Abhijit Sinha, J.
1. There are five appellants in these three appeals which have been preferred against a common Judgment and order passed by Shri Sanjay Priya, learned 3rd Additional Sessions Judge, Nalanda at Biharsharif, dated 5th May, 2003 in Sessions Trial No. 74 of 1985, arising out of Asthawan P.S. Case No. 204 of 1982. The appellants have been convicted and sentenced by the learned Additional Sessions Judge by his Judgment and order dated 5.5.2003 and 8.5.2003 respectively. Since these appeals have been preferred against a common Judgment they are being heard together for convenience sake and are being disposed of by this common Judgment.
2. Whereas accused, Sadhu Gope and Deoki Yadav have been sentenced to undergo R.I. for ten years for the offence under Section 307 of the I.P.C. and R.I. for seven years for the offence under Section 27 Arms Act, accused, Baleshwar Yadav, Achhelal Gope and Rohan Yadav have been sentenced to undergo R.I. for ten years for the offences under Sections 307/149 I.P.C. Accused Baleshwar Yadav has further been sentenced to undergo R.I. for seven years for the offences under Sections 3/5 of the Explosive Substance Act. All these sentences have been directed to run concurrently.
3. It would be relevant and convenient to reproduce, in brief, the facts of the case. One Peyare Yadav of village Barepur gave his fardbeyan to the S.I. of Asthawan Police Station on 06.11.82 stating therein, inter alia, that his father had about 5.30 bigha land in village Sarfadinagar, Janpura appertaining to Khata No. 87, Plot No. 472 and earlier that day at about 6 A.M. all the accused persons named in the fardbeyan variously armed with lathi, danda, gun, hasua etc. came upon the aforesaid land of the informant and started damaging the paddy crops. The informant and his other relatives as mentioned in the fardbeyan raised objections whereupon the accused persons started assaulting the members of the informant's party. The members of the informant's party are said to have run away towards village Jainpur and when they reached near the house of Lakshaman Yadav all the accused persons surrounded them. It is alleged that Arjun Yadav exploded bomb as a result whereof the Informant sustained bleeding injury on his left hand. Sadhu Yadav allegedly fired from his rifle which hit Kapil Yadav in the chest. Deoki Yadav fired from his country made gun causing injury to Bhuwaneshwar Yadav and Baleshwar Yadav exploded a bomb causing injury to Gore Lal. Rohan Yadav is said to have fired causing Injury to Raj Kumar. It is said that the accused persons thereafter ran away on seeing the police. It has been mentioned that the father of the Informant, Bandhu Yadav, had gifted the aforesaid lands some 32 years back to the Informant and his brother, Ramji Yadav and other sons and they were coming in peaceful possession over the said land. It is also said that a litigation which was pending before the D.C.L.R. in respect of the said lands had been declared in favour of the informant and his brother by the D.C.L.R. On the basis of the aforesaid fardbeyan Asthawan P.S. Case No. 204/82 came to be registered against all the 24 accused persons for commission of offences under Sections 147, 148, 149, 324, 307 and 426 of the I.P.C. and after due Investigation herein, the police submitted chargesheet against all the 24 accused persons.
4. After commitment charges were framed against all the 24 accused persons on 18.02.91. Whereas all the accused persons were charged under Sections 307/149 of I.P.C., accused Sadhu Gope and Deoki Yadav were further charged under Section 307 of I.P.C. and 27 of Arms Act and Arjun Yadav and Baleshwar Yadav were charged under Sections 3/5 of the Explosive Substance Act.
5. It will not be out of place to mention here that although the chargesheet was submitted against 24 persons during the pendency of the trial three of the named accused persons, Nande Gope, Arjun Gope and Mangal Yadav had died and the proceeding, so far as Nande Gope and Arjun Gope are concerned, was dropped vide order dated 07.09.92. Thereafter Mangal Yadav is also said to have expired and the proceeding, so far as he is concerned, was also dropped by order dated 20.04.1996, on the basis of an affidavit filed by his son, Baleshwar Yadav, who has also been arrayed herein as co-accused.
6. At the trial the prosecution examined only 12 out of 18 witnesses cited in the chargesheet in between 6.7.1996 and 3.2.2001 and the prosecution evidence having been closed on 22.02.2001, the statement of the accused under Section 313 Cr.P.C. was recorded on 19.1.2002. It appears that during the interregnum between the recording of the statement under Section 313 Cr.P.C. and commencement of arguments another accused, Ganauri Yadav, also expired and the proceeding so far as he is concerned was dropped vide order dated 17.09.2002 after receipt of the death report from the police. The defence did not seek to examine any witness and accordingly the defence evidence was closed vide order dated 14.11.2002. The Impugned Judgment Indicates that out of the 20 persons facing the trial the prosecution was able to prove the case only in respect of the five appellants herein and the remaining accused were acquitted of the respective charges framed against them.
