Created by Fuzzy Cloud

Patna High Court

Chunmun ChaudharyversusThe State Of Bihar

Decided
Disposal
ALLOWED

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

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
Patna High Court CR. APP (SJ) No.165 of 2014 dt.03-02-2026
                                            2/15




         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
Patna High Court CR. APP (SJ) No.165 of 2014 dt.03-02-2026
                                            3/15




         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
Patna High Court CR. APP (SJ) No.165 of 2014 dt.03-02-2026
                                             4/15




                      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
Patna High Court CR. APP (SJ) No.165 of 2014 dt.03-02-2026
                                            5/15




         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
Patna High Court CR. APP (SJ) No.165 of 2014 dt.03-02-2026
                                            6/15




         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
Patna High Court CR. APP (SJ) No.165 of 2014 dt.03-02-2026
                                            7/15




         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
Patna High Court CR. APP (SJ) No.165 of 2014 dt.03-02-2026
                                            8/15




         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
Patna High Court CR. APP (SJ) No.165 of 2014 dt.03-02-2026
                                            9/15




         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
Patna High Court CR. APP (SJ) No.165 of 2014 dt.03-02-2026
                                           10/15




         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
Patna High Court CR. APP (SJ) No.165 of 2014 dt.03-02-2026
                                           11/15




         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
Patna High Court CR. APP (SJ) No.165 of 2014 dt.03-02-2026
                                           12/15




         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
Patna High Court CR. APP (SJ) No.165 of 2014 dt.03-02-2026
                                             13/15




         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
Patna High Court CR. APP (SJ) No.165 of 2014 dt.03-02-2026
                                           14/15




          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
             Patna High Court CR. APP (SJ) No.165 of 2014 dt.03-02-2026
                                                        15/15




                       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


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

For a signed copy suitable for filing, refer to the court's website.