1 Criminal Appeal (SJ) No.151 of 1997 Against the judgment and order of conviction 15. 05.1997 and sentence dated 20. 05. 1997 passed by Sri Saket Bihari Ambastha, 6th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 345 of 1989 1. Murli Chaudhary, son of Ramkeshwar Chaudhary. 2. Nandan Chaudhary, son of Musafir Chaudhary 3. Naiya @ Naiya Chaudhary, son of Kailash Chaudhary 4. Ram Singhasan Chaudhary @ Singhashan Chaudhary Son of Late Ram Pati Chaudhary. 5. Musafir Chaudhary, son of Late Rampati Chaudhary 6. Ram Keshwar Chaudhary @ Keshwar Chaudhary, Son of Late Rampati Chaudhary. 7. Ram Nath Chaudhary, son of Late Rampathi Chaudhary All resident of Village- Laxmipur, P.S. Sanjhauli, District- Rohtas. ………Appellants. Versus The State of Bihar. .... .... Respondent. For the Appellant/s : 1. Mr. Devendra Kumar Sinha, Senior Advocate 2. Mr. Anil Kumar Singh, Advocate. 3. Mr. Parmod Kumar Sinha, Advocate. 4. Mr. Abhinay Raj, Advocate. For the informant :- Mr. Din Bandhu Singh, Advocate. For the State :- Mr. P. Mehta, A.P.P. PRESENT HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and learned counsel for the State. 2. Murli Chaudhary, Nandan Chaudhary, Naiya @ Naiya Chaudhary, Ram Singhasan Chaudhary @ Singhashan Chaudhary, Ram Keshar Chaudhary @ Keshwar Chaudhary and Ram Nath Chaudhary, appellants nos. 1 to 4 and 6 and 7 have been convicted for offence under Sections 307 read with 149 of Indian Penal Code 2 and have been sentenced to under rigorous imprisonment for three years and Musafir Chaudhary, appellant no. 5 has been convicted for offence under Section 307 and sentenced to undergo rigorous imprisonment for three years and further sentenced to undergo rigorous imprisonment for two years for offence under Section 27 of the Arms Act. Appellant Ram Nath Chaudhary has been sentenced to undergo rigorous imprisonment for two years for offence under Section 324 I.P.C., appellant Murli Chaudhary, Nandan Chaudhary, Naiya Chaudhary and Singhasan Chaudhary have further been convicted for offence under Section 323 I.P.C. and sentenced to undergo rigorous imprisonment for six months. 3. The prosecution case as alleged in the Fardbeyan that Murli Chaudhary, Nandan Chaudhary and Naiya Chaudhary were found uprooting gram crops from the land of the informant Surendra Kumar Singh. His grand father Ramdeo Chaudhary saw the accused persons uprooting gram crops from his land, then he protested. When Surendra Kumar Singh and Ramdeo Chaudhary went at the house of the aforesaid accused persons to lodge a protest then accused persons became furious and started 3 abused and exchange of hot words then accused persons came with lathi bhala and gun. The accused Kailash chaudhary is alleged to have caught Ramdeo Chaudhary and accused Singhashan Chaudhary was alleged to have caught informant Surendra Kumar Singh. Accused Ramnath Chaudhary is said to have inflicted a bhala blow causing bhala injury on the palm of his right hand in between index and thumb finger. The informant also sustained bhala injury on his left hand. It is further alleged that accused Musafir Chaudharyh is said to have fired twice from his country made pistol aiming at the informant Surendra Kumar Singh and his grand father Ramdeo Chaudhary, but they escaped fire arm injury. 4. On the Fardbeyan, F.I.R. was lodged. After investigation, charge sheet submitted. Cognizance taken and the case was committed to the Court of Sessions where the charge was framed. 5. The defence of the accused persons that Saraj Nandan Chaudhary, Ghara Chaudhary came near the Mahua tree and started firing from their guns. Dr. Kailash Chaudhary was sitting on his Dalan, sustained gun shot injury on his person. Accused Rajendra Chaudhary also 4 sustained injuries on his person and the motive of the aforesaid occurrence is said to be that a quarrel had taken place among the kids on mud throwing on the Holi festival. 6. After considering the oral and documentary evidence, order of conviction and sentence recorded. 