Sarju Ram Son Of Late Sita Ram vs The State Of Jharkhand on 17 January, 2020

[Cites 11, Cited by 0]

Jharkhand High Court

Sarju Ram Son Of Late Sita Ram vs The State Of Jharkhand on 17 January, 2020

Equivalent citations: AIRONLINE 2020 JHA 8, 2020 (1) AJR 680

2. This criminal appeal is directed against the Judgment of conviction and Order of sentence dated 15.02.2003, passed by the learned 3rd Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 244/94, arising out of Manatu P.S. Case No. 70/93, corresponding to G.R. Case No. 1484/93, whereby and where under, both the appellants have been convicted for the offence under Sections 326 and 307/34 IPC and sentenced concurrently for offence under sections 326 and 307/34 of IPC both to undergo RI for a period of six years and to pay a fine of Rs.1000/- each and in default of making payment of fine, the convicts shall have to undergo imprisonment for a further period of one year.

3. Prosecution case in brief as per the fardbeyan of the informant Deo Narayan Ram PW-10 is that informant on 26.10.1993 in the evening he was returning from Manatu Market from the shop of Ashok Kumar Agrawal(PW-8) after listening the radio news as usual. At about 7:45 p.m. when he reached on road near mahua tree at about 500 yard east of market he saw two accused persons (appellants herein) 2 standing there. On seeing them the informant said them - they were here? The informant proceeded but in the meantime accused Basudeo Mahto fired from his pistol from behind causing injury on the back left side of his head. The informant asked the accused persons reason for such attack and tried to snatch the pistol from the hand of Basudeo Mahto. In the meantime, accused Sarju Ram took the pistol in his hand and fired another shot upon the informant causing injury near right shoulder and splinters caused hurt to his right side of temporal region, cheek and chest. Thereafter, injured informant fell down on the ground and raised alarm. On hearing alarm, witness Mahendra Ram(PW-7), Birendra Sao(PW-5), Birjoo Bhuian(PW-4) and many other persons from came Manatu Bazaar side and rushed towards the place of occurrence then accused persons fled away towards east. Villagers and nearby persons took informant to the hospital for treatment and in the hospital his fardbeyan was recorded. It is further stated in the fardbeyan that the accused Sarju Ram during the lifetime of his first wife married with another woman and was trying to get rid of his first wife imputing wrong allegations on her.Informant had advised the accused Sarju Ram to keep both of his wives and hence accused Sarju Ram doubted that the informant was the person who had been instigating his first wife and for this reason accused Sarju Ram with accused Basudeo Mahto shot him from the gun.

4. On the basis of the fardbeyan of the informant Manatu P.S. Case No. 70/93 dated 26-10-1993 was registered under Sections 324, 307/34 of IPC and Section 27 of the Arms Act against the accused persons. After investigation charge sheet was submitted and cognizance of the offence was taken and the case was committed to the court of sessions. Charges were framed under sections 326, 307/34 of IPC and under section 27 Arms Act. After the conclusion of trial accused persons or appellants herein were convicted and sentenced as aforesaid. Hence, this Appeal.

5. Prosecution has examined altofether 11 witnesses in support of its case. PW-10 Deo Narayan Ram is the informant of this case. PW-9 Dr. Mahesh Prasad is the Medical Officer of Manatu Public Health Centre who had examined the injured informant. PW-11 Surendra Prasad Singh is the Investigating Officer of the case. PW-1 Jhalu Yadav @ Jhalu Mahto and PW-2 Arjun Bhuian are hearsay witnesses. PW-3 Kedar Yadav, PW-4 Birju Bhuian and PW-5 Birendra Sao are hostile witnesses. PW-6 Mahendra Prasad(Sao) and PW-7 Mahendra Ram are seizure list witnesses. PW-8 is Ashok Kumar Agrawal.Ext.2 is injury report whereas Ext.5 is formal FIR. Ext.4 is a forwarding letter for medical examination of the informant. Ext.7 is a letter, 3 addressed to the Sargent Major for examination of the seized firearms and ammunition. Ext.8 is the report of the Sargent Major in respect of the seized arms and ammunition.

