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2012 DIGILAW 971 (PAT)

Ramashish Choudhary v. State of Bihar

2012-07-16

SHEEMA ALI KHAN

body2012
SHEEMA ALI KHAN, J.:–This appeal is directed against the judgment and order dated 23.9. 2000 passed in Sessions Trial No.114 of 1987 by the 2nd Additional District and Sessions Judge, Siwan, convicting the sole appellant to undergo rigorous imprisonment for seven years under section 307 of the Indian Penal Code and rigorous imprisonment for one year under section 27 of the Arms Act. 2. Two persons were put on trial. Nagendra Choudhary has been acquitted in this case and whereas the appellant has been convicted. The prosecution story as per the statement of Harendra Chaudhary, who is the informant in this case, is that on 22.8.1986 at about 4 p.m. when he was returning to his house, appellant, namely, Ramashish Chaudhary along with Harendra Chaudhary and one Shambhu Chaudhary, did not allow him to pass, saying that the route he was taking was not a “Rasta”. There was hot exchange of words and thereafter Shambhu Chaudhary, Ramashish Chaudhary opened fire at the informant hitting the left side of the rib-cage. It is also alleged that when he tried to run away Shambhu Chaudhary fired at him which hit his chest. Thus, the condition of the injured Harendra Chaudhary became serious and, as such, the then Judicial Magistrate was called to take his dying declaration which is marked as Ext.3. In the statement made at Ext.3 at 10 p.m. recorded by the Judicial Magistrate, Harendra Chaudhary has stated that he was accompanied by Birendra Chaudhary. On order being given by Ramashish, Birendra Chaudhary did not fire at him, therefore, Ramashish fired which did not hit him, Ramashish thereafter chased the informant and fired from a close range, which hit his wrist. Again it is alleged that Shambhu Chaudhary fired at the informant. It is also alleged that Rajendra Chaudhary assaulted the informant with lathi. 3. I will first refer the evidence of the doctor, P.w.9 in this case. He has examined the informant on 22.8.1986 at 9-30 p.m. and found two wounds which are, according to the doctor, grievous in nature. Thus, it would appear from the statement of the doctor as well as the other witnesses informant was grievously injured. The manner of occurrence cannot be doubted in view of the fact that Ext.3 is the subsequent statement given before the Judicial Magistrate. Thus, it would appear from the statement of the doctor as well as the other witnesses informant was grievously injured. The manner of occurrence cannot be doubted in view of the fact that Ext.3 is the subsequent statement given before the Judicial Magistrate. Even though it is not a dying declaration because the man did not die, but there is an expectation that a person who is expected to die would speak the truth. Therefore, it is for this reason the court has treated the statement of the informant to be a dying declaration. 4. Apart from the aforesaid statement given by the informant several other witnesses have been examined to substantiate the prosecution version. P.W.1, P.W.5 and P.W.7 have been mentioned to be the eye witnesses to the occurrence in the F.I.R. P.W.1 supports the prosecution case in his statement. Learned counsel for the appellant points out that at para-9 he has stated that there was no dispute with respect to the use of the way earlier to this occurrence. Learned counsel further points out that this witness states at para-7 that he did not hear the sound of firing. On the basis of the aforesaid contradiction made in the statement of P.W.1, this court finds that two facts emerge. 5. Firstly, although P.W.1 reached the place of occurrence as soon as the firing took place as a result of alarm being made by the family members of the informant, it cannot be said that he actually saw the firing or he could not have heard the sound of firing. The second fact that is apparent is that there was no previous dispute regarding the use of way between the informant and the appellant and that the above occurrence took place on the spur of the moment. 6. P.W.2 is the uncle of the informant Harendra Chaudhary. He supports the prosecution version and says that he did not witness the occurrence. It is apparent that P.W.2 was examined on 2.6.1992 and again recalled on 28.8.1998 for cross-exanimation, as a compromise petition has been filed by the parties. On re-examination he admits not to have seen the occurrence and also claims that he did not see the person who fired at the informant. 7. P.W. 4 has supported the prosecution version and claims to be a chance witness to the occurrence. On re-examination he admits not to have seen the occurrence and also claims that he did not see the person who fired at the informant. 7. P.W. 4 has supported the prosecution version and claims to be a chance witness to the occurrence. In his cross-examination at paragraph-4, he, however, said that when he reached the place of occurrence, he saw the accused persons running away and also says that family members of Harendra Chaudhary had gathered around him. It is submitted on behalf of the appellant that these witnesses, therefore, did not see the actual manner of assault. 