CRIMINAL APPEAL No.42 OF 1998(SJ) ----- Against the judgment and order dated 19.1.1998 passed by Shri Abdul Samad, 3rd Additional Sessions Judge,Munger in Sessions Case No. 500/96. ----- 1.YOGENDRA MAHTO, son of Bishundeo Mahto, resident of village Kuranta, P.S.Lakhisarai, Dist. Lakhisarai (Munger) 2.JADU @ Jadunandan Mahto, son of Banarsi Mahto, resident of village Urain, P.S.Kajara, Dist. Lakhisarai (Munger)------------------------Appellants Versus THE STATE OF BIHAR----------------------------Respondent ----- For the Appellants :M/S Nirmal Kumar Sinha No.3 Nawal Kishore Prasad Ranbir Singh (amicus curiae) For the respondent :Mr.G.P.Jaiswal,APP ----- P R E S E N T THE HON'BLE MR. JUSTICE RAMESH KUMAR DATTA ----- R.K.Datta,J. This appeal arises out of the judgment dated 19.1.1998 of Shri Abdul Samad, 3rd Additional Sessions Judge, Munger by which he has convicted the two appellants for offences under Section 307 read with Section 34 of the IPC and sentenced them to undergo rigorous imprisonment for three years and also directed to pay a fine of Rs.1000/- each failing which they were to undergo rigorous imprisonment for one month; the fine was to be paid to the informant as compensation. The appellants were also tried for the offences under Section 393 of the IPC and Section 27 of the Arms Act but were acquitted on the said charges. 2.The prosecution case as laid out in the fardbeyan of P.W.3 Ram Pravesh Singh, DPC, Jamalpur GRP is that on 27.2.1996 he along with ASI Kumar Kant 2 Jha and Constable Arbind Kumar Singh, Suresh Tiwari and Ram Prasad Ram were on escort duty on 5 JK DMU Train running between Jamalpur to Kiul. On all the stations the bogies were being checked. At Kajra Station seeing a large crowd inside the bogie No.8363 AY they boarded the said bogie : the informant and the Constable Suresh Tiwari from the gate at the back and other three from the gate at the front. Constable Tiwari and the informant started moving towards the gate in the middle. Constable Tiwari went ahead him. When he reached near the middle gate the informant saw three boys including the two appellants moving which made him suspicious. One of the boys thereafter fired at him with country made gun (katta) which hit him on the face and jumped down from the train. The other boy also jumped down from the train. The third boy also fired at him which hit him on his shoulder and he even tried to catch him but his shawl alone remained with him when the said boy also jumped down from the train. The other police men in the escort party also came running but on account of the heavy rush in the compartment and the train having picked up speed they could not fire at the fleeing criminals. When the train reached Kiul Station at around 10.15 P.M. the informant (P.W.3) was given first aid and his fardbeyan was recorded. The three criminals were stated by him to be between 20-25 years of age. On the basis of the said fardbeyan (Ext.1) the formal FIR was registered at Jamalpur Police Station 3 and the matter was investigated by P.W.7 B.Ram, the Officer-in-Charge, Jamalpur GRP and in the course of investigation the two appellants were arrested at Jamalpur Railway Station in suspicious circumstances by him on 25.3.1996. They were put on Test Identification Parade on 27.3.1996 in which they were identified by the informant Ram Pravesh Singh(P.W.3) as also Constable Suresh Tiwari(P.W.2) and ASI Kumar Kant Jha (P.W.6). Another T.I.Parade was held on 6.4.1996 in which the other Constables P.Ws. 1 and 4 also identified the two appellants. The T.I.charts prepared on 27.3.1996 and 6.4.1996 are respectively made Ext.4/1 and Ext.4. Ext.5 is the injury report of the informant Ram Pravesh Singh. After investigation the police submitted chargesheet (Ext.3) and the case was committed to the court of Sessions and the appellants were put up on trial under Sections 307/34 and 393 of the IPC including Section 27 of the Arms Act. After the trial they have been convicted and sentenced as stated above. The defence of the appellants is mainly of false implication on mere suspicion after they were arrested at Jamalpur Railway Station. In support of its case the prosecution has examined all the five members of the escort party as also P.W.8 who has given the injury report and the Investigating Officer B.Ram(P.W.7) apart from a formal witness P.W.5 who has proved the formal FIR. 4 3.In his evidence in court the informant Ram Pravesh Singh (P.W.3) has stated the facts that he had mentioned in the fardbeyan. The other four eye- witnesses have also given similar versions of the incident. They have all identified the appellants in the T.I.Parade. They have also denied the allegation that the appellants were shown to them prior to the holding of the T.I.Parade. 