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2013 DIGILAW 37 (PAT)

Man Rup Dusadh v. State Of Bihar

2013-01-09

HEMANT KUMAR SRIVASTAVA

body2013
ORAL JUDGMENT This criminal appeal has been preferred by the appellant, Man Rup Dusadh against the judgment of conviction dated 01.03.2001 as well as sentence order dated 02.03.2001 passed by Sri S. N. Yadav, 3rd Additional Sessions Judge, Buxar in Sessions Trial No. 438 of 1989 by which and whereunder he convicted the appellant under Sections 307, 452 of the Indian Penal Code and 27 of the Arms Act and ordered to suffer rigorous imprisonment for ten years for the offence under Section 307 of the Indian Penal Code, rigorous imprisonment for six months for the offences under Sections 452 of the Indian Penal Code and 27 of the Arms Act each and furthermore, he ordered that all the sentences would be run concurrently. 2. P.W.1, Bhikhari Ram gave his Ferdbeyan on 30.11.1986 to S.I. of Koran Sarai Police Station to this effect that on the same day at about 06:00 P.M. while he was doing his duty in the premises of high school, at about 08:00 P.M. someone pushed the door of his room from the outside upon which he opened the door and found the appellant having armed with gun standing there. The appellant tried to enter into the room and when he stopped him, the appellant opened fire on him but fortunately, he escaped unhurt and raised alarm. His alarm attracted Motilal Yadav, Dhamari Dusadh and several others and when witnesses came there, the appellant fled away from there. The reason behind the alleged occurrence is said to be previous enmity as well as illicit relation of appellant with wife of Bharat Dusad. 3. On the basis of aforesaid Ferdbeyan, formal first information report was drawn against the appellant for the offences punishable under Sections 307, 448 of the Indian Penal Code and 27 of the Arms Act. The police investigated the case and after completion of investigation, charge sheet was laid against the appellant for the offences punishable under Sections 307, 452 of the Indian Penal Code and 27 of the Arms Act. The cognizance of the offences was taken and the case was committed to the court of sessions in usual way. 4. The appellant was put on trial and charges under Sections 307, 452 of the Indian Penal Code and 27 of the Arms Act were framed against him. The appellant denied the charges and claimed to be tried. 5. The cognizance of the offences was taken and the case was committed to the court of sessions in usual way. 4. The appellant was put on trial and charges under Sections 307, 452 of the Indian Penal Code and 27 of the Arms Act were framed against him. The appellant denied the charges and claimed to be tried. 5. To substantiate the charges, prosecution examined altogether two witnesses and also proved the signature of P.W.1 on his Ferdbeyan as Exhibit-1. 6. The statement of appellant was recorded under Section 313 of the Cr.P.C.. No evidence was adduced on behalf of the appellant but from perusal of the statement recorded under Section 313 of the Cr.P.C. as well as trends of cross examination of prosecution witnesses, it appears that defence of the appellant is total denial of the prosecution story. 7. The learned trial court convicted the appellant in the manner as stated above only on the basis of statements of informant and one other witness. 8. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and sentence order arguing that except P.W.1, none of the prosecution witness supported the prosecution story and moreover, P.W.1 did not sustain any firearm injury. He further submitted that Investigating Officer of this case was not examined and non examination of the Investigating Officer has caused prejudiced to the defence. He further submitted that P.W.1 has stated that the appellant fired twice and first firing hit on the Almirah whereas second firing hit on a Khati but Investigating Officer did not seize the Almirah and Khati. He also drew my attention towards the deposition of prosecution witness no. 2 who stated that he reached on the place of occurrence but he did not find any sign of firing on the wall. Learned counsel appearing for the appellant further submitted that the statement of prosecution witness no. 2 makes the prosecution case doubtful. He also submitted that admittedly, there was previous enmity between the parties. So, possibility of false implication of the appellant cannot be ruled out and moreover, the prosecution could not succeed to prove his case beyond all shadow of reasonable doubts but in spite of that the learned trial court convicted the appellant in the manner as stated above. 9. He also submitted that admittedly, there was previous enmity between the parties. So, possibility of false implication of the appellant cannot be ruled out and moreover, the prosecution could not succeed to prove his case beyond all shadow of reasonable doubts but in spite of that the learned trial court convicted the appellant in the manner as stated above. 9. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and sentence order arguing that conviction can be based on a solitary statement of witness, if the aforesaid statement inspires confidence to the court. 10. As I have already stated that only two prosecution witnesses have been examined in this case and the Investigating Officer has not been examined in this case. No doubt, P.W.1, the informant of this case, has supported the prosecution case in his statement but admittedly, he did not sustain any firearm injury and furthermore, the aforesaid witness stated that the firing hit on Almirah as well as Khati. P.W.2. stated in his deposition that he did not find any injury on the person of P.W.1. nor any sign of firing on the wall. So, the statement of P.W.1. is not corroborated by the statement of P.W.2. Non examination of the Investigating Officer is fatal to the prosecution case because non examination of Investigating Officer has caused serious prejudice to the defence and, therefore, I am of the opinion that the prosecution could not succeed to prove his case beyond all shadow of reasonable doubts and the learned trial court has committed error in convicting and sentencing the appellant. 11. On the basis of aforesaid discussions, this criminal appeal is allowed and impugned judgment of conviction dated 01.03.2001 as well as sentence order dated 02.03.2001 are, hereby, set aside. The appellant is on bail. He is discharged from the liability of his bail bonds. Appeal allowed.