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2011 DIGILAW 1503 (PAT)

Bishundeo Singh v. State Of Bihar

2011-07-21

GOPAL PRASAD

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JUDGEMENT Gopal Prasad, J. 1. These two appeals have been heard together and disposed of by the common order and judgment as both arise out of the same judgment and conviction and sentence recorded in Sessions Trial No. 226 of 1986 passed by Sri Devi Dayal Prasad, First Additional Sessions Judge, Ara, Bhojpur. 2. The four appellants in Cr. Appeal No. 62 of 1996 have been convicted under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and have further been convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and further convicted under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for one year. The appellants of Cr. Appeal No. 57 of 1996 have been convicted for the offence under Section 307/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and a fine of Rs.500/- and on non-payment of fine to undergo rigorous imprisonment for one year. The appellant nos. 12 to 21 have further been convicted for offence under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment 3 for two years and appellant no. 1 to 11 has further been convicted under Section 147 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. The appellant no. 13 has further been convicted under Section 324 and has been sentenced to undergo rigorous imprisonment for two years. 3. The prosecution case as alleged in the fardbeyan of the informant that on 19.10.1984 at 8:00 A.M while the informant Navlesh Singh was irrigating the field then accused Bramhdeo Singh protested then the informant insisted upon the irrigation. Accused persons specifically named therein who are the appellants armed with double barrel gun, country made pistol, Lathi, Bhala and Garasa came and Bramhdeo Singh, Mukhiya fired at Birendra Singh and thereafter the prosecution party in self defence Ram Sakal Singh fired 3-4 rounds and the accused Bramhdeo Singh, Gopal Sharan Singh, Surendra Singh also fired due to which Kailash Singh, Lallan Singh, Subhas Chandra Singh, Surendra Singh, Rajendra Singh, Bipin Kumar Singh and others received injuries. The police instituted the fardbeyan bearing Sahar P.S. Case No. 152 of 1984 and proceeded with investigation. The police instituted the fardbeyan bearing Sahar P.S. Case No. 152 of 1984 and proceeded with investigation. After investigation the charge-sheet was submitted and accordingly cognizance was taken and consequently the charges were framed and the trial proceeded. During the trial 16 witnesses were examined and after considering the oral and documentary evidence the order of conviction is recorded as stated above. 4. Learned counsel for the appellants, however, contended that this is a case of case and counter case and the present case is a counterblast to their case bearing Sahar P.S. Case No. 152 of 1984 dated 19.10.1984 and the prosecution has failed to explain the injuries found on the person of Ram Chandra Singh, Bramhdeo Singh, Dinanath Singh, Vijay Singh vide Exts. G and H series and the doctor who has examined the prosecution witnesses as also examined the injured accused person. 5. It has further been contended that the injury on the person of the prosecution party in most of the cases are simple except a few which is shown to be grievous caused by pellets but none of the injuries have been shown to be dangerous to life and hence the offence under Section 307 is not made out and further contended that the occurrence is of the year 1984 and more 25 years have already been elapsed and further Ext. G is the post mortem report of side of accused who died on receiving injury during the occurrence and Ext. H series are the injury report of Bramhdeo Singh, Dina Nath Singh, Jay Ram Singh, Tribhuban Singh, Vijay Kumar Singh and Ram Chandra Singh, Surendra Singh and the injury on the person of Ram Chandra Singh, Vijay Kumar Singh, Tribhuban Singh are found to be grievous whereas they were examined on 19.10.1984 at about 1:00 P.M. and the age of injury found to be within six hours. It is further submitted that there was case and counter case and both side got injury by fire-arm. It is further submitted that there was case and counter case and both side got injury by fire-arm. However, the injuries on the person of the accused persons had not been explained and further the injuries on the prosecution party are those simple and grievous but the doctor has not opined that the injury on the person of the accused were dangerous to life and hence offence under Section 307 of the Indian Penal Code is not made out and the occurrence is of the year 1984 and more than 25 years have elapsed of the facing trial and appeal and hence a lenient view may be taken. However, it has further been contended that the order of conviction and sentence has been challenged on two counts that there is injuries on the person of the accused persons and one of the persons injured has died and hence the manner and genesis of occurrence is doubtful and the injury has not been explained. 6. However, learned counsel for the State and informant submits that in the FIR itself it has been alleged that when the accused persons fired from the gun then Mukhiya the prosecution party fired at Birendra Singh in self defence and Ram Shakal Singh fired 3-4 rounds and then the accused Bramhdeo Singh, Gopal Saran Singh also fired may have caused injuries. 7. P.W. 3 in his cross-examination admitted that there is a counter case with regard to the death of Ram Chandra Singh and in which this P.W. 3 is also an accused with regard to the occurrence of the same time. 8. P.W. 5 has also stated that Bramhdeo Singh has filed a counter case. 9. P.W. 6 has also stated that Bramhdeo Singh has filed counter case with regard to the occurrence. He has stated that Ram Chandra Singh was fallen at the side of occurrence and other injured were also fallen there and the 6 place where Ram Chandra Singh was fallen at about 2-3 steps from the orchard. 10. P.Ws. 8, 9 and 10 though supported the prosecution case but in their cross-examination they have admitted about the counter case and injury on the person of other side as well as injury on the person of Ram Chandra Singh they have accepted that the injury on the other side. 11. 10. P.Ws. 8, 9 and 10 though supported the prosecution case but in their cross-examination they have admitted about the counter case and injury on the person of other side as well as injury on the person of Ram Chandra Singh they have accepted that the injury on the other side. 11. P.W. 16 is the Doctor who has proved the injury on the person of the prosecution. However, in the cross-examination he has stated that injured person of the other side of the counter case were in hospital and both the parties were lying in the hospital on one side of the other and patience of both the sides were put in one hall. Hence, from the evidence it is apparent that both the sides have received injury and from oral evidence of the witnesses it is also apparent that the accused of the other side were also injured and with regard to the injury of Ram Chandra Singh prosecution side filed a case against the other side. The order of conviction of conviction and sentence was recorded with regard to the some of the accused and the evidence of the doctor shows that both the parties were injured and that the person from both the side were injured itself indicates that there were free fight. However, the injury has been proved on the prosecution and though it is stated that some of the injury were grievous but the X-ray plate has not been proved to show that the injury was grievous on the person of the prosecution and hence in the light of the evidence of the doctor as well as the evidence of Ext. G and H series indicates that there was injury on the other side. However, it is stated that in the fardbeyan itself there is mention of firing in self defence but the nature of injury and seven persons having been shown to have injured from the other side itself does not explain the injury on the person of defence merely by showing that in the fardbeyan there is evidence of firing in self defence but apparently the prosecution exceeded the right of self defence causing death of one Ram Chandra Singh from the other side i.e. accused. 12. 12. However, having regard to the facts and circumstances the injury on the person of the accused persons have not been properly explained and the defence has not proved the case beyond reasonable doubt but has only been able to probabilize the defence and since the prosecution witness has supported the case of the defence about the injury followed with Ext. G and H series itself made out a probable version and hence under the facts and circumstances the explanation by the defence for the injury of seven persons has not been properly explained and hence the appellants are entitled to benefit of doubt and hence I give the appellants the benefit of doubt and hence the order of conviction and sentence recorded by the learned lower court is not sustainable and hence the order of conviction and sentence is hereby set aside and the appeal is allowed.