Criminal Appeal (SJ) No. 129 of 2007 --------- Against the judgment and order of conviction and sentence dated 5.12.2006 passed by Shri Manoj Kumar Verma, Additional Sessions Judge (Fast Track court No.I), Purnea in Sessions Trial No. 725 of 2005 / Trial No. 84 of 2005. ------------- Jagdambi Mandal, son of Sipahi Mandal, resident of village – Birsail, Police station – Bhawanipur, District – Purnea ………………. Appellant Versus The State of Bihar ……………. Respondent --------- For the Appellant : Srimati Nutan Sahay, Advocate (Amicus Curiae) For the State : Shri S.N. Prasad, A.P.P. --------- P R E S E N T THE HON’BLE SHRI JUSTICE DHARNIDHAR JHA --------- Dharnidhar Jha, J. The solitary appellant Jagdambi Mandal, was charged by the learned Additional Sessions Judge-cum-Presiding Officer, Fast Track Court – I, Purnea with committing the offence under sections 307 IPC and section 27 Arms Act for being put on trial in S.T. No. 725 of 2005, by judgment dated 5.12.2006, the appellant was held guilty of committing the aforesaid offences and was directed to suffer RI for ten years and five years respectively on the two counts, with further direction that the sentences were to run concurrently. 2 2. The appellant has come up before this Court through the present appeal to question the correctness of the finding and appropriateness of the sentence. 3. The facts of the case are contained in fardbeyan (Ext. 1) of P.W. 3 Dinesh Prasad Sah, who was the injured of the case as well, in which he stated that he had gone to contact a tractor mechanic for the repair of his tractor but could not meet him and, as such, left some message with his nephew at his workshop on 14.11.2002. He learnt there that the mechanic had been to Purnea. He was coming back to his village and in that course, he came to the betel shop of Jagdish Mandal (P.W. 5) at about 6.30 P.M. where, besides Jagdambi Mandal, other persons were also found sitting, which included Lal Mani Mandal, Chamal Lal Mandal, Tikar Mandal, Manoj Sah and Guliya Sah. Seeing the informant, this appellant, is said to have requested him to stop and offered a betel to him also while continued talking about many things. The injured stated that he was getting late and thereafter continued going ahead. 4. It is stated that after about ten minutes, the present appellant along with his companions named above, came by cycle and intercepted the informant (P.W. 3) by pointing his country made gun at him. The appellant commanded the injured to stop, accordingly, the injured informant climbed down his cycle. This appellant and Lal Mani Mandal by that time had reached near him and is said to have stated to the informant that he was cultivating banana and the present appellant and Lal Mani Mandal were demanding Rangdari from him 3 which was not being paid. Now the informant should see as to who could save him. Seeing this, appellant Jagdambi Mandal fired a shot which hit the informant on the right side of his chest and the absconding accused Lal Mani fired another shot which hit in the left side of his chest. 5. The informant stated that finding his life in danger, he left his cycle and started running for his life and came to his house shouting, which attracted his father and others to whom he narrated about the incident and those persons brought the injured informant to Bhawanipur hospital from where he was referred to Sadar Hospital, Purnea and was admitted there for treatment where his fardbeyan (Ext. 1) was recorded by SI Birendra Prasad Singh, Officer Incharge of K. Hat Police station. 6. After recording the fardbeyan, the same was transmitted to Bhawanipur Police station as the jurisdiction to investigate the offence lied with that police and, accordingly, on receipt of the fardbeyan, on 17.11.2002, the FIR of the case (Ext. 2) was drawn up on that particular date and investigation was taken up by SI Shankar Prasad Singh, P.W. 7. 7. It has been stated by P.W. 7 that after having drawn up the FIR (Ext. 2) on the basis of Ext. 1, the fardbeyan of P.W. 3, he himself took up the investigation and started for the place of occurrence to inspect the same. He found the place of occurrence located at a distance of about 1 K.M. south-west of Bhawanipur market on the road, which was running between Bhawanipur and 4 Balia and it was at about a distance of half kilometer east of village Birsail and on the southern flank of the road where a Pipal tree was standing. He found blood stain at the place of occurrence. He, thereafter, recorded the statement of witnesses including that of the informant and searched for the accused persons who were found absconding from their respective houses, as a result of which attachment processes were executed against them. He was transferred and he handed over the charge of investigation and demitted his office. 8. P.W. 6 SI Sanjay Kumar Mandal is another I.O. who had not done any substantial part of the investigation but, simply submitted charge sheet after having received injury certificate of injured (P.W. 3) and finding the material sufficient sent up the appellant whereas other accused, specially, Lalmani Mandal was absconding till the date of submission of charge sheet. 9. The defence of the appellant was that the informant had borrowed rupees twenty five thousand from him while he was purchasing the tractor and in spite of repeated demands for paying back the money, P.W. 3 did not pay the money back, as a result of which, there were some acrimony between the parties and that was the reason for the false implication of the present appellant. 