Criminal Appeal (SJ) No.230 of 1996 Against the judgment and order of conviction dated 23. 08. 1996 Passed by Sri Diwakar Jha, Ist Additional District & Sessions Judge, Khagaria, in Sessions Trial No. 69 of 1992 (arising out Of Beldaur P.S. Case No. 26 of 1991. 1. Md. Sufed, son of Md. Kabir. 2. Md. Kabir, son of Late Md. Nasiruddin 3. Md. Mohsin, son of Late Md. Aiyub All resident of Village- Dighaun, P.S. Beldaur in the District of Khagaria. ………………………………………………Appellants. Versus The State of Bihar ………………………………Respondent. with Criminal Appeal (SJ) No. 289 of 1996 Against the judgment and order of conviction dated 23. 08. 1996 Passed by Sri Diwakar Jha, Ist Additional District & Sessions Judge, Khagaria, in Sessions Trial No. 69 of 1992 (arising out Of Beldaur P.S. Case No. 26 of 1991. Md. Chunna @ Muzahad, son of Md. Ayub, residenty of Village- Dighone, P.S. Beldaur, District- Khagaria. ……..Appellant. Versus The State of Bihar ………………………………..Respondent. (In CR. APP (SJ) No. 230 of 1996) For the Appellants : Md. Sharfuddin, Advocate. Mr. Humayou Ahmad Khan For the Respondent/s : Mr. Parmeshwar Mehta, A.P.P. (In CR. APP (SJ) No. 289 of 1996) For the Appellant. : Mr. Arun Kumar Tripathi, Amicus Curiae. For the Respondent/s : Mr. Parmeshwar Mehta, A.P.P. = PRESENT HONOURABLE MR. JUSTICE GOPAL PRASAD Gopal Prasad, J. On repeated call no one appears on behalf of the appellants. 2. Mr. Arun Kumar Tripathi, Advocate, appears 2 and prays that he may be permitted to appear in this case as Amicus Curiae. 3. Prayer is allowed. 4. Two appeals are heard together and disposed of by common judgment as both the cases arise of same order of conviction and sentence passed in Sessions Trial No. 69 of 1992 (arising out of Beldaur P.S. Case No. 26 of 1991)passed by Sri Diwakar Jha, Ist Additional District & Sessions Judge, khagaria. 5. Md. Chunna @ Muzahid, appellant of Cr. Appeal No. 289 of 1996 has been convicted under Section 304 (II) and has been sentenced to R.I. ten years and he has further been convicted R.I. for five years for offence under Section 27 of Arms Act and one year for offence under Section 148 I.P.C. 6. Md. Sufed, Md. Kabir and Md. Mohsin appellants of Cr. Appeal No. 230 of 1996 have been convicted for offence under Section 304 (II) read with Section 149 and 148 of the Penal Code and sentenced for ten years. 7. The prosecution case as alleged that Hafij Rahat, the brother of the informant was Maulvi and used to 3 do work of leading collective Namaj in the Mosque in the village. While he was leading Namaj, Md. Ayub, son of Md. Naseer interrupted and asked that he would read Namaj. However, after Namaj was over Hafij Rahat asked Ayub as to why he interrupted him, thereafter, on this issue there was verbal altercation were hurled and thereafter, it is alleged that Ayub armed with pistol raided the house of the informant and search for Hafij Rahat, but Hafij Rahat had himself in the house of other. It is further alleged that the informant and his brother Hafij Rahat started for the house of Mukhiya to lodge a complaint then five accused persons came with fire arms and Md. Chunna make two fires which hit Hafij Rahat on his right leg and thigh. Subsequently, during treatment, Hafij Rahat died. 8. On the Fardbeyan, the case was instituted later on the death of Hafij Section 302 of I.P.C. was added. After investigation, charge sheet was submitted for offence under Section 302 and allied Sections. Cognizance was taken and case was committed to the court of sessions. However, during trial, witnesses were examined and after considering both oral and documentary evidence adduced by the parties order of conviction and sentence was passed. 4 9. Learned Amicus Curiae appeared on behalf of the appellants however, contended that there is allegation of firing. However, there is specific allegation of firing made by Md. Chunna which hit the victim, Hafij Rajat, though, there is allegation of firing against Md. Chunna and Md. Mohsin. There is specific allegation of firing by Md. Chunna which hit Md. Hafij and other appellants were members of the Mob. The Doctor has opined that injury on the thigh and leg are not on vital part of the body and injury was not sufficient in course of treatment and hence lenient view is required to he taken and the prosecution has not been established the charges and accused persons have been acquitted for offence under Section 304 (II) of I.P.C. 10. Learned counsel for the State however, contended that prosecution has been established that accused persons were engaged in offence and death caused fire arms. 11. However, having regard to the respective submissions, there is allegation of verbal altercation followed with fire causing fire arm injury. Witnesses have supported the prosecution case that injury found on leg and 5 thigh which is not vital part of the body and Doctor has opined that injury had not sufficient and hence order of conviction recorded by the trial court, I do not find any merit to interfere with order of conviction for offence under Section 304 (II). So far sentence is concerned, there is allegation Md. Chunna who fired which caused injury. However, other appellants are only members of the mob and there is no specific allegation of act of omission and commission of firing. 12. However, offence of the year 1991 and hence about twenty years has already been elapsed and appellant Chunna during trial remained in jail for the period from 08. 06. 1991 to 04. 03.1997 and further on conviction on 28. 08. 1996 remained in jail till his release on bail by Hon’ble High Court in view of order dated 04. 03.1997 and hence remained further in jail for six years. Other appellants remained in jail from 12. 07. 1991 to 03. 10. 1996 for a period of more than five years and further they have been remained in jail on the date of conviction 23. 08. 1996 and granted bail by Hon’ble High Court on 03.10. 1996. 13. However, occurrence took place in the 6 evening leading Namaj and injury is simple and twenty years has already been elapsed after occurrence. Hence in the end of justice shall meet by sentencing the appellants for the period already undergone by them in trial court. Hence order of conviction modified to the extent for the period undergone.The appeal dismissed with modification in sentence. 14. Mr.Arun Kumar Tripathi, assisted the Court as Amicus Curiae and hence Legal Service Authority shall proceed for his remuneration in this regard for his assistance. Patna High Court The 1st July, 2011 NAFR/m.p. (Gopal Prasad, J.)