4. Learned counsel for the appellants has sought to rely on certain contradictions in the evidence of P.Ws. particularly in relation to the T.I.Parade. He has also sought to rely on the fact that the informant was admittedly not examined by the Investigating Officer. True it is that the informant was not examined by the I.O. and even by the Dy.S.P. who had supervised the case. So far the contradiction regarding T.I.Parade is concerned, the evidence does not appear to be contradicting in nature. The allegation that the appellants were shown to the witnesses before the T.I.Parade was held also does not appear to be borne out from the materials on the record. So far as the first T.I.Parade held on 27.3.1996 is concerned, the same was held within two days of the arrest of the appellants and thus no conclusion can be drawn that the two appellants were shown to the informant and others who identified them on 27.3.1996. At best it can be said against the T.I.Parade held on 6.4.1996 in which P.Ws. 2 and 4 had 5 identified the appellants but even if the said identification by the two of the witnesses is ignored the same cannot throw out the case of the appellants as at least three persons, including the informant who was injured by the appellants and tried to catch one of them and was left with his shawl in his hand, had identified them. 5.It is also sought to be argued that the injuries though stated to be all grievous in nature, were not of a serious nature being splinter injuries on the face and shoulder and thus no case of attempt to murder is made out against the appellants. Learned counsel also sought to emphasise the fact that no arms were recovered from the appellants when they were arrested. It is further emphasized that the appellants do not have any criminal history and in such circumstances at the very least the court below should have given them the benefit of probation as first offenders. 6.It is also pointed out by learned counsel that the appellants have already remained in jail for nearly two years and one month after they were arrested on 25.3.1996 and subsequently released on bail on 20.4.1998. 7.On a consideration of the materials on the record it is evident that in this case the police men are the eye-witnesses and in the course of the occurrence one of them, the informant (P.W.3), was 6 injured on his face and shoulder by splinters on account of two gun shots being fired at him. Accused appellants were also duly identified by the members of the police party in validly conducted T.I.Parade; the injury report also substantiates the prosecution story that the appellants had fired two gun shots on the informant as a result of which he sustained splinter injuries. This Court further finds that there is no suggestion of false implication by the witnesses although certain allegations have been sought to be made that they have acted at the behest of the Investigating Officer in identifying the appellants but same appear to be far fetched. The police men being the eye-witnesses to the occurrence, considering the nature of the occurrence they are competent witnesses in the matter and their identification of the appellants in T.I.Parade and also in the court goes against the appellants. 8. In the aforesaid circumstances, the appellants were rightly convicted for having committed the offence under Section 307 read with Section 34 of the IPC. 9. So far as the sentence is concerned, this Court finds that the appellants have remained in jail for nearly two years and one month during the period of trial till the bail was granted by this Court on the filing of the appeal. The occurrence is of the year 1996 and the damocles’ sword of the criminal case has 7 continued to hang over their head for the last 13 years; apart from this they have not been shown to have any prior criminal history. Considering all these circumstances, I am of the view that the ends of justice will be met by reducing their sentence of imprisonment to the period already undergone by them, and it is ordered accordingly. No interference, however, is required so far as the sentence of fine is concerned. 10. The appeal is, thus, dismissed subject to the aforesaid modification of the sentence. (Ramesh Kumar Datta,J.) PATNA HIGH COURT The 7th day of November,2009 Spal/N.A.F.R.