CRIMINAL APPEAL No.373 OF 1993 ***** Against the judgment of conviction and order of sentence dated 15th of December, 1993 passed by Shri Hari Bhushan Prasad Sinha, Ist Additional Sessions Judge, Buxar, in Sessions Trial No.- 463 of 1990. 1. LACHUMAN SINGH, S/O-Kapil Singh 2. BABBAN SINGH, S/O-Kapil Singh 3. PARSURAM SINGH, S/O-Shiv Govind Singh 4. MOFIL SINGH, S/O-Shiv Govind Singh 5. RAM BILAS SINGH, S/O-Shiv Govind Singh 6. SUDARSHAN SINGH, S/O-Ram Bilas Singh 7. BANARSI SINGH, S/O-Mofil Singh 8. SRI KISHUN SINGH, S/O-Mofil Singh 9. SHEO NARAYAN SINGH, S/O-Parsuram Singh 10. JEE NARAYAN SINGH, S/O-Parsuram Singh 11. KANHAIYA SINGH, S/O-Mofil Singh All are R/O-Vill/Moh.-Tajpur, P.S.-Itarhi, Dist.-Bhojpur at present Buxar. -------------------------------------------(Appellants) Versus THE STATE OF BIHAR --------------------------------------------------(Respondent) For the Appellants : Mr. Om Prakash Upadhyay (Advocate) : Mr. Mithilesh Kumar Upadhyay (Advocate) : Mr. Arun Kumar Pandey (Advocate) : Mr. Manoj Kumar Singh (Advocate) For the Informant : M/S Ashok Kumar Singh (Sr. Advocate) : Mr. Amrendra Kumar Singh No. 1 (Advocate) For the State : Mr. Ali Mozaffar (APP) P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA ***** S.K. Sharma, J. This appeal has been filed against the judgment of conviction 2 and order of sentence dated 15th of December, 1993 passed by Shri Hari Bhushan Prasad Sinha, Ist Additional Sessions Judge, Buxar, in Sessions Trial No.- 463 of 1990 by which the appellants Lachuman Singh and Babban Singh have been convicted under Section 307 of the Indian Penal Code and Section 27 of the Arms Act and have been sentenced to undergo rigorous imprisonment for 7 years and one year respectively. All the remaining appellants namely Parshuram Singh, Mofil Singh, Ram Bilas Singh, Sudarshan Singh, Banarsi Singh, Shri Kishun Singh, Sheo Narain Singh, Jee Narain Singh and Kanhaiya Singh have been convicted under Section 307/149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for 7 years. All the eleven appellants have further been convicted under Sections 447 and 426 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for one month under each count. Further appellants Lachuman Singh, Babban Singh, Parshuram Singh, Banarsi Singh, Mofil Singh, Shri Kishun Singh, Ram Bilas Singh have been convicted under Section 148 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for two years and the remaining appellants namely Sudarshan Singh, Sheo Narain Singh, Jee Narain Singh and Kanhaiya Singh have been convicted under Section 147 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for one year. It was ordered that all the sentences against all the 3 accused persons shall run concurrently. 2. From the judgment, it appears that one of the appellant Jee Narayan Singh was aged 20 years in the year 1993 and the occurrence is of 18.08.1989, it means that appellant was not major on the date of occurrence. 3. The First Information Report (Ext. 1) is the narration of prosecution version, according to which a piece of land measuring 1 acre 87 ½ decimals, appertaining to S.P. No.- 1409 under Khata No. 608 of village Bijaura, police station- Itarhi was purchased by the informant’s family in the name of Kaushalya Devi vide Kebala dated 28.10.1985 executed by Kunti Devi, wife of Nathya Singh and the purchaser had come in possession thereof since the date of purchase itself. Appellant Lachuman Singh had filed a case under the provisions of Ceiling Act for preemption. On 18.08.1989 at about 10 a.m., the named accused namely Lachuman Singh, Babban Singh, Parsuram Singh, Mofil Singh, Ram Bilas Singh, Sudarshan Singh, Banarsi Singh, Sri Kishun Singh, Sheo Narayan Singh, Jee Narayan Singh and Kanhaiya Singh variously armed came over the said land and started ploughing that land which resulted in the uprooting of the paddy seedling. The act of the appellants was protested by the informant and his cousin Kashinath Singh. At that very time, the appellant Lachuman Singh ordered and himself shot fire upon the informant’s cousin 4 Kashinath Singh, resulting in firearm injury to Kashinath Singh. The firing was also resorted by appellant Babban Singh which caused injury to Kashinath Singh. Even after sustaining the injuries, the appellants continued firings. The informant submitted a written report (Ext. 2) before the police station on that very day of occurrence on the basis of which the First Information Report was lodged at 13-15 hrs. The allegations were investigated into and the police found those allegations against the appellants to be true and accordingly charge sheet was submitted against them. Cognizance was taken and the case was committed to the court of Sessions. Thereafter, charges were framed and the same were explained to the accused persons. They pleaded their innocence and preferred to face the trial. 