JUDGMENT : Challenge in this appeal 1 Prosecution Story 2 to 3 Charge and decision of the Trial Court 3 Argument advanced on behalf of the Appellant 3 to 5 Argument advanced on behalf of the prosecution 5 to 6 Appraisal & Findings of this Court 6 to 12 Result 12 Challenge in this appeal: This appeal is directed against the judgment of conviction dated 14.07.1998 and order of sentence dated 14.07.1998 passed in S.T. No. 434 of 1994 arising out of Jugsalai (Burmamines) P.S. Case No. 9 of 1994 by the Court of Learned 3rd Additional Sessions Judge, Jamshedpur, East Singhbhum, whereby and where under the appellant has been convicted for the offence punishable under Section 302/34 of IPC and further he has been convicted under Section 27 Arms and has been sentenced to undergo rigorous imprisonment for life under section 302/34 I.P.C. and further sentenced to undergo R.I. for five years for the offence under section 27 of Arms Act. However, both the sentences were directed to run concurrently. Prosecution Story: 2. The prosecution story is based upon the fardbeyan of the Dilip Chhatriya (P.W.-3), whose statement was recorded on 22.01.1994 at Santoshi Mandir, situated near the furniture shop of Parmod Sharma at Baba Kuti near Aata Chakki P.S. Burmamines, District East Singhbhum at Jamshedpur. 3. The gist of the allegations as unfolded in the Fardbeyan is as under:- The informant had stated that on 22.01.1994 in the evening he had gone to the house of the deceased Patal Das for watching T.V. program at 7:30 pm. Upon the request made by Patal's mother to call and bring the deceased, he went out for the said purpose. In course of searching out the deceased, when the informant reached near Santoshi Mandir, he found the deceased talking with Pramod Sharma with respect to making of an Ulna, at Pramod Sharma's furniture shop. He asked the deceased to go home as his mother was calling him whereupon he told the informant to wait. In course of searching out the deceased, when the informant reached near Santoshi Mandir, he found the deceased talking with Pramod Sharma with respect to making of an Ulna, at Pramod Sharma's furniture shop. He asked the deceased to go home as his mother was calling him whereupon he told the informant to wait. In the meantime when the informant was going towards a lane situated at the southern side of the said shop to urinate, he noticed that this accused with a pistol in his hand in the company of another accused, namely, Anji Rao reached at the said shop and pushed the deceased as a result of which he fell down inside the shop and upon that it is alleged that this accused caught hold of the deceased and by placing the pistol on left side of his neck, he opened fire. Thereafter, upon the instigation of this accused, Anji Rao threw a bomb like object on the back of the deceased which burst out. Thereafter, when the deceased was struggling for his life in a pool of blood, both the accused persons fled away. Pramod Sharma and his father Sitaram Sharma were said to have seen the occurrence. Upon halla, many people gathered there including the family members of the deceased. The motive of the occurrence is said to be the enmity between the family of the deceased and the family of the accused, Bijay Yadav, which is said to be going on from before. It is said that about a month before the occurrence, Matia Yadav (the brother of the appellant Bijay Yadav) was murdered and, in the case, filed in that connection, the younger brother of the deceased Patal Das was also one of the accused persons and for that reason it is said that the present occurrence had taken place at the hands of the accused person. 4. On the basis of the aforesaid fardabeyan disclosing the aforesaid story, the F.I.R. was lodged at Jugsalai (Burmamines) P.S. and the same was being numbered as Jugsalai (Burmamines) P.S.Case No. 0009/94 under sections 302/34 I.P.C. and 27 of the Arms Act and further under sections 3/4 of the Explosive Substances Act. The investigation was carried out, after completion of which the charge-sheet under the aforesaid sections was submitted against the accused persons, showing another accused, namely, Anji Rao as an absconder. The investigation was carried out, after completion of which the charge-sheet under the aforesaid sections was submitted against the accused persons, showing another accused, namely, Anji Rao as an absconder. The cognizance of the case, thereafter, was taken by the learned Magistrate who subsequent to that committed the case to the court of Sessions. Having registered Sessions trial, the same was ultimately transferred to the learned trial court for trial and disposal. Charge and decision of the Trial Court: 5. The charges under sections 302/34 I.P.C. and 27 Arms Act were framed against the accused-appellant and the same were read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 6. The learned Trial Court after conducting the full-fledged trial passed against the appellant impugned judgement of conviction and order of sentence which is under challenge in this appeal. 