Patna High Court
Case Details
Patna High Court CR. APP (SJ) No.341 of 2001 dt.04-02-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No.341 of 2001 (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) =========================================================== Nagendra Prasad Singh, S/O-Late Binda Singh, resident of village Bhaghra, P.S. Patori, District-Samastipur The State Of Bihar Versus .... .... Appellant/s .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Vikram Deo Singh Mr. Sada Nand Roy For the State : Mr. Sujit Kumar Singh (A.P.P.) =========================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA ORAL JUDGMENT Date: 04-02-2013 1. 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
Legal Reasoning
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 Patna High Court CR. APP (SJ) No.341 of 2001 dt.04-02-2013 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 P.W.1, Devendra Prasad Singh gave his Ferdbeyan 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 (P.W.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 plugged crop of Makai from his field upon which P.W.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 Ferdbeyan, 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 Patna High Court CR. APP (SJ) No.341 of 2001 dt.04-02-2013 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 offences 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 P.W.1 as Exhibit-1. The statement of appellant was recorded under Section 313 of the Cr.P.C. in which he stated that P.W.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 P.W.1 nor prosecution produced the doctor who is said to have examined the P.W.1 after the alleged occurrence and, therefore, prosecution miserably failed to prove this fact that P.W.1 sustained firearm injury on the alleged date of occurrence. It is further contended by him that Patna High Court CR. APP (SJ) No.341 of 2001 dt.04-02-2013 Ferdbeyan of P.W.1 has also not been legally proved by the prosecution and moreover, except P.W.1 and his wife, P.W.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 P.W.1, specifically, stated that he sustained injury on his person and the aforesaid statement of P.W.1 is supported by P.W.4 and, therefore, it is well established that the P.W.1 had sustained firearm injury. 9. So far as non production of injury report of P.W.1 is concerned, it is submitted by learned Additional Public Prosecutor that P.W.3, specifically, stated that original injury report of P.W.1 had been lost and he had obtained duplicate injury report of P.W.1 but the aforesaid duplicate injury report of P.W.1 was not visible. Learned Additional Public Prosecutor further submitted that P.W.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 P.W.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 Patna High Court CR. APP (SJ) No.341 of 2001 dt.04-02-2013 prosecution would not suffer. 10. Admittedly, only P.W.1 and P.W.4 are witnesses on the point of occurrence and both the witnesses have supported the story of firing. Furthermore, P.W.1 stated that he sustained firearm 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 Ferdbeyan 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 submission of the defence that he had brought the case on the basis of fabricated injury report. 11. P.W.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 P.W.2, Niraj Kumar who completed the investigation and submitted charge sheet. 12. Admittedly, the name of doctor who is said to have examined P.W.2 was not given in the charge sheet nor the aforesaid Patna High Court CR. APP (SJ) No.341 of 2001 dt.04-02-2013 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 P.W.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 P.W.1 had sustained firearm 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 P.W.1 had sustained firearm injury, then also, it has to be seen as to whether appellant had made firing with intention or knowledge to kill the P.W.1 or not. As I have already stated that on the point of firing only P.W.1 and P.W.4 are material witnesses and they stated that appellant had made firing causing firearm injury to P.W.1 but admittedly, prosecution could not succeed to prove this fact that P.W.1 had sustained firearm injury and not a single independent witness has come forward to support the story of firing. Apart from this, the prosecution has not legally proved the Patna High Court CR. APP (SJ) No.341 of 2001 dt.04-02-2013 Ferdbeyan of P.W.1. No doubt, P.W.1 has proved his signature on Ferdbeyan as Exhibit-1 but the contents of Ferdbeyan have not been legally proved by the prosecution. Moreover, when there is specific case of prosecution that P.W.1 sustained firearm injury, then prosecution was duty bound to prove this fact that due to firing made by the appellant, P.W.1 sustained firearm 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 P.W.1 and P.W.4 on the point of manner of occurrence, particularly, in the circumstances when previous enmity was admitted by the P.W.1 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. SHAHZAD/A.F.R. (Hemant Kumar Srivastava, J)