Moti Lal Yadav and Ors. Vs State Of Bihar and Anr.

====================================================== Appearance : For the Petitioner/s : Mr. Jagnnath Singh, Adv., Md. Gulam Mustaffa, Adv. Ms. Jyoti Joshi, Adv. Mr. Deepak Kumar, Adv., Mr. Bhargava Pandey, Adv. For the Respondent/s : Mr. Shailendra Kumar Singh, A.P.P. ======================================================

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CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI

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ORAL JUDGMENT

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Date : 23-02-2024

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Heard learned Advocate for the petitioners as well as

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learned APP for the State.

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During the pendency of the instant Criminal Revision,

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petitioner no. 1 namely, Moti Lal Yadav has expired.

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A petition has been filed on behalf of the petitioners,

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praying for deleting the name of petitioner no. 1 namely, Moti Lal Yadav.

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The name of petitioner no. 1 namely, Moti Lal Yadav be deleted.

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The instant revision is directed against the Judgment of conviction and order of sentence dated 31^st August, 2018, passed in Criminal Appeal No. 11 of 2014 (G.R. No. 104 of 2000), by the learned Additional Sessions Judge-II, Supaul, affirming the Judgment of conviction and order of sentence dated 26^th May, 2014, passed in Sessions Trial No. 181 of 2000, by the learned Assistant Sessions Judge-II, Supaul, whereby and whereunder the learned appellate court has been pleased to affirm the judgment of the trial court convicting the petitioners under Sections 148 and 323 of the I.P.C. and Section 27 of the Arms Act by sentencing them to undergo six months simple imprisonment, for the offence punishable under Sections 148 and 323 of the I.P.C., whereas the petitioner nos. 2, 3, 4 and 5 were further sentenced to undergo simple imprisonment for three years, for the offence punishable under Section 27 of Arms Act. It was further directed that substantive sentence of imprisonment shall run concurrently.

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Before dealing with the question of legality, validity and propriety of the impugned Judgment and order of affirmation of the conviction and sentencing order, this Court likes to record the prosecution case in brief. One Balkrishna Yadav, opposite party

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no. 2 herein, filed a written report before the Police of Marauna Police Station on 8^th February, 2000, stating, inter alia, that Motilal Yadav is one of the pattidars of the informant and the informant has separate share in respect of his portion of land since long. Accused Motilal Yadav (since deceased), had been trying to grab the property of the opposite party no. 2 by illegal means and constructed a hut at village- Bodrahi and claimed illegally his right over the share of the informant. The informant was compelled to initiate a proceeding under Section 144 of the Cr.P.C., which was registered as Case No. 46 of 1999 and decided in favour of him. On 8^th February, 2000, at about 6:30 A.M. in the Morning, the informant heard a sound of cutting of earth coming from the Western side of his house. He rushed to the said place and found Moti Lal Yadav, Jawahar Lal Yaday, Ajay KumarYadav, Vijay Kumar Yadav and Sanjay Kumar Yadav with 10-15 unknown persons formed an unlawful assembly being armed with various deadly weapons and were digging a ditch on the land of the opposite party no. 2. When the opposite party no. 2 asked them not to dig a ditch, Moti Lal Yadav brought out a firearm from his bag and handed over the same to Ajay Kumar Yadav, then Ajay Kumar Yadav and Jawahar Lal Yadav, ordered them to kill the informant and his family members. Hearing this, Jawahar Lal Yadav fired

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from his country made gun, which caused gun shot injuty beside the left cheek and nose of the informant. When his cousin sister Kamini Kumari, rushed to spot to save him, Ajay Kumar Yadav fired at her, as a result of which she sustained gun shot injury on the left ribcage. The father of the informant Dhani Lal Yadav came to save them, then Vijay Kumar Yadav fired at him by a country made pistol that touched the arms. The accused Sanjay Yadav fired from his country made pistol, causing gun shot injury on the head of the Kamini Kumari. Thereafter, the accused persons fled away from the spot. While fleeing away, they took away a Philips brand Radio, amounting to Rs. 500/-.

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On the basis of the said complaint, Marauna P.S. Case No. 8 of 2000, under Sections 147/148/323/324/307/504/379 of the I.P.C. along with Section 27 of the Arms Act was registered. After investigation, Police submitted charge-sheet against the petitioners. The learned Chief Judicial Magistrate took cognizance of the offence under Sections 147/148/323/324/307/504/379 of the I.P.C. and Section 27 of the Arms Act by his order dated 27^th July, 2020. The case was committed to the court of Sessions and charges were framed against the accused persons under Sections 148/323/324/504/307/34 of the I.P.C. read with Section 27 of the Arms Act.

