Mahendra Mandal vs The State Of Bihar

Heard learned counsel for the appellant and learned Additional Public Prosecutor appearing on behalf of the State.

The present appeal has been preferred against the judgment of conviction and order of sentence dated dated 31.03.2018 passed by the learned Sessions Judge, Supaul in Sessions Trial No. 211 of 2012 arising out of Karjain P.S. Case No. 35 of 2012, whereby the appellant has been convicted for the offence punishable under Section 326 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000/-, and in default of payment of fine, to further undergo simple imprisonment for three months.

The prosecution case, in brief, is that on 17.05.2012 at about 06:30 A.M., the informant, namely Tulai Mandal (P.W. 3), came out of his house carrying Rs.1,630/- for making payment to his creditor. When he reached near the embankment of the Government tank, he found the appellant obstructing the passage by putting tati. The informant protested against the obstruction, whereupon an altercation took place and the appellant allegedly assaulted him with a dabbia. The informant tried to ward off the blow with his hand, as a result of which the blow landed on his right index finger and the upper portion thereof was chopped off. It is further alleged that the appellant took away Rs.1,630/- from the pocket of the informant and threatened him with dire consequences. On the basis of the written report, Karjain P.S. Case No. 35 of 2012 was instituted.

In course of investigation, the Investigating Officer recorded the statements of the witnesses, inspected the place of occurrence and collected the injury report. Upon completion of investigation, charge-sheet was submitted against the appellant for the offences under Sections 341, 323, 326, 307, 504 and 506 of the Indian Penal Code. The learned Magistrate took cognizance and committed the case to the Court of Sessions, where charges were framed against the appellant under Sections 307, 341, 323, 326 and 504 of the Indian Penal Code. The appellant pleaded not guilty and claimed to be tried.

In order to establish the charges, the prosecution examined eight witnesses. P.W. 1, namely Saryug Safi, supported the prosecution case and stated that the appellant was obstructing the passage of the informant and, on protest being made, assaulted him with a dabbia, causing injury to his right index finger. P.W. 2, namely Harihar Ram, also supported the occurrence and stated that the appellant was obstructing the passage and thereafter assaulted the informant with a dabbia. P.W. 3, namely Tulai Mandal, is the informant and injured witness, who narrated the occurrence and stated that when he protested against the obstruction of the passage, the appellant assaulted him with a dabbia and the blow, which he tried to ward off, caused chopping of the upper portion of his right index finger; he also alleged that Rs.1,630/- was taken away from him. P.W. 4, namely Dr. Ajay Kumar Jha, examined the informant and found a sharp-cut injury over the right index finger involving the terminal phalanx, besides tenderness over the right wrist and left arm and swelling over the left shoulder; he opined that the injuries were simple in nature and that the first injury could have been caused by a dabbia. P.W. 5, namely Arvind Kumar Mandal, supported the evidence of the earlier witnesses regarding the occurrence and assault upon the informant. P.W. 6, namely Mushaharu Mandal, also supported the prosecution version and stated that the appellant assaulted the informant with a dabbia, resulting in chopping of the upper portion of his index finger. P.W. 7, namely Vishwanath Mandal, similarly supported the occurrence and the assault upon the informant. P.W. 8, namely Lalan Ram, is the Investigating Officer, who deposed regarding the investigation of the case, inspection of the place of occurrence, recording of the statements of the witnesses and submission of the charge-sheet, and proved the formal F.I.R. and the endorsement on the written report. The prosecution also exhibited several documentary evidences which are:-

After closure of the prosecution evidence, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure, wherein the incriminating circumstances appearing against him were put to him. He denied the allegations and claimed false implication. The appellant was granted opportunity to adduce evidence in defence, but he did not examine any witness or produce any documentary evidence in support of his defence.

On consideration of the evidence available on record, the learned trial court held that the prosecution had established that the appellant assaulted the informant with a dabbia, as a result of which the upper portion of his right index finger was chopped off. The learned trial court, however, found that the prosecution failed to establish the charges under Sections 307, 341, 323 and 504 of the Indian Penal Code. Accordingly, the appellant was convicted under Section 326 of the Indian Penal Code and sentenced as stated in opening paragraph of this judgment.

