CRIMINAL APPEAL No.663 OF 2004 Against the judgment and order dated 16.9.2004, passed by Sri Om Prakash Sinha, Fast Track Court No. IV, Khagaria in Sessions Case No. 28 of 1991 1. BIRENDRA VERMA 2. Prem Kumar Verma @ Prem Lal Singh 3. Tej Bahadur Verma @ Tej Narayan Verma 4. Arun Kumar Verma @ Arun Verma All are sons of Late Sri Narayan Verma. 5. Niripendra Verma @ Niripendra Prasad Singh, son of Ram Lakhan Verma 6. Bhuto Verma, son of Late Ram Lakhan Verma 7. Rajesh Verma @ Rajesh Kumar, son of Bhuto Verma All are residents of Pasraha, P.S.- Gagri, District- Khagaria ------ Appellants Versus THE STATE OF BIHAR---- ------------------------ Respondent With CR. APP (SJ) No.672 oF 2004 1. Umesh Verma, son of Ram Lakhan Verma, resident of Village Pasraha,P.S.-Gagri,District-Khagaria ----- Appellant Versus THE STATE OF BIHAR------------------------- Respondent For the Appellants :- Mr. Tarakant Jha, Senior Advocate Mr. Bindhya Keshri Kumar, Senior Advocate Mr. Kanhaiya Prasad Singh, Senior Advocate Mr. Kaushal Kumar Jha, Advocate Mr. Rajeev Kumar, Advocate Mr. Amish Kumar, Advocate For the State :- Mr. Satya Narayan Prasad,A.P.P. (In Cr. Appeal No.663/2004) Mr. Rajendra Nath Jha, A.P.P. (In Cr. Appeal No.672/2004) P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. There are 7 appellants in Cr. Appeal No. 663 of 2004. Mr. Tarakant Jha represents 6 2 of them. Appellant no. 2 is represented by Mr. Kanhaiya Prasad Singh. The 7 appellants have been convicted under Sections 307/149 of the Indian Penal Code to undergo imprisonment for 10 years and further convicted under Section 147 of the Indian Penal Code to undergo imprisonment for 1 year. There were two appellants in Criminal Appeal No. 672 of 2004. A supplementary affidavit has been filed to say that appellant no. 1 Upendra Verma @ Upendra Prasad Verma died during the pendency of this appeal on 9.12.2004. His name has been expunged from the memo of appeal on 17.4.2009 on the basis of the supplementary affidavit and there remains only single appellant namely Umesh Verma in Criminal Appeal No. 672 of 2004. In this case, three ‘Fardbeyans’ were recorded. Ext. 1 is the ‘Fardbeyan’ of Panna Lal Singh recorded on 7.8.1988(Ext. 1/1). The second ‘Fardbeyan’ was by Ram Nagina Singh, P.W. 5 who was injured in the occurrence and was recorded at 8.30 a.m. on 7.8.1988 at the hospital (Ext. A-1/1) and the third ‘Fardbeyan’ 3 was by Sanjeev Kumar, P.W. 4 who was also injured in the occurrence which was recorded on 7.8.1988 at 10 a.m. in the morning. 13 witnesses have been examined on behalf of the prosecution and 6 witnesses have been examined on behalf of the defence. The short point that has cropped up in Cr. Appeal No. 663 of 2004 is that learned counsel for the appellants submits that there is absolutely no evidence to indicate that the appellants had gone with the common object along with Umesh Verma and Upendra Verma to commit the murder of Ram Nagina Singh and Sanjeev Kumar. It has been submitted that the appellants were not armed and the Court after pursuing the evidence has come to a finding that even the allegation in the First Information Report that these 7 appellants had thrown stones and indulged in brick batting has not been found to be true which finds mention at paragraph 31 of the judgment. On the basis of the aforesaid facts, learned counsel for the appellants submits that the Court was wrong to presume that these appellants were the member of an unlawful assembly and had gone with the 4 knowledge that the offence is likely to be committed. Besides which attention of the Court has been drawn to the fact that there are discrepancies with respect to the motive and the manner of the occurrence. It has been specifically stated that P.W. 11 only names 4 persons whereas P.W. 5 is not able to disclose the name of the person who inflicted injury on P.W. 4. Apart from which P.W. 11 the father of the informant and the informant of Ext. 1 has alleged that Teza fired on Ram Nagina Singh whereas Ram Nagina Singh himself has alleged that Upendra Verma fired on him. Whatever may be the details regarding the contradictions of the witnesses while giving an account of the manner, motive or place of occurrence, this Court finds that the prosecution has not been able to prove beyond the reasonable doubt that these appellants had gone with the intention to commit an offence and as such their appeal is allowed and the conviction and sentence passed on 16th September, 2004 in Sessions Case No. 28 of 1991 by the Fast Track Court No. IV, Khagaria is set aside. Mr. Bindhya Keshri Kumar appearing 5 on behalf of the appellant Umesh Verma submits that the this appellant has remained in custody for 8 months and even if the prosecution case is accepted to be true, the injuries inflicted by this appellant is on the lower part of the body and are simple in nature and as such this Court should consider that there was only a single injury which was not repeated by the appellant and the evidence indicates that there were no intervening circumstances to prevent the repetition of the firing from the gun carried by this appellant and as such no offence under Section 307 of the Indian Penal Code is made out against this appellant. It is submitted that at the most the case would come under Section 324 of the Indian Penal Code. It is further submitted that the appellant had remained in custody for sufficient time and this Court may consider reducing the sentence in the circumstances and facts of this case. The occurrence has taken place on 6.8.1988. This Court finds that the injuries are simple in nature and the appellant Umesh Verma has been sufficiently punished inasmuch as he has had to pursue his legal remedies for 6 more than 20 years. In the circumstances of this case, I hold the appellant Umesh Verma guilty under Section 324 and sentence him to the period already undergone with a stipulation that this appellant has to pay a fine of Rs. 3,000/- in default of which he has to undergo R.I. for three months. In the result Criminal Appeal No. 663 of 2004 is allowed and the appellants namely Birendra Verma, Prem Kumar Verma @ Prem Lal Singh, Tej Bahadur Verma @ Tej Narayan Verma, Arun Kumar Verma @ Arun Verma, Niripendra Verma @ Niripendra Prasad Singh, Bhuto Verma and Rajesh Verma @ Rajesh Kumar are discharged from liabilities of their bail bonds earlier furnished in this case. Criminal Appeal No. 672 of 2004 is dismissed with the aforesaid modification in sentence. Patna High Court, 20th April, 2009 N.A.F.R./Sanjay (Sheema Ali Khan, J.)