7. Heard the learned counsel for the appellant and the learned P.P. on behalf of the State. Arguments advanced on behalf of the Appellant: 8. It is submitted on behalf of the appellant that as per the prosecution case, it is said that there are two eye witnesses namely, PW-3 Dilip Chatraya (informant) and PW-4, Parmod Sharma. Deposition of both of them are contradictory to each other as the PW-3 (informant) identified the appellant as the assailant whereas PW-4 did not identify the appellant as the assailant of the deceased. According to PW-4 the assailant was unknown person. Further, it has also been pointed out that the deposition of PW-3 as an eye witness, has been falsified by the deposition of PW-2 Ajay Das (brother of the deceased Patal Das) who had categorically stated in para 2 that PW-3 informant has come to his house in the evening of 22.01.1994 (date of occurrence) at about in between 06:30 to 7:00 pm and stayed in his house till 9:00 pm. Therefore, the claim of the informant that he had witnessed the occurrence at 7:45 pm, which had taken place inside the furniture shop of PW-4 at 7:45 pm on 22.01.1994 gets falsified. Therefore, the claim of the informant that he had witnessed the occurrence at 7:45 pm, which had taken place inside the furniture shop of PW-4 at 7:45 pm on 22.01.1994 gets falsified. Further, it has also been contended on behalf of the appellant that the learned trial Court failed to appreciate the evidence of the Investigating Officer in this case examined as PW-6 who has stated in para 1 of his deposition that he noticed that the deceased was lying dead at the place of occurrence and from the position of the deceased a loaded country made pistol with three live cartridges were also recovered from his pocket of full pant. PW-6 has categorically stated in his deposition that the deceased was a man of criminal background and thus in view of the conflicting deposition of the eye witnesses, the possibility that the deceased might have been killed on account of gang war firing and not by the appellant, cannot be ruled out. Further, it has also been pointed on behalf of the appellant that there are conflicting statements on the point of recording of evidence of the informant in view of the fact that the fardbeyan of the PW-3 was said to have been recorded at Santoshi Mandir, near the furniture shop of Parmod Sharma whereas PW-6 stated in para 1 that the fardbeyan of the instant case was given by the informant PW-3 at the police station and thus the version of PW-3 is not reliable and being a "chance witness? of the entire occurrence his statements need to scrutinized meticulously and thus the learned trial Court has committed gross error in relying solely upon his statement in convicting the appellant. of the entire occurrence his statements need to scrutinized meticulously and thus the learned trial Court has committed gross error in relying solely upon his statement in convicting the appellant. It has further been contended on behalf of the appellant that even if accepting the depositions of only one eye witness i.e. PW-3 (Informant), the learned trial Court miserably failed to take into consideration the deposition of this so called eye witness recorded in para Nos.4, 5, 6, 7 and 9 where it has come in his depositions that PW-3 was facing sessions trial for assaulting by sword to the uncle, aunt and cousin sister of the appellant for the offences, inter alia, under Section 307 of the IPC and further at para 5 it has been stated by PW-3 himself that he was arrested and sent to jail for committing theft and on several occasion he has been arrested and sent to jail as evident from para 7 of his deposition and thus, the learned trial Court has committed an error in his finding. Further it has also been contended on behalf of the appellant that from the deposition of PW-6 (Investigating Officer) as recorded in para 6 of his evidence where the place of occurrence has not been duly proved since no blood mark was found nor any fired cartridges have been recovered by the