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PATNA HIGH COURT
Rajendra Menon, C.J. and Anil Kumar Upadhyay, J.
Maneet Bind and Anr. —Appellants
versus
State of Bihar —Respondent
Criminal Appeal (DB) No.1016 of 2007 with Criminal Appeal (DB) No.1038 of 2011 with Criminal Appeal (DB) No.559 of 2007
Decided on 9.9.2017
Counsel for the Parties:
For the Appellant in Cr. APP (DB) No.559 of 2007:Mr. Shailendra Kumar Jha, Advocate
For the Respondent in Cr. APP (DB) No.559 of 2007: Mrs. S. B. Verma, A.P.P.
For the Respondent in Cr. APP (DB) No.1016 of 2007: Mr. A. K. Sinha, A.P.P.
For the Respondent in Cr. APP (DB) No.1038 of 2011: Mr. Dilip Kumar Sinha, A.P.P.
Headnote:Indian Penal Code, 1860—Section 302/34—Four accused appellants armed with fire arms assaulted deceased and victim died in hospital after fifteen days during treatment—FIR was registered on statement of victim and during trial it was treated as dying declaration—Appeal against conviction—Even though there was no eye witness to incident, but statement of victim recorded by police stood duly proved from statement of other witnesses—Other witnesses narrated story based on information given to them by deceased—Incident stood proved as stated by deceased in his dying declaration—Medical evidence however showed that injuries sustained by deceased were on non-vital part of body and victim died after 15 days—Offence would fall u/s 304 Part II IPC and conviction modified accordingly—Two appellants were in judicial custody for 11 years and 8½ years and their sentence of life imprisonment reduced to period already under gone—Third accused had absconded and was put on trial in 2011 but no overt act was attributed to him and his sentence also reduced to period undergone. (Paras 11 to 13)
Result: Appeals disposed of accordingly.
JUDGMENT (ORAL)
Rajendra Menon, C.J.—All the three appeals have been filed by the appellants assailing the judgment of conviction, dated 19.06.2006, and order of sentence passed by learned Additional Sessions Judge, Fast Track Court-II, Bhagalpur in Sessions Trial No. 591 of 2001 /T.R. No. 133 of 2006, arising out of Bath P.S. Case No. 12 of 2000, by which all the appellants herein, namely, Maneet Bind, Jogi Bind @ Jogo Bind, and Angad Bind have been convicted under Sections 302/34 of the Indian Penal Code read with Section 27 of the Arms Act and sentenced to undergo imprisonment for life for the offence under Sections 302/34 of the Indian Penal Code and they have been further sentenced to undergo three years R.I. for the offence under Section 27 of the Arms Act. However, both the sentenced have been directed to run concurrently.
2. It is the prosecution case that on 25.05.2000 at 9.00 P.M. when Damodar Bind was present at the Chakki Mill in village English Ratanpur, Police Station Bath, District- Bhagalpur Jogo Bind appellant in Cr. Appeal (DB) No. 559 of 2007 along with other appellants, namely, Angad Bind appellant in Cr. Appeal (DB) No. 1038 of 2011, Jai Hind Bind, Umesh Bind arrived with fire arms, surrounded the informant, namely, Damodar Bind (the deceased), assaulted him and when in the meantime Sobhi Bind, Binod Bind and Maneet Bind came to the spot and raised hue and cry Jogo Bind, who was armed with gun, fired upon the informant-deceased Damodar Bind causing injury on his armpit, right Panjra (shoulder) right buttock and left thigh. It is said that some people came to the spot seeing the commotion that was created the accused ran away and it is the case of the prosecution that motive for committing the offence is that Damodar Bind was informing about the activities of the group. The deceased/informant Damodar Bind was immediately brought to Jawahar Lal Nehru Medical College and Hospital, Bhagalpur, where his statement was recorded at 10.30 A.M. on 26.05.2000 on the basis of which the fardebayn was recorded and the prosecution initiated. However, the deceased Damodar Bind succumbed to the injuries after a period of more than 15 days in the night intervening 11/12.06.2000.
3. Initially, the case was registered against all the accused persons for the offence under Sections 147, 148, 341, 323, 504 read with Section 307 of the Indian Penal Code and Section 27 of the Arms Act. However, subsequently, the charges were framed, they were only charged for the offence under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act.
4. The prosecution examined as many as 9 witnesses, namely: Doman Bind (P.W.1), Sipahi Bind (P.W.2), Sadanand Bind (P.W.4), Manoj Bind (P.W.5), Tikulee Devi (P.W.5), Manager Bind (P.W.6), Ganesh Bind (P.W.7), Manik Chand Bind (P.W.8) Dr. Sandeep Prasad Lal (P.W.9) and Md. Sakur (P.W.10) and various documents were also exhibited and during the pendency of the trial one of the accused, namely, Shobhi Bind, died and therefore his name was expunged from the array of accused person on 21.07.2003. The defence also examined five witnesses, namely, D.W.1 is Sarda Mandal, D.W.2 is Jagesh Prasad Singh, D.W. 3 is Sarju Singh, D.W.4 is Haro Bind and D.W.5 is Sada Nand Singh.
5. Based on the evidence and materials on record, by the impugned judgment, the learned trial court found the accused persons guilty of the offence under Section 302 of the Indian Penal Code, read with Section 27 of the Arms Act and sentenced them to imprisonment for life under Section 302 of the Indian Penal Code and R.I. for three years under Section 27 of the Arms Act. However, both the sentences have been directed to run concurrently.
6. Challenging the same, these appeals have been filed. Learned counsel for the appellants took us the statement of witnesses and tried to argue that the prosecution has miserably failed to establish the case and therefore the conviction is unsustainable.
They argue in alternative that even i
