Patna High Court
Chunmun ChaudharyversusThe State Of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SHAILENDRA SINGH
Holding
The conviction under Section 308 of the IPC is not sustainable and is set aside.
Summary
The appellant Chunmun Chaudhary appealed against his conviction and sentence for an offence under Section 308 of the Indian Penal Code, imposed by the Additional Sessions Judge. The prosecution alleged that the appellant stabbed the informant's brother during a dispute over turmeric, while the defence claimed the act was in private defence. The trial court convicted the appellant for Section 308 despite not charging that offence and without a final finding on other charges. On appeal, the High Court noted critical evidentiary gaps, including the non‑production of the injured brother and the investigating officer, and inconsistencies in witness testimony. It held that the prosecution failed to prove all elements of Section 308 and that the appellant’s claim of private defence could not be dismissed outright. Consequently, the conviction and sentence were set aside, the appeal was allowed, and the appellant’s bail bonds were cancelled.
Issues considered
- Whether the prosecution proved all ingredients of an offence under Section 308 IPC.
- Whether the appellant was entitled to protection under Section 96 IPC (right of private defence).
- Whether the trial court erred in convicting the appellant without the testimony of the principal victim and the investigating officer.
- Whether the conviction under Section 308 IPC is sustainable in view of the evidentiary deficiencies.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 161, 313
- Indian Penal Code — s. 307, 308, 323, 324, 34, 341, 504, 96
Subjects
- Section 308 IPC
- attempt to commit culpable homicide
- private defence
- evidentiary deficiency
- criminal appeal
- conviction set aside
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.165 of 2014
Arising Out of PS. Case No.-142 Year-2006 Thana- DEHRI TOWN District- Rohtas
======================================================
Chunmun Chaudhary, S/o Lakshmi Choudhary, Resident Of Village
Kamranganj, P.S. Town Dehri, District Rohtas.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant : Mr. Dharmendra Kumar Singh, Adv.
Mr. Manoj Kumar, Adv.
Mr. Sada Nand Roy, Adv.
Mr. Harsh, Adv.
For the State : Mr. Bipin Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
Date : 03-02-2026
The instant appeal has been filed by the appellant,
Chunmun Chaudhary, against the judgment of conviction dated
24.02.2014 and the order of sentence dated 04.03.2014, passed
by the Court of the learned Ad hoc Additional Sessions Judge-I,
Rohtas at Sasaram, in Sessions Trial Case No. 448 of 2006 (CIS
Case Code No. 02965/2013). By the said judgment, the
appellant has been convicted for the offence punishable under
Section 308 of the Indian Penal Code (hereinafter referred to as
“IPC”) and sentenced to undergo rigorous imprisonment for a
period of three years, along with a fine of Rs. 50,000/-. In
default of payment of fine, the appellant has been further
directed to undergo simple imprisonment for a period of six
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months.
Prosecution Story
2. The prosecution story as appearing from the FIR,
in brief is as follows:
As per the informant, on 05.05.2006, his younger
brother, Upendra Chaudhary along with one co-villager Sudhir
Chaudhary came to his shop to roast a chicken. At that time,
turmeric was not available at the shop then his brother went to
the chaat shop of the appellant, situated near the shop of the
informant to bring turmeric. As per the informant, the spice
(turmeric) was not given then the appellant and others namely,
Lalo Chaudhary, Munna Chaudhary and Bhoa Chaudhary all
sons of Laxmi Chaudhary along with the said Laxmi
Chaudhary assaulted his brother with lathi and danda and
during the course of the assault, the appellant inflicted a knife
blow at on right side of the body of his brother with an intention
to kill him. On account of the assault committed by the accused,
the informant's brother, sustained injuries on his stomach and
other parts of his body.
3. The informant, Sikander Chaudhary, recorded his
fardbeyan at Bose Clinic on 05.05.2006 at 8:15 hours,
describing the aforesaid prosecution story. On the basis of the
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fardbeyan of the informant, a formal FIR bearing Dehri Town
P.S. Case No. 142 of 2006 was lodged for the offences
punishable under Sections 341, 323, 324, 307, and 504 of the
IPC read with Section 34 of the IPC against five accused
persons, including the appellant, thereby setting the criminal law
in motion.
4. After the completion of investigation, the police
charge-sheeted all the FIR-named accused persons, including
the appellant.
5. The appellant and the other four charge-sheeted
accused persons faced trial jointly and were charged for the
offences under Sections 341, 323, 324, 307, and 504, all read
with Section 34 of the IPC. The charges were read over to the
appellant and the other co-accused by the trial court, to which
they pleaded not guilty and claimed to be tried. During the trial,
one co-accused, namely Laxmi Chaudhary, died, and owing to
that, the trial stood abated against him, while the remaining
accused, including the appellant, continued to face trial.
