Chandan Kumar Mandal vs The State Of Bihar
2023 Latest Caselaw 2507 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (SJ) No.713 of 2018
  Arising Out of PS. Case No.-250 Year-2016 Thana- NATHNAGAR District- Bhagalpur
======================================================

Chandan Kumar Mandal Son of Anil Mandal @ Anil Kumar Mandal, Resident of Village- Kanjhiya, Police Station- Nathnagar Madhusudanpur, District- Bhagalpur.

... ... Appellant/s Versus The State Of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Manohar Prasad Singh, Adv.

For the State : Mr. A.M.P. Mehta, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY CAV JUDGMENT Date : 19-05-2023

1. The present appeal has been directed against the

judgment of conviction dated 11.01.2018 and order of sentence

dated 15.01.2018 passed by learned Additional Sessions Judge-V,

Bhagalpur in Sessions Trial No. 35/2017, Trial No. 534 of 2017

arising out of GR Case No. 3169 of 2016 connected to Nathnagar

(Madhusudanpur) P.S. Case No. 250/2016 whereby and

whereunder appellant has been convicted for the offences

punishable under Sections 307, 324 and 341 of the IPC and has

been sentenced to undergo rigorous imprisonment for ten years

along with fine of rupees five thousand (Rs. 5,000/-) for offence

under Section 307 of the IPC. The appellant has further been

sentenced to undergo rigorous imprisonment for three years along

with fine of rupees one thousand only (Rs. 1000/-) for offence

under Section 324 of the IPC and an imprisonment for a term of Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

one month and a fine of rupees five hundred only (Rs. 500/-) for

offence under Section 341 of the IPC. In case of default in

payment of fine, he shall further undergo simple imprisonment of

one month. All the sentences shall run concurrently.

2. According to fardbeyan of informant-cum-victim

(PW-3) the occurrence is of 06.09.2016 at near about 7:30 PM for

which fardbeyan was recorded by S.I. M.N. Paswan of Barari

police station District Bhagalpur at JLNMCH Mayaganj,

Bhagalpur Emergency Surgery Ward Bed No. 12 on 07.09.2016 at

about 3 PM and immediately whereafter FIR was registered.

3. The prosecution case, as stated by the informant, in

brief, is that on the fateful day i.e. 06.09.2016 at near about 7.30

PM, she was heading towards the lavatory to answer the nature's

call where appellant and others were waylaying near the toilet. The

appellant and others grabbed the informant after seeing her and the

present appellant inflicted a knife blow upon the informant-victim

with intention to kill as a result of which informant sustained

injuries on the neck and right portion of stomach and she fell on

the ground in injured condition. On hearing her scream, the

victim's husband and other villagers ran and the moment the

appellant and others noticed the arrival of the villagers, they fled

away from the spot. It is further stated that appellant and others are Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

said to have threatened to kill informant and her family, in case,

FIR is lodged in thana. It is further alleged that before the said

occurrence the appellant attacked upon the informant with

intention to kill. It is further stated that informant cum victim was

brought in the said hospital for treatment with the help of her

husband and villagers.

4. On the basis of fardbeyan of the informant, Nathnagar

(Madhusudanpur) P.S. Case No. 250/2016 dated 07.09.2016 was

registered under Sections 341, 307, 324, 506 and 34 of the IPC.

Routine investigation followed. Statement of witnesses came to be

recorded and on the completion of investigation, appellant along

with acquitted accused Anil Mandal came to be charge sheeted

under Sections 341, 307, 324, 506 and 34 of the IPC. Rest two

accused persons namely Vinit Kumar Mandal and Govind Mandal

were shown as not sent up. Thereafter, the learned trial court took

cognizance under the aforementioned sections of IPC. The learned

trial court was pleased to frame charges against the appellant and

acquitted accused Anil Mandal under Sections 307/34, 341/34,

324/34 and 506 of the IPC and charges were read over and

explained to them to which they pleaded not guilty and claimed to

be tried.

Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

5. In order to bring home guilt of accused persons,

prosecution has examined altogether eight witnesses namely, PW-1

Dr. Chandra Mohan Singh, PW-2 Gagan Mandal, PW-3 Kavita

Devi (informant-cum-victim), PW-4 Ravindra Prasad Singh @

Ravindra Singh, PW-5 Upendra Prasad Singh @ Upendra Mandal,

PW-6 Pratima Devi, PW-7 Umakant Mishra (I.O.) and PW-8

Vidyanand Singh. Prosecution also proved injury report as

Exhibit-1, supplementary injury report as Exhibit-1/1, fardbeyan in

the writing and signature of S.I. Mahendra Narayan Paswan as

Exhibit-2, forwarding of fardbeyan as Exhibit-2/1, re-forwarding

of fardbeyan to Nathnagar P.S. as Exhibit-2/2, registration of FIR

as Exhibit-2/3 and chargesheet as Exhibit-3. Defence of accused

persons as gathered from the line of cross examination of

prosecution witnesses as well as from the statement under Section

313 of the Cr.P.C. is that of total denial. However, they did not

enter in defence.

6. After hearing the parties, the learned trial court was

pleased to convict the appellant-accused and to sentence him as

indicated in the opening paragraph of the judgment. However, co-

accused Anil Mandal stood acquitted by the learned trial court by

the same judgment.

Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

7. Heard Mr. Manohar Prasad Singh, learned counsel

appearing for the appellant at sufficient length of time. Following

submissions have been made on behalf of learned counsel for the

appellant:-

Learned counsel for the appellant has submitted that

there are vital discrepancies in the testimonies of prosecution

witnesses and on the said discrepancies it is found that prosecution

witnesses have not supported their case. He has further submitted

that place of occurrence has not been specifically established and

on the said ground alone the case of the prosecution is not proved.

It has further been submitted that basically it is a case of no eye

witness. It has further been argued that informant cum victim is

not a witness of high caliber to whom credibility of any degree can

be attached as she went with the appellant Chandan Kumar

Mandal leaving her children at home and hence, the statement of

such lady cannot be given due weightage. He has further submitted

that the alleged occurrence took place at 07:30 PM on 06.09.2016

but formal FIR has been lodged at 21 hours on 07.09.2016 after

recording her ferdbeyan at 3:00 PM on 07.09.2016 so it has been

submitted that fardbeyan was recorded after delay of 19:30 hours.

He further submits that blood was not found on the place of

occurrence. There is vital contradiction on the place of occurrence Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

and the prosecution has not proved the place of occurrence and on

this score alone appellant may be acquitted. In this context false

implication of appellant cannot be ignored and allegation against

the appellant is nothing but afterthought and circumstances clearly

indicate that appellant is innocent and prosecution has completely

failed to prove its case beyond reasonable doubts.

8. Mr. A.M.P. Mehta, learned Additional Public

Prosecutor appearing for the State has submitted that from perusal

of Exhibit-2 which is initial version of story of prosecution it is

crystal clear that appellant stabbed the informant/victim on her

neck and stomach and the same fact is reiterated by the PW-3 who

is victim as well as informant of the case during her examination

in chief. He further submits that PW-1 who is doctor has

sufficiently proved the story of prosecution by mentioning that

there are two injuries on vital parts of the body caused by sharp

cutting weapon and the said injury is dangerous to life which

shows the intention of the appellant. He has further submitted that

PW-1 Dr. Chandra Mohan Singh has clearly stated in para 1 of

examination in chief that PW-1 examined the injured on the

alleged date of occurrence i.e. 06.09.2016 at 8:30 PM which

suggests that after one hour of the occurrence she got medical

facility. Had the victim failed to get the treatment in a hospital Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

