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2019 DIGILAW 435 (JHR)

Sanjay Samad v. State Of Jharkhand

2019-02-13

AMITAV K.GUPTA, H.C.MISHRA

body2019
JUDGMENT 1. Heard learned counsel for the appellant and the learned counsel for the State. 2. The appellant is aggrieved by the impugned Judgement of conviction dated 31.03.2008 and Order of sentence dated 04.04.2008, passed by the learned Additional Sessions Judge, Fast Track Court-II, Seraikella Kharsawan, in S.T. No. 28 of 2007, whereby, the sole appellant has been found guilty and convicted for the offences under Section 302 of the Indian Penal Code, and Section 27(1) of the Arms Act. Upon hearing on the point of sentence, the appellant has been sentenced to undergo R.I. for life and fine of Rs. 1,000/-, for the offence under Section 302 of the Indian Penal Code, and R.I. for three years and fine of Rs. 1,000/-, for the offence under Section 27(1) of the Arms Act, and both the sentences were directed to run concurrently. 3. The prosecution case was instituted on the basis of the fardbeyan of the informant Rohia Barda, the resident of village Kelugote, P.S. Rajnagar, District Seraikella Kharsawan, and the brother of the deceased Lakhan Barda, recorded on 13.11.2006 at 23:30 hours at M.G.M. Hospital, Jamshedpur, wherein he has stated that on the same day in the evening he was sitting alongwith his brother and other villagers by the side of the village road in front of house of Lokay Samad. At about 6:00 to 7:00 P.M., the accused Sanjay Samad came there and started abusing his brother Lakhan Barda in filthy languages for the reason that he had engaged two labours, who were working in the field of the accused. When he was prevented to make abuses in filthy languages, he went back to his house threatening to kill, returned back, and taking out a pistol from his pocket, fired the same upon the deceased, injuring him near his neck. The deceased fell down sustaining bleeding injuries. The deceased was brought to Rajnagar Hospital with the help of the villagers, from where, he was referred to M.G.M. Hospital, Jamshedpur. He was brought to M.G.M. Hospital, Jamshedpur, but in course of treatment, he died after some time. On the basis of fardbeyan of the informant, Rajnagar P.S. Case No.56 of 2006, corresponding to G.R. No.815 of 2006, was instituted for the offences under Section 302 of the Indian Penal Code, and Section 27(2) of the Arms Act, against the accused Sanjay Samad, and investigation was taken up. On the basis of fardbeyan of the informant, Rajnagar P.S. Case No.56 of 2006, corresponding to G.R. No.815 of 2006, was instituted for the offences under Section 302 of the Indian Penal Code, and Section 27(2) of the Arms Act, against the accused Sanjay Samad, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case. 4. After commitment of the case to the Court of Session, charge was framed against the accused for the offences under Section 302 of the Indian Penal Code, and Section 27(2) of the Arms Act, and upon the accused''s pleading not guilty and claiming to be tried, he was put to trial. 5. In course of trial, 11 witnesses were examined by the prosecution, including the I.O., and the Doctor, who had conducted the post-mortem examination on the dead body of the deceased. Out of the material witnesses examined, P.W.-2 Amar Singh Lamay, P.W.-10 Ramesh Deogum and P.W.-11 Kandey Soy, have turned hostile and have not supported the prosecution case at all. 6. P.W.-6 Rohiya Barda is the informant of the case, and the brother of the deceased. He has stated that the occurrence had taken place on 13.11.2006, at about 7:00 P.M. He was sitting on the verandah of Lokay alongwith the deceased and other persons. The accused Sanjay Samad came there asking the deceased as to why he had taken away his labours and thereafter he went to his house, came back and assaulted the deceased by firing pistol on his neck, due to which his brother fell down, being injured. He has stated that the persons sitting there fled away and after some time they returned back and brought the deceased to Rajnagar Hospital, from where he was referred to M.G.M. Hospital, Jamshedpur, where at the time of treatment he died. He has stated that the police had recorded his fardbeyan at M.G.M. Hospital, and finding the same to be true, he had put his thumb impression thereon. He has identified the accused in the Court. This witness was put to extensive cross-examination, but nothing could be taken in his cross-examination to discredit his testimony. He has stated that the police had seized the blood stained soil from the place of occurrence. He has also denied the suggestion that his deceased brother was of criminal nature, due to which he was killed by some criminal. This witness was put to extensive cross-examination, but nothing could be taken in his cross-examination to discredit his testimony. He has stated that the police had seized the blood stained soil from the place of occurrence. He has also denied the suggestion that his deceased brother was of criminal nature, due to which he was killed by some criminal. He has denied the suggestion of giving false evidence. 7. P.W.-1 Turku Lohar, P.W.-3 Ram Soy and P.W.-5 Mangura Barda are the witnesses who were sitting alongwith the deceased at the time of occurrence, and all of them have supported the prosecution case as eye witnesses to the occurrence, in more or less the same manner as stated by the informant P.W.