Criminal Appeal (SJ) No.247 of 1998 Against the judgment and order of conviction dated 27. 06. 1998 and order of sentence dated 30. 06. 1998, passed by Shri Shatrughan Singh, Rampuri, 2nd Additional Sessions Judge, Vaishali at Hajipur in Sessions Trial No. 51 of 1986. Md. Chand, son of Md. Hussain of Village- Kila laroi, P.S.Rajapakar, District- Vaishali. .... .... Appellant. Versus The State of Bihar .... .... Respondent. For the Appellant. : Mr. Shrinandan Pd. Singh, Advocate. Mr. Ashok Kumar, Advocate. For the Respondent State : Mr. Sujit Kumar Singh, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted for offence under Section 307 I.P.C. and sentenced to undergo rigorous imprisonment for four years. Further the appellant has been convicted for offence under Sections 25, 26 and 27 of the Arms Act, but has been sentenced only under Section 25 of the Arms Act for one year and no separate sentence has been given for offence under Section 26 and 27 of the Arms Act. 3. The prosecution case as alleged in the Fardbeyan by the informant Md. Muzammil Hussain that 2 he has land dispute with regard to partition of land with his brother-in-law (Sala) Md. Hussain. A case of partition was going on before Sub Judge, Hajipur, since last several years. On 14. 04. 1985, Md. Chand, son of his brother-in-law Md. Hussain came and asked him to execute a sale deed with regard to informant’s share of land in favour of appellant’s father. The informant disclosed that according to Muslim Law he has share in appellant’s fahter property and he will take his share. He will not execute any sale deed on which accused take out country made gun tried to fire at the wife of the informant but in the meantime the informant catch hold of the hand of appellant and pointed the gun down on which of the gun the daughter of informant Dil Afroj Khatun got injurty by the splinter. The daughter of the informant was also there to snatch the gun from the accused. It is alleged that gun was snatched by the informant. The informant, his daughter, wife, mother-in- law and Abdul Salam claims to have seen the occurrence. It is also asserted that on sound of fire arm several people of the village collected to saw the occurrence. It has further been alleged that Md. Chand 3 tied with rope and was kept at the dawaraja of neighbour Md. Hafiz. The informant kept the fire arm in his house and went to inform the police. He could not meet the police at police station as the Police Officer had proceeded to some other work. When the informant returned he found that the accused was not there and it was learnt that accused had flee away by untieing the rope. 4. On the Fardbeyan, F.I.R. was lodged. After investigation charge sheet submitted. During trial thirteen witnesses were examined. However, P.W. 4 is the informant, P.W. 2 is wife of the informant and P.W. 5 is the daughter of the informant. P.W. 2, 4 and 5 have supported the prosecution case about fire arm. However, P.W. 6, the doctor found two injuries on the person of daughter of the informant; first is abrasion and injury was simple in nature caused by hard and blunts substance and injury no. 2 also a simple and superficial injury caused by hard and blunt substance. However, P.W. 1, though, stated that he heard the sound of firing and learnt from son of Md. Jamir and then saw Md. Chand tied in a pillar. P.W. 3 stated that one Anwar 4 Hussain came and call him and disclosed that Md. Chand has injured his sister. However, said Anwar Hussain has not been examined. P.W. 13 is the I.O. who in his evidence has stated that he did not find any sign of fire arm nor he found any blood nor found any trampling mark, but only found broken churi. However, it is stated that firm arm (country made gun) was produced by the informant to the Darogaji in the police station. 5. The trial court taking into consideration the evidence that P.W. 2, 4 and 5 have supported the prosecution case and further seizure list was prepared and even the report of the Sergeant Major and sanction has been proved and country made gun was produced in presence of P.W. 8, convicted the appellant as mentioned above. 6. Learned counsel for the appellant however contended that occurrence is of the year 1985, admittedly, there is land dispute between the parties. The evidence of witnesses with regard to use of fire arm has not been supported by any other witnesses except P.W. 2, 4 and 5. In the Fardbeyan itself there is mentioned that at the time of occurrence several persons 5 were there and there is specific mention of the presence of the mother-in-law of the informant and one Abdul Salam. The prosecution case itself indicates that after sound of fire arm several people of the village collected. But except P.W. 2, 3 and 5 who are informant, his wife and daughter have come to support the prosecution case. There is no mention in the Fardbeyan that victim was tied with a pillar. It is only stated that Md. Chand was tied and was kept at the dawarja of the neighbour of Hafiz. However, neither Hafiz nor any of the person of the family of Hafiz has come to support the prosecution case. Hence it is contended that finding recorded by the lower court without proper appraisal of the evidence. 7. Learned counsel for the State however submits that witnesses have supported the prosecution case about fire arm and injuries found on the victim the daughter of the informant. 9. However, taking into consideration the case of prosecution itself shows that there was enmity with regard to land dispute between the prosecution party and the appellant and it is alleged that appellant take out fire arm and fired but at the intervention of the informant he 6 did not hit the wife of the informant, but its splinter hit the daughter of the informant and she injured. However, the explanation given for injury caused on her palm due to scuffle between victim and accused in snatching the gun is a further development. 10. However, except P.W. 2, 4 and 5, no witness has come forward to support the prosecution case about possession of fire arm with the appellant nor there is evidence about snatching of fire arm nor there is any evidence after snatching of fire arm which was kept with the informant. It is only stated by the informant that he snatched the fire arm and kept in his house, but there is no evidence of any witness that they saw the fire arm just after the occurrence. The medical evidence also does not suggest that injury of the victim was on fire arm rather it has been specifically asserted that injury caused by hard and blunt substance. The I.O. in his evidence has also not supported the prosecution case that he found any remain of the fire arm at the site of the occurrence. However, only evidence is that the informant produced the fire arm to the I.O. and hence except evidence of P.W. 2, 4 and 5, there is no evidence at all regarding 7 possession of fire arm or regarding the fact that appellant fired or there is no evidence that just after the occurrence any one saw for snatching the gun or kept in the house of the informant. Hence possession and use of fire arm has not been established and hence conviction for offence under Sections 25, 26 and 27 of the Arms Act is not at all sustainable in view of evidence of witnesses. However, it has been stated that there was several persons came at the place of occurrence just after the occurrence even there P.W. 2, 4 and 5, but none has come to depose. It is true that if there is complication between the parties, oral evidence and evidence of the doctor prevail. 11. However having regard to the facts and circumstances of the case, since oral evidence itself does not inspire confidence as P.W. 2, 4 and 5 are interested and inimical witnesses and wife of the informant who came to P.O. after the occurrence has come to support the prosecution case that at the time of occurrence accused armed with fire arm or even fire arm was snatched or even saw the fire arm having snatched and kept by the informant and hence it is apparent that story 8 of possession of fire arm is not at all established by cogent, reliable and unimpeachable evidence. 12. However, having regard to the fact that injury found also not suggestive to have been inflicted with intention to kill as both the injuries are simple and superficial and even not on vital part of the body and hence inference cannot be drawn that injury was inflicted with intention to kill and hence order of conviction under Section 307 I.P.C. recorded by the lower court is hereby set aside. Having regard to the fact that there is evidence regarding scuffle and assault and hence offence under Section 323 and 324 I.P.C. only be made out. 13. However, having regard to the fact and circumstance of the case, the occurrence is of the year 1985, and appellant has remained in jail for about forty days and hence interest of justice shall meet by sentencing the appellant for the period already undergone. Hence the appeal is allowed in part with modification of sentence. Patna High Court The 26th September, 2011. NAFR/m.p. ( Gopal Prasad, J.)