Patna High Court
Dinesh Prasad vs State Of Bihar on 2 May, 2024
Author: Sunil Kumar Panwar
Bench: Sunil Kumar Panwar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.2 of 2006
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Dinesh Prasad, Son Of Late Satya Narayan Prasad. Resident Of Mohalla-
Mahadewa, P.S- Ara Town, District- Bhojpur.
... ... Appellant/s
Versus
State Of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Vipul Sinha (Amicus Curiae)
For the Respondent/s : Mr. B.M.P. Sinha, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR
CAV JUDGMENT
Date : 02-05-2024
Heard Mr. Vipul Sinha, learned Amicus
Curiae on behalf of the appellants and Mr. B.M.P. Sinha,
learned A.P.P for the State.
2. This appeal has been preferred by the
appellant Dinesh Prasad, being aggrieved and dissatisfied
with the judgment of conviction, dated 23 rd December,
2005 and order of sentence, dated 24 th of December,
2005 passed by the learned Additional District &
Sessions Judge, (F.T.C. V), Arrah in Sessions Trial No.
123/1994, arising out of Arrah (Town) P.S. Case No.
329 of 1992, whereby and where-under appellant is
convicted under Sections 341 and 307 of Indian Penal
Patna High Court CR. APP (SJ) No.2 of 2006 dt.02-05-2024
Code and awarded sentence to undergo simple
imprisonment for 1 month for the offence punishable u/s
341 of Indian Penal Code and rigorous imprisonment of
10 years and to pay a fine of Rs. 3,000/- and in default
of payment of fine he shall further undergo simple
imprisonment for one year for the offence punishable u/s
307 of Indian Penal Code. However, all the sentence
have been ordered to run concurrently.
3. According to prosecution case, on 17 th day
of December, 1992, at about 11 A.M., the informant's
younger brother Sunil Kumar went to demand the
rupees, which the accused had borrowed from him two
years back, at his ornament shop, situated near Bari
Masjid. When he reached at the shop, accused Dinesh
Prasad refused to pay the money and started abusing
and exchange of words was going on then one Vijay
Kumar Srivastava informed the informant about the
occurrence between them. Then, the informant went
running there and he saw that accused Dinesh Prasad
Patna High Court CR. APP (SJ) No.2 of 2006 dt.02-05-2024
assaulted his brother with iron rod. He sustained injury
and fell down and the elder son of Dinesh Prasad
assulted him with lathi. Seeing the marpit, the informant
raised alarm. Several people of vicinity assembled there.
Elder son of accused took out the gold chain from the
neck and Rs. 350 from pocket and escaped from there.
4. On the basis of said Fardbeyan, instant
case was registered and investigation was taken up.
After completion of the due investigation, chargesheet
was submitted against the accused/appellant.
Accordingly, cognizance was taken against the appellant.
Ultimately, this case was committed to the Court of
Sessions for trial and disposal.
5. Defense of accused/appellant was total denial
of the charge and claim to be tried.
6. The point of consideration in this appeal is
whether the prosecution is able to prove the case under
Sections 307 and 341 of Indian Penal Code in view of
evidence adduced by the prosecution evidence.
Patna High Court CR. APP (SJ) No.2 of 2006 dt.02-05-2024
7. To substantiate the charge levelled against
the accused person, altogether 9 witnesses were
examined on behalf of the prosecution.
8. P.W. 1 Vijay Kumar Singh, P.W. 2 Baijnath
Prasad, P.W. 3 Madhusudan Prasad Gupta and P.W. 4
Laxman Chourasia, did not support the prosecution
version and shown their ignorance about the occurrence
as such they have been declared hostile.
9. P.W. 5 Madan Kumar Rahi (informant of
this case) said in his evidence that injured Sunil Kumar
is his younger brother. He deposed that on 17 th day of
December, 1992, at about 11 A.M., his brother went to
shop of the accused, which was situated at Bari Masjid
Chowk to demand money. The accused did not pay him
money and started abusing. One Vijay Kumar Srivastava
came by cycle and inform him about the occurrence, at
his shop, then he went running to the shop of accused
and saw that accused assaulted his brother Sunil Kumar
with iron rod on his head and he fell down. Blood started
Patna High Court CR. APP (SJ) No.2 of 2006 dt.02-05-2024
oozing out and thereafter, accused snatched gold chain
from his neck and son of the accused also took out some
rupees from the pocket of his brother. His son also
assaulted with lathi on arm of his brother. He was
subjected to cross-examination by the defence, in
respect of manner, genesis, place and time of the
occurrence but nothing major surfaced to discard the
prosecution evidence.
10. P.W. 6 Sunil Kumar Gupta who is alleged to
be injured has said in his evidence about the occurrence,
genesis and manner of occurrence. Accused Dinesh
Kumar assaulted on his head by means of iron rod and
also gave three-four blows of iron rod on his left side. He
became full of blood. This witness was also subjected to
lengthy cross-examination by the defence but nothing
major surfaced to discard his evidence. Minor
contradictions, discrepancies and inconsistency in the
testimony of the injured (P.W. 6) were also found but on
the point of factum of manner and place of occurrence,
Patna High Court CR. APP (SJ) No.2 of 2006 dt.02-05-2024
he firmly stood in his cross-examination. He fully
corroborated the prosecution case.
