High Court set aside Sessions Court convictions of appellants for assault and possession of arms, holding that prosecution failed to produce medical evidence, injury report, or seized weapons, creating reasonable doubt.
Impugned judgment set aside; appellants discharged from liability of bail bonds; benefit of doubt given.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.274 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- SARAN
All are residents of Village-Banwari Basant, P.S.- Gorkha, District-Saran.
.... .... Appellant/s
Versus
State of Bihar
.... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Awadhwesh Kumar Singh For the Respondent/s : Mr. Binod Bihari Singh,A.P.P.
=========================================================== CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA ORAL JUDGMENT
Date: 04-05-2018
Appellant no.1,Shambhu Sah has been convicted under Section 324 of
the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and under Section 27 of the Arms Act and has been sentenced to undergo rigorous imprisonment for five years. The appellants no.2 and 4, Tarkeshwar Sah and Binod Sah have been convicted under Sections 324/109 and 324/34 of the Indian Penal Code and sentenced to undergo R.I. for one year and also convicted under Section 323 of I.P.C. and sentenced to undergo R.I. for five months and appellant no.3 Raghubansh Sah has been convicted under Section 323 of the Indian Penal Code and sentenced to undergo R.I. for five months by the Judgment and order dated 12.05.2003 passed by Sri Rukmini Kant Chaudhary-1st Additional Sessions Judge, Saran Chapra, in Garkha P.S. Case No.40 of 1995 correspon ding to SessionsTrial No.430 of 1995.
Patna High Court CR. APP (SJ) No.274 of 2003 dt.04-05-2018
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place between his son and the son of Ramawatar Sah which was followed by exchange of hot words between the guardians. However, quarrel was pacified by intervention of the villagers and thereafter at 6.30 P.M. the informant was returning from easing himself and when reached near his house, appellant Shambhu Sah along with appellant Tarkeshwar Sah and Vinod Sah met him and Tarkeshwar Sah started abusing him and ordered to kill him whereupon accused appellant Shambhu Sah fired from his pistol due to which he received splinter injury on his face and he fell down and raising alarm. Appellants Tarkeshwar Sah and Vinod Sah assaulted him with fists and slaps. Then P.W.3 who happens to be the mother of the informant, Ram Kali Devi came to rescue him but she was also assaulted by Raghuvansh Sah. On hearing sound of firing villagers assembled there and then the accused persons fled away.
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signature of the Police Officer on the formal F.I.R. (Ext.2).
Patna High Court CR. APP (SJ) No.274 of 2003 dt.04-05-2018
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been examined in this case. As such, it cannot be said that the injury caused on the person of the informant was injury caused by sharp cutting weapons and the evidence of P.W.3 clearly shows that she has not been brought for treatment and she has not received injury. It has also been submitted that there is no seizure of any splinter from the person of P.W.4 nor there is any recovery of pistol and in such situation conviction of the appellants under Section 27 of the Arms Act is also not just and proper. The learned trial court has not considered this aspect and convicted the appellants under Sections 323, 324 and Arms Act as well as other sections of the I.P.C.
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the P.Ws 3 and 4 also. However, in this case neither the doctor has been examined nor the I.O. has been examined. In such circumstance, coming to the finding of receiving firearm injury is not possible in absence of the evidence of doctor. The I.O. has not been examined and splinter and pistol have not been recovered from the place of occurrence and so far the injury on the person of P.W.3 is concerned, she had not gone for treatment which manifest that she had not received injuries. Considering the aforesaid facts and circumstances of the case, non-examination of the doctor and the I.O. has seriously prejudiced the defence and in their absence, conviction of the appellants under Sections 323, 324 of the I.P.C. and under Section 27 of the Arms Act does not inspire confidence.
(Vinod Kumar Sinha, J)
AnilKrSinha/-
| AFR/NAFR | |
|---|---|
| CAV DATE | |
| Uploadi ngDate |
21.05.2018 |
| Transmission Date |
2105.2018 |
3 issues framed by the court
Whether conviction of appellants under Section 324 and 27 of Arms Act can stand without independent medical evidence, I.O., and seizure of weapons.
Whether non-examination of doctor and I.O. creates reasonable doubt sufficient to acquit accused persons of murder/s attempted murder and assault charges.
Whether benefit of doubt should be given to appellants for acquittal due to missing prosecution evidence.
4 provisions across 2 enactments
Shambhu Sah and others
State of Bihar
Vinod Kumar Sinha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
