Hari Kishore Choudhary & Anr. vs State Of Bihar

Both appeals are being taken up together as they arise out of common judgment of conviction and order of sentence.

Heard Mr. Saket Gupta, learned counsel appearing for the appellants, Ms. Anita Kumari Singh, learned APP for the State and Mr. Pankaj Kumar Sinha, learned counsel for the informant.

The present appeals have been preferred against the judgment of conviction and order of sentence dated 29.01.2004 passed by learned Additional Sessions Judge, Fast Track Court No.1, Purnea, whereby appellant no.1, namely Hari Kishore Choudhary, in Cr. Appeal (SJ) No.96 of 2004, has been convicted under Section 325 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and sentenced to undergo rigorous imprisonment for two years. Further, appellant no.2, namely, Nand Kishore Choudhary, in Cr. Appeal (SJ) No.96 of 2004, has been convicted under Sections 323 of the IPC and sentenced to undergo rigorous imprisonment six months. In Cr. Appeal (SJ) No.120 of 2004, both the appellants have been convicted under Section 307 of the IPC and sentenced to undergo rigorous imprisonment for seven years.

The short facts of the case, based upon the written report of the informant, Taranand Chaudhary (PW-7), are that on 06.06.1993, appellants along with co-accused persons were digging pits for erecting/fixing wooden posts with intention to forcibly encroach upon the road. In the meantime, when the informant objected them from doing so, the appellant, namely, Deo Kishore Chaudhary abused and threatened him of dire consequences. It is further alleged that appellant, namely, Nand Kishore Choudhary assaulted the informant’s nephew with lathi and other appellants, namely, Hari Kishore Choudhary and Braj Kishore Chaudhary, assaulted the informant with farsa, due to which informant sustained head injury. It is also alleged that appellants, armed with farsa and lathi assaulted the informant’s brother, namely, Vinodanand Chaudhary, due to which he fell down. The accused persons also assaulted informant’s brother, namely, Shyamanand Choudhary with fists and slaps.

On the basis of the afore-mentioned written report of the informant (PW-7), K.Nagar P.S. Case No.147 of 1993 was instituted for the offences under Sections 147, 148, 149, 323, 324, 326, 307 and 504 of the IPC. After investigation, charge-sheet was submitted on 20.09.1993 under the afore-mentioned Sections against the accused persons including the present appellants, whereupon cognizance was taken on 25.09.1993 of the offences and the case was committed to the Court of Sessions for trial and was numbered as Sessions Trial No.370 of 1994. Charges were framed by learned Trial Court against the accused persons under Sections 307, 148 and 149 of the IPC by the order dated 05.03.1997.

During the course of trial, the prosecution has examined altogether nine-witnesses and exhibited several documents, while the defence has also examined three witnesses and has also adduced documentary evidence. The description of the prosecution and the defence witnesses, as also the documents exhibited on their behalf are mentioned hereinbelow in tabular form:

The learned Trial Court upon appreciation and scrutiny of the evidence adduced during the trial, found two of the appellants Braj Kishore Chaudhary and Dev Kishore Chaudhary guilty under Section 307 of the IPC, while other two appellants Hari Kishore Choudhary, guilty under Section 325 of IPC and Nand Kishore Choudhary guilty under Section 323 of IPC as has been narrated in the foregoing paragraphs.

Mr. Saket Gupta, learned counsel appearing for the appellants has submitted that the prosecution has failed to establish its case beyond all reasonable doubts. The witnesses examined on behalf of the prosecution, although some of them being shown as injured witnesses, have not come up with the true version of the case and the case of the prosecution suffers from several infirmities. It has been submitted that the background of the present case is that on the same day, another FIR bearing K.Nagar P.S. Case No.151 of 1993 was lodged by the appellant Dev Kishore Chaudhary reporting an incident dated 07.06.1993 and the fardbeyan of which was recorded on the same date at K.Hat Police Station, Purnea which led to the lodging of the formal FIR in K. Nagar Police Station on 10.06.1993. It is submitted that based on the said FIR No.151 of 1993, Trial Case No.270 of 1998 commenced and after full fledged analysis of evidence, by way of judgment and order dated 01.06.1998, the present prosecution side was convicted for an offence under Sections 147 and 323 of the IPC and the said conviction stood upheld by the Sessions Judge in Criminal Appeal No. 23 of 1998 and Criminal Revision No.699 of 1998 as against the said order of criminal appeal also stood dismissed.