4. The defence of the appellants is of false implication. On the date of occurrence, the appellants were in possession of the said land and the delivery of the said land was legal which was given to them. The occurrence has also been denied. The version of the appellants was that on the date of occurrence the informant party came variously armed over the land and assaulted the ploughman of the appellants for which they had filed a case before the learned Additional Chief Judicial Magistrate and the present case has been lodged so that the appellants could be made immobile and they could be compelled to surrender. 5 5. The prosecution, in order to prove its case, has examined 8 witnesses, out of which two are the Investigating Officer and the doctor. Remaining 6 witnesses including the informant have been examined on the point of occurrence. Jagarnath Singh, Hawaldar Singh and Motilal Singh who are the F.I.R. named witnesses have been examined as P.W.1, P.W. 2 and P.W. 3 respectively. Kashinath Singh who has sustained injury has been examined as P.W. 4. Kaushalya Devi has been examined as P.W. 5 whereas the informant Sudama Singh one of the injured has been examined as P.W. 6. Rajnandan Singh who has investigated the case has been examined as P.W. 7 whereas Dr. Chunnilal Prasad who has examined the injured persons has been examined as P.W. 8. 6. Chumman Singh and Radha Prasad are the two witnesses who have been examined on behalf of the defence as D.W. 1 and D.W. 2 respectively. 7. There are two types of accused in this case. So far as Appellants 1 and 2 are concerned there is allegation of causing firearm injuries which resulted into the institution of the First Information Report. With regard to the other appellants, it is alleged that they are the members of the unlawful assembly but caused no injury to the informant and others. 8. The prosecution has exhibited the First Information Report 6 as Ext. 2, signatures of Sudama Singh and Kashinath Singh on the First Information Report as Exts. 1-1/1 respectively the entire case diary as Ext. 3, injury reports of the injured Sudama Singh and Kashinath Singh as Exts. 4 and 4/1 respectively. The order dated 10.01.2009 of Case no. 159 of 1988-89/33 of 1987-88 passed by the Additional Collector Bhojpur at Ara has been marked as Ext. 5. The order sheet dated 28.11.1989 of the Court of S.D.O. Buxar has been marked as Ext. 5/1 whereas the order dated 9.8.1988 passed by Shri J.P. Chaturvedi, Executive Magistrate, Buxar in Case No. – 1159 (M) 87 has been marked as Ext. 5/2. 9. The defence has also exhibited the complaint petition of 488 (C) 89 as Ext. A and the order of the D.C.L.R., Buxar in Case No. 2 of 1987-88 as Ext. B. 10. P.W.1, in his evidence has stated that he was on his land on the date of occurrence. All the accused persons variously armed came to the place of occurrence and started ploughing the land which was protested. Thereupon, the appellants Lachuman Singh and Babban Singh fired which has caused injuries. With regard to others, it has been stated that they were also present with deadly weapons. On this point P.W. 1 has been supported by two other First Information Report named witnesses i.e. P.Ws. 2 and 3. Two persons have been injured in the occurrence. Their 7 injury reports have been brought on the record issued by the doctor who has treated him. 11. The injuries of Sudama Singh are as follows: I. One punctured wound over right upper arm vertebral surface 2 mm x 2 mm circular inverted and ragged margin black in colour. II. Two punctured wound over left thigh adjacent to each other of size 2 mm x 2 mm each circular inverted and ragged margin black in colour. III. One punctured wound over right root of thumb of size 2 mm x 2 mm, circular ragged and inverted margin. All the injuries were simple in nature caused by firearms. 12. The injuries of Kashinath Singh are as follows: I. One punctured wound over abdomen middle of size 2 mm x 2 mm circular black irregular and ragged margin. II. Scratch over left heel size ½” x ¼”. Both the injuries were simple in nature caused by hard and blunt substances. 13. Injured persons namely Kashinath Singh and the informant Sudama Singh have stated that on the date of occurrence the appellants were present at the place of occurrence and in furtherance of their common intention of killing, firings were resorted by Lachuman Singh and 8 Babban Singh. Though the witnesses have stated about the presence of others also but no specific overt act has been alleged against either of them. The first version of the occurrence (Ext. 2) it mentions that the plot was purchased on 28.10.1985 in the name of Kaushalya Devi and the informant was in possession of the same. That purchase has resulted into a case under Section 16 (3)(1) of the Bihar Land Ceiling Act on 18.08.1989. At about 10 A.M., the named accused persons variously armed came and started ploughing the said land and when it was protested by the informant, thereupon the appellants Lachuman Singh and Babban Singh had fired upon the informant and his cousin. 