CRIMINAL APPEAL No.303 OF 1993(S.J.) ------------ Against the judgment and order dated 24.8.1993 passed by Sri N.K. Lal, Additional Sessions Judge, I, Siwan in S.T. No. 128/85. ----------- 1.Rajendra Chaudhary 2.Chanika Choudhary alias Chandrika Chaudhary ------- Appellants. Versus State of Bihar - ---- Respondent. -------------- For the appellants : Mr. Anil Kumar Singh, Amicus Curiae. For the State : Mr. Lala Kailash Bihar Prasad, P.P. -------------- P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR S. K. Katriar, J. The two appellants, namely, Rajendra Chaudhary and Chanika Choudhary @ Chandrika Chaudhary, are aggrieved by the judgment dated 24.8.1993 passed by the learned Additional Sessions I, Siwan ( State Vrs. Rajendra Choudhary and Chandrika Choudhary), whereby they have been convicted under section 307 read with section 34 of the Indian Penal Code and have been ordered to undergo rigorous imprisonment for four years each, and also to pay a fine of Rs.1000/- and in default thereof to undergo further rigorous imprisonment for six months each. 2 2. None appears on behalf of the appellants. We have, therefore, called upon Mr. Anil Kumar Singh to assist the Court as Amicus Curiae . Heard Mr. Anil Kumar Singh and Mr. Lala Kailash Bihari Prasad, learned Public Prosecutor. 3. The Fardbeyan of the informant Ramswaroop Choudhary, the injured, was recorded at 4.30 P.M. on 3.11.1984 in Siwan Sadar Hospital, making allegations about the alleged incident of 3.11.1984 at about 10- 11.00 A.M. His statement was that he was standing at the door of Alim Mian. The accused Rajendra Choudhary had protested to him that while ploughing the land of the informant, the ox had trespassed into the land of the accused. The informant denied the allegation. Accused Rajendra asked the fellow accused, namely, Chandrika Choudhary, to fetch the dagger saying that the informant was to be killed. He thrust the dagger into the stomach of the informant. He fell down there lying injured. Blood also came out from his wound. His family members removed him to the Siwan Hospital for treatment. The place of occurrence related to P.S. Jamo Bazar as mentioned above. The Fardbeyan (Ext.2) was recorded by the Siwan Police at Siwan Sadar Hospital. The Officer-Incharge Jamo Bazar got information about the occurrence on the next day, i.e.4.11.1984 from the Chowkidar of the place of occurrence village- Chhap 3 Kanhouli. He had accordingly recorded Sanha No.43 at 8.00 A.M. He visited Siwan Sadar Hospital at 9.45. A.M. He found the informant in unconscious stage because his wounds had been operated upon the previous night. He thereafter received the Fardbeyan from Siwan police Station and recorded the formal F.I.R.(Ext.1), and also formally proved the Fardbeyan recorded by Siwan Police as Ext.2 These facts appear from the statement of P.W.7, Dinesh Prasad Verma, the I.O. of this case. It further transpires that P.W.9 (Premchand Gupta), the then Judicial Magistrate had also recorded the statement of the informant as dying declaration on 3.11.1984 at 4.50 A.M. in Siwan Sadar Hospital as per the orders of the Chief Judicial Magistrate. The dying declaration was marked as Ext.4. The injured did not die in the alleged incident. His dying declaration can simply be treated as his previous statement. He had stated that following some dispute regarding trespass of the ox of the informant into the land of the accused, the accused Chandrika handed over the dagger to accused, Rajendra when he had asked for the same and thereafter accused Rajendra had inflicted the dagger blow. 4. After conclusion of investigation, chare-sheet was submitted. Cognizance was taken under section 307 read with section 34 of the Indian Penal Code and they were directed to stand their trial. 4 5. The prosecution examined the following witnesses to prove its case: (i) P.W.1 is Raghuni Pandit (ii) P.W.2 is Gharbharan Kumhar (iii P.W.3 is Kuar Devi (iv) P.W.4 is Jagan Choudhary (v) P.W.5 is Sheoji Choudhary (vi) P.W.6 is Sadique Mian (vii)P.W.7 is Dinesh Prasad Verma and is ther Inveswtigating Officer. viii) P.W.8 is Nawal Kishore and is the Medical Officer who has examined and treated the injuries of the informant, the victim. (ix) P.W. 9 is Prem Chandra Gupta. 