Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1296 (PAT)

Mahendra Yadav v. State Of Bihar

2007-08-07

MADHAVENDRA SARAN

body2007
Judgment Madhavendra Saran, J. 1. This appeal has been preferred against the judgment and order dated 29.4.1993 passed by learned VIIth Additional Session Judge, Munger in Sessions case no. 520/1990 by which he convicted the three appellants u/s 307 read with 34 of the Penal Code and sentenced each of them to undergo R.I. for 10 years. He further sentenced appellants nos. 2 and 3 to suffer R.I. for 5 years u/s 27 of the Arms Act. All the sentences, however, were directed to run concurrently. 2. Shortly stated the prosecution case is that on 6.4.1990 at about 8 PM the informant, Balmiki Yadav (PW3) gave fard bayan before the police that on the same day there was quarrel between the children at 6 PM and Bhulla Devi (PW4), the mother of informant, went to protest appellant no.1, Mahendra Yadav but appellant no.1 became annoyed and asked to assault her thereupon the other two appellants named Ram Bilash Yadav and Suresh Yadav came armed with pistol and when the informant and his mother began to run these two appellants fired and firing of appellant no.2 Suresh Yadav hit on the left index finger and the firing of appellant no.3 Ram Bilash Yadav hit on the left shoulder of Bhulla Devi. On the basis of fard bayan of the informant the police registered Kotwali PS case no. 101 of 1990 dated 6.4.1990 u/ss 324, 307/34, of the Penal Code and 27 of the Arms Act. After concluding investigation the police submitted charge sheet. After cognizance the case was committed to the Court of Session. After trial all the three appellants were convicted and against the said conviction and sentence they have preferred the present appeal before this Court. 3. The defence of the appellants before the Court below was that they have not committed any offence and the prosecution has suppressed the real genesis, manner and place of occurrence and the medical evidence is inconsistent with the prosecution case. 4. In order to bring home the charge the prosecution has examined six witnesses and out of them PW 5, Dr. Rana Pratap Singh is the Medical Officer who had examined the injuries on PW4 Bhulla Devi. PW 6 Rabindra Nath Rai is the investigation officer of the case. PW 3 Balmiki Yadav is informant. 4. In order to bring home the charge the prosecution has examined six witnesses and out of them PW 5, Dr. Rana Pratap Singh is the Medical Officer who had examined the injuries on PW4 Bhulla Devi. PW 6 Rabindra Nath Rai is the investigation officer of the case. PW 3 Balmiki Yadav is informant. PW4 is the injured and the rest of two witnesses have come to support the case of the prosecution. 5. PW 5 on 6.4.1990 was posted as Medical Officer in Sadar Hospital, Munger and on that day at about 7.30 PM he examined PW 4 Bhulla Devi and found the following injuries on her person: (i) Left index finger badly smashed and lacerated along with bones, tender at the level of proximal interphengile joint attached only with skin flap; (ii) lacerated wound 4" x 2" muscle deep over the left shoulder, margin of the wound everted, i.e., wound of exit; (iii) lacerated wound 1/2"x1/4" skin deep over the left supra scapular region inverted margin, i.e., wound of entry. Injuries nos. 2 and 3 communicating to each other. Injury no.1 is grievous and others are simple caused by hard and blunt substance. Injuries nos. 2 and 3 may be caused by fire arm. Age within six hours. Doctor has further observed that all the above may be caused by fire arm. Injury report is Ext.-1. 6. PW1 Ayodhya Prasad Yadav is a named witness of the FIR. It appears that before the I.O., PW6, this witness at para 20, stated that when he came to the place of occurrence he found PW 4 Bhulla Devi lying in injured condition. 7. PW2, Kailash Prasad Yadav, has stated that on hearing sound of firing he came out of the house and found blood oozing from the left shoulder and left index finger of Bhulla Devi. She was restless and crying. He found all the appellants fleeing away. He saw pistol in the hand of appellant Ram Bilash Yadav. He learnt from Biranchi (not examined) and PWs 1 and 3 that Ram Bilash caused the pellet injury. 8. PW 3, Blamiki Yadav is the informant of this case. He has narrated the prosecution story. According to this witness at about 6 PM a quarrel had taken place between the children. PW4 had gone to the house of Mahendra Yadav to inform the matter. 8. PW 3, Blamiki Yadav is the informant of this case. He has narrated the prosecution story. According to this witness at about 6 PM a quarrel had taken place between the children. PW4 had gone to the house of Mahendra Yadav to inform the matter. Mahendra Yadav became furious and asked other appellants to assault. The informant finding the situation to be tense began to proceed with his mother but Ram Bilash Yadav and Suresh Yadav both armed with country made pistol chased and fired from their respective fire arm causing injury to Bhulla Devi. It is said that firing made by appellant Suresh Yadav hit at the left index finger and the firing of appellant Ram Bilash Yadav hit on the left shoulder of PW4. It appears that this witness also handed over blood stained saree of his mother to I.O. It appears from the evidence of this witness that firing was made from back. 9. PW 4, Bhulla Devi is the injured of this case. She has supported the case. She has stated that Ram Bilash and Suresh both fired from their respective fire arm. According to this witness Ram Bilash caused fire arm injury on her left shoulder whereas Suresh caused fire arm injury on her left index finger. It appears that said firing was made on the order of appellant Mahendra Yadav. It further appears that she was taken to hospital where she reached in unconscious stage. 