Criminal Appeal (SJ) No. 276 of 1999 ~~~~~~ Against the judgment of conviction and order of sentence dated 29.09.2011 passed by Sri Bijoy Kumar Verma, learned Sessions Judge – Ist, Rohtas at Sasaram in Session Trial No. 374 of 1985 / Tr. No. 217 of 1990. ~~~~~~ 1. Ram Rahashya Chaudhary, Son of Late Ram Dhyan Chaudhary. 2. Sapendra Chaudhary. 3. Bechan Chaudhary @ Bachchan Chaudhary. Both sons of Ram Rahshay Chaudhary. 4. Mahendra Chaudhary. 5. Ramjee Chaudhary. 6. Suresh Chaudhary. 7. Saraju Chaudhary @ Saryu Chaudhary. All sons of Nawab Chaudhary. All resident of village – Dhawa, Police Station – Nokha (Baghaila), District – Rohtas. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellants : Mr. Arun Kumar Tripathi, Amicus Curiae. For the Respondent : Mr. Abhimanyu Sharma, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned amicus curiae and learned counsel for the State. 2. The appellant no. 3, namely, Bechan Chaudhary @ Bachchan Chaudhary has been convicted for the offence under Sections 307, 148 of the Indian Penal Code and 27 of the Arms Act and sentenced to undergo rigorous imprisonment for seven years under Section 307 of the Indian Penal Code and one year for the offence under Sections 148 of the Indian Penal Code and 27 of the Arms Act separately. However, it has been ordered that all the sentences shall run concurrently. The other appellants have been convicted under Sections 307/149 and 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and one year respectively and both the sentences have been ordered 2 to run concurrently. 3. The prosecution case as alleged by the informant Ramadhar Singh is that while he was returning to his house after attending the call of nature, then in way Ram Rahasay Chaudhary, Sapendra Chaudhary, Mahendra Chaudhary, Ram Jee Chaudhary, Suresh Chaudhary and Sarjug Chaudhary came at once from the side of the village abused him and asked that his son has lodged a case against them. The informant said that he do not know about it on which the accused persons abused and said that today they will kill. When the informant trying to flee away towards village and reached at the house of Doma Kumhar then the aforesaid persons caught hold of him and started assaulting by slaps, fists and legs. On his crying his daughter rushed to the place of occurrence. In the meantime Bechan Chaudhary fired from the roof of his house from his country made gun on the informant on which the bullet hit his daughter Asha Kumari on her thigh and finger of the hand and Sapendra Chaudhary also got injury. On hulla the nephew of the informant Ramashraya Singh came along with his rifle and made two firing in the air. The accused persons fled away leaving him from the place of occurrence. Rama Singh, Kamala Singh and Rama Prasad Singh and other villagers have seen the occurrence. 4. On the fardbeyan of the informant, First Information Report was lodged and after investigation charge-sheet was submitted, cognizance was taken. During the trial seven witnesses were examined on behalf of the prosecution and one witness was examined as a court witness, the I.O. 5. The defence of the accused persons is that the witnesses have deposed falsely and no occurrence as alleged occurred and the victim was not injured and this case has been filed to counter a case which was earlier filed by Sapendra Chaudhary. 6. The trial court taking into consideration the evidence of the witnesses that Bechan Chaudhary fired from the gun from his roof causing injury to Asha Kumari, 3 the daughter of the informant and further taking into consideration the evidence of the victim and the informant that he was amongst the person, who were assaulting and he proceeded from his roof and open fire claiming that he will kill and further taking into consideration the injury, convicted the appellants under Section 307 of the Indian Penal Code. 7. Learned amicus curiae, however, contended that the prosecution has not been able to prove and has proceeded on the development and the injury is not as such to have caused with intention to kill. 8. On the respective submissions of the parties, I proceed to consider the evidence. 