1 CRIMINAL APPEAL No.27 OF 1993 WITH CRIMINAL APPEAL NO.60 OF 1993 ----- Against the judgment of conviction and sentence dated 18.1.1993 passed by Sri Bhukhal Prasad, 7th Additional Sessions Judge, Patna in Sessions Trial No.920/1989. ----- 1. Rupa Rai (since dead) 2. Ram Lila Rai 3. Dharambir Rai alias Dharmendra Rai 4. Deosaran Rai …….. Appellants (in Cr.A.No.27/1993) Arbind Rai alias Arvind Prasad … …… Appellant (in Cr.A.No.60/1993) Versus The State of Bihar ……… Respondent (in both the appeals) ---- For the appellants :M/s Markendeya Singh,Advocate and Syed Wazir Ali,Advocate For the State :Mr. Ali Muzaffar, Addl.P.P. ----- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA ----- S.K.Sharma,J. Since both the above appeals have arisen out of one common judgment, they have been heard together and are being disposed of by this judgment. By the impugned judgment dated 18.1.1993 passed by 7th Additional Sessions Judge, Patna in Sessions Trial No. 920 of 1989 appellants of Cr.Appeal No. 27 of 1993 namely, Rupa Rai (since dead), Ram Lila Rai, Dharambir Rai alias Dharmendra Rai and Deosaran Rai have been convicted under Section 147 of the Indian Penal Code and have been sentenced to undergo rigorous 2 imprisonment for one year each and appellant of Cr.Appeal No. 60 of 1993 namely, Arbind Rai alias Arvind Prasad has been convicted under Sections 307 and 148 of the Indian Penal Code and 27 of the Arms Act and has been sentenced thereunder to undergo rigorous imprisonment for ten years, two years and three years respectively and all the sentences were ordered to run concurrently. A fardbeyan with regard to an occurrence was given by Smt.Sumitra Devi (P.W.1), wife of Bhagwan Rai, (P.W.2) at 11.30 P.M. on 1.4.1988 at village Naya Tola Saguna in which she alleged that in the morning at about 6.30 A.M. she along with her Jaut Kiran Rai (P.W.3) and husband Bhagwan Rai (P.W.2) were at their field in the southern side of New Bailey Road for the purpose of harvesting the wheat. Harvesting was started by the informant, his Jaut and her husband. A few minutes thereafter Rupa Rai (now dead), Arbind Rai, Sanjay Rai (since dead during trial), Samdhi of Rupa Rai (Deosaran Rai), son-in-law of Rupa Rai (Dharmendra Rai) and sala of Arbind Rai (Ram Lila Rai) came near the field and asked the informant and her men not to harvest the wheat. The altercation ensued and at behest of Rupa 3 Rai and Sanjay Rai, Deosaran Rai caught Kiran Rai and Arbind Rai and Ramlila Rai fired from their pistols which caused injury to Kiran Rai who fell down and started crying. The informant and her husband also raised hulla. On hearing hulla, the people of the locality came and thereafter accused persons escaped. At the time of escaping, the accused persons also exploded bomb. Injured Kiran Rai was brought to Danapur Hospital for treatment. From Danapur, the patient was referred to P.M.C.H. for better treatment where he was treated. The land dispute was the motive of occurrence. On the basis of fardbeyan, Danapur P.S.Case No. 165 of 1988 under Sections 341,324 and 307 of the Indian Penal Code, 27 of the Arms Act and 3/5 of the Explosive Substance Act was registered against Arbind Rai, Ram Lila Rai and four others. The matter was investigated into and after completion of investigation, charge sheet was submitted under Sections 341,324 and 307 of the Indian Penal Code, 27 of the Arms Act and 3/5 of the Explosive Substance Act. Cognizance was taken and case was committed to the court of sessions. Trial proceeded. Charges under Sections 147,148,307 and 307/149 of the Indian Penal Code 4 and 27 Arms Act were framed against the accused persons. Charges were explained to the accused persons who pleaded innocence and faced trial. The defence of the appellants was of false implication due to land dispute. Further defence was that there was no explanation as to why about the occurrence of morning, the matter was reported to police at about 11.30 P.M. though the police station is less than 1 K.M. from the place of occurrence and the resident of the informant. Further defence was that the accused Rupa Rai is the original owner of the wheat land though there were dispute with regard to the said land and the prosecution party has lost the cases in all the courts and they were adamant to any how take possession of the land. It was also the defence of the accused persons that the manner of occurrence has not been established. In order to prove its case, the prosecution examined altogether 8 witnesses. P.W.1 is Munna Rai alias Rajendra Rai. He is son of Ram Rekha Rai (P.W.5). P.W.2 is Bhagwan Rai who is husband of the informant. P.W.3 is Kiran Rai, the injured who is son of P.W.5 Ram Rekha Rai. P.W.4 is Ajay Kumar who has been declared 5 tendered. P.W.5 is Ram Rekha Rai, father of the injured. P.W.6 is Smt.Sumitra Devi, the informant. P.W.7 is Alakhdeo Singh who is Investigating Officer of this case. P.W.8 is Dr.Dharani Kant Issar who was posted as Assistant Professor in P.M.C.H. and has treated the victim. The victim is P.W.3 Kiran Rai. He in his evidence has stated that on 1.4.1988 which was Friday, he had been to his field. At that time, Bhagwan Rai, Ram Rekha Rai, Munna Rai and Sumitra Devi came to harvest the wheat. Accused persons namely, Rupa Rai, Deosaran Rai, Arjun Rai, Sanjay Rai, Dharmendra Rai and Ramlila Rai also came and asked Bhagwan Rai and others not to harvest the wheat. At this, altercation ensued. Thereaftere at the behest of Rupa Rai and Sanjay Rai, Arbind Rai fired aiming upon the mouth of this