CRIMINAL APPEAL No.222 OF 1993 Against the judgment and order dated 28.6.1993 passed by 12th Addl. Sessions Judge, Munger, in Sessions Case No. 301/89. IJOO YADAV---------------------------------------Appellant Versus STATE OF BIHAR & ANOR.---------------------------Respondents For the Appellant : Mr. Ambika Bhagat & Mr.Kamal Kr.Sinha For the State : Mr. Satya Narain Prasad, A.P.P. P R E S E N T THE HON'BLE JUSTICE SMT. REKHA KUMARI Rekha Kumari,J., This appeal is directed against the judgment dated 28.6.1993 passed by the 12th Addl. Sessions Judge, Munger in Sessions Case No. 301/89, whereby the learned Addl. Sessions Judge has convicted the appellant under section 324 of the Indian Penal Code and has sentenced him to undergo R.I. for two years and to pay a fine of Rs. 1,000/- and in default to undergo R.I. for one year with a direction that the amount of fine, if paid, would be given to the informant’s son, the injured (P.W.2). 2. There were three more accused in the case, namely, Musaharu Yadav, Lallu Yadav @ Paltoo Yadav and Ganesh Yadav, who were acquitted. 3. The prosecution case, in short, is that on 22.3.1987 at about 8.30 A.M. the informant Ayodhaya Yadav was harvesting wheat crop in his field when the accused Musaharu Yadav came and intruded his cattle in the field. The informant objected, whereupon the accused abused him. It is further alleged that after half an hour all the four accused including the appellant came to the house of the informant. The appellant had pistol in his hand. Lallu Yadav was armed with bomb. Accused Musaharu Yadav instigated to kill. On this, the appellant fired which hit Makeshwar Yadav, the son of the informant, on left thigh. He fell down. All the accused persons fled away. The injured was taken to the Police Station 2 where the F.I.R. was lodged by the informant. Thereafter the injured was taken to hospital where he was treated. 4. The police after investigation submitted charge sheet against the appellant and the co-accused. 5. All the accused persons including the appellant were charged under section 307/34 of the Indian Penal Code. They pleaded no guilty to the charge. Their defence, as gathered from the suggestions, given to the P.Ws. is that no occurrence as alleged took place. The informant has his field by the side of the field of the accused persons and there was dispute between them with regard to ridge and out of enmity the informant falsely implicated them. Their further defence is that the cattle of Musaharu had eaten the straw of Bathan of the informant and on this there was altercation betweens the informant’s son and the informant’s nephew. The informant’s son on this brought a pistol from his house. Both the informant’s son and his nephew wanted to shoot Mushaharu and so, the informant’s nephew tried to snatch the pistol and in course of snatching the shot was fired hitting the informant’s son. 6. The prosecution examined five witnesses in order to prove its case. P.W.1 is the informant and P.W.2 is his son. The injured (P.W.3) Bharose Yadav and P.W.4 Aidal Yadav, who were co-villagers of the informant, also claimed to be eye witnesses to the assault. P.W.5 is Dr. Umesh Prasad, who had examined the injured at his Sub Block Hospital. No witness was examined by the accused persons. The learned Addl. Sessions Judge after considering the evidence of the above witnesses held the appellant guilty only under section 324 I.P.C. in stead of 307/34 I.P.C. and convicted and sentenced him as mentioned above. 7. Learned counsel for the appellant submitted that the eye witnesses have failed to prove the prosecution case. The evidence of the doctor is in conflict with the 3 evidence of the eye witnesses making the prosecution case doubtful. The F.I.R. of the case has not been brought on record. The I.O. has not been examined and therefore, the genesis of the occurrence has not been proved and the contradictions of the evidence of the witnesses and their former statements before the I.O. could not be taken causing prejudice to the appellant and therefore, the conviction cannot be sustained. He also submitted that the sentence is excessive. 8. In order to appreciate the submissions of the learned counsel I have gone through the evidence of the witnesses. 9. P.W.5 is the Doctor, who was disposed that on 22.3.1987 at 3.30 P.M. he examined Makeshwar Yadav (the injured of the case) and found the following injuries on his person : (i) Gun shot injury on left thigh 9” below the heap joint on inner side. Multiple injuries on skin due to gun powder seen each of various sizes from ¼” to ½” thirty to forty in number. Powder just had penetrated the skin and the colours were black. Wound of entrance and would of exit seen. Size of entrance was ½” diameter and of exit ¾” diameter. Wound of exit was 8” below the wound of entrance and was situated on back on inner side. Edges were lacerated. This injury is possible by pistol. (ii) Multiple gun powder injuries on inner side of thigh nearly 3o to 40 in number as on left thigh. Size varies from ¼” to ½”, just beneath the skin and colour was black. 10. According to the doctor, the injuries were caused by gun shot and injury no.1 was grievous and injury no.2 was simple in nature and the injuries were caused within 4 12 hours of his examination. His evidence also shows that the injury was x-rayed but no bone was found fractured. 11. Thus, from the above evidence of the doctor, it is clear that the son of the informant had received gun shot injuries on the date and time of the alleged occurrence. 12. The next question is whether the above injuries were caused by the appellant and in the manner and at the time as alleged. 13. P.W.1. the informant has deposed that on the alleged date at about 8.30 A.M. he was harvesting wheat in his field when the accused Mushaharu came and took his cattle inside the field. He protested when the accused abused him. He has further stated that after half an hour he went to his house. All the four accused persons including the appellant came. The appellant was armed with pistol and at the instigation of the accused Mushaharu Yadav he fired which hit his son Mukeshwar Yadav on left thigh and the injured fell down and all the accused persons fled away. His evidence in cross-examination shows that the house of the accused persons is near his house intervened only by one house. He has also stated in his cross-examination that when he reached his house the accused persons were raising hulla and he went out and then the occurrence had taken place on the northern west corner of his house and outside the house. 