ORAL JUDGMENT

Date: 18-08-2018

Appellant, Rajeshwar Rai has been found guilty for an offence punishable under Section 308 IPC and sentenced to undergo RI for 5 years, under Section 27 of the Arms Act and sentenced to undergo RI for 4 years with a further direction to run the sentences concurrently. Subsequently thereof, the learned lower court had also inflicted fine of Rs. 10,000/- and in default thereof, to undergo SI for 3 months (not specified) additionally by Sessions Judge, Bhojpur at Ara vide judgment of conviction dated 18.09.2015 and order of sentence dated 22.09.2015 relating to Sessions Trial No. 42/2010.

2. Deva Nand Rai (PW-5) gave his Fard-e-beyan on 06.06.2008 at about 4:40 PM at Sadar Hospital, Ara where his daughter/injured Pushpa Kumari was admitted disclosing therein that yesterday on 05.06.2008 at about 6:00 PM while he was gossiping with his son, Nagmani Rai, daughter, Pushpa Kumari and son-in-law, Kapil Chaudhary at his house, at that very time, his co-villagers, Rajeshwar Rai, Ramesh Rai, Nanhak Rai and Mandhir Rai armed with rifle, gun came abused and called his son. His son did not come from the house. His daughter Pushpa Kumari who was at her Darwaza was shot at by Rajeshwar with rifle. She, after sustaining injury fell down and became unconscious On hue and cry, villagers began to assemble, during midst thereof, all the four intruded inside his house, caught hold of his son, Nagmani. Then thereafter, Nanhak and Ramesh took away box while Rajesh made firing in the air and left the place.

3. Narainpur PS Case No. 25 of 2008 was registered followed with an investigation. From the record, it is evident that after concluding the investigation only two accused, namely, Rajeshwar and Ramesh were chage-sheeted exonerating Nanhak and Mandhir whereupon the trial commenced and proceeded against these two accused out of whom by the judgment impugned Ramesh has been acquitted convicting the appellant, Rajeshwar Rai in a manner subject matter of instant appeal.

4. Defence case as is evident from the mode of cross-examination as well as statement recorded under Section 313 CrPC is that of complete denial. It has also been pleaded that the prosecution party was hostile since before whereupon the accused persons have been falsely roped in with mala fide intention. However, nothing has been adduced in defence.

5. In order to substantiate its case, prosecution had examined altogether 7 PWs who are PW-1, Surendra Rai, PW-2, Nagmani Rai, PW-3 Kapil Patel, PW-4, Pushpa Kumari, PW-5, Deva Nand Rai, PW-6, Dr. Ram Pravesh Singh and PW-7, Md. Taslim as well as had also exhibited Ext-1, Fard-e-beyan, Ext-2 Series, original supplementary injury report. As stated above, nothing has been adduced in defence.

6. Learned counsel for the appellant while assailing the judgment impugned has raised manifold arguments. The first and foremost argument is that from the nature of the injury as is evident from the evidence of PW-6, the doctor, the whole prosecution case belies. Prosecution had not adduced nor exposed the location of the victim as well as assailant during course of alleged occurrence rather the evidence whatsoever at the end of the prosecution is that the accused came and shot at. In the aforesaid facts and circumstances, no injury vertical in nature would have been caused, more particularly, in the background of the fact that there happens to be absence at the end of the doctor that on account of reflection of bullet/pellet such kind of injury has been caused. That means to say, the manner of assault is not at all found substantiated with the medical evidence. Apart from this, it has also