HARI NANDAN RAI & KEDAR RAI v. THE STATE OF BIHAR

Additional Sessions Judge, Begusarai whereby the Trial Court has found and held the appellants guilty for the offences punishable under Section 307/34 of the Indian Penal Code and Section 27 of the Arms Act. Both the appellants have been convicted to undergo rigorous imprisonment for ten years for the offences under Sections 307 of the Indian Penal Code and three years for the offences under Section 27 of the Arms Act.

2. The occurrence took place on 06.11.1982 at 9.45 Patna High Court CR. APP (SJ) No.9 of 2000 dt.13-07-2012 P.M. The informant (since deceased) had given his fard-beyan on the same night alleging therein that while he was returning after offering Puja from the Thakurbari, he saw the appellants armed with pistol and the appellant, Kedar Rai fired which hit his right arm, thereafter Harinandan Rai fired which did not hit the informant at all. Immediately, thereafter, it is said that Ram Udit Rai and P.W.1 Shiv Jugat Rai came to the place of occurrence and took him to the hospital for treatment.

3. During investigation, it is admitted by the witnesses specifically by P.W.1 Shiv Jugut Rai that the reason for the occurrence was the land dispute. P.W. 1 Shiv Jugut Rai has stated that he heard the sound of firing and when he reached the place of occurrence, he saw two accused persons running away from the place of occurrence. He has also stated that Ram Udit Rai (P.W.2) and Mahanth Ram Priya Das (P.W.3) came at the place of occurrence. He has also stated that Sunil Kumar Rai (P.W. 4) and Mahanth Ram Priya Das (P.W.3) were living in the Thakurbari and they too came to the place of occurrence.

4. P.W.2 Ram Udit Rai is a chance witness. In his examination-in-chief, he has sated that while he was returning from his shop, he was carrying a torch and in the light of the torch he saw the appellants armed with pistol and heard the sound of firing. Patna High Court CR. APP (SJ) No.9 of 2000 dt.13-07-2012 There is nothing in his cross-examination which can help the appellants.

5. P.W.3 Ram Priya Das came to the place of occurrence after hearing the sound of firing and saw the appellants fleeing away. He admits that there was enmity with the father of the appellants, and the father of the appellants had filed a criminal case, in which he was acquitted.

6. P.W. 4 Sunil Kumar Rai had too come to the place of occurrence when he heard the sound of firing and saw these two appellants running away from the place of occurrence.

7. P.Ws.5, 6, 10 and 11 are formal witnesses and have proved Exhibit I, the formal First Information Report, the signatures on the fard-beyan, Exhibit 1/1 and the injury reports which are Exhibits 5 and 6.

8. P.W.8 Jugut Narayan Rai is a relative of the deceased. He has proved Exhibit I , II and III i.e. seizure list of the clothes of the informant, the protest petitions and other petitions filed by the informant as also the signature on the petitions filed by the informant. He admits that he was not examined by the Investigating Officer during investigation.

9. P.W.9 Mani Jee Singh is the Investigating Officer of this case, who supports the prosecution version inasmuch as he Patna High Court CR. APP (SJ) No.9 of 2000 dt.13-07-2012 accepts that he had examined P.Ws. 1 to 4 during investigation.

10. Counsel appearing on behalf of the appellants submits that the occurrence has taken place at 9.45 P.M. and since there was no source of light, the identification of the appellants becomes doubtful. This argument, however, cannot be accepted by this Court for two reasons: firstly, since there was land dispute between the parties, it would appear that they were well known to each other and , secondly, even if, there was no electric light at that time, it is still possible to identify some one well known at a close distance. The second submission is that P.W.2, who is a chance witness, says that he saw the occurrence in torch light would just dispel the arguments on behalf of the appellants.

11. Referring the injury report of P.W.7, Dr. Janardan Prasad Singh, Counsel for the appellants, submits that the opinion of the Doctor that the informant had fractured his humorous bone seems, to be based on a clinical examination, as there is no X-ray to support this aspect of the mater, and, as such, this Court should not believe the opinion of the Doctor, when he states that the injury is grievous in nature. This Court, considering the submissions aforesaid, comes to the conclusion that the opinion of the Doctor ought to have been supported by an X-ray report which confirmed his finding as nobody can be treated for fracture without Patna High Court CR. APP (SJ) No.9 of 2000 dt.13-07-2012 there being an X-ray.

13. Having considered the entire evidence that has come in this case as discussed above, this Court concludes that the appellants are guilty for offences under Section 307 of the Indian Penal Code, but taking into consideration the fact that the occurrence took place in the year 1982 and 30 years have passed since the occurrence took place, this Court modifies the sentence to period already undergone by the appellant no.1. Kedar Rai is further directed to deposit a fine of Rs. 5,000/- to be paid to the heirs of Shiv Nandan Rai who has died in the alleged occurrence before the Trial Court. The Trial Court may issue notices to the appellant Kedar Rai to deposit the said fine and in default of payment of fine, the appellant is directed to undergo rigorous imprisonment for one year.

14. This appeal is accordingly dismissed with the modification in the sentence.

15. The appellant Harinandan Rai is discharged from the liabilities of the bail bonds furnished earlier in this case, the appellant Kedar Rai will be discharged from the liabilities of the bail bonds after payment of fine. Vats/- (Sheema Ali Khan, J.)