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Patna High Court · body

2000 DIGILAW 544 (PAT)

Surjdeo Singh Yadav v. State Of Bihar

2000-04-05

M.L.VISA

body2000
Judgment M.L.Visa, J. 1. This appeal by sole appellant is directed against the judgment and order passed by Ist Addl. District and Sessions Judge, Patna in Sessions Trial No. 159/82 convicting and sentencing the appellant to undergo RI for a period of five years under Section 307 of the Indian Penal Code (in short "IPC") and RI for a period of two years under Section 379, IPC. Both the sentence have, however, been ordered to run concurrently. 2. The case of prosecution in brief is that on 7.6.1981, the informant Salaud-din Mallick (PW 5) along with his two children, Abban Mallick (PW 3) and Badri Thakur (PW 2) at about 5.00 p.m. joined a barat party which proceeded for village Kataka where the marriage of son of cousin of informant was to take place on that day. The informant was carrying his licensed gun with him. His nephew Sabbir Ahmad (PW 4), because of some work had stayed in the way for sometime and therefore, he was following the barat party. When the barat party reached near the village Kataka and was at a distance of about 500 feet from the village the appellant along with 5-6 unknown persons all of a sudden came there and surrounded the informant and ordered his companions to assault the informant saying that the informant was the uncle of sarpanch Sabbir Ahmad and sarpanch used to boast on the strength of the informant. Two companions of appellant caught hold of the informant and appellant by putting a country-made pistol on the chest of informant pressed the trigger of pistol but the pistol did not fire and thereafter, the appellant with the butt of his country- made pistol started assaulting the informant. The companions of appellant also started assaulting the informant. Then Badri Thakur (PW 2) came to rescue the informant. The appellant fired from his country-made pistol causing injuries on the face of Badri Thakur (PW 2) as a result he fell down on the ground. The informant also fell and thereafter, the appellant after snatching the gun of informant fled away along with his companions. On hulla raised by informant his nephew Sabbir Ahmad (PW 4) who was following the barat party came running at the spot and saw the appellant running away and he chased the appellant and identified him. The informant also fell and thereafter, the appellant after snatching the gun of informant fled away along with his companions. On hulla raised by informant his nephew Sabbir Ahmad (PW 4) who was following the barat party came running at the spot and saw the appellant running away and he chased the appellant and identified him. About the motive of occurrence the case of prosecution is that the appellant had enmity with Sabbir Ahmad (PW 4), nephew of informant. The informant submitted a written report (Ext. 1) about the occurrence before the officer-in-charge, Paliganj Police Station and a case under Sections 307/379/34, IPC and under Section 27 of Arms Act was registered against the appellant and 5-6 unknown persons and the police after investigation submitted charge-sheet against the appellant under Sections 307/324/323/379/34, IPC and 27 of Arms Act. After cognizance the case was committed to the Court of Sessions where charges under Section 307/379, IPC were framed against the appellant. The appellant denied the charges framed against him. His case before the Court below as it appears from the trend of cross-examination of prosecution witnesses was that he has been falsely implicated in this case on account of enmity. 3. In order to prove its case the prosecution has examined seven witnesses. Salauddin Mallick (PW 5) is the informant. Badri Thakur (PW 2) is said to be a witness who had also received injuries at the hands of appellant at the time of occurrence. Ekramuddin (PW 1) is a hearsay witness. Abban Mallick (PW 3), whose name has been recorded as Akbar Mallick by the trial Court in his deposition, is an eye-witness to the occurrence. Sabbir Ahmad (PW 4), the nephew of informant had reached the place of occurrence immediately after the occurrence and had seen the appellant running away with the licensed gun of informant. Dr. Randhir Prasad Sinha (PW 6) is the Doctor who had examined the informant and Badri Thakur. Thakur Devendra Prasad Singh (PW 7) is the IO of this case. 4. Dr. Randhir Prasad Sinha (PW 6) in his evidence has stated that on 7.6.1981 he examined the informant and found two pillet injuries on the forehead, two pillet injuries above from left eye-brow and one lacerated wound 1" X 1/4" x skin-deep on the back portion of the left paraital bone of the informant. 4. Dr. Randhir Prasad Sinha (PW 6) in his evidence has stated that on 7.6.1981 he examined the informant and found two pillet injuries on the forehead, two pillet injuries above from left eye-brow and one lacerated wound 1" X 1/4" x skin-deep on the back portion of the left paraital bone of the informant. According to him pillet injuries were caused by gun shot and lacerated wound was caused by hard and blunt substance which may be a blunt portion of a gun or pistol. Time of examination as said by him was at 11.55 p.m. on 7.6.1981 and about age of injuries he has said that it was within six hours. He has further stated that at 11.45 p.m. He examined Badri Thakur (PW 2) and found ten skin-deep pillet injuries on the forehead, three skin-deep pillet injuries on the right eyebrow, three skin-deep pillet injuries on the interior portion of neck and two pillet injuries on the left eye-brow. According to him all the injuries found on Badri Thakur,(PW 2) were caused by gun shot and age of injuries was also within six hours from the time of examination. 