10. PW 6 is the investigating officer of this case. He has proved the seizure list, Ext.- 3 of the blood stained saree. He has further proved the fard bayan of the informant which has been marked as Ext.-2. According to this witness on 6.4.1990 at 20 hours one out door slip was received from Sadar Hospital, Munger in which a request was made to record the statement of Most. Bhulla Devi. It appears that thereafter Officer Incharge directed the I.O., PW 6 to record the statement. Accordingly, I.O. went to the Sadar Hospital Munger and recorded the statement of informant at 8 PM. 11. It has been argued that it is definite case of the prosecution that injured (PW4) received injuries by firing made by appellants nos. 2 and 3 but the doctor has found only one injury caused by firing which is simple in nature. Accordingly, I.O. went to the Sadar Hospital Munger and recorded the statement of informant at 8 PM. 11. It has been argued that it is definite case of the prosecution that injured (PW4) received injuries by firing made by appellants nos. 2 and 3 but the doctor has found only one injury caused by firing which is simple in nature. It has further been argued that injury no.1 which is grievous in nature has been caused by hard and blunt substance and, therefore, the medical evidence is contradictory to the ocular evidence. Learned counsel submitted that in case of such inconsistency appellants must be given benefit of doubt, in support of his contention learned counsel placed reliance on a decision reported in 1981, Cr. Law Journal, 988 given in the case of Mohar Singh and Ors. vs State of Punjab. 12. As per the evidence on record the two appellants fired from back and thereby caused injuries on the left index finger and left shoulder of injured, Bhulla Devi, PW4. The injuries produced by the pellets discharged from fire arms may present the characteristic of lacerated wounds but their appearance vary according to nature of the pellet. PW5, the doctor, in para 1 has stated that all the above injuries may be caused by fire arm. It is true that injuries nos. 2 and 3 are communicating wounds, that is, one of entrance and other of exit of bullet or projectile. The ocular evidence, therefore, is not in conflict with the medical evidence rather the same is consistent with the medical evidence. 13. It appears from evidence on record that appellants nos. 2 and 3 intentionally fired on PW4 when she was returning back with her son PW3. It is also admitted position that such firing as per evidence was made from back. In this connection learned counsel pointed out that on the basis of evidence no case u/s 307 of the Penal Code is made out on the ground that firing was made in spur of moment and both the parties are agnates. He also pointed out that on the basis of allegation the case will fall within Sections 323 and 325 of the Penal Code. 14. It is now established from evidence that the two appellants named Ram Bilash Yadav and Suresh Yadav chased the informant and his mother and assaulted. He also pointed out that on the basis of allegation the case will fall within Sections 323 and 325 of the Penal Code. 14. It is now established from evidence that the two appellants named Ram Bilash Yadav and Suresh Yadav chased the informant and his mother and assaulted. Now intention can be gathered from the following facts: (i) the nature of the weapon used, (ii) the place of body where the injuries were inflicted, (iii) the nature of the injuries and (iv) the opportunity available which the accused gets. 15. If a persons knows that a certain result would ensue from his act, he would be deemed to intend such results from his act. It has come in the evidence that firing was made more than two times. One of the injury has been found on the back of shoulder. Therefore, the act of the appellants would fall within the ambit of Sec. 307 of the Penal Code. 16. The Trial Court, therefore, has rightly convicted all the three appellants u/s 307/34 of the Penal Code. Appellants nos. 2 and 3 have also rightly been convicted u/s 27 of the Arms Act. 17. Now coming to the question of sentence I find that all the three appellants are facing this criminal prosecution since last 17 years, it is settled view that the measure of the punishment should be proportionate to the gravity of the offence but passage of time is a good reason for imposing lesser sentence. 18. In the above facts and circumstances of the case all the three appeiiants are sentenced to undergo R.I. for 4 years u/s 307/34 of the Penal Code. Appellants nos. 2 and 3 namely, Suresh Yadav @ Suro Yadav and Ram Bilash Yadav are sentenced to undergo R.I. for two years u/s 27 of the Arms Act. All the above sentence shall run concurrently. 19. With the above modification in sentence, this appeal is dismissed. 20. The appellants are on bail. Their bail bonds are hereby cancelled and they are directed to surrender before the Court below to serve out the remaining period of sentence.