1979 INSC 0242
                                      Kailash Prasad Kanodia and Another

                                                           Vs

                                                    State of Bihar

                                        Criminal Appeal No. 385 of 1974

                                     (Syed M. Fazal Ali, P. S. Kailasam JJ)

                                                      25.04.1979

                                                     JUDGMENT

FAZAL ALI, J. ­

1. In this appeal by special leave, which is directed against the judgment of the Patna High Court,
appellant 1, Kailash Prasad Kanodia has been convicted under Section 302 and sentenced to
imprisonment for life. Appellant 2, Gatru Mal Kanodia has been convicted under Section 326 and
has been sentenced to three years' RI. A detailed narrative of the prosecution case is to be found in
the judgment of the High Court and it is not necessary for us to repeat the same all over again.

2. The High Court as well as the Sessions Judge have accepted the prosecution case and have
affirmed the conviction of the appellants as indicated above. The only point that was urged before
us by Mr. Mukherjee and Mr. Kohli appearing for the appellants, was that the entire case must fail
because the statements recorded by the Officer-in-Charge D. P. Sharma (PW 19) on a rough piece of
paper were not made available to the appellant at the trial which has caused serious prejudice to
them. The High Court as well as the Sessions Judge considered this aspect of the matter and found
that this infirmity was not sufficient to vitiate the trial. The prosecution has examined PWs. 4, 7, 10
and 12 the eyewitness of the occurrence. So far as PW 12 is concerned, he was the informant and
lodged the FIR within minutes of the occurrence at the police station which is about 200 yard away
from the place of occurrence. So far as the said eyewitnesses are concerned, there is no doubt that
PW D. P. Sharma himself admitted that when he arrived at the place of occurrence, he recorded the
statements of eyewitnesses but did not make part of the diary. This was a serious lapse on his part
resulting in his immediate suspension followed by a department enquiry. It was contended by Mr.
Mukherjee that if the earlier statements would have been available to the appellant, they would have
shown that the true version of the occurrence was not presented before the court. Even so, we have
excluded the evidence of the other eyewitnesses excepting PWs 7 and 12 and we find that there was
ample evidence on record to justify the conviction of the appellants. PW 12 has clearly stated in the
FIR that his father was assaulted with a bhala on the chest by the first appellant and his brother was
given a blow by the second appellant. His evidence is fully corroborated by the evidence of PW 7
Bishwanath and the medical evidence fully supports his testimony. To some extent the evidence of
these two witnesses is further supported by Shyam Lal Kanodia PW 2 who had also reached the
police station soon after the FIR was lodged. In this view of the matter, the judgment of the courts
below can be fully supported on the evidence of these witnesses even assuming that the comments
made by the learned counsel for the appellants against the prosecution are correct. We have
ourselves perused the statements of the two witnesses PWs 7 and 12 and are fully convinced that
their testimony bears a ring of truth and is worthy of credence.
3. The next point argued by Mr. Kohli is that so far as the second appellant is concerned, the charge
under Section 326 has not been proved. It appears from the medical evidence that PW Bishwanath
did not sustain any grievous injury. He has not received any serious injuries on any vital part of the
body. The doctor admits that he did not find any fracture of a serious nature. In these circumstances,
we are satisfied that the charge under Section 326 must necessarily fail but the appellant 2 cannot
escape conviction under Section 324, IPC as that has been fully proved. Having regard to the
peculiar facts circumstances of this case, we do not think that this is a fit case in which the second
appellant should be convicted and awarded jail sentence. We, therefore, set aside the sentence of
imprisonment passed under Section 326 and convict the second appellant under Section 324 and
impose a fine of Rs. 2000 in default one month's RI. Out of the fine if realized the entire amount
will be paid to PW Bishwanath as compensation. Two months time is allowed for the amount to be
paid as fine. With this modification, the appeal is dismissed. The bail bonds of the second appellant
with be discharge only after the fine is deposited. So far as the first appellant is concerned, he must
now surrender and serve out his sentence.

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