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2018 DIGILAW 170 (JHR)

Amar Sah v. State Of Jharkhand

2018-01-18

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT Anil Kumar Choudhary, J. – Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has preferred this appeal against the Judgment of conviction dated 24.01.2006 and Order of Sentence dated 27.01.2006 passed by the 3rd Additional Sessions Judge, Fast Track Court, Dumka in Sessions Case No.27 of 2005 whereby and whereunder the appellant has been found guilty and convicted for the offence punishable under Section 307 of the Indian Penal Code and has been sentenced to undergo imprisonment for seven years. He has also been found guilty for the offence punishable under Section 27 of Arms Act for which he has been sentenced to undergo imprisonment for three years and it has been ordered that both the sentences shall run concurrently. 3. The case of the prosecution in brief as per the fardbeyan of the informant Masudan Sah that on 29.08.2004 at about 7:00 a.m. when the informant was at the door of his house, the appellant-accused Amar Sah along with co-accused persons came and abused him. The informant objected to the same and asked the accused persons to go to the police station upon which the appellant-accused Amar Sah took out a pistol and fired at the informant with an intention to kill. The pellet hit on the head of the informant and broke his teeth. When the informant tried to flee away, the appellant fired a second round which hit the informant on his chest. The informant fell down and the appellant-accused fled away. On the basis of this fardbeyan, police registered Saraiyahat P.S. Case No.117 of 2004 corresponding to G.R. No.847 of 2004 and took up the investigation of the case. After investigation, the police submitted the charge-sheet in the case for the offence punishable under Section 307/324/326/34 of the Indian Penal Code. 4. Upon commitment of the case to the Court of Sessions, charges for the offence punishable under Section 307/324/326 of the Indian Penal Code and Section 27 of the Arms Act were framed against the appellant and on the appellant-accused pleading not guilty and claiming to be tried, he was put to trial. 5. In support of its case, the prosecution altogether examined seven witness and proved documents. No witness, was examined on behalf of the defence but the defence proved three documents. 6. P.W.6-Masudan Sah is the victim and informant of this case. 5. In support of its case, the prosecution altogether examined seven witness and proved documents. No witness, was examined on behalf of the defence but the defence proved three documents. 6. P.W.6-Masudan Sah is the victim and informant of this case. He has stated that the occurrence was of 29.08.2004 at 7:00 a.m. He was in his house. The accused persons came and abused him. P.W.6 forbade the accused persons to abuse him upon which the coaccused persons commanded the appellant-accused Amar Sah to kill P.W.6- Masudan Sah. Amar Sah took out a pistol and fired at P.W.6- Masudan Sah with intention to kill him. P.W.6- Masudan Sah sustained injuries on his head and fell down. P.W.6- Masudan Sah again got up and tried to flee away. The appellant fired the second round which hit him on his chest and thereafter the appellantaccused fled away. P.W.6- Masudan Sah in para no.13 of his crossexamination has described the place of occurrence in detail with its boundaries and nothing has been elicited in his cross-examination to discard or disbelieve his testimony. On being proved by him, his signature on fardbeyan, has been marked as Ext.1. 7. P.W.1- Shikandar Sah, P.W.2- Pitambar Sah and P.W.3- Shambhu Sah all the three have stated about the appellant-accused with the co-accused persons abusing the P.W.6- Masudan Sah in his house and the appellant fired at P.W.6- Masudan Sah causing injury on his head and he also fired the second shot causing injury on the chest of P.W.6- Masudan Sah. P.W.1- Shikandar Sah, P.W.2- Pitambar Sah and P.W.3- Shambhu Sah have not stated anything of much importance in their cross-examination. 8. P.W.4- Ram Kinkar Sah and P.W.5- Surendra Sah have been tendered for cross-examination. 9. P.W.7- Dr. Om Prakash has stated that he examined P.W.6- Masudan Sah on 29.08.2004 at 9:45 a.m. and had found the following injuries:- (i) Pellet injury (puncture wound) on front right side of chest with active bleeding size 3 mm. in diameter (wound of entry) with blackening and charring on margin probe not done due to risk of profuse bleeding. (ii) Multiple pellet injury (puncture wound) with active bleeding on left side of forehead. Diameter of each injury varies from 1 mm. to 2 mm. probing not done due to rick of bleeding. (iii) Multiple pellet injuries with abrasion on tip of right shoulder with bleeding size varies from 1 mm. (ii) Multiple pellet injury (puncture wound) with active bleeding on left side of forehead. Diameter of each injury varies from 1 mm. to 2 mm. probing not done due to rick of bleeding. (iii) Multiple pellet injuries with abrasion on tip of right shoulder with bleeding size varies from 1 mm. to 2 mm. (iv) Lacerated wound on right side of nose size 1/2" x 1/2" x 1/8" with bleeding. (v) Broken two upper and two lower medial incisor tooth with bleeding from root of gums. Injury No.1, 2 and 3 was caused by fire arm (shoot gun) and injury No.4 and 5 by hard and blunt substance. Injury No.4 is simple while injury No.5 is grievous in nature. He reserved the opinion for injury No.1, 2 and 3 because the patient was referred to Sadar Hospital, Dumka for treatment of injury, opinion of Expert and further management. On being proved by P.W.7- Dr. Om Prakash, the injury report of the victim Masudan Sah has been marked as Ext.2. In his cross-examination, this witness i.e. P.W.7- Dr. Om Prakash, has stated that injury No.1 is not possible by firing from a distance of 20 feet but injury Nos.2 and 3 are possible from such distance. He has also stated that injury Nos.4 and 5 are possible by fall on hard surface. 