Further, submission on behalf of the appellants is that the prosecution has not been able to come out with the correct genesis and the manner of occurrence and further the place of occurrence also does not stand proved in view of the fact that no objective evidence has been collected by the Investigating Officer in order to establish the same. It has also been submitted that there are material contradictions in the ocular testimony of the prosecution witnesses, who are all related and interested. As such, extreme caution and circumspection ought to be exercised in analysis of their evidence. Learned counsel has also submitted that the only witness, who is independent in nature, is PW-5 and he has not supported the case of the prosecution and has rather been declared hostile. On such grounds, it is contended that the credibility of the witnesses are extremely doubtful and are not worthy of reliance.

Further, submissions made on behalf of the appellants is that there is an irreconcilable conflict between medical evidence and the oral testimony of the witnesses and the medical evidence materially undermines important portion of the ocular version of the witness. In order to substantiate the said submission, it has been pointed out that while there is an allegation of assaulting PW-3, by means of lathi by appellant Nand Kishore Choudhary, he has sustained a simple injury caused by hard and blunt substance and the medical officer (PW-8) has also stated in his cross-examination that the said injury could also have been caused by fall. Further, so far as injuries of the informant (PW-7) is concerned, as against the allegation of assault by two persons by means of farsa i.e. appellant Braj Kishore Chaudhary and Dev Kishore Chaudhary and one Gautam Kishore Chaudhary by means of lathi, only one injury was found on his person which was stated to be grievous. Thus, the informant suffered a single injury and there was no repetition of blow. The injuries of PW-6 have also been referred to, as he having suffered two injuries, although the allegation once again was that he was assaulted by three accused persons.

Learned counsel raised the contention that there is neither any X-ray report nor any X-ray plate on record and the doctor (PW-8), in his evidence, has stated that no X-ray was done on the injury of Taranand Chaudhary (informant/PW-7) and he had not given any instruction for X-ray in respect of the informant. Doctor has further stated that the X-ray report received by him was not within his memory. Thus, on the basis of absence of X-ray report and X-ray plate, the nature of injury could not be held to be conclusively ascertained.

It has also been argued on behalf of the appellants that the case of the prosecution would also fail on account of the fact that there is no mention whatsoever of the counter version of the case and there is no explanation of the injuries suffered by the accused persons. Reference has been made in this regard to the cases of Mohar Rai vs. State of Bihar, reported in AIR 1968 SC 1281, Lakshmi Singh and Anr. vs. State of Bihar, reported in (1976) 4 SC 394, in order to emphatically contend that in cases where the injuries suffered by the accused persons have not been explained by the prosecution, it is suggestive of suppression of the genesis of the occurrence and may probabilise the defence version. The inference that could be drawn would be that prosecution has not come up with true version of the case, thereby casting doubt on the prosecution version.

Further, an argument has also been made with respect to the perversity of the judgment of conviction by stating that no reasons have been accorded by the learned Trial Court as to what led the learned Court to come to a conclusive finding that the prosecution witnesses were reliable.

Lastly, it has been submitted that keeping in view the petty nature of dispute which led to altercation between the parties and also considering the fact that both the parties were co-sharers with an admitted land dispute, no offence under Section 307 of the IPC would be made out as against the appellants, as not intention to cause the death of the any of the injured persons could be imputed or inferred in the facts and circumstances. The conviction under Section 325 of the IPC has also been challenged on the ground of absence of the X-ray report and the X-ray plate.

Ms. Anita Kumari Singh, learned APP for the State and Mr. Pankaj Kumar Sinha, learned counsel for the informant have submitted that the present FIR was lodged with all promptness, as such, there is no reason to doubt the contents thereof. It has also been submitted that there are, as many as, six eye-witnesses of the occurrence and three of them were injured, to the extent that their injuries were examined by the Medical Officer (PW-8), who has even found grievous injuries on PW-6 and PW-7.