Investigating Officer inside the furniture shop of the PW-4 where the occurrence took place by firearmed gun. Further, the learned trial Court has committed an error in discarding the evidence of DW-1 (examined in the defence of the appellant) without assigning any cogent reason in view of the fact that DW-1 stated clearly that PW-3 (informant) in the year 1991 had attacked his house with another criminal and DW-1 and his family members were assaulted by P.W.3 with sword. This witness DW-1 had also proved his fardbeyan in the said case which was marked as Exhibit-X for identification and DW-1 had further stated that the appellant had given evidence against PW-3 in the said criminal case and therefore, false implication by the PW-3, who was not present at the place of occurrence as evident from PW-2 and PW-4 is natural and explicit. Further it has also been stated that the learned trial Court did not appreciate the evidence in the present sessions trial diligently and lawfully and in sweeping manner, judgment of conviction has been passed for the offence under 27 of the Arms Act and 302/34 IPC without upholding the finding of guilt of the appellant either under Section 27(1), 27(2) or 27(3) of the Arms Act as they are distinct offences. In view of the aforesaid submissions, the learned counsel for the appellant has submitted that the impugned judgment of conviction and order of sentence are bad in law and fit to be set aside. Arguments advanced on behalf of the State. 9. On the other hand, learned P.P. appearing on behalf of the State has vehemently opposed the contention raised on behalf of the appellant and submitted that PW-3 who is the eye witness of the case has fully supported the case of the prosecution and his version is not doubtful even if the deposition of PW-4 and PW-2 are taken into account. Further, it has also been pointed out that all the witness including PW-3, PW-4, PW-5 & PW-6 have supported the case of the prosecution consistently and uniformly and there is no legal point to interfere in the impugned judgment of conviction and order of sentence and therefore the instant criminal appeal is fit to be dismissed. Appraisal & Findings of this Court 10. Having heard the parties, perused the record of the case including the Trial Court Records. 11. In order to prove its case, prosecution has been able to examine altogether 6 witnesses who are as under: 1. P.W.1-Dulal Das (Father of the deceased) 2. P.W.2-Ajay Das (brother of the deceased) 3. P.W.3-Dilip Chatraya (Informant) 4. P.W.4- Parmod Sharma (the person in whose furniture shop the occurrence has taken place.) 5. P.W.5- Yogendra prasad Nath (Doctor, who conducted post mortem of the deceased) 6. P.W.6- Barnabas Tirkey (Investigating Officer) Apart from the oral evidences the prosecution has proved some documentary evidences also which are as under: - i. Exhibit-1- Signature of Ajay Das on the Inquest report ii. Exhibit-2- is fardbeyan of the informant iii. Exhibit-3- Signature of Dilip Bahadur(chatraya) i.e. Informant on fardbeyan iv. Exhibit-4- Post Mortem report dated 12.11.1997 of the deceased Patal Das. v. Exhibit-5- Signature of Officer In-charge of Jugsalai Police Station on formal F.I.R. vi. Exhibit-6- Seizure List. vii. Exhibit-2- is fardbeyan of the informant iii. Exhibit-3- Signature of Dilip Bahadur(chatraya) i.e. Informant on fardbeyan iv. Exhibit-4- Post Mortem report dated 12.11.1997 of the deceased Patal Das. v. Exhibit-5- Signature of Officer In-charge of Jugsalai Police Station on formal F.I.R. vi. Exhibit-6- Seizure List. vii. Exhibit -6/1- Seizure list viii. Exhibit-7- Inquest report On the other hand, one witness has also been examined on behalf of the defence as D.W.1- Rishideo Yadav 12. At the outset, the deposition of P .W.5 Dr. Yogendra Prasad Nath is taken into account. P.W.5 had stated that he had conducted the post mortem examination upon the dead body of the deceased and according to him he had found the following injuries on the person of the deceased: A. Bomb explosion injuries – over an area of 10x11x7 cm over back of chest and right scapular area- the explosion and the splinters of the bomb resulted in extensive laceration of skin, soft tissues, fracture of the right scapular blendi, lacerated and contused of the right lung, pericardium, both lungs fractured 2 to 9 ribs at the lateral side of the chest. Splinters thread and tissue recommends from the somal was sent along with the post mortem report. On posteriorly, the explosion contused the soft tissue of back of chest and abdomen. B. Fire