 I.P.C.. This court also finds that as the appellants have remained in custody for about five months, the learned trial court has rightly observed that period already undergone is sufficient to cover the sentence awarded under section 323 I.P.C.. As the conviction of appellants have been upheld only under section 323 I.P.C., this court observes that the same would stand without any prejudice and would not come in the way of getting any public and private employment.” - 3 - Counsel for the State opposed the prayer and highlighted only one aspect of the matter that the appellant is found to have assaulted the informant. He has, however, no objection to the appeal being finally disposed of. Counsel for the appellant submits that a bare perusal of the judgment under appeal would show that substantial part of the prosecution story has been disbelieved by the learned Trial Court and as such the appellant has not been convicted under those charges. Having considered the submissions and after going through the records, this Court disposes of the present appeal with the following observations/clarification(s): (i) The findings recorded at paragraph no. 6 of the order dated 14.8.2008 passed in Cr. Appeal (S.J.) No.. 745/2008 (Prabhakar Bharti & Diwakar Bharti Versus State of Bihar) and Cr. Appeal (S.J.) No. 741/2008 (Laliteshwar Prasad Singh Versus State of Bihar) shall also govern the case of the appellant. The conviction recorded under section 323 shall not prejudice the appellant in the matter of seeking any public and private employment. pkj ( Kishore K. Mandal, J )