1 CRIMINAL APPEAL No.738(SJ) OF 2009 ------- Against the judgment of conviction dated 5.9.2009 and order of sentence dated 9.9.2009 passed by Sri Namendra Prasad, Additional Sessions Judge, Fast Track Court No.5, Nalanda at Biharsharif in Sessions Case No. 241 of 1996/13 of 2007. ----- 1.Tripurari Gope 2.Bal Govind Gope 3.Nandan Gope all three sons of Late Hari Gope 4.Jayashankar Gope son of Tripurari Gope 5.Rambali Gope son of Balgovind Gope 6.Ashok Gope 7.Manoj Gope @ Bablu Gope 8.Ajay Gope all three sons of Nandan Gope 9.Kishori Gope son of Mundal Gope 10.Kameshwar Gope 11.Shailendra Gope both sons of Late Nanhu Gope 12.Jhauri Gope son of Late Basho Gope 13.Shiv Balak Gope @ Jattu Gope son of Late Baleshwar Gope all are resident of village Lakhichak, P.S.Noorsarai,District Nalanda ------ Appellants Versus The State of Bihar ------ Respondent ------ For the appellants : M/s. Amrit Abhijat, Ranvijay Singh For the State : Mr. S.N.Prasad,APP ----- P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA -------- S.K.Sharma,J. This appeal has been filed on behalf of thirteen appellants against the judgment dated 5.9.2009 passed in Sessions Case No. 241 of 1996/13 of 2007 by Additional Sessions Judge, Fast Track Court No.5, Nalanda at Biharsharif whereby the appellants were found guilty for committing offences under Sections 147 and 323 of the Indian Penal Code. By order dated 9.9.2009, appellant Tripurari Gope has been sentenced to undergo rigorous imprisonment for 8 months and to 2 pay a fine of Rs.5,000/- and in default to undergo rigorous imprisonment for eight months for offence punishable under Section 147 of the Indian Penal Code and further he has been sentenced to undergo rigorous imprisonment for four months and to pay a fine of Rs.1,000/- and in default to undergo rigorous imprisonment for four months for offence punishable under Section 323 of the Indian Penal Code and rest of the appellants have been sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.3,000/- and in default to undergo rigorous imprisonment for six months for offence punishable under Section 147 of the Indian Penal Code and they have been further sentenced to undergo rigorous imprisonment for four months and to pay a fine of Rs.1,000/- and in default to undergo rigorous imprisonment for four months for offence punishable under Section 323 of the Indian Penal Code. The sentences were ordered to run concurrently. 2. First information report was registered on the basis of oral statement of Raj Kishore Prasad (P.W.6) in which he has stated that in the morning of 15.10.1994 he had gone to 3 irrigate his field situated in Jagir Badh, east of his village Lakhichak. Part of the field was vacant and in other part Jhalra crops were grown and it was to be irrigated from a pond. The informant noticed Dhirendra Gope son of Tripurari Gope coming towards him but he returned after seeing the irrigated field. After about half an hour, he noticed all the accused persons who were coming towards him. Accused Tripurari Gope and Ashok Gope were armed with country made rifle and a double barreled gun respectively while accused Shailendra Gope, Jai Shankar Gople, Ram Bali Gope and Ajay Gope were armed with saif, sword, falsa and garasa respectively and rest accused persons were armed with traditional weapons like lathis. Thereafter accused Tripurari Gope fired from his country made rifle causing injury to Bijendra Gope who got down. Then at the behest of accused Tripurari Gope, others have also assaulted. Accused Ashok Gope fired from his double barreled gun on the informant who ducked sharply and saved himself. Accused Shailendra Gope attacked on the informant with saif which caused cut injury on his head. Accused Jai Shankar Gope used his sword 4 at Raj Kumar Gope (P.W.5) causing injury on his head. Other accused persons have also assaulted the informant and his uncle Chandeshwar Gope (P.W.4). The motive of the assault was 49 decimals of land which was purchased by the informant from Md.Zafir Alam through