Sidheshwar Singh @ Sidhesh Singh and Others vs State of Bihar

D.P.S. Choudhary, J.—These appellants have preferred this appeal against the judgment and order of conviction dated 21-2-1991, passed by Sri Hari Shankar Prasad, the 4th Additional Sessions Judge, Aurangabad in Sessions Trial No. 13/82/46/89 convicting the appellants as follows:

Appellant No. 1, namely, Sidheshwar Singh a//as Sidhesh Singh and appellant No. 2, namely, Janeshwar Singh have been convicted for the offence u/s 307, IPC and sentenced to undergo R.I. for three years. Both the appellants have been further convicted and sentenced for the offence u/s 148 IPC and sentenced to undergo R.I. for one year. They have been further convicted u/s 27 of the Arms Act and sentenced to R.I. for two years. Appellant No. 3, namely, Vineshwar Singh, appellant No. 4, namely, Radhash Singh, appellant No. 5, namely, Jai Kuamr Singh alias Jai Singh and appellant No. 6, namely, Sanjay Kumar Singh have been convicted for the offence under Sections 307,148 and 27 of the Arms Act and they all had been sentenced to undergo R.I. for seven years, two years and two years respectively. They have been also found guilty for the offence u/s 451 of the IPC but they have not been sentenced separately for this offence. All the sentences are to run cuncurrently.

The prosecution case in brief is that the informant, Baleshwar Rai Kahar went to the shop of Ram Pravesh Sao on 11-5-1981 at about 3 p.m. The shop is situated in the village Khudwan, P.S. Obra, District Aurangabad. He demanded. In the meantime appellant Nos. 4 and 6 came in the shop and demanded one kilo gram of sweets from the owner of the shop, Ram Pravesh Sao who gave this sweets and demanded price of the same. These two appellants refused to give the price. In the meantime, thereafter, both the appellants slapped Ram Pravesh Sao and left the shop after giving threat. Thereafter, all the appellants variously armed with gun and pistol came to the shop of Ram Pravesh Sao who tried to flee away after seeing the accused-person. The appellants started indiscriminate firing and altogether eight persons sustained firearm injuries. On the basis of the statement of Bal Keshwar Ram Kahar. Obra P.S. Case No. 56 (5)/81 was registered and after investigation the police submitted charge-sheet. After taking cognizance the trial proceeded in the Court below.

The case of the defence is denial of the occurrence and of false implication.

The learned lawyer for the appellants submitted that the alleged occurrence is dated 11-5-1981 and 21 years has lapsed since then. The trial Court judgment is dated 21st February, 1991. The appellants have remained in custody for about three weeks. Considering the old age of appellant Nos. 1 and 2 the trial Court has sentenced them for three years imprisonment each u/s 307, IPC and rest of the appellants have been sentenced for seven years for the same offence. At present, appellant No. 1 is aged about 66 years and appellant No. 2 is 71 years, appellant No. 3 is 56 years. Considering these facts a lenient view may be taken in the award of sentence. It was further argued that from the injury report (Ext. 3 series) it is clear that the doctor has found all the injuries simple in nature though caused by the firearm. These injuries give considerable assistance in coming to a finding as to the intention of the accused that they did not intend to cause death. The alleged occurrence took place for triffle matter and all are the resident of the same locality. It was also contended that the doctor has not been examined, the injury report (Ext. 3 series) have been proved by a formal witness. Hence the appellants should not be convicted for the offence u/s 307, IPC but at best they may be convicted for the offence u/s 324, IPC. It further argued that no independent witness has been examined and from these impugned order and the judgment it is clear that witnesses are interested and previous enimity with the appellants. The learned lawyer submitted that P.W. 16 Munna Prasad is the Investigating Officer and from his evidence as contained in paragraph 5 it is clear that he has not found any blood mark at the P.O. or in the shop of the informant nor any pillete etc. were found at the place of occurrence. Thus the place of occurrence becomes doubtful.

Learned Additional P.P. submitted that non-examination of the doctor is a lacuna on the part of the prosecution but it does not affect the merit of the case because the injured witness P.Ws. 4, 6, 7 & 8 and 15 are competent to prove the injury found on their persons caused by firearm at the hands of the appellants. They have named all the appellants who have Indiscriminately fired on them. It was faulty investigation on the part of the I.O. hence he failed to make entry in the case diary about the blood marks and pillete etc. found at the place of occurrence. On this ground the entire prosecution case should not be disbelieved.

From the submissions made on behalf of the parties I, find substance in the contention that the examination of the doctor in this case was essential. From the injury report (Ext. 3 series) it appears that all the injuries were simple in nature caused by the firearm. Considering these facts, motive and manner of the occurrence, this case comes under the purview of Section 324, IPC and not u/s 307, IPC. Hence, their conviction and sentence is altered 307 to 324, IPC.

In the facts and circumstances, the conviction of the appellants for the offences under Sections 148,451 of the IPC and Section 27 of the Arms Act are maintained.

This case has lingered for about twenty one years. Some of the appellants as indicated above are old persons. It the circumstances, they are sentenced for the offence u/s 324, IPC for the period already undergone in custody. They will have to pay a fine of Rs. 1000/- (one thousand) each and in default of payment of fine six months simple imprisonment. In the circumstances, no separate sentence is imposed upon the appellants for the offences under Sections 148 and 415 of the IPC and Section 27 of the Arms Act. If the amount of fine is deposited by the appellants half of the amount shall be paid to the informant or his heirs by the Court below after issuing notice to the informant or his family members.

With this modification in the impugned judgment and order the appeal fails. The appellants are discharged from the liabilities of the bail bonds.