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2006 DIGILAW 552 (JHR)

HARI SHANKAR SINGH v. STATE OF BIHAR

2006-05-05

AMARESHWAR SAHAY

body2006
Judgment : ( 1 ) THE appellant was convicted for commission of the offence under section 307 of the Indian Penal Code and section 27 of the Arms Act and was sentenced to undergo R. I. for a period of 7 years for the offence under Section 307 IPC and r. I. for a period of 2 years for the offence under Section 27 of the Arms Act by the impugned judgment dated 29-07-1998 passed by the Sessions Judge, Godda in Sessions trial No. 20/98, which is under challenge in this appeal. ( 2 ) IN short the prosecution case is that the informant Nav Kumar Soren (PW-1) a sub-Inspector of Police was on patrolling duty on 21-09-1997 alongwith other police officials. All of them reached Lalmatia mission Chowk at about 7. 40 p. m. At that time he received information that at Lalmatia bypass road near the crusher machine situated near a bridge, the passengers of a bus were being looted by the miscreants. On this information, the informant and the police party reached at the spot at 7. 50 p. m. and saw that a bus was standing on the road and dacoity was being committed by looting the passengers by 8-9 miscreants. On seeing the police party the miscreants started fleeing away from that place but they were challenged by the police party and, thereafter, it is said that the Informant, after chase, caught hold of one of the miscreants. The said miscreant, who was caught by the informant, started scuffling with him and in that course the said miscreant fired a shot on him, which hit his right arm causing injury, but the informant did not left loose the said miscreants. On interrogation, the miscreant disclosed his identity as Hart Shankar singh @ Hari Kishore Singh of village madhura, P. S. Belbadda. The informant further stated that the pistol from which the miscreant had shot fire on him was thrown away by him somewhere near by bush, ditch and mud, which could not be traced out in spite of search. On interrogation, the miscreant disclosed his identity as Hart Shankar singh @ Hari Kishore Singh of village madhura, P. S. Belbadda. The informant further stated that the pistol from which the miscreant had shot fire on him was thrown away by him somewhere near by bush, ditch and mud, which could not be traced out in spite of search. ( 3 ) THE specific defence of the appellant in the Court below was that at the relevant time and on the alleged date of occurrence, he, together with other co-villagers, was returning from lalmatia Hat and while he was passing through the place of occurrence, the police picked him up, assaulted him and finally got him falsely implicated in this case. ( 4 ) FOR the occurrence of dacoity a separate case was registered and so far making an attempt on the life of the informant by the appellant, the present case was instituted against him. ( 5 ) IN order to establish the charges, altogether 9 witnesses were examined on behalf of the prosecution. The injury on the informant was examined by Dr. Nirmal kumar (PW-9) who found a lacerated wound with blackish margin 4 cmx cmx cm on the right arm of the informant, which was simple in nature and was said to have been caused by fire arm. The injury report of the informant was marked as Ext.-5 on behalf of the prosecution. Out of the rest of the prosecution witnesses, PW-1 is the informant himself. PW-2 is Raj Kishore Singh a Hawlldar, who was a member of the patrolling party. He has supported the statement of the informant that when the miscreants started fleeing away from the place of occurrence the informant, caught hold of one of the miscreants, who shot a fire on him causing injury on his right arm. He also identified the accused in the dock. In cross-examination he has admitted that when the miscreants started fleeing away, the informant party, who were also having Riffles, but they did not open fire on the miscreants. In paragraph-8 of his cross-examination this witness has stated that when he reached at the place of occurrence, it was dark and he found the informant in injured condition and it was the informant, who told him that the appellant had shot fire on him. In paragraph-8 of his cross-examination this witness has stated that when he reached at the place of occurrence, it was dark and he found the informant in injured condition and it was the informant, who told him that the appellant had shot fire on him. Therefore, it appears that in fact he did not see, the appellant firing on the informant, nor did he see the appellant throwing the firearm inside the bush or mud. ( 6 ) PW-6 Hari Shankar OJha is a police constable and was a member of the patrolling party. He has stated that on receipt of the information, they reached at the place of occurrence and then seeing the police party, the miscreants started fleeing away but Darogaji Nav Kumar Soren chased and caught hold of one of the miscreants. He heard the sound of firing and then saw that nav Kumar Soren was catching hold of one of the miscreants Hari Shankar Singh and from his right hand the blood was coming out. In paragraph-6 of the cross-examination this witness has stated that the place from which he heard the sound of firing was at the distance of 15-20 yards and the night was dark. He further stated that in spite of search the pistol from which the accused had fired could not be traced out. ( 7 ) PW-4 Sargun Prasad Mandal is the driver of the said bus, the passenger of which were being looted by the miscreants. He did not support the case of the prosecution and, therefore, was declared hostile. In his cross-examination he has stated that all the miscreants, who were committing dacoity in fact had fled away from the place of occurrence. ( 8 ) PW-5 is another police constable, who was also a member of the Patrolling