CRIMINAL APPEAL 479 of 1996 on 20 September 2006

IN THE HIGH COURT OF JUDICATURE AT PATNACRIMINAL APPEAL (SJ) No.815 of 2006

======================================================1. Krishnandan Pd.Mahto @ Krishna Mahto, son of Saudi mahto2. Naveen Kumar3. Shishu Kumar Appellant Nos. 2 & 3 are the sons of Krishnandan Mahto, Residents of villageSarva, P.S. Barbigha, District- Sheikhpura.

CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMANORAL JUDGMENT

Date : 23-09-2025

Heard learned counsel for the appellants andlearned Additional Public Prosecutor for the State.

2. Vide order dated 27.06.2024, learned counsel for the appellants submitted that appellant No. 1, namelyKrishnandan Pd. Mahto @ Krishna Mahto, has passed away.This Hon’ble Court directed the Superintendent of Police,Sheikhpura, to verify the same and submit a report to this Court.

3. The report has been received, and from the saidreport, it transpires to this Court that appellant No. 1, namelyKrishnandan Pd. Mahto @ Krishna Mahto, has indeed died. Assuch, the present appeal stands abated as against appellant No.1, namely Krishnandan Pd. Mahto @ Krishna Mahto.

4. By this appeal, appellants/convicted accusedNaveen Kumar & Shishu Kumar are challenging the judgmentof conviction and order of sentence dated 20.09.2006 and21.09.2006 respectively, passed by the Additional SessionsJudge (Fast Track Court Vth), Sheikhpura, in Sessions Case No.479 of 1996 / Trial No. 75 of 2006 , arising out of BarbighaPolice Station Case No. 14 of 1996, by which the appellantswere convicted for the offence under Sections 307/34 and323/34 of the Indian Penal Code. The appellants are sentencedfor a period of five year rigorous imprisonment for the charge ofSection 307/34 of the Indian Penal code. They are further finedRs. 5,000/- each in addition to the above sentence and ondefault to pay such fine they will have to suffer further rigorousimprisonment for a month. Further all the convicts are sentencedto under go one year rigorous imprisonment for the chargeunder Section 323/34 of the India Penal Code. Sentencesawarded for both of the charges will run concurrently.

5. The case of the prosecution, as unfolded by theFirst Information Report, may, in brief, be described as under:

“The informant, who is a teacher at a middleschool, submitted a written complaint on 19-01-1996 to the in-charge of P.S. Barbighe, stating therein that on the aforesaid date, when he returned home from school, he saw his neighbour,accused Krishna Mahto, constructing a stair that touched theohari of his (informant’s) house. In the course of construction,the accused also damaged the informant’s drain. It is stated thatwhen the informant tried to prevent the accused fromconstructing the stair, the accused abused him. Again, when theinformant asked him (accused) not to abuse, he went to hishouse and returned with his two sons, namely Navin Kumar andShishu Kumar (accused). At that time, Navin was armed with afarsa, while accused Shishu was carrying a lathi. It is allegedthat accused Krishna Mahto ordered his sons to assault theinformant upon which accused Navin Kumar charged Farsa onthe informant’s head with an intent to kill while accused ShishuKumar started assaulting him by lathi on his waist. Theinformant fell down due to the injuries caused. During theassault, the informant raised a hulla, upon which somewitnesses arrived and saved him (informant) from furtherassault. Further, the informant was taken to the police stationwhere the information was recorded.”

6. Learned counsel for the appellants submits thatthe appellants deserve acquittal in the present case due to thereason that, during trial, the prosecution failed to produce the

I.O. as well as the doctor for examination. He further submitsthat, due to the non-examination of the doctor and in theabsence of the injury report, it is impossible to ascertain thenature of injury, and hence neither Section 307 nor Section 304of the Indian Penal Code is made out. Counsel further submitsthat the Investigating Officer has not been examined, and it isdue to this reason the prosecution's case has failed to ascertainthe place and time of occurrence. It is due to this reason, thecase of the prosecution has completely failed, and without anymaterial, the Trial Court has convicted the accused personsunder Sections 307/34 and 323/34 of the Indian Penal Code.

7. Learned APP for the State submits that it is true that the injury could not be proved and cannot be provedwithout medical evidence, but on the other hand, thecorroboration of the earlier statement under Section 156 of theEvidence Act has been made out by the prosecution witnesses.Whatever has been narrated in the FIR and by the otherwitnesses has come in the prosecution evidence of otherwitnesses, particularly PW-3, PW-4, and PW-7 (the informant).He further submits that in paragraph No. 22 of the Trial Court’sorder, it has been ascertained from the evidence that accusedKrishnandan Pd. Mahto went to his house, and after a while, he returned with his two sons, who were armed with farsa andlathi. The appellant Krishnandan Pd. Mahto ordered his twosons to kill the informant, whereupon appellant No. 2 gave afarsa blow to the head of the informant, while appellant No. 3,namely Shishu Kumar, assaulted him by inflicting several blowswith a lathi, due to which the informant fell down. According tothe prosecution, in view of this matter, the assault wascommitted by all the accused in furtherance of the commonintention, and hence Section 34 of the Indian Penal Code isapplicable by virtue of the ocular evidence, which is the bestevidence. Therefore, learned counsel for the State submits thatthe appeal be dismissed on this ground alone.