arm injuries- (a) Wound of entrance -6 x6 cm over left neck and adjoining left face. There was blackening of skin tag around the wound of entrance due to powder of projectile. (b) Wound of exit- 1x1 cm over left occipital scalp- coarse of bullet- After lacerating the soft tissues the projectile fractured left tissues the projectile fractured left mandibular wound passed upward and posteriorly entered into buckled cavity- Lacerated the posterior part of tongue, fracture the bone of skull and entered into cranial cavity- In the cranial cavity the projectile lacerates the bone of the brain then travelled through substance of left half of brain, made exit wound through left occipital bone which was fractured over an area of 3x2 cm which prevailing of outer table and then lacerated the occipital scalp to make the exit wound. A crack fracture 9 cm over left tempero occipital bone was also present. Contusion of right portion with blood and blood clot in the cranial cavity. A crack fracture 9 cm over left tempero occipital bone was also present. Contusion of right portion with blood and blood clot in the cranial cavity. According to the opinion of the doctor, all the injuries were ante-mortem and the bomb explosion injury was found due to bomb explosion, whereas fire-arm injuries were caused due to fire-arm. Death of the deceased was caused due to shock and hemorrhage of the vital organs of the injured. From the deposition of the witness, it is well founded that it is a case of homicide and the deceased was killed by the fire arm injuries and bomb explosion. 13. Now this court proceeds to consider comprehensively the evidences available on record vis-à-vis the findings of the learned trial Court with respect to the guilt of the accused-appellant in the commission of the offence. 14. The two witnesses namely P.W.1- Dulal Das and P.W.2- Ajay Das are father and brother of the deceased respectively and in fact they are the inquest report witnesses. It is found from the testimonies of these two witnesses that they are close relative of the deceased being father and brother but they are silent during course of the trial before the learned Trial Court about disclosing the name of the assailant, although they must have been informed at the first instance immediately after the said occurrence inasmuch as the so called eye witness PW-3 is said to have been at the P.O. (place of occurrence) at the instance of this parents of the deceased (P.W.-1 and mother). None of them either P.W.1 and P.W.2 has given the detail account of the occurrence nor they have disclosed the name of the accused in the commission of the offence before the trial court at the time of recording their statements and as such their ignorance in disclosing the name of the appellant before the learned trial court during course of their examination speaks a volume against the appellant?s involvement in the commission of the offence. 15. P.W.3- Dilip Chatriya is the informant of this case and he has stated that on the day, date and time of the occurrence he had gone from the house of the deceased to the furniture shop of the P.W.4 Pramod Sharma where this witness had met with the deceased Patal Das and asked him to come back to home as his mother was calling him. He had further stated that he had gone outside the shop to attend the nature's call, in the meantime he saw that this appellant along with co-accused persons come there and this appellant had fired upon the deceased causing gun shot injury and the co-accused Anji Rao had thrown bomb by which Patal Das died on the spot. It has also been stated by P.W.3 that shooting of gun took place "inside the furniture shop’ and at the time when gun was fired and bomb was exploded, he was by the side of the shop and "P.w.4- Pramod Sharma was inside the shop?. From the trend of the cross examination, it is found that the defence taken on behalf of the appellant is that this witness was not an eye witness and he had been harboring grudge with this appellant because of enmity and therefor PW-3 deposed against the appellant. In cross examination this witness stated that he had gone to jail for the offence of committing theft of one brief case from a tempo. Further the attention of this witness P.W.3 was also drawn by the defence that he had gone to jail in a case of attempt to murder by inflicting injuries by a "Sword? upon the uncle, aunt and cousin of the appellant, however, this witness had denied the same. P.W.3 however had categorically admitted that he had gone to jail several times but did not remember. Defence has also been taken that he was not at the spot at the time of occurrence and he had falsely implicated this appellant and the deceased had been killed in a “gang-war” by the opponents of the deceased who himself was a dreaded criminal as disclosed by the I.O. of this case in his deposition (P.W.6). 