Further submission relates to the fact that the credibility and the authenticity of the statements of these prosecution witnesses cannot be taken away only on the ground of them being related to the informant and as a matter of fact, some of these witnesses are injured witnesses and their evidence as such has greater evidentiary value, which cannot be discarded unless compelling reasons exist. The prosecution has thus been able to bring home the charges by establishing its case beyond all reasonable doubts through the evidence of the prosecution, both oral and documentary.

I have perused the entire evidence on record besides hearing the learned counsels for the parties.

It appears from the analysis of evidence that six witnesses, being PWs-1, 2, 3, 4, 6 and 7 (informant himself), have all supported the case of the prosecution to the extent of a dispute between the parties leading to the assault caused by the accused persons, including these appellants, on account of which, injuries were caused. It is true that while PWs-3, 4 and 6 are very close relatives of the informant (PW-7), PW-2, happens to be the servant of the informant and he happens to be a chance witness. However, only by virtue of them being related to the informant does not make their evidence completely unreliable or fit to be discarded, especially in view of the fact that a medical officer has also been examined, being PW-8, who has examined the injuries of the injured persons, finding a few grievous injuries.

In the case of Abdul Sayeed vs. State of Madhya Pradesh, reported in (2010) 10 SC 259, it had been held that the statement of an injured witness cannot be lightly brushed aside rather the testimony of an injured witness is accorded special status as injury to the witness is an in-built guarantee of his presence at the scene of crime. As such, the testimony of such a witness definitely assumes significance. However, it is also a fact that before accepting the testimony of injured eye-witness the Court also has to be satisfied that the witness is truthful and does not have reasons to falsely implicate the accused, in the background of a serious animosity between the parties. In case of serious discrepancies that may arise in the evidence, the Courts need to be cautious and circumspect.

Moreover, the very existence of case and counter case (Ext-A) between parties is indicative of the fact that some occurrence of an altercation, be it in the nature of free fight or otherwise, at the place of occurrence, has taken place. However, the Investigating Officer (PW-9) has failed to produce any objective evidence in the form of any weapon of assault or blood-stained soil, clothes etc., on record and as a matter of fact, no seizure list at all has been prepared by the said Investigating Officer throwing a serious doubt on the manner of the occurrence and is also indicative of serious lapses in the investigation.

The Investigating Officer has also failed to examine independent witnesses to the said incident and as matter of fact, the only independent witness PW-5 has not supported the prosecution case during the trial. Maintaining an accepting the fact that the incident of altercation between the parties had taken place, that too in view of a petty dispute, this Court would not doubt the fact that some incident of assault had taken place between the parties which stands supported by the witnesses of the prosecution and the narration of facts in the counter case, but the non-explanation of injuries on the accused persons, which stands conclusively established by the conviction of the members of the prosecution side, leads to an irresistible inference that the prosecution has not come forward with a true genesis and picture of the occurrence. However, the entire prosecution case cannot be demolished on this score, especially when such injuries are not very serious in nature.

Now, the question which falls for consideration is as to whether the conviction under Section 307 of the appellants of Cr. Appeal (SJ) No.120 of 2004 and under Section 325 of IPC of appellant no.1, namely, Hari Kishore Choudhary, of Cr. Appeal (SJ) No.96 of 2004 could be maintained or not.

The requirement of Section 307 of the IPC has been laid down in several judicial pronouncements including in the case of State of Maharashtra v. Kashirao & Ors^. reported in (2003) 10 SCC 434, and for establishing the same the following ingredients would be required:

ii) the act must be capable of causing death or should be done with the intent to cause death,

iii) the action taken by the accused should be imminently dangerous and no excuse should justify the risk of death of serious injury.

In the present case the very fact that so far as the informant is concerned, there has been no repetition of blow, it cannot be said that there could have been any imminent intention to cause the death of the informant and further even with regard to the assault upon PW-6, taking a comprehensive view of the entire background of the case, an offence under Section 307 of the IPC does not seem to be made out. The existence of a petty dispute leading to case and counter case with injuries caused on both sides, the parties being co-sharers with an admitted land dispute, verbal altercation escalating into a free-fight between the parties, are all facts lending support to the conclusion that an offence under Section 307 of the IPC would not be made out in the facts and circumstances of the case.

