Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.148 of 2001 Against judgment and order dated 3.5.2001, passed by Sri Syed Inamuddin Daudi, 2nd Additional Sessions Judge, Bhojpur, Arrah, in Sessions Trial No. 339 of 1993. =========================================================== 1. Baliram Thakur Son sof Late Lakhan Thakur 2. Tarkeshwar Thakur Son of Barmeshwar Thakur 3. Ramyash Thakur Son of late Ram Palak Thakur All residents of Village Chakki Naranga, PS Sahpur in the district of Bhojpur .... .... Appellants Versus State Of Bihar .... .... Respondent =========================================================== Appearance : For the Appellants : Mr. Akhilesh Prasad Singh, Sr. Advocate Ms. Amita Kumari Singh, Advocate Mr. Bimal Kumar No.2, Advocate For the State : Mr.Sujit Kumar Singh, A.P.P. =========================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT Date: 17-10-2012 S.A.Khan, J. Appellants have been convicted under [STATUTE] to undergo R.I. for five years and have further been convicted under Section 27 of the Arms Act to undergo R.I. for three years. Appellant no.1 has remained in custody for 3 months and 8 days, appellant no.2 has remained in custody for 28 days, and appellant no.3 has remained in custody for 7 months and 24 days. 2. The occurrence is said to have taken place on 25.5.93. It is said that when the informant Awadh Bihari Thakur alongwith Rama Shankar Choubey were returning home on their motorcycle from the village of his sister, the appellants confronted them when Patna High Court CR. APP (SJ) No.148 of 2001 dt.17-10-2012 2 they reached Marchaiya Bhagar at about 6.25 PM. It is admitted by the informant that the appellants are relatives and that there is previous enmity between them. It is alleged that appellant Baliram Thakur was armed with licensed gun. He took a shot at the informant which missed its target. Thereafter he ordered the co-accused Ramyash Thakur and Tarkeshwar Thakur coming from the opposite direction to fire at the informant, which hit the informant and Rama Shankar Choubey on the right knee. 3. Six witnesses have been examined in this case. The doctor, P.W.1 claims to have examined the injured and on clinical examination has concluded that the injuries are simple in nature. P.W.2 and P.W.5 are the alleged injured in this case and are the only witnesses regarding the occurrence. The other witness P.W.3 is a hearsay witness who supports the prosecution case. Both P.W.2 and P.W.5 have stated that on the relevant date when they had reached village Marchia Bhagat at about 6.25 PM they saw Baliram Bhagat armed with rifle. He shot them by firing from his rifle which did not hit them and, in the meantime, they allege that co-accused Ramyash Thakur fired which hit both the informant as well as Rama Shankar Choubey, P.W.2. Both the two witnesses were examined by the doctor, P.W.1, who has found lacerated wound measuring 1 cm x 1 cm on the subcutaneous tissue deep on the upper part of the knee of Patna High Court CR. APP (SJ) No.148 of 2001 dt.17-10-2012 3 the informant. The x-ray indicates that circular foreign body resembling pellets were seen on the right leg. Injury was found simple in nature caused by fire arm. Similarly, Rama Shankar was also examined and the doctor found lacerated wound measuring 1 cm. x 1 cm. on the subcutaneous tissue on medieval aspect of right knee point. After x-ray, one pellet like foreign body was found to have been embedded above the knee. Injury was reported to be simple in nature caused by fire arm. 4. Learned counsel for the appellants submits that appellants cannot be held guilty under [STATUTE] , in view of the fact that firing was not repeated and there was no intervening circumstances to stop the appellants from firing on the informant and Rama Shankar Choubey. The submission aforesaid is to be acceptable to this Court for the reason that the injury inflicted was simple and that the appellants had plenty of opportunity to chase and repeat the fire if they had any intention to do away with the life of Awadh Bihari Thakur with whom there is an admitted land dispute. This Court, therefore, finds that the appellants are guilty under [STATUTE] . 5. Learned counsel for the appellants also argued that Fardbeyan was recorded on 26.5.93 whereas F.I.R. was registered on 30.5.1993 and was received in the court of Chief Judicial Magistrate Patna High Court CR. APP (SJ) No.148 of 2001 dt.17-10-2012 4 on 7.6.1993. Referring to judgment of the Supreme Court in the case of Ishwar Singh v State of U.P.[AIR 1976 (2) SC 2423], learned counsel for the appellants submits that it has been held therein that provisions of Section 157, Cr.P.C. ought to be followed in a strict manner as it envisages that if from information received, an officer in charge of a police station has reason to suspect the commission of an offence, FIR be sent `forthwith’ to the Magistrate competent to take cognizance of the offence. Delay in sending the FIR to the concerned court gives scope for interpolation in the FIR and as such checks and balances have been introduced in the Cr. P.C. to ensure a fair investigation and trial. In the case referred to by learned counsel for the appellants, the Supreme Court has set aside the conviction not only on the ground of inordinate and unexplained delay, but has taken into account several other factors such as discrepancy in the accounts given by the witnesses in the court as compared to the allegations made out in the FIR and non-examination of material witnesses. Inordinate and unexplained delay in the opinion of this Court cannot be the sole ground for setting aside the conviction, specially in view of the fact that the I.O. in this case was examined and attention of the I.O. was not called to the inordinate delay in sending the FIR to the concerned court. I, therefore, set aside the convict

Applicable IPC Section: 307

Statute Text:
Section 307 of the Indian Penal Code. Attempt to murder. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by Life Convicts: When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.