10. After closure of the evidence of the prosecution, the statement under zof the appellant was recorded wherein he denied the materials appearing in evidence against him. After taking into consideration the evidence available in record, the learned court below convicted and sentenced the appellant as mentioned above. 11. Learned counsel for the appellant submits that the defence has been prejudiced by non-examination of the investigating officer and learned trial court has failed to consider that there was previous enmity between the parties and it is a case of false implication. It is also submitted since the doctor has found three pellet injuries; the same is not inconsonance with the case of the prosecution. Learned counsel for the appellant further submits that neither the alleged fire arm has been seized nor the same has been produced in the court during the trial. It is also submitted since the doctor has found three pellet injuries; the same is not inconsonance with the case of the prosecution. Learned counsel for the appellant further submits that neither the alleged fire arm has been seized nor the same has been produced in the court during the trial. It is further submitted that no evidence of any expert has been put forth to establish the fact that in fact any fire arm was used by the appellant and in the absence of these essential evidence, the trial court ought not have convicted and sentenced the appellant under Section 27 of the Arms Act, 1959. Learned counsel for the appellant further submits that the appellant has been in custody since 30.08.2004. Hence, he has already undergone the period of sentence in custody. Hence, it is submitted that the appellant be acquitted by giving the benefit of doubt. 12. Learned Addl.P.P. on the other hand, defended the impugned order and submitted that the evidence in the record put forth by the prosecution through P.W.6- Masudan Sah, the victim himself and supported by P.W.1- Shikandar Sah, P.W.2- Pitambar Sah and P.W.3- Shambhu Sah who are the eye-witnesses of the occurrence, have proved the case of the prosecution which is corroborated by the testimony of P.W.7 the doctor, who examined P.W.6- Masudan Sah, has established the case of the prosecution beyond all reasonable doubts. Hence, it is submitted that this appeal being without any merit be dismissed. 13. So far as the contention of learned counsel for the appellant regarding non examination of the investigating officer is concerned, it is a settled principle of law that non examination of investigating officer per se will not be fatal for the case of the prosecution unless a prejudice is caused by such non examination of the investigating officer as has been held by the Hon''ble Supeme Court of India in the case of Behari Prasad v. State of Bihar , (1996) 2 SCC 317 . 14. Perusal of the record reveals that P.W.6- Masudan Sah, in para13 has categorically described the place of occurrence with its boundaries. The same has remained unchallenged in his crossexamination. No attention was drawn in cross-examination of any witness vis-a-vis the statement recorded by the investigating officer under section 161 of the Cr.P.C.. 14. Perusal of the record reveals that P.W.6- Masudan Sah, in para13 has categorically described the place of occurrence with its boundaries. The same has remained unchallenged in his crossexamination. No attention was drawn in cross-examination of any witness vis-a-vis the statement recorded by the investigating officer under section 161 of the Cr.P.C.. The learned counsel for the appellant also could not bring to the notice of the court as to how any prejudice has been caused to the defence by non-examination of the investigating officer. Hence, this Court is of the considered view that in this case, the defence has not been prejudiced by nonexamination of the investigating officer. As already mentioned above, P.W.6- Masudan Sah who is indisputably an injured witness, has categorically stated about the appellant having shot at and caused injuries to him which is corroborated by the testimony of P.W.1- Shikandar Sah, P.W.2- Pitambar Sah and P.W.3- Shambhu Sah as well as the medical evidence which has come through the testimony of P.W.7- Dr. Om Prakash. Hence, I have no hesitation in holding that the evidence in the record is sufficient to hold the appellant guilty for the offence punishable under Section 307 of the Indian Penal Code and keeping in view the gravity and manner of the occurrence, the sentence of imprisonment for seven years appears to be proper. Hence, the conviction and sentence of the appellant for the offence under Section 307 I.P.C. is confirmed. So far as the conviction of the appellant under Section 27 of the Arms Act is concerned, perusal of the record reveals that the prosecution has failed to prove any seizure list to establish seizure of any arms from the appellant. The prosecution has also miserably failed to bring on record any evidence through any ballistic expert as to the nature of the fire arm, if any, used by the appellant nor the alleged fire arm was produced in the court. In absence of such evidence, this Court is of the considered opinion that this is a fit case where the appellant be acquitted of the charge for the offence punishable under Section 27 of the Arms Act, 1959 by giving him the benefit of doubt. 15. Accordingly, the conviction of the appellant for the offence punishable under Section 27 of the Arms Act is set aside. 15. Accordingly, the conviction of the appellant for the offence punishable under Section 27 of the Arms Act is set aside. While the conviction and sentence of the appellant-accused for the offence punishable under section 307 of the Indian Penal Code is confirmed. The learned court below is directed to take steps for apprehension for the appellant-accused for undergoing the remaining part of sentence, if any. The appeal is allowed in part. 16. Let the lower court record be sent back to the trial court forthwith along with the copy of this judgment.