16. Another witness examined on behalf of the prosecution was P.W.4 - Pramod Sharma who is natural eye-witness in whose furniture shop this incident took place. He had stated in his examination-in-chief that the deceased was in his shop at the time of occurrence when P.W.3 had come in the shop asking the deceased that the mother of the deceased was calling him. He further stated that two persons had come to his shop where one boy fired by a pistol and another person had exploded the bomb by which deceased Patal Das had died. He further stated that two persons had come to his shop where one boy fired by a pistol and another person had exploded the bomb by which deceased Patal Das had died. This witness categorically stated in para 2 of his examination-in-chief that he did not identify the accused. This witness has been declared hostile on the point of identification and he has denied the earlier statement given before the Police in the cross examination conducted on behalf of the prosecution. This witness has identified his signature on the statement recorded under Section 164 of Cr. P.C. before the learned Magistrate, which has been marked as Annexure-A. From perusal of the statement of this witness Pramod Sharma recorded under Section 164 Cr.P.C it is found that he has not taken the name of this appellant in the commission of the offence and stated that some unknown persons came there and fired upon the deceased and further he also stated before the learned trial court that the appellant was not the person who had killed the deceased. 17. P.W.6- Barnabas Tirkey is another witness examined on behalf of the prosecution, who is the Investigating Officer of the case. This witness had stated that P.W.4 was examined before the learned Magistrate for recording his statement under Section 164 Cr.P.C wherein he had not taken the name of the appellant as the assailant who fired gun upon the deceased causing fire arm injury. This witness had categorically stated at para 6 that deceased Patal Das had 5 criminal cases against him in which charge-sheet was submitted and thus it is established that the deceased was a history sheeter with a criminal background. 18. On the other hand, defence has been able to examine one witness D.W.1 – Rishi Deo Yadav who is the uncle of the appellant. Defence has examined this witness in order to substantiate his defence that P.W.3 Dilip Chattriya was on inimical terms with the appellant in view of the fact that P.W.3 along with some other person had attempted to kill this witness D.W.1 along with his daughter and wife, regarding which a case was instituted, which has been marked as Ext. "X" for identification. From perusal of the said document, Ext. – "X? "X" for identification. From perusal of the said document, Ext. – "X? it is found that the case was instituted by this witness D.W.1 Rishi Deo Yadav against P.W.3 and other accused persons which was registered as Burmamines P.S. Case No. 131 of 1991 dated 28.07.1991 corresponding to G.R. No. 1664 of 1991 registered inter alia under Section 307 of the IPC. 19. Recapitulating the appraisal of the testimonies of the witnesses and the documents available on record as above in foregoing paragraphs it appears that the prosecution has claimed that as per the prosecution story there were two eye witnesses namely P.W.3- Dilip Chattriya and P.W.4- Pramod Sharma. It is manifest from the evidence that P.W.3 was on inimical terms with this appellant and he is a “chance witness”. It is a settled principle of law that deposition of a chance witness cannot be discarded in a routine course, though a little more scrutiny is required and in the present case due caution and care is more required in analyzing his disposition when it is found that P.W.3 and the appellant were on inimical terms and further it is found that P.W.3 had been in jail in several cases and the deceased was also a hard-core criminal. Close scrutiny of the deposition of this chance witness P.W.3 and the deposition of P.W.4 who is a natural eye-witness become more important when the deceased admittedly was a history sheeter having several cases against him, as evident from the deposition of the Investigating Officer P.W.6. Further the presence of this “chance witness P.W.3” is also doubtful in the light of the deposition of P.W.2 Ajay Das (brother of deceased), who has categorically stated that Dilip Chattriya -P.W.3 had come to his house at about 6.30-7.00 p.m. at night and he remained there till 9.00 p.m. on the date of occurrence i.e., 22.01.1994 and therefore, his deposition about the incidence deserves to be discarded because the incident is said to have taken place on 22.01.1994 at 7:15 pm and from the version of P.W.