CRIMINAL APPEAL No.658 OF 2002 --- Against the Judgment and order dated 30th July,2002, passed by 2nd Additional Sessions Judge, Motihari in Session Trial no.257/43 of 2000/2002. --- MD. MOZAHIR HUSSAIN son of Md. Hussain, resident of Village Pokhariya Tola, Komla Belwa, P.S.Chakia, District East Champaran-------------- (Appellant) Versus STATE OF BIHAR-----------------(Respondents) For the Appellant:- Mrs. Asha Kumari,Amicuscuarie For the State:- Mr. Lala Kailash Bihari Prasad,Sr.Adv. P R E S E N T THE HON'BLE JUSTICE SMT. MRIDULA MISHRA THE HON'BLE MR. JUSTICE SYED MOHAMMAD MAHFOOZ ALAM Mridula Mishra, J Sole appellant Md. Mozahir Hussain has preferred this criminal appeal against the judgment and order of conviction and sentence dated 30.7.2002, passed by 2nd Additional Sessions Judge, Motihari in Session Trial no.257/43 of 2000/2002 whereby for conviction under Section 302 of the Indian Penal Code the appellant has been sentenced to undergo rigorous imprisonment for life and for conviction under Section 27 of the Arms Act he has been sentenced rigorous imprisonment for three years. 2. Sanjay Kumar (P.W.6) is the informant of Chakia P.S.Case no. 27 of 2000. The case of prosecution as per the F.I.R. is that on 12.3.2000, the Barat party from village Kenua Semra has come in the village on the occasion of marriage of the daughter of Bhagya Narain Sah (P.W.7). On arrival of Barat Party some of the Barati went at the Darwaza of Bhag Narain Sah and some were witnessing the dance along with the barat party at some distance from his Darwaza on the road. The informant was also seeing the - 2 - dance. At about 8 P.M. his villager, the accused Mozahir Hussain and Mohd. Abbas were also seeing the dance. At that very time accused Md. Mozahir having Nalkatti (country made pistol) in his hand wrapped in a towel came near Pawan Kumar who was also watching the dance. Md. Mozahir shot from the Nalkatti (country made pistol) near his right eye as a result of which Pawan fell down sustaining injury and blood started oozing out. Immediately thereafter Md. Abbas ran towards Mozahir Hussain, snatched the country made Nalkatti from his hand and both of them started fleeing away.The informant and others chased the accused persons and caught accused Md. Abbas but Md. Mozahir Hussain fled away towareds bamboo clump with Nalkatta. Persons assembled to watch dance also fled away. The informant along with others brought Md. Abbas at the place where Pawan Kumar was lying injured. Pawan Kumar was immediately brought for his treatment on a Jeep and accused Abbas was also brought on that very jeep. Pawan Kumar died on way to hospital and Md. Abbas was brought to police station, where fard beyan of the informant was recorded. Laxman Chaudhary (P.W.5) signed the F.I.R. as attesting witness. 3.The case was investigated by Narmdeshwar Singh Chauhan (P.W.9). Inquest report, seizure list was prepared, the dead body was sent for post-mortem and on completion of investigation charge sheet was submitted against accused persons. Both the accused were committed for trial. The trial court acquitted Md. Abbas from all the charges framed against him but appellant Md. Mozahir Hussain was convicted. 4. The prosecution to prove the charges framed against the accused appellant examined nine witnesses. P.W.1 is Lal Babu Chaudhary P.W.2 is Gajendra Sah, P.W.3 is kapildeo Choudhary, P.W.4 is Chhotelal Sah - 3 - p.W.5 is Laxman Choudhary and P.W.6 is Sanjay kumar. They have been examined as eye witnesses. P.W.8 Dr.A.C.Sinha has conducted post-mortem on the dead body of the deceased. Bhagya Narain Sah (P.W.7) has also been examined as eye witness. He has stated that on the occasion of marriage of his daughter the occurrence has taken place. P.W.9 is the Investigating Officer. From the evidence of P.W.5 Laxman Choudhary it transpires that P.W.1 , P.W.3 and P.W.5 are from the same family. P.W.5 has admittede that P.W.1 is his elder brother and P.W.3 is his uncle. 4.The case of the defence is of false implication at the instance of Laxman Choudhary, Lal Babu Chodhary and Kapildeo Choudhary as some lands was purchased by Alim Bux, father of Md. Mozahir from father of P.W.1. P.W. 3 and 5 were interested in re-transfer of that land in their favour from Ali Bux, but he was not showing any interest. To put pressure for transfer of land Md. Mozahir has falsely been implicated, taking advantage of accidental death of Pawan Kumar. Another defence of the accused is that the firing was made on arrival of barat for welcoming the barat party, but it accidentally hit Pawan Kumar. It was un intentional firing, but taking advantage of this situation a false case been concocted by the prosecution at the instance of P.W.1,3 and 5 for the reasons stated above. 5. P.W.1,2,3,4,5 6 and 7 examined as eye witnesses have stated that on the date and time of occurrence barat party arrived on the occasion of the marriage of the daughter of P.W.7. Some of the barati had already started taking refreshment but others were still enjoying the dance of band party. The villagers and other invitee, also assembled near the band party where the dance was going on. The accused Md. Mozahir, Abbas and deceased Pawan Kumar - 4 - were standing side by side and watching dance . Mozahir had kept concealed country made pistol in his towel. Suddenly he opened fire which hit near the right eye of Pawan Kumar. All these witnesses were cross examined on the point of enmity and motive for firing. Witnesses were asked this question whether just before the occurrence any altercation, quarrel or any unpleasant incident had taken place in between Pawan and Mozahir due to which firing was made and all of them have answered in negative. The witnesses have also been cross examined on the point of enmity in between the accused and the deceased but most of them have said that they do not have any knowledge about any enmity with the deceased and the accused. P.W.3,4,5 and 7 have specifically stated that there was no enmity in between Pawan Kumar and Mozahir. P.W.5 in his evidence has specifically stated that at the time of occurrence no altercation had taken place in between the Mozahir and Pawan Kumar. He himself has stated that he is still amazed and has no clue that why Pawan Kumar was shot by Mozahir. P.W.5 has admitted that Mozahir is mentally sound and not a mad person. Evidence of prosecution witnesses is specific on this point that there was no reason for intentional firing by Mozahir to kill Pawan Kumar. The evidence of the witnesses goes to show that there was no provocation, there was no enmity, there was no quarrel and no reason at all for firing by Mozahir to kill Pawan Kumar. 