6. PW-10 Deo Narain Ram is the informant of this case. He stated in his evidence that the alleged occurrence took place on 26.10.1993 at 7:45 p.m. At 7:30 p.m. he was returning to his home at Bihra from the shop of Ashok (PW-8) after hearing radio news from there. When he reached at a mahua tree at a distance of about 500 yards east from Manatu Market,he saw both the accused persons standing there. He asked them what they were doing ? Accused persons said "chacha let ho gaya hai, bazzar se laut rahain hain". Thereafter when informant moved two steps ahead, the accused Basudeo Mahto fired shot from a pistol which hit him on the back of his head. PW-10 further stated that when he raised alarm accused Sarju Ram snatched the pistol from Basudeo Mahto and fired upon him which caused him injury on his right chest. When the informant raised alarm then several persons from the market rushed and saved him and in the meantime the accused persons fled away. Witnesses Mahendra Ram(PW-7) ,Birendra Sao(PW-5) and Mahendra Sao (PW-6) arrived there and carried him to Manatu Hospital. The officer-in-charge of police station came in the hospital and recorded his statement. Informant has proved the fardbeyan and his signature on fardbeyan which were marked as Ext-3 and Ext-2/1 respectively. Informant further stated that the accused Sarju Ram had deserted his wife and for this informant intervened in the matter for which the accused Sarju Ram had grudge against him. In his cross cross- examination, he stated that he was going to his home alone. In para no.16 of his cross-examination he stated that first shot was fired on him from the back side and whereas, second shot was fired from front side at a distance of one hand on his chest and thereafter he fell down on the ground. In cross examination at para 19 informant has stated that accused Sarju Ram is nephew of his agnate.

7. PW-9 Dr. Mahesh Prasad examined the injured informant on 26.10.1993 and found the following injuries on his person:

1(A). Lacerated wound entrance ¼"x ¼" over right occipital region and straight path skin deep 3" length over left parietal aspect (upward direction).

1(B). Lacerated wound exit ½" x ½" over right parietal region. 2(A). Lacerated wound entrance ¼"x ¼"x 1/4'' over medial size of right shoulder joint depth 3" (vertical direction). 2(B). Lacerated wound exit ½"x ½" over upper 1/4th of right arm (interior aspect).

3. Unburnt and partial burnt powder grains has extended over medial surface or right shoulder about 3"x 3 ½" right cheek 1 ½"

x2" right surface of neck, 3"x 3 ½" which has like tattooing mark.

4. A bruise 1"x ½" over left shoulder joint.

5. A bruise 1 ½"x ½" over lateral aspect of left eye.

6. Fracture in middle finger of left hand. Age of injury was found within 6 hours.

The Doctor has opined that injury No.1 was caused by bullet which may be fired by short arm weapon such as pistol. Tattooing marks found near the wound and the pellet has passed through the skin muscles deep below to upward direction which formed track length 3 inches. An entrance wound was made over the surface of right occipital region and exit wound is made over parietal region.The entrance wound was smaller than exit wound and caused excessive bleeding.The Doctor opined that injury No.1 was grievous in nature. Regarding injury No.2 doctor opined that it was grevious in nature and caused by firm arm such as pistol. Doctor further stated that injury no.3 was burn injury and injury no.4 and injury no.5 were simple in nature. Injury No.6 was grievous in nature caused by blunt and hard object. Doctor proved the injury report of the informant which was marked as Ext.2.

