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2013 DIGILAW 161 (PAT)

Nagendra Prasad Singh v. State of Bihar

2013-02-04

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT (ORAL) Hemant Kumar Srivastava, J. Heard learned counsel appearing for the appellant as well as learned Additional Public Prosecutor for the State and perused the record. 2. This criminal appeal has been preferred against the judgment of conviction and sentence order dated 28.09.2001 passed by Sri Shio Murat Ram, 5th Additional Sessions Judge, Samastipur in Sessions Trial No. 221 of 1999 by which and whereunder he convicted the appellant for the offence punishable under Sections 307 of the Indian Penal Code and 27 of the Arms Act and sentenced him to undergo rigorous imprisonment for a period of seven years under Section 307 of the Indian Penal Code and three years rigorous imprisonment under Section 27 of the Arms Act and directed that both the above stated sentences would run concurrently. 3. In brief, the prosecution case, is that PW I, Devendra Prasad Singh gave his Jardbeyan to A.S.I. of Mahnar Police Station on 25.08.1993 at 11:30 a.m. in injured condition at Mahnar Hospital to this effect that on the same day at about 08:30 a.m. while he along with his wife (PW 2) and his son, namely, Kundan Kumar Singh were sitting in his courtyard, his younger brother, appellant.. Nagendra Prasad Singh came there and made a complaint that his son, Chandan had plucked crop of Makai from his field upon which PW 1 stated that he would ask and teach lesson to Chandan Kumar but appellant Nagendra Prasad Singh was not satisfied and went into his house and climbed on the boundary wall and after that fired of his regular gun which hit at right portion of his head and he fell down there. The witnesses came there having heard the sound of firing. 4. On the basis of aforesaid fardbeyan. Patori P.S. Case No. 85 of 1993 under Sections 324. 307 of the Indian Penal Code and 27 of the Arms Act was registered and accordingly, formal first information report under the above stated sections was drawn against the appellant. The matter was investigated by the Investigating Officer and after completion of investigation. Investigating Officer submitted charge-sheet against the appellant. On being receipt of the charge-sheet the cognizance of the offence was taken and the case was committed to the Court of Sessions in usual way. 5. The matter was investigated by the Investigating Officer and after completion of investigation. Investigating Officer submitted charge-sheet against the appellant. On being receipt of the charge-sheet the cognizance of the offence was taken and the case was committed to the Court of Sessions in usual way. 5. The appellant was put on trial and accordingly, he was charged for the offence3 punishable under Sections 307 of the Indian Penal Code and 27 of the Arms Act to which he denied and claimed to be tried. 6. In support of its case, the prosecution examined, altogether, four witnesses and also got exhibited signature of PW 1 as Exhibit-I. The statement of appellant was recorded under Section 313 of the Cr PC in which he stated that PW 1 lodged the case on account of previous enmity. No evidence was adduced on behalf of the appellant in support of his defence. The learned trial Court having considered the materials available on the record passed the impugned judgment of conviction and sentence order in the manner as stated above. 7. Learned counsel appearing for the appellant assailed the impugned judgment of conviction and sentence order arguing that prosecution has not brought the' so• called injury report of PW 1 nor prosecution produced the doctor who is said to have examined the PW 1 after the alleged occurrence and. therefore, prosecution miserably failed to prove this fact that PW 1 sustained fire-arm injury on the alleged date of occurrence. It is further contended by him that fardbeyan of PW 1 has also not been legally proved by the prosecution and moreover, except PW 1 and his wife. PW 4, not a single independent prosecution witness came forward to support the prosecution story and, therefore, learned trial Court committed error in convicting and sentencing the appellant. 8. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that PW 1. specifically, stated that he sustained injury on his person and the aforesaid statement of PW 1 is supported by PW 4 and. therefore, it is well established that the PW I had sustained fire-arm injury. 9. 8. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that PW 1. specifically, stated that he sustained injury on his person and the aforesaid statement of PW 1 is supported by PW 4 and. therefore, it is well established that the PW I had sustained fire-arm injury. 