JUDGMENT
P.G. Agarwal, J.
1. Heard Mr. A.S. Choudhury, learned senior counsel for the appellants and the learned P.P.
2. This criminal appeal is directed against the judgment and order dated 4.9.1996 passed by the Additional Sessions Judge, Nagaon in Sessions Case No. 66(N)92 (G.R. Case No. 2092/87), whereby the eight accused appellants were convicted for the offence under Section 307/34, IPC and sentenced them to Rigorous Imprisonment for four years and to pay a fine of Rs. 1,000 each in default further Rigorous Imprisonment for six months each.
3. The prosecution story, in brief, is that Md. Iman Hussain of Village Dhaniabheti Pathan under Batadraba P.S., Nagaon, had a plot of land and he grew paddy. On 19.11.1987 when they were harvesting the said paddy, the 8 accused appellants alongwith Abdul Jabber, father of Abdul Mazid, being armed with fire-arms and other weapons came to the place of occurrence and fired shots in order to take forcible possession of the land. Eight members of the complainant side sustained gun shot injuries.
4. From the medical evidence on record, we find that as many as 8 persons, namely, Md. Mokbol Hussain, Jamir Hussain, Abdul Wahid, Khairul Islam, Rajab Ali, Abdul Samed, Sahabuddin and Nurul Hoque had sustained gun shot injuries on their person. The detailed of injury has been given by the trial court in the impugned judgment and we do not propose to detail the same again. The doctor has given the specific opinion that the injuries were caused by gun shot and they were fresh and simple in nature and we find that the injuries were on the non-vital organs of the body.
5. The prosecution case rests on the testimony of the eye witnesses who are all injured persons and they have fully supported the prosecution story. From the evidence on record, we find that accused Abdul Mazid was carrying a gun which had licence in the name of his father and accused Amir Hamja and Muslem Uddin had pipe guns and they fired the same. PW-2 and PW-3 were working in the nearby filed and they have witnessed the incident. These two witnesses have deposed about the possession of the land in favour of the complainant Imam Hussain (PW-1) and growing of paddy by Imam Hussain.
6. It may be mentioned here that in respect of the said incident, a cross case was filed on behalf of the accused appellant by the wife of Abdul Jabbar stating that the land in question belonged to them and on the day of the incident, the complainant side tried to take forcible possession whereupon Abdul Jabbar (since deceased) had fired shot in the air to disburse the aggressors. The said case was under Section 477/506, IPC, and, as submitted, it has ended in acquittal. From the evidence on record, we find that the trial court has rightly held that Imam Hussain was in possession of the land and he grew paddy on the said land. The accused persons had got land adjacent or contiguous to the above land. So far the assault is concerned, all the three accused appellants, namely, Abdul Mazid, Amir Hamja and Muslem Uddin had participated and they fired shots. In this case, charge under Section 147/148 was framed ; but the trial court did not record any finding that the accused persons were members of unlawful assembly and convicted the accused appellant with the help of section 34, IPC. Admittedly, five other accused persons, namely, Hatem Ali, Alauddin, Mainuddin, Harmuj Ali and Zinnat Ali did not participate in the above incident and no overt or covert act has been attributed to them. The witnesses do say about their presence at the scene of occurrence but admittedly they did not do anything. In view of the settled proposition of law, mere presence is not sufficient to rope in the above five accused persons with the help of Section 34, IPC. Accordingly, the conviction and sentence of accused appellants, namely, Hatem Ali, Alaluddin, Maniruddin, Harmuj Ali and Zinnat Ali are set aside and they are acquitted and set at liberty forthwith and they need not surrender to their bail bonds.
7. Now coming to the case of Abdul Mazid, Amir Hamja and Muslem Uddin, we find that the licensed gun belonged to Abdul Jabbar, father of Abdul Mazid and the said Abdul Jabbar died before commencement of the trial and as such it is submitted that the said Abdul Mazid has been falsely implicated. It is further submitted that only the gun belonging to Abdul Jabbar was seized alongwith the licence but no pipe gun was seized. The fact that the licence was in the name of Abdul Jabbar is immaterial as because for conviction in a criminal case, the question comes as to who used the gun and there is overwhelming evidence on record that it was accused Abdul Mazid who had used the licenced gun. Further, non seizure of the pipe guns is not relevant or” material as we find that the accused persons had used the pipe guns and other fire arms resulting in the injury caused to as many as 8 persons and it was not possible from a single gun. We therefore, hold that the pipe guns were used by accused Amir Hamja and Muslem Uddin.
8. From the evidence on record we find that none of the injuries on the injured persons were on the vital part of the body and they had sustained injuries on arms, legs etc. It is submitted that the accused persons had fired shots in the air which goes to show that they had no intention to cause the death or kill some body. It will show that the accused persons went to frighten the possessors of the land and the fire and shots caused injury to as many as 8 persons.
9. The facts of the present case are more or less identical to that of Kundan Singh v. State of Punjab, reported in AIR 1982 SC 62. In the above case, the Apex Court held that conviction under Section 307 is unwarranted and the conviction should be under Section 324 IPC only. Considering the facts and circumstances of the case, the conviction under Section 307/34, IPC, is set aside. The three accused appellants, namely, Abdul Mazid, Amir Hamja and Muslem Uddin are convicted under Section 324/34, IPC. In the present case, the incident had taken place in the year 1987 and long 15 years have elapsed and as such the three accused appellants Abdul Mazid, Amir Hamja and Muslem Uddin are sentenced to imprisonment for one year each and to pay a fine of Rs. 1,000/- each, in default, further imprisonment for 15 days. The period undergone by the convicts shall be set off under Section 428, Cr.P.C and the above named three appellants/ convicts are directed to surrender forthwith to serve out the sentence.
10. With the above modification in sentence, the appeal stands disposed of. Send down the records to the Sessions Judge, Nagaon alongwith a copy of the Judgment.