14. After analyzing the fardbeyan (Ext. 2) it appears that the narration is only to the extent that appellants Lachuman Singh, Babban Singh and others were present only for the purpose of cultivation. There is no where mention that they were present for the purpose of causing any overt act or assault. The conviction of appellants except Lachuman Singh and Babban Singh has been passed with the assistance of Section 149 Indian Penal Code which provides punishment for the offence committed by any member of an unlawful assembly in prosecution of common object of that assembly. Some of the ingredients are necessary for proving the charge under Section 149 of 9 the Indian Penal Code. The ingredients are : I. The commission of an offence by any member of an unlawful assembly. II. The offence must have been committed in prosecution of the common object of the assembly or must be such that the members of the assembly knew to be likely to be committed. 15. The fardbeyan and the evidence of the informant do not indicate that other members of the alleged assembly were knowing of the fact that any assault was to be committed. They have come for the purpose of cultivation according to the First Information Report. It is difficult to presume that they have come at the place of occurrence for committing murder. 16. In view of the analysis of the facts available on record, I am of the view that the prosecution has not been able to prove that Parsuram Singh, Mofil Singh, Ram Bilas Singh, Sudarshan Singh, Banarsi Singh, Sri Kishun Singh, Sheo Narayan Singh, Jee Narayn Singh and Kanhaiya Singh were liable to be convicted for the offences under Sections 307/149 of the Indian Penal Code. Persons merely present are not liable for punishment. Charge for conviction under Sections 307/149 of the Indian Penal Code the prosecution has not been able to proved. Other charges have also not been proved against them namely Parsuram Singh, Mofil 10 Singh, Ram Bilas Singh, Sudarshan Singh, Banarsi Singh, Sri Kishun Singh, Sheo Narayan Singh, Jee Narayan Singh and Kanhaiya Singh. So, the judgment of conviction and sentence so far these appellants are concerned is set aside. Accordingly they are acquitted of all charges and are discharged from the liabilities of their bail bonds. 17. With regard to appellants 1 and 2, there is evidence that these two persons have fired and caused injuries to P.Ws. 4 and 6. The doctor P.W. 8 has examined them and has deposed before the trial court that they were brought to the hospital for treatment of their injuries caused by the firearms. However, the injuries attributed to the injured were neither on the vital part nor it was dangerous to life. Though, there is allegation that the other persons were present at the place of occurrence, it is essential that the intention must be proved. The nature of injuries and facts and circumstances available on record do not indicate that they should be convicted under Sections 307/34 of the Indian Penal Code and Section 27 of the Arms Act. The evidence is only to the extent that some injuries were caused. 18. Therefore, I am of the view that the conviction of these two appellants under Section 307 of the Indian Penal Code needs modification and it is accordingly modified and converted into under Section 324/149 of the Indian Penal 11 Code. Since charges of other offences have not been proved against them, they are acquitted for the said charges. 19. On the point of sentence under Sections 324/149 of the Indian Penal Code against the appellants Lachuman Singh and Babban Singh, it has been submitted that they have remained in custody considerably for a longer period during the trial and appeal. So, lenient view may be taken in the matter of sentence. 20. Taking into consideration the submission and all the facts and circumstances of the case, appellants Lachuman Singh and Babban Singh are sentenced to the period already undergone by them during trial and appeal which in my view will be sufficient for the ends of justice. 21. Accordingly appeal of nine accused namely Parsuram Singh, Mofil Singh, Ram Bilas Singh, Sudarshan Singh, Banarsi Singh, Sri Kishun Singh, Sheo Narayan Singh, Jee Narayan Singh and Kanhaiya Singh is allowed and appeal of appellants Lachuman Singh and Babban Singh is dismissed with modification in conviction and sentences period undergone. kksinha/- ( Shyam Kishore Sharma, J. )