Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 86 (PAT)

Kamal Mukhiya v. State Of Bihar

2013-01-18

HEMANT KUMAR SRIVASTAVA

body2013
ORAL JUDGMENT 1. Heard learned counsel for the appellants as well as learned Addl. 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 19.7.2001 passed by learned Addl. Sessions Judge III, Saharsa in Sessions trial no. 176/1994 by which and whereunder he convicted appellants for the offence under section 307/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for three years. 3. The prosecution case, in brief, is that P.W. 8, Bouku Mukhiya, gave his fardbeyan to the Officer-in-charge of Saharsa police station in injured condition in government hospital, Sonbarsa on 19.4.1994 at about 10 p.m. to this effect that he had got some differences from his co–villagers, namely, Kamal Mukhiya and Foto Mukhiya and on 19.4.1994 at about 9 p.m. while he along with co–villagers namely, Shankar Sah and Shambhu Sah were returning to his home after purchasing Biri from the shop of his co–villager Ramotar Sah and reached near the house of Nathuni Sah and Dukha Mistry, the above stated Kamal Mukhiya and Foto Mukhiya along with Lahshan Yadav came there and caught him and started assaulting to him. He tried to flee from there but they put pistol on his chest and they fired of pistol causing fire arm injury on the elbow of his right hand and having got the aforesaid fire arm injury, he fell down on the earth. He further stated that after the aforesaid firing at the instigation of Kamal Mukhiya, rest persons assaulted him with the piece of bricks. He raised alarm which attracted Dukha Mistry, Nathuni Sah and several other persons and after that the aforesaid persons fled away from there. He was taken to hospital by his son, Chandeshwari Mukhiya and others. 4. On the basis of the above state fardbeyan of P.W. 8, Sonbarsa P.S. case no.32/1994 was registered for the offences under sections 341, 323, 324 and 307 of the Indian Penal Code and 27 of the Arms Act and formal first information report was drawn against the appellants for the offences punishable under the above stated sections and the matter was investigated by the police. After completion of investigation, police submitted charge sheet against the appellants for the offences punishable under sections 341, 323, 324 and 307 of the Indian Penal Code and 27 of the Arms Act. The cognizance of the offences was taken and the case of the appellants was committed to the court of sessions, in usual way. 5. All the appellants were put on trial and they were charged for the offences under section 307/34 of the Indian Penal Code to which they denied and claimed to be tried. 6. To prove its case prosecution examined, altogether, 12 witnesses and also got exhibited injury report of P.W. 8 as exhibit 1, opinion of doctor on injury report as exhibit 2, fardbeyan as exhibit 3, requisition of injury report as exhibit 4 and formal FIR as exhibit 5. The statements of the appellants were recorded under section 313 of the Cr.P.C in which they reiterated their innocence. 7. The appellants also got exhibited some documentary evidences to show previous enmity as well as antecedent of P.W.8 but no oral evidence was adduced on behalf of the appellants. 8. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order arguing that all material prosecution witnesses are related to each others and no reliance can safely be placed upon testimony of the aforesaid prosecution witnesses but in spite of that learned Addl. Sessions Judge III, Saharsa convicted the appellants. He further submitted that P.W. 8 is a notorious criminal and, as a matter of fact, he sustained fire arm injury somewhere else and implicated the appellants in false case. He further submitted that no case under section 307/34 of the IPC is made out but learned Addl. Sessions Judge III, Saharsa has convicted the appellants for the above stated offence. He further submitted that according to the prosecution case itself, alleged occurrence took place in the year 1994 and the appellants were convicted by learned Addl. Sessions Judge III, Saharsa in the year 2001 and appellants had already suffered a lot by remaining in jail custody during the course of trial and, therefore, no purpose would be served, if appellants are sent to jail to serve out their sentences. 9. On the other hand, learned Addl. Sessions Judge III, Saharsa in the year 2001 and appellants had already suffered a lot by remaining in jail custody during the course of trial and, therefore, no purpose would be served, if appellants are sent to jail to serve out their sentences. 9. On the other hand, learned Addl. Public Prosecutor appearing for the State, supported the impugned judgment of conviction and sentence order arguing that almost all material prosecution witnesses including P.W. 8 have supported the prosecution case and there is no scope for this court to interfere into the impugned judgment of conviction and sentence order. 10. On perusal of the lower court record, I find that P.W. 1 Ramautar Sahu, P.W. 2 Shankar Sahu, P.W. 3 Mantun Singh, P.W. 4, Dukha Mistry and P.W 5 Shambhu Sah have been declared hostile and they have not supported the prosecution story. 11. P.W. 6, Chandeshwari Mukhiya is the son of P.W.8 and he admitted that he had not seen the alleged occurrence rather he saw appellants fleeing from the place of the occurrence. This witness also stated that when he came at the place of the occurrence, he noticed injury on the person of P.W.8 and after that he brought P.W. 8 to hospital where his treatment was done and when P.W. 8 regained his consciousness, he disclosed the entire occurrence to him. 12. P.W. 10, Madan Sada supported the prosecution story and stated that he was returning from market and when he reached near the house of Dukha Mistry, he saw all the appellants who had encircled P.W. 8 and at that time, appellant no.1 Kamal Mukhiya was carrying gun in his hand and the appellant no.1 opened fire on P.W. 8 which hit on the right hand of P.W 8 who fell on the earth and after that rest appellants assaulted him with bricks. 