CRIMINAL APPEAL No.301 OF 1993 (SJ) Against the judgment of conviction and order of sentence dated 26th August and 27th August, 1993 passed by Sri R. P. Chaudhary, 2nd Additional Sessions Judge, Khagaria in Sessions Case No. 667 of 1991. ******** 1. ASHUTOSH MANDAL S/O ASHUTOSH MANDAL S/O LATE DEV KUMAR MANDAL 2. SUNIL KUMAR MANDAL S/O LATE DEVE KUMAR MANDAL 3. SHIVAKANT MANDAL S/O LATE PRAYAG MANDAL 4. SHRIKANT MANDAL S/O LATE PRAYAG MANDAL ALL RESIDENT OF VILLAGE- KOLWARA, P.S.- PARBATTA, DISTRICT- KHAGARIA ……………………………………………APPELLANTS Versus STATE OF BIHAR………………………………… RESPONDENT ************* For the Appellants :- Mrs. Nutan Sahay Amicus Curiae, Advocate For the State :- Mr. Mozaffar Ali, Advocate ********************* P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA S. K. Sharma, J. Above named appellants have preferred this appeal against the judgment of conviction and order of sentence dated 26th August and 27th August, 1993 by the 2nd Additional Sessions Judge, Khagaria in Sessions Trial No. of 667 of 1991 whereby the appellants have been convicted for the offence under sections 326/34 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for five years and further a fine of Rs. 5,000/- was imposed on them and in default of payment of fine 2 they were to undergo rigorous imprisonment for three months. The genesis of the prosecution case is the fard beyan of Manraj Mandal which was given on 28.4.1990 alleging therein that when the informant was sitting near his field then the appellants named above came over to plough the land of the informant. They were having necessary instruments and all of them were having firearms also. The informant raised objection as to why his field was being sought to be ploughed then appellant no. 2 Sunil Kumar Mandal fired on the informant on which the bullet hit the left leg which compelled the informant to fell down on the ground. Appellant Ashutosh Mandal and Shivakant Mandal also fired but the firing did not hit the informant. The witnesses working nearby rushed at the place of occurrence upon hearing the cry of the informant, thereafter, the appellants escaped. The fard beyan (Ext-1) was recorded by PW 4 Rajdeo Singh- I. O. The place of occurrence was visited by PW 4 from where two live cartridges of 303 Bore were seized. The seizure list (Ext-2) was prepared. The defence denied the entire occurrence. Its case was that the prosecutrix and his friend Bhavesh Mndal were watching the crop of the field with a pistol and incidentally the trigger was pressed and caused bullet injury on the lower part of the leg. Taking the benefit of this unfortunate incident a story was hatched up so that the appellants may be taught proper lesson. The prosecution has examined seven witnesses in support 3 of the prosecution case. They were Saudagar Prasad Mandal (PW 1), Bindeshwari Prasad Mandal ( PW 2), Bhawesh Kumar (PW 3), Rajdeo Singh (PW 4), Dr. J. P. Yadav (PW 5), Rajendra Malakar and Pramod Prasad PW 6 and 7 respectively. PWs 1, 2 and 3 were the material witnesses of the prosecution. They were examined mainly on the point of occurrence. The Doctor PW 5 has examined the prosecutrix. PWs 6 and 7 are formal witnesses and proved rent receipts and deed of gift which were marked as Exts-5 and 6 respectively. I. O. was examined as PW 4. After considering the prosecution and defence version the learned trial court came to the opinion that prosecution has not been able to prove its case beyond all reasonable doubts under section 307 of the Indian Penal Code but it found the case proved under sections under section 326/34 of the Indian Penal Code. Learned Amicus Curiae on behalf of the appellants submitted that the prosecution was not able to prove its case beyond all reasonable doubts. There is no explanation as to why the injured was not examined. The witnesses examined were either interested witnesses or untrustworthy. The I. O. has also not given the true version of the occurrence. The true version of the I. O’s evidence is that nothing was found on the place of occurrence so the entire prosecution case was without any material and the learned trial court has erred in convicting the appellants. PW 1 has given his deposition and stated that at 8.30 on 28.4.1990 he was in his field which was situated just by the side of 4 the place of occurrence field. He stated that Manraj Mandal had transferred his lands in favour of the sons of this witness and from that very land sounds of altercation was coming. On hearing the sound of altercation he rushed there and saw that Sunil Mandal has fired by his 303 firearms which caused injury on the left feet in front of the ankle joint. Manraj Mandal fell down on ground then second firing was resorted which passed through the side of the head of Manraj Mandal and third firing made by Shivanand Mandal missed because the bullet fell near the feet of Manraj Mandal. In the mean- while witnesses Bhavesh Kumar, Bindeshwari Mandal also came there and saw the accused persons escaping towards west. Thereafter, Manraj Mandal was brought to his house. The police arrived at the village at 11.30 M where fard beyan (Exhibit-1) of Manraj Mandal was recorded. The witnesses have visited the place of occurrence along with the I. O.. The I. O. has seized two live cartridges and prepared the seizure list (Ext-2). According to that witness, the firing was intended to cause ultimate harm. He further deposed that Manraj has given his properties to his sons which was not accepted by the accused persons and due to this the occurrence was committed. This witness was cross-examined in detail but so far as his evidence with regard to time, manner and place of occurrence is concerned that remained intact and the prosecution was not able to extract anything which could made deposition doubtful. Therefore, I am of the view that the evidence of this witness remained intact. 