Criminal Appeal (SJ) No.966 of 2006 Against the judgment of conviction dated 27.11.2006 and order of sentence dated 28.11.2006 passed by Additional District & Sessions Judge, Fast Track Court No.III, Kaimur, Bhabhua in Sessions Trial No.15 of 1997/53 of 2005 arising out of Chand P.S.Case No.13 of 1996, G.R.Case No.206 of 1996. 1. ANGAD YADAV, 2. JAMWANT YADAV & 3. MOHAN YADAV .... APPELLANTS Versus STATE OF BIHAR.... RESPONDENT For the Appellants: Shri Shakil Ahmad Khan, Sr.Advocate Sri Viveka Nand Singh & Sri Arun, Advocates. For the Respondent:- Sri Ajay Mishra, A.P.P. P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J The present appeal is directed against the judgment dated 27.11.2006 passed by the learned Additional Sessions Judge- cum-Presiding Officer, Fast Track Court No.III, Kaimur at Bhabhua in Sessions Trial No.15 of 1997/53 of 2004. By the impugned judgment the three appellants were held guilty of committing an offence under Section 304 Part II/34 of the IPC and each of them was directed to undergo rigorous imprisonment for seven years. In addition to 2 the above finding on conviction, appellant no.1 Angad Yadav was held guilty also for committing an offence under Section 27 of the Arms Act and was directed to suffer rigorous imprisonment for five years. The sentences passed upon appellant Angad Yadav was directed to run concurrently. 2. The prosecution story is based on the fardbeyan of P.W.3 Bakridan Nisa which was recorded by the then officer-in- charge of Chand police station. It was stated by P.W.3 that she and her Gotani Khushbu Nisa(deceased)were standing near their house and the daughter of the informant was playing near her Darwaja. At that time it was probably 1 P.M. And at the same time one Rambilash Yadav(P.W.8)came to her house weeping and stated that while he was grazing his cattle there was a mar-peet between him and appellant Angad Yadav. It is stated that on account of that quarrel between appellant Angad Yadav and Rambilash Yadav there were exchange of hot words and challenges were being thrown at each other. In the meantime, appellant Angad Yadav armed with a single barrel gun and appellant 3 Jamwant Yadav having a lathi in hand came there and started abusing profusely his adversaries, i.e., Rambilash Yadav and others. Appellant Mohan Yadav was armed with garasa. It is stated that appellant Jamwant Yadav stated that his rivals should be shot dead upon which appellant Angad Yadav fired three shots out of which two were fired blank and the third shot hit the neck of deceased Khushbu Nisha who fell on the ground and died there. 3. On the basis of Ext-1, the fardbeyan of P.W.3, the FIR of the case was drawn up and the investigation was handed over to P.W.7 who visited the place of occurrence and inspected the same. He further recorded the statements of witnesses and sent the dead body for postmortem examination. During inspection of the place of occurrence he found copious blood fallen on the ground. After completion of the investigation, he sent the three appellants on the trial. 4. The plea of the appellants was of false implication on account of earlier enmity with the informant. As may appear 4 from the trend of cross-examination, it was suggested to the witnesses that one Samundri Devi had filed a case against Aziz who was one of the brothers of the husband of the informant and that Samundri Devi was the mother of appellant Angad Yadav and as such the informant had lodged a false case. 5. In support of the charges, the prosecution examined as many as ten witnesses. P.W.1 Ajibu Dhobhi was the husband of the deceased and after going through his evidence what I find, especially from his evidence in paragraph-11, that he could not be an eye witness because he had stated in paragraph-11 that he came running after the shots had been fired. There were three numbers of shots which were fired and when he saw his wife she was fallen on the ground and she was almost motionless except that her legs were trembling. Thus, on this line of evidence, it could be very difficult for any court to hold him an eye witness. P.W.3 who is the informant of the case has given the description as to who were sitting together when the lady Khushbu Nisa was shot into her neck. She has stated that she and 5 her deceased Gotani were sitting together at one place and the daughter of the deceased was playing around. She had never named P.W.1 as a person who could be around to see as to who had fired the shots. As I have just noted above, P.W.1 had stated that he was informed by some other persons about the incident and then he came running to the place of occurrence. Thus, it could not be safe in my considered view to place reliance upon as P.W.1 as an eye witness. 