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2007 DIGILAW 908 (PAT)

Indal Nut v. State Of Bihar

2007-05-08

ABHIJIT SINHA

body2007
Judgment Abhijit Sinha, J. 1. Jogapatti P.S. Case No. 13 of 1992 was registered under Ss. 147, 148, 323, 324 and 307 of the Indian Penal Code and 27 of the Arms Act, against Indal Nut, Kishori Sah, son of Sindhal Dhob (Garib @ Jitendra Dhobi) and three unknown others on the basis of the fard beyan given by one Bhola Sah (P.W.2) at about 1 P.M. on 13.2.1992. According to the informant at around 8 P.M. on the previous evening while he was sitting around the fire at his Darwaja the aforesaid persons arrived variously armed with guns, lathies and kattas and started assaulting him. Upon hearing his cries of alarm as the informants son Yogendra Sah (P.W. 3) came out of the room indal Nut allegedly fired at him from the single Barrel gun in his hand which resulted in injuries to him. it is said that the hulla raised and the sound of gun fire attracted the attention of co-villagers and several of them arrived and they too were fired upon by the aforesaid assailants as a result whereof Kamal Thakur, Shiv Shankar Thakur, Chandrika Mahto, Baijnath Tiwari, Khelawan Mahto and Sita Ram Mahto sustained gun fire injuries. Seeing the crowd of villagers the assailants took to their heels and after retreating for some distance they resorted to firing at the villagers who attempted to give chase and as a result of the firing and out of fear the chase of the assailants was given up. The cause for the occurrence as recited in the fard beyan is that about a month back Indal Nut in the company of his accomplices had come to demand levy money of Rs. 20,000.00 from the informant which he had refused to give and four days prior to the occurrence the demand was again made but as the informant was not available at his home they had come on the previous evening and the occurrence as described in the fard beyan took place. 2. After due investigation the police submitted a charge-sheet against the three F.I.R. named accused under the very Penal provisions where under the case had been registered and on commitment of the case to the court of Sessions for trial charges on 19.5.1992 and they were put on trial. The accused persons denied the charges and took the plea of false implication. The accused persons denied the charges and took the plea of false implication. It further appears from their statements u/s. 313 Cr. P.C. that the additional defence plea was of false implication and the claim was on account of the fact that the informant had grabbed the land of a temple and the defence party were protesting against the same. 3. At the trial the prosecution examined as many as 13 witnesses including the informant (P.W. 2), his injured son, Yogendra Sah (P.W. 3), Dr. Pramod Kumar Tiwari (P.W.9) and the Investigating Officer of the case, S.I. Yogeshwar Shukla (P.W. 13). Several documents were also exhibited in support of the prosecution case. However, no evidence, either documentary or oral was sought to be placed on record by the defence. 4. The learned Trial Judge after consideration of the materials on record and submissions advanced by the counsels for the parties while acquitting accused, Kishori Sah and Garib Dhobi of the charges respectively framed against them recorded a verdict of conviction against the appellant, Indal Nut, only under Ss.4 307 of I.P.C. and 27 of Arms Act and accordingly sentenced him to suffer rigorous imprisonment for seven years u/s. 307 of I.P.C, and rigorous imprisonment for three years for the offence u/s. 27 of Arms Act. The sentences were directed to run concurrently. 5. Assailing the impugned Judgment the learned counsel for the appellant sought to submit that although 13 witnesses had been examined by the prosecution none except the informant had identified the appellant as one of the culprits in the crime. On the said premise the learned counsel submitted that conviction on the basis of the evidence of the solitary witness was not justified and should be set aside. 6. The fact that an occurrence took place where the son of the informant and some of the villagers sustained gun fire injuries is not in dispute. The Doctor (P.W. 9) in his testimony has pointed out the injuries sustained by Chandrika Mahto, Khelawan Parit, Kamal Sharma, Baidyanath Tewary, Yogendra Sah, Mohan Parit, Shiv Shankar Sharma (Thakur ?). According to the Doctor two multiple penetrating wounds on the thigh and leg of Chandrika Mahto were caused by firearm, but were simple in nature. The two penetrating wounds on the person of Subhash Mahto were also caused by firearm and were simple in nature. According to the Doctor two multiple penetrating wounds on the thigh and leg of Chandrika Mahto were caused by firearm, but were simple in nature. The two penetrating wounds on the person of Subhash Mahto were also caused by firearm and were simple in nature. The two penetrating wounds on the person of Khelawan Parit were also simple in nature and caused by firearm. Kamal Sharma had one punctured wound over right side of the chest which was simple in nature and caused by fire arm. The one penetrating wound on the person of Baidyanath Tewari was also simple in nature and caused by firearm. Yogendra Sah had two penetrating and one multiple penetrating wound in his abdomen, shoulder and chest respectively which in the opinion of the Doctor was simple and caused by firearm. Similarly Mohan Parit also had two penetrating wound which were also simple and caused by firearm. Shiv Shankar Sharma had one penetrating wound on the left side of cheek and as the X-Ray report showed fracture of mandiable it was said to be grievous and caused by firearm. This only goes to show that several rounds of firing was resorted to by the culprits and amongst them the appellant herein has been identified by the informant. 