Patna High Court CR. APP (SJ) No.243 of 1997 dt.19-07-2011 1 Criminal Appeal (SJ) No.243 of 1997 --------- Against the judgment and order of conviction dated 26.08.1997 and 27.08.1997 passed by the 3rd Additional Sessions Judge, Nawadah, in Sessions Trial No. 26 of 1991 /97 of 1988. ---------- =========================================================== 1. Vijay Rajwar son of Rameshwar Rajwar, 2. Janak Rajwar son of Ragho Rajwar, 3. Chando Rajwar son of Rama Rajwar, 4. Arjun Rajwar son of Kanhai Rajwar, 5. Banwari Rajwar son of Bhadi Rajwar, 6. Rajo Rajwar alias Rajan son of Rameshwar Rajwar, 7. Gaya Rajwar son of Sichan Rajwar, 8. Balmoti Rajwar son of Ragho Rajwar, 9. Ghutal Rajwar son of Rameshwar Rajwar & 10. Saman Rajwar son of Late Amrit Rajwar All resident of village-Bara Khurd, P.S. Narhat, District- Nawadah .... .... Appellant/s Versus The State Of Bihar .... .... Respondent/s =========================================================== Appearance: For the Appellant/s : Mr. Ram Pravesh Nath Tiwari, Advocate For the Respondent/s: Mr. Shivendra Prasad, Advocate (Informant) For the State : Mr. Suraj Prasad Singh, APP =========================================================== CORAM: HONOURABLE JUSTICE SMT. ANJANA PRAKASH ORAL JUDGMENT (Per: HONOURABLE JUSTICE SMT. ANJANA PRAKASH) 1. Appellant no.1 has been convicted under sections 307,148 Indian Penal Code and section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for ten years, two years and seven years respectively, whereas, appellant nos. 2, 3, and 4 have been convicted under sections 148, 307/149 Indian Penal Code and section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years, four years and seven years respectively. Appellant no.5 has been convicted under section 148, 307/149 and 324 Indian Penal Code and Patna High Court CR. APP (SJ) No.243 of 1997 dt.19-07-2011 2 sentenced to undergo rigorous imprisonment for two years, four years and two years respectively. The rest of the appellants i.e. 6, 7, 8, 9 and 10 have been convicted under section 147, 307/149 Indian Penal Code and sentenced to undergo rigorous imprisonment for one year and four yeas respectively by the 3rd Additional Sessions Judge, Nawadah, in Sessions Trial No.26 of 1991/97 of 1998 by judgment dated 26.07.1997. 2. The case of the prosecution according to the informant Sakaldip Prasad (PW 6) is that on 17.04.1986 at about 7.30AM he heard that the accused persons variously armed were constructing huts on plot no.99/311 of Khata no.57 area 42 decimals which belonged to the informant. At this, the informant and one Deonandan Prasad reached the place of occurrence and asked to stop the construction. Instead of stopping the construction, appellant no.10 Suman Rajwar is said to have ordered to kill them at which appellant no.1 Vijay Rajwar opened fire with his country made pistol aiming at the informant but the same instead hit Ajay Kumar (PW8) in his stomach. Banwari Rajwar, appellant no.5, is said to have given a Gandasa blow on the right leg of the informant, whereas, Janak Rajwar, appellant no.2 is said to have fired at his brother, but he managed to save himself. Accused Chando Rajwar and Arjun Rajwar, appellant nos. 4 and 5 allegedly hurled bombs to scare away the witnesses, who came at the place of occurrence. 3. During trial, the prosecution examined eleven witnesses, out of whom, PW 10 is Dr. Mahtura Prasad, who examined PW 6 and PW 8 and found one circular small wound having a diameter of 1” with inverted margin on the right side of abdomen of PW 8 and a pellet was taken out after operation. The injury was said to be grievous in nature. On the same day, he is said to have examined PW 6 and found one incised wound skin deep on his leg which was simple in nature. PW 11, the Investigating Officer had found five huts on the plot described by the informant Patna High Court CR. APP (SJ) No.243 of 1997 dt.19-07-2011 3 over which the occurrence took place. However, he did not find any blood marks at the place of occurrence nor did he recover any remnants of bomb or any cartridge. 4. PW 1 Arun Kumar Sinha and PW 9 Haribansh Pd. Sinha are formal in nature, whereas, PW 3 Ambika Ram has not supported the case of the prosecution. PW 4 Deonandan Prasad, even though named as companion of the informant as person protesting in the First Information Report and, therefore, should have been an eye witness to the entire occurrence, has stated that it was the informant and injured Ajay Kumar, who were protesting at the construction of the hut by the accused. He also stated that on the orders of appellant Suman Rajwar, appellant Vijay Rajwar had aimed his pistol at PW 8Ajay Kumar and fired at his stomach which is contrary to the statement of the informant given in the First Information Report. 