6. As regards the status of P.W.2 she appears a witness to the occurrence but what could be the effect of her evidence with that of P.W.3 who definitely appears a competent eye witness remains to be considered in the light of the submission. Suffice it to mention as regards the merit of the evidence of P.Ws.2 and 3 that they have given good grounds for being present around the place of occurrence and their evidence and their claim for being present around the place of occurrence could not be rejected and as such their evidence as regards the firing of the shots and the deceased Khushbu Nisha being hit in her neck 6 and being killed appears worthy of acceptance. 7. The contention of the learned senior counsel appearing for the appellants was that the fardbeyan was not legally brought on record as P.W.3 did not prove it. Probably the submission ignores the evidence of P.W.7 in paragraph-1. P.W.7 has stated that the officer-in-charge of Chand police station had recorded the fardbeyan of P.W.3. P.W.7 was an officer junior to the officer- in-charge of Chand police station and he was working with him. He is supposed to be acquainted with the handwriting of the officer-in-charge. As such, his evidence on the authorship of fardbeyan of Ext-1 appears acceptable and as such there appears legal evidence to admit Ext-1 as evidence. The other argument was that P.W.6 Sachan Yadav is stated to be sent to the police station for informing the police. I have gone through the evidence of P.Ws.1, 2 and 3 as also the evidence of P.W.7, but I did not come across any line of evidence which could indicate that any one of the above P.W’s had stated that Sachan Yadav had 7 approached the police station for lodging a report, specially at the behest of any of the family members of the deceased. The police officers have stated that it were the Chaukidars who had informed the police about the occurrence upon which the officer-in- charge, Chand police station came to the house of P.W.3 to record Ext-1. My attention was drawn to the evidence of P.W.1 in paragraph-1, but I have already rejected the evidence of P.W.1 in its entirety and it could not be safe to place reliance upon that particular line of evidence of P.W.1. 8. The next contention was that P.W.1 was not named in the FIR and his presence could not be acceptable and further that on account of no support to the initial part of the prosecution story by P.W.8 Rambilash Yadav the genesis has to be disbelieved and as such it creates a doubt in the veracity of the occurrence. As regards the non-support of Rambilash Yadav regarding the story of being assaulted by his rival, i.e., Angad Yadav and his coming weeping to complain about the acts of Angad Yadav, even if there is no evidence of 8 P.W.8, witnesses, like, 3 and 6 have stated that Rambilash Yadav came weeping and complained about the behaviour of Angad Yadav and thereafter a fight broke out between the two factions. Both the factions were fighting against each other and were facing each other on the sides of a narrow line. This could be evident from P.W.3 in paragraph-4 at page-5 and the recorded evidence on the typographic description of the place of occurrence that that particular line was probably the real place of occurrence. Thus, there is no doubt about it that there was a free fight between both the parties. It was during that course it is indicated by the evidence that the shots were fired and one of which hit into the neck of the deceased and that was the cause of her death. As such no support of the initial story of the occurrence regarding its genesis by Rambilash Yadav in my considered view does not have any impact upon the occurrence having taken place in the manner as stated by P.Ws.2 and 3. 9. Having said what I have in the previous paragraphs the moot questions for 9 decision of this court is as to what offence on proved facts could be constituted. It was submitted by the learned senior counsel appearing on behalf of the appellants that it was admitted by all the witnesses that no ill-will was existing between the two parties. P.W.2 in paragraph-4 has stated that it was a fight between Yadav people and that has generated quite some commotion in the village attracting quite good number of persons as a result of which a good mob had assembled there. P.W.3 has also stated in paragraph-9 that no quarrel had taken place in between the witnesses or the appellants rather it was fight between the two rival groups of Rambilash Yadav and Angad Yadav and during that course three shots were fired. P.W.3 has further stated in paragraphs-9 and 10 that there was no fight in between them and the accused persons rather it was between the accused persons and the faction of Rambilash Yadav and they were mere onlookers to the incident. It is stated by P.W.3 and also by others that three shots were fired out of which two initial shots were in the air. The third 10 shot was fired by Angad Yadav which allegedly hit the deceased. The shots were