6. During the trial, the prosecution examined
altogether four witnesses to bring home the charges, who are as
under:
Sl. No. Name Relevancy
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PW-1 Surendra Chaudhary He claimed himself as an eye-
witness
PW-2 Ram Pravesh He claimed himself as an eye-
Chaudhary witness
PW-3 Sikandar Chaudhary Informant
@ Sikendra
Chaudhary
PW-4 Dr. Abdul Quam He medically examined the
Khan @ Dr. Abdul injured
Quiyyum Khan
7. In addition to above ocular evidence, the
prosecution produced and exhibited the following documents in
documentary evidence:
Sl. No Relevany
Exhibit-1 Signature of informant on the fardbeyan
Exhibit-1/1 Signature of one Nakul Chaudhary on the
fardbeyan of the informant
Exhibit-2 Injury report of the injured Upendra
Chaudhary
8. After completion of the prosecution evidence, the
statements of the accused, including the appellant, were
recorded under Section 313 of the Cr.P.C., giving them an
opportunity to explain all the material circumstances appearing
against them from the prosecution evidence. The appellant,
while recording his statement, denied all the said material
circumstances and claimed himself to be innocent, though he
did not take any specific defence while recording his statement.
9. The appellant produced and examined three
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witnesses in defence, who are as under:
DW-1 Laxmi One of the
Chaudhary accused now
deceased
DW-2 Mritunjay Formal witness
Kumar Singh
DW-3 Dr. Abdul Medical Officer
Quam Khan @
Dr. Abdul
Qaiyyum Khan
10. In addition to oral defence evidence, the appellant
produced and exhibited the following documents in
documentary evidence:
Exhibit-A The fardbeyan of Laxmi
Chaudhary
Exhibit-B & C Certified copy of the formal FIR
and chargesheet in connection
with Dehri Town P.S. Case No.
143/06
Exhibit D & E Injury reports of co-accused
Haridwar Chaudhary @ Lalo
Chaudhary, Luxman Chaudhary
@ Laxmi Chaudhary (DW-1)
11. The learned trial court acquitted the co-accused,
namely, Munna Chaudhary, Bhola Chaudhary, and Lalo
Chaudhary @ Haridwar Chaudhary, of the charged offences,
holding that the prosecution failed to prove the charges against
them. On the other hand, the appellant was convicted for the
offence under Section 308 of the IPC, though he was not
charged for the said offence; however, the same was a lesser
offence than the charged offence punishable under Section 307
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of the IPC. Surprisingly, the learned trial court did not record
any final conclusion as to whether the prosecution had been able
to prove the other charged offences punishable under Sections
324, 323, 504, and 341 read with Section 34 of the IPC or not,
and sentenced the appellant only for the offence under Section
308 of the IPC for which he was convicted.While convicting the
appellant for the said offence under Section 308 of the IPC, the
learned trial court observed that the appellant, while stabbing
the injured Upendra Chaudhary, had exercised his right of
private defence excessively and, therefore, was not entitled to
the benefit of the right of private defence as provided under
Section 96 of the IPC; however, it found the appellant’s act to
fall within the purview of an attempt to commit culpable
homicide not amounting to murder and, accordingly, convicted
him for the offence under Section 308 of the IPC.
12. Before the trial court, the appellant mainly took the
defence that at the time of the alleged occurrence, he was at his
shop, and it was the prosecution party who came to his shop to
demand spice (turmeric), which was initially denied, resulting in
an altercation between them. Thereafter, the prosecution party
allegedly became aggressive and started assaulting the
appellant’s father, including Laxuman Chaudhary, Haridwar
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Chaudhary, and others, by using a chiran lakdi (wooden stick),
which had not yet been sharpened for cutting. It was further
contended that the aggressive act of the prosecution party with
the said wooden stick gave reason to the appellant and others to
apprehend the possibility of grievous injury from such an attack,
and, in order to save himself, the appellant proceeded to defend
himself. In that process, a simple knife generally used in the
shop was allegedly used by him in self-defence, which resulted
in an injury to the stomach of the injured. Accordingly, it was
contended that he had no intention to assault the injured,
Upendra Chaudhary, and, therefore, he was entitled to the
benefit under Section 96 of the IPC.
