IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.147 of 1999 ========================================================== Bijendra Gope S/O Musafir Gope of village- Bampur, P.S. Parwalpur, District- Nalanda. .... .... Appellant/s Versus State Of Bihar .... .... Respondent/s ========================================================== Appearance : For the Appellant/s : Mr. Arun Kumar Tripathi (Amicus Curiae) For the Respondent/s : Mr. Ajay Mishra- A.P.P. ========================================================== PRESENT (HONOURABLE MR. JUSTICE MANDHATA SINGH) JUDGMENT Mandhata Singh, J. This appeal is directed against the judgment and order dated 29th of May, 1999 passed by Sri Roshan Lall Sharma, Vth Addl. Sessions Judge, Nalanda at Biharsharif in Sessions Trial No.136 of 1996 for the offence under Section 307 of the I.P.C. and Section 27 of the Arms Act. Heard learned counsel for the appellant and learned counsel for the State. Basing fard-bayan of victim Suminder Kewat, F.I.R. is lodged which in brief is that he (Suminder Kewat) was coming to his house from his ‘Baithka’ for taking meal, in the way Devendra Gope, Ashok Gope, Bijendra Gope and Chandrika Gope variously armed with countrymade pistol surrounded him. He was shot firing on his cheek which injured his tongue also. Victim-informant was brought to Sadar Hospital Biharsharif and then to P.M.C.H. for better treatment. Reason behind the incident is said previous enmity. After concluding the trial, appellant is convicted and sentenced for the offence under Section 307 Patna High Court CR. APP (SJ) No.147 of 1999 dt.20-12-2011 2 of the I.P.C. and Section 27 of the Arms Act. Validity of which has been questioned through filing this appeal. In all, thirteen (13) witnesses are examined in the case and they are PW-1 Jugeshwar Ram, PW-2 Charitar Jamadar, PW-3 Munni Mistri, PW-4 Nandu Raut, PW-5 Bhattu Kewat, PW-6 Mahendra Kewat, PW-7 Sumangli Devi, PW-8 Ram Pari Devi, PW-9 Indu Devi, PW-10 Sumindra Kewat, the victim-informant, PW-11 Dr. Ajit Kumar, PW-12 Ram Vyas Singh, the Investigating Officer and PW-13 Devendra Kumar Singh, A.S.I. PWs-1 and 2 are stating about his hearing causing of injury by Devendra Gope to Suminder Kewat. PWs-3 and 4 are stating to know nothing about the incident. All the above four witnesses have been declared hostile and have been questioned for their making other statement before the Investigating Officer that Devendra Gope, Chandrika Gope and Ashok Gope had shot firing upon Suminder Gope, so, are of no avail for the prosecution. PWs-5, 6, 7, 8, 9 including PW-10 victim and informant of the case are stating that firing was shot by this appellant while PW- 10 was on way his home from his ‘Baithka’ for taking meal. All these witnesses including PW-10 have made statement under Section 161 of the Cr.P.C. about their reaching the place of occurrence after hearing the sound of firing and then coming to know about firing by Devendra Gope, Ashok Gope, Bijendra Gope and Chandrika Gope. Attention of all the witnesses about their statement under Section 161 of the Cr.P.C. has been drawn. Now in the Court, there is deviation that there was some quarrel, noise, sound, so they reached the place of occurrence Patna High Court CR. APP (SJ) No.147 of 1999 dt.20-12-2011 3 then only firing was shot by this appellant and presence of none with appellant. Injury of PW-10 is not doubted, that is corroborated by PW- 11 also the doctor. PW-12 is I.O. of the case who states that investigation was conducted on his behalf fairly. Witnesses are never allowed to make any statement in the Court for the first time, save and except in exception which is not existing in the case. F.I.R. is the first version of the victim that is firing by Devendra Gope, Ashok Gope, Bijendra Gope this appellant and Chandrika Gope that is corroborated in his further statement also. Making of fard-bayan and further statement is admitted to PW-10 also only deviation is that same was not read over to him. One thing is important in the case that the act of the Investigating Officer or police was never protested in course of trial. PWs-5 to 9 are family members of PW-10. Of them, PW-5 is his father, his statement is that he was sitting at his Baithka. PW-10 was going his home to take meal then there was sound of a firing. He is more specific on page-3 in cross-examination that night of the occurrence was dark. He went to the place of firing after twenty (20) minutes of the firing against the claim of appearing of the witnesses before firing of the shot belying any quarrel, possibility of noise or other type of sound. PW-10 the victim himself states in Paragraph-6 of his cross-examination that on his reaching place of occurrence instantly incident took place, he is not aware about the interval of time when his other family members reached there. It is apparent that all his family members were either at Baithka or house situated at a short distance. Patna High Court CR. APP (SJ) No.147 of 1999 dt.20-12-2011 4 Another circumstance is that matter was informed to the police by making fard-bayan (statement) by the informant only. In Paragraph-7, he states that at the place of occurrence he was not in position to make any statement, recovered his conscious at home, but was not able to make statement and anyhow making statement in hospital at Biharsharif that clearly doubts the presence of witnesses at the time of firing otherwise that would have been informed to the police by them and his statement is also about causing firing by four persons. Next circumstance is that though prosecution appeared in course of trial with a different story than made in the F.I.R. or in course of investigation, but not remain constant on the same even four of the prosecution witnesses PWs-1 to PW-4 are declared hostile on instance of the prosecution, but some suggestion are made to PWs-2, 3 and 4 that there was enmity in between the victim and Devendra Gope, Chandrika Gope and Ashok Gope more specific to PWs-3 and 4 that for same reason Suminder was shot injured. Finding no consistency about causing of firing by Devendra Gope, Ashok Gope, Bijendra Gope and Chandrika Gope in F.I.R. and in course of investigation and statement made before the Court, I doubt the credence of the witnesses, under discussed circumstance, mainly PW-5 to PW-10 including victim. This much of the aspect of the case is ignored by the trial Court at all. So, the conclusion about conviction and sentence reached by it is not liable to be sustained. Accordingly, this appeal is allowed and the judgment and Patna High Court CR. APP (SJ) No.147 of 1999 dt.20-12-2011 5 order passed by the Vth Additional Sessions Judge, Nalanda at Biharsharif dated 29th of May, 1999 in Sessions Trial No.136 of 1996 is set aside and the appellant is acquitted of the charges for the offences under Section 307 of the I.P.C. and Section 27 of the Arms Act and he is discharged from the liabilities of the bail bonds. Let a copy of the first page and last page of this judgment be handed over to the learned Amicus Curiae for needful. A copy of this judgment along with L.C.R. be sent back to the trial Court forthwith. Patna High Court, Patna 20th of December, 2011 Vikash Verma N.A.F.R./ ( Mandhata Singh, J.)