-6 Rohiya Barda, stating that while they were sitting together, the accused Sanjay Samad came, and there were some quarrel for labour. The accused went back to his house, returned back and assaulted the deceased by pistol causing injury on his neck.They have stated that they fled away due to fear and by the time they returned back they found the deceased fallen in unconscious state. They brought the deceased to the hospital / police station, and thereafter the deceased was brought to M.G.M. Hospital, were in course of treatment the deceased died. These witnesses have stated that they had accompanied the deceased to the hospital. They have also identified the accused in the Court. P.W.-3 Ram Soy and P.W.-5 Mangura Barda have also stated in their cross-examinations that the police had seized the blood stained soil from the place of occurrence. All these witnesses have also denied the suggestion that the deceased was of criminal nature, due to which he was killed by some criminal. Though these witnesses were also put to extensive cross-examination, but nothing could be taken in their cross-examinations to discredit their testimony. 8. P.W.-4 Raju Samad is only the witness of the inquest report of the dead body of the deceased. He has identified his signature and signature of other witness on the inquest report, which were marked Exhibits 1 and 1/1 respectively. He has stated nothing about the occurrence. 9. P.W.-7, Lakhan Soy is a labour who was engaged by the deceased, and this witness has also stated nothing about the occurrence. 10. P.W.-8 Dr. He has identified his signature and signature of other witness on the inquest report, which were marked Exhibits 1 and 1/1 respectively. He has stated nothing about the occurrence. 9. P.W.-7, Lakhan Soy is a labour who was engaged by the deceased, and this witness has also stated nothing about the occurrence. 10. P.W.-8 Dr. Akhilesh Choudhry had conducted the post-mortem examination on the dead body of the deceased on 14.11.2006, and had found the following injuries on the dead body:- Wound of entrance over right side outer aspect of lower neck, 41/2 c.m. x 1 c.m. x neck deep, 5 c.m. below the angle of lower jaw and 8 c.m. Rt. Lateral to the angle of luis and surrounded by a zone of tattooing measuring 25 c.m. vertically and 15 c.m. horizontally, involving right half of face below right lower eye lid and right half of front of neck and upper third right side front of chest. The projectile after piercing through skin and soft tissues fractured right collar bone, 1 st to 4th ribs on right. side, puncturing the upper and middle lobes of lung on right side and came out through wound of exit over right side mid chest back, measuring 1 c.m. x 1/2 c.m. x muscle deep with lacerated wound margin 9 c.m. Rt. lateral to mid line of spine and 19 c.m. below the shoulder line. Projectile was missing. Chest cavity of right side was containing blood. He has stated that the injuries were ante-mortem in nature, and were caused by firearm weapon, and the death was due to haemorrhage and shock due to the said injury. He has proved the post-mortem report to be in his pen and signature, and the same was marked Ext.-2. 11. P.W.-9 R.S. Patel is the I.O. of the case. This witness has stated that on 13.11.2006 he was posted as officer-Incharge of Rajnagar Police Station. At about 9:15 P.M. in the night, there was a telephonic information that one person was assaulted by fire arm at Kelugote village, whereupon he went to the place of occurrence alongwith the police party. The injured was brought to Rajnagar Hospital by the police party and the villagers, from where he was referred to M.G.M. Hospital, Jamshedpur, where he died soon after the treatment started. The injured was brought to Rajnagar Hospital by the police party and the villagers, from where he was referred to M.G.M. Hospital, Jamshedpur, where he died soon after the treatment started. He recorded the fardbeyan of the informant Rohiya Barda, the brother of the deceased, at M.G.M. Hospital. He also prepared the inquest report of the dead body, which he has proved and the same was marked Exhibit-3. He took over the charge of investigation. He inspected the place of occurrence, where he found the blood stains. He recorded the statement of the witnesses. He arrested the accused, who informed that he had thrown the weapon on a hillock, where the weapon was searched, but the same could not be found. He got the post-mortem report, and after completing the investigation, he submitted the charge-sheet. He has proved the formal F.I.R., the fardbeyan and the endorsements on the fardbeyan, which were marked Exhibits- 4, 5 and 5/1 respectively. In his cross-examination this witness has admitted that he had not seized the blood stained soil from the place of occurrence, nor he had seized the clothes of the deceased. He had also not recovered any fired cartridge from the place of occurrence. He has denied the suggestion of making faulty investigation. 12. The statement of the accused was recorded under Section 313 of the Cr.P.C., wherein he has denied the evidence against him. No evidence was adduced by the defence. On the basis of the evidence on record, the accused has been convicted and sentenced by the Trial Court below, for the offences as aforesaid. 