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The learned trial Judge on careful consideration of the evidence adduced by nine witnesses on behalf of the prosecution held the accused persons guilty for committing offence under Sections 148/323 of the I.P.C. and Section 27 of the Arms Act. The petitioners were convicted and sentenced accordingly. The order of conviction and sentence was upheld by the 1^st Court of appeal in Criminal Appeal No. 11 of 2014.

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It is submitted by the learned Advocate for the petitioners that the case of the prosecution is that they received gun shot injury on their person. F.I.R. was lodged on the very date of occurrence. However, the Investigating Officer failed to recover even a single cartridge from the place of occurrence. No blood stained earth was collected from the place of occurrence. Therefore, the Investigating Officer failed to prove the place of occurrence where the alleged incident took place.

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It is further submitted by the learned Advocate for the petitioners that the case of the prosecution is that the opposite party no. 2 and his cousin sister as well as his father received gun shot injury. If the prosecution case is held to be true, they cannot be convicted under Section 323 of the I.P.C. They ought to have been convicted under Section 324 of the I.P.C. where according to prosecution case simple hurt was caused by deadly weapon, i.e.

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firearm. Therefore, conviction and sentence under Section 323 of the I.P.C. is bad in law.

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With regard to sentence under Section 27 of the Arms Act, it is submitted by the learned Advocate for the petitioners that the Investigating Officer failed to seize any firearm from the possession of the accused persons. Therefore, the allegation of opening fire and causing gun shot injury to the opposite party no. 2, his father and cousin sister was not proved.

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In support of his contention, learned Advocate for the petitioners refers to a decision of a Coordinate Bench of this Court in the case of Abhai Kumar @ Chotelal & Ors. Vrs. The State of Bihar , reported in 1999 (3) P.L.J.R. 76 . The learned Advocate for the petitioners has placed reliance of paragraph-6 of the said Judgment, wherein it is observed as under:-

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“ 6. In respect of the conviction of accusedappellant no. 3, it appears that no overt act has been attributed to him except the fact that he was holding a country made pistol and threatened the persons who arrived at the place of occurrence, as result of which the mob dispersed and the other accused-persons could be facilitated to escape from the place of occurrence. But peculiarly enough no pistol could be recovered by the investigating agency from the possession of the accused-appellant no. 3. Considering the position and circumstances and evidence on record and when there is no recovery, I find that the conviction arrived at under Section 27 of the Arms Act

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against the accused appellant no. 3 is bad in the eye of law.”

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On the same point, learned Advocate for the petitioners refers to another decision of this Court in Kesh Ranjan Mahto Vrs. State of Bihar , reported in 2017 (3) PLJR 215 . Paragraphs 22 and 23 of the said decision are relevant and reproduced below:-

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“22. So far conviction of appellant under Section 27 Arms Act, is concerned, though it has been argued on behalf of the appellant that there was no previous sanction as provided under Section 39 of the Arms Act and has cited decisions as stated ealier in support of his contention but there was another decision cited by learned A.P.P. as stated above, which shows that previous sanction is not required for a case under Section 27 of the Arms Act. On bare perusal of Section 39 of Arms Act also, it appears that previous sanction is required only when there is contravention of Section 3 of the Arms Act whereas Section 27 of the Arms Act is with respect to contravention of Section 5 and 7 of the Arms Act as such I find no force in the argument of learned counsel for the appellant. However, in the present case, there was no recovery of the gun nor there is any report about the condition of gun. In such a situation, prosecution has failed to prove its charge under Section 27 of the Arms Act beyond all reasonable doubts.

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23. Considering the discussions made above, so far conviction of appellant under Section 27 of the Arms Act is concerned, it is not sustainable in the eye of law.”

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Thus, it is contended by the learned Advocate for the petitioners that the prosecution failed to bring home the charges against the accused persons. The trial court failed to appreciate that the evidence on record is not admissible and placed reliance on inadmissible evidence on record. Therefore, the Judgment and order of conviction passed by the trial court and affirmed by the court of appeal is liable to be set aside.

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Learned P.P. In-charge, on behalf of the prosecution, on the other hand, has placed the F.I.R. as well as the evidence of P.W.-7, who is the informant in order to prove that P.W.-7, his cousin sister Kamini Kumari and his father were injured by gun shot injury. The said fact is corroborated in medical evidence. Though, the injury is simple in nature. It is not in dispute that those injuries were gun shot injuries. The informant and other witnesses clearly stated as to how and in what manner the accused persons assaulted the informant and other witnesses by gun shot injury. The said fact was corroborated by the local villagers, who are independent witnesses. Though, it is submitted on behalf of the petitioners that they are the agnates of the informant, it has not been suggested that they are interested witnesses.

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At the same time, it is submitted by the learned P.P. In-charge that the petitioners are also agnates and co-sharers of the

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land belonging to the opposite party no. 2 and the petitioners and question of possession over the land is the bone of contention of the incident. Therefore, there cannot be any ground to disbelieve the prosecution witnesses and there is no reason to interfere with the Judgment of conviction and sentence passed by the trial court and affirmed by the court of appeal.