party. He has also deposed In the same line to that of PWs. 2 and 3. ( 9 ) PW-6 is the conductor of the bus. He has also been declared hostile, as he did not support the case of the prosecution. ( 10 ) PW-7 Ashok Kumar Mishra is another constable. In his cross-examination he has stated that he was not examined by the police during investigation. However, he has supported the case of the prosecution. ( 11 ) PW-8 is the Sub-Inspector of police, who was the Investigating Officer of the case. ( 10 ) PW-7 Ashok Kumar Mishra is another constable. In his cross-examination he has stated that he was not examined by the police during investigation. However, he has supported the case of the prosecution. ( 11 ) PW-8 is the Sub-Inspector of police, who was the Investigating Officer of the case. This witness has described the place of occurrence as the road near a small crusher. There was some plantation of tree by the forest department near the place of occurrence. He has not stated about the presence of bush or mud etc. near the place of occurrence. This witness has further stated that he recorded the statement of passengers of the bus but he recorded their statement in the case of dacoity and not in this case. He arrested the accused in the case of dacoity and got him remanded in the present case. He has further stated that he searched for the firearm, which was thrown away by the accused, but he could not search it out. He admitted that he did not try to get the firearm searched by the police party present there. The manner in which the Investigating Officer has investigated the case creates grave doubt on his competency. From the statement of the Investigating officer discussed above, one falls to understand as to why a separate case under Section 307 IPC was required to be registered when for the alleged dacoity in the bus a case under Section 395 IPC had already been registered. It is also not believable that if the accused in fact had thrown away his fire arm near the place of occurrence then why the same could not be recovered, by the Investigating Officer and why he did not depute the police party to search out the said firearm. It is also not understandable as to why he did not examine the passengers of the bus and why he did not hold the T. I. parade for identification of the accused. ( 12 ) ON behalf of the defence two witnesses were examined. DW-1 is Surendra san a cultivator. It is also not understandable as to why he did not examine the passengers of the bus and why he did not hold the T. I. parade for identification of the accused. ( 12 ) ON behalf of the defence two witnesses were examined. DW-1 is Surendra san a cultivator. He has stated that on the date and time of the occurrence he, as well as the appellant Hari Kishore Singh, Ganga sao, were returning from Hat and when they reached near the place of occurrence they heard the sound of firing and within five minutes police party arrived there and, thereafter, it caught hold of the accused Hari kishore Singh and took him with them. He has further stated that Hari Kishore was also being assaulted badly by the police. DW-2 Ganga Sao has also stated in the same line to that of DW-1. He has also stated that in fact he, PW-1 and the accused Hari kishore were returning from Hat and in that course when they reached near the place of occurrence, the police party reached there and arrested Hari Kishore Singh. ( 13 ) FROM the evidence of the prosecution adduced, it appears that the firearms, from which the accused Hari Kishore Singh said to have fired, was not recovered by the police. Though according to the statement of the informant, the accused had threw it away near a bush and ditch containing mud. It is surprising that the police party could not trace out the said pistol from that ditch. If at all the version of the informant was correct then the said firearms must have been recovered from the place of occurrence but non-recovery of the said firearms from the place, of occurrence or from nearby place creates doubts on the prosecution case. It is also to note that no other prosecution witness except the informant has stated that they saw this accused Hari Shankar Singh firing from his pistol causing injury on the informant PW-1. Rather they all have stated that the night was dark and they only saw the injury on the person of the PW-1, who disclosed that the injury was caused by the accused by a firearm. ( 14 ) NON-EXAMINATION of even a single passenger of the bus also creates doubts on the prosecution case. Rather they all have stated that the night was dark and they only saw the injury on the person of the PW-1, who disclosed that the injury was caused by the accused by a firearm. ( 14 ) NON-EXAMINATION of even a single passenger of the bus also creates doubts on the prosecution case. It is not known as to for what reason the Investigating Officer did not examine the passenger of the bus in connection with the present case. In fact they would have been the best persons, who tell the truth about the occurrence. It is also not known as to why the informant lodged a separate case under Section 307 IPC when he had already lodged the case under section 395 IPC against the accused persons including this appellant. ( 15 ) ALL the facts and circumstances, which have been discussed above, clearly creates doubts on the version of the prosecution and, therefore, in my view, the learned trial Court was wrong in convicting the appellant for the offence under Sections 307 IPC and 27 of the Arms Act. In my view, the prosecution failed to establish the charge beyond all reasonable doubts against the appellant. 15a. Accordingly, this appeal is allowed. The conviction and sentence passed by the trial Court is hereby set aside. The appellant, who is on bail, is discharged from the liabilities of his bail bonds. Appeal allowed. --- *** --- .