Criminal Appeal (SJ) No.107 OF 1996 Against the order and judgment dated 30.03.1996 Passed in Sessions Trial No. 78 of 1990/12 of 1991 By Sri Dahaur Baitha, Ist Additional Sessions Judge. Begusarai. 1. Mukundeo Rai, son of Kanchan Rai 2. Janardan Rai, son of Kanchan Rai 3. Kapildeo Rai, son of Kanchan Rai. All resident of Village Kanu Tola Birpur. P.S. Birpur, in the district of Begusarai. …………Appellants. Versus The State of Bihar ……………………..Respondent. Advocate for the appellants :- Mr. Ram Sumiran Rai. Advocate for the State :- Mr. Sujit Kumar Singh, A.P.P. P R E S E N T THE HON'BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad,J. Heard learned counsel for the appellants and learned counsel for the State. 2. This appeal is against judgment dated 30. 03. 1996 passed in Sessions Trial No. 78 of 1990/12 of 1991 by which Appellant No. 1, Mukundeo Rai has been convicted under Section 307 of the Indian Penal Code and Section 27 of the Arms Act and sentenced to under undergo rigorous imprisonment for ten years under Section 307 of the Indian Penal Code. However, no separate sentence was passed under Section 27 of the Arms Act. Appellant No.2 and 3, 2 namely, Janardan Rai and Kapildeo Rai have been convicted for the offence under Section 323 of the Indian Penal Code and each have been sentenced to undergo rigorous imprisonment for six months. 3. The prosecution case as alleged in the F.I.R. by the informant that Braj Bhushan Rai (P.W. 6) that on 27. 02. 1989 at 8 P.M. he had gone to Kanutola to call labourer and at that time accused Mukundeo Rai, Kapildeo Rai and Janardan Rai came and surrounded the informant and Mukundeo Rai uttered that due to the informant Braj Bhushan Rai, he has not been able to get possession over the land and as such he had to be shot at. Uttering such words, appellant no. 1 Mukundeo Rai shot fire at BraJ Bhushan Rai in his pistol which hit on the chest of the informant and blood started oozing out and the informant fell down and making cry then co-villagers came there and on seeing the villagers all the three accused persons fled away. It is alleged that informant was taken on a Matador for treatment at Sadar Hospital, Begusarai. The informant has asserted that the accused persons with intention to kill him committed such crime on account of land dispute. On the basis of the Fardbeyan of the informant Barauni P.S. 3 Case No. 74 of 1989 was registered and F.I.R. was lodged. The I.O. after investigation submitted charge sheet. After submission of the charge sheet the case was committed to court of sessions. Charge was framed for offence under Section 307 of the Indian Penal Code as well as under Section 27 of the Arms Act against accused Mukundeo Rai and charge was framed under Section 307/34 of the Indian Penal Code against accused Kapildeo Rai and Janardan Rai. 4. During trial 11 witnesses were examined. After considering the oral and documentary evidence, order of conviction was passed. 5. Learned counsel for the appellants has submitted that there is a case and counter case. A proceeding under Section 145 Cr.P.C. is also pending before the occurrence in respect of a Babul tree and that land is being claimed by the informant to have purchased the same and the witnesses are highly interested and inimical to the accused persons and so witnesses are required to be separately scrutinised. This shows that the appellants are on inimical terms with the informant due to the land dispute and thus they have been falsely implicated in this instant case with a view to harass and humiliate him. 4 It has further been contended that there is no corroboration to the prosecution case about fire arm or the injury as the evidence is likely to be relied upon. 6. Learned counsel for the State however, contends that prosecution case has been proved and witnesses have supported the prosecution case. 7. However, P.W. 6 in his evidence has stated that on 17. 02. 1989, he went to Kanutola at 8 P.M. to call labourer then accused Kapildeo Rai, Mukundeo Rai and Janardan Rai assaulted him by slaps and fists. They were telling that it was he who has creating trouble in getting the possession over the land. When he makes hulla then accused Mukundeo Rai assaulted by pistol which hit his right chest. The witnesses and other villagers took him to his house and then on Matador he was taken Sadar Hospital, Begusarai, where his statement was recorded by the Daroga. Thereafter, he was sent to Patna. However, evidence against the statement recorded in the Fardbeyan which has been marked as Ext. 8. There is no assertion in the Fardbeyan that three accused persons came and assaulted him by slaps and fists. However, P.W. 2, 3, 4 have also supported the prosecution case that on hulla they 5 went to place of occurrence and saw that three accused persons assaulted the informant and when they protested, then Mukundeo Rai fired. However, evidence of P.W. 1, 2 and 3 are quite contradictory to prosecution alleged in the Fardbeyan itself. In Fardbeyan it is alleged that witnesses came after receiving of fire arm injury and there is no allegation about assault or verbal altercation prior to receiving the fire arm injury. It has been stated that three accused persons surrounded and Mukundeo Rai fired then the informant fell down and make hulla then witness came. Hence, the prosecution as alleged itself different by prosecution of the case as alleged by the informant. 