7. The defence of the accused persons is plain denial of the charges and they have alleged that the prosecution has falsely implicated them due to land dispute and enmity.
8. Several contentions were raised at the bar on behalf of the appellants ostensibly to assail the findings recorded by the learned trial Judge and it was sought to be urged that from the narrations made by the witnesses it would be apparent that the court below had acted mechanically and placed reliance on the testimony of witnesses who were diametrically in conflict with each other in respect of material particulars. In this connection it was pointed out that whereas P.W.2 stated that the firing resorted to by accused Achhey Lal had hit P.W.7 on his right Knee, curiously, P.W.4 stated that it had hit the left knee of one Pravesh whose injury report has not been brought on record as an exhibit nor the said Pravesh has been examined as a witness. Then again Pravesh Yadav (P.W.5) and Gore Lal (P.W.9) deposed that the firing by Achheylal had hit the knee of P.W.7 without spelling out which of the two knees, P.W.6 has stated that Achheylal's shot hit the shoulder of P.W.7 and P.Ws. 3 and 10 stated that the shot had hit the jangh (thigh) of P.W.7. On the contrary the doctor (P.W.12) has not found any Injury on the knee or shoulder of P.W.7. What he found were a lacerated wound 1/4' in diameter and 1/4' deep in the front of the middle of the forehead and a lacerated wound 1/4' in diameter and 2 1/2' deep over the upper part of the left thigh, both of which in his opinion were simple in nature and caused by fire arm.
9. It was also submitted that even though villagers were suggested to have rushed to the place of occurrence, the prosecution had not taken pains for their examination at the trial and hence there has been evidence of only interested witnesses. In this connection it was sought to be pointed out that one Sikandar Yadav who was examined as P.W.2 although he was not examined in course of the investigation and his statement, under Section 161 Cr.P.C. was not available to confront him. As a matter of fact this witness was being examined for the first time after a lapse of almost twenty years.
10. The learned Counsels for the appellants were also very critical of the learned trial Judge relying on the injury reports, as they were neither the original copies nor they had been validly exhibited, as only the attesting signature of the doctor on each of the five injury reports had been marked as Ext. 5 to 5/4. Referring to the evidence of the doctor (P.W.12) it was pointed out that the doctor himself had deposed that what was before him were the true copy of the original injury reports and he had merely attested the same. He was not in a position to recall to mind the name of the compounder who had prepared the true copy or the date on which they were prepared. In these circumstances it was urged that no reliance could be placed on the injury reports as they had not been exhibited in court and the learned trial Judge had gravely erred in law in placing reliance on them.
11. With reference to the Injury reports the learned Counsels of the appellants urged that from a bare perusal of the Injury reports it would be apparent that the Injuries sustained by Gorey Lal, Raj Kumar Yadav and Bhuneshwar Prasad were simple in nature. So far the injuries on Kapil Yadav and Payare Yadav are concerned the opinion was reserved and although Kapil Yadav was referred to Biharsharif hospital nothing is available to indicate the nature of injury sustained by him or Payare Yadav. It was accordingly urged that in the circumstances all the injuries ought to be treated as simple and in those circumstances no offence under Section 307 I.P.C. or 307/149 I.P.C. can be said to have been made out against any of the appellants and at best it is a case under Section 326 I.P.C. and 326/149 I.P.C.
12. Having given my anxious consideration to the matter I am of the opinion that a clear case under Sections 326 and 326/149 I.P.C. is made out from the facts and circumstances. Accordingly the conviction of accused Sadhu Gope and Deoki Yadav is altered to one under Section 326 I.P.C. and those of Baleshwar Yadav, Achheyelal Gope and Rohan Yadav is altered to one under Sections 326/149 I.P.C. However, the conviction under the Arms Act and the Explosive Substance Act are maintained.
13. The case was instituted in the year 1982 and the Sessions Trial is of the year 1985. The appellants have suffered trauma and the ordeal of prosecution for 25 long years. In that view of the matter and the attending circumstances I modify the sentence in respect of conviction under all charges to the period already undergone.
14. Appellant Achheylal Gope and Deoki Yadav are already on bail. They are discharged from the liabilities of their respective bail bonds. So far as appellants Sadhu Gope, Baleshwar Yadav and Rohan Yadav are concerned they are directed to be released forthwith, if not wanted in any other case.
15. In the result the appeals are allowed in part with modification in sentence.