8. PW-11 Surendra Prasad Singh is the Investigating Officer of this case. He has stated in his examination-in-chief that on 26.10.1993 he heard a rumor that dresser of Manatu Gogernment Hospital Sri Deo Narain Ram was shot by firearm and he is under treatment in hospital. He entered the aforesaid information in the Station Diary vide Entry No. 385 dated 26.10.1993 and went to Manatu Hospital for verification of the aforesaid information. In the hospital he found the victim Deo Narain Ram in an injured condition.He recorded the fardbeyan of the injured and prepared the injury requisition and handed over the said injury requisition to the Doctor on duty Sri Mahesh Prasad (PW-9).The said injury requisition is marked as Ext-4.He has proved the formal FIR to be in his hand writing and signature which was marked as Ext-5.PW-11 further stated that he arrested the accused Sarju Ram on whose information loaded pistol, from which shot was fired, was recovered from the house of accused Sarju Ram from a box. He prepared the seizure list of the recovered arm and a separate case No. 71/93 under the arms act was registered.PW-11 further stated that the place of occurrence is is at a distance of 500 yards East from the Manatu Market. At the place of occurrence he found one torch of two cells in working condition, one match packet ,one pair 5 of hawai chappal, two empty copper cartridges and two copper pellet. The seizure list of aforesaid articles were prepared which was marked as Ext-6.

9. PW-6 Mahendra Prasad(Sao) is a seizure list witness who has proved his signature Ext.-1 on the seizure list. He was declared hostile by the prosecution. PW-7 Mahendra Ram is also a seizure witness who has stated in his examination-in-chief that in the year 1993 police had obtained his signature Ext.-1/1 on a paper.

10. PW-8 Ashok Kumar Agrawal has stated in his examination-in-chief that the alleged occurrence took place in the year 1993 at 7:30 p.m. He further stated he was at his shop and there Deo Narayan Ram (Informant) and two- three persons came to his shop at 7 p.m. After hearing news from radio informant proceeded for his home situated at village Bihra and he was engaged in closing his shop. PW-8 further stated that after sometime he heard alarm and then he along with other persons of the market went towards the place of alarm. When they reached at "Tin Muhan" he saw the victim Deo Narain Ram coming from the opposite side catching his head and blood was oozing from his head. A vehicle was arranged and the injured Deo Narain Ram was sent to hospital. This witness has admitted that accused persons are his co-villagers. After being declared hostile this witness was subjected to cross-examination by the prosecution in which at para-5 he stated that sound of firing was heard by him while he was closing his shop. He further stated in his cross-examination by the prosecution that he saw Deo Narayan Ram coming in struggling and in injured condition. Injured Deo Narain Ram was saying that Sarju Ram and Basudeo Mahto had shot him. In his cross- examination at para-6 PW-8 further stated that police had come at his house and he said what was true.He had told the police that Deo Narayan Ram had told him that Sarju Ram and Basudeo had shot him. At para-9 he stated that Deo Narayan Ram was shot at a distance of 10-15 meter from his shop and he met injured Deo Narain Ram at a distance of 4 meter from his shop.At,para- 13 he stated that though Deo Narain Ram was injured but anyhow he came walking upto to Manatu Bazar.

Arguments of learned counsel for the appellants:

11. Learned counsel for the appellants submitted following arguments in support of the appellants case :

(i) Conviction of the appellants under Sections 326 and 307/34 of IPC is not sustainable altogether in law since both Sections are for assault. Sharp 6 cutting injury is one of the ingredients under Section 326 IPC which does not appear in this case and as such conviction under Section 326 IPC is not maintainable because no such injury was found on the person of the informant.

(ii) Conviction of the appellants under Sections 307/34 is also not proved by the prosecution beyond reasonable doubt and therefore, the appellants are entitled to benefit of doubt under the facts and circumstances and evidences available on records. In the instant case, intention does not appear from the fardbeyan of the informant because when the informant asked the appellants as to what are they doing at the place of occurrence, accused said- "chacha, bazaar mein deir ho gaya " thus it does not appear that at the place of occurrence there was any intention to kill or assault the informant.