10. In order to bringing the charges home against the appellant, the prosecution examined eight witnesses. P.W. 1 Nirmala Devi was the mother of the injured P.W. 3 and P.W. 4 Dhanik Chandra Sah was his father. Both P.Ws 1 and 4 stated as did P.W. 2 5 Rajesh Sah, one of the co-villagers of P.W. 3, that injured informant came running and told them as to how this appellant and absconding accused Lal Mani Mandal had fired shots targeting his chest and had injured him. They have further stated that they shifted the injured to Bhawanipur Hospital from where he was referred to Sadar Hospital, Purnea where he was admitted for treatment and gave his fardbeyan (Ext. 1). P.W. 5 Jagdish Mandal was the betel shop owner and he has also stated that the informant and others had assembled at his shop and they had dispersed thereafter and after ten minutes of their dispersal, he had heard the sound of firing and on the next day he could learn that some criminal had shot and inured P.W. 3. Thus, the evidence of P.W. 5 also proves the arrival of the informant at his shop and his evidence further probabilizes that the occurrence had taken place. It is true that the evidence of P.W. 5 does not specify as to who was the assailant who fired at P.W. 3. 11. The injured informant (P.W.3) has supported his fardbeyan by giving the evidence in court and has stated that while coming back after searching the tractor mechanic, he stopped at the betel shop of P.W. 5 at village Birsail where he found the present appellant his companions named in the fardbeyan. The appellant requested him to stop and offered him betel also, but the informant stated that he cannot stay as it was getting late and he had to go back home. P.W. 3 stated that when he had gone ahead of village Birsail, then all the accused persons came and this appellant asked the injured to stop and fired a shot which hit in the left side of his chest from his 6 back. Absconding accused Lal Mani Mandal also fired which hit in the right side of his chest and pierced through and through and came out from the back side of his body. He started running for his life and the other accused persons also fired at him. He continued shouting while running and reached home and fell down. He narrated about the incident to his parents and others as to how he had been fired at and injured and who shifted him to Bhawanipur Hospital from where he was referred to Sadar Hospital, Purnea for being treated where he gave his fardbeyan. 12. After considering the evidence of P.W. 3 in its cross- examination part also, I at least could not find any thing indicating that the informant could have any motive for falsely implicating the appellant or any other accused persons. The manner of occurrence has been narrated by P.W. 3 in paragraph 8 of his evidence. He stated that while he was moving on the road by paddling his bicycle, he was fired at and the distance between him and his assailant was beyond 5-6 cubits. The accused were all on foot and they had firstly intercepted him from his front and thereafter had fired at him. All shots were fired from some distance and when he had dropped his cycle to run to safety, accused persons continued firing at him. 13. On consideration of evidence of P.W. 8 Dr. Yadubansh Kumar Sharma, what I could find is that the manner of occurrence which was narrated by P.W. 3 in paragraph 8 was fully corroborated by the evidence of P.W. 8, who found a lacerated wound on the left chest back in between 8th intercostal space which was measuring 1.5” 7 x 1.5” x cavity deep with inverted margin. This appears a wound of entry and corresponding wound of exit has been described by P.W. 8 as yet another lacerated wound measuring 2.5” x 1” in the third intercostal space interiorly with everted margin on the left side of the chest, upto in cavity deep. P.W. 8 stated that the two injuries were communicating to each other. Thus, what appears from the opinion of P.W. 8 is that the injuries no. 1 and 2 were the result of a single shot. The second injury was also lacerated one with inverted margin in between 7th intercostal space which was located posteriorly on the right scapular area which was bearing scattered pellets but was measuring 1” x ½” x cavity deep. The third wound which has been recorded by P.W. 8 was yet another lacerated wound measuring ½” x ½” with inverted margin up to cavity deep. Thus, not only the corresponding injuries were recorded by P.W. 8 as regards the allegation of firing shots by the present appellant as also the absconding accused Lal Mani Mandal, another injury was also found which was also caused by fire arm. 14. It was contended by the learned amicus curiae that the doctor had admitted in his evidence that he had copied the injury report and had issued Ext. 3 on 9.8.2003 after copying it from the injury register. The contention was that the injury register was not produced and the document Ext. 3, the injury certificate issued by P.W. 8 was not an admissible document. This court wants to point out that there could be two possibilities when a person is injured. One could be that he reaches the police station and from there he could be 8 forwarded by the police to the hospital for treatment. As appears from the provisions of Bihar Police Manual, particularly, Rules 212 and 213 thereof, the doctor had to receive the requisition form from the I.O. or the Officer Incharge of the police, as the case may be, which shall also contain some space for rendering the opinion by the doctor and the doctor having examined the injured, could send back the part of the form which has been pointed out as form no. 41 again to the concerned police station either by an independent agency or by the same constable who could have brought the injured and the requisition slip from the hospital. The other mode in which the injured could be examined, could be that he could be admitted in the hospital after having come to the hospital himself or on account of being brought to hospital by the family members or any one among the public. In such a case the injured is generally brought to casualty ward of the hospital and there is a casualty officer on duty who is a qualified doctor and he examines the person of the injured and records his injuries in the casualty register and thereafter admits him if he finds that the case was such which requires treatment. After the patient has been admitted he sends him to a specialized doctor by admitting him in his ward and as such, is shifted from the casualty ward and then the necessary medical aid either by giving medicines or by carrying out surgery has to be done. 15. Here in the present case, this has been the consistent case of the prosecution that the injured P.W. 3 ran for the life and came to his house where he fell down and while fleeing away, he was shouting 9 for help. His parents and others were attracted. P.W. 3 stated to all who had reached him after he had fallen down as to how and by whom he had been injured by being fired at. The witnesses shifted him to Bhawanipur Hospital from where he was referred to Purnea Sadar Hospital where he was admitted for his treatment. Thus, the doctor P.W. 8 who had initially examined him, was noting down his injuries in the injury register and after receipt of the requisition for issuance of the certificate, he was to copy the same out of the register for issuing the document Ext.3 to the police. 