within a golden hour period that saved the victim otherwise

outcome would have been very disastrous. He further submits that

one thing is quite clear that victim's evidence and doctor's opinion

are quite consistent with the story of prosecution regarding place

of injury, weapon used in committing the said injury, duration of

injury which is within six hours specifying the truthfulness of

prosecution story. Except the hostile witnesses, prosecution

witnesses on the point of fleeing away the accused their version is

quite consistent as their version is not contradictory with the

earlier version recorded by the police during investigation and

PW-7 the I.O. has recorded the statement of said witnesses and it

has been stated that all the witnesses have seen the appellant

fleeing away from the place of occurrence and I.O. (PW- 7) has

clearly identified and proved the place of occurrence. In this

context, manner of occurrence, place of occurrence and time of

occurrence is very much consistent with initial version of

prosecution story as well as during the deposition adduced by PW-

3 in court. No attention was drawn by the defence regarding the

earlier version recorded by police during investigation and even no

suggestion was given on the earlier statement recorded by the

police in respect of PW-3. In this way, the evidence adduced by

PW-3 is quite consistent with the story of prosecution and no dent Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

has been made by the defence to discredit the testimony of

PW-3. In this way, her testimony is enough to secure conviction

on that account only. He has further submitted that FIR has been

lodged after recording fardbeyan in hospital and all the steps taken

by concerned officials have been mentioned in Ext. 2, Ext. 2/1 and

Ext. 2/2 which is quite evident from initial version of story of

prosecution. The defence of appellant's counsel regarding delay in

lodging FIR and allegation is nothing but afterthought which

cannot be tenable in light of present case which is well proved. He

has further submitted that finding of the trial court is just and due

appreciation of the evidence and impugned judgment is based on

sound principle of law and hence, the impugned judgment does not

require any interference.

9. I have perused the impugned judgment, order of trial

court and lower court records. I have given my thoughtful

consideration to the rival contention made on behalf of the parties

as noted above.

10. It is necessary to evaluate, analyze and screen out

the evidences of witnesses adduced before the trial court in the

light of the offence punishable under Sections 307, 324 and 341 of

the IPC.

Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

11. PW-1 Dr. Chandra Mohan Singh who examined

Kavita Devi (informant-cum-victim) found following injuries:-

(i) L shaped sharp cutting injury over the left mandibular edge of 1.5"x1"x1/4".

(ii) Sharp cutting injury of 1"x1/2"x1/4" over the right hypochondriac region of the anterior abdominal wall.

Investigations:- Plain X-ray abdomen showing the diaphragm.

Age of the injuries:- Less than six hours.

Cause of the injuries:- Sharp cutting weapons. Supplementary injury report dated 16.09.2016:- As per B.H.T., O.T. findings are:-

(i) Haemoperitoneum (means blood inside the paritorial cavity).

(ii) 1" rent found in the under surface of the right lobe of the liver.

(iii) 1/2" rent found in the anterior wall of the stomach. Nature of injuries:- Dangerous to life.

These injury reports which includes primary and

supplementary injury are written and signed by PW-1. Preliminary

injury report is marked as Exhibit-1 and supplementary injury

report is marked as Exhibit-1/1.

During cross examination of this witness, this witness

has clarified that whenever there is possibility of whole in liver on

account of illness, pus would be discharged but same cannot be

possible in the case of haemoperitoneum.

12. From perusal of evidence adduced by the doctor, it is

crystal clear that place of injury is on the vital part of the body i.e.

left mandibular edge and over right hypochondriac region of Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

anterior abdominal wall and weapon used in the offence clearly

indicates that it is sharp cutting weapon which is consistent with

the initial version of prosecution story i.e. Exhibit-2 (fardbeyan)

and time elapsed during injury is within six hours which also

stands corroborated by the facts narrated by the informant during

the course of recording fardbeyan and nature of injury as opined

by the doctor is dangerous to life. The force and impact of injuries

are evident from supplementary injury report. The doctor has

specifically stated that informant/victim was examined by this

witness on 06.09.2016 at 8:30 PM which is just one hour after the

occurrence and supplementary injury report indicates that she was

discharged from the concerned hospital on 16.09.2016. The

informant (PW-3) availed the medical facility which is quite

evident from the evidence adduced by the doctor. Had this facility

not been availed by the informant (PW-3) at the relevant time, she

might have died keeping in view the place of injury, nature of

injury, number of injury and weapon used for causing the said

injury.