witness, as a result which his teeth were uprooted. Thereafter this witness was fired upon by Sanjay Rai which caused injury in his left leg. This witness lost his consciousness and he regained his consciousness in P.M.C.H. This witness has stated that after release from P.M.C.H. he went to police station. This witness has further 6 stated that the proceeding under Section 145 Cr.P.C. with regard to the disputed land was decided in favour of the prosecution party. In the cross-examination, this witness has stated that all the prosecution witnesses are family members. The informant Sumitra Devi has been examined as P.W.6 who in her evidence has stated that she along with Munna Rai, Bhagwan Rai, Kiran Rai and Ram Rekha Rai were engaged in harvesting wheat crops. In the meanwhile, accused persons namely, Rupa Rai, Arbind Rai, Sanjay Rai, Deosaran Rai and Dharmendra Rai came at the field and asked the informant and her men not to harvest the wheat crops. Verbal dispute started and thereafter at the behest of Rupa Rai, Arbind Rai fired which caused injury in the mouth and the firing made by Sanjay Rai caused on the left leg of the said Kiran Rai. After receiving injuries, Kiran Rai fell down and became unconscious. The accused persons thereafter escaped. The injured was brought to Danapur Hospital and from where he was referred to P.M.C.H. where he was treated. The injured remained in the hospital for about 22 days. 7 P.W.2 Bhagwan Rai is the husband of the informant. According to this witness, all the accused persons came and asked the informant and her men not to harvest the wheat crops. Thereafter verbal altercation ensued and on the exhortation made by Deosaran Rai, accused Arbind Rai fired from his pistol which hit on the mouth of Kiran Rai and the firing made by Sanjay Kumar hit in the left leg of Kiran Rai. The injured was taken to Danapur hospital from where he was referred to P.M.C.H. This witness has supported the factum of occurrence. This witness was examined in detail but his evidence remains intact and has stated that all the accused persons forming an unlawful assembly came and committed the offence. This witness has stated that accused Arbind Rai fired which caused injury on the mouth of P.W.3 Kiran Rai. Another person namely, Sanjay Kumar, fired which caused injury in the left leg of said Kiran Rai. P.W.8 is Dr.Dharni Kant Issar who was posted as Assistnat Professor in the Department of ENT, P.M.C.H. and on 1.4.1988 and he examined injured Kiran Rai and found following injuries: (i) Lacerated injury of upper lip, 8 complete up to root of left nostrial 1 1/2”X1” lineal. (ii)Complete destruction of canine incisor upper and lower jaws. (iii) Multiple fractures of mandible. (iv) Fracture naxilla left. (v) Multiple bruise and abrasion over face. (vi) Tatooing mark on lip, nose and chin and extended area of face. (vii) A linear muscle deep injury on left medial surface of leg. (viii)Lacerated injury of tongue mostly on right, irregular size 2”x1”. (ix) One wound of entry, small on the post medial side of tibial region and about 4” bellow there was a 3” round diameter lacerated exit wound present on the antromedial surface of tibia. According to doctor, injury no.5 was caused by hard and blunt substance and the remaining injuries were caused by blast, may be by country made pistol. P.W.7 Alakhdeo Singh is the Investigating Officer of this case. According to 9 his evidence, he had gone to the place of occurrence after receiving information about occurrence and had inspected the place of occurrence. He described the place of occurrence. According to him, the field of wheat of was about 5-6 kathas and two bundles of wheat crops was found scattered and some blood was also noticed on the scattered wheat crops. Learned counsel for the appellants has submitted that the delay in lodging the F.R.R. has not been explained by the prosecution and in view of enmity, the delay period was used for fabricating a false case against the appellants. The occurrence is alleged to have taken place in the morning of 1.4.1988 and the matter was reported to police at midnight on that date. The delay in lodging the case was about 17 hours which has virtually remained unexplained. No paper has been produced to show that the injured was first brought to Danapur hospital and there he was advised for going to P.M.C.H. Other argument is that no independent witness has been examined in this case and non-examination of independent witnesses creates doubt on the prosecution version. 10 Really I find that there is some delay in lodging the F.I.R. but it is of common knowledge that if a person is injured of fire arm, then the first thing would be to any how save his life by providing better medical facility which a person can have. If a person is dead, the situation may change as there is no need to go to hospital and take a precautionary measure and in that circumstance, the first thing would be to report the matter to the police. That fact does not remain in this case. In this case, a person had received injury and he was hanging between death and life and in that situation, the injured had to be given better medical help. If in the hospital, the doctor advised to take the injured to other hospital where better facilities were available, then no person can wait for reporting the matter to the police, rather the family member of the injured may rush to better hospital along with injured for better treatment. In that background, it can be said that the injured might have been brought to Danapur