8. P.W. 5 is a hear-say witness who has stated that on hearing sound of firing and hulla he came out from his house and saw P.W. 2, 4, 1 and 3 taking Bhushan Rai by catching his hand from both sides. Bhushan has got bullet injury in the right side of his chest. It is further stated that Janardan Rai, Kapildeo Rai and Mukundeo Rai surrounded and Mukundeo Rai assaulted by fire arm. 9. However, evidence of P.W. 1, 2, 3, 4 and 5 are quite contradictory to the statement of the prosecution case about assault by accused persons by fists and slaps prior to 6 the fired by Mukundeo Rai. Hence. evidence of P.W. 1, 2, 3, 4 and 5 are opined of firing by Mukundeo Rai, but neither reliable nor trustworthy as it is quite contradictory to the prosecution case as alleged in the Fardbeyan by the informant. 10. So far medical evidence is concerned P.W. 7 is the Doctor has stated that he examined Braj Bhusan Rai and was referred to P.M.C.H. for treatment.. He found one circular wound 1” in dimeter with inverted margin on his right nipple besides swelling 2” dimeter below the nipple. However, opinion has been reserved for X-ray report. However, he has further given his evidence on the basis of photo copy of the report of P.M.C.H. which is not acceptable. 11. P.W. 11 is also Doctor of P.M.C.H. who stated that on 18. 02. 1989, while he was posted at P.M.C.H. then Braj Bhushan Rai was admitted in department of surgery who was examined by him. The patient was referred for X- ray and when the X-ray was done then it was found opaque oblong object 1” X1/4” on the right side of T/11 vertebra. The X-ray report shows opaque object from posterior to T/11 vertebra. However, the said X-ray plate report has not 7 been proved in the case, though, bullet has been brought on record from P.M.C.H., but the Doctor who operated to take out bullet from the body of the victim has not been examined and nature of injury has also not been established and even name of Doctor who operated is also not mentioned and bullet recovered is said to have been submitted in the office of the Registrar, P.M.C.H. The witness who brought the bullet stated that it was also not known to him whether the patient was further treated at Patna. 12. Having regard to the facts, two Doctors P.W. 7 and 11 were examined. P.W. 7 is reserved his opinion of X-ray report. P.W. 11, though, given his opinion, but X- ray report was not been brought on record and the Doctor who operated and take out bullet has not been examined. X-ray plate and report has not been brought on record. Hence, there is no corroboration of the nature of injury sustained by the informant. 13. Having regard to the facts and circumstances of the case, since evidence of the prosecution case in the Fardbeyan, there was three accused persons came and Mukundeo Rai was shot. However, the prosecution 8 witnesses have developed the prosecution case that there was verbal altercation followed with physical assault thereafter injury by fire arm whereas in the F.I.R. there is no whisper about any verbal or physical assault where the prosecution case in Fardbeyan that after receiving fire arm injury then witnesses came on hulla hence, in this back ground corroboration of medical evidence is essentially required. 14. Hence under the facts and circumstances of the case, since there was a case and counter case and there was prior land dispute between the parties and the parties are inimical terms and hence, evidence is required strictly scrutinised and on strict scrutiny the injury having not been established by cogent and reliable evidence. Hence I am of the view that prosecution has not been able to prove the charges. Moreover, there is no allegation of assault by Kapildeo Rai and Janardan Rai in the Fardbeyan and the prosecution story has been developed at subsequent stage regarding assault by these accused persons. 15. Hence under the facts and circumstances, the accused persons are entitled for benefit of doubt as the prosecution party has not been able to prove the charges 9 and hence judgment of conviction of the lower court is hereby set aside and the appeal is allowed. The appellants are discharge from the liabilities of their respective bail bonds. Patna High Court The 22nd June, 2011. NAFR/m.p. ( Gopal Prasad, J.)