8. P.W. 4, Ram Deni Chaudhary claims to be related to both sides. He also claims to be a chance witness, as he has stated that he was grazing the cattle in the field when he heard the sound of firing. He ran to the place of occurrence and found that the injured(P.W.8) was lying on the ground and two persons were running away from the place of occurrence. 9. According to these witnesses, P.W. 8 was lying in the courtyard belonging to the appellant. P.W. 5, Jag Lal Chaudhary, is named in the First Information Report as an eye witness. When he heard the sound of raised voices, he went to the place of occurrence and claims to have seen the entire occurrence. He took P.W. 8 to the Hospital for treatment and remained with him at the hospital till 8-30 p.m. The counsel for the appellant has not been able to dislodged the evidence of these witnesses. Except to submit that a new case had been introduced at paragraph 6 when the witnesses particularly P.W.8 has said that when heard the sound of a commotion, he went to the place of occurrence, but this fact has been explained by saying that after going to the place of occurrence he asked the ladies not to quarrel but a couple of witnesses have stated that this occurrence commenced with the argument between the ladies of the two houses which resulted in the dispute over the “Rasta”. 10. P.W. 6 is mother of P.W.8. She claims to have seen the occurrence and says that her son was shot at on the chest by the appellants. P.W. 8, Harendra Chaudhary, informant, has supported the First Information Report. 10. P.W. 6 is mother of P.W.8. She claims to have seen the occurrence and says that her son was shot at on the chest by the appellants. P.W. 8, Harendra Chaudhary, informant, has supported the First Information Report. In the cross-examination he has supported the fardbeyan and has stated that he was under treatment for about 24 days in the hospital after having received injuries. 11. Learned counsel for the appellant submits that apart from the statement made by Harendra Chaudhary (P.W.8), it would appear that all the witnesses came to the place of occurrence after it had taken place and, as such, they are not in a position to describe the actual manner of the occurrence. It is submitted that the witnesses have tried to improve the case by saying that it began with the argument and eventually ended up in the manner described in the First Information Report. Learned counsel further pointed out that P.W.7, one of the eye witnesses mentioned by the informant was not cross-examined and P.W.1 had stated that he did not hear the sound of firing which indicates that he was not present at the place of occurrence. Learned counsel for the appellant also submits that on recall of P.W. 2 the informant has stated that they have not been able to identify the person who opened fire upon P.W. 8 and , as such, this Court should hold that the prosecution has not been able to prove its case. 12. On consideration of the evidence it is clear that the occurrence took place on the spur of the moment and both the parties are closely related to each other. It appears that incident began when a dispute arose between the ladies of the two houses and reached at the level of appellant who assaulted informant by opening fire. The injuries are simple in nature which is indicative of the fact that there was no intention to kill. The entire occurrence took place on the spur and the heat of the moment. This Court is not inclined to rely on the evidence led in this case after recall of the witnesses, which was done after a compromise was filed in 1998, i.e., six years after evidence was led in this case. 13. The entire occurrence took place on the spur and the heat of the moment. This Court is not inclined to rely on the evidence led in this case after recall of the witnesses, which was done after a compromise was filed in 1998, i.e., six years after evidence was led in this case. 13. Having considered the entire material this Court is of the opinion that no case is made out regarding conviction made under Section 307 of the Indian Penal Code, at best this case can fall under Section 326 of the Indian Penal Code and, as such, conviction of the appellant under Section 307 of the Indian Penal Code is set aside and converted into one under Section 326 of the Indian Penal Code. 14. This Court may also consider that the occurrence took place in the year 1986, 26 years have elapsed since the occurrence took place. There has been compromise between the parties which although cannot be legally accepted, but has been accepted by the parties themselves. This Court may also consider, that the appellant has remained in custody for one year and one and half months. In view of the said facts, I hold that the period undergone by the appellant can be treated to be sufficient punishment to meet the ends of justice in this particular case. The appellant shall deposit a fine of Rs.1000/- in court to be paid to the informant Harendra Chaudhary within a period of five months, failing which the appellant will have to undergo further simple imprisonment for three months. 15. This appeal is partly allowed in the aforesaid terms. 16. The appellant will be discharged from the liabilities of the bail bond after depositing the fine.