13. P.W 11, Dinesh Paswan admitted in his deposition that he had not seen alleged occurrence by his own eyes rather he had heard about the alleged occurrence. 14. P.W 8 is the informant of this case and he supported the prosecution case saying that the appellant no.1 opened fire on him which caused injury on elbow of his right hand and when he fell down on earth other appellants assaulted him with bricks. 15. P.W 7, Dr. 14. P.W 8 is the informant of this case and he supported the prosecution case saying that the appellant no.1 opened fire on him which caused injury on elbow of his right hand and when he fell down on earth other appellants assaulted him with bricks. 15. P.W 7, Dr. Madhav Prasad Mandal stated that P.W 8 was examined by him on the requisition of Sri Ramashish Singh, SI of Sonbarsa police station on 19.4.1994 and he found injury on his person. The aforesaid witness stated that one injury was caused by fire arm. 16. P.W 9, Dr. R.P.Singh stated that on 19.4.1994 he was posted at Sadar hospital, Sonbarsa as Civil Assistant Surgeon and on 7.7.1994 he operated injury of P.W 8 and a bullet was extracted from his right arm area. 17. P.W 12 is the Investigating officer of this case and he stated that on 19.4.1994, he got OD slip from Saharsa government hospital and for verification of the aforesaid OD slip, he along with ASI, Prem Kumar Sagar, went government hospital, Sonbarsa and recorded fardbeyan of P.W 8 . This witness proved fardbeyan of P.W 8 as exhibit 3. He further stated that he found injury on the person of P.W 8 and issued requisition for his medical examination. He took the charge of investigation of the case and recorded the statements of prosecution witnesses and after completion of investigation, he submitted charge sheet against the appellants. 18. On perusal of above stated evidences, it is apparent that P.W 8 and P.W 10 have fully supported the prosecution case and have clearly stated that it was the appellant no.1 who opened fire on P.W 8 causing fire arm injury on him. The statements of P.W 7 and P.W 8 coupled with exhibit 1 and exhibit 2 corroborate testimony of P.W. 10 and P.W 8. Therefore, it is clear that the prosecution has successfully proved that P.W 8 had sustained fire arm injury at the hands of the appellant no.1 on the alleged date of the occurrence and the prosecution has also successfully proved this fact that the appellants no.2 and 3 had assaulted P.W 8 with bricks. 19. Now, the question as to whether the offence under section 307/34 of the IPC is attracted in this case or not. 20. 19. Now, the question as to whether the offence under section 307/34 of the IPC is attracted in this case or not. 20. According to the prosecution case, only single fire arm injury was made by the appellant no.1 which hit on elbow of right hand of P.W 8 and having sustained the aforesaid injury, P.W 8 fell down on earth and after that others appellants assaulted him with bricks. P.W 8 stated that when he fell down on earth having sustained fire arm injury, appellants uttered that he had not been died and after that other appellants assaulted him with bricks and, therefore, the aforesaid facts, clearly suggest that all the appellants had shared intention to commit murder of P.W 8 and, therefore, a clear cut case under section 307/34 of the IPC is made out and, the learned trial court has rightly convicted the appellants for the offence punishable under section 307/34 of the IPC . 21. It has been argued on behalf of the appellants that alleged occurrence took place in the year 1994 and the appellants were convicted in the year 2001 and after lapse of such long period, it would not be proper to send the appellants behind the bar to serve out their sentences. 22. Admittedly, alleged occurrence took place in the year 1994 and the appellants faced trial before the learned trial court for near about seven years and after that they were convicted and sentenced by the learned trial court and then, they preferred this appeal in the year 2001 and since then this appeal was pending. The impugned judgment does not disclose the factum of previous conviction of the appellants and, therefore, it appears that the appellants had no bad antecedent and, therefore, I do agree with the submission of learned counsel for the appellants that sending the appellants behind the bar after such a long gap would serve no purpose and period already undergone by them in course of trial and imposition of fine on appellants would meet the ends of justice. 23. Accordingly, all the appellants are sentenced for the period already undergone by them and a fine of Rs 5,000/- each is imposed upon all the appellants and in default of payment of fine, all the appellants shall undergo simple imprisonment for the period of six months. 23. Accordingly, all the appellants are sentenced for the period already undergone by them and a fine of Rs 5,000/- each is imposed upon all the appellants and in default of payment of fine, all the appellants shall undergo simple imprisonment for the period of six months. This criminal appeal stands dismissed with the modification in the sentence order in the manner as stated above. The learned trial court shall take effective step for realization of the aforesaid fine from appellants and shall make payment of the aforesaid fine to the informant of this case. Appeal dismissed.