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Having heard the learned counsels for the petitioners and the prosecution/opposite parties and on perusal of the entire record, I like to deal with at the outset the case made out by the informant (PW.7) in course of his evidence. It is stated on oath by PW.-7 that “ fnukad 8-2-2000 eaxyokj ds le; 6-30 cts lqcg dk le; FkkA eSa vius ?kj ij FkkA feVVh dkVus dh vkokt ij eSa ogka ?kj ls if”pe x;k rks ns[kk fd eksrhyky ;kno] tokgj yky ;kno] vt; dqekj ;kno] fot; dqekj] lat; dqekj ;kno ,oa 10&15 vU; vkneh feVVh dkV jgs FksA tokgj yky ;kno] vt; dqekj] fot;] lat; ds gkFk esa ns”kh fiLrkSy ,oa vU; ds gkFk esa rhj] Hkkyk] Qjlk FkkA eSa feV~Vh dkVus ls jksdk rks lHkh gedks ?ksj fy;sA eksrh yky ;kno us vius >ksyk ls fiLrkSy fudkydj vt; dks fn;k rFkk cksyk dh bl lkys dks tku ekj nksA bl ij tokgj yky ;kno xksyh pyk;k] lat; Hkh xksyh pyk;kA tokgj us tks xksyh pyk;k og esjs cka;s xky dku ds chp esa yxkA vt; dk xksyh gekjh Hkfxuh dkfeuh dks nka;k iatjk esa yxkA esjs firk nkSM+dj vk;s rks mu ij fot; us xksyh pyk;k tks mudh ckag dks pwers gq, fudy x;kA iqu% lat; us xksyh pyk;k tks dkfeuh ds lj esa yxkA”

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Thus, from the evidence of P.W.-7, it is ascertained that Jawahar Lal Yadav, Ajay Kumar Yadav, Vijay Kumar Yadav and Sanjay Kumar Yadav were already armed with country made pistol. Therefore, the evidence of Moti Lal Yadav to the effect that he handed over a country made pistol, taking it out from his bag, and gave it to Ajay Kumar Yadav remains suspicion, because of the fact that Ajay Kumar Yadav had already a pistol in his hand. There is no allegation that Ajay Kumar Yadav fired at the injured persons with two pistols. According to prosecution case all the petitioners were armed with country made firearms and ammunitions. Therefore, Moti Lal Yadav handing over pistol to Ajay Kumar Yadav and the story of the informant and his family members, being assaulted by the said pistol, become doubtful and suspicious.

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I am in agreement with the learned Advocate for the petitioners as well as I must rely on the previous decisions of the Coordinate Bench of this Court, which has been relied by the learned Advocate for the petitioners to the effect that the petitioners cannot be convicted and sentenced under Section 27 of the Arms Act, in the absence of firearm having not been recovered from the possession of any of the accused persons. The question of examination of firearm by the ex parte does not arise at all because

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the firearm could not be recovered by the Investigating Officer. Therefore, this Court is of the view that the trial court failed to assess the evidence properly and wrongly held the petitioners guilty for committing offence under Section 27 of the Arms Act.

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With regard to the charge under Sections 148/323 of the I.P.C., this Court is of the view that the accused persons not only were charged under section 323 of the I.P.C. but also under Section 324 of the I.P.C. The trial court might committ an error in convicting the petitioners under Section 323 of the I.P.C., but when charge has been framed under Section 324 of the I.P.C. and the accused persons faced trial under the said charge, the trial court was very well within his jurisdiction to hold the petitioners guilty for committing offence under Sections 148/324 of the I.P.C.

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On perusal of the entire evidence on record as well as the medical evidence, the details of which has been narrated in page-7 of the trial court’s order, this Court is of the view that the petitioners are liable to be convicted and sentenced under Section 148/324 of the I.P.C.

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In view of such circumstances, the instant revision is disposed of directing the trial court to pass sentence under Sections 148/324 of the I.P.C. against the petitioners, after hearing the petitioners under Section 313 of the Cr.P.C.

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The petitioners are however acquitted of the charge under Section 27 of the Arms Act.

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With the above direction, the instant revision is allowed in part.

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The petitioners are directed to surrender before the trial court within three weeks from the date of communication of this order.

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The parties are at liberty to act on the server copy of

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the order.

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It is submitted by the learned Advocate for the petitioners that in the meantime, the dispute has been compromised by and between the parties. The said fact is within the jurisdiction of the trial court to consider and if such compromise is effected, the trial court is at liberty to pass order under Section 320 of the Cr.P.C.

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(Bibek Chaudhuri, J)

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pravinkumar/-

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Moti Lal Yadav and Ors. v. State Of Bihar and Anr.

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