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Jai Prakash Singh vs State Of Bihar on 15 March, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.470 of 2003
Arising Out of PS.Case No. -null Year- null Thana -null District- GOPALGANJ

Jai Prakash Singh, son of Late Tapeshwar Singh, resident of village Bala Hatta Briti
Tola, P.S. Uchkagaon, District Gopalganj
…. …. Appellant
Versus
The State of Bihar
…. …. Respondent

Appearance :

For the Appellant/s : Mr.Udit Narain Singh with
Mr. Amit Kumar Rakesh, Advocates
For the Respondent/s : Mr. Bipin Kumar, APP
For the Informant : Mr. Raghav Prasad, Advocate

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
Date: 15-03-2018

Sole appellant stands convicted under Sections 307/34 of the

Indian Penal Code and also under Section 27 of the Arms Act and

sentenced to undergo rigorous imprisonment for 10 years under

Section 307/34 IPC and a fine of Rs.1000/- and seven years R.I. under

Section 27 of the Arms Act with a fine of Rs.500/- with default clause

and both the sentences were directed to run concurrently vide

judgment of conviction dated 28.8.2003 and order of sentence dated

1.9.2003 passed by Sri Radha Krishna, the then 3rd Additional

Sessions Judge, Gopalganj in Sessions Trial No. 24 of 2002/9 of

2002.

2. Prosecution case as per fardbeyan of informant Imtiaz

Khan (PW 2), injured, recorded at Sadar Hospital, Gopalganj on
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7.12.2000 at 21.05 hours, in short, is that informant Imtiaz Khan was

going back to his house via Mirganj on bicycle from Gopalganj after

doing work of Tayeedi (Advocate Clerk) along with his brother Sohel

Khan. For a while he met his friend Sarfuddin Ansari at Mirganj and

he proceeded for his house after taking muffler and when they reached

near “Badka Bandh” ahead of village Gosai Pipara the informant saw

that 4-5 persons on the “rasta” and all of them asked to stop,

whereupon both the brothers stayed there. It was about 6.30 P.M.

when villager Rabey Alam, son of Habib Mian, flashed torch light and

said it is he. Thereafter the villager Jai Prakash Singh (appellant) fired

from his .315 katta on the informant which hit on his right spleen, due

to which he fell down in the water by the side of the road and he fled

away from there and reached to Musahar Toli and ran to house of

Bahare Imam Khan and told him about receiving firing shot and

seeing bleeding from the body of the informant, Bahare Imam Khan

took him to the hospital by his tractor. He has stated that he could not

identify the rest 2-3 persons standing at the place of occurrence. The

informant suspected hand of Rabe Alam for the alleged occurrence

with whom litigation was going on and at whose instance with a view

to kill the informant, accused Jai Prakash Singh has fired on him.

3. On the basis of the aforesaid fardbeyan Mirganj P.S.Case

No. 294 of 2000 was registered under Sections 341, 307 IPC and 27
Patna High Court CR. APP (SJ) No.470 of 2003 dt.15-03-2018

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of the Arms Act. Police after investigation submitted charge sheet

under Sections 307/34 IPC and 27 of the Arms Act and cognizance

for the offence has been taken and after commitment the case traveled

to the file of the learned trial judge for trial and disposal.

4. During trial in order to substantiate its case the

prosecution has examined altogether seven witnesses, they are PW 1

Sohel Khan, who is brother of informant and claims to be an eye-

witness to the occurrence, PW 2 Imtiaz Khan, who is informant of this

case and injured, PW 3 Dr. A.K. Chaudhary, who first examined the

victim informant, PW 4 Awadan Nesha, who is mother of victim

informant, PW 5 Sri B.K.Chaudhary, who is S.I. and has submitted

charge sheet only, PW 6 Ashma Khatoon, who is wife of informant

and PW 7 Sri Arjun Yadav, who is I.O. of this case.

5. Apart from the above oral evidence, prosecution has

brought on record the following documents, they are Ext.1- signature

of informant on the fardbeyan, Ext. 1/1- signature of witness

Sarfuddin on fardbeyan, Ext.2- discharge slip dated 9.2.2001 by

University Hospital, Banaras Hindu University, Ext.3- protest petition

dated 4.3.2001 filed on behalf of informant, Ext.4- injury report of

informant, Ext.5- fardbeyan of informant, Ext.6- registration of P.S.

case endorsement for Mirganj P.S. Case No. 294/2000, Ext.7- formal

FIR, Ext.8- certified copy of judgment passed in S.Tr.No. 159/91 and
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Ext.9- certified copy of order pass by C.J.M., Gopalganj in

Uchakagawn P.S.Case No. 97/98 by which Sohel Khan, brother of

informant and PW1 in this case was released on bail.

6. On behalf of defence also four witnesses have been

examined, they are DW 1 Ram Yugeshwar Singh, DW 2 Mukha

Mian, DW 3 Guruj Singh, who is charge sheeted witness but has been

examined on behalf of the defence, and DW 4 Dr. Alok Kumar

Suman, who had attended the victim on call of PW 3.