(iii) The informant in his fardbeyan stated that when the informant raised alarm three witnesses came at the place of occurrence who are Mahendra Ram PW-7, Birendra Saw PW-5 and Birju Bhuiyan PW-4 out of which Birendra Saw PW-5 and Birju Bhuiyan PW-4 were declared hostile and Mahendra Ram PW-7,who is also a seizure list witness ,did not support the prosecution case and hence entire fardbeyan or prosecution story is falsified.

(iv) The manner of carrying away the injured informant to Manatu Hospital by different means by different witnesses makes the entire prosecution case suspicious.Informant PW-10 Deo Narayan Ram has stated in his fardbeyan that "gaown ke agal bagal ke log tang kar hospital le gaye". PW-5 has stated in para-1 of his evidence that he carried the PW-10 Deo Narayan Ram to the Manatu Hospital by bus and then he came back to his home from the same bus. But informant PW-10 Deo Narayan Ram has stated in para-2 of his evidence that he was carried to Manatu Hospital by Mahendra Ram PW-7, Birendra Saw PW-5 and Mahendra Saw PW-6 but PW-5 and PW-6 have been declared hostile and PW-7 did not support the prosecution case. Whereas PW-9 Dr. Mahesh Prasad who examined the injured informant PW-10 has deposed in his evidence at para-13 that the injured Deo Narayan Ram was brought before him by a constable which contradict the evidences of other witnesses.

(v) Learned counsel for the appellants has further submitted that IO of this case registered an another case for the same offence and occurrence under Arms Act being Manatu P.S. Case No. 71 of 1993 in which appellant No.1 7 Sarju Ram has been acquitted in Cr. Revision No.542/2003 by a Bench of this Court.

(vi) Prosecution could not prove motive against appellant No.1. Informant PW-10 Deo Narayan Ram has stated about the motive in last para of fardbeyan. But, in para-4 of his evidence informant has stated that appellant No.1 Sarju Ram had left his first wife and when a complaint was made to him by Sarju's first wife then he told the true fact to Sarju Ram and so accused Sarju was unhappy with him and therefore the incident occurred. But PW-10 Deo Narayan Ram could not prove in his evidence that there was any dispute of appellant no.1 with his first wife as in para-11 of his evidence informant PW-10 Deo Narayan Ram has deposed that no case was lodged by the first wife of Sarju Ram against appellant No.1 Sarju Ram, neither any panchayati was convened in the village.

(vii). There is a complete mismatch in the evidence of informant and the injury report given by the Doctor PW-9.Doctor had given the first aid to the injured informant but Doctor has given the opinion about the injury without completing the medico legal formalities and hence the evidence deposed by the Doctor and injury report given by him is nonest in the eye of law. The report prepared by the Doctor at Manatu Hospital is also doubtful because the informant PW-10 Deo Narayan Ram was earlier working as a dresser in the said hospital and the injury report neither has the letter number nor the seal of the Hospital which belies the entire prosecution story. Informant was alleged to have received bullet injury in the head but neither he became unconscious nor any X-ray or CT scan of head was done or documents regarding further treatment or surgery is on record which makes the prosecution case doubtful.

(viii) Informant PW-10 Deo Narayan Ram has said in his fardbeyan that appellant Basudeo Mahto made a gunshot injury on left back side of the head but Doctor PW-9 has found a injury over right occipital region which contradicts the oral evidence of the informant with the medical evidence of the doctor.In the injury No.2(a), lacerated wound entrance ¼" x ¼" x ¼" over medal side of right shoulder joint deep 3" vertical direction was found. In injury No.2 (b), lacerated wound exit 1/2" x 1/2" over upper ¼" of right arm over interior aspect was found which suggest that there is an entry wound and exit is found in vertical direction which could not be possible until and unless the shot is made from the lower part and in such circumstances a man will survive, cannot be believed.

