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2012 DIGILAW 1650 (PAT)

KANHAIYA PANDEY v. STATE OF BIHAR

2012-12-07

SHEEMA ALI KHAN

body2012
JUDGMENT Sheema Ali Khan, J. 1. The sole appellant has been found guilty for the offences under Section 307 of the Indian Penal Code and has been awarded punishment to undergo rigorous imprisonment for five years, he has also been sentenced to undergo rigorous imprisonment for five years under Section 27 of the Arms Act. 2. The prosecution case, in short, is that Ram Chandra Upadhyay (PW 5) on 21.12.1981 was feeding his cattle when the named accused persons in the First Information Report, who were 8 in numbers, came variously armed. It is said that the appellant was carrying a country-made gun whereas the others were armed with farsa. They came to the door-step of the informant and were removing his hut from the place of occurrence. It is alleged that the appellant fired at Ram Chandra Upadhyay, which missed him and hit Dhanjyoti Devi, mother of Kapildeo Singh. It is further alleged that the other accused persons started throwing bricks on Ram Chandra Upadhyay, which hit the ankle of his leg. 3. In this case, seven witnesses have been examined on behalf of the prosecution, whereas Dr. Hari Shankar Prasad Verma, Civil Assistant Surgeon has been examined as Court Witness No. 1. The informant Ram Chandra Upadhyay (PW 5) has supported the prosecution version of the occurrence and has alleged that the appellant fired at him, which did not hit him rather the pellets hit Dhanjyoti Devi, PW 3. The reason for the occurrence is that there is a land dispute between the informant and Ram Swaroop. It has also come in evidence that earlier an occurrence had taken place in which Ram Chandra Upadhyay was injured and the appellant and others were punished. Kanhaiya lost his hand wrist downwards in the said occurrence. The immediate cause for the occurrence as per the statement of the informant is that his goats had entered in the cauliflower field of Ram Swaroop and destroyed it. 4. PW 1 Kapildeo Singh, the son of the injured Dhanjyoti Devi, has similarly supported the case as made out in the First Information Report. He accepts the fact that there was no intention on behalf of the appellant to assault his mother, rather she received injuries because Kanhaiya Pandey missed his target i.e. the informant. 4. PW 1 Kapildeo Singh, the son of the injured Dhanjyoti Devi, has similarly supported the case as made out in the First Information Report. He accepts the fact that there was no intention on behalf of the appellant to assault his mother, rather she received injuries because Kanhaiya Pandey missed his target i.e. the informant. This witness also accepts the fact that there are cases pending between the parties and that he was also convicted in a criminal case. 5. Similarly, PW 2 Ram Prasad Sah claims to have seen the occurrence from his Khalihan. According to him, there is a dispute between Ram Chandra Upadhyay and Ram Swaroop, the dispute is because they have both purchased a piece of land vide a common sale deed, which has led to differences between them. This witness accepts that he was also convicted in a criminal case in which Kanhaiya Pandey was also a witness. He accepts that there are cases between Jagat Singh and Ram Swaroop and accepts that he has a dispute with the accused Kanhaiya Pandey. 6. PW 3 Dhanjyoti Devi, the injured, supports the prosecution case and accepts that she received injuries in the occurrence because Kanhaiya had missed his target. 7. PW 4 Gajendra Sah supports the occurrence, He claims that the accused persons including Kanhaiya Pandey came to the dalaan of the informant and were trying to remove his hut. 8. In this manner, all the prosecution witnesses support the prosecution case. The Trial Court has acquitted seven co-accused persons in this case. There is no supporting material to show that Ram Chandra Upadhyay received injuries in the said occurrence. Counsel for the appellant points out that there are discrepancies in the evidence of the eye-witnesses. According to Kapildeo Singh, the accused persons were assaulting Ram Chandra Upadhyay and others by throwing bricks which injured the chest and other parts of the body of Kapildeo Singh. This aspect of the matter is not supported by the other witnesses. It is also pointed out that PW 3 has stated that Ram Chandra Upadhyay had sold his cattle, which is contrary to the case made out by Ram Chandra Upadhyay and PW 2 Ram Prasad Sah. According to PW 3, all the accused persons were carrying arms and there were more than one round of fire during the occurrence. 9. It is also pointed out that PW 3 has stated that Ram Chandra Upadhyay had sold his cattle, which is contrary to the case made out by Ram Chandra Upadhyay and PW 2 Ram Prasad Sah. According to PW 3, all the accused persons were carrying arms and there were more than one round of fire during the occurrence. 9. These contradictions as pointed out by the Counsel for the appellant are minor in nature and do not go to the route of the allegations. It is contended that the oral evidence would indicate that there was no intention on behalf of the appellant to cause bodily injured to Dhanjyoti Devi, PW 3, she was injured by accident and as such, the facts do not indicate that a case is made out under Section 307 of the Indian Penal Code, there being no intention to kill PW 3. 10. On the other hand, the evidence of the doctor, who has been examined as Court Witness No. 1, would indicate that PW 3 had received grievous injury on her shoulder, which led to the fracture of the humorous bone. The doctor has relied on the X-ray and has also operated PW 3 and taken out the pellet embedded in her arm. In view of the aforesaid independent finding of the doctor, this Court would conclude that the appellant would be guilty for the offences punishable under Section 326 of the Indian Penal Code, read with Section 27 of the Arms Act. 11. Lastly, Counsel for the appellant submits that the occurrence has taken place in the year 1981 and as such, this Court should not send the appellant back to custody after more than three decades. This Court finds force in the submission, and therefore, concludes that the period for which the appellant has remained in custody is sufficient in the aforesaid facts to meet the ends of justice, provided the appellant pays a sum of Rs. 5,000/- by way of compensation to the injured Dhanjyoti Devi (PW 3) to be deposited in the Trial Court within a period of four months on receipt of notices, failure to deposit the compensation, would entail rigorous imprisonment for six months. 12. The Trial Court should issue notice to the appellant as well as PW 3 Dhanjyoti Devi, mother of Kapildeo Singh to receive the compensation amount from the Trial Court. 12. The Trial Court should issue notice to the appellant as well as PW 3 Dhanjyoti Devi, mother of Kapildeo Singh to receive the compensation amount from the Trial Court. In case, Dhanjyoti Devi is not alive, the compensation amount should be paid to PW 1 Kapildeo Singh, her son. The appellant would be discharged from the liabilities of the bail bonds only after payment of compensation amount. 13. In the result, this appeal is dismissed with the alteration in the conviction and sentence as mentioned aforesaid.