Md. Kalim and Another vs State of Bihar (Now Jharkhand)

Amareshwar Sahay, J.—Both the appellants have been convicted for the offence u/s 307/34 of the Indian Penal Code for committing attempt of murder of Subodh Kumar Singh and Bijay Behra and have been sentenced to undergo rigorous imprisonment for a period of seven years each of the said offence. The appellants have also been convicted for the offence u/s 27 of the Arms Act for being in possession of and using fire-arms for the purpose of causing hurt to both the injured and thereby, they have been sentenced to undergo Rigorous Imprisonment for a period of three years each for the said offence by Judgment dated 1st March, 1997 in Sessions Trial No.21/273 of 1993-96 by 2nd Additional Sessions Judge, Jamshedpur, Singhbhum- East.

The prosecution case in short is that on 26.8.1992, at about 10.00a.m., the informant Subodh Kumar Singh (PW6) along with his friend Bijay Behra (PW5) went to the house of Md.Raheesh situated" in the village-Makhdampur, P.S.-Parsudih for the purpose of demanding back some money which was due and both of them were made to sit in the house of said Md.Raheesh. It is said that since Md.Raheesh was not there and therefore, the informant and his friend (PW5) were waiting in the house of Md.Raheesh.

All of a sudden, it is said that, these two appellants came there with pistols in their hands, entered the house of Md.Raheesh and then asked as to where Md.Raheesh is (SALA RAHEESH KAHAN HAI) and then, the inmates of the house informed them that Md.Raheesh was not there and then, at this, the appellant No. 1 Md.Kalim is said to have ordered to kill the informant and his friend by saying "IN HEE DONO SALE KO GOLISE URADO". Thereafter, both the appellants fired from their pistols on the informant and his friend (PW5) due to which, the informant received injuries in his right arm and right thighs whereas, his friend Bijay Behra (PW5) sustained bullet injuries in both of his thigs. Thereafter, both of them became unconscious and they regained consciousness only after sometime and by that time, the appellants had already fled away and a number of persons had assembled there.

Thereafter, the informant came to know that in the previous evening, an altercation had taken place in between Md.Raheesh and the appellants and having mistaken that the informant and his friend Bijay Behra were the associates of Md.Raheesh and as such, both the appellants shot fire on them in order to kill them.

In order to establish the charges, altogether eight witnesses were examined by the prosecution. Out of them, PW5 Bijay Behra and PW6 Subodh Kumar Singh are the injured witnesses whereas, PW1 is Dr.Ashok Kumar Prasad who examined the injuries on the informant Subodh Kumar Singh and proved the Injury Report as Ext. 1.

PW4 Dr.Nitai Gorango Das is another Doctor who examined the injuries on the person of PW5 Bijay Behra and proved the Injury Report Ext. 1/1.

PW8 Tej Narain Singh is the Investigating Officer who reached at the place of occurrence after he got the information about firing at the said place.

Apart from these witnesses, the other prosecution witnesses namely PW2 Qamrunissa, PW3 Kallu Mian and PW7 Md.Shamshar have been declared hostile who were said to be the eye witnesses to the said occurrence.

On the basis of the evidence adduced by the prosecution, the learned trial Court convicted the appellants as has already been stated in aforesaid paragraphs.

Mr.Mokhtar Ahmad, learned counsel appearing for the appellants has taken me to the entire oral evidence and thereafter submitted that in view of the fact that all the three alleged eye-witnesses i.e. PW2 Qamrunissa, PW3 Kallu Mian and PW7 Md.Shamshar have been declared hostile and therefore, the prosecution has failed to establish the charges beyond all reasonable doubts against the appellants and therefore, the conviction and sentence passed by the trial Court against them is liable to be set aside.

Learned counsel has further submitted that so far as the appellant No.2 namely Md.Mallu @ Md.Kallu is concerned, the injured witness namely PW5 Bijay Behra has not even identified him in the dock and therefore, the appellant No.2 could not have been convicted at all by the trial Court because his identification was not established by the prosecution.

In order to test the submissions of the learned counsel for the appellant, it is necessary to scrutinize the oral evidence adduced by the prosecution.

PW6 Subodh Kumar Singh who is the informant in this case, has stated that on 26.8.1992, at about 10.00 a.m., he along with Bijay Behra (PW5) went to the house of Md.Rahees Mian at Makhdampur to take back money amounting to Rs. 11,000/- (Rupees Eleven Thousands) and since Md.Raheesh was not present in the house and as such, the parents of Md.Raheesh asked them to sit and wait.

After about ten minutes, these two appellants came there with pistol and stated that they would kill them and thereafter, both of them opened fire from their pistols, which hit this witnesses PW6 on his wrist and thigh and also hit Bijay Behra (PW5) on both of his thighs.

Both of them fell down unconscious. For about half an hour, they remained unconscious and thereafter, regained senses and thereafter, the Police came there and recorded their statements Ext.3.

PW5 Bijay Behra, the other injured, fully corroborated the statements made by P W6, the informant. However, he identified only the appellant No. 1 namely Md.Kalim in the dock and he did not identified the other appellant namely Md.Mallu @ Md.Kallu.

PW1 Dr.Ashok Kumar Prasad, who examined the injured Subodh Kumar Singh on 26.8.1992 at 2.45 p.m. at Telco Hospital stated that he found two fire arms injuries on the wrist and the right thigh of the said injured and he further stated that Dr.Anurag Kumar, a Surgeon, also0 confirmed the said injuries caused by fire arms and stated that the age of the injuries to be within six hours. This witness also proved Injury Report Ext. 1 and has also proved the Report of Dr.Anurag Kumar as Ext.2.

PW4 Dr.Nitai Gorango Das, the another Doctor of Telco Hospital, who examined the injured Bijay Behra on 26.8.1992 at 12.20 p.m. has also stated that he found two fire-arm injuries on the left thigh and the right thigh of the injured and also found an exit wound on his left thigh. He also stated that the injuries were of grievous in nature and proved the Injury Report as Ext. 1/1. He also stated that the age of the injuries were within 4-5 hours.

Since all the three eye-witnesses have been declared hostile and therefore, the entire case of the prosecution hinges mainly on the evidence of PWs 5, 6, 1 and 4. From a careful scrutiny of the evidence of the aforesaid witnesses, I find that the prosecution has been able to establish the charge beyond all reasonable doubts, at least against Md.Kalim (Appellant No. 1). The evidence of the injured witnesses i.e. PWs.5 and 6 have fully been corroborated by the medical evidence of the Doctors i.e. PWs. 1 and 4. Since the appellant No.2 namely Md.Mallu @ Md.Kallu has not been identified at Dock by PW5 Bijay Behra and therefore, his participation in the alleged occurrence becomes doubtful. Accordingly, he is entitled to the benefits of doubt.

In view of the discussion and findings above, I hold that the conviction and sentence passed by the trial Court against the appellant No.1 Md.Kalim was perfectly justified. Accordingly, by affirming the conviction and sentence passed by the trial Court against the appellant No.1, this appeal is dismissed. The appellant No.1 namely Md.Kalim, who is on bail, his bail bonds are cancelled and he is directed to surrender to serve out the remaining period of sentence.

So far the appellant No.2 namely Md.Mallu @ Md.Kallu in concerned, he is given benefits of doubt. Accordingly, conviction and sentence passed by the trial Court against him is hereby set aside and his appeal is allowed. He is discharged from the liability of bail bonds.

In view of the discussions and findings above, this appeal is partly allowed as indicated above.