5 PW 2 is another eye witness. His evidence is also similar to the evidence of PW 1. According to him, while he was coming from his field towards the field of Manraj Mandal and reached near the place then he heard sound. He spotted Sunil Mandal, Ashutosh Mandal, Shrikant Mandal and Shivanand Mandal and at that time Sunil Mandal was having 303 firearms and remaining persons were also having pistols. First firing was given by Sunil Mandal which hit Manraj Mandal. Others have also fired but the firing missed. This witness has supported the case of the prosecution. Though the defence has made lengthy cross-examination and has suggested various options but the evidence of this witness has remained intact. PW 3 is the another eye witness. He in his examination- in-chief has described the manner of assault. He has stated that Manraj Mandal has given gift of deed in his favour and his brother and on account of that the accused persons committed the occurrence. He described how the occurrence started. Sunil Mandal initially fired which caused injury to Manraj Mandal. Others have also fired but their firing missed. It appears from the detailed cross-examination that he has supported the manner of assault. The defence was able to take out from him that he has not seen the occurrence of firing rather he saw the accused persons armed with firearms. Though PW 3 has been examined as eye witness but the ocular version has been given by him that he has seen the occurrence and has arrived at the place 6 of occurrence immediately and he has seen the accused persons having firearms. His evidence is not direct but circumstances indicate that he has seen the appellants present with firearms. The I. O. has conducted the investigation and found blood marks and trampling marks were also there. He has seized two live cartridges from the place of occurrence in presence of the witnesses. The presence of blood marks in the field hints about the strong circumstance to suggest that the occurrence as alleged was true and it has occurred in the manner as suggested by the prosecution. The doctor has found the following injuries:- (i) Lacerated wound round in shape 1/2” x 1/2” with blackish margin deep two from dorsal aspest venetral aspect over left feet 2” in front of ankle joint. It was wound of entry (ii) Lacerated wound round in shape 1/4” x 1/2 2” from ventral aspect to dorsal. 2” over nid of feet rupturing large resulting huge amount of blood oozing. It was wound of exit. The doctor found that both injuries were caused by bullet fired from firearms and these were grievous in nature. Age of the injury were within 8 hours at the time of examination of injured. The evidence of the doctor is in conformity with the evidences of the witnesses who have been brought by the prosecution. Argument of the learned Amicus Curiae appearing on 7 behalf of the appellants is that Manraj Mandal adopted sons of Bhavesh Mandal and there was enmity between the witnesses and the accused persons regarding land in question. Due to that enmity the appellants have falsely been implicated. The defence has also examined witnesses but they have not stated anything that Manraj Mandal had adopted Shivakant Mandal. The defence has failed to establish that Shivakant was adopted by Manraj Mandal rather evidence goes to suggest that he has executed a sale deed in favour of Pramod Kumar, Nigam Kumar and Bhavesh Kumar and Bipin Kumar. The deed of gift is exhibit-6 which was proved by the deed writer Pramod Prasad. Deed of gift was of 18.3.1987. From the evidences brought on record, valid inference could be drawn that the appellants had some annoyance and grudge against Manraj Mandal because he has executed a deed of gift in favour of Bhavesh and others. Argument of the learned counsel for the appellants that on account of a deed of gift the appellants have been falsely implicated does not stand the test. Another defence by the appellants is that the injury was received by Manraj Mandal accidentally. In support of this version the defence has examined witnesses they are Ashok Kumar (DW 1), Birendra Kumar (DW 2). Both deposed that on the date and time of occurrence they saw Manraj and Bhavesh sitting in the field. Bhavesh was opening and shutting firearm which incidentally fired and hit Manraj Mandal. From the evidence of the defence witnesses, it has come that Manraj Mandal has received firearm 8 injuries at the time of place of occurrence. The suggestions given to DW 1 that GR No. 633 of 1992 was committed to the court of Sessions. In that case this witness and Birendra Mandal, DW 2, are the accused persons. It has also been suggested to this witnesses that he is the bailor of the accused persons so he has falsely deposed in favour of the defence. The evidence of the defence witnesses suggest that on the date and time of occurrence Manraj Mandal has received firearm injury but the version adopted by the defence is doubtful in view of the ocular evidence of the witnesses. There is consistent evidence that on the date and time of occurrence the accused persons, namely, the appellants have assembled and have committed various overt acts as a result of which Manraj Mandal has received injury. Manraj later on died so that fard beyan was not proved by him but this does not affect the prosecution case. Learned trial court has disbelieved the charge under section 307 of the Indian Penal Code and so it has already taken a lenient view with regard to the occurrence and has sentenced the appellant under sections 326/34 of the Indian Penal Code. In my view the prosecution has been able to prove its case against all the appellants beyond all reasonable doubts. Learned Amicus Curiae appearing on behalf of the appellants submitted that no previous conviction has been proved against any of the appellants. The occurrence is of the year 1990 9 and more than 19 years have been passed and no adverse remarks are available on the record. It is further submitted that the appellants have remained in custody during the pendency of the appeal and trial so lenient view may be taken. Learned counsel for the State supported the submission of the learned Amicus curiae appearing on behalf of the appellants that the sentences may be modified. Accordingly, the sentences are modified and the sentences are reduced to the extent that the period undergone by the appellants during trial and appeal shall be deemed to be sufficient for the ends of justice. In the result this appeal is dismissed with the aforesaid modification in the sentences of the appellants. Let a copy of this judgment be handed over to Mrs. Nutan Sahay who assisted the court as Amicus curiae on behalf of the appellants to ensure that she receives her fee from the High Court, Legal Services Committee, Patna. ((Shyam Kishore Sharma, J.) Patna High Court, Dated 3rd August, 2009 N.A.F.R./avin