a registered deed and the same land was purchased by accused persons from Md.Rafique, brother of Md.Zafir Alam. The accused persons were adamant to take possession, so the offence taken. First information report was registered for offences under Sections 147,148,149,307 and 324 of the Indian Penal Code and 27 of the Arms Act but after completion of investigation chargesheet has been submitted for offences under Sections 147,148,149,323,324 and 307 of the Indian Penal Code and 27 of the Arms Act. Thereafter cognizance was taken and case was committed to the court of Sessions. Charges under Sections 307 of the Indian Penal Code and 27 of the Arms Act were framed against accused Tripurari Gope and Ashok Gope whereas Charges under Sections 307 and 148 of the Indian Penal Code were framed against accused Shailendra Gope, Jai Shankar Gope, Ram Bali Gope and Ajay Gope. Against rest 5 of the accused charges under Sections 307 land 147 of the Indian Penal Code were framed. The charges were explained to the accused persons who pleaded innocence. So trial proceeded. 3. The defence of the accused persons was of false implication and also that the informant and his men were aggressors and they were trying to take possession of the land which were of the appellants. 4. The prosecution in order to substantiate its case has examined altogether 8 witnesses. They are Deonandan Gope (P.W.1), Satendra Gope (P.W.2), Suresh Prasad (P.W.3), Chandeshwar Gope (P.W.4), Raj Kumar Prasad (P.W.5), Raj Kishore Prasad, informant (P.W.6), Mathura Prasad (P.W.7) and Dr.Ravi Ranjan Rajesh (P.W.8). 5. Investigating Officer was not examined. P.W.3 was not cross-examined, so part of his evidence was not relied upon. P.W.2 Satendra Gope is not a chargesheet witness. P.W.7 Mathura Prasad was also not a chargesheet witness. Signature of the informant on his statement before the police has been marked as Ext.1. Exts. 2,3,4 and 5 are the handwritings and 6 signatures of P.W.7 Dr.Mathura Prasad on the injury reports of Cahndeshwar Gope, Suresh Prasad, Raj Kishore Gope and Satendra Gope. Exts. 6 and 7 are also the handwritings and signatures of P.W.8 on the injury reports of Raj Kumar Prasad Yadav and Bijendra Yadav. Ext.8 is the signature of Dr.M.Dubey on the medical report and it has been admitted after P.W.8 identified it. 6. The trial Court relied upon the evidences of P.Ws.3 and 5 who are full brothers of P.W.6 (informant). P.W.6 has stated in his evidence that the assault was made by the appellants and six injury reports have been brought on record. P.Ws. 1 to 6 have supported the fact that appellant Tripurari Gope fired from his country made rifle causing injury in the left palm of Bijendra Gope. Their further evidences is that appellant Ashok Gope fired from his double barreled gun on the informant P.W.6 but it missed as he ducked in time to avoid the shot. P.W.6 has stated that injured Bijendra Gope became unconscious after being shot and bleeding continued for half an hour. He further stated that the assault of Shailendra Gope through saif on the head of Raj Kishore Gope caused injury. 7 P.W.8 Dr.Ravi Ranjan Rajesh, who examined injured Bijendra Gope, found following injuries: (i)One lacerated wound on palmar aspect of left hand of size ¼”x1/4”x skin deep. (ii)One lacerated wound on the back of left hand of size ¼”x1’4”x skin deep. 7. The doctor has not expressed any opinion with regard to injury because X-ray report was not made available. X-ray report was not brought on the record, so the kind of weapon could not be established. The only evidence of P.W.8 is available that on the date and time of occurrence Bijendra Gope had sustained injury and was treated by doctor. 8. P.W.7 has also examined informant Raj Kishore Gope and found following injuries: (i)Laceration on the head of dimension 1”x1/6”x scalp deep with hair matted from dried blood. (ii)Reddened bruise of a dimension 2½”x1” on the left shoulder. (iii)scratch and s welling on the forearm 2” about wrist joint. 