6. Considering the evidence of prosecution witness,, the defence of the accused seems to be the most natural and convincing reason for sudden firing by Mozahir to welcome the barat party. It was only an accident. The defence of the accused is further evident and corroborated from the fact that non of the family member of the deceased has bothered to come and - 5 - support the case of prosecution. If the firing would have intentionally been made for killing Pawan Kumar, his family members would never have distanced themselves from the trial. They must have participated and deposed in order to bring the real cause for the intentional killing by the accused. Non examination of the family members further supports the case of defence. The Investigating Officer P.W.9 has admitted that he did not even interrogate the family members of deceased which only indicates that the family members of the accused were not ready to support a false case, concocted at the instance of P.W.1, 3 and P.W.5. This is the reason that family members of deceased were kept behind the screen to make out a false and concocted case at the instance of interest witnesses. P.W.1, 3 and 5. 6. Counsel for the appellant has submitted that P.W.1, 3 and 5 had motive for false implication and on this point they were cross examined. P.W.3 was asked about the land purchased by the father of Mozahir from the father of P.W.1. and in para 3 of his evidence p.W.3 has tried to show his ignorance. P.W.1 was also cross examined on the point of motive for false implication. The evidence show that since 1998 a proceeding under Section 107 Cr.P.C. is going on in between the parties with respect to same land. P.W.1 has tried to show his ignorance. Similarly P.W.3 was also given suggestion that Mozahir has been falsely implicated at the instance of P.W.5 Laxman Choudhary which he denied. P.W.5 was given suggestion that Ali Bux had purchased land from his father which they wanted to take back for which the accused persons were not ready and this is the reason for his false implication which has been denied. P.W.9 the Investigating Officer was also given a suggestion in paragraph 12 that in connivance with Laxman Choudhary in a - 6 - false case charge sheet has been submitted against Mozahir which has been denied. Though P.W.1, 3, 5 and 9 have denied suggestions given to them but on consideration of entire prosecution evidence it seems to be the most viable reason behind sudden firing, to welcome barat. This view is further strengthen from the fact that though occurrence took place in presence of more than 100- 150 persons but only three members from a particular family had come forward to support the case of prosecution. Most interested persons ie. the family members of the deceased, who actually had cause against the accused, did not show any interest in prosecution of the accused persons. The conduct of the accused prior to occurrence, also indicate that the defence version is correct one. 7. However this is not the case of defence that firing was made by any other person and not by Mozahir. Defence has not come out with any other story regarding firing. All prosecution witnesses have stated that firing was made by mozahir. Now the question which arises for consideration whether it was accidental that Pawan Kumar was shot or whether the act of the accused comes within the perview of Section 302 or it should be brought under 304(II) of the Indian Penala Code. One important aspect of prosecution evidence is that except one allother prosecution witness have stated that firing was made by Mozahir from .o range. P.W.8 the doctor has not supported this part of the prosecution evidence. The doctor did not find any charring or blackening of injury. In the opinion of the doctor the injury found on the person of the deceased could have been made from a distance of 4-5 ft. This evidence also support that firing was made from a distance, and accidentally it hit Pawan. 8. Considering these evidence, the defence version seems to - 7 - be more convincing. Prosecution has failed to bring any evidence to support intentional firing by accused Mozahir. Once there is no evidence that it was intentional, the other view is most probable that it was accidental. The act of the accused, do not come within the purview of Section 302 of the Indian Penal Code but within the purview of Section 304 Part II of the Indian Penal Code. Accordingly conviction of appellant under Section 302 of the Indian Penal Code is modified to his conviction under Section 304 Part II of the Indian Penal Code. The appellant is in custody since 23.3.2000 i.e. almost for more than 8 years as such order of sentence is also altered and reduced to the period already undergone by him. The appeal is dismissed with the aforesaid modification in conviction and sentence. The appellant is directed to be released forthwith, if not required in any other case. (Mridula Mishra, J) Patna High Court The 24th Nov.2008 N.A.F.R./sss. I agree (Syed Md. Mahfooz Alam,J)