Criminal Appeal (SJ) No.247 of 1998
Against the judgment and order of conviction dated 27. 06. 1998
and order of sentence dated 30. 06. 1998, passed by Shri Shatrughan
Singh, Rampuri, 2nd Additional Sessions Judge, Vaishali at Hajipur
in Sessions Trial No. 51 of 1986.
Md. Chand, son of Md. Hussain of Village- Kila laroi, P.S.Rajapakar,
District- Vaishali.
.... .... Appellant.
Versus
The State of Bihar
.... .... Respondent.
For the Appellant. : Mr. Shrinandan Pd. Singh, Advocate.
Mr. Ashok Kumar, Advocate.
For the Respondent
State : Mr. Sujit Kumar Singh, 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 for offence
under Section 307 I.P.C. and sentenced to undergo
rigorous imprisonment for four years. Further the
appellant has been convicted for offence under Sections
25, 26 and 27 of the Arms Act, but has been sentenced
only under Section 25 of the Arms Act for one year and
no separate sentence has been given for offence under
Section 26 and 27 of the Arms Act.
3. The prosecution case as alleged in the
Fardbeyan by the informant Md. Muzammil Hussain that
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he has land dispute with regard to partition of land with
his brother-in-law (Sala) Md. Hussain. A case of
partition was going on before Sub Judge, Hajipur, since
last several years. On 14. 04. 1985, Md. Chand, son of
his brother-in-law Md. Hussain came and asked him to
execute a sale deed with regard to informant’s share of
land in favour of appellant’s father. The informant
disclosed that according to Muslim Law he has share in
appellant’s fahter property and he will take his share. He
will not execute any sale deed on which accused take out
country made gun tried to fire at the wife of the
informant but in the meantime the informant catch hold
of the hand of appellant and pointed the gun down on
which of the gun the daughter of informant Dil Afroj
Khatun got injurty by the splinter. The daughter of the
informant was also there to snatch the gun from the
accused. It is alleged that gun was snatched by the
informant. The informant, his daughter, wife, mother-in-
law and Abdul Salam claims to have seen the
occurrence. It is also asserted that on sound of fire arm
several people of the village collected to saw the
occurrence. It has further been alleged that Md. Chand
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tied with rope and was kept at the dawaraja of neighbour
Md. Hafiz. The informant kept the fire arm in his house
and went to inform the police. He could not meet the
police at police station as the Police Officer had
proceeded to some other work. When the informant
returned he found that the accused was not there and it
was learnt that accused had flee away by untieing the
rope.
4. On the Fardbeyan, F.I.R. was lodged. After
investigation charge sheet submitted. During trial
thirteen witnesses were examined. However, P.W. 4 is
the informant, P.W. 2 is wife of the informant and P.W.
5 is the daughter of the informant. P.W. 2, 4 and 5 have
supported the prosecution case about fire arm. However,
P.W. 6, the doctor found two injuries on the person of
daughter of the informant; first is abrasion and injury
was simple in nature caused by hard and blunts
substance and injury no. 2 also a simple and superficial
injury caused by hard and blunt substance. However,
P.W. 1, though, stated that he heard the sound of firing
and learnt from son of Md. Jamir and then saw Md.
Chand tied in a pillar. P.W. 3 stated that one Anwar
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Hussain came and call him and disclosed that Md. Chand
has injured his sister. However, said Anwar Hussain has
not been examined. P.W. 13 is the I.O. who in his
evidence has stated that he did not find any sign of fire
arm nor he found any blood nor found any trampling
mark, but only found broken churi. However, it is stated
that firm arm (country made gun) was produced by the
informant to the Darogaji in the police station.
5. The trial court taking into consideration the
evidence that P.W. 2, 4 and 5 have supported the
prosecution case and further seizure list was prepared
and even the report of the Sergeant Major and sanction
has been proved and country made gun was produced in
presence of P.W. 8, convicted the appellant as mentioned
above.
6. Learned counsel for the appellant however
contended that occurrence is of the year 1985,
admittedly, there is land dispute between the parties.