8. Upon hearing the parties and perusal of therecord, it transpires to this Court that, admittedly, theInvestigating Officer and the Medical Officer have not beenexamined. Due to the non-examination of the Medical Officer,the injury report could not be brought on record, and hence theinjury could not be proved. However, from the observationmade by the Trial Court in paragraph No. 22 of the judgment,and particularly from the evidence of PW-7 (the informant),PW-2 (wife of the informant), and PW-3 (a co-villager), it hasbeen adduced that Krishnandan Pd. Mahto went to his house, and after a while, he returned with his two sons, who werearmed with farsa and lathi. On the order of Krishnandan Pd.Mahto, his sons attacked the informant, due to which he wasinjured and fell down.

9. For better appreciation of this case, this Court feels it necessary to quote Section 34 of the Indian Penal Code,which reads as follows:- “Acts done by several persons infurtherance of common intention. When a criminalact is done by several persons in furtherance of thecommon intention of all, each of such persons isliable for that act in the same manner as if it weredone by him alone.”

10. The crux of this Section is that if any one of the

accused has committed an act in furtherance of the commonintention, then all the accused shall be held responsible. Here inthe present case, it is true that injury has not been proved, butassault has been established. Therefore, this Court is of the firmview that, due to the lack of injury report, Section 307 of theIndian Penal Code is not made out, but Section 323 read withSection 34 of the Indian Penal Code is made out. Hence, for thisreason, the conviction for the charge and the correspondingsentence under Section 307 are hereby set aside, but theconviction under Section 323/34 of the Indian Penal Code is affirmed.

11. For the offence under Section 323/34 of theIndian Penal Code, one year rigorous imprisonment has beenimposed by the Sessions Court. This Court, prior to forming anopinion on the point of sentence, analyzes Section 323, whichstates as follows:- “Punishment for voluntarily causinghurt.-Whoever, except in the case provided for bysection 334, voluntarily causes hurt, shall bepunished with imprisonment of either descriptionfor a term which may extend to one year, or withfine which may extend to one thousand rupees, orwith both”

12. Section 323 of the Indian Penal Code providesthat the punishment may extend to imprisonment for a termwhich may extend to one year, or with a fine which may extendto one thousand rupees, or with both.

13. This Court, considering the age of the present appellants at the time of the occurrence in 1996, where the ageof appellant No. 2 was 20 years and appellant No. 3 was 18years, notes that they came forward with a view to helping theirfather. Taking into account their young age, this Court, adoptinga liberal approach in sentencing, hereby reduces the sentenceimposed on them from one year rigorous imprisonment to five months simple imprisonment, along with a fine of Rs. 1000/-.

14. It further transpires to this Court from therecord that the appellants were in custody for 10 days during thetrial, i.e., from 20.05.1996 to 30.05.1996, and further, uponconviction, they were in custody from 20.06.2006 and werereleased after 14.11.2006 by the order passed by this Hon’bleCourt, meaning they were in custody for five months and odddays.

15. Hence, the custody period of five months andodd days already undergone by the appellants shall be set off,and upon deposit of Rs. 1000/- each as fine, they shall beexonerated from all liabilities of bail bond.

16. Accordingly, the judgment of conviction andorder of sentence dated 20.09.2006 and 21.09.2006 respectively,passed by the Additional Sessions Judge (Fast Track Court Vth),Sheikhpura, in Sessions Case No. 479 of 1996 / Trial No. 75 of2006, arising out of Barbigha Police Station Case No. 14 of1996 is hereby set aside. Therefore, the appellants are herebyacquitted of the charge under Section 307/34 of the Indian PenalCode, and the sentence under Section 323/34 of the Indian PenalCode is treated as the period already undergone.

17. In the result, the appeal is dismissed with the aforesaid modification in conviction and sentence.

18. Since the appellants, namely, Naveen Kumar &

Shishu Kumar of Cr. Appeal (SJ) No. 815 of 2006, are alreadyon bail, and having been acquitted under Sections 307/34 of theIndian Penal Code, let them be discharged from the liabilities ofbail bonds and sureties, if any.

19. Let a copy of this judgment be sent to theconcerned Court below along with the LCR.

(Dr. Anshuman, J.)

Aman Kumar/-

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