hospital and when there better facility was not available, the patient was referred to P.M.C.H. and due to that there was some delay in lodging the F.I.R. In the 11 said situation, the delay in reporting the matter to the police does not cast any doubt on the prosecution version. Another argument on behalf of the appellants is that independent witnesses were not examined and it is further submitted that it is a common knowledge that at the time of harvesting, all most all the fields are harvested simultaneously and in the neighbouring fields also some persons were also harvesting the wheat crops but there is no explanation as to why prosecution has not produced any independent person of neighbour field to depose against the appellants. In this case, all the prosecution witnesses are family members and the prosecution has deliberately withheld the independent witnesses. I have considered the submissions. Here, I am of the view that the independent witnesses are mostly shirking from their responsibilities and they do not want to enter into any feud and they want to live peacefully. It is seen that generally independent witnesses are reluctant in coming court to depose either in favour or against. The evidence of the family 12 members of the prosecution party cannot be ignored due to non-production of independent witnesses. As such, the prosecution is not required to give any explanation for not producing of independent witnesses. With regard to the manner of occurrence, learned counsel for the appellants has submitted that the Investigating Officer had gone to the place of occurrence after receiving information about the occurrence but he has not found any reminiscences of the explosion of bomb and this cast a doubt on the prosecution version. I perused the evidence of the Investigating Officer and it is found that the Investigating Officer had inspected the place of occurrence. He merely found blood on the scattered wheat crops. He had not found any reminiscences of bomb but in the absence of reminiscences of bomb at the place of occurrence does not create doubt about in the entire version of the prosecution regarding manner of occurrence. After scrutinizing the entire evidences, it is apparent that no witness has given specific role of appellants Rupa Rai (since dead), Ram Lila Rai, Dharmbir Rai alias 13 Dharmendra Rai and Deosaran Rai (appellants in Cr.Appeal No. 27 of 1993). So, I am of the view that their involvement in the crime alleged has not been proved by the prosecution beyond all reasonable doubts and as such, they are entitled to be acquitted. Accordingly, the judgment of conviction and sentence so far as it relates to these appellants is set aside and they discharged from the liabilities of their bail bonds. So far appellant Arbind Rai alias Arvind Prasad (in Cr.Appeal No. 60 of 1993) is concerned, the ocular witnesses have duly supported the prosecution case. The injured is the best witness who can state about the manner of assault and he has described the manner as to how he was received injuries by this appellant Arbind Rai and Sanjay Rai (since dead). So the manner of occurrence has been established. Considering the evidences of the injured and the informant, I am of the view that the prosecution has not been able to prove that the accused persons had intention or knowledge that such acts might cause death. If the entire evidence is taken into consideration, then it can be said that had the appellants desire or 14 intention, then they might have killed Kiran Rai, P.W.3 as there was no intervening circumstances there. So no case under Section 307 of the Indian Penal Code is established. As all the prosecution witnesses have stated that this appellant and one Sanjay Rai (since dead) had caused injuries to injured Kiran Rai, he (appellant Arbind Rai alias Arvind Prasad) is liable to be convicted under Section 325 of the Indian Penal Code. Accordingly, I modify the conviction of appellant Arbind Rai alias Arvind Prasad under Section 307 Indian Penal Code to Section 325 of the Indian Penal Code. On the point of sentence, learned counsel for the appellant has submitted that this appellant has remained in custody for about six months during trial and appeal and as the conviction of this appellant has been converted into under Section 325 of the Indian Penal Code, his sentence may be reduced to the period already undergone by him which may be sufficient for the ends of justice. I perused the entire record. I am in full agreement with the submission of the learned counsel for the appellant on the point of 15 ( Shyam Kishore Sharma, J. ) Patna High Court, Patna The 6th February,2008 Tahir/-(NAFR) reducing the sentence to the period already under gone by him as no useful purpose will be served if the appellant is sent to jail to serve out the remaining period of sentence. It further appears that no previous conviction has been brought on record by the prosecution against the appellant. As such, the sentence of the appellant is reduced to the period already undergone by him during trial and appeal which will be sufficient for the ends of justice. In view of the substantive sentence under Section 325 of the Indian Penal Code, no sentence is required to be passed under Section 148 of the Indian Penal Code and under the Arms Act. In the result, appeal of appellants Rupa Rai (since dead) and 3 others (Cr.Appeal No. 27 of 19093) is allowed and appeal of appellant Arbind Rai alias Arvind Prasad ( Cr.Appeal No. 60 of 1993) is dismissed with modification in sentence.