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2007 DIGILAW 1696 (PAT)

Muni Singh @ Munni Singh v. State Of Bihar

2007-10-31

AJAY KUMAR TRIPATHI

body2007
Judgment Ajay Kumar Tripathi, J. 1. The sole appellant in the present appeal is aggrieved by the judgment and order dated 12.1.1993 passed by 3rd Additional Sessions Judge, Nawadah in Sessions Trial No. 266 of 1984/19 of 1987 whereby the 3rd Additional Sessions Judge convicted the appellant and sentenced him to undergo rigorous imprisonment for seven years for the offence u/s. 307 of the Indian Penal Code and also for five years u/s. 27 of the Arms Act. Both the sentences were to run concurrently. 2. The case arises out of a complaint case which was filed by the complainant, namely, Nand Kishore Singh of village Amokhari, Police Station Sirdalla, District-Nawadah. The case in brief stated in the complaint petition is that on 17.7.1976 at about 6.00 A.M. the son of the appellant Muni Singh threw bricks on the house of the complainant while he was playing on the road in front of the house of complainant. The complainant rebuked the son. This infuriated the appellant and there was exchange of hot words between the parties. The appellant Muni Singh thereafter returnerd with his licensed gun along with a large number of other accused persons numbering eight. All were supposed to be variously armed. One of the accused, namely, Mishri Singh ordered to kill the complainant. Muni Singh thereafter supposed to have fired twice and thrice from his gun with intention to kill the complainant and his brother, Chandrika Singh. After the occurrence the complainant approached the local Police Station but since the police refused to register the case he lodged the complaint before the Chief Judicial Magistrate, Nawadah. It is stated that the Chief Judl. Magistrate, Nawadah referred the complainant and his brother who were in injured condition to the local Government Hospital at Nawadah for treatment. From Nawadah they were referred to Gaya Hospital and Chandrika Singh was subsequently brought to Patna Medical College Hospital, Patna for treatment. Complainant and his brother supposedly received pellet injury on face, chest and other parts of the body. It is also stated that Chandrika Singh also lost one eye due to injury received during the firing by the appellant. 3. The Chief Judicial Magistrate after recording the evidence of the complainant and witnesses on solemn affirmation took cognizance of the offence under Ss. It is also stated that Chandrika Singh also lost one eye due to injury received during the firing by the appellant. 3. The Chief Judicial Magistrate after recording the evidence of the complainant and witnesses on solemn affirmation took cognizance of the offence under Ss. 147, 148 and 307 of the Indian Penal Code, read with 27 of the Arms Act, and committed the case to the Court of Sessions. Ultimately the same was assigned to the Court of 3rd Additional Sessions Judge, Nawadah for trial. 4. Nine persons including the appellant were charged under Ss. 147, 148, 307 and 149 of the Indian Penal Code along with Section 27 of the Arms Act after the accused persons pleaded not guilty to the charges. 5. The prosecution examined five witnesses in all. P.W. 1 is the complainant himself. P.W. 2 is the brother of the complainant, namely, Chandrika Singh. P.Ws. 3, 4 and 5 are co-villagers. It is relevant to point out at the very out set that except for P.Ws. 1 and 2 other three witnesses did not support the case of the complainant. They were only hearsay witnesses. It is an accepted position that they had only heard about the incident. In fact P.W. 5 categorically stated that he was not even in the village at the time of occurrence. Learned Additional Sessions Judge however based on the evidence of P.Ws. 1 (complainant) and 2 (brother of complainant) found the appellant Muni Singh guilty of the offence u/s. 307 of the Indian Penal Code read with Sec. 27 of the Arms Act and a sentence of seven years rigorous imprisonment under the Penal Code and five years under the Arms Act was imposed. Other accused persons were however acquitted of the charges as there was no evidence against them. 6. Learned counsel for the appellant challenges the legality of the order in question on many grounds. His primary submission is that it is virtually a case of no evidence. Other accused persons were however acquitted of the charges as there was no evidence against them. 6. Learned counsel for the appellant challenges the legality of the order in question on many grounds. His primary submission is that it is virtually a case of no evidence. He submits that at no point of time during the course of trial either the injury report was brought on record and exhibited as evidence or any of the doctors who supposedly treated the complainant and his brother were examined in support of the allegation that they had suffered injury of the kind for which the accused persons could be charged with the offence u/s. 307 of the Penal Code. He contends that in absence of proof of injury on the complainant and his brother no charge u/s. 307 of the Penal Code or other related Sections could be made out. They state that it is a case of false implication due to village enmity and no independent witness supported the case of the complainant during the course of the trial. 