7. Learned counsel for the appellants however, contends that there is allegation that accused persons catch hold of Surendra Kumar Singh and his grand father Ramdeo Chaudhary and then inflicted bhala and lathi and they have also fired. The injury by bhala and other weapons found by the Doctor are simple and no fire arm injury found on the persons of Surendra Kumar Singh and Ramdeo Chaudhary and hence allegation of firing has not been substantiated. However, witnesses have developed the prosecution case during trial and deposed that firing by one accused persons which hit another accused or to the prosecution side which is not a case either in the Fardbeyan or before the I.O. and contradiction to that effect has been recorded by drawing attention by taking contradiction and hence prosecution develop the story from time to time hence the prosecution case required to 5 be rejected. It has further been contended that allegation even if taken to be proved, none of the injury either singly or even taken together, cumulative effect of all the injuries are not as such to have been caused with intention to kill and there is no evidence of the Doctor that injury was fatal or dangerous to life and hence finding recorded by the lower court for conviction under Section 307 I.P.C. is not sustainable. Further, there is contradiction in evidence of the witnesses and further the occurrence is of the year 1987 and the accused persons even suffer a lot, though, continuous prosecution and present appeal, hence lenient view may be taken. 8. Learned counsel for the opposite party however, contends that witnesses have supported the prosecution case and the intention to the parties can be gathered from the attaining circumstance as there is allegation of assault by bhala and fire arm and lower court is rightly convict and sentence the appellants for three years for offence under Section 307 I.P.C. and the prosecution has well proved the case. Learned counsel for the State also supports the order of conviction and sentence. 6 9. However, witnesses have supported the prosecution case that the accused persons catch hold of Surendra Kumar Singh and Ramdeo Chaudhry. Accused Kailash Chaudhary is alleged to have caught the waist and accused Singhasan is alleged to have caught his grand son Surendra and accused Ramnath is alleged to have attacked with a bhala on his stomach but he caught the edge portion of bhala and sustained bhala injury on his right hand in between the thumb and index finger. Accused Ramnath inflicted a bhala blow on the left arm of Surendra, and Musafir fired from his pistol on him, but he escaped and one Kailash Chaudhary got injury. When accused Musafir fired second time on Surendra then accused Rajendra Chaudhary got injury. However, P.W. 2 and 3 have supported the prosecution case. 10. However, injury received by Surendra Kumar Singh and found the following injuries. (A) incised wound 1.5 c.m.x 01. c.m.x03 c.m. on the left forearm near writ joint on anterior surphase. (B) Constusion 11 c.m. x 4 c.m.x 1c.m. on the back of right scapular region. (C) Constusion 3 c.m. x 1 c.m. x.01. c.m. on the scalp of right side of 7 frontal bone. All the injuries were found to be simple in nature. 11. He has also examined Ramdeo Chaudhary and found the the following injuries on his person. (A) lacerated wound 5 c.m. x 05 c.m.x02c.m. on the scalp just above the forehead medial aspect. (B) Constusion 12 c.m. x 5 c.m. x 2 c.m. on the left arm anterior surphase. However, all the injuries are found to be simple. 12. However, taking into consideration the injury found on the injured are simple. There is no report of the Doctor that injury was dangerous to life. 13. Having regard to the facts and circumstances including the injury report found on the persons of the injured Surendra Kumar Singh and Ramdeo Chaudhary are all simple in nature does not make out a case of 307 I.P.C. and hence order of conviction and sentence recorded under Section 307 of Penal Code is hereby set aside. 14. However, having regard to the fact that 8 assault of bhala and fire arm injury which are not sustainable and hence conviction not maintained under Section 324 I.P.C. 15. However, having regard to the fact that occurrence is of the year 1987 and the accused persons suffer a lot since 1987 in trial as well as subsequently since 1997 in appeal. 16. Having regard to the fact the appellants remained in jail after their conviction. Hence end of justice shall meet by sentencing the appellants for period already undergone. 17. With this modification, this appeal is allowed in part. Patna High Court The 11th July, 2011. NAFR/m.p. ( Gopal Prasad, J.)