13. PW-2 Gagan Mandal has stated that he knows the

victim who is from his village. This witness further stated that

informant's house is at the distance of 1 km from his house. This

witness further stated that he identified the appellant and other as Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

their houses are at the distance of 1/2 km from his house. The

appellant and others are named in the case of assaulting Kavita

Devi (informant-PW-3). This witness also stated that he has not

heard hulla regarding assault upon Kavita Devi. Police had not

recorded the statement of this witness. This witness has been

declared hostile.

14. PW-3 Kavita Devi is victim cum informant of the

present case. Her fardbeyan was recorded by S.I. Mahendra

Narayan Paswan of Barari police station and by virtue of this

fardbeyan, FIR was set into motion. During her examination in

chief this witness has stated that the occurrence took place near

about eleven months ago at about 7:00 PM. This witness further

stated that she was heading towards the lavatory to answer the

nature's call which is situated beside her house where appellant

and others grabbed her. This witness further stated that she was

inflicted by the appellant in stomach and neck and after hearing

her scream, her jethani Pratima Devi (PW-6), her husband and

villagers came. This witness further stated that appellant and

others assaulted her and when she started screaming they fled

away. This witness further stated that with the help of her husband

and others she was taken to Mayaganj hospital for treatment. She

further stated that her statement was recorded by the daroga in Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

Mayaganj hospital when she regained consciousness. She has

further stated that 2-3 years ago she was enticed by the appellant

and was taken by him to Delhi and after returning from there she

came to her husband's house. She has further stated that the

alleged occurrence took place on account of revengeful attitude of

the appellant as the informant cum victim was residing at her

husband's house. This witness has identified the appellant and

others in court. During cross examination she has reiterated the

earlier version that she was inflicted by chura when she was in

conscious position. During cross examination nothing was

elucidated by the defence to discard her testimony on the point of

injury caused by the appellant on the neck and stomach of

informant and she supported the factum of occurrence, place of

occurrence, time of occurrence, manner of occurrence. Even the

said witness is subjected to lengthy cross examination but nothing

has been elucidated to discard her testimony as there is a

consequence of fact that injury to witness is an inbuilt guarantee of

her presence at the scene of crime. The defence has not made any

dent in the story of prosecution which has specifically and

categorically reiterated by the PW-3 who is victim as well as

informant of the present case. During course of cross examination

her statement is quite consistent with the story of prosecution. Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

15. PW-4 Ravindra Prasad Singh @ Ravindra Singh has

stated that on the alleged date of occurrence he had neither gone to

the house of Munna Mandal nor heard anything. This witness

further stated that daroga went to his door but he did not make any

query regarding the said occurrence. This witness has been

declared hostile.

16. PW-5 Upendra Prasad Singh @ Upendra Mandal has

stated that he did not remember as to when occurrence took place.

This witness further stated that police did not make any query to

him. This witness has been declared hostile.

17. PW-6 Pratima Devi has stated that the occurrence is

of year 2016 and occurrence took place near about 8-9 months ago

from today at about 7:30 PM. This witness further stated that she

was at her house and she heard the sound of screaming. When she

reached near toilet, she saw that three persons caught hold Kavita

Devi (informant/PW-3). She recognized appellant and Anil Kumar

whereas others had fled away. This witness stated that she saw that

appellant inflicted knife in the right portion of stomach of

informant. She further stated that injury was also found on the

neck and blood was oozing out. She further stated that on her

screaming, husband of informant (kavita Devi) and Krityanand

came and they took informant (Kavita Devi) to Mayaganj hospital. Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

