Criminal Appeal (SJ) No.302 of 1996 Against the judgment and order dated 27.11.1996 passed by 1st Additional District and Sessions Judge, Khagaria in Sessions Case No. 156 of 1992(Arising out of Khagaria P.S. Case No. 150 of 1991) 1. CHANDAN SINGH @ CHANDAN PRASAD SINGH SON OF RAM SHARAN SINGH. 2. GORAKH PRASAD SINGH @ GORAKH SINGH SON OF DEO NARAIN SINGH. 3. SHANKAR PRASAD SINGH, @ SHANKAR SINGH SON OF BHUBNESHWAR PRASAD SINGH. 4. NARESH PRASAD SINGH @ NARESH SINGH SON OF BUBHU PRASAD SINGH. 5. SATYA NARAIN PRASAD SINGH SON OF RAM LOCHAN PRASAD SINGH, ALL ARE RESIDENT OF VILLAGE- BHADAS POLICE STATION-KHAGARIA DISTRICT- KHAGARIA …..... APPELLANT/S Versus STATE OF BIHAR .... .... RESPONDENT/S For the Appellant/s : Mr.Shashi Dhar Jha, Advocate. For the Respondent/s : Mr. Sujit Kumar Singh, Adv. A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the respondent. 2. The appellant no. 1 has been convicted under Section 307 and has been sentence to rigorous imprisonment for ten years however, the other appellant nos. 2 and 5 have been convicted under 147 of the Indian Penal Code and appellant no. 3 and 4 have been convicted under Section 148 however, all the appellant nos. 2 to 4 has been ordered to be released on executing of bond of Rs. 5,000/- with two sureties of the like amount each for keeping peace and good behaviour for two years. 3. The prosecution has alleged that informant Brahma Deo Prasad Singh was carrying Bhusa from Khalihan 2 2 of Ram Prakash Singh on 28.04.1991 at about 9.00 A.M. the informant came to Bhuskar of Ram Prakash singh and heard cry of “Bachao, Bachao” and the informant rushed to the courtyard of Basudeo Prasad Singh and saw Chandan Prasad Singh armed with rifle, Shankar Prasad Singh armed with rifle, Naresh Singh armed with 303, Gorakh Prasad Singh armed with lathi, Janardan Prasad Singh armed with Lathio, surrounding Ram Prakash Singh. In the mean time, the informant intervening whereupon Satya Narain Prasad Singh asked the fellow accused to assault the informant and thereupon Chandan Prasad Singh fired at the informant from his rifle and caused injury on the left side of his chest and informant fell down and accused took to theirs heels on the sound of gun fire, Sita Ram Prasad and Gongo Singh witnessed the occurrence. 4. On the fardbeyan FIR was lodged and after investigation investigating officer submitted charge sheet and cognizance has been taken for offence under Section 307 and allied sections of the Indian Penal Code. In the case committed to the Court of Sessions charges were framed after commitment and trial were preceded. During the trial witnesses were examined and after considering the oral and documentary evidence the order of conviction and sentence recorded. 5. Learned counsel for the appellants contended that witnesses have been examined in this case and there is an enmity between the parties and the appellants have been falsely 3 3 implicated. It has further been contended that the allegation that Chandan Prasad Singh fired at the informant from his rifle and caused injury on his chest. However, doctor of P.W. 5 has stated that he found fire arm lacerated injury 2” x 2” and reserved opinion for want of x-ray and expert opinion and referred to P.M.C.H., Patna. However, subsequently no injury report or x-ray report or expert opinion has been proved or brought on record in this case during the trial to see the nature of injury and since there is no evidence that injury was dangerous to life, hence, no offence under Section 307 of the Indian Penal Code has been found. It has further been submitted that, under the facts and circumstance, the order of conviction and sentence recorded is not sustainable. 6. Learned counsel for the state however, contended that though there is evidence regarding causing injury the witnesses have supported the prosecution case. 7. Having regards to the fact and circumstance, whether the order of conviction and sentence is sustainable and the prosecution has proved the charges. 8. However, from the evidence of the witnesses when the witnesses supported the prosecution case along with fire arm and P.W. 1 and 2 have supported the prosecution about firing injury to the appellant from the rifle and P.W. 5 has found the injury by fire arm on the chest. 9. However, nature of injury has not been mentioned neither it is simple or grievous or dangerous. 4 4 Though he has reserved the opinion for want x-ray report and expert opinion and referred the matter to the P.M.C.H. However, there is neither any expert opinion nor the x-ray report has been proved in this case and hence it has not been find out whether injury was simple or grievous though the weapons and the part of the body on the chest but the nature of the injury has not been established as dangerous to life. Hence the conviction under Section 307 is not sustainable. 10. Having regard to the facts and circumstances that nature of the injury has not be established and there is no evidence that the injury was dangerous to life the conviction under Section 307 is not sustainable however, having regard to the conviction that there is allegation of firing and injury corresponding having been established hence, prosecution has proved the offence under section 324 and 27 of the Arms Act. 11. However the occurrence of the year 1991 and from record it appears that the appellant no. 1 remain in custody four and half months during the investigation as well after conviction till grant of bail by the Hon’ble Court and hence the ends of justice shall meet by sentencing the appellant no. 1 for the period already under gone, during the investigation and after the conviction and hence with these modification in the sentence the appeal is dismissed. Patna High Court, Patna Dated. 05.07.2011 N.F.A.R./Devendra/ ( Gopal Prasad, J.)