Learned counsel for the appellant submits that the learned trial court has failed to properly appreciate the evidence on record. It is submitted that there are contradictions in the statements of the prosecution witnesses and that the alleged weapon was not recovered from the possession of the appellant. It is further submitted that the doctor found the injury to be simple in nature and that the occurrence arose out of a dispute relating to obstruction of the passage. It is argued that the appellant has already remained in custody for a considerable period, is a first offender and has no criminal antecedent. It is, therefore, submitted that either the appellant may be acquitted or, in the alternative, the sentence may be reduced to the period already undergone.

Learned Additional Public Prosecutor appearing for the State, on the other hand, has opposed the appeal and submitted that the evidence of the informant is duly corroborated by the other prosecution witnesses as well as the medical evidence. It is submitted that the injury caused to the right index finger constitutes grievous hurt and the conviction under Section 326 of the Indian Penal Code is fully justified.

This Court has considered the rival submissions and perused the materials available on record. So far as the occurrence and the assault upon the informant are concerned, the evidence of P.W. 3, the informant, finds substantial corroboration from P.Ws. 1, 2, 5, 6 and 7. Their evidence is consistent on the material aspect that there was a dispute regarding obstruction of the passage and that the appellant assaulted the informant with a dabbia. The medical evidence of P.W. 4 also corroborates the ocular version to the extent that a sharp-cut injury was found over the right index finger of the informant and the doctor specifically stated that such injury could have been caused by a dabbia. The fact that the doctor described the injury as simple in nature does not by itself discredit the prosecution case. The evidence shows that the upper portion of the right index finger of the informant was chopped off. The nature of the injury has to be considered in the light of the statutory definition of grievous hurt and not merely on the basis of the doctor's use of the expression "simple". The evidence of the doctor and the injured witness, therefore, sufficiently establishes the injury caused to the informant.

At the same time, the prosecution has not been able to establish the allegation of attempt to commit murder. The occurrence appears to have arisen suddenly on account of a dispute regarding obstruction of the passage. The evidence indicates that only one blow with the dabbia was given and there was no repeated assault. The learned trial court has rightly acquitted the appellant of the charge under Section 307 of the Indian Penal Code. The charges under Sections 341, 323 and 504 of the Indian Penal Code have also not been established beyond reasonable doubt.

On an overall appreciation of the evidence, this Court finds no sufficient ground to interfere with the conviction of the appellant under Section 326 of the Indian Penal Code. The evidence of the injured informant is supported by the other prosecution witnesses and is further corroborated by the medical evidence. The discrepancies pointed out by learned counsel for the appellant do not go to the root of the prosecution case.

So far as the sentence is concerned, the occurrence is of 17.05.2012. The appellant was acquitted of the more serious charge under Section 307 of the Indian Penal Code and of the other charges. The occurrence arose out of a sudden dispute regarding obstruction of a passage and the appellant inflicted only one blow. The learned trial court has also noticed that there is no criminal antecedent against the appellant and that he is a first offender. Considering the nature of the occurrence, the age of the case and the circumstances in which the injury was caused, this Court is of the view that the ends of justice would be met if the sentence imposed upon the appellant is reduced to the period already undergone.

Accordingly, the judgment of conviction dated 31.03.2018 passed by the learned Sessions Judge, Supaul in Sessions Trial No. 211 of 2012 arising out of Karjain P.S. Case No. 35 of 2012, whereby the appellant has been convicted under Section 326 of the Indian Penal Code, is hereby affirmed. However, the sentence is modified to the extent that the sentence of the appellant is reduced to the period already undergone. The fine of Rs.2,000/- imposed by the learned trial court is also set aside.

In that view of the matter, appellant, above named, is discharged from the liability of his bail bonds in connection with this case.

Accordingly, this appeal stands disposed of.

Interlocutory application/s, if any, also stands disposed off.