She further stated that police came to her house and enquired from

her and she stated all the facts to police. During cross examination

the attention of this witness has been drawn by the defence with

regard to her earlier statement recorded by the police during course

of investigation and this witness has denied the suggestion that she

reached on the place of occurrence after raising alarm by the

victim where victim stated that appellant inflicted knife's blow in

right portion of stomach and went away towards west side. From

perusal of Exhibit-2 (fardbeyan), it is crystal clear that she is not

eye witness to the alleged occurrence as all the nearby people

reached at the place of occurrence on hearing the screaming of

victim/informant which is just after the alleged occurrence and

attention has already been drawn by the defence during the cross

examination that earlier the statement recorded during

investigation by this witness has been denied during the course of

adducing evidence and hence, attention has been drawn on the

earlier version. In this way, PW-6 is not eye witness of the alleged

occurrence. From perusal of evidence adduced by PW-6, it appears

that she claims to be eye witness of the alleged occurrence but

from the version of PW-3 and Exhibit-2, it is proved that she is not

eye witness to the alleged occurrence rather she reached at the

place of occurrence on hearing the screaming of victim and the Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

I.O. (PW-7) has clearly stated at para 43 during cross examination

that no witness has seen stabbing the informant as the I.O. has

stated in para-43 that witnesses have seen the appellant fleeing

away from the place of occurrence. From perusal of evidence of

PW-7 (I.O.), it is clear that all the witnesses have seen the

appellant fleeing away from the place of occurrence and they have

not seen inflicting chura upon the informant.

18. PW-7 Umakant Mishra is I.O. of the case. This

witness has stated that fardbeyan was recorded by S.I. Mahendra

Narayan Paswan of Barari thana at JLNMCH, Bhagalpur which

bears his writing and signature and same has been marked as

Exhibit-2. This witness further stated that fardbeyan was

forwarded to S.H.O., Madhusudanpur police station by S.I.

Mahendra Narayan Paswan under his signature which has been

marked as Exhibit-2/1. He further stated that fardbeyan was re-

forwarded by Officer in charge of Madhusudanpur P.S. Harun

Mustaq, S.I. to Nathnagar police station for registration of the

case. This witness identified the writing and signature of Harun

Mustaq marked as Exhibit-2/2. On the said fardbeyan, Kaiser

Alam Inspector cum S.H.O. Nathnagar police station has put P.S.

Case number which is in his writing and signature, marked as

Exhibit-2/3. He further stated that charge of investigation was Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

handed over to him in this case and he proceeded to the place of

occurrence. He recorded the statement of Pratima Devi in para-4

of the case diary and then recorded the statement of witness

Vijyanand Singh and after that inspected the place of occurrence as

pointed out by the said witnesses. The place of occurrence is

vacant land of Kishun Mandal situated in village Kanjhiya which

is near about 35-40 yards west from the house of informant and

toilet where alleged occurrence was stated to have happened with

the informant/victim (PW-3). The boundary of place of occurrence

is as follows:-

North:- newly constructed roofed house of Kishun

Mandal wherein no one resides.

South:- barren field of Ram Pukar Mandal.

East:- plain government land and shiv mandir.

West:- plain land of Wakil Mandal and no other things

were found on the place of occurrence.

This witness has stated that thereafter he recorded

statements of other witnesses. He further stated that he recorded

the re-statement of the informant on 09.09.2016 who is admitted in

bed no. 12 of surgery ward of Mayaganj hospital. He further

submitted that he got recorded the preliminary injury report after

receiving it and then recorded final injury report after receiving Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

from the hospital. Thereafter, he filed charge sheet no. 68/16 on

30.11.2016 against appellant and others under Sections 341, 307,

324, 506 and 34 of the IPC which is under his pen and signature

and the same has been marked as Exhibit-3. During cross

examination, this witness has stated that none of witnesses have

stated to see infliction of knife's blow by the appellant rather they

saw the appellant and others fleeing away from the place of

occurrence. This witness has denied the suggestion that his

investigation is faulty.

