P.K. Deb, J.@mdashThis appeal has been preferred against the judgment and order dated 3.3.1989 passed by the then 3rd Addl. Sessions Judge, Nawadah, in Sessions Trial No. 61/1986 (333/1984) convicting the accused-appellant Nos. 1 and 2 u/s 324 of the Indian Penal Code and sentencing then to undergo rigorous imprisonment for 2 1/2 years and further convicting accused- appellant No. 3 u/s 27 of the Arms Act and sentenced rigorous imprisonment for two years.
2. The case, in brief, is that on 5.7.1980 at about 12 noon the informant Gopal Lal gave his fardbeyan before the Officer Incharge of Hasua Police Station to the effect that these accused-appellants along with some others were organising the shakha of Rastriya Swaym Sewak Sangh in the Hasua middle school and they were not allowing Rajendra Prasad and Suresh Prasad to participate in the said Shakha. Against which the informant made a complaint to the teachers, namely, Jalo Singh and Saudagar Babu of the said school. Further case of the informant is that the aforesaid two persons came to the shop of the informant and threatened him saying that when he was obstructing in organising the Shakha and as such his shop would be ransacked. Accordingly, on 5.7.1980 at about 9.45. A.M. all the accused persons including the accused-appellants armed with lathi, dagger and country made pistol came to the shop of the informant. Jai Prakash and Ravindra caught hold of the informant and Abhai Kumar assaulted the informant on the right side of the forehead with dagger. In the mean time, Shashi Bhushan was coming to shop of the informant and Arvind Kumar caught hold of him and Jai Prakash assaulted him on the left side of the back of the head with dagger. When other persons assembled there on hearing hulla accused-appellants pointed but country made pistol on the mob, as a result of which mob dispersed and the accused appellants fled away.
3. A case was registered on the basis of the fardbeyan and after investigation charge sheet was submitted under Sections 307/149 of the Indian Penal Code read with Section 27 of the Arms Act against the eight accused persons, including the accused-appellants. On being committed to the sessions charges were framed under the same sections of the Indian Penal Code.
4. The defence case is the total denial of the prosecution story. It is stated that out of enmity they have been falsely implicated in this case. In total seven witnesses for the prosecution side have been examined. After scrutiny of the evidence on record learned court below came to the finding that no case could be made out u/s 307 of the Indian Penal Code but the case could not be proved u/s 324 of the Indian Penal Code against only two accused persons, namely, accused-appellant Nos. 1 and 2 and it further held that the case could be made out u/s 27 of the Arms Act against accused-appellant No. 3. As such, conviction arrived at and sentences imposed.
5. On scrutiny of the evidence on record independently by this Court and the impugned judgment it could be found that the conviction arrived at against the accused appellant Nos. 1 and 2 is proper and justified. There is nothing to be interfered with but it appears that the occurrence took place long 19 years back and there was no severe enmity between the parties. Only on a petty matter of organising a shakha of the R.S.S. the incident had taken place. There was no intention to kill or severely assault. When the trial of the case prologned for long time and for about 19 years the accused-appellant Nos. 1 and 2 had to suffer mentally, physically and financially too and also tension was going on regarding prang of the criminal prosecution hanging over their shoulders from long 19 years, it would not be justiceable to send them to jail for service of the punishment imposed rather the facts and circumstances demand that if heavy fine is imposed on the accused-appellant Nos. 1 and 2, justice will be done. In that view of the matter, appeal in respect of accused-appellant Nos. 1 and 2 is hereby dismissed but the sentence imposed is hereby altered to fine of Rs. 5,000/ - each only which should be deposited within a period of six weeks from this date before the trial court. In default, the accused-appellants shall suffer simple imprisonment for two months each.
6 In respect of the conviction of accused-appellant No. 3, it appears that no overt act has been attributed to him except the fact that he was holding a country made pistol and threatened the persons who arrived at the place of occurrence, as result of which the mob dispersed and the other accused-persons could be facilitated to escape from the place of occurrence. But peculiarly enough no pistol could be recovered by the investigating agency from the possession of the accused-appellant No. 3. Considering the position and circumstances and evidence on record and when there is no recovery, I find that the conviction arrived at u/s 27 of the Arms Act against the accused appellant No. 3 is bad in the eye of law.
7. Hence the appeal is allowed in respect of accused-appellant No. 3 and he is acquitted of benefit of doubt and is relieved of his bail bonds.