5. PW 5 Lalo Gope has, no doubt, has appeared as an eye witness during trial, but he was disbelieved by the Trial Court. PW 7 Rajendra Prasad Yadav and PW 8 Ajay Kumar are two eye witnesses, who have stated that on the date of occurrence while the accused persons were constructing the huts, protest was made at which appellant no.3 fired from his pistol injuring PW 8 as also that appellant no.5 had assaulted the informant with Gandasa on his leg. PW 7 Rajendra Prasad Yadav has, no doubt, has deposed as an eye witness but he was partly rejected and his evidence was only accepted to the extent that he had seen the accused persons fleeing away from the place of occurrence. 6. On going through the evidence of the material witnesses i.e. PW 6 and PW 8, I find that apart from overt act having been alleged to appellant nos. 1, 5 and 10, there is absolutely no allegation with regard to rest of the appellants. As for the claim of the informant on the land concerned, I find that even the appellants were claiming the possession of the land and had brought Khatiyan (Ext.A), survey map (Ext.B) and voter list (Ext.C) to show that they were in possession of the land. It was Patna High Court CR. APP (SJ) No.243 of 1997 dt.19-07-2011 4 conceded by both the parties that a proceeding under section 144 Cr. P. C. was decided only recently and, therefore, the informant was claiming the possession of the said land. In the facts of the case, when the appellants were still in the course of claiming possession of the land, it is difficult to sustain the conviction of the appellants under section 148 Indian Penal Code since no case for unlawful assembly would be made out. Also the evidence with regard to the appellant no.10 that he was the order giver appears to be completely superfluous and that part of the prosecution is fit to be rejected. The conviction of the appellant Chando Rajwar and Arjun Rajwar is also not based on legal evidence since there is no allegation that they were armed with any fire arm and in fact allegation against them is that they were holding bomb and exploded the same to scare the witnesses. The Investigating Officer (PW 11) did not find any remnants of bomb at the place of occurrence. As for conviction of the appellant no.2, Janak Rajwar, also under section 27 of the Arms Act is fit to be set aside in view of the evidence of PW.11, Investigating Officer that he did not find any fired cartridge at the place of occurrence. 7. On a careful perusal of the manner of occurrence narrated by the witnesses, it is difficult to conclude that the intention of the appellants was to cause death of the injured (PW 8) also for the reason that the informant himself has stated that he was aimed at, but by mistake PW 8 had been hit on the stomach. There is no allegation that any of the appellants repeated the assault as also simple injuries sustained by the informant on non-vital part further strengthens the plea that the intention of the appellants was not to cause death of any of the injured. 8. In view of such, appellant nos. 2 (Janak Rajwar), 3(Chando Rajwar), 4(Arjun Rajwar), 6(Rajo Rajwar alias Rajan), 7(Gaya Rajwar), 8(Balmoti Rajwar), 9(Chutal Rajwar) and 10(Saman Rajwar) are acquitted of their respective charges and they are also discharged from the liabilities of their respective bail bonds. Patna High Court CR. APP (SJ) No.243 of 1997 dt.19-07-2011 5 9. As far as appellant no.5 (Banwri Rajwar) is concerned, his conviction under section 324 Indian Penal Code is maintained but the sentence is modified to the period already undergone by him. However, he is acquitted of the charge under sections 148 and 307/149 Indian Penal Code. 10. After I have arrived at the conclusion that the intention of the accused persons was not to cause death of either of the injured as also finding the evidence that PW 8, who received gun shot injury on the stomach caused by appellant no.1 credible, in the fitness of things, Appellant no.1 should be convicted under section 325 Indian Penal Code as well as under section 27 of the Arms Act. Accordingly, his conviction under section 27 of the Arms Act is maintained and he is convicted also under section 325 Indian Penal Code instead of section 307,148 Indian Penal Code, but sentence under both the counts is reduced to the period already undergone by him during trail since it is submitted that he has remained in custody for about seventeen months and the occurrence took place in the year 1986 i.e. more than twenty five years ago. 10. In the result, the appeal is allowed in part. (Anjana Prakash,J.) Patna High Court, Patna Dated the 19th July, 2011 NAFR/ JA/-