7. The defence has also adduced the following documentary

evidence and they are Ext.A- prescription with respect to informant

dated 7.12.2000, Ext.B- literature of Zydus Alidac showing

composition of Tramazac medicine administered to the informant

during treatment at Sadar Hospital, Gopalganj and Ext.C- certified

copy of FIR of Uchakagawn PS Case No. 97/98 under Section 376

IPC against PW 1 Sohel Khan, brother of informant.

8. Learned trial court after conclusion of trial has convicted

the appellant under Sections 307/34 IPC and also under Section 27 of

the Arms Act and sentenced him as stated above.

9. Being aggrieved by the aforesaid judgment, this appeal

has been preferred by the appellant.

10. Contention of learned counsel for the appellant is that in

this case prosecution has failed to prove the place of occurrence as
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well as genesis of occurrence and further there is no independent

witness to the occurrence and PW 1 is brother of informant, PW 2 is

informant and PWs. 4 to 6 are not eye-witnesses to the occurrence.

Further submission of learned counsel is that a suggestion has been

given to the witness in connection with a rape case in which Sohel

Khan, brother of informant, was accused and Panchayati was held in

which appellant Jai Prakash Singh was a Punch and, as such, the

appellant has falsely been implicated in this case and evidence of

DWs 1 and 2 supports aforesaid rape case. However, learned trial

court has not considered the aforesaid infirmities and also not

considered the defence story and has convicted the appellant under

Sections 307/34 IPC and 27 of the Arms Act, which does not appear

to be sustainable in the eye of law.

11. On the other hand, learned counsel for the State has

defended the judgment on the ground that evidence of PW 2, the

informant, clearly disclosed that it is the Jai Prakash Singh who has

fired at him causing injury on his right spleen, due to which he fall

down in chanwar and thereafter he was taken to Sadar Hospital,

Gopalganj from where he was referred to Gorakhpur Hospital and

injury was grievous in nature, as such, conviction of appellant under

Sections 307/34 IPC and 27 of the Arms Act does not suffer from any

infirmity and appears to be sustainable in the eye of law which does
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not require any interference by this Court.

12. On perusal of evidence available on record in the

background of rival submission of both sides it appears that PW 2 is

the informant of this case and his evidence discloses that on 7.12.2000

at 6.30 PM when he was going to his house from Mirganj after aftari

and reached ahead Badka Bandh of Gosaipipra, he found 4-5 persons

standing there and on reaching near them they asked to stay and both

brothers stayed there. Villager Raba Alam Ansari flashed torch and

hinted that it was he, whereupon accused Jai Prakash Singh took out

his katta and fired on informant which hit his right spleen and he fell

down in the west chanwar (field with water) along with his bicycle

and from there he fled away towards Mushar tola and disclosed

everything and from there he was taken by a tractor to Gopalganj and

on way he stopped near the shop of Hiralal at Mirganj and changed

his wet clothes and wore “lungi” and “kambal” and proceeded to

Gopalganj Hospital and he reached at Gopalganj Hospital at 8.30 P.M.

and thereafter he was treated by the Doctor of Gopalganj Hospital

where his fardbeyan was recorded at 9.05 P.M. and he put his

signature on it and he identified his signature on the fardbeyan (Ext.1)

and his evidence further shows that when his condition was

deteriorating he was referred to Gorakhpur Medical College and

Hospital and as per his evidence in chief, he has supported the
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prosecution case as described in the fardbeyan and in his cross

examination he has stated that I.O. has not taken over the blood

stained clothes from him and no seizure list was made and he has filed

a protest petition in the court and he has deposited a jacket which was

full of hole due to firing and blood stain and also handed over half

white sweater, bushirt, full gengi and half gengi. Those articles were

marked for identification as Exts. X to X/4. In his cross examination

he has also stated that Mirganj situates on Gopalganj-Siwan road and

three roads lead from Mirganj towards west, out of which one road

reaches Saibya. Gosai Tola Pipra place is in this Saibya road. Balahata

village of the informant is in north to Gosai Pipra and the road leads

to north to go to the village Balahata. Briti tola is the village of the

informant which is tola of village Balahata. Badka Bandh is in south

from the village of this informant. Badka Bandh is 3/4 km. away from

the Gosai Pipra. Village of this witness is less than 2 km. away from

Banka Bandh. That place is lonely place. There are chanwar in east

and west to Badka Bandh and thereafter there was cane field. In his

cross examination he has also stated in paragraph-19 that cartridge

went across his abdomen. In paragraph-57 this witness has stated he

lodged a case against Rabi Alam which is numbered as 556 of 2002

and Hareram has also lodged a complaint against him and Sohel also

lodged a complaint petition and he has admitted in paragraph 52 in his
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cross examination that patidars lodged a case against him. He has

been cross examined also on the point of rape case lodged against

Sohel which was numbered as Kuchkagaon P.S.Case No. 97/98 and

he has stated that case was false. It appears from perusal of his

evidence that he has been cross examined at length but there is

nothing in his evidence to discredit his evidence to show that he

deposed falsely.

13. PW 1 is brother of the informant and he has also

supported the prosecution story as stated by PW 2, the informant and,

according to him also the place of occurrence is a Bandh and his

evidence further supports the prosecution story as stated by PW 2.

