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2013 DIGILAW 1356 (PAT)

Kamal Biswas v. State of Bihar

2013-12-02

ANJANA PRAKASH

body2013
JUDGMENT Anjana Prakash, J. 1. The appellants have been convicted under Section 307/34, IPC and sentenced to R.I. for three years by a judgment dated 29.11.1999 and 30.11.1999 passed by the 4th Additional Sessions Judge, Purnea in Sessions Case No. 206 of 1992/17 of 1998. 2. The case of the informant Jyotish Chandra Jha is that on 15.12.1990 while he was sleeping in his house at about 12 in the night his servant called him and on hearing his voice woke up and came with a torch to the door. In the light of torch he saw appellants along with others, whereas appellant Suresh Biswas was with a pistol, Domi Biswas with a knife and Kamal Biswas with a gun. On the order of Kamal Biswas, Suresh Biswas fired his pistol but it misfired. The accused persons tried to surround the informant but he pushed them and fled towards the village raising a hulla. When witnesses gathered the accused persons ran away. 3. During trial the prosecution examined six witnesses in all. Out of whom, PW 1 Saini Choudhary is the servant of the informant and he stated that on the night of occurrence when he gone to attend the call of nature, some miscreants caught him and took him to the house of his employer and told him to call him. At this, he called his employer, the informant, and then the occurrence took place. He identified only appellant Kamal Biswas. 4. PW 2 Krishan Kumar Jha is the brother of the informant. He stated that on the night of occurrence he came out of the house on voice of his servant Saini Choudhary and then the occurrence is said to have taken place. He identified the appellants by face since they used to come to his village. 5. PW 3 Dhunmun Mahto and PW 4 Dasrath Mahto are the neighbours of the informant, who saw the miscreants fleeing away from the place of occurrence. The informant allegedly disclosed the name of the appellants to them. 6. PW 5 Anman Devi is the mother of the informant. She also supported the factum of the occurrence and she identified the appellants. She also admitted that appellant Kamal Biswas was the full brother of Radha Biswas, against whom the informant had made a complaint and that she knew them because they used to come to her village. 7. 6. PW 5 Anman Devi is the mother of the informant. She also supported the factum of the occurrence and she identified the appellants. She also admitted that appellant Kamal Biswas was the full brother of Radha Biswas, against whom the informant had made a complaint and that she knew them because they used to come to her village. 7. PW 6 Jyotish Chandra Jha is the informant of the case, who has repeated the version given out by him in the First Information Report. In cross-examination he stated that Jagdish Mandal was the Mukhiya of the Panchayat at the time of occurrence and he had made a complaint against him to the Collector. 8. The learned counsel for the appellants submits that admittedly the pistol had misfired and there was no repetition of firing and hence no offence under Section 307/34, IPC is made out. 9. Considering the weak nature of identification and the admitted enmity between the parties, it would be unsafe to rely on the sole testimony of the interested witnesses. 10. Hence, the appeal is allowed and the order of conviction and sentence passed against the appellants on 29.11.1999 and 30.11.1999 by the 4th Additional Sessions Judge, Purnea in Sessions Case No. 206 of 1992/17 of 1998 is set aside. The appellants are discharged from the liabilities of their respective bail bonds. Appeal allowed.