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2024 Supreme(Pat) 840

IN THE HIGH COURT OF JUDICATURE AT PATNA
CHANDRA SHEKHAR JHA, J.
Criminal Appeal (SJ) No.3434 of 2023
(5.10.2024)
Mohan Chaudhary & Ors. ... Appellants
vs.
State of Bihar ... Respondent

Advocates:
For the Appellants : M/s Vaishnavi Singh, Ajay Kr. Thakur.
For the Respondent: Mr. Abhay Kumar, APP.

Headnote:

Indian Penal Code, 1860 – Sections 324, 341 & 307 – Attempt to murder – Accused/appellants allegedly stabbing the victim on right side of his head, chest and thigh – Neither FIR nor injury report was proved during trial despite examination of the informant (PW-7), I.O. (P.W. 8) and first attending doctor (PW-9), FIR authored by the mother of the injured (PW-6) – As per the FIR, occurrence taking place at 8:30 PM on 20.7.2013 whereas as per the doctor (PW-9), he examined the injured on 2:30 PM on 20.7.201, i.e. six hours prior to the occurrence, which is very strange – Further, the I.O. (PW-8) took charge of the investigation on 21.8.2013 – PW-5 deposing that the occurrence is of 8.8.2013 whereas as per the FIR occurrence is on 20.7.2013 – PW-1, portraying as the eye-witness, did not find accused/appellant Satya Narain Choudhary at place of occurrence – None of the witnesses except injured stating taking away of Rs. 20,000/- from the injured during occurrence – From these depositions, date and time of occurrence and presence of appellant becomes doubtful – It seems that "common intention" developed at the place of occurrence itself in spur-of-the-moment it may be of "similar intention" but certainly it is not a case of "common intention" so as to secure conviction of appellants with the aid of Section 34 of the I.P.C. – Appeal stands allowed – Conviction and sentence set aside. (Paras 31 & 33)

Jage Ram Vs. State of Haryana, (2015) 11 SCC 366; Jagan Gope Vs. State of West Bengal, 2019 SCC OnLine Cal 5589; State of M.P. Vs. Saleem @ Chamaru, (2005) 5 SCC 554 – Relied.

Chandra Shekhar Jha, J.—This appeal has been preferred by the appellant/convict under Section 374(2) of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) challenging the judgment of conviction dated 07.06.2023 and order of sentence dated 28.06.2023 passed by learned Additional Sessions Judge-X, Gopalganj in Sessions Trial No. 273 of 2015 (arising out of Barauli P.S. Case No. 173 of 2013), whereby the concerned Trial Court has convicted the appellants/convicts for the offences punishable under Section 341, 324 and 307/34 of the IPC, where Appellant No. 1 namely Mohan Chaudhary, has been sentenced SI for seven years alongwith fine of Rs. 25,000/- for the offence punishable under Section 307 of the IPC and in default of payment of fine further undergo SI for six months, SI for two years alongwith fine of Rs. 5,000/- for the offence punishable under Section 324 of the IPC and in default of payment of fine further undergo SI for one month and SI for one month alongwith fine of Rs. 500/- for the offence punishable under Section 341 of the IPC and in default of payment of fine further undergo S.I. for one week. Appellant No. 2 namely Rakesh Chaudhary has been sentenced RI for ten years alongwith fine of Rs. 25,000/- for the offence punishable under Section 307 of the IPC and in default of payment of fine further undergo SI for six months, RI for two years alongwith fine of Rs. 5,000/- for the offence punishable under Section 324 of the IPC and in default of payment of fine, further undergo SI for one month and SI for one month alongwith fine of Rs. 500/- for the offence punishable under Section 341 of the IPC and in default of payment of fine, further undergo S.I. for one week. Appellant No. 3 namely Satya Narain Chaudhary has been sentenced RI for ten years alongwith fine of Rs. 25,000/- for the offence punishable under Section 307 of the IPC and in default of payment of fine further undergo SI for six months, RI for two years alongwith fine of Rs. 5,000/- for the offence punishable under Section 324 of the IPC and in default of payment of fine further undergo SI for one month and SI for one month alongwith fine of Rs. 500/- for the offence punishable under Section 341 of the IPC and in default of payment of fine further undergo S.I. for one week. Appellant No. 4 namely, Dhupan Chaudhary has been sentenced RI for ten years alongwith fine of Rs. 25,000/- for the offence punishable under Section 307 of the IPC and in default of payment of fine further undergo SI for six months, RI for two years alongwith fine of Rs. 5,000/- for the offence punishable under Section 324 of the IPC and in default of payment of fine further undergo SI for one month and SI for one month alongwith fine of Rs. 500/- for the offence punishable under Section 341 of the IPC and in default of payment of fine further undergo S.I. for one week. All aforesaid sentences ordered to run concurrently.

2. The case of prosecution in brief is that informant namely, Meena Devi @ Chhewani (P.W. 7) authored a written report, stating therein that on 20.07.2013 her son Munmum Chaudhary (P.W. 6) had gone outside on motorcycle for some work and he was found laying on road near “Anirudhi Baba Sthan” in stabbed condition at about 8:30 PM alongwith his motorcycle. The passer-by saw him and brought him to PHC Barauli for his treatment from where he was referred to Sadar Hospital, Gopalganj for better treatment and later on referred to PMCH Patna. It is alleged that her son sustained stab injuries by sharp knife on right side of the head, right side of the chest and two stab injuries on right thigh. The informant stated that her son was unconscious due to injuries and only after gaining his sense he can disclosed the names of accused persons and reason behind this occurrence.

3. On the basis of aforesaid written report, the police registered a case, as Barauli P.S. Case No. 173 of 2013 dated 21.07.2013 for the offence punishable under Sections 341, 324, 307 and 34

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