Patna High Court
Chandradeep @ Chandeeo Saw & Ors vs State Of Bihar on 4 March, 2014
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.360 of 2002
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Against the judgment of conviction and order of sentence, dated 25.06.2002, passed
by Md. Quamrul Hoda, learned Presiding Officer, Fast Track Court No. 2,
Jehanabad, in Sessions Trial No. 602 of 1992/89 of 2001.
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1. Chandradeep @ Chandeep Sao, Son of Late Babuchand Prasad.
2. Bhim Prasad, Son of Chandradeep.
3. Shanker Prasad, Son of Chandradeep.
All are residents of Village and P.S. Sakurabad, District Jehanabad.
.... .... Appellants
Versus
The State of Bihar
.... .... Respondent
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Appearance :
For the Appellants : Mr. Paras Nath, Advocate
For the State : Smt. Abha Singh, APP
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CORAM: HONOURABLE MR. JUSTICE DHARNIDHAR JHA
ORAL JUDGMENT
Date: 04-03-2014 Three persons were tried by learned Presiding Officer, Fast Track Court No. 2, Jehanabad, in Sessions Trial No. 602 of 1992 after being charged with committing offences under Sections 307, 324 and 323 of the Indian Penal Code and by judgment dated 25.06.2002, while they were acquitted of the charge under Section 307 of the Indian Penal Code, two of them, namely, Chandradeep and Bhim Prasad were held guilty of committing offence under Section 324 of the Indian Penal Code while appellant Shanker Prasad was convicted of offence under Section 323 of the Indian Penal Code. When it came to inflicting sentence upon the convicts, the learned trial judge chose to direct appellant 2 Patna High Court CR. APP (SJ) No.360 of 2002 dt.04-03-2014 2/8 Chandradeep to execute a bond of being good conduct and behaviour as also to maintain peace for a period of two years in the sum of Rs. 10,000/- with two sureties of the like amount each whereas he directed appellants Bhim Prasad and Shanker Prasad to suffer rigorous imprisonment for six months and two months respectively for their respective convictions under Sections 324 and 323 of the Indian Penal Code. The above judgment of conviction and order of sentence have jointly been challenged by the three convicts by preferring the present appeal.
2. The basis for initiation of the prosecution was Ext. 1, the Fardbeyan of informant Ashok Prasad, P.W. 3 who was running a flour mill in his village. Allegation was that the three appellants came to his establishment and stated to him that he was influencing their customers which was refuted by the informant by stating to the accused persons that the customers were themselves coming to his business premises. That appears leading to some altercations and ultimately it was alleged that the three accused persons entered inside the shop and appellant Chandradeep who was armed with a Talwar, gave a blow with the weapon on the head of the informant causing injury to him. Appellant Bhim Prasad also gave a blow with the same weapon on the neck of the father of the informant who attempted to save himself by raising his right hand 3 Patna High Court CR. APP (SJ) No.360 of 2002 dt.04-03-2014 3/8 and received an injury in that process in his right hand. Appellant Shanker Prasad was alleged to have given a Lathi blow also on the right hand of the father of the informant.
It appears from the record that the informant and the father of the informant were treated by some doctor but what appears from the judgment itself is that neither the doctor was examined nor the injury report was brought on record. This was the reason that the learned trial judge acquitted the three appellants of charge under Section 307 of the Indian Penal Code.
3. The contention before this Court is that in absence of the examination of the doctor and non-production of the injury reports of the two injured the informant and his father there was complete lack of evidence which disproved the charges also under Sections 324 and 323 of the Indian Penal Code. Submission also was that the very manner of occurrence which was described orally on the record had not been supported by the medical evidence and as such the judgment of conviction and the order of sentence was not sustainable in absence of supporting evidence.
4. What appears from the submission and after considering the record is that the appeal is to turn on a very short question of law based on the facts of the case as to whether the conviction of appellants Chandradeep Sao and Bhim Prasad under 4 Patna High Court CR. APP (SJ) No.360 of 2002 dt.04-03-2014 4/8 Section 324 of the Indian Penal Code and that of Shanker Prasad under Section 323 of the Indian Penal Code could be sustainable in absence of the evidence of the doctor.
5. Even accepting the evidence to be true on its face value, what appears is that there was some incident which had occurred in the shop of the informant and as per the evidence, the informant and his father had been assaulted with a weapon like sword. Informant claimed being hit and receiving injury on his head whereas his father was hit on his right hand and to have received an injury there. Thus, the oral evidence may be there as regards the manner of assault and use of a weapon but that in itself may not be sufficient for sustaining a conviction in a case of non- production of the injury report if injury had been caused to the injured. If there had been no injury on the injured, then in that case there would not have been the question of correctness or otherwise of the judgment of conviction and the applicability of Section 324 of the Indian Penal Code. But when the case is very direct and clear alleging the use of a particular weapon, which had caused a particular injury, then the Court had no other option but to examine the facts of the case in the light of the legal provisions.