Submissions on behalf of the appellant
13. Mr. Dharmendra Kumar Singh, learned counsel
appearing for the appellant, has argued that there is sufficient
evidence on record to establish the plea of private defence taken
by the appellant before the trial court. In this regard, reliance
can be placed upon the evidence of the defence witnesses, DW-
1, DW-2, and DW-3, as well as the injury reports of accused
Laxuman Chaudhary @ Laxmi Chaudhary (since deceased) and
one Haridwar Chaudhary, which were filed before the trial court
and exhibited as Exhibits D and E. It is submitted that from a
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perusal of the FIR itself, it is clearly evident that the injured
himself had gone to the shop of the appellant to obtain spices
(turmeric), which clearly shows that the appellant had no
intention to assault him at that time. It is further contended that
when an altercation took place between the appellant and the
injured after the appellant refused to give turmeric, the first
blow was inflicted by the prosecution party using a wooden
stick, which was in a somewhat sharp condition, upon persons
from the appellant’s side. Thereafter, the occurrence escalated,
resulting in injuries to the injured as well as others. It is further
submitted that the prosecution party, particularly PWs-1, 2, and
3, concealed the true manner of occurrence, as the prosecution
failed to explain the injuries sustained by accused Laxmi
Chaudhary and Haridwar Chaudhary, who were injured at the
same time when the informant’s brother is said to have sustained
injuries. All of them were medically examined by the same
doctor, PW-4, on the same day and around the same time.
Learned counsel further submits that the prosecution failed to
produce the injured, Upendra Chaudhary, the most crucial
witness, before the trial court without furnishing any
explanation, despite sufficient attempts noted by the trial court
in the impugned judgment. Such non-production of the injured
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witness is completely fatal to the prosecution case. It is lastly
submitted that the Investigating Officer was also not produced
or examined by the prosecution without any explanation, which
seriously prejudiced the appellant. In the absence of the
Investigating Officer’s evidence, the appellant was deprived of
an opportunity to cross-examine him on vital aspects such as the
actual place of occurrence, the manner of occurrence, the
weapons allegedly used by both sides, and the genesis of the
occurrence. Further, the contradictions emerging in the
statements of prosecution witnesses PWs-1, 2, and 3 could not
be confronted to the Investigating Officer in light of their
statements recorded under Section 161 of the Cr.P.C., thereby
depriving the appellant of a valuable statutory right.
Submissions on behalf of learned APP for the State
14. On the other hand, Mr. Bipin Kumar, learned APP
appearing for the State, submits that from the prosecution story,
it is evident that the injured, who is the brother of the informant,
innocently went to the shop of the appellant to bring turmeric,
and such an act does not fall within the purview of any
aggressive conduct on his part. It is further submitted that the
manner of assault and the nature of the weapon used by the
appellant are sufficient to reject the appellant’s plea of the right
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of private defence, particularly to the extent of attempting to
commit culpable homicide not amounting to murder. It is further
argued that the non-examination of the injured is not fatal to the
prosecution case, as, in view of the defence evidence itself, it is
an admitted position that the informant’s brother sustained an
injury on a vital part of his body, which has been duly proved by
the medical evidence of PW-4. Hence, the conviction of the
appellant under Section 308 of the IPC is proper and legal and
does not call for any interference, and the appeal is devoid of
merit and fit to be dismissed.
Consideration and analysis
15. I have heard both sides and perused the impugned
judgment, the evidence adduced by both sides available on the
trial court record, and also taken into account the statement of
the appellant. From the prosecution story, one thing is quite
clear that at the time of the alleged occurrence, the appellant
was at his shop, and it was the injured himself who went to the
appellant’s shop to bring turmeric for the purpose of roasting
chicken. The shop of the appellant and the shop of the informant
are situated nearby, at a distance of about 10 to 15 feet, and in
both shops knives were frequently used for the purpose of their
work, which fact is not under dispute. From a perusal of the
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evidence of PW-4, who was also produced and examined by the
appellant in his defence, it is further clear that on the same day
and at the same time, the informant’s brother, accused Laxuman,
and one Haridwar Chaudhary from the accused side were
examined by him in respect of their injuries, and their injury
reports were exhibited by appellant side before the trial court.
The said medical evidence suggests that some free fight took
place between both parties, which was concealed by the
prosecution witnesses.
15.1. In light of the defence evidence, particularly
DW-1, which finds support from DW-3 an important witness
who was also produced by the prosecution to the extent of the
injuries of the said injured it can be deemed that the informant
attempted to change the manner of occurrence in his fardbeyan,
which goes against the prosecution case. In this regard, the
evidence of PW-2 is important. The witness (PW-2) claimed
himself to be an eye-witness and deposed in his chief-
examination that he saw the accused Laxhami, Bhola, Lalo, and
Chunmun (the appellant) assaulting the informant’s brother.