An additional fact which further dissuades this Court to maintain the conviction under Section 307 of IPC or under Section 325 of the IPC, would be the fact that there is neither any X-ray report nor any X-ray plate on record and the failure of the prosecution to bring the same on record has a devastating effect on its case with regard to actual injuries sustained by the injured persons. The nature of injuries, as has been ascertained by the doctor (PW-8), does not find strength and support from any X-ray report although in his evidence at one place the doctor has stated that with regard to the informant, the X-ray report is not in his memory, but on the other point he has also stated that he had prepared the report in two hours after the X-ray was received. In view of this statement of the doctor, it was imperative for the prosecution to bring the X-ray report, if any, on record and only then the existence of such injury could have been stated with precision and also an opinion could be formed on the nature of the injury. The doctor also does not talk of any treatment that was given to the injured person and has only indicated the existence of injuries and their nature.

In case of Ishtiyaq Ahmed vs. State of Rajasthan & Ors. (2025 SCC OnLine Raj 7118), importance of X-ray plate and X-ray report and examination of the radiologist has been noticed for giving a finding and opinion with regard to the nature of injuries. Paragraph-18 of the aforesaid judgment is being reproduced hereinbelow:

Thus, upon discussing the medical evidence with regard to the informant (PW-7) and PW-6, which has entailed a conviction under Section 307 of the IPC against appellants of Cr. Appeal (SJ) No.120 of 2004, namely, Deo Kishore Chaudhary and Braj Kishore Chaudhary, the ingredients of the said offence do not seem to be made out. So far as conviction under Section 325 of IPC is concerned, it relates to causing of voluntarily grievous hurt, which fact does not stand established in view of free fight between the parties and also the nature of injury not being conclusive in absence of X-ray report and X-ray plate. So far as these appellants of Cr. Appeal (SJ) No.120 of 2004 and appellant No.1 of Cr. Appeal (SJ) No.96 of 2004 are concerned, at best they could be convicted for an offence either under Section 323 or 324 of the IPC. If the nature of injury is ignored for a while, it remains a fact from the evidence of the doctor (PW-8) that a sharp cutting injury has also been suffered by the injured, which would bring the case of these appellants within ambit of Section 324 of the IPC.

Considering the entire factual scenario and the analysis of evidence on record, this Court finds that the conviction of the appellants of Cr. Appeal (SJ) No.120 of 2004 under Sections 307 of IPC and appellant no.1 of Cr. Appeal (SJ) No.96 of 2004 under Section 325 of IPC, does not stand established by the prosecution beyond all reasonable doubts, as such, their conviction may thus be converted into one under Section 324 of the IPC.

Appellant no.1 of Cr. Appeal (SJ) No. 96 of 2004 has remained in custody from 05.10.1993 to 18.11.1993, appellant no.1 of Cr. Appeal (SJ) No.120 of 2004 has remained in custody from 28.07.1993 to 25.09.1993, appellant no.2 of Cr. Appeal (SJ) No.120 of 2004 has remained in custody from 05.10.1993 to 18.11.1993.

Taking a view with regard to the fact that all these three appellants are related to each other and there is a background of case and counter case to the extent of a petty dispute and now that 33 years have elapsed that the appeal is being finally heard, it would be expedient in the interest of justice that their sentence under the converted conviction under Section 324 of IPC shall, remained confined to the period already undergone by them.

So far as the appellant no.2 of Cr. Appeal (SJ) No.96 of 2004 is concerned, only allegation against him is that of giving a lathi blow which has produced single injury and considering the fact that the doctor has stated in the injury report that the same could be possible on account of a fall, the prosecution has not been able to establish its case as against appellant no.2, namely, Nand Kishore Choudhary beyond all reasonable doubts and as such, he is entitled to benefit of doubt. Thus, his conviction under Section 323 of IPC is set aside and he is acquitted of all the charges.

The afore-mentioned appeals, thus, stand partly allowed with the aforesaid modifications. Appellants, namely, Hari Kishore Choudhary, Deo Kishore Chaudhary and Braj Kishore Chaudhary are on bail and they would be discharged from liability of their bail bonds, if not required in any other case.