6. On a bare perusal of Section 324 or Section 323 of the Indian Penal Code, what may be found is that the act has to 5 Patna High Court CR. APP (SJ) No.360 of 2002 dt.04-03-2014 5/8 be „voluntary‟ and the act of causing hurt in case of an offence under Section 324 of the Indian Penal Code should be done by using a weapon which is an instrument either of shooting or of cutting or of stabbing, etc. as per the language of that particular provision of the Indian Penal Code. Word "voluntarily" gets defined by Section 39 of the Indian Penal Code as causing an effect by employing a means intending the effect to be caused by such employment of a means or with the necessary knowledge that by employing such means that particular effect shall be caused. Thus, what appears from Section 39 of the Indian Penal Code is that the „means‟ has also to be judged from the facts as regards the application of Sections 324 or 323 of the Indian Penal Code, if there is a case of „effect‟, that is to say, any injury being caused to the injured or the victim. This is the reason that in some of the decisions of this Court also, a particular view percolated on the above basis that though there might not be any necessity of the medical evidence being adduced in support of a charge under Section 323 of the Indian Penal Code, but if there is a case of a particular bodily injury being caused by the voluntary act of the accused, then in that case there could be the necessity for the Court to look to the medical evidence.
7. The other aspect regarding the constitution of an 6 Patna High Court CR. APP (SJ) No.360 of 2002 dt.04-03-2014 6/8 offence under Section 324 of the Indian Penal Code as may appear naturally coming out of that particular provision of the Penal Code is that mere causing an injury voluntarily may not constitute an offence under Section 324 of the Indian Penal Code. What is important is the „means‟ which appears in Section 39 of the Indian Penal Code which, in my opinion, naturally by its ordinary grammatical meaning, refers to the nature of the weapon which had been employed by the accused in inflicting the injuries, i.e., causing the „effect‟. Therefore, it is always a necessary part of judging that while evaluating a judgment of conviction as regards proof/disproof of a charge under Section 324 of the Indian Penal Code, the Court has to scrutinize the facts from that particular angle of definition as appears from the provision of Section 324 of the Indian Penal Code.
8. Here in the present case, undisputedly, the doctor was not examined. There was non-production of the medical report. As such, there was no evidence on record that there was any injury either on the person of the informant or on the person of his father and again, there was absence of the evidence that if there was any injury, it had been caused by use of a particular weapon. Thus, the necessary ingredient of Section 324 of the Indian Penal Code that the injuries to the informant or his father might have been 7 Patna High Court CR. APP (SJ) No.360 of 2002 dt.04-03-2014 7/8 caused by employing the means, i.e., the weapon a Talwar or a Sword was absent. As such, is the inherent absence of the evidence that the injury had really been caused by any such instrument which is spoken of by Section 324 of the Indian Penal Code.
9. In the above view of the evidence, this Court is of the view that conviction of Chandradeep Sao and Bhim Prasad under Section 324 of the Indian Penal Code was completely erroneous and against the very provisions of the Indian Penal Code as no offence under that particular provision was constituted.
10. I have already noted that in a case of conviction under Section 323 of the Indian Penal Code, there may not be any need of examination of a doctor or production of a medical evidence, but if the prosecution case is very definite that there was some injuries caused to some injured by voluntary act of an accused to cause the effect intentionally or knowingly by employing a means, then in that case for doing complete justice, it is always desirable that the opinion of the doctor is elicited by examining him. Appellant Shanker Prasad was alleged to have given a Lathi blow to the informant‟s father on his right hand. There is no dispute that he had also been examined by the doctor and injury certificate or report had also been issued in respect of his injuries. And again, the situation was the same on account of the 8 Patna High Court CR. APP (SJ) No.360 of 2002 dt.04-03-2014 8/8 non-examination of the doctor or non-production of the medical evidence. In that view, the conviction of Shanker Prasad under Section 323 of the Indian Penal Code also appears not sustainable.
11. In the result, applying the law to the facts of the case, what appears is that the judgment of conviction and the order of sentence, passed by the learned trial Court against the three appellants could not be sustained. The same are hereby set aside. The three appellants are acquitted of the charges. They are on bail. They shall stand discharged from the liabilities of their respective bonds.
(Dharnidhar Jha, J.) Sanjay/AFR __ |__| U |__| T