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2001 DIGILAW 554 (PAT)

Ajay Kuer v. State Of Bihar

2001-07-10

B.N.P.SINGH, R.N.PRASAD

body2001
Judgment R.N.Prasad, J. 1. The sole appellant has been convicted for the offence under Section 302, IPC and sentenced to undergo imprisonment for life. He has further been convicted for the offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for seven years. The appellant has also been directed to pay a fine of Rs. 10,000/- for the offence under Section 302, IPC and Rs. 2000/-for the offence under Section 27 of the Arms Act vide judgment and order dated 15.4.1995/18.4.1995 passed by 5th Addl. Sessions Judge, Muzaffarpur in S.T. 30/92. 2. One Prabhat Kumar gave his fardbeyan on 7.9.1990 at 10.30 p.m. that on 4.9.1990 at about 9 a.m. he was returning after tuition, when he reached Jagaria chowk at about 9.15 a.m. he heard sound of firing and as such he out of curiocity turned towards Mangurahia village. He saw two motor cycles coming in speed towards Jagaria chowk, one of which was numbered B.P.F. 4777. On the said motor cycle Raja Mangal Kuer and his son Ajay Kuer, the appellant were sitting. They were nervous. Raj Mangal Kuer had a gun in his hand. On the second motor cycle three persons were sitting but he could not identify them. He along with others proceeded to Mangurahia village. When he reached near the bridge he found his father lying in injured condition by the side of the road. His motor cycle was also lying there. His younger brother came and disclosed that Raj Mangal Kuer and his son Ajay Kuer had fired at his father and were fleeing away towards Jagaria chowk. He with the help of others took the injured to Sri Krishna Medical College & Hospital, Muzaffarpur. His condition was serious and as such he was referred to Patna Medical College & Hospital, where his treatment was going on but his condition was serious. Since he was engaged in treatment there was delay in giving information to the Police. Raj Mangal Kuer and Ajay Kuer are his co-sharers. They with the intention to kill his father had fired causing injury to him. 3. On the aforesaid fardbeyan a formal First Information Report was drawn and investigation was taken up. After completion of investigation, charge-sheet was submitted against two persons, namely, the appellant and Raj Mangal Kuer. Raj Mangal Kuer and Ajay Kuer are his co-sharers. They with the intention to kill his father had fired causing injury to him. 3. On the aforesaid fardbeyan a formal First Information Report was drawn and investigation was taken up. After completion of investigation, charge-sheet was submitted against two persons, namely, the appellant and Raj Mangal Kuer. The court took cognizance of the case and committed the case to the Court of Sessions for trial. The trial Court acquitted Raj Mangal Kuer, however, convicted the appellant as indicated above. 4. The defence of the appellant was that he was innocent and had falsely been implicated in the case out of enmity. The deceased was killed by seme unknown persons and he had been implicated in the case. 5. In support of its case the prosecution has examined 11 witnesses, out of whom PW 1 is eye-witness, PW 2 claimed to have seen the appellant running away. PW 4 is the informant. He also claimed to have seen the appellant running away. PW 3 has been tendered. PW 5 is a police officer who recorded the fardbeyan of one Rajeshwar Kuer, brother of the deceased. PW 7 is hear-say witness, PW 6 is Doctor who held post-mortem over the dead-body. PW 8 recorded the fardbeyan of the deceased on 5.9.1990. PW 9 is Advocate Clerk who obtained certified copy of dying declaration. PW 10 is the Investigating Officer and PW 11 is Judicial Magistrate who recorded dying declaration of the deceased on 7.9.1990. 6. The occurrence is alleged to have taken place on 4.9.1990 at 9.15 a.m. Prabhat Kumar gave his fardbeyan on 7.9.1990 at 10.30 p.m. i.e. after three days of the occurrence. The injured Nageshwar Kuer died on 19.9.1990. PW 1 is the only eye- witness in the case, whose statement Was recorded by the police on 20.9.1990 Le. after death of Nageshwar. PW 1 is none- else but son of the deceased. In the fardbeyan it has categorically been stated that PW 1 disclosed that the appellant and his father fired causing injury to his father, the deceased. Since the informant was busy in the treatment of his father and as such there was delay in giving information/fardbeyan to the police. PW 1 is eye-witness. In his evidence he stated that the injured was taken to Sri Krishna Medical College and Hospital, Muzaffarpur. Since the informant was busy in the treatment of his father and as such there was delay in giving information/fardbeyan to the police. PW 1 is eye-witness. In his evidence he stated that the injured was taken to Sri Krishna Medical College and Hospital, Muzaffarpur. In para 82 of his evidence the witness has categorically stated that the police had come in the hospital but it appears that PW 1 who claimed to be eye-witness did not give any fardbeyan before the police. It is evident from the fardbeyan itself that informant is not the eye-witness to the occurrence. However, in the fardbeyan it has been stated that the condition of his father was serious. PW 8 claimed to have recorded the fardbeyan of injured Nageshwar Kumar in the hospital on 5.9.1990. The said fardbeyan was attested by the informant. The informant gave his fardbeyan on 7.9.1990 but there is no whisper with respect to the fardbeyan of the deceased recorded in the hospital. According to the learned counsel for the appellant the recording of fardbeyan of the informant in the hospital on the alleged date in the circumstances becomes suspicious. However, the dying declaration of the injured was recorded on 7.9.1990 by a Judicial Magistrate on receipt of requisition. In the dying declaration the deceased has categorically stated that the appellant fired causing injury to him. Learned counsel, however, tried to impeach the dying declaration on the ground that there was no proper identification by relative of the injured. It has been claimed that Doctor had given certificate but nothing has been brought on record to show that in fact he was treating the injured. But we are not inclined to accept the criticism advanced by the learned counsel for the appellant with respect to dying declaration. 7. However, evidence of Doctor, PW 6 who held post-mortem is relevant for the decision in this case. PW 6 has found injury on the person of the deceased caused by fire arm. He has categorically stated that cause of death was septicaemia followed by injury found on the person of the deceased. However, in cross- examination the witness stated that during course of treatment if gauze used is not properly steralised then it may cause septicaemia. If treatment would have been proper and septicaemia would not have onset then the patient could have survived. However, in cross- examination the witness stated that during course of treatment if gauze used is not properly steralised then it may cause septicaemia. If treatment would have been proper and septicaemia would not have onset then the patient could have survived. From the evidence of the Doctor, therefore, it is obvious that immediate cause of death was septicaemia and cause of its onset was improper treatment. In such a situation the conviction of the appellant under Section 302 of Indian Penal Code in our view would not stand but due to the aforesaid reason the appellant cannot claim clean acquittal in this case. Obviously in the circumstances the appellant is liable for conviction for the offence under Section 304-II of the Indian Penal Code. It has been stated by the learned counsel for the appellant that appellant is in jail since 14.5.1991 i.e. more than ten years. 8. In that view of the matter, the conviction of the appellant for the offence under Section 302 of the Indian Penal Code is altered under Section 304-II of Indian Penal Code and he is sentenced to the period already undergone. The appellant has already served the sentence under Section 27 of the Arms Act as he is in jail for more than ten years and sentences were ordered to run concurrently. 9. The appeal is thus dismissed with the aforesaid modification.