11. P.W. 7 Dr. Rajiv Raman has proved the
injury report of the injured (P.W. 6). He opined that
injury number 1 is grevious in nature and injury number
2 is simple in nature.
12. P.W. 8 Anil Kumar is formal witness who
has proved the formal F.I.R. (Marked as ext. 4) and
Fardbyan of the informant (Marked as Ext. 5).
13. P.W. 9 Saryu Pandey has proved the Case
Diary (Marked as Ext. 6)
14. Mr. Vipul Sinha, learned Amicus Curiae, in
defence of the appellant has assailed the judgment of
conviction and order of sentence passed by learned trial
Court and submitted that the same not according to law.
No case under Section 307 of Indian Penal Code is made
out in view of evidence adduced by the prosecution
rather at best, offence under Section 323 of Indian Penal
Code is made out because there was no intervening
Patna High Court CR. APP (SJ) No.2 of 2006 dt.02-05-2024
circumstance to prevent the accused from committing
murder.
15. In contra, learned A.P.P. submitted that the
judgment of conviction and order of sentence, which has
been challenged by this appeal, is based on cogent and
consistence evidence which is adduced by the
prosecution and the same is sustainable and the instant
appeal is fit to be dismissed.
16. I have gone through the entire case records,
oral and documentary evidence adduced on behalf of the
prosecution as well as defense. I have also consider the
rival submissions made on behalf of the respective
parties. After going through the entire evidence of the
witnesses, nothing major contradiction and discrepancies
have been elicited. Specifically, informant (P.W. 5) and
injured (P.W. 6) supported and corroborated the
prosecution case. The defence has not caused
prejudiced. So, non examination of I.O. will not affect
any way, in view of consistent and cogent evidence of
Patna High Court CR. APP (SJ) No.2 of 2006 dt.02-05-2024
the informant.
17. In this appeal, point of consideration is
whether the prosecution is able to prove the charge for
the offence under Section 307 of Indian Penal Code or
not. To substantiate the charge for the offence
punishable under Section 307, the prosecution has to
prove:
(i) that the accused did an act.
(ii) that the act was done with intention or
knowledge and under such
circumstances to cause a bodily injury
as the accused knew to be likely
cause death or that such bodily injury
was in the ordinary course of nature
to cause death, or that the accused
attempted to cause such death by
doing an act known to him to be so
imminently dangerous that it must in
all probability cause death or such
bodily injury as is likely to cause
death.
(iii) that the accused had no excuse for
Patna High Court CR. APP (SJ) No.2 of 2006 dt.02-05-2024
incurring the risk of causing such death or
injury
18. From perusal of the injury report, it is
apparent that the doctor has opined two injuries as
sustained by the injured. Injury no. 1 is grievous in
nature and injury no. 2 is simple in nature. In my view,
there was no intervening circumstance to prevent the
accused from committing murder and these injuries are
not such due to which there is an apprehension of death
of the injured. Only lacerated wound and bruise have
sustained by the injured. There is no incessant assaulting
by the accused. In my view, the appellant has not
assaulted the injured with intention to kill him. The
doctor has not explained properly that these injuries are
fatal and likely to be dangerous and sufficient to commit
death of the injured.
19. In my view, the prosecution has failed to
prove the case for offence u/s 307 of Indian Penal Code.
The prosecution succeed to prove the case for the
Patna High Court CR. APP (SJ) No.2 of 2006 dt.02-05-2024
offence u/s 325 of Indian Penal Code. Hence, the
appellant is found and hold guilty for the offence
punishable under Section 325 and 341 of Indian Penal
code and hereby convicted.
20. From perusal of the case record and office
notes, it is evident that the appellant remained in judicial
custody as under trial prisoner and as convict in
connection with the case for more than 9 months.
21. As far as order of sentence is concerned,
appellant is facing the ordeal of trial from beginning and
this appeal relates to year 2006.
22. Keeping in mind overall view of the
matter, appellant is sentenced to undergo rigorous
imprisonment for the period during which he remained in
jail as under trial prisoner and as convict in connection
with this case.
23. The appeal stands dismissed with
aforesaid modification of judgment of conviction and
order of sentence.
Patna High Court CR. APP (SJ) No.2 of 2006 dt.02-05-2024
24. Mr. Vipul Sinha, learned Amicus Curiae was
appointed to represent the appellant/ accused. I put on
record the words of appreciation for able assistance
rendered by him in arriving this Court at the proper
conclusion in deciding the instant appeal. The Patna High
Court Legal Services Committee is hereby directed to
pay a sum of Rs. 7,000/- (rupees seven thousand only)
to Mr. Vipul Sinha, towards his professional fee.
(Sunil Kumar Panwar, J)
Nirajkrs/-
AFR/NAFR NAFR
CAV DATE 29-04-2024
Uploading Date 02-05-2024
Transmission Date 02-05-2024