5. Salauddin Mallick (PW 5), the informant, in his evidence has stated that on the day of occurrence he along with Badri Thakur (PW 2), Abban Mallick (PW 3) and Sabbir Ahmad (PW 4) was in a barat party which was going to a village Kataka and he had his licensed gun with him and when they reached a place about 500 yards from village Kataka the appellant along with 5-6 others surrounded him and ordered his companions to assault him saying that the informant was uncle of sarpanch and thereafter, two companions of the appellant caught hold of him and appellant putting a country-made pistol on his chest fired and he received injuries on his head. He has said that when Badri Thakur (PW 2) came for his rescue the appellant fired on him also causing injuries on his face and thereafter, appellant snatched his licensed gun and fled away along with his companions. 6. He has said that when Badri Thakur (PW 2) came for his rescue the appellant fired on him also causing injuries on his face and thereafter, appellant snatched his licensed gun and fled away along with his companions. 6. Abban Mallick (PW 3) who is said to be an eye-witness to the occurrence has stated that the appellant put a country-made pistol on the chest of informant and pressed the trigger but the pistol misfired and thereafter, the appellant assaulted the informant on his head with the butt of pistol and when Badri Thakur (PW 2) went for the help of informant appellant fired from his gun causing injuries on his face. 7. Badri Thakur (PW 2) about whom the case of prosecution is that he had also received injuries by fire arms at the hands of appellant has simply stated that on the day of occurrence he was also in a barat party of which informant was a member but he did not identify the assailants. He has not said that he had received injuries by fire arm. About the assault on informant also he is silent. 8. The case of informant as made out in his written statement (Ext. 1) submitted by him at the police station is that the appellant put a country-made pistol on his chest and pressed the trigger but the pistol did not fire and thereafter, he was assaulted by the butt of pistol but in his evidence he has given a complete go-bye to the manner in which he received the injuries and he has stated that the appellant fired from a country-made pistol causing fire-arm injuries to him. 9. Learned counsel appearing on behalf of defence has submitted that because the Doctor (PW 6) has found injuries on informant caused by fire-arm and the evidence of Doctor does not support the case of informant as made out in his written report, therefore, in order to cover up this contradiction the informant in his evidence has changed the manner of occurrence and has stated that appellant fired from country-made pistol causing injuries to him. I find sufficient force in this submission. I find sufficient force in this submission. Besides the case of informant as made out in the FIR Abban Mallick (PW 3) who is also said to be one of eye-witnesses to the occurrence has, in his evidence, stated that the appellant first tried to open fire from the country-made pistol by putting it on the chest of informant but because the pistol did not fire, therefore, the appellant assaulted the informant by the butt of pistol but, surprisingly, as stated above, the evidence of Doctor (PW 6) does not support the case of prosecution as made out in the FIR and as given in the evidence of Abban Mallick (PW 3), said to be an eye-witness to the occurrence, that the informant received injuries by the butt of pistol. The last nail in the prosecutions coffin is the evidence of Badri Thakur (PW 2), who has not supported the case of prosecution and who has been declared hostile. I say so because it is highly improbable that when as per the evidence of Doctor (PW 6) he had received pillet injuries on his face and eye there was no occasion for him to protect the appellant had he received inquiries as alleged by the prosecution. If the evidence of Ekramuddin (PW 1) that he heard that a dacoity had taken place in the barat party and the enmity of informant with the appellant, as stated in the FIR, is not considered even then I find that the prosecution has completely failed to prove the charges against the appellant because there are vital contradictions on the point of manner of occurrence, as alleged by the prosecution. 10. In view of the aforesaid facts the judgment and order of the Court below convicting and sentencing the appellant cannot be sustained. In the result, this appeal is allowed. The judgment and order of Court below convicting and sentencing the appellant is hereby set aside and the appellant is acquitted. The appellant who is on bail is discharged from the liability of his bail bonds.