6. P.W.9, Prem Chandra Gupta was posted as the then Judicial Magistrate at Siwan on 3.11.1984, and had recorded dying declaration of the present informant and has been marked Ext.4, but he luckily survived the attack. However, he could not be examined because he was murdered at the hands of the present accused persons in a different incident before he could depose in the present case. The following documents were exhibited at the instance of the prosecution: (a) Exhibit-1 Formal F.I.R. (b) Exhibit-2-Fardbeyan (c) Exhibit-3- Injury report proved by P.W.8. (d) Exhibit-4- Dying declaration of the 5 Present informant recorded by P.W.9. (e) Exhibit-5- Copy of the judgment dated 19.7.1989 passed by the learned 2nd Additional Sessions Judge, Siwan in S.T.No138 of 1988( State Vrs. Chandrika Choudhary, Rajendra Choudhar and Duli Choudhary). 7. The defence did not examine any witness. Hoever, he brought on record Ext.A which is certified copy of the judgment in G.R.2242/84, Tr. No. 315/89. 8. The accused persons set up the defence that they have been falsely implicated and the present F.I.R. was lodged as a counter blast to the said case (Ext.A). They have in their statements under section 313 of the Code of Criminal Procedure pleaded innocence and claimed to be tried. 9. The learned trial court held that Rajendra Choudhary had delivered a Chura blow in the abdomen of the informant, and was assisted by Chandrika Choudhary. He has further held that the motive for the occurrence was that the accused persons quarrelled on account of trampling of paddy plants by the ox of the informant. He has further found that the injured is a close agnate of the accused, and the incident was the outcome of the incident while ploughing the adjacent land. In view of 6 these findings, they have been convicted in the aforesaid manner. 10. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to me that the prosecution witnesses have fully supported the occurrence. The accused persons were enraged on account of the trampling of paddy plants by the ox of the informant while ploughing the adjacent land. They, therefore, made a plan to kill the informant. Chandrika Choudahry provided Chura to Rajendra Choudhary and thrust it in the stomach of the informant leading to serious injuries. He was taken to Siwan Sadar Hospital in a critical condition. He was examined and treated by P.W.8 who found the following injuries on his body:- “One incised wound 2½”x 1/2”x abdominal cavity-deep with “omentum” out of the wound in umbilical area on left side. On opening of the abdominal cavity by Doctor, M. Ahmad, in his presence it was found that the abdominal cavity was filled with blood and there were 3 incised wounds which were described as follows:- (A) One incised wound- ½”x1/4” x its depth in “mesentery” with profuse bleeding; (B) one incised wound 1”x1/4”x wall of stomach (anterior) near greater curvature of stomach. 7 (C) One incised wound ¼”x1/8”x wall thickness opposite to wound No.3 on posterior wall of stomach near greater curvature.” 11. P.W.8 has opined that the injuries were grievous as well as dangerous to life. The informant unfortunately survived the injuries and escaped death. The condition of the injured was so critical that P.W.9, the then Judicial Magistrate, posted at Siwan, was brought to record the dying declaration (Ext.4). In view of the materials on record, I am of the view that the appellants are guilty of causing grievous injuries to the informant. The prosecution has also been able to prove the motive of the occurrence which is indicated hereinabove. 12. This takes us on to the question of sentence to be inflicted on the appellants. Ext. 5 is the judgment passed in S.T. No138/88, whereby both the appellants were convicted for the murder of the present informant under section 302 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life. The present appellants were in custody in the present trial for the following periods: (i) Appellant no.1 was in custody from 24.8.1993 to 27.9.1993 i.e.35 days. (ii) Appellant no.2 was in custody from 24.8.1993 to 25.1.1994 i.e.127 days. 8 13. In the facts and circumstances of this case, we direct that interest of justice would be served if the sentence is reduced to the period already undergone by the appellants. However, the appellants are directed to pay fine of Rs.1,000/- each and in default of payment of fine to undergo rigorous imprisonment for six months each. 17. In the result, this appeal is dismissed with the modification in the sentences indicated above. ( Sudhir Kumar Katriar, J.) High Court Patna, Dated 4th September, 2008. Vinay/ N.A.F.R.