9. The prosecution case as alleged in the fardbeyan is that the accused persons Ram Rahasahya Chaudhary, Sapendra Chaudhary, Bechan Chaudhary, Mahendra Chaudhary, Ramjee Chaudhary, Suresh Chaudhary and Saryug Chaudhary came abused him and thereafter started assaulting by slaps and fists. On his Hulla Asha Kumari rushed to the place of occurrence and in between Bechan Chaudhary stated from the roof of his house that he will kill the informant asked the prosecution to go aside and fire from his country made gun but causing injury to Asha Kumari on her thigh and finger. However, during trial P. W. 5 though has developed his story as she has named the accused Bechan Chaudhary amongst the accused who have surrounded the informant and threatened that why his son has filed a case under Section 107 of the Cr.P.C. All the accused persons including Bechan Chaudhary assaulted the informant by fists and slaps. Then Bechan Chaudhary went to the roof of his home and fired from his roof. However, in the fardbeyan the name of Bechan Chaudhary is not amongst the persons who have assaulted by slaps and fists and Bechan Chaudahry is not a member of the mob at the time of occurrence while the informant was apprehended and assaulted by slaps and fists. 10. P. W. 2 has also stated that while the accused persons were assaulting in the meantime Bechan Chaudhary went to the roof of his house and opened fire. 4 However, this development in the prosecution story at the stage of evidence that Bechan Chaudhary was amongst the persons, who apprehended the informant along with other accused persons and assaulted by slaps and fists is development in the prosecution case which found missing in the first information report. Bechan Chaudhary has not been assigned the role of having apprehended the informant along with other accused persons nor has been assigned the role of assault in the first information report and hence it can well be inferred that Bechan Chaudhary was not a member of the mob at the time of assault and hence his implication for the offence under Section 148 of the Indian Penal Code is neither proper nor sustainable. However, the role attributed to Bechan Chaudhary is that he went to the roof of his house and said that he will kill and fire. The other accused persons also cannot be attributed for the offence under Section 148 of the Indian Penal Code as they were not alleged to have been armed with firearm or any deadly weapon as there is a specific allegation in the fardbeyan that all the accused persons started assaulting the informant by slaps and fists. 11. However, the allegation regarding firing by Bechan Chaudhary is concerned, it is relevant to see the evidence of the Doctor P. W. 7. P. W. 7 in his evidence has stated that he found two injuries on the person of Asha Kumari (i) fire wound on left thigh 1/4” x 1/12” x 1/12”, and (ii) lacerated wound on the left little finger 1/12” x 1/12” x 1/12”. However, both the injuries have stated to be simple in nature. However, the doctor has opined that the injury no. 1 has been caused by the firearm like gun powder and injury no. 2 by fall. The doctor has further opined in his cross-examination that the injury no. 1 is by gun powder and the pellets did not touch the body of the injured, Asha Kumari. However, the prosecution case is that both the injuries to Asha Kumari by pellets. The doctor has brushed aside the prosecution case about the injury by pellets as the doctor has found injury on the thigh and finger. The doctor has found injury no. 1 by gun powder and injury no. 2 by fall hence the injury no. 1 by firearm has been ruled out. So far the injury no. 1 5 is concerned it is stated that it was not pellets injury but the injury by gun powder. However, it is strange that the alleged firing was made from the roof of the house of Bechan Chaudhary and other persons having surrounded him on the ground hence the distance 30-40 feets and from such a distance the injury by gun powder is not possible as the injury by gun powder can only be possible from a close range or close distance and hence the injury no. 1 by the firearm appears to be doubtful and is not possible. However, the I.O. has not been examined in this case and there is nothing in evidence that the I.O. found any sign of firearm injury at the place of occurrence and hence under the facts and circumstances, I find and hold that the prosecution has not been able to prove the charges leveled against the accused persons beyond reasonable doubts. The injury is not as such to have been caused with intention to kill as both the injuries are simple and superficial. I find and hold that the prosecution has not been able to prove the charges beyond reasonable doubts and hence I acquit the appellants of the charges and the order of conviction and sentence recorded by the lower court is hereby set aside. Accordingly, this appeal is allowed. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 23rd December, 2011. N.A.F.R./Kundan.