CR. REV. No.320 of 2001 ---------- Against the order and judgement dated 5th January 2001 Passed by the 3rd Additional Sessions Judges, Bhagalpur in Cr. Appeal No. 41 of 1997 Confirming the judgement of the Assistant Sessions Judge, Bhagalpur dated 24.6.97 in S.T. No. 61 of 1991. ------------- 1. BHUDEO DAS son of Atwari Das 2. Tukaram @ Pagla Das son of late shobhanDas 3.Kanhai das @ Kanhaya Das son of Shobhan Das All residents of village Gourachouki p.S. Kajreli (Nathnagar) District Bhagalp;ur ……..Petitioners Versus STATE OF BIHAR ……Opposite Party. ----------- For the peptitioners : M/s Anil Kumar Mukund RekhaMukund BinayKumar Singh Anil Kumar Sinha, Advocates For the Opposite Party: None ------------ P R E S E N T THE HON”BLE MR. JUSTICE MANDHATA SINGH, Mandhata Singh,J Perused the record. Learned counsel for the petitioner is present but the State is absent. Prosecution case in brief is that in between intervening night of 5/6.7.1990 at about 1 A.M. all the accused persons namely Tuka Ram Das alias Pagla Das having a gun in his hand, Sobhan Das with sword in one hand and bhala in another hand, Bhudeo Das country made pistol and Kanhai Das with mascate along with other persons with lathi came to the house of the informant Ganesh Das . Sobhan Das abused and ordered the rest of the accused persons to kill the informant. Obeying thereof Tuka Ram @ Pagla Das shot firing on the informant which injured his right buttock. Informant’s son were also assaulted when they reached there in rescue. Their further allegation is of taking away the house hold articles - 2 - including utensils, cash and ornaments. Witnesses appeared there also and lastly a threatening was given to kill in case they would come to the disputed land. Earlier also an informatory petition was given basing which police initiated a proceeding under section 107 Cr.P.C. and 144 Cr.P.C. against the accused persons. The accused persons after concluding the trial are convicted. Tuka Ram Das @ Pagla Das convicted for the offence under section 307 of the Indian Penal Code and rest of the petitioners convicted for the offences under sections 149/307 of the Indian Penal Code which only is affirmed in appeal decided by 3rd Additional Sessions Judge, Bhagalpur. Conviction and sentence of both the courts have been challenged by filing of this revision application. Though the occurrence is regarding long enmity between the parties, contradictions appeared in statement of witnesses but the learned counsel concentrated himself about non-constituting of offence under section 307 of the Indian Penal Code. On this point his submission is that first information report as well as statement of witnesses is constant on the point that all the accused persons came to the house of the informant while he was sleeping but only one of them namely petitioner Tuka Ram Das @ Pagla Das over acted and shot firing while Shobhan Das was armed with sword, Bhudo Das with country made pistol and Kanhaiya Das with maskat but none of the arms were used rather some injuries were caused to the informants’ son by unknown accused who were armed with lathi and most relevantly when the villagers gathered then only they took away some house hold articles though that has been disbelieved but before leaving the - 3 - place of occurrence threatening to kill was given by accused Shobhan Das under the direction of whom firing was shot by Tuka Ram Das @ Pagla Das. Otherwise also part of the body which is attached is buttock is also pointed out to belie the intention to kill which is further followed by causing simple injury. All the submitted points are admitted in the prosecution case also which is clear enough the allegation needs no scuritinisation. Witnesses/ family members of the prosecution have also corroborated the assertion made in the first information report and injury report is also there which has been elaborately discussed by the trial court only ignoring the intention which is suggested by the learned counsel and convincing also. In the case the informant was sleeping but only buttock has been aimed by one only while rest of the accused persons were also armed with dangerous weapon including firearms which they did not use rather threatening to kill was given and that also on reaching of the witnesses at place of occurrence . Long enmity was also there. Discussed circumstances are clear enough to reach the only conclusion that there was no intention at all to kill so the conviction is modified to 324 Cr.P.C. and 324/34 and sentence reduced to the period already undergone by the petitioners. It is made clear that petitioner no.2 has remained in custody for more than five and half months and rest of the petitioners two and half months. In the result the order and judgement dated 5th January 2001 - 4 - Patna High Court, 8th October 2009 Rahman/NAFR passed by the 3rd Additioinal Sessions Judge, Bhagalpur in Cr. Appeal No.41 of 1997 confiring the judgement of the Assistant Sessions Judge, Bhagalpur dated 24.6.97 in S.T. No. 61 of 1991 is hereby affirmed with modification. Since the petitioners are on bail they are discharged from the liabilities of their bail bonds. (Mandhata Singh, J) M.Rahman