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2010 DIGILAW 967 (JHR)

Jai Prakash Yadav v. State of Jharkhand

2010-10-06

PRADEEP KUMAR

body2010
JUDGMENT By Court - Heard the learned counsel for the appellant and the learned counsel for the State. 2. The instant appeal is directed against the judgment of conviction dated 30.11.2002 and order of sentence dated 2.12.2002 passed in Sessions Case No. 101 of 2001 by Shri Dhrub Narayan Upadhyay, Sessions Judge, Sahibganj, by which he found the appellant, Jai Prakash Yadav guilty under Section 307 of the Indian Penal Code and Section 27 of the Arms Act and sentenced him to R.I. for five years under Section 307 of the Indian Penal Code and R.I. for two years under Section 27 of the Arms Act. Both the sentences shall run concurrently. 3. It is submitted by the learned counsel for the appellant that appellant has no direct enmity with the informant rather the enmity with the other co-accused Pintu Singh @ Deepak Kumar Singh because his maternal uncle Sunil Kumar Singh had rivalry with one Bijoy Mishra and informant was seen talking with Bijoy Mishra and as such, conviction of the appellant Jai Prakash Yadav under Section 307 of the Indian Penal Code is bad in law and fit to be set aside. Moreover, he is in custody for more than two years and seven months. 4. On the other hand, learned counsel for the State opposed the prayer and submitted that informant has clearly stated that this appellant had shot fire by pistol on the informant and doctor has also found firearm injury on the informant and as such, he has rightly been convicted as aforesaid. He admits that petitioner is remained in custody for more than two years and seven months. 5. After hearing both the parties and going through the evidences on record, it appears that F.I.R. was lodged by the informant/injured Hare Ram Pandey on 19.5.1999 and fardbeyan given by him to the Officer-in-charge Mirza Chawki Police Station stating therein that on the same day at about 6 P.M. he along with his friend Natua went to Station Chowk Mirjachawki and they purchased two pouch of Tiranga. In the meantime, accused Jai Prakash Yadav alongwith Pintu Singh also reached there and talked to them. Thereafter, he with his friend Natua proceeded towards Gandhi Chowk where the accused persons also followed. In the meantime, accused Jai Prakash Yadav alongwith Pintu Singh also reached there and talked to them. Thereafter, he with his friend Natua proceeded towards Gandhi Chowk where the accused persons also followed. No sooner, they arrived near the hotel of Anandi Sao at about 6.45 PM., Natua left the company and proceeded towards his house and thereafter he went towards his house. In the meantime, accused Jai Prakash Yadav opened fire from his pistol which caused injury on his back and accused Pintu Singh also took out pistol then he ran towards chowk in order to save himself, but fell down near the betel shop. He stated that the cause of occurrence is the enmity between Bijoy Mishra and Sunil Singh. Jai Prakash Yadav and Pintu Singh had seen the informant with Bijoy Mishra four months ago and for this, they had warned the informant not to live in the company of Bijoy Mishra. 6. On the basis of the said fardbeyan, police registered a case under Sections 307/34 of the Indian Penal Code and Section 27 of the Arms Act and after investigation, police submitted charge-sheet in the case as aforesaid. Since, the case was exclusively triable by the Court of Sessions, after taking cognizance learned Chief Judicial Magistrate committed the case to the Court of Sessions and subsequently, the case was tried by learned Sessions Judge, Sahibganj, who found the appellant guilty as aforesaid. 7. It appears that in the course of the trial, the prosecution has examined as many as seven witnesses: P.W. 1, Panchanand Sabur. P.W. 2 Kallu Sao. P.W. 3, Hare Ram Pandey, informant of the case. P.W. 4, Dr. M.M. Mallick. P.W. 5, Shiv Nandan Sarath, In-vestigating Officer of the case. P.W. 6, Dr. Upendranath. P.W. 7, Nakul Chand Sah is a formal witness. P.W. 1, Panchanand Sabur is declared hostile by the prosecution. P.W. 2, Kallu Sao is also declared hostile and has not supported the case of the prosecution. P.W. 3, Hare Ram Pandey, informant of the case, supported the prosecution case given in the fardbeyan and stated that accused Jai Prakash Yadav opened fire from his pistol which caused injury on his back and accused Pintu Singh also took out pistol then he ran towards chowk in order to save himself, but fell down near the betel shop and subsequently 'he has taken to the hospital. He identified both accused in the Court. PW. 4. Dr. M.M. Mallick, who has examined the injured Hare Ram Pandey, found two injuries:-(i) One circular lacerated wound 1/3" in diameter with inverted margin associated with blacking around the wound over the back of left side of midline at the level of length dorsal vertebra 21/2 from the midline wound of entry. (ii) One circular lacerated wound of 1/2" diameter with inverted margin over interior abdominal wall over left hypochondrium 31/2" from the midline from the wound of exit. According to the doctor, the injury was caused by firearms and the shot was fired from a close distance between 3 to 6 feets. He proved the injury report as Ext.-2. P.W. 5. Shiv Nandan Sarath, Investigating Officer of the case proved formal F.I.R. and fardbeyan and stated that at the place of occurrence witnesses only stated that they heard sound of firing and they saw that accused persons fled away from there. P.W. 6, Dr. Upendranath, who has also examined the injured Hare Ram Pandey, found the following injuries.-(i) Penetrated injury circular with black charred margin on back left to midline at the level of no. 1 diameter 11/2' cm, depth not assessed. (ii) Lacerated injury on front of chest on left side at 7th inter coastal about in mid clavicular line diameter about 1%", depth not assessed. He assessed that age of injury, within 24 hours caused by firearms. He proved the injury report as Ext. 3. P.W. 7, Nakul Chand Sah, is a formal witness. 8. Thus, it appears that except injured there is no witness that firearm injury was caused by this appellant. In the facts and circumstances of the case since, it is a case of single witness and admittedly some enmity with the appellant's friend, in that view of the matter, the conviction of the appellant under Section 307 of the Indian Penal Code and Section 25 of the Arms Act, is hereby confirmed, but the sentence against the appellant is modified and reduced to the period of imprisonment already undergone by him i.e. about two years and seven months, which the appellant has already undergone during trial and appeal. 9. With the aforesaid alteration in the sentence, the appeal is dismissed. Since, the appellant is on bail, he is released from the bondage of bail.