Criminal Appeal (SJ) No.235 of 1999 Against the judgment and order of conviction dated 08. 07 1999 and order of sentence dated 09. 07. 1999, passed by Shri Rakesh Ranjan Prasad, Ist Additional Sessions Judge, Nalanda at Biharsharif in Sessions Trial No. 22 of 1996/ 28 of 1996. Naresh Mahato, son of Shri Shrichand Mahto, resident of Village- Telmar, Police Station- Harnaut, District- Nalanda. .... .... Appellant. Versus The State of Bihar .... .... Respondent. For the Appellant : Mr. Anjani Kumar, Advocate. Mr. Sudhir Kumar Upadhyay, Advocate. For the Respondent State : Mr. Parmeshwar Mehta, A.P.P. PRESENT THE HON’BLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted under Section 304 Part I of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1,000/- and in default of payment the convict shall further undergo rigorous imprisonment for three months. He has been further convicted for offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for five years. However both the sentences shall run concurrently. 2 3. The prosecution case in the Fardbeyan (Ext. 3) of Ram Pravesh Lal was recorded on 02. 07. 1995 at about 7.30 A.M. at Telmar, alleging therein that on 02. 07. 1995 at about 6 P.M. after closing his shop he proceeded towards his house and when he reached near the house of Triveni Bind then accused Naresh Mahto who was coming from opposite direction uttered that he will not leave him alive and then fired two shots. It is asserted that one of shot passed through but another hit on his right thigh. On his cry the people collected and accused Naresh flee away. The motive of the occurrence alleged that Naresh Mahto has taken Rs. 10,000/- as loan when the informant demanded then he threats and it is asserted that occurrence has took place for the said demand. 4. On the Fardbeyan F.I.R. lodged and the informant was taken to Bakhtiyarpur Primary Health Centre where he was examined by the doctor. However, during investigation the injured dired at P.M.C.H. During treatment Inquest Report has been prepared as Ext. 4 and post mortem conducted. The police after investigation submitted charge sheet for offence under 3 Section 302 I.P.C. and 27 of the Arms Act. Cognizance taken and the case was committed to the Court of Sessions. 5. During trial ten witnesses were examined on behalf of the prosecution. Defence has also adduced six witnesses as D.Ws and both sides also adduced documentary evidence which are Fardbeyan Ext. 1/2 signature 1/3 and 1/4, Inquest Report . Ext. 2 Formal F.I.R., Ext. 3 Fardbeyan, Ext. 4 Inquest Repport, Ext. 5 Post Mortem Report and Ext. 6 Injury Report. The documentary evidence has adduced as Ext. A F.I. R of Ram Pravesh Lal,, Ext. B is the Fardbeyan of the appellant, Ext. C is the formal F.I.R. of the counter case filed by the appellant. 6. The defence of the accused person is complete denial of the occurrence and further defence has come up that Ram Chandra Sao came armed with pistol and when the appellant rushed at the house of Anil Jamadar fired causing injury on his buttock for which Harnaut P.S. Case No.101/95 was instituted. 7. The trial court taking into consideration the evidence of both the parties accepted the evidence of 4 P.W. 1, 2 and 3 who supported the prosecution case as eye witnesses and have come to depose that found Ram Pravesh Lal coming from west to east and at the same time Naresh Mahto was coming from south and Naresh fired two shots causing injury on his stomach and thigh and they have also deposed that occurrence took place after verbal altercation. However, disbelived the evidence of P.W. 4 and 7 in view of the fact that P.W. 4 is wife of the deceased and her statement was recorded after two months of the occurrence and further P.W. 1, 2 and 3 have also not the supported the presence of P.W. 4 at the time of occurrence. The trial court also disbelieved the evidence of P.W.7, Ram Chandra Lal who happens to be brother of the deceased in view of the fact, the I.O. stated in his evidence the statement of P.W. 7 has not recorded under Section 161 Cr.P.C. and prosecution proved Ext. A, Fardbeyan by this witness P.W. 7 after death of the informant. Ext. 1 and evidence of this witness P.W. 7 found in contradiction to his earlier statement in Fardbeyan Ext. A. P.W. 5 has been declared hostile. P.W. 6 is Bhabhi of the deceased was held to be hearsay witness. 5 8. The trial court taking into consideration the criticism that evidence of P.W. 1, 2 and 3 there is contradiction to the evidence of the prosecution case in the Fardbeyan as in the Fardbeyan it is stated that two firing was made, but only one fire hit causing injury on the thigh of the informant where P.W. 1, 2 and 3 have stated in their evidence that two shots of firing causing injury one on thigh other on abdomen. The trial court take into the contradiction that some witnesses have stated that the injury on thigh first and some witnesses have stated injury on abdomen first and explained that there is possibility that injured must be in such mental condition that he may not give correct and whole episode and reason for taking this view, though, Ram Pravesh Lal in his Fardbeyan has made statement that he sustained injury on his right thigh, but the doctor found the injury on left thigh and thus it is clear indication that Ram Pravesh lal at the time of giving Fardbeyan must be in such state of mind in which he may not give correct the entire episode and hence placing reliance on the testimonty of P.W. 1, 2 and 3 and evidence of the doctor has found injury to be corroborative convicted the 6 appellant under Section 304 Part I holding that accused can be said to have caused the death with the intention of causing such bodily injuries as is likely to cause death and hence convicted and sentence as mentioned above. 9. Learned counsel for the appellant however contends that trial court place reliance on the evidence of P.W. 1, 2 and 3 as well as evidence of the doctor, but the case of the informant in the Fardbeyan is receiving only one shot whereas P.W. 1, 2 and 3 have come forward to the case as two shots which hit the informant. However, doctor has found four injuries on the person (informant deceased) and the doctor has stated in his evidence that four injuries are independent injuries and hence there variation of the evidence of the informant, witnesses and the medical evidence and hence the appellant is entitle for benefit of doubt. It is further contended that in the prosecution case that firing was made by fire arm causing injury on thigh and there is no finding about injuries on thigh and abdomen. However, doctor opined injury has not caused the death, but the death has been caused by septicaemia and hence at best on the basis of evidence it can infer that case under Section 304 Part I is 7 not made out rather at best it is the case either under Section 304 Part II or under Section 324 I.P.C. Hence a lenient view may require to be taken in the facts and circumstance of the case. 10. The prosecution case is that in the Fardbeyan the appellant causing injury on abdomen and thigh of the informant. P.W. 1, 2 and 3 have supported the prosecution case about firing and hence nature of the appellant, place of occurrence and firing has been established by P.W. 1, 2 and 3. Hence from the case of the prosecution there is only different variation is about received of one shot or two shots, though, P.W. 10, doctor in his evidence stated that all the injuries appears to be independent in nature. However, he cannot say whether finding of the four injuries were caused by four different shots and has opined that firing has been made from a distance. Hence from the evidence of the doctor it cannot be established that injury has not possible or caused. However, only different variation is with regard to one shot or more than one shot. The trial court also deals with the matter and has synchronise the variation about injury on Ram Pravesh lal that he was not in a 8 position at the time of Fardbeyan to give correct picture and hence the witnesses on this score cannot be disbelieved. The criticism pointed is of minor nature and does not got to root to the prosecution case to disbelieve the prosecution case. The witnesses who have given evidence found to be reliable and trustworthy regarding their evidence on the place, time and manner of occurrence and doctor found the fire arm injury. Hence I do not find any merit in the first submission. 11. However, with regard to the second submission of the learned counsel for the appellant appears to some substance as the occurrence as alleged to be on 02. 07. 1995 and the victim had taken to hospital where he was treated and subsequently he was transferred to P.M.C.H. and after 19 days of the occurrence he died and the doctor who conducted the post mortem has opined that death is due to septicaemia and hence there is nothing in the evidence to suggest that injury inflicted was so danger as to have caused death or what sufficient to cause death. The injury found on the thigh. 12. Hence having regard to the fact the cause of 9 death is not immediate effect of the injury sustained, but death is due to septicaemia after nineteen days of the occurrence and hence under the facts and circumstance conviction recorded under Section 304 Part I is not sustainable and can well be substituted under Section 304 Part II of I.P.C. Hence I find and hold that prosecution has been able to prove the offence under Section 304 Part II, hence conviction under Section 304 Part I of I.P.C. converted for offence 304 Part II of I.P.C. 13. However, taking into consideration the fact that occurrence is of the year 1995. Sixteen years has already been elapsed. The appellant remained in jail for about 4 years and 3 months and hence end of justice shall meet by sentencing the appellant for the period already undergone. Hence the appeal is dismissed with modification of sentence. Further conviction under Section 27 of the Arms Act is also substituted for the period already undergone. Patna High Court. The 22nd November, 2011. NAFR/m.p. ( Gopal Prasad, J.)