Nand Jee Pandey v. Road Tari Mohalla

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER 2 05-11-2012 The present appeal has been filed under Section 372 of the Code of Criminal Procedure on behalf of the victim against the judgment and order dated 28.08.2012 passed in Sessions Trial No.669 of 1989 by which Opposite Party No.2, who had been charged for the offence under Section 307 of the Indian Penal Code, has been convicted under Section 324 of the Indian Penal Code and instead of sentencing him, he has been let off on executing the bond of Rs.5,000/- without surety to appear and receive sentence when called upon during the period of one year under Section 4(1) of the Probation of Offenders Act, 1958. I have heard the parties and perused the judgment. As per prosecution case, Opposite Party no.2 is alleged to have assaulted the mother and grand-mother of the informant. He is further alleged to have assaulted the informant repeatedly by dagger.

The mother and grand-mother of the Patna High Court CR. APP (SJ) No.881 of 2012 (2) dt.05-11-2012 2 informant have not been examined by the prosecution in course of trial. Their injury reports have also not been brought on record. The informant(P.W.2) was examined by the doctor(P.W.5). The doctor who examined him found three injuries on his person, out of which, two are lacerated wounds and injury no.1 is an incised wound over right shoulder measuring 2” x ½” skin deep with blood and blood clot. The injuries sustained by the informant do not corroborate the ocular testimony of the informant. The trial court has taken note of the fact that there was a counter case too. In the counter case also, the police on conclusion of investigation submitted chargesheet. The trial court has also recorded that there is no injury on the vital part of the body. Opposite Party no.2 is aged about 75 years and is uncle of the informant.

The investigating officer of the case has not been examined. Taking into considering the facts and circumstances of the case, the trial court came to the conclusion that the prosecution failed to prove that the Opposite Party no.2 either intended to cause murder or inflicted such injury as would have caused death of the appellant in normal circumstances and as such, the trial court was of the opinion that the prosecution failed to prove its case beyond reasonable doubt in order get an order of conviction of Opposite Party no.2 under Section 307 of the Indian Penal Patna High Court CR. APP (SJ) No.881 of 2012 (2) dt.05-11-2012 3 Code. However, the trial court finding injuries on the person of the victim, convicted the appellant under Section 324 of the Indian Penal Code. I find that the trial court has recorded clear, cogent and convincing reason for not convicting Opposite Party no.2 under Section 307 of the Indian Penal code. The findings of the trial court are neither erroneous nor perverse. In that view of the matter, I find no merit in this appeal. It is dismissed, accordingly. (Ashwani Kumar Singh, J) B.Kr./-