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2018 DIGILAW 47 (JHR)

Babban @ Sajid v. State of Jharkhand

2018-01-06

ANANT BIJAY SINGH, B.B.MANGALMURTI

body2018
JUDGMENT : Anant Bijay Singh, J. 1. Sole appellant has faced the trial in Sessions Trial No. 513 of 2007 before the Court of Ms. Babita Prasad, Additional Judicial Commissioner, Fast Track Court No. X, Ranchi whereby vide judgment of conviction dated 24.7.2010, the learned Sessions Judge held the appellant guilty under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and fine of Rs. 2,000/- and further sentenced to undergo rigorous imprisonment for five years and fine of Rs. 1,000/- under Section 27(1) of Arms Act and both the sentences shall run concurrently. 2. The appeal was filed on 14.1.2011 and it was Admitted for hearing on 28.2.2011 and Lower Court Records was called for. 3. The case of prosecution as unfolded in the fardbeyan of PW-1 Md. Yusuf which was recorded by S.I. Rajesh Mandal at 14.00 hours is that on 4.1.2007 in the morning at 9.00 he left his house for going to his shop and he asked his Son Imteyaz @ Manu (deceased) to come at the shop later but his son did not come. It is further alleged that after waiting for sometime, he went to Kanta Toli Chowk for purchasing some goods and when returned from market he came to know that his son Imteyaz @ Manu received injury and on that information he went to Sujata Cinema Hall and came to know that at 11.30 a.m. there was quarrel with his son and Babban regarding money whereupon Babban took out pistol to kill his son. His son tried to run away but Babban fired shot upon him whereupon the victim was taken to RIMS and during treatment he died. The informant narrated in his fardbeyan that gun shot was fired from close range. Accordingly, on 4.1.2007 Chutia P.S. Case No. 1 of 2007 under Section 302 IPC and Section 27 of Arms Act was instituted. The charges were framed against the appellant on 19.2.2008 under Section 302 IPC and it appears that during course of trial altogether six witnesses have been examined. PW-1 Md. Yusuf @ Nathu is informant of this case and eyewitness of the occurrence, PW-2 Sakib Alam is also eyewitness of the occurrence, PW-3 is Dr. The charges were framed against the appellant on 19.2.2008 under Section 302 IPC and it appears that during course of trial altogether six witnesses have been examined. PW-1 Md. Yusuf @ Nathu is informant of this case and eyewitness of the occurrence, PW-2 Sakib Alam is also eyewitness of the occurrence, PW-3 is Dr. Tulsi Mahto who conducted postmortem examination on the dead body of the deceased, PW-4 Chandra Shekhar Jha, PW-5 Chandra Mohan Jha and PW-6 is Dushyant Jaiswal who is owner of Sujata Cinema Hall. Ext.1 is signature of informant on fardbeyan, Ext.1/1 is signature of informant on inquest report and Ext.2 is post mortem report. 4. Learned counsel for the appellant submitted that there is conflict in the version of statement given by PW-2 who is supposed to be the eyewitness and who has named this appellant. PW-6 and PW-7 have failed to identify the appellant in dock and have categorically stated that another Babban has committed the occurrence. Counsel for the appellant, while referring to the evidence of PW-2, submitted that PW-2 is supposed to be the eyewitness but his evidence was not recorded on the same date rather his evidence was recorded on the next day under Section 161 Cr.P.C. In his statement under Section 161 Cr.P.C. he has stated that on 4.1.2007 at 11.30 he went to Sujata Cinema Hall for watching movie and was standing near canteen in front of ticket counter and had seen that a boy was running and one another boy chasing him with pistol and that boy namely. Munna fell down near the ticket counter due to divider. Where after the boy chasing him put the pistol on the left side of the chest of Manu and fired shot upon him and thereafter the boy who was holding pistol fled away. He further stated that the name of the boy who shot fire is Babban and has been identified. In his cross-examination, he has stated that he has small business of shoes and Monu is his friend residing in Naya Road and Babban is residing in his Mohalla and is well acquainted with him. He further stated that the name of the boy who shot fire is Babban and has been identified. In his cross-examination, he has stated that he has small business of shoes and Monu is his friend residing in Naya Road and Babban is residing in his Mohalla and is well acquainted with him. Further referring to the evidence of PW-5 Chandramohan Jha working in Sujata Cinema Hall who has stated in his evidence that on 4.1.2007 at 10.00 a.m. in cinema hall he was standing near main gate and saw that one person was coming and fell down and two persons who were chasing him fired whom he can identify but seeing the appellant he specifically said that he was not the miscreant and further stated that police came and after enquiry took away the injured persons and further he was declared hostile by the prosecution. In his cross-examination, he has stated that after the firing he became scared and fled away from that place and went to his shop. PW-6 Dushyant Jaiswal in his examination-in-chief stated that occurrence is of the year 2007 in day time and firing had taken place at Sujata Cinema Hall but he had himself not seen the occurrence. Counsel for the appellant submitted that PW-5 and PW-6 are also eyewitnesses and they have categorically stated that assault was committed by another Babban who is running cycle stand. It was submitted that prosecution failed to prove his case beyond all reasonable doubt. Therefore, the appellant is entitled for the benefit of doubt and the appeal may be allowed. 5. Learned A.P.P. referring the evidence of PW-3 Dr. Tulsi Mahto, who conducted the post mortem examination on the dead body of the deceased submitted that doctor has found firearm injury having wound of entrance measuring 1½ cm. x 1 cm. on his left side front of chest surrounded by an area of fobbing (which include tattooing, blacking and seinging) over an area of 11 cm. x 10 cm. and is situated 14 cm. left to the midline. The projectile passed through the 7th inter costal space, breaking the left 7th rib perforates the lower lobe of left lung diaphgram, stomach, pancreas, mesentery and bullet has been lodged in the abdominal wall near the iliac crest. The trekking of wound is centered and lacerated with presence of blood and blood clot in the abdominal cavity. The projectile passed through the 7th inter costal space, breaking the left 7th rib perforates the lower lobe of left lung diaphgram, stomach, pancreas, mesentery and bullet has been lodged in the abdominal wall near the iliac crest. The trekking of wound is centered and lacerated with presence of blood and blood clot in the abdominal cavity. He further opined that the above noted firearm injury is ante-mortem caused by rifled weapon and death is due to haemorrhagic shock as a result of above noted firearm injury. So it was submitted that evidence of PW-2 and PW-3 proved the case beyond all reasonable doubt. 6. After hearing the parties and on going through the evidence discussed hereinabove, it appears that PW-5 and PW-6 (both eyewitnesses) have failed to identify the accused in dock. Further neither the pistol nor any firearm from which fire was shot was recovered. The blood was also not collected. 7. In the result, this appeal is allowed and the judgment of conviction dated 20.7.2010 and the order of sentence dated 24.7.2010 passed by the trial court against this appellant is hereby set aside and the appellant is acquitted of all the charges. The appellant-Babban @ Sajid, who is in custody for more than 10 years, is directed to be released forthwith, if not wanted in connection with any other case. 8. Further trial court is directed to issue notice upon the PW-1 Md. Yusuf @ Nathu who is father of the deceased and after his appearance with support of DLSA, Ranchi under the guidance of Principal District and Sessions Judge-cum-Chairman, DLSA, Ranchi will formulate a rehabilitation scheme for the victim and also provide financial help to the victim taking help from the State fund as ad interim compensation in terms of Jharkhand Victim Compensation Scheme and is also directed to provide benefit of any of the ten schemes as sponsored by the NALSA and executed by JHALSA and DLSA and to submit its report to this Court within 16 weeks.