19. PW-8 Vidya Nand Singh stated that occurrence took

place on 06.09.2016 at about 07-07:30 PM. This witness stated

that he was sitting at Chowk at that time and heard hulla and after

hearing hulla he went there and saw that Kavita Devi (informant)

was caught hold by Anil Mandal and appellant inflicted knife's

blow. He stated that victim sustained injury on her right side of

neck and stomach. He further stated that after arrival of this

witness, Pratima Devi and nearby people came. He has stated that

this witness and others took the victim to hospital where she was

treated and police made query to this witness. This witness

identified the appellant and other in the court. During cross

examination, the attention of this witness has been drawn by the

defence with regard to his earlier statement recorded by the police Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

during course of investigation and this witness has denied the

suggestion that on the sound of alarm he saw that appellant and

other caught the victim/informant and appellant by inflicting

knife's blow, was fleeing away and said knife blow hit on right

portion of neck and stomach. At para 41 of his deposition this

witness stated that toilet situated outside the house of his brother

Munna Mandal is the place of occurrence. From perusal of

Exhibit-2 and statement of PW-3 as well as statement of I.O.(PW-

7), this witness is not eye witness of the alleged occurrence rather

I.O. (PW-7) has clearly stated that none of the witness has seen the

occurrence regarding stabbing but they have seen the accused

persons fleeing away from the place of occurrence.

20. Now, it is to be seen whether the offence of appellant

is punishable under Sections 307, 324 and 341 of the IPC in the

light of given facts and circumstances of the case.

21. To constitute an offence under Section 307 of the

IPC, the following ingredients of the offence must be present;

(a. An intention or knowledge relating to commission of

murder and

(b. Doing of an act towards it.

For the purpose of Section 307 IPC, what is the material

is the intention or knowledge, and not the consequence of the Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

actual act done for the purpose of carrying out the intention. The

Section clearly contemplates an act which is done with the

intention of causing death but which fails to bring intended

consequence on account of initiation on account of intervening

circumstances. The intention or knowledge of the cause must be

such as a necessary to constitute a murder. In absence of intention

or knowledge which is a necessary ingredient of Section 307 IPC,

there can be no offence of attempt to murder.

22. Considering the aforementioned facts and

circumstances, the following judicial decisions are pertinent to

cite:-

In Takdir Samsuddin Sheikh v. State of Gujarat and

another reported in AIR 2012 SC 37, the Hon'ble Supreme Court

observed at para 10(ii) as follows:-

"10 (ii). This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time-

honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence."

In Brahm Swaroop and another v. State of U.P.,

reported in AIR 2011 SC 280, the Hon'ble Supreme Court at para

22 of the judgment held as follows:

"22. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness."

In Ranjit Singh and others v. State of Madhya

Pradesh, reported in AIR 2011 SC 255, the Hon'ble Supreme

court at para 17 of the judgment held as follows:-

"17. Under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction."

Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

In Mano Dutt and another v. State of Uttar Pradesh,

reported in (2012) 4 SCC 79, the Hon'ble Supreme Court at para

30 of the judgment observed as follows:-

"30... Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain, protect the real culprit."

In State of U.P. v. Kishan Chand and others reported in

(2004) 7 SCC 629, a similar view has been reiterated observing

that the testimony of a stamped witness has its own relevance and

efficacy. The fact that the witness sustained injuries at the time

and place of occurrence lends support to his testimony that he was

present during the occurrence.

In State of Madhya Pradesh v. Imrat and another

reported in (2009) 2 SCC (Cri) 558, the Hon'ble Supreme Court at

para 11 of the judgment observed as follows:-

"11. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."

Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

In Lachman Singh v. State of Haryana reported in

(2006) 10 SCC 524, the Hon'ble Supreme Court at para 13 of the

judgment observed as follows:-

"13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under the circumstances mentioned in the section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."

In Sadakat Kotwar and another v. The State of

Jharkhand passed in Criminal Appeal No. 1316 of 2021, the

Hon'ble Supreme Court held at para 4.1 as follows:-

"4.1. As observed and held by this Court in catena of decisions nobody can enter into the mind of the accused and his intention has to be ascertained from the weapon used, part of the body chosen for assault and the nature of the injury caused. Considering the case on hand Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

on the aforesaid principles, when the deadly weapon- dagger has been used, there was a stab injury on the stomach and near the chest which can be said to be on the vital part of the body and the nature of injuries caused, it is rightly held that the appellants have committed the offence under Section 307 IPC.

