IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No. 21 of 1999 ~~~~~~ Against the judgment of conviction and order of sentence dated 23.12.1998 respectively passed by Srimati Shakuntala Sinha, learned Sessions Judge, Gaya in S. Tr. No. 400 of 1990. ~~~~~~ Surendra Manjhi, Son of Bideshi Manjhi, Resident of village – Musepur, P. S. – Khizersarai, District – Gaya. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellant : Mr. Arun Kumar Tripathi, Amicus Curiae. For the Respondent : Mr. Parmeshwar Mehta, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned amicus curiae and learned counsel for the State. 2. The appellant has been convicted for the offence under Section 326 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six years and further convicted for the offence under Section 25A of the Arms Act and sentenced to undergo rigorous imprisonment for three years and further convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for three years. However, it has been ordered that all the sentences shall run concurrently. 3. The prosecution case as alleged in the fardbeyan of the informant Ramdeo Ravidas is that on 28.09.1989 at about 8:30 P.M. he was feeding his younger son Ramanand and at that time Surendra Manjhi came to his house and sat on a Chauki besides his cot near his leg on another cot. He asked whether Bishundhari the brother of the informant is in the house or not on which the informant resorted that 2 he is not in the house. It is further alleged that Surendra Manjhi after five minutes take out his pistol and fired at the informant causing injury on his left leg. The wife of the informant came out on the sound of firing and saw the appellant fleeing away. It is further alleged that Lakhi Muni Devi the sister of the informant had also seen the appellant having talked and fired at the appellant. However, he has stated that he could not say whether he threw his pistol or not after firing and his sister also went inside the house. The motive for the occurrence as alleged is that there was prior enmity with regard to the dispute over labour charge as he has laboured in construction of school. 4. On the fardbeyan of the informant the First Information Report was lodged and the charge-sheet was submitted. During the trial ten witnesses were examined on behalf of the prosecution. 5. P. W. 1 is the wife of the informant has been tendered for cross- examination, P. W. 2 is the informant who has supported the prosecution case in the fardbeyan, P. W. 3 is the informant’s sister and she has also stated that Surendra Manjhi came, sat on the cot beside the cot of her brother and thereafter fired at Ramdeo Ravidas and fled away causing injury on left leg, P. W. 4 has formally proved Ext. 1 the formal First Information Report, P. W. 5 is the I.O. he has proved Ext. 2 the endorsement on the written report and has proved the formal First Information Report Ext. 1. He has proved Ext. 3 the seizure list of the blood stained earth. He has also proved Ext. 4 the signature of the seizure list witness Raj Kumar Das. He also seized a country made pistol and cartridges from the house of the informant. He recorded the statement of the seizure list witness and has stated that he sent the seized article to the Sergeant Major and sent a requisition for examining the pistol and cartridges and has proved the requisition as Ext. 5 and has also proved the report regarding the said arms and ammunitions in the writing of Sergeant Major 3 marked as Ext. 6. He even sent a requisition for obtaining sanction against Surendra Manjhi. 6. P. W. 6 stated that on hearing the sound of firing he came to the house of the informant and saw blood oozing out from the left leg of Ramdeo Ravidas and Reamdeo Ravidas disclosed about the firing by Surendra Manjhi and he has proved his signature on the seizure list regarding the seizure of the country made pistol and cartridges. 7. P. W. 7 has come to say that on the sound of firing he came to the house of Ramdeo Ravidas and he saw blood oozing out and Ramdeo Ravidas disclosed the firing by Surendra Manjhi causing injury. He has also proved regarding the seizure of the pistol, cartridges and the blood stained earth. 8. P. W. 8 is the doctor who found three injuries on the person of Ramdeo Ravidas (i) 2” diameter x 1/2" depth wound on the dorsum of left foot. Wound margin is irregular, (ii) 1” diameter x 1/2 depth wound on middle part of lateral side of left sole. Wound margin is irregular and (iii) Marks of tattooing on anterior side of lower part of left leg. He has stated that he referred the patient to Pilgrim Hospital, Gaya. He has further stated that as per the X-ray report multiple fractures of metaforal bones of left foot were found. He found mark of identification 1 and 1/2" length and 1/4" width healed wound scar on upper part of lateral malleolus of left lower limb. However, in cross-examination he has stated that he did not find any blackening of charring around the wound. It shows that the fire was not made from a close range. The fire wound has been made from a distance more than 10 meters. The injury was not dangerous for life. The injury could be homicidal. The injured is not present in the Court. The X-ray plate has not been shown to me in the Court. 