Criminal Appeal (SJ) No.208 of 1999 With Criminal Appeal (SJ) No. 213 of 1999 **** Against the judgment, dated 26.07.1999, passed by Sri S.B. Ambashtha, Additional Sessions Judge, I, Begusarai, in S. Tr. No. 167 of 1995 **** 1. Md. Abdul Rajak, son of late Md. Habib 2. Md. Taiyab, son of Md. Abdul Rajak Both residents of village Bahadurpur, P.S. Muffasil, district Begusarai .. Appellants (in Cr. Appeal (S.J.)No.208/99) Sajjan Paswan, son of Gajo Paswan, resident of village Bahadurpur, P.S. Muffasil, district Begusarai .. Appellant (in Cr. Appeal (S.J.)No.213/99) Versus The State of Bihar .. Respondent (in both the cases) **** (In Cr. Appeal (S.J.) No.208 of 1999) For the Appellants .. M/S Abul Kalam & Raj Kumar, Advs. (In Cr. Appeal (S.J.) No.213 of 1999) For the Appellant .. Mr. Kanhaiya Prasad Singh, Sr. Adv. with Mr. Pramod Manbansh, Adv. For the Respondent .. Mr. Sujit Kumar Singh, APP (in both the cases) **** P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellants and the State. 2. The two appeals are being heard together and are 2 being disposed off by this common judgment as both arise out of the common judgment. 3. All three appellants in both the appeals have been convicted under Section 307 of the Penal Code and have been sentenced to undergo rigorous imprisonment for five years and appellant, Sajjan Paswan, has, further, been sentenced to undergo rigorous imprisonment for two years, for offence, under Section 27 of the Arms Act. 4. The prosecution case, as alleged that while the informant, Md. Jamal, was coming from the tea shop of Md. Moin and was going towards his house and reached near the culvert, he found accused Razaque, Md. Taiyab and Sajjan Paswan, standing at the culvert. He saw them in the light of torch flashed by the informant and saw Sajjan Paswan having pistol in his hand. It is, further, alleged that Md. Razaque on seeing the informant shouted to kill him. The informant, thereafter, started running and then accused, Sajjan Paswan, fired upon the informant after chasing him. The informant sustained fire arm injury on his back and fell down. It is alleged that on the sound of firing Ramjee Sada (P.W. 3), Md. Ghuttur (P.W. 4), Md. Muslim (P.W. 1) and his elder brother, Md. Nazim (P.W. 2) came there. The accused persons fled away. The informant became unconscious and when he regained his consciousness he found himself in the clinic of Dr. Ashok Sharma. The motive for the occurrence is that the informant has enmity with Razaque and the litigation is going on. 5. On the fardbeyan of the informant, the first 3 information report lodged and the informant proceeded. After investigation, the charge sheet submitted and the case was committed to the Court of session. After commitment the charge was framed against all the three accused persons for offence under Section 307 of the Penal Code. Further, the charge was framed under Section 27 of the Arms Act against Sajjan Paswan. 6. During the trial seven witnesses examined on behalf of the prosecution and the investigating officer examined as Court witness no. 1. 7. The defence has though not examined any witness, but, has proved Exhibits “A” and “A/1”, the two first information reports by the wife and daughter of the informant. 8. The trial Court taken into consideration the evidence of P.W. 5, the informant, having supported the prosecution case and deposed that he was going to house via culvert after taking tea from the shop of Md. Moin then he saw three persons and on the abatement of Razaque, Sajjan fired while the informant started running away causing injury on his back and on hulla the witnesses, P.Ws. 1, 2, 3, 4 and 5 came, the witnesses P.Ws. 1, 2, 3, and 4 have stated that on the sound of firing they came to the place of occurrence. They saw the accused persons fleeing away and the victim was injured bismeared with blood. They took the victim to the hospital. P.W. 6, the doctor, who examined Md. Jamal found fire injury with inverted margin on the back of the middle part of right scapula, just perpored the skin and right scapula and upper lobe of the right lungs and badly damaged the same with profuse bleeding and came out from the right pectoral 4 region below the second ribs about 1” diameter with everted margin. He found the nature of the above injury grievous and dangerous to life caused by fire arm. He found the age of the injury within six hours and, hence, the convicted the appellants, as mentioned above. 9. The learned counsel for the appellants in Cr. Appeal (S.J.) No. 208 of 1999, however, submits that from the prosecution case it appears that the informant proceeded from tea stall to his house, however, the owner of the tea stall not examined nor the investigating officer find out whether the said tea stall exists or not. It has, further, been contended that the torch, which is the means of identification has neither been produced before the investigating officer nor in the Court. It has, further, been contended that Md. Razaque has been given the role of abater, but, except the informant none has come to support the prosecution case about his role as abater and none has actually given any role to him and except the evidence of witnesses that they saw them fleeing away from the place of occurrence nothing is against the appellants. It has, further, been contended that Md. Razaque is seventy years old and during the trial and after conviction appellants remained in jail for about three months. It has, further, been contended that Taiyab is son of Razaque has not been assigned any role and is only the member of mob. 10. The learned counsel for the appellants in Cr. Appeal (S.J.) No. 213 of 1999, however, contended that the allegation is that fire hit on the back and the blood oozed. However, the investigating officer did not find any blood. It has, further, been contended that the ganjee and shirt which