Kapildeo Baitha vs State of Bihar

Ram Naresh Thakur, J.—The appellant in this appeal has been convicted u/s 307 of the Indian Penal Code and has been sentenced to rigorous imprisonment for ten years. He has further been convicted u/s 27 of the Arms Act and sentenced to six years rigorous imprisonment. The prosecution case, according to the F.I.R. (Ext. 2) is that this appellant along with other accused persons boarded bus no. BRP 1693 on 13.1.1978. When informant Chandra Shanker Pandit, conductor of that bus, demanded bus fare, they pointed out pistol and got down from the bus and fired their pistols which hit the body of the bus. The passengers and the people of the neighbourhood chased the culprits. On chase this appellant along with other accused persons was arrested and it is said that this appellant was arrested with a pistol. Subsequently, a case was instituted and after investigation, charge sheet was submitted against this appellant as well as four other accused persons.

In course of trial five witnesses were examined on behalf of the prosecution. The appellant denied the allegation and pleaded innocence After considering the entire evidence the learned trying Court convicted the appellant, as stated above, but acquitted the other accused persons.

Learned counsel for the appellant has submitted that the bus conductor or the driver has not been examined in this case. P.W. 3 is alleged to have arrested the appellant with pistol but did not identify this appellant as having been arrested by him. The doctor has also not been examined. Therefore, according to him, the conviction u/s 307 should not be upheld. He further submitted that sanction was not obtained before prosecution of this appellant u/s 27 of the Arms Act. Therefore, his conviction under this count also cannot be sustained in the eye of law.

From the judgment on the record it does not appear that sanction was accorded for the prosecution of the appellant u/s 27 of the Arms Act, which is an essential ingredient before prosecution of a culprit u/s 27 of the Arms Act since the allegation is that the appellant had no licence for possessing a pistol. Therefore, his conviction u/s 27 of the Arms Act cannot be sustained and has to be set aside.

As regards the conviction u/s 307 of the Indian Penal Code, true it is, P.W. 3, who, according to the prosecution, arrested the appellant, has not supported the prosecution case that he had arrested this appellant, but he has supported the occurance. P.W. 2 has supported the prosecution case and the fact that it is this appellant who was arrested. The fact that the appellant was arrested on the spot is also not denied. Therefore, it is well proved that this appellant was arrested at the place of occurence, as stated by the witnesses.

As regards the injury caused to P.W. 3, he has not said that this appellant caused the injury, rather he has said that some one fired in which he received the injury. He has given an explanation for non-identification of the appellant by saying that as a long time had elapsed, he was unable to identify the man whom he had arrested, but P.W. 2 who is the constable, has stated that this appellant was arrested at the spot and he had caused injuries to P.W. 3. True it is that the doctor has not been examined but the fact remains that P.W. 3 has stated that he received pistol injury. Similarly. P.W. 2 has stated that it was this appellant who caused injury to P.W. 3. Therefore, it is well proved that this appellant caused injury to P.W. 3.

Now it has to be seen as to which offence this appellant has committed. In absence of medical evidence, it is difficult to hold that the appellant is guilty of the charge u/s 307 of the Penal Code, and, therefore, I hold that the appellant is guilty of an offence u/s 324 of the Code.

As regards the sentence, he has already remained in jail for more than three years. In that view of the matter, the period already undergone will meet the ends of justice.

Thus, the conviction of the appellant u/s 307 of the Penal Code is altered to one u/s 324 and he is sentenced to imprisonment already undergone by him, but his conviction u/s 27 of the Arms Act and the sentence imposed thereunder are set aside. With the aforesaid modification in the conviction and the sentence, as indicated above, the appeal is dismissed.