JHABBU PANDEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appellant and the victim were rejoicing in a toddy shop and it was alleged that when victim Krishna Kumar Paswan (PW 4) came out from toddy shop of Sudama Devi to make water, Jhabbu Pandey, the appellant, too followed him and fired shot causing injury in the region of thigh, when he dropped on the ground. The injured was taken to Darbhanga Medical College and Hospital for treatment. The Police Officer shortly on receipt of information about the incident, rushed to the place of occurrence and though noticed appellant in custody of some persons with injuries, did not find the injured. It was, however, informed by the persons available at the place of occurrence that the injured had been carried to Darbhanga Medical College and Hospital for treatment. The Police Officer stated to have rushed to hospital and recorded statement of the injured at 6.30 p.m. After fardbeyan of injured was recorded by the Police Officer, as usual, first information report was drawn up and investigation followed. In course of investigation, the Police Officer visited place of occurrence, recorded statement of witnesses, secured injury report of the victim from the hospital, seized upper part of cartridge from place of occurrence, took custody of wearing apparels of the injured from him and on conclusion of investigation, laid charge -sheet before the Court against the appellant and three others.

(2.) THOUGH four persons were put on trial, three having been acquitted at trial, the appellant alone suffered conviction under Section 307 of the Indian Penal Code for which he was sentenced to suffer rigorous imprisonment for a term of seven years. Though the trial Court found him guilty also under Arms Act. no finding about sentence was recorded on this count.

(3.) THE facts of the case are tell a tale which evidently suggest that shortly after PW 4 came out of toddy shop to respond the nature&aposs call, the appellant fired a shot on the region of thigh on the victim for which the doctor noticed corresponding injury on thigh of the injured, and the said injury was considered to be grievous in nature. Though one witness stated about seizure of upper part of cartridge by the Police Officer, during cross -examination he stated to have put his signature on the seizure memo without going through its contents. Though this witness has resiled from previous version which he rendered earlier before the police about seizure of incriminating object in his presence, he resiled from his version eventually in his cross -examination, it is not expected that a literate person shall put his signature on the seizure memo without going through its contents. Ashok Ram, PW 2 did not turn up for cross - examination after repeated adjournments and rightly the Court below has not made comment on his evidence. Most. Sudama PW 3 is none -else but the person in whose shop the victim and appellant were taking toddy and she states to have heard sound of firing of shot and injured stating about appellant having fired shots on him. The injured has reiterated his earliest version which he rendered before the police about appellant having fired shot on him causing injury on right thigh. True it is that bailing the injured there has been no corroboration from other source but regard being had to the evidence of Most. Sudama and finding recorded by the doctor who examined the injured, it cannot be legitimately argued that injured was the solitary witness. About failure of the Investigating Officer to seize blood stained earth from the place of occurrence, in a catena of decision, the Court has occasion to make observation that for lapses on part of the Investigating Officer, the prosecution is not to suffer set back. The mitigating circumstance brought to my notice by learned counsel for the appellant is that the case was instituted in the year 1988 and since then about 15 years have elapsed and also that the appellant has remained in custody for about more than 20 months.