were damaged by the fire arm, but, the said 5 ganjee and shirt havenot been brought as evidence. It has, further, been contended that the fardbeyan was recorded in the clinical of Dr. Ashok Kumar Sharma, but, he was not examined. The learned counsel for the appellants, further, contended that though the allegation of firing and one fire arm injury has been reason, but, the case diary itself does not suggests that it confirmed the definition of grievous injury as mentioned in Section 320 of the Penal Code and, hence, it can well be inferred that Section 307 of the Penal Code is not established. It has, further, been contended that there was prior enmity and false implication can not be ruled out and, hence, the prosecution has not proved the case, however, it is asserted that the occurrence is of the year 1994 and seventeen years have already elapsed and, hence, it is not proper to send the appellants to jail as the appellants have already remained in jail for about one year four months, i.e., from 04.08.1994 to 01.12.1995 and, further, after conviction from 31.08.1994 to 24.09.1994. 11. The learned counsel for the State, however, contends that the prosecution has proved the case beyond reasonable doubts when he was coming from tea shop and going to his house then at culvert Md. Razaque commanded to kill, on which Sajjan Paswan chased and fired causing injury to the informant. P.W. 1 has stated that on hearing the sound of firing he saw the accused persons fleeing away and Sajjan Paswan was amongst them and has stated that Jamal disclosed that Sajjan fired upon the informant. P.W. 2, Md. Nadim, P.W. 3 Ramjee Sahu also supported the prosecution case that they saw the accused persons fleeing away when they rushed the place of 6 occurrence on the sound of firing and P.W. 4 also supported the prosecution case. P.W. 6 is the doctor who found the fire arm injury on the back with everted margin. C.W. 1 is the investigating officer, hence, the prosecution established the case that Sajjan fired causing injury to the informant. 12. However, the criticism of the learned counsel for the appellants that the tea stall owner not examined and Dr. Ashok Kumar Sharma, in whose clinic the first information report was recorded has not been examined. The torch which is the means of identification has not been brought on the record as well as blood not found by the investigating officer at the place of occurrence and ganjee and shirt were not produced even accepted on the face value. However, the discrepancies and contradiction pointed out is of minor nature, which does not go to the root of the prosecution case in view of the evidence of the witness having supported the prosecution case and there is nothing in the evidence to disbelieve their testimony when the ocular evidence of the witnesses has been supported by the medical evidence is corresponding injury has been found by the doctor, P.W. 6. There is nothing in the evidence to discredit and disbelieve the prosecution case. 13. The, further, criticism is that the injury of fire arm though mentions that it hit to the back causing injury to the shoulders and it passed through and injuries are everted and inverted margin and it may not prove the injury as grievous. However, the doctor has found the injury grievous and dangerous to life, however, no cross examination has been made on this point nor any question has been 7 raised to the doctor during his examination. The doctor found the injury grievous and dangerous to life and this has not been challenged. More over, the injury is grievous or not is not material for conviction under Section 307 of the Penal Code. However, having regard to the facts and circumstances when there is evidence of the witnesses that a firing was made at the informant causing injury on the back and the doctor has found inverted and everted margin as the projectile passed through the chest causing injury to the lungs causing an injury dangerous to life, itself, is sufficient proof that offence under Section 307 of the Penal Code is made out, hence, having regard to the allegation and the nature of the evidence that the witnesses have supported the prosecution case regarding the firing and the injury on the back as well as the front injuring the lungs and passing through the lungs is sufficient to hold that there was intention to kill and the offence under Section 307 of the Penal Code is made out and order of conviction sustained. 14. However, so far the allegation and the evidence is concerned, the evidence of P.W. 5 that he saw three persons and though he has assigned the role of an abater to Md. Razaque and, further assigned the role of chase and firing by Sajjan Paswan, however, no role has been assigned to Md. Taiyab and Md. Taiyab is the son of Razaque. However, taking into consideration the fact that the occurrence is of the year 1994 and about seventeen years have elapsed and the age of Md. Razaque is about more than sixty years and, hence, in that view of the matter the ends of justice shall meet by sentencing the appellant, Md. Razaque, for the period already 8 undergone by him during the investigation and after sentence. So far Md. Taiyab is concerned, no role assigned to him, hence, ends of justice shall meet by sentencing him for the period already undergone by him during the investigation. However, so far the appellant, Sajjan Paswan, is concerned, he is direct assailant and the role assigned to him of fire injury after chase when, having regard to the facts and circumstances that the case is of the year 1994 and seventeen years have elapsed, however, the ends of justice shall meet by sentencing him for four years for offence under Section 307 of the Penal Code. 15. Hence, the appeals are dismissed with modification in sentence. ( Gopal Prasad, J. ) The Patna High Court, The 21st day of October, 2011, N.A.F.R., S.A.