However, in his cross-examination, at paragraph 4, he stated that
the marpit took place in the middle of the road, from where the
appellant’s shop was situated about 15 feet away. The said place
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of occurrence, as disclosed by this witness, was not revealed by
the informant in the fardbeyan. In this regard, the examination
of the Investigating Officer as a prosecution witness was very
important, but he was not produced and examined by the
prosecution. However, one thing is quite clear that the manner
of occurrence remained somewhat different from that detailed in
the fardbeyan by the informant. Nevertheless, in view of the
evidence of PW-4, who medically examined the injured, and
also in light of the defence evidence, particularly the appellant’s
plea of the right of private defence, the use of a sharp weapon in
assaulting the injured on the abdominal area, as deposed by the
prosecution witnesses, can be deemed to be proved. But, the
non-examination of the informant’s brother the most important
witness for the prosecution without any explanation appears to
be fatal to the prosecution case for proving the actual manner
of occurrence and the non-explanation of injuries sustained by
two persons from the accused side at the same time of alleged
occurrence also proves the occurrence being happened in
different manner. His evidence was most crucial not only for
explaining those injuries but also for examining the appellant’s
plea of private defence. In this regard, reference may be made to
the observation of the Hon’ble Apex Court in Prabhat @ Bhai
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Narayan Wagh and Others v. State of Maharashtra, reported in
(2013) 10 SCC 391. The relevant observation contained in
paragraph 11 of the said judgment is reproduced hereinbelow:
" 11. We find discrepancies in the version given at
the very initial stage. The discrepancies and
contradictions noticed by the trial court were found
to be minor in nature by the High Court, but in our
view, there is serious flaw in the conduct of the case
by the prosecution and the discrepancies and
contradictions pointed out by the trial court cannot
be ignored as minor. No explanations is
forthcoming as to why Shobhana Parkar was not
examined in this case. Even according to the
prosecution, Shobhana Parkar had also received
injuries on her arm when she tried to intervene. The
prosecution story is that the deceased Sanjay
Gaonkar ran to the house of Shobhana Parkar and
that he was attacked just inside the door of the
house of Shobhana Parkar. If that being so, in our
view, Shobhana Parkar, who herself was injured and
tried to intervene, was a crucial witness. Non-
examination of Shobhana Parkar as well as the
contradictory versions in Ext. 28 and Ext. 27 as well
as the discrepancies and omissions pointed by the
trial court, crate a dent in the prosecution story."
16. The learned trial court did not grant protection to
the appellant under Section 96 of the IPC, though it concluded
in the impugned judgment that the defence was able to show
that the accused had acted in the exercise of their right of
private defence and to that extent, were protected by the
provisions of Section 96 of the IPC. However, in the same
paragraph of judgment, it was held that the act of the appellant
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in causing a knife injury to the victim could not be considered
to be within the parameters of the right of private defence and,
as such, no protection could be granted to him for this violent
act, even though it was claimed to be in exercise of the right of
private defence. From this finding, it can safely be inferred
that an incident of marpit or a free fight took place between
both the parties. In such circumstances, the degree of
provocation used by either side was not easy for the trial court
to determine, particularly in the absence of the evidence of the
most important witness, the injured himself. On the other
hand, the conduct of the prosecution party, such as, going to
the appellant’s shop, demanding spices, the subsequent
altercation between the parties, and the use of a wooden stick
(lakri chiran) by the prosecution party in assaulting two
persons from the accused side can reasonably be deemed
sufficient to show prosecution party to be aggressor to some
extent and an apprehension in the mind of the appellant that
the acts of the prosecution party might result in hurt to him. In
the light of these circumstances particularly in the absence of
the evidence of sole injured and further owing to non-
examination of I.O., the prosecution can not claim to be able to
have proved all main ingredients of the offence under Section
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308 of the I.P.C. for which the appellant has been convicted
and sentenced.
Conclusion
17. Accordingly, I find that the approach of the trial
court in convicting the appellant for the offence under Section
308 of the IPC is not proper and legal. Consequently, the
conviction of the appellant under Section 308 of the IPC is not
sustainable in the eye of law. As such, the impugned judgment
of conviction dated 24.02.2014 and order of sentence dated
04.03.2014 are hereby set aside, and the appeal stands
allowed.
18. The appellant is on bail, accordingly, his bail
bonds are cancelled, and he and his sureties are discharged
from their respective liabilities.
19. Let a copy of this judgment along with the trial
court records be sent to the trial court forthwith for necessary
compliance.
(Shailendra Singh, J)
Rajiv/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 10.02.2026
Transmission Date 10.02.2026
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