13. Learned counsel for the appellant has submitted that the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, cannot be sustained in the eyes of law, inasmuch as, there were suggestions given to the witnesses that the deceased was of criminal nature and he had been murdered by some unknown criminal. It is submitted by the learned counsel that though the witnesses have supported the case as eye witnesses to the occurrence, but there is no recovery of any firearm from the accused. Even the blood stained soil or the fired cartridge were not seized from the place of occurrence. Learned counsel accordingly, submitted that in the facts of this case the appellant was entitled at least to the benefits of doubt. 14. Even the blood stained soil or the fired cartridge were not seized from the place of occurrence. Learned counsel accordingly, submitted that in the facts of this case the appellant was entitled at least to the benefits of doubt. 14. Learned counsel for the State on the other hand, has opposed the prayer, submitting that the prosecution case is fully supported by P.W.-1 Turku Lohar, P.W.-3 Ram Soy, P.W.5 Mangura Barda and P.W.-6 Rohiya Barda as eye witnesses to the occurrence, and though these witnesses were put to extensive cross-examination by the defence, but nothing could be taken by the defence in their cross-examination to discredit their testimony. It is submitted by learned counsel that the ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-8 Dr. Akhilesh Choudhury and the post-mortem report proved by him as Exhibit-2, which show that the deceased had died due to firearm injuries. Learned counsel accordingly, submitted that the prosecution has been able to bring home the charges against the accused beyond all reasonable doubts and there is no illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below. 15. Having heard learned counsels for both the sides and upon going through the evidence on record, we find that prosecution case is fully supported by P.W.-1 Turku Lohar, P.W.3 Ram Soy, P.W.5 Mangura Barda and P.W.-6 Rohiya Barda, the informant and the brother of the deceased, as eyewitnesses to the occurrence. All of them have stated that the accused had assaulted the deceased by pistol causing injuries on his neck due to which he fell down at the spot. He was brought to Rajnagar Hospital, from where he was referred to M.G.M Hospital, Jamshedpur, where soon after the treatment started, the deceased died. This fact is also supported by P.W.-9 R.S. Patel, the I.O of the case, who had also accompanied the deceased from the place of occurrence to both the hospitals. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-8 Dr. Akhilesh Choudhry, who had found both the wounds of entry and exit, on the dead body of the deceased. The wound of entry was near the neck, involving the right half of face, front of neck and portion of chest. The ocular evidence of these witnesses is fully corroborated by the medical evidence of P.W.-8 Dr. Akhilesh Choudhry, who had found both the wounds of entry and exit, on the dead body of the deceased. The wound of entry was near the neck, involving the right half of face, front of neck and portion of chest. The projectile had fractured right collar bone and 1st to 4th ribs on the right side, punctured the upper and middle lobes of lung and the chest cavity was containing blood. The wound of entry was having tattooing marks, which shows that the firing was made from a close range. The injuries were certainly sufficient in the ordinary course of nature to cause the death. P.W.-1 Thurku Lohar, P.W.-3 Ram Soy and P.W.-5 Mangura Barda appear to be independent witnesses, and in view of the fact that the independent witnesses have also supported the prosecution case along with P.W.-6 Rohiya Barda, the brother of the deceased, and their ocular evidence is fully corroborated by the medical evidence of P.W.-8 Dr. Akhilesh Choudhry, and the post-mortem report proved by him as Ext.-2, we do not find any illegality in the impugned Judgment of conviction and Order of sentence passed by the Trial Court below, worth any interference by this Court. 16. Initially, the charge was framed against the accused for the offence under Section 27 (2) of the Arms Act, but upon appreciating the evidence on record, and in view of the fact that there is nothing on the record to show that the assault was made by any prohibited firearm, the accused has been convicted for the lesser offence under Section 27 (1) of the Arms Act, and we find from the evidence on record that the Trial Court was perfectly justified in doing so. 17. For the foregoing reasons, we do not find any illegality in the impugned Judgement of conviction dated 31.03.2008 and Order of sentence dated 04.04.2008, passed by the learned Additional Sessions Judge, Fast Track Court-II, Seraikella Kharsawan, in S.T. No. 28 of 2007, convicting and sentencing the appellant Sanjay Samad, for the offences under Section 302 of the Indian Penal Code, and Section 27 (1) of the Arms Act, which we hereby, affirm. The appellant Sanjay Samad is already in custody, undergoing the sentence. 18. The appellant Sanjay Samad is already in custody, undergoing the sentence. 18. We do not find any merit in this appeal and the same is accordingly, dismissed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment.