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2012 DIGILAW 1592 (PAT)

Jamuna Sah v. State of Bihar

2012-11-29

SHEEMA ALI KHAN

body2012
JUDGMENT (ORAL) Smt. Sheema Ali Khan, J.- Three accused persons were charged in this case, Jamuna Sah, the appellant his father and mother. The father and the mother of Jamuna Sah have been acquitted by the trial Court. whereas Jamuna Sah has been found guilty under Section 307 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years. 2. The prosecution case is that the informant Mangru Sah asked his nephew Jamuna Sah to give him the handle of the hand-pump, which needed repair, According to the informant the hand-pump was installed by the Government and Jamuna Sah had kept the handle so that it could be repaired. The informant offered to get the handle repaired, whereupon the appellant and his father began to abuse the informant. There was exchange of hot words. It is said that the appellant's father Chaturi Sah ordered his son to kill the informant. whereupon Barmatia Devi, mother of the appellant produced a country-made pistol. It is said that Jamuna Sah fired with the country-made pistol. On hearing the sound, the wife of the informant Chandrawati Devi and the mother of the informant came to the place of occurrence and they too were injured. 3. Learned counsel for the appellant submits that the family of the appellant is related to the informant and the case has been instituted due to the family dispute between the two. It is said that no such occurrence took place and the entire case is false and untrue. 4. The prosecution has examined seven witnesses, out of which PW 1 Bashishta Tiwary. PW 2 Chandrawati Devi and PW 4 Kalika Tiwary have been declared hostile. It may be pointed out that PW 2 Chandrawati Devi is the wife of the informant, who was supposedly injured during the occurrence. 5. This Court shall begin by examining PW 7 Dr. Balmukund who has examined all the three injured persons. He has found "multiple pellets and foreign body, adherent to skin tissues, shape and size irregular somewhat circular with blackening." on both the wife and the mother of the informant. He has reported that all the injuries are simple in nature. Surprisingly, the doctor has given his opinion which actually gives a fatal blow to the prosecution version, which is being quoted herein below:- "After considering all the things. He has reported that all the injuries are simple in nature. Surprisingly, the doctor has given his opinion which actually gives a fatal blow to the prosecution version, which is being quoted herein below:- "After considering all the things. I had come to the conclusion that wound were caused by accidental burst of explosive substance." I would not like to comment on the statement of the doctor as it not only proposes to destroy the prosecution case but is a piece of evidence given as if the doctor was an eye-witness to the occurrence, and even if he had concluded that the injuries was due to burst of explosive substance, he could not have held that it was accidental. 6. The oral evidence lead by Tetari Devi and the informant Mangru Sah have to be examined taking into account the evidence of the doctor. Chandrawati Devi. PW 2, is the wife of the informant and she has been declared hostile. She has accepted that she was injured during the occurrence but she has not been able to identity the person who has supposedly fired on her and thus she has been declared hostile. 7. PW 3 Tetari Devi is the mother of the informant. She has stated in her examination-in-chief that she heard the sound of raised voices and came to the darwaza and saw Chandrawati (daughter-in-law). Jamuna and Barmatia Devi. She alleges that Jamuna fired, which hit her daughter-in-Jaw. her son and her and thereafter she fainted. She accepts that her husband had two wives, she being the second wife. She also accepts that she had two sons, who live separately as there has been partition between them. PW 3 lives with Mangru, the informant. The father of the appellant is the brother of the informant. According to her, she fainted and remained in that state for 5-10 days. The evidence of this witness contradicts the manner in which the informant has described, the occurrence in the First Information Report. The informant has specifically stated in the First Information Report that two shots were fired, whereas this witness has stated that all of them were injured by the first shot fired. The story that she was unconscious for 5-10 days is completely unbelievable in view of the report of the doctor and the fact that she received minor and simple injuries. The story that she was unconscious for 5-10 days is completely unbelievable in view of the report of the doctor and the fact that she received minor and simple injuries. Therefore, it would appear that this witness is not coming up with the true picture regarding the occurrence and cannot be relied upon for corroborating the prosecution case. 8. The next witness of importance is PW 5 Mangru Sah, the informant. According to him, when his brother gave an order to kill he ran 20 yards and was followed by his wife and mother, who had come to the place of occurrence on hearing the sound of raised voices. The informant states that two rounds were fired. Regarding the cause of the occurrence i.e. the broken handle of the hand-pump, the informant had stated that it lies near plot No. 79, a 'taal' land. According to him he had made a complaint before the mukhiya one year back, which was not heeded to by the mukhiya and the hand-pump had remained defective, which again is highly unbelievable as the parties would require water on a daily basis and would have taken steps to repair the hand-pump. This witness has stated that he also fainted after the firing took place. Later, he regained consciousness and give his statement. He denies the suggestion that he is trying to take possession of the land on which the hand-pump is situated and has filed this case in order to achieve the same. 9. On the basis of the aforesaid evidence, the appellant has been convicted. It would appear that the doctor has doubted that the injuries have been caused by fire-arms. The oral evidence, on the other hand, is full of contradictions. The informant contradicts the manner in which the occurrence has taken place and deviates from the version that had been recorded in the fardbeyan by stating that he ran in order to save his life and thereafter the appellant fired at him. There is also some doubt regarding whether two shots were fired and whether in fact the injuries were due to the fire-arms. There is also some doubt regarding whether two shots were fired and whether in fact the injuries were due to the fire-arms. In this case, there is a lacuna as no charge has been framed under the provisions of the Arms Act, which in fact would also prove fatal to the prosecution version as it must be proved by the prosecution that fire-arms was used to cause the injuries in question. 10. In view of the fact that the prosecution has not come out with a clear-cut picture regarding the manner of occurrence and the fact that both the ladies have given evidence which is in contradiction to the evidence of the informant and have refrained from identifying the appellant, this Court has no option but to give the benefit of doubt to the appellant. 11. Accordingly, the appellant is acquitted of the charges levelled against him. He is also discharged from the liabilities of the bail bonds furnished earlier in this case. 12. In the result, this appeal is allowed. Appeal allowed.