The evidence of witnesses with regard to use of fire arm
has not been supported by any other witnesses except
P.W. 2, 4 and 5. In the Fardbeyan itself there is
mentioned that at the time of occurrence several persons
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were there and there is specific mention of the presence
of the mother-in-law of the informant and one Abdul
Salam. The prosecution case itself indicates that after
sound of fire arm several people of the village collected.
But except P.W. 2, 3 and 5 who are informant, his wife
and daughter have come to support the prosecution case.
There is no mention in the Fardbeyan that victim was
tied with a pillar. It is only stated that Md. Chand was
tied and was kept at the dawarja of the neighbour of
Hafiz. However, neither Hafiz nor any of the person of
the family of Hafiz has come to support the prosecution
case. Hence it is contended that finding recorded by the
lower court without proper appraisal of the evidence.
7. Learned counsel for the State however
submits that witnesses have supported the prosecution
case about fire arm and injuries found on the victim the
daughter of the informant.
9. However, taking into consideration the case
of prosecution itself shows that there was enmity with
regard to land dispute between the prosecution party and
the appellant and it is alleged that appellant take out fire
arm and fired but at the intervention of the informant he
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did not hit the wife of the informant, but its splinter hit
the daughter of the informant and she injured. However,
the explanation given for injury caused on her palm due
to scuffle between victim and accused in snatching the
gun is a further development.
10. However, except P.W. 2, 4 and 5, no
witness has come forward to support the prosecution
case about possession of fire arm with the appellant nor
there is evidence about snatching of fire arm nor there is
any evidence after snatching of fire arm which was kept
with the informant. It is only stated by the informant
that he snatched the fire arm and kept in his house, but
there is no evidence of any witness that they saw the fire
arm just after the occurrence. The medical evidence also
does not suggest that injury of the victim was on fire arm
rather it has been specifically asserted that injury caused
by hard and blunt substance. The I.O. in his evidence
has also not supported the prosecution case that he found
any remain of the fire arm at the site of the occurrence.
However, only evidence is that the informant produced
the fire arm to the I.O. and hence except evidence of
P.W. 2, 4 and 5, there is no evidence at all regarding
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possession of fire arm or regarding the fact that appellant
fired or there is no evidence that just after the occurrence
any one saw for snatching the gun or kept in the house of
the informant. Hence possession and use of fire arm has
not been established and hence conviction for offence
under Sections 25, 26 and 27 of the Arms Act is not at
all sustainable in view of evidence of witnesses.
However, it has been stated that there was several
persons came at the place of occurrence just after the
occurrence even there P.W. 2, 4 and 5, but none has
come to depose. It is true that if there is complication
between the parties, oral evidence and evidence of the
doctor prevail.
11. However having regard to the facts and
circumstances of the case, since oral evidence itself does
not inspire confidence as P.W. 2, 4 and 5 are interested
and inimical witnesses and wife of the informant who
came to P.O. after the occurrence has come to support
the prosecution case that at the time of occurrence
accused armed with fire arm or even fire arm was
snatched or even saw the fire arm having snatched and
kept by the informant and hence it is apparent that story
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of possession of fire arm is not at all established by
cogent, reliable and unimpeachable evidence.
12. However, having regard to the fact that
injury found also not suggestive to have been inflicted
with intention to kill as both the injuries are simple and
superficial and even not on vital part of the body and
hence inference cannot be drawn that injury was inflicted
with intention to kill and hence order of conviction under
Section 307 I.P.C. recorded by the lower court is hereby
set aside. Having regard to the fact that there is evidence
regarding scuffle and assault and hence offence under
Section 323 and 324 I.P.C. only be made out.
13. However, having regard to the fact and
circumstance of the case, the occurrence is of the year
1985, and appellant has remained in jail for about forty
days and hence interest of justice shall meet by
sentencing the appellant for the period already
undergone. Hence the appeal is allowed in part with
modification of sentence.
Patna High Court ( Gopal Prasad, J.) The 26th September, 2011. NAFR/m.p.
