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2008 DIGILAW 149 (PAT)

Rajendra Singh (Yadava) v. State Of Bihar

2008-01-22

SHYAM KISHORE SHARMA

body2008
Judgment Shyam Kishore Sharma, J. 1. No body is appearing on behalf of the appellant on repeated calls. Mr. Gauri Shanker Thakur has appeared and submitted that he is ready to assist the court on behalf of the appellant as Amicus Curiae. Learned APP has not opposed his submission. Accordingly, Mr. Gauri Shanker thakur is appointed as Amicus Curiae to assist the Court. 2. The appellant has preferred this appeal against the judgment of conviction and order of sentence dated 21st June, 1993 passed by the Ist Additional Sessions Judge, Bhojpur, Arrah in Sessions Trial No. 8 of 1985 whereby the appellant was found guilty and convicted under Sec. 307 IPC and was sentenced to undergo R.I. for 10 years and further found guilty under Sec. 27 of the Arms act and was sentenced to undergo R.I. for 2 years. Besides this the appellant was further sentenced to pay fine of Rs. 300/- for the offence under Section 307 IPC and in default of payment to undergo further R.I. for three months. 3. The prosecution case relates to the occurrence of 29.3.1994 at 2.30 hours at village Behea, P.S. Behea, District Bhojpur. At that time the informant Sheo Parsan Singh (PW 3), his brother Shrawan Yadava (PW 4) aged about 8 years were sleeping in their pump house. At that time the dog started barking and climbed on the body of the PW 3. The informant woke up and flashed his torch and noticed three persons. They were the appellant with gun and another accused Rambihari Yadava was with Fasuli and the other person was not identified. The appellant fired upon the informant which caused bullet injury on his lip, teeth and right shoulder. The informant tried to escape and in the way he met with patrolling party and he was carried to the police station where he submitted his written report. The motive of occurrence as stated was that 25 days prior to the date of the occurrence a theft was committed in the house of Ram Pravesh Yadava in which the informant was being suspected as thief and the present occurrence is in revenge of the suspected case of theft. 4. Formal FIR vide Behea P.S. Case No. 68 of 1984 was registered under Sections 324, 307/34 of the Indian Penal Code and Sec. 27 of the Arms Act. 4. Formal FIR vide Behea P.S. Case No. 68 of 1984 was registered under Sections 324, 307/34 of the Indian Penal Code and Sec. 27 of the Arms Act. After investigation the charge sheet was submitted under the aforesaid sections. Cognizance was taken. The allegations made out a session trial case so the case was committed to the court of Sessions. Charges were explained to the appellant as well as to Rambihari Yadava. They pleaded innocence and claimed that they have been implicated on account of enmity. No occurrence as ever occurrence and no injury was caused to any person. 5. In order to prove the case the prosecution has examined altogether four witnesses. PW 1 Chandrama Singh, PW 2 Ram Nath Yadava, PW 3 Sheo Parasan Yadava the informant and brother of the informant has been examined as PW 4 was aged about 8 years on the date of occurrence. PW 5 is the Dr. Gorakh Nath Prasad. The eye witness to the occurrence are two persons, namely, the informant and his brother who was sleeping with the informant on that date. 6. PW 3 in his evidence has stated that he woke up due to barking of dog and thereafter, flashed the torch light towards east and noticed three persons proceeding towards him. They rushed towards the informant and one of the identified person was the appellant who was armed with a gun whereas another accused who also faced trial Rambihari Yadava was having fasuli, third person was not identified. The appellant fired which caused bullet injury on the lip, teeth and right shoulder of PW 3 the informant escaped and noticed the patrolling party which brought him to the police station where his statement was recorded and he was sent to the hospital where he was examined by PW 5 Dr. Gorakh Prasad. The doctor found the injury to be simple. PW 3 has been supported by the PW 4 that there was an occurrence at that night but the evidence of PW 4 is taken into its entirety then he has stated that at the time of occurrence he remained inside the pump house. This statement of PW 3 makes his presence at the place of occurrence at the time of occurrence is doubtful. This statement of PW 3 makes his presence at the place of occurrence at the time of occurrence is doubtful. A person from inside of pumping house will not be in a clear position to watch which person is firing and who is the person who is backing the person who is firing. The prosecution case is that the door was left open by PW 3 when he went out of the pumping station. If the prosecution makes its case that the occurrence was witnessed by the another person also then it is for the prosecution to prove its case beyond all reasonable doubt. In view of the candid admission of the PW 4 his presence becomes very much doubtful at the place of occurrence. 7. Other witnesses are PW 1 and 2. PW 1 has stated that he met with the informant and noticed the bullet injury but the informant could not state the name of the person who has fired and caused injury. Similar is the evidence of PW 2, who has stated that he met with the informant just after the occurrence. He stated that due to darkness the criminals could not be identified. Therefore, the case remains on the solitary evidence of the informant who was allegedly examined by the PW 5. PW 5 has examined in the Court. He has stated that he found PW 3 injured and according to him the injury was caused by fire arms but it was simple in nature. The evidence of PW 5 has been recorded but at the time of recording of his evidence the prosecution has failed to produce the injury report so the injury report has not been brought on the record. Neither injury report was brought on the record nor the I.O. was examined. The definite case of the prosecution is that there was fire arm injury which has not been substantiated in absence of the injury report. In absence of the injury report it can not be said that as to what injury was caused to the injured. Not only this the evidence of other two witnesses who met the informant after the occurrence goes to show that the informant has not disclosed the name of the assailant. 8. The aforesaid facts came on the record but the court has convicted the appellant and acquitted Rambihari Yadava. Not only this the evidence of other two witnesses who met the informant after the occurrence goes to show that the informant has not disclosed the name of the assailant. 8. The aforesaid facts came on the record but the court has convicted the appellant and acquitted Rambihari Yadava. The evidence against the appellant is the similar to the evidence against Rambihari yadava which is stated by the appellant. In absence of the injury report and in view of the evidence of other witnesses the prosecution has not been able to prove the charge beyond all reasonable doubt. Accordingly, the judgment of the court below is set aside and this appeal is allowed. The appellant is discharged from the liabilities of his bail bonds. Let a copy of this judgment be handed over to Mr. Gauri Shankar Thakur, advocate who assisted the court as amicus cureia.