CRIMINAL APPEAL No.537 OF 1988 ******* Against the judgment and orders dated 29th July, 1988 passed by Sri Chandra Mohan Prasad, 2nd Additional Sessions Judge, Begusari In Sessions Trial no.93 of 1981 / 65 of 1981. ******* 1. BHUSHAN RAI 2. KUSHESHWAR RAI BOTH RESIDENT OF VILLAGE AKOPUR, P.S. CHERIA BARIARPUR, DISTRICT-BEGUSARI -APPELLANTS Versus THE STATE OF BIHAR -Respondent ******* For the Appellants : S/Shri Akhileshwar Pd. Singh, Sr.Adv. & Ratan Kr.Kumar For the State : Sushri Shashi Bala Verma, APP ******* P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA Dharnidhar Jha & Akhilesh Chandra,JJ The two appellants were put on trial for the offences under Section 307/34 of the Indian Penal Code 2 and 27 of the Arms Act by the learned Second Additional Sessions Judge, Begusarai, in Sessions Trial no. 83 of 1981 / 65 of 1981 by judgment dated 27th July, 1988. The learned trial Judge held the appellants guilty of committing the above offences. Besides, appellant Bhushan Rai, who had also been charged under Section 324 and appellant Kusheshwar Rai who had been charged under Section 326 of the Indian Penal Code in addition to the above charges, were found guilty of committing the two offences but no separate sentence was inflicted on the two appellants for their respective convictions. 2. The prosecution story, as contained in Exhibit-3 the fardbayan of Ram Chandra Singh (P.W.8) is that he had gone out into his fields to take stock of the crops by a bicycle and when he had come to the field, which was situated by the road side in Sundaha Bandh, the two appellants along with absconding accused Jitendra Rai, came near him to complain that the informant was unnecessarily trying to harass them by implicating each of them in the incident of killing a goat 3 belonging to one Nanku Paswan. The informant replied that the goat neither belong to him nor he had to do anything with the alleged implication of the accused persons and proceeded by his bicycle further from that place. It was alleged further by P.W.8 that when the above exchange of words was taking place, P.w.9, Gouri Kant Rai, and Dineshwar Rai (not examined) also came there. 3. The informant alleged that when he had peddaled up to five to six yards away of the place by his bicycle, absconding accused Jitendra Rai fired a shot on his back as a result of which he fell down there. Other shot was fired by appellant Bhushan Rai which hit the informant at his neck while the third shot was fired by appellant Kusheshwar Rai with his pistol which hit his left hand. The informant stated that he shouted upon which appellant Kusheshwar Rai stated that the appellants should be beheaded and his head should be taken away. However, on account of the presence of P.W.9, Gauri Kant Rai and Dineshwar Rai and also appearance of many other villagers, who came near the 4 informant, the three accused persons ran away from there. The informant lost his consciousness and when he regained it, he gave the fardbayan (Exhibit-3) on the basis of which first information report (Exhibit-4) was drawn. 4. It may appear from the evidence of P.W.11, Dukh Mochan Pathak, who was the Officer in charge of Cheria Bariarpur Police Station, that after drawing up of the fardbayan (Exhibit-3) and on that basis the first information report (Exhibit-4), he himself took up the investigation and inspected the place of occurrence which was found the road as per description given by him in his evidence. He found blood fallen on the ground and he seized the blood stained soil by preparing seizure list. Besides, he also found the empty cartridges and wads of cartridges and, accordingly, those articles were also seized by preparing seizure list. He recorded the statements of different witnesses, issued injury certificate for obtaining the injury report from the doctor and after finding material sufficient sent up the accused persons for trial. 5 5. The defence of the accused was of false implication and simple denial of their participation in the occurrence. 6. Eleven witnesses were examined by the prosecution who proved the charges framed against the appellants. Out of whom P.W.1, Sachita Nand Prasad, P.W.3 Jai Lal Paswan, appeared witnesses of no consequence. As regards P.W.4, Shyam Kishore Mishra @ Ram Kishore Mishra, and P.W.5, Ram Saran Mishra, they were witnesses to seizure of different articles and they identified their own signatures on seizure list. P.W.2, Ram Chandra Rai, P.W.6, Bishun Deo Rai, P.W.7, Ram Newaj Rai, and P.W.9, Gouri Kant Rai, gave eye witness account of the occurrence in support of the evidence of P.W.8, the informant, the injured also. Dr. Satish Prasad Singh (P.W.10) had examined P.W.8, the informant, and had issued the injuries report (Exhibit-2). 7. As regards defence evidence, it is the solitary witness, Vidya Nateshwar Prasad, who had given evidence on the fact that one of the brothers of 6 appellant Bhushan Rai, namely, Ram Uday Ram had deposed in Title Suit no. 105 of 1974 and the deposition sheet of that witness had been tendered by D.W.1 in his evidence which was marked Exhibit-A. 8. The learned trial Judge, considering the evidence on record, passed the judgment as pointed out at the very outset of the present judgment and inflicted the sentence as indicated in that particular paragraph. 9. We have heard Shri Akhileshwar Prasad Singh for the appellants. Shri Singh firstly took us to the evidence of Dr. Satish Prasad Singh, who had examined P.W.8, the informant of the case, and had issued certificate in that behalf. It was contended by Sri Singh that the manner of occurrence, which was stated and was supported also by some of the witnesses, does not get support from the evidence of Dr. Satish Prasad Singh. In order to point out the anomalies Shri Singh was submitting that the allegation was that appellant Kusheshwar Rai fired a shot from his pistol which hit the injured informant on his left hand but there was no such injury on the hand of P.W.8 rather injuries were 7 found on his fingers or on his thumb. It was further contended that the bullet, which was claimed to have been extracted by P.W.10, could not have left the informant, firstly, alive and the injury, which was described by P.W.10, could never be possible by such a penetrating projectile (bullet). It was contended that there was enmity between the parties as was stated by P.W.7, Ram Newaj Rai, as it appears that the informant could have been motivated in falsely implicating the appellants in the present case by making false accusations against them. 10. Sushri Shashi Bala Verma, learned Additional Public prosecutor, has submitted that P.W.8 was injured and his evidence could not be rejected as lightly as was contended by the learned counsel for the appellants. Besides he get support from at least five other witnesses, namely, P.W.2 Ram Chandra Rai, P.W.4 Shyam Kishore Mishra @ Ram Kishore Mishra, P.W.6 Bishun Deo Rai, P.W.7 Ram Newaj Rai and P.W.9, Gouri Kant Rai, and there does not appear any reason for any of the eye-witnesses as to why they will 8 falsely implicate the two appellants who claimed themselves to be innocent. It was contended further that the third accused was still absconding and that further strengthened one of the circumstances of culpability. 11. In order to consider the contentions of Shri Singh, the learned counsel for the appellants, that there was a background of enmity between the parties, we have considered the evidence of P.W.7 in paragraph 2 which is the cross examination part of his evidence. What we find is that there was an enmity or litigation between accused Jitendra Rai and appellant Kusheshwar Rai or Jitendra Rai, on the one hand, and Subalal Rai, on the other. There appears both criminal and civil litigation between the two persons on account of certain properties. On consideration of the evidence further of P.W.7 we could not come across any of the facts which would indicate that the informant, Ram Chandra Mishra, had any litigation with any of the accused persons. His background appears completely of a neutral person. 12. What we further gather from the allegations in the first information report is that the 9 informant was commanding some respect in his locality and village. That was the reason that on killing of the goat of Nanku Paswan, he was probably approached by the victim and probably he had undertaken the task of enquiring into the matter and to ensure as to who was the real culprits who would be brought to informal justice. Dur to the above, the accused persons are said to have come near him when he was on the road while visiting his field to complain to him that the informant was unnecessarily putting them into harassment in connection with the killing of goat of Nanku Paswan. This was too trivial a matter specially when the informant had stated, as it appears in his evidence, that he had nothing to do with that episode and as soon as he had turned his back towards the accused, the first shot was fired by accused Jitendra Rai which was followed by the two appellants successively. 13. The other witnesses, who have come forward to depose in the case, appears to us stating to the fact and one such witnesses, namely, P.W.9, Gouri Kant Rai, appears present, as per the first information 10 report itself, at the scene of occurrence. We do not see any reason, after having gone to the whole of the record, to reject or to view with suspicion the evidences of P.Ws. 2, 5, 6, 7 and 9. We find that the allegations, which were factually made by the informant in his fardbayan, were duly substantiated by the evidence of those witnesses. 14. As regards the criticism of Shri Singh levelled against the manner of occurrence not being corroborated by the medical evidence of P.W.10, we think it better to extract the evidence of P.W.10, Satish Prasad Singh. The doctor found the following injuries when he examined P.W.8 on 15.1.1981 In Khodawandpur Government Hospital. (i) Gun shot wound on back and central part with shieve like holes within diameter of about 6” from which 42 pellets were extracted at the time of first aid treatment. In the opinion of P.W.10, the above injuries were simple in nature caused by fire arm, may be from Desi gun from a distance of more than three yards within two hours of the examination of P.W.8 by 11 P.W.10. P.W.10 has further stated that he found one hole like wound at the nape of neck on its right half and also directed towards right. Its length was about 2” on the skin and it was caused by entrance of bullet which was lodged in the skin and muscles on the right side of neck from where it was extracted by incision at the time of first aid treatment. P.w.10 further found (a) one lacerated wound on the thumb of left hand 2” in length and had injured the skin and muscles of the terminal pulp with blackening of the surrounding skin. (b) One lacerated wound on the index finger of the left hand 2 ½ ” obliquely placed injuring the terminal joint also with blackening of the surrounding skin. The injury was grievous in nature. P.W.10 opined that both the injuries (a) and (b) could be caused by fire arms. P.W.10 stated that the injuries referred to above were sufficient in the ordinary course of nature to cause death or was likely to cause death of the injured. 