fired allegedly at the orders of appellant Jamwant Yadav. It was contended that for constituting an offence under Section 304 Part II IPC the act of the assailant has to be indicated that his act was so dangerous as to either cause death or was likely to cause death of the deceased. It was contended that as soon as the evidence indicated that shots were initially being fired into blank the intention and knowledge was completely absent. It might be a case that on account of excitement which could have been generated due to the factions standing opposite each other and to fight each other, the control of the gun might have been lost by appellant Angad Yadav and he had fired the shot on the non-targeted lady and ultimately killed her. It was contended, as such that the intention and knowledge could not be attributable to appellant Angad Yadav and it could be said to be a mere voluntarily act of firing a shot so as to causing grievous injury to deceased Khushbu Nisa. 11 10. It was rightly contended that for constituting an offence under Section 304 Part II IPC it is necessary that the evidence establishes that the appellant had the knowledge that his act was so immanently dangerous that it in all probably should cause death or was dangerous in the ordinary course of nature which may result in death. Here in the present case the evidence is consistently indicating that the target of Angad Yadav was not the deceased Khushbu Nisa as she like the other witnesses was one of the members of the onlookers who had been attracted on account of the hoopla which was generated due to the two sides preparing to fight each other. The evidence further indicates that out of the three shots which were fired allegedly by Angad Yadav two were fired into air. It probably indicated that, it might be a case as was contended that on account of the excitement which was generated in the mind of Angad Yadav after he had seen his rivals standing opposite his party that he could have lost the control of his arms and during that loss of control the third shot was fired 12 unintentionally and without any knowledge to hit and kill Khushbu Nisa. At any rate, it could not be said to be intended to hit the deceased nor it could be said that it was a case of where intention could be there or the knowledge could be gathered that the shot was hitting any one so as to kill her. As such, in my considered view the offence which could be constituted may not be covered by any of the provisions of Section 300 and as such could not be falling within the definition of that particular provision of law. It may be a voluntary act on account of the trigger of the gun being pulled in an excited state of the mind so as to imparting a proper knowledge to the offender that the act which had been done by him may result in some grievous injury. 11. In that view of the matter what I find is that the offence which was committed by appellant Angad Yadav may constitute an offence under Section 326 IPC. Accordingly, I set aside the conviction of appellant Angad Yadav under Section 304 Part II IPC and convict him under Section 326 IPC. 13 12. As regards the conviction of appellants, Jamwant Yadav and Mohan Yadav except Jamwant Yadav there is evidence that Mohan Yadav was armed with a garasa, but he was neither raising a voice nor doing any overt act. Jamwant Yadav, of ocurse, has been alleged to be an order giver but it is a fact that most often in our society senior members of the family or a member who has a very bright carrier is implicated falsely so as to heaping humiliation. Above all, I have not found the offence of firing the shot coming under the provisions of Section 304 Part II IPC on account of no further act complained of or established against appellant Jamwant Yadav or Mohan Yadav. In my considered view they deserve to be acquitted on account of being extended benefit of doubt. Accordingly the two appellants, namely, Jamwant Yadav and Mohan Yadav are acquitted of all the charges. 13. This brings me to consider as to what sentence should be passed against Angad Yadav after he had been convicted by me for committing an offence under Section 326 IPC. It was contended that appellant 14 Angad Yadav has remained in custody for five years and two months. In my considered view the period which appellant Angad Yadav has undergone could meet the ends of justice, if the same is awarded as sentence to him. Accordingly, I sentence him to the period which has already been undergone by appellant Angad Yadav. As a result of above order of sentence, the appellant Angad Yadav shall be released forthwith, if not wanted in any other case on account of having served out the sentence as period already undergone. The appeal is partly allowed in terms as indicated above. Patna High Court, Dated, the 22nd day of July, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)