9. P.W.8 has examined Raj Kumar Prasad 8 (P.W.5) and found following injuries: (i) one lacerated wound on right parieto frontal region of scalp of size 4 ½”x1/2 and scalp deep. (ii)one lacerated wound on left parietal region of scalp 2”x1/2” x scalp deep. (iii)Abrasion on bridge of nose of size 1”x1/2”. (iv)Bruise on infra orbital region of face of size 4”x3”. (v)Tender swelling on left hand of six 1 ½”x1 ½.” (vi) Redness of left eye. 10. The nature of these injuries were not given by the doctor. The weapon used was not described because X-ray report was not made available. The Prosecution has not produced the X- ray. So it is safe to rely that injuries were not grievious caused by deadly weapons. 11. P.W.5 has stated that he received injuries on head at two places caused by hard and blunt substance. 12. P.W.4 Cahandeswar Gope has stated about his assault. He did not describe the weapon used. P.W.7 Dr.Mathura Prasad has examined him 9 and found the following injuries: (i)A laceration on the posterior left head of a dimension ½”x 1/5”x1/6”. (ii)Reddened bruise and swelling in the lower side of right forearm of a dimension 2 ½”x1”. (iii)Reddened bruise on the middle of left forearm of a dimension 1”x1/2”. (iv)Reddened bruise on the left buttock of a dimension of 2”x1/2”. (v)Reddened bruise on the left side of back. 13. P.W.2 Satendra Gope has been examined by P.W.7 who has found following injuries: (i)A laceration of dimension 1”x1/6”x scalp deep on the head with surrounding hair matted with dried blood. (ii)A reddened bruise of size 3”x1” on the lower of right side of back. Both the injures were found simple in nature and caused by hard and blunt substance. 14. P.W.3 Suresh Prasad has also received injuries and was examined by P.W.7 who found the following injuries: 10 (i)Reddened bruise 2”x2 1/2”x on the left shoulder. (ii)Reddened bruise 2”x1” on the middle of the left forearm. The injuries were found to be simple in nature. 15. The injuries of the injured prosecution witnesses have been supported by the doctors, so I am of the view that the prosecution has been able to prove that on the date and time of occurrence, the accused persons namely, the convicts, have caused assault to the injured witnesses. 16. Learned counsel for the appellants has submitted that the Investigating Officer has not been examined. So the prosecution was not able to prove its case beyond all reasonable doubts. The defence cannot draw adverse inference due to non-examination of the Investigating Officer. 17. I have perused the evidences of all the prosecution witnesses. Those witnesses were of not such nature from which any adverse inference can be drawn so as to frustrate the prosecution version. The non-examination of the Investigating Officer was not fatal in the facts and 11 circumstances of the case. 18. After analyzing the entire evidences on record and taking into consideration the entire facts and circumstances of the case, I am of the view that the prosecution has been able to prove the charges beyond the shadow of all reasonable doubts. So the conviction of the appellants requires no interference by this Court. Accordingly, their conviction is maintained. 19. On the point of sentence, learned counsel for the appellants has submitted that as the case was lodged in the year 1994, the appellants have suffered much agony due to long drawn litigation and some of the appellants have been shown to be aged 70 and more than that. He further submits that the ends of justice will be met if instead of sending the appellants to jail, the sentences are converted into fine. 20. Taking into consideration the submissions of the learned counsel for the appellants, the sentences of the appellants are converted into fine of Rs.1,000/- each and in default of payment of fine, they will have to undergo rigorous imprisonment for one month. 21. In the result, this appeal is 12 dismissed with modification in sentence, as mentioned above. Patna High Court,Patna The 28th January,2010 Tahir/-(NAFR). ( Shyam Kishore Sharma, J.)