7. It was the contention of the appellant that although the allegation of firing by licensee gun was alleged in the complaint but neither the gun was seized or produced at any point of time to show that any firing took place from the said gun. 8. Another submission of the appellant is that in absence of any scientific or material evidence or proof, the charges u/s. 307 of the Penal Code or the Arms Act cannot be made out against the appellant. Mere omnibus statement made by the complainant or his brother may not be sufficient to hold that the appellant guilty of the charges alleged against him. 9. This Court is quite surprised to notice that primary reason given by learned Additional Sessions Judge for holding the appellant guilty of the charges is the statement of complainant and his brother who had given evidence about the occurrence. As for the injury part, the Trial Court records that the Chief Judicial Magistrate, Nawadah while recording the statement of complainant on solemn affirmation noticed certain injury on the complainant and referred him to Nawadah hospital. The Court therefore concluded that there was injury and to that extent the allegation made by the complainant was true. As for the injury part, the Trial Court records that the Chief Judicial Magistrate, Nawadah while recording the statement of complainant on solemn affirmation noticed certain injury on the complainant and referred him to Nawadah hospital. The Court therefore concluded that there was injury and to that extent the allegation made by the complainant was true. This in the opinion of learned Additional Sessions Judge was sufficient to hold the appellant guilty of the charge of attempt to murder along with Sec. 27 of the Arms Act. 10. The Court sought assistance of learned Additional Public Prosecutor appearing in the matter on the question whether the statement of the complainant and his brother was good enough to prove the allegation which was made in the complaint petition and whether in absence of any injury report or medical evidence the charge u/s. 307 i.e. attempt to murder can be established. 11. The Court went through the judgment of the Additional Sessions Judge and has taken note of this fact that except oral evidence of P.Ws. there is no other material exhibit or evidence which has been discussed or marked as such. As has already been noticed above out of five P.Ws., three, so called independent witnesses, are at best hearsay witnesses. Therefore, appellant has been convicted on mere oral evidence of the complainant and his brother whose testimony ought not to be accepted on the face value in absence of any other material evidence to corroborate the allegations. 12. This Court has serious difficulty in accepting the findings given by Additional Sessions Judge in absence of any other corroborative evidence such as injury report, the medical opinion, evidence of any doctor, statement and production of material gun which was a licensee gun etc. Learned Addltional Sessions Judge in the opinion of this Court therefore committed a patent illegality in holding the appellant guilty of the offence for which he was charged. If a serious charge u/s. 307 of the Penal Code is alleged and even charge u/s. 27 of the Arms Act has also been brought about against the appellant there should have been sufficiency of evidence to complete the chain of event. If the appellant had fired from his gun there should have been evidence to establish that the gun did cause injury. Mere assertions of the complainant is not enough that there was an attempt to murder. 13. If the appellant had fired from his gun there should have been evidence to establish that the gun did cause injury. Mere assertions of the complainant is not enough that there was an attempt to murder. 13. In the opinion of this Court the complainant had miserably failed to establish the charge of attempt to murder against the appellant. The evidence, in my opinion, is not sufficient to establish the guilt of the appellant. Absence of independent evidence, material exhibits as well as the injury report or the opinion of the doctor is fatal to the case as such. 14. In view of the above the impugned judgment passed in Sessions Trial No. 266 of 1984/19 of 1987 by 3rd Additional Sessions Judge, Nawadah sentencing the appellant to seven years rigorous imprisonment u/s. 307 of the Penal Code and five years u/s. 27 of the Arms Act is hereby set aside. The appellant is hereby discharged from the liability of the bail bond. The appeal is accordingly allowed.