9. So far as non-production of injury report of PW I is concerned, it is submitted by learned Additional Public Prosecutor that PW 3, specifically, stated that original injury report of PW 1 had been lost and he had obtained duplicate injury report of PW 1 but the aforesaid duplicate injury report of PW 1 was not visible. Learned Additional Public Prosecutor further submitted that PW 4 also admitted in his cross-examination that he had not given the name of the doctor in charge-sheet. So even if, the injury report of PW 1 has not been brought on the record and the doctor was not examined by the prosecution, then also, the aforesaid fact does not make any difference because due to laxity of the Investigating Officer, the prosecution would not suffer. 10. Admittedly, only PW 1 and PW 4 are witnesses on the point of occurrence and both the witnesses have supported the story of firing. Furthermore, PW 1 stated that he sustained fire-arm injury and after that he was taken to Mahnar Hospital from where he was referred to P.M.C.H., Patna where his treatment was done. This witness also supported this fact that his statement was recorded by A.S.I. at Mahnar Hospital. This witness proved his signature on fardbeyan as Exhibit-2. This witness admitted that appellant had also lodged criminal case against him for the occurrence of the same day. This witness also admitted that the present case and the aforesaid counter case were compromised by the parties. This witness further stated that he remained in P.M.C.H., Patna only for one day. This witness denied the sub- I mission of the defence that he had brought the case on the basis of fabricated injury report. 11. PW 3. Ram Kumar Choudhary is Investigating Officer of this case. This witness stated that he took the charge of the investigation and inspected the place of occurrence and later on, he handed over charge of investigation to PW 2. Niraj Kumar who completed the investigation and submitted charge-sheet. 12. 11. PW 3. Ram Kumar Choudhary is Investigating Officer of this case. This witness stated that he took the charge of the investigation and inspected the place of occurrence and later on, he handed over charge of investigation to PW 2. Niraj Kumar who completed the investigation and submitted charge-sheet. 12. Admittedly, the name of doctor who is said to have examined PW 2 was not given in the charge-sheet nor the aforesaid doctor was examined by the prosecution. Furthermore, no attempt was taken by the prosecution to bring injury report of injured or any relevant document relating to treatment of PW 1 on the record. Therefore, in absence of injury report as well as statement of doctor, it is very difficult to come on this finding that PW 1 had sustained fire-arm injury. 13. No doubt, to constitute an offence under Section 307 of the Indian Penal Code, the bodily injury capable of causing death is not essential and Section 307 of the Indian Penal Code makes a distinction between the act of the accused and its result, if any and the Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section and. therefore, even if in the present case, prosecution failed to prove this fact that LPW 1 had sustained fire-arm injury, then also. it has to be seen as to whether appellant had made firing with intention or knowledge to kill the PW 1 or not. As I have already stated that on the point of firing only PW 1 and PW 4 are material witnesses and they stated that appellant had made firing causing fire-arm injury to PW 1 but admittedly, prosecution could not succeed to prove this fact that PW 1 had sustained fire-arm injury and not a single independent witness has come forward to support the story of filing. Apart from this, the prosecution has not legally proved the fardbeyan of PW 1. No doubt, PW 1 has proved his signature on fardbeyan as Exhibit-I but the contents of fardbeyan have not been legally proved by the prosecution. Moreover, when there is specific case of prosecution that PW I sustained fire-arm injury, then prosecution was duty bound to prove this fact that due to firing made by the appellant. No doubt, PW 1 has proved his signature on fardbeyan as Exhibit-I but the contents of fardbeyan have not been legally proved by the prosecution. Moreover, when there is specific case of prosecution that PW I sustained fire-arm injury, then prosecution was duty bound to prove this fact that due to firing made by the appellant. PW 1 sustained fire-arm injury and when the prosecution could not succeed to prove the aforesaid fact, it becomes doubtful that the appellant had made firing at the time of alleged occurrence and in my view, no reliance can safely be placed on the testimony of PW 1 and PW 4 on the point of manner of occurrence, particularly, in the circumstances when previous enmity was admitted by the PW I in his deposition. 14. On the basis of aforesaid discussions. I am of the opinion that prosecution could not succeed to prove its case beyond all shadow of reasonable doubts and, therefore. I have no option except to allow this criminal appeal. 15. Thus, this criminal appeal is allowed and the impugned judgment of conviction and sentence order dated 28.09.2001 are, hereby, set aside. The appellant is on bail. He is discharged from the liabilities of his bail bonds. Appeal allowed.