23. In the light of given facts and circumstances of the

present case, it is found that informant who set the initial version

of story of prosecution into motion by recording the fardbeyan

(Exhibit-2) and from perusal of Exhibit-2 it is crystal clear that

informant is the sole eye witness of the alleged occurrence and she

has suffered two injuries during the course of occurrence by the

appellant which has been narrated in the initial version of story of

prosecution. Other witness is Dr. Chandra Mohan Singh (PW-1)

who has given his opinion with regard to the injury which has

already been discussed in the foregoing paragraphs that injuries

are dangerous to life. So far as duration of injury, nature of injury,

place of injury, weapon used in causing the said injury are

concerned, opinion of this witness is quite consistent with the story

of prosecution. Victim during adducing the evidence in court has

stated that on raising alarm, the accused persons fled away. Had

the victim not raised the alarm upon being injured by the accused,

the outcome of criminal act of the accused could have produced a

fatal effect. PW-3 has also stated during course of adducing Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

evidence that people of nearby reached and by the aid of nearby

people she arrived at the hospital and on the said score the doctor

has also pointed out that PW-3 informant was examined on

06.09.2016 at 8:30 PM and the said fact is quite consistent with the

story of prosecution. Statement of PW-3 (informant) is quite

reliable and inspires confidence which is corroborated and

supported by the doctor while providing medical aid. Had the

relatives/other people not arrived on the spot upon hearing her

scream, outcome of attack on the neck and stomach of victim

could have produced fatal effect and it was the arrival of relatives

and people of neighbourhood as well as victim's treatment in

hospital with the golden hours, that saved the victim, otherwise

outcome could have been disastrous.

24. It is worth to mention that during course of cross-

examination of PW-3 neither attention was drawn by the defence

nor suggestion was made regarding the earlier version recorded by

the I.O.(PW-7) during investigation. In this way, the version of

PW-3 is quite intact and her earlier version during investigation

and her deposition before court are quite consistent and her

evidence has been corroborated by the medical evidence.

25. So far as Section 324 of the IPC is concerned, it has

already been discussed that injuries are stated to have caused on Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

the vital parts of informant's body and said injuries are dangerous

to life and appellant has repeatedly inflicted knife's blow on vital

parts of the body and the opinion of the doctor is also quite

consistent on the point of said version as discussed in foregoing

paragraphs that voluntarily causing hurt by stabbing has well been

established by the prosecution which is quite intact from the

version of PW-3 and same stands corroborated by opinion of the

doctor.

26. So far as Section 341 of the IPC is concerned, there

is no specific and categorical evidence of restraining or preventing

the victim by the appellant from going which is quite obvious from

the evidence adduced by the PW-3 during her deposition. In this

context, in absence of said evidence no offence is made out under

Section 341 of the IPC.

27. In the light of discussion made above, I find no

reason to differ with the findings given by the learned trial court

on the point of Sections 307 and 324 of the IPC and submission

advanced on behalf of learned A.P.P. is quite tenable in the light of

said offences and hence, in my view, judgment of conviction on

the point of Sections 307 and 324 of the IPC requires no

interference. So far as judgment of conviction on the point of

Section 341 of the IPC is concerned, the same is set aside.

Patna High Court CR. APP (SJ) No.713 of 2018 dt.19-05-2023

28. The appellant has voluntarily surrendered before the

trial court on 17.10.2016 and since then he is in custody and he has

already served sentence of near about six years and seven months

in custody. This court is of the view that if sentence of appellant is

reduced to the period already undergone that would meet the ends

of justice. Accordingly, the sentence is reduced to the period

already undergone and with the aforesaid modification in sentence,

this criminal appeal stands partly allowed.

29. Let the appellant be set free at once, if he is not

warranted in any other case.

(Alok Kumar Pandey, J)

shahzad/-

AFR/NAFR                AFR
CAV DATE                15.05.2023
Uploading Date          19.05.2023
Transmission Date       19.05.2023