IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.946 of 2012

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1.Devendra Sharma son of late Janeshwar Sharma, resident of village-

Laraua, P.S.-Makhdumpur, District- Jehanabad

2.Tunna Sharma son of late Prashuram, resident of village-Khalkochak,

P.S.-Makhdumpur, District- Jehanabad

.... .... Appellant/s

Versus

The State Of Bihar

.... .... Respondent/s

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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH

ORAL ORDER

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18-12-2012

Heard the parties.

Taking into consideration the peculiar facts and

circumstances of the case, the appeal is being disposed of at the

stage of admission itself. The appellants have brought on record a

copy of the F.I.R., a copy of the charge with four heads, deposition

of the witnesses examined on behalf of the prosecution in course

of trial and the judgment and order the trial court.

This appeal is directed against the judgment of

conviction dated 6.10.2012 and the order of sentence dated

8.10.2012 passed by the learned District and Sessions Judge,

Jehanabad in Sessions Trial No.60 of 2006. By the said judgment

and order, the learned Sessions Judge has convicted the appellants

under section 323 of the Indian Penal Code and sentenced them

with a fine of Rs.500/- each and in default they have been directed

to undergo rigorous imprisonment for one month. From the

impugned order dated 8.10.2012, it appears that the accused

persons paid the amount of fine imposed against them and, as

Patna High Court CR. APP (SJ) No.946 of 2012 (2) dt.18-12-2012

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such, they were directed to be set at liberty at once.

On the basis of oral statement of the informant

recorded on 20.6.2001, Makhdumpur P.S. Case No.142 of 2001

dated 20.6.2001, was registered under sections 147, 148, 323, 341,

326, 307, 379 and 504 of the Indian Penal Code as well as section

27 of the Arms Act. The case was investigated by the police and,

on conclusion of investigation, a report under section 173 of the

Code of Criminal Procedure (hereinafter referred to as “the Code”)

was submitted before the learned Chief Judicial Magistrate,

Jehanabad. By order dated 21.12.2001, the learned Chief Judicial

Magistrate took cognizance of the offence and made over the case

to the learned Judicial Magistrate 1^st Class, Jehanabad. The case

was, thereafter, committed to the court of sessions for trial and

disposal on 20.1.2006. The appellants and others were charged

under sections 147, 148, 307/149 and 379/149 of the Indian Penal

Code. However, the accused persons pleaded not guilty to the

charges and claimed to be tried. In course of trial three witnesses,

namely, Upendra Narayan Yadav, Manoj Kumar and Rajesh

Kumar were examined as P.W.1, P.W.2 and P.W.3 respectively on

behalf of the prosecution.

In all, seven persons including the two appellants

were put on trial. P.W.1, who is informant of the case, had entered

into compromise with the accused persons. Admittedly, the

Patna High Court CR. APP (SJ) No.946 of 2012 (2) dt.18-12-2012

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fardbeyan was not proved in course of trial. In course of trial, the

informant was declared hostile. The other two witnesses, namely,

Manoj Kumar and Rajesh Kumar had expressed complete lack of

knowledge of the occurrence. Neither the doctor nor the

investigating officer of the case had been examined on behalf of

the prosecution in course of trial. On conclusion of trial, the trial

court acquitted one of the accused, namely, Akhilesh Sharma. In

case of other accused persons including the two appellants, the

trial court has held that the prosecution has not been able to prove

the charge under sections 307/149 and 379/149 of the Indian Penal

Code but it held that the offence under section 323 of the Indian

Penal Code has been proved beyond reasonable doubts against

them and, as such, they were convicted for the offence p