9. P. W. 9 has formally proved the signature of the District Magistrate. P. W. 10 has formally proved the written report marked as Ext. 2/1. 4 10. The trial court taking into consideration the evidence of the witnesses held that the witnesses have supported the prosecution case as P. W. 2 the informant is the eyewitness to the occurrence and he has supported the prosecution case regarding involvement of the appellant. The wife and sister of the victim have also supported the prosecution case to the extent that they saw the accused fleeing away after the occurrence and even the appellant was talking with the informant. P. Ws. 6 and 7 have come to support the seizure list witness and the informant disclosed about the occurrence and hence convicted the appellant and sentence as mentioned above. 11. Learned counsel for the appellant, challenged the order of conviction and sentence that the prosecution has not been able to prove the charges beyond reasonable doubt. 12. However, taking into consideration the facts and circumstances of the prosecution case that the appellant came and sat at beside the cot of the informant while the informant was feeding his son. However, it has been asserted that the appellant asked about his brother and thereafter immediately within no time the appellant got up, shot at informant on his leg from close range and thereafter fled away. 13. However, the doctor P. W. 8 in his evidence has opined that the fire was shot from a quite long distance from ten meters. Hence the doctor’s evidence does not corroborate the evidence of the informant and hence suffer from contradiction. The evidence of the informant is not corroborated by the medical evidence and creates a doubt. However, the informant was with his son on his lap when firing made on his leg. However, the injury was only to informant and no injury caused to his son. The X-ray report has also not been brought on record and hence the doctor’s report that informant got grievous injury is also not sustainable which creates a 5 doubt on prosecution case. 14. However, the prosecution case is that the informant came and fired. The I.O. has seized a pistol and cartridge. However, neither the informant nor his wife nor his daughter in their evidence ever stated that whose pistol it was. The informant in his fardbeyan himself stated that he did not see whether the appellant threw his pistol or not, nor in his examination in chief or cross-examination had stated about the pistol left or thrown by the appellant and hence there is no evidence that the pistol belongs to the appellant. However, the I.O. has proved the seizure list regarding the seizure of a pistol and cartridge from the house of the informant. However, there is no evidence that the said pistol and cartridge belonged to the appellant nor there is any evidence that the said articles were recovered from the possession of the appellant. 15. However, having regard to the fact that the prosecution case regarding the firing from close range though having been corroborated by the evidence of P. Ws. 2 and 3 as well as P. Ws. 6 and 7 though claims to have seizure witnesses and have corroborated the evidence of P. W. 2 the informant that the informant disclosed them about the firing by Surendra Manjhi. However, though the evidence of P. W. 2 has been corroborated by P. Ws. 6 and 7 regarding the firing but the evidence of the doctor P. W. 8 is in contradiction to the evidence of P. W. 2 that the firing was made from a close range whereas the evidence of P. W. 8 the doctor that the firing was not from a close range but from a distance of ten meters and hence having regard to the fact the medical evidence not corroborating the ocular evidence. P. Ws. 2 and 3 are the interested witnesses in this case and further the X-ray plate having not been proved nor there is any evidence that the pistol belonged to the appellant and hence under the facts and circumstances the prosecution has not been able to establish the prosecution case by cogent, reliable and unimpeachable evidence and in such a 6 circumstance the appellant is entitled for benefit of doubt and hence I find and hold that the prosecution has not been able to prove the charges under Sections 326 of the Indian Penal Code, 25A and 26 of the Arms Act and hence the prosecution has not been able to prove the charges beyond reasonable doubt and hence the order of conviction and sentence recorded by the lower court is hereby set aside and hence the appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 14th December, 2011. N.A.F.R./Kundan.