16. Now the question which has been raised by Smt. Sahay, the learned amicus curiae is as to whether the document (Ext.3) could have been admitted by the court below. I have two reasons to note that the document was properly admitted in evidence and for good reasons. One was the reason which could be found by section 35 of the Evidence Act on account of the fact that P.W. 8 was under the employment of the State of Bihar due to being posted as Civil Assistant Surgeon in Sadar Hospital, Purnea, which appears stated by him in his deposition. It was his duty as a public servant to examine the injured or any patient and if need be, to admit him by making relevant entries in the register which might be required to be kept under the rules of business of running a government hospital and, accordingly, while examining the patient (P.W. 3), he was recording his injuries in the casualty register in discharge of his functions of a public servant. So, the entries which were made by P.W. 8 in the 10 original register at the arrival of P.W. 3 at the hospital, were very much relevant to the facts of the present case. 17. Now there is no dispute in it that P.W. 8 had made the entries on finding the injuries in the register and had issued Ext. 3. If one could peruse the provision of section 65(e) of the Evidence Act, one could find that the register in which entries in respect of the injuries initially found on the person of P.W. 3 were made, was a public record on account of its very nature or on account of the discussions which I have just made. Hence, the secondary evidence by way of oral evidence or due to production of the copies which were made from that record by P.W. 8, was very much admissible under that particular provision of the Evidence Act. 18. It was contended by Smt. Sahay that the injuries do not fit in the manner of occurrence when the informant was telling the court that he was fired at by persons who were standing opposite him. Smt. Sahay has missed the evidence of P.W. 3 when he stated that the first shot hit him somewhere on the back part of his chest. That injury appears stated by P.W. 8. Smt. Sahay was never disputing that the injuries were dangerous and this court has also no doubt that the injuries, one of which had passed through and through after having entered into it through 8th intercostal spaces could have been simply dangerous to any body’s life. Not only that, other injuries were equally dangerous on account of having pierced into the body of the injured after having entered it through different intercostal spaces. As such, it was rightly submitted by Shri S.N. Prasad, the learned 11 Additional Public Prosecutor that when the appellant was firing the shot, he had not only the knowledge but he was also intending that the act which he was likely to commit, must cause the death of the injured. Apart from the above, the act appears concertedly perpetrated because it was not a case of single shot. The facts which have been narrated by P.W. 3 indicate that it was a predetermined act of the appellant and his companions because the informant had left the betel shop of P.W. 5 and when he had travelled on the road for ten minutes, as he says in his evidence, -- and as may appear from P.W. 5 -- then the appellant and his companions came and intercepted him from his front and asked him to come down from his bicycle and fired the shots after some talks. Repetition of the shots was also there and P.W. 3 has stated that the shots were fired at him while he was running for life. That appears probabilized by the presence of third injury also which appears fired from a longer distance than the two shots, which correspond to injury nos. 1 and 2. Thus, there could not be any two opinions regarding the judgment reached by the learned trial judge that the appellant was guilty of committing the offence under section 307 IPC and section 27 Arms Act. 19. It was contended by Smt. Sahay that the appellant was directed to suffer RI for ten years under section 307 IPC and he remained in custody for just about seven years and this Court should, considering the age of the appellant on the date of judgment, i.e., 48 years, reduce sentence passed upon him. 12 20. I have simply to refer to Smt. Sahay Illustration ( c ) appended to section 307 IPC which points out that in a case where a mere shot has been fired without causing any hurt, the sentence could be according to first part of section 307, but in case the shot had caused injury then the sentence may be as per second part of the provision, which may range from ten years to life imprisonment. Thus, what I find is that the learned trial judge has inflicted the minimum of sentence which was prescribed under law in a case in which hurt had been caused by firing a shot and considering that, I am not inclined to reduce the sentence passed upon the appellant. 21. The appeal appears of no merit on account of reasons I have just assigned and the same is dismissed. 22. Smt. Nutan Sahay, learned amicus curiae has assisted this court immensely and, as such, she deserves one fee of argument, which is directed to be paid by the Patna High Court Legal Services Committee, for which purpose, let a copy of the first and the last pages of the judgment be made over to her. (Dharnidhar Jha, J.) Patna High Court, The 18th August, 2011, AFR/Anil/