7. It would be important in this connection to note the testimony of P.W. 4, Baidyanath Tewari, who has also identified the three accused who were put on trial. He has stated that he saw accused Indal Nut with a gun in his hand. Nothing of any material particular has been extracted by the defence from this witnesses so as to impeach the credibility of P.W. 4. 8. Even otherwise the submissions of the learned counsel of the conviction being based on the testimony of a solitory witness cannot be accepted. The law is very clear on this issue. The legislative recognition of the fact that no particular number of witnesses can be insisted upon is reflected in Sec. 134 of the Evidence Act, 1872. Administration of Justice can be affected and hampered if number of witnesses were to be insisted upon. If plurality of witnesses would have been the legislative intent, cases where the testimony of a single witness only could be available, in number of crimes the offenders would have gone unpunished. Administration of Justice can be affected and hampered if number of witnesses were to be insisted upon. If plurality of witnesses would have been the legislative intent, cases where the testimony of a single witness only could be available, in number of crimes the offenders would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touch stone of credibility and reliability. If the testimony is found to be reliable there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proof or it is itself proof of a fact. This position has been settled by a series of decisions notable among which are Vadivelu Thevar V/s. The State of Madras, AIR 1957 SC 614 , Jagdish Prasad V/s. State of M.P., AIR 1994 SC 1251 and Kartik Malhar V/s. The State of Bihar, 1996 1 SCC 614 . 9. I have perused the testimony of the informant which goes out unscathed on the acid test of credibility and, therefore, there can be no justification in doubting his testimony. Accordingly, I find no merit in the submissions advanced by the learned counsel for the appellant. 10. It was next contended by the learned counsel for the appellant that although the appellant initially got into altercation with the informant (P.W. 2) and the alleged demand of levi was from him, yet curiously no injury has been caused to him which definitely goes against the prosecution. It was further submitted that even otherwise the demand for money has not been proved. 11. The fact that the informant did not sustain any gun fire injury cannot be an issue for negating the prosecution case. The recital in the fard beyan states that as soon as Yogendra Sah, the son of the informant, came out of the room he was fired upon by the appellant, Indal Nut, and when the villagers arrived attracted by the sound of the gun fire and cries of alarm all the assailants resorted to firing which resulted in 8 persons sustaining gun fire injuries. Even if the demand for money may not have been proved that does not detract from the fact that the occurrence as alleged did take place wherein 8 persons including the son of the informant had sustained firearm injury. Even if the demand for money may not have been proved that does not detract from the fact that the occurrence as alleged did take place wherein 8 persons including the son of the informant had sustained firearm injury. I am, therefore, unable to accept these submissions of the learned counsel for the appellant. 12. It was next submitted on behalf of the appellant that on the some set of the evidence the learned Trial Judge had acquitted two of the accused facing the trial and convicted the appellant herein. 13. I am unable to accept this proposition also as the learned Trial Judge has given cogent reason for acquitting Kishori Sah and Garib Dhobi and for convicting the present appellant and the same does not call for any interference. 14. On a careful consideration of the maters in issue, the conviction of appellant, Indal Nut, is confirmed on both counts and the appeal filed by him is dismissed. 15. The learned counsel for the appellant next submitted that appellant has had to suffer the trauma and harassment of criminal prosecution for almost 15 years as the case and the Sessions Trial is of the year 1992 and in such circumstance he may not be sent back to serve out his sentence. 16. It is unfortunate that an appeal of the year 1992 has been pending in this Court for 15 years and the appellant had to face the ordeal and trauma which may have had its adverse effect not only on his mind and physique but also on the financial, angle. 17. Due regard being had to the facts and circumstances of the case and the attending circumstances, while maintaining the conviction of the appellant herein I am of the opinion that the interest of justice will be served if the sentence pronounced by the learned Trial Judge is modified to the period already undergone. 18. In the result the appeal is dismissed with modification in sentence as referred to above. The appellant is on bail. He is discharged from the liabilities of his bail bonds.