-2 (brother of deceased) it is evident that at that time the chance witness PW-3 was in the house of P.W.-2. Thus presence of P.W.-3 is not only falsified by the version of brother of the deceased - P.W.2 rather the deposition of P.W.3 is further not corroborated from the natural eye witness i.e., P.W.4 Pramod Sharma, who did not identify the appellant on the dock nor on the spot as a murderer of the deceased Patal Das and according to him the assailant was unknown person, although he stated that P.W.3 had come to his shop but the arrival of P.W.3 at the time of occurrence becomes doubtful in the light of categorical deposition of P.W.2 as discussed above.. From the aforesaid evidences, it is found that the learned Trial Court has committed a gross irregularity in appreciation of evidences. The version of P.W.3 who is a "chance witness? requires caution and close scrutiny and his presence becomes wholly doubtful in view of the version of the prosecution witness P.W.2. Further the version of P.W.4, who is a natural witness, that the deceased was killed by unknown person becomes more convincing and acceptable because as per the prosecution story itself the deceased was a man of criminal antecedent having 5 criminal cases in which charge-sheet was submitted against him, hence the possibility of gang-war cannot be ruled out and thus in a cogent and convincing manner based on the evidences available on record, the benefit of doubt goes to the appellant who deserves to be acquitted by giving benefit of doubt because of the major contradictions in the versions of natural eye-witness (P.W.-4) and chance witness (P.W.- 3), particularly on the point of identification of the appellant as an assailant. 20. Hence in the light of settled principle of law that the deposition of the chance witness, as in the present case, whose presence at the place of occurrence is doubtful, is discarded. It has also been well founded principle of law that when the witness is on inimical terms with the accused, the deposition of such witness is required to be analyzed very cautiously and closer scrutiny is required. In the present case, from the statement of P.W.3 himself and further from the deposition of D.W.1, it is found that P.W.3 and the appellant were at logger head and therefore to become a chance witness for P.W.3 gets persuasively falsified. In the present case, from the statement of P.W.3 himself and further from the deposition of D.W.1, it is found that P.W.3 and the appellant were at logger head and therefore to become a chance witness for P.W.3 gets persuasively falsified. There is no other witness adduced on behalf of the prosecution except P.W.3 by which charge of murder is proved beyond reasonable doubt against the accused- appellant. 21. In the backdrop of aforesaid discussion and emerging facts from the testimony of the witnesses, it is fit case where the benefit of doubt goes to the appellant. The learned Trial Court has erred in appreciating the evidences particularly when the learned trial court has accepted the version of P.W.3 as a sacrosanct version without considering the enmity vis-a-vis the version of natural eye witness P.W.4 and doubtful claim of P.W.-3 to remain present at the scene of crime when the occurrence took place in the light of categorical version of P.W.2. Therefore, impugned judgment of conviction and order of sentence passed by the learned Trial Court is fit to be set aside. 22. Accordingly, the appellant is acquitted of the charges levelled against him by giving him benefit of doubt and consequently, the impugned judgment of conviction dated 14.07.1998 and order of sentence dated 14.07.1998 passed in S.T. No. 434 of 1994 arising out of Jugsalai (Burmamines) P.S. Case No. 09 of 1994 passed by the Court of Learned 3 rd Additional Sessions Judge, Jamshedpur is set aside. The appellant is on bail. Therefore, he is discharged from the liability of his bail bond. Result: 23. The instant criminal appeal is allowed. 24. Let the Trial Court Records and the copy of the judgment be transmitted to the concerned Trial Court.