1 IN THE HIGH COURT OF JUDICATURE AT PATNA - - - - Criminal Appeal (SJ) No.570 of 2007 - - - - Against judgment of conviction dated 4.6.2007 and order of sentence dated 6.6.2007, passed by the Additional Sessions Judge-cum-Presiding Officer, Fast Track Court IV, Patna, in Sessions Trial Case No. 38 of 1978. ===================================================== 1. Ramadhar Singh 2. Vakil Singh, both sons of late Badri Singh, resident of Village Sheogarh, Police Station Bikram, District Patna .... .... Appellants Versus The State Of Bihar .... .... Respondent ===================================================== Appearance : For the Appellants : Shri Ajay Kumar Thakur, Advocate For the Respondent : Shri Ajay Mishra, A.P.P.. ===================================================== CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA ORAL JUDGMENT (Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA) - - - - This appeal is directed against judgment dated 4.6.2007 rendered by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court IV, Patna, in Sessions Trial No. 38 of 1978, by which the two appellants were held guilty of committing offence under Section 307/34 of the Indian Penal Code and by order of sentence dated 6.6.2007 each of them was directed to suffer rigorous imprisonment for ten years as also to pay a fine of Rs. 2,000/-, else, to suffer simple imprisonment for two months. 2. Shrot facts leading to the trial and conviction of the appellants may be stated. The informant(P.W.3) stated that when he was going along with his Phua( father’s sister) to Patna, the two appellants, who were sitting at their Dalan started abusing the informant’s Phua. The informant objected to the uncalled for behaviour of the appellants upon which the 2 father of the two appellants, namely, Badri Singh( since dead) came and remonstrated the appellants to teach the informant a lesson. Appellant Vakil Singh is said to have inflicted a farsa blow on the head of Radhika Devi( P.W.4) and when the informant attempted to save her Phua, it was appellant Ramadhar Singh who is said to have given a lathi blow on his head. Appellant Vakil Singh is also said to have given a blow with the lathi part of farsa to the informant and is further alleged to have given another blow of farsa on the head of P.W. 4 Radhika Devi. It is stated that the informant was carrying an attaché case and due to assault which is said to have been given on his hand the box fell down on the ground and that was picked up by the deceased accused Badri Singh who decamped with it. 3. The report(Ext.1) was lodged by the informant, on the basis of which the F.I.R. of the case was drawn up, ensuing into the investigation of the case which ended in submission of the charge sheet sending the two appellants and deceased accused Badri Singh up for trial and that ended in the impugned judgment. As may appear from the trial court’s records the proceeding against accused Badri Singh was dropped by order dated 6.3.2000 due to his death. 4. During the course of trial, as many as eight witnesses were examined. Taluka Singh( P.W. 1), Jagdish Singh( P.W2), Umesh Kumar (P.W. 3), the informant and Radhika Devi( P.W.4), the injured supported the allegations as were contained in the F.I.R. by P.W. 3. They consistently stated that when the informant and his Phua(P.W.4) had come out of their house for going to Patna, the two appellants who were sitting at their Dalan started abusing the lady which was objected to by the 3 informant and that attracted the deceased accused Badri Singh to the scene of occurrence who remonstrated the two appellants to teach the informant a lesson upon which it was appellant Vakil Singh who dealt a farsa blow on the head of P.W. 4. The informant( P.W. 3) when interved to save his Phua, was given a lathi blow by appellant Ramadhar Singh as also a blow by lathi part of farsa by Vakil Singh and a further farsa blow by appellant Vakil Singh on P.W. 4. Thus, the consistency of evidence and the cross examination of the witnesses make no dent in the veracity of their evidence. It appears established that the assault had really taken place on P.W. 4. 5. So far as the claim of P.W. 3 Umesh Kumar of being given two blows with lathi- one by appellant Ramadhar Singh and other by appellant Vakil Singh is concerned, this Court has some reservations in acting on that part of the evidence of witnesses, not because they are telling lies but because when they had stated that the informant had been treated by the Doctor, then the ordinary expectation of the court was that the Doctor who had examined the injured and issued the injury report in respect of the injuries which might have occurred due to administration of two blows upon P.W. 3 ought to have been examined. That not being the position, this Court has some doubt in upholding the story as regards the assault on the informant. 6. So far as the injuries on P.W. 4 are concerned, it is not disputed that the Doctor who had initially examined her was not produced and the Investigating Officer had also not been produced for his evidence. However, the injured P.W. 4 appears brought to P.M.C.H. for treatment and P.W. 8 who had treated her there deposed that he had found one 4 stitched wound over the front of right parietal region of P.W. 4 measuring 3” in length. Besides, the Doctor had found two other injuries in the form of multiple small abrasions over the forehead and a swelling, bluish in colour on both eye lids of the right eye of P.W. 4. P.W. 8 was rendering an opinion that the X-Ray report indicated as if parietal bone had been fractured but in spite of opining the nature of the injury to be grievous, was further of the opinion that the same was caused by hard and blunt substance. Thus, on account of lack of evidence of the initial Doctor who had treated P.W. 4 and had found a stitched wound, this Court finds itself in a very difficult position to come to any conclusion as to what could be the weapon which could have been used for causing injury no.1 which was found by the Doctor, P.W. 8 gave his opinion that injury was grievous and the weapon which had caused it was hard and blunt substance. In that view of the matter, the conviction under Section 307/34 of the Indian Penal Code may not be fit to be sustained in law for many reasons and, specially, for one reason that it could not be held with certainty that P.W. 4 had received injury on account of being given a blow by a weapon like farsa. 7. After discussing the evidence of the witnesses as also the Doctor what appears to me is that the conviction of appellant Ramadhar Singh under Section 307/34 of the Indian Penal Code could not be sustained. In fact, his conviction for any other offence appears not called for in view of the nature and position of evidence which I have just discussed As such, appellant Ramadhar Singh is acquitted by being given benefit of doubt by setting aside judgment of conviction and order of sentence passed against him. Appellant Ramadhar Singh is on bail. He is discharged from the 5 liability of his bond. His appeal stands allowed. 8. So far as appellant Vakil Singh is concerned, after having considered the oral evidence in the light of the evidence of the Doctor that the injury caused by him was grievous, his conviction under Section 307/34 of the Indian Penal Code may also not be sustainable in law, rather, he appears guilty of an offence under Section 325 of the Indian Penal Code. Appellant Vakil Singh has remained in custody since 4.6.2007 to 26.9.2008. In addition to that, what appears to this Court is that the occurrence had taken place as far back as in the year 1976, i.e., about thirty five years ago and he was aged fifty years on 22.4.2004 when he was examined under Section 313 Cr. P.C. and that brings the age of that particular appellant over sixty years. Considering this, what appears to this Court just and proper is to direct that this appellant could be convicted and sentenced to rigorous imprisonment for a term he has spent in jail till 26.9.2008, i.e, for about sixteen months which he has already undergone. 9. With the above modification in the order of sentence of appellant Vakil Singh, his appeal is dismissed. 10. In the result, this appeal is partly allowed. ( Dharnidhar Jha, J.) Patna High Court, The 8th November, 2011. Kanth/N.A.F.R.