15. Now, if we compare the oral evidence 12 of witnesses specially P.W.8 then what we find is that on being hit he fell on the ground and thereafter the second shot was fired by appellant Bhushan Rai on his neck. The third shot was fired by appellant Kusheshwar Rai which hit him on his arm. Description of the injury, which was found on the nape of the neck, indicates as if it could be longitudinal injuries which had deeply grazed through the skin and muscles under it and thereafter had got entangled and lodged there from where pellet had been extracted. If one could consider the position of a lying man, the injury to us appears possible in such a situation. As regards the other injuries on the thumb or on other fingers or part of the left hand of the injured P.W.8 we could very well imagine the situation when a man is hit by use of fire arm, then one could not be thinking of the injured lying in a slumber. He must be flexing his hands and legs so as to warding off the assault so as to get away from the firing line. If the informant threw his hands in dismay on in fright, he could be hit by a projectile on his thumbs or on his fingers as was reported by P.W.10, as per report (a) and 13 (b). Thus, we find the manner of occurrence does not appear going contrary to the statement of the witnesses. We rather find that they substantially and in most of the parts corroborated the manner. 16. The objective finding of the Investigating officer, we have referred to at some early part of the present judgment, he had found empties along with wads of the cartridges at the place of occurrence. He had also proved the blood stained soil collected from the place of occurrence. The material articles were produced as material Exhibits-I and II, as may appear from the evidence of P.W.11 The seizure of these articles was made from the place of occurrence as per the description given by the witnesses. 17. Thus, on a consideration of the evidence, we come to the conclusion that there could not be any scope for any court to hold that the charges had not been brought home against the appellants. 18. When we had come to this stage of our judgment, Shri Singh has appealed to us for reducing the sentence considering that the judgment was delivered on 14 29th July, 1988 on an occurrence which had taken place on 15th January, 1981. It was contended that one of the appellants had reached the age of 70 years and other of about 50 and the first appellant was still absconding. It was contended, as such, that the court should take a view for reducing the sentence which was inflicted upon the two appellants. 19. We find that the maximum sentence which was inflicted upon the two appellants under Section 307 read with Section 34 of the Indian Penal Code is twelve years and that each of the two appellants were also to suffer, on account of being convicted, rigorous imprisonment for three years which was awarded to each of the two appellants under Section 27 of the Arms Act. No sentence appears to have been passed against the appellants Bhushan Rai under Section 324 and Kusheshwar Rai under Section 326 of the Indian Penal Code. On the day of the judgment, that is, on 29th July, 1988 appellant Kusheshwar Rai was 45 years of age and Bhushan Rai was 30 years of age. The appeal has remained pending for twenty two years 15 before this Court. It is true that the appellants have enjoyed the privilege of bail. We feel under the above circumstances, that in the facts of the case, specially in absence of the chief assailant Jitendra Rai, the term of rigorous imprisonment for seven years under Section 307 read with Section 34 of the Indian Penal Code may be sufficient which could be served in the facts and circumstances of the case. We, accordingly, modify the sentence awarded to the appellants under Section 307 read with Section 34 of the Indian Penal Code from rigorous imprisonment for twelve years to rigorous imprisonment for seven years. As regards the sentence awarded under Section 27 of the Arms Act to the appellants, we do not disturb that and we direct that two sentences shall run concurrently. 20. With the above modification in the sentence awarded to the appellants, we find no merit in the present appeal and we dismiss the same. The appellants, who are on bail, are directed to surrender in order to serve out the remaining term of sentence. It goes without saying that the period which might have 16 been spent by the appellants individually could be set off against the above period of sentence awarded to each of them. (Dharnidhar Jha, J.) (Akhilesh Chandra, J.) Patna High Court, The 03rd May, 2010. AAhmad/ (NAFR)