14. P.W.2 the injured has fully corroborated the evidence of his father P.W.1. He has also stated that the accused persons came variously armed and on the instigation of the accused Mushaharu Yadav, the appellant fired which hit his left thigh and then the accused persons fled away. In cross- examination he has stated that when the accused persons were outside his house at his door, he reached there and firing took place when he was at northern west of his house at his door. 5 15. Both the above two witnesses have been cross- examined but there is absolutely nothing in their evidence to disbelieve them. It has been suggested to P.W.1 that there was a dispute between him and the accused in respect of ridge but he has denied his suggestions. No witness has been examined on behalf of the accused persons in support of this defence. It has been suggested to P.W.2 that he and his cousin both wanted to fire on Mushaharu and he had brought pistol and in course of snatching of the pistol by his cousin the pistol was fired causing injury to him but he has denied the suggestion and a denied suggestion is of no avail to the appellant. On the other hand, it lends support to the prosecution case that the injured has suffered a gun shot injury at the alleged time. 16. P.Ws. 3 and 4 have also corroborated the evidence of the above witnesses and their evidence also is that at the instigation of Mushaharu the appellant Ijoo Yadav fired causing injury to the son of the informant in his left thigh. According to them, they were at the bunglow of the informant when the occurrence took place. They belong to the P.O. village. So, their presence at the P.O. is not unnatural. 17. The attention of these witnesses have been drawn towards their previous statement before the I.O. to show that they were not eye witnesses to the occurrence. The I.O., however, has not been examined and so they could not take contradiction. But even if these witnesses were not eye witnesses before the I.O. and in court they have given eye witness account and so, their evidence not reliable, the evidence of P.Ws. 1 and 2 which finds support from the evidence of the doctor is sufficient to prove the present case. 18. The evidence of the doctor of course shows that he had found injuries on left and right thigh whereas according to the evidence of P.Ws. 1 and 2, the appellant had fired only one shot. But the evidence of the doctor is clear 6 that he had found gun shot injury only on left thigh and other injuries on the left and right thighs were gun powder injuries. He has also stated in his cross-examination that gun powder comes from the pellet and the gun shot contains 100 pellets and the pellet is scattered all around. Therefore, it is quite probable that the gun shot was fired which hit left thigh and the pellet scattered causing gun shot injuries on both thighs as both thighs are closed to each other. So, there is in fact no discrepancy in the evidence of the doctor and the evidence of the eye witnesses. 19. As regards genesis of occurrence, the evidence of P.W.1 is clear that the accused Mushaharu had taken his cattle inside his field which was objected by him, this annoyed accused Mushaharu and then after half an hour the occurrence took place. The I.O. of course has not been examined, but P.W.1 has nowhere stated that the cattle had grazed or otherwise damaged or trampled any crop. So, when the evidence of P.W.1 on this point is reliable, if the I.O. who is not an eye witness, has not been examined, the genesis of occurrence cannot be said to have not been proved. P.W.2 of course has stated that the cattle had trampled some crops but his evidence shows that he was not present in the field at that time. So, on the basis of his evidence it cannot be said that in absence of examination of the I.O. it could not be taken whether the cattle had actually entered the field of the informant and the appellant was thereby prejudiced. 20. From the evidence of P.Ws. 1, 2 it is also clear that the occurrence of assault took place at the door of the informant and so, even if the I.O. did not come to prove this P.O. the evidence of the above two witnesses which is unimpeachable is sufficient to prove the P.O. 21. The F.I.R. has not been proved in this case. The F.I.R. is, of course, a very vital material as it is the first informant about the incident. 7 22. But there is nothing on the record to show in this case that the F.I.R. has been intentionally suppressed to suit the prosecution evidence. On the other hand, the evidence shows that the signature of the informant on the F.I.R. has been marked as Ext.1. The evidence of P.W.1 also shows that the F.I.R. was written by the Officer In-charge of the P.S., who is the I.O. of the case. It also appears from the record that in spite of summons sent as the I.O. superannuated his attendance could not be procured. Therefore, there appears merit in the view of the learned trial court that as the I.O. could not be examined, the F.I.R. could not be proved. 23. There is also nothing in the evidence of the informant that it has made any alteration or improvement in the prosecution case as stated by him in the F.I.R. 24. So, when the F.I.R. has not been deliberately suppressed and there is no material that the prosecution in evidence deviated from the version of the F.I.R., though the F.I.R. has not been proved, the evidence of the reliable eye witnesses is sufficient to prove the prosecution case. 25. I, therefore, agree with the learned trial court that the prosecution has been able to prove that the appellant had fired causing injury to the son of the informant. The conviction of the appellant by the learned trial court, hence, is upheld. 26. As regards the sentence, however, as the appellant is the first offender, considering the nature of the offence and harassment caused on account of long delay in final disposal of the case, the sentence of imprisonment is reduced to the period already undergone by him. The sentence of fine, however, is maintained and the appellant must deposit the fine within three months from this date, otherwise he would suffer imprisonment as directed by the trial court. The 8 amount of fine would also be given to P.W.2 when released as directed by the learned Addl. Sessions Judge. 27. With the above observation, this appeal is dismissed. ( Rekha Kumari,J.) PATNA HIGH COURT Dated, the 6th May,2008 N.A.F.R./ Surendra.