Even despite of his cross examination there is nothing in his evidence

to doubt his testimony.

14. So far other witnesses are concerned, PW 4 is the mother

of informant and PW 6 is wife of informant and their evidence

discloses that they are not eye-witnesses to the occurrence and they

reached at the hospital later on. PW 3 is Doctor, who has stated in his

evidence that he examined the informant on 7.12.2000 at 8.30 P.M.

and found the following injuries :

(i) An oval aperture of ½” x ½” on epigastria
region on upper abdomen with inverted margin
without charring, i.e., of entry

(ii) An oval aperture of 1-1/2″ diameter on upper
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flank of abdomen with inverted margin i.e. wound
of exit. Age of injury within two hours. Weapon
used fire arm. The patient was referred to B.R.D.
Hospital, Gorakhpur. Opinion reserved and
obtained nature of the wound from B.R.D.

Medical Hospital, Gorakhpur. Mark of
identification of wound scar on forehead.

(iii) Patient was in the serious condition and
keeping in view the seriousness of the patient he
was referred to Gorakhpur.

(iv) Injuries sustained by the patient were
dangerous to his life.

(v) The injury report has been marked Ext.4.

This witness has extensively been cross examined but there

is nothing in his evidence to discredit his above finding, rather DW 4

Dr. Alok Kumar Sumon, who has been examined on behalf of defence

has also stated that he has also attended the informant and found

injuries and he was referred to Gorakhpur Hospital, as such DW 4

also supports the evidence of PW 3.

15. PW 5 is the I.O., who has only submitted charge sheet in

this case and PW 7 is the main I.O. in this case and his evidence in

para 3 shows that the place of occurrence is ahead of Pipra Gosai

village at Bara Bandh and he given the description of boundary of the

place of occurrence, i.e., north of P.O. is Bandh and Dharni hata
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village is half kilometer away. In south bandh and village Pipra Gosai

and metalled road leading to Mirganj Bazar which is 500 to 700 yards

away. In east there is sugarcane field and in west water logged ditch

and Mushar toil is situated at half kilometer away and, as such, the

place of occurrence, according to prosecution, is that he proceeded

for place of occurrence from P.S. which is Badka Bandh ahead village

Pipra Gosai and he reached at the place of occurrence at 23.15 hours,

as such, the contention of learned counsel for the appellant that

prosecution has failed to prove the place of occurrence does not stand.

16. Submission of learned counsel for the appellant that there

is no independent witness, is concerned, the prosecution evidence of

PWs 1 and 2 as well as I.O. (PW 7) disclose that place of occurrence

is lonely place near bandh and no village is situated there and in such

a place, presence of any independent witness cannot be expected,

specially in night.

17. On behalf of defence four witnesses have been examined,

out of whom DW 1 has been examined on the point that Sohel Khan

is an accused in a rape case and for that a Panchayati was held in

Panchayati appellant Jai Prakash Singh was also a witness but he has

admitted in his evidence that appellant Jai Prakash Singh is an

accused in a case also and the evidence does not falsify the

prosecution evidence in which he has clearly stated that appellant Jai
Patna High Court CR. APP (SJ) No.470 of 2003 dt.15-03-2018

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Prakash fired at the informant causing injuries to him and DW 2 has

been examined on the same point and DW 3 has been examined and

he has stated in his evidence that in village Balahata appellant Jai

Prakash was living for 20 years and he has again stated that on

festivals he used to come in Balahata and at the time of occurrence he

was not at Balahata and his evidence appears to be self contradictory.

Evidence of DW 4 Dr. Alok Kumar Suman, supports the prosecution

case and his evidence discloses that PW 2 was referred to B.R.D.

Medical College, Gorakhpur and if his evidence is believed it

discloses that condition of PW 2 was serious and, as such, he was

referred to the Gorakhpur Hospital.

18. Considering the discussions made above, it appears that

the evidences are consistent on the point of assault which is supported

by medical evidence. In the result, prosecution has been able to

establish its case regarding time of occurrence, place of occurrence

and manner of occurrence and it further appears that at the time of

occurrence appellant Jai Prakash Singh was accompanied by 3-4

persons also. In such view of the matter, there is no infirmity in the

impugned judgment and same is sustainable in the eye of law, as such,

the conviction of the appellant under Sections 307/34 IPC and 27 of

the Arms Act is affirmed.

19. Submission of learned counsel for the appellant is that
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appellant was in custody for 2 and a half years and the occurrence is

of the year 2000 and 17 long years have passed, as such, his sentence

may be reduced.

20. I find force in the submission of learned counsel for the

appellant, as such the sentence of 10 years under Sections 307/34 IPC

is reduced to the period of five years and the period of seven years

R.I. for the offence under Section 27 of the Arms Act is reduced to the

period of three years. Needless to say that appellant is entitled to the

benefit of set off as per provisions under Section 428 Cr.P.C.

21. With the above modification in the order of sentence, this

appeal is dismissed.

(Vinod Kumar Sinha, J)

spal/-

AFR/NAFR
CAV DATE
Uploading Date 20.3.2018
Transmission 20.3.2018
Date

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