(ix) Ext.2 which is the injury report of the informant cannot be relied upon because Doctor PW-9 deposed in para-7 that injured was not admitted in Manatu Hospital but the final opinion about injuries were given though no X-

ray was done or any medico legal formalities were completed. On record, there is no evidence of treatment in any higher centre which makes the injury report suspicious. Doctor PW-9 has deposed in para-10 that injury no.1 might have been caused by right side but injured informant has stated in his fardbeyan that the gunshot was fired from left back side of his head and hence it also falsifies the entire prosecution case.

(x) Learned counsel has further submitted that in the entire record, there is no forensic report to suggest that the injury caused to the injured from a particular bullets and particular pistol, but unfortunately no pistol or any bullets is produced in the court to prove the same and as such the gun and bullets remain unproved and so the prosecution failed to prove the charges beyond the reasonable doubts and the appellants deserve to be acquitted.

(xi) Learned counsel for the appellants has relied on the judgment of Amar Kumar Singh v. State of Bihar reported in 2010(1) East Cr Case 72 (Pat) wherein the Hon'ble Court has held that when the prosecution alleged that on account of a particular motive the accused were impelled to commit an offence it becomes a compulsion for the prosecution to establish it. In the case in hand the motive behind the occurrence as disclosed by the informant could not be proved that there was any dispute between appellant no.1 and his first wife. So far as appellant No.2 Basudeo Mahto is concerned, informant PW-10 Deo Narayan Ram has not stated about any motive for assaulting him neither in his fardbeyan nor in his evidence against appellant No.2.

Arguments of learned counsel for the State:

12. Learned counsel for the State submitted that this is a case in which the informant PW-10 Deo Narayan Ram himself is an injured eyewitness witness. In his fardbeyan, informant has stated that firstly the accused Basudeo Mahto had fired one shot from his pistol which caused injury on the back left side of his head. Thereafter, Sarju Ram had taken the pistol in his hand and fired another shot upon the informant causing injury upon his body near right shoulder and that splinter had hurt the right side of his temporal region cheek and chest.Hence,the ocular evidence of injured informant is fully supported by the medical evidence of Doctor PW-9 who examined the injured 9 informant and found as many as six injuries on the person of the informant.

Learned Counsel further submitted that injury no.1 and injury no.2 sustained by the informant fully corroborates the fardbeyan and the evidence given by the injured informant.

13. Learned counsel for the State has then referred to the evidence of investigating officer PW-11 and pointed out that PW-11 had gone to the Manatu Government Hospital and he had found the victim there in injured condition and took his fardbeyan. PW-4 Birju Bhuian, though he was declared hostile, but he has deposed that he saw Deo Narayan Ram in an injured condition and that he saw head injury on the person of the victim. PW-5 Birendra Sao, though declared hostile, but he also deposed that he saw the injured Deo Narayan Ram in an injured condition having firearm injuries on his person and he had taken the informant to Manatu Hospital by his bus. By the evidence of PW-4 and PW-5, it is indicated that they had seen the informant in an injured condition and therefore, it cannot be denied that incident had not taken place.

14. Learned counsel further submitted PW-8 Ashok Kumar Agrawal, has corroborated the evidence of injured informant that in the evening the informant had heard the news on the radio at his shop and then informant had left for his home.Thereafter,PW-8 had heard the sound of fire arm and had seen the victim Deo Narayan Ram coming catching his head and blood was oozing from his head. In his cross-examination, PW-8 has deposed that sound of firing was heard by him while he was closing his shop. Further in para-9 he has deposed that injured Deo Narayan Ram received firearm injuries at a distance of 10-15 meters from the shop and at a distance of about 4 meters from the shop he saw the injured coming in an injured condition. Learned counsel says that the evidence of PW-8 Ashok Kumar Agrawal is very, very conclusive and he has corroborated that on the night of occurrence informant was in his shop and after hearing the radio news he had moved on from there and after that he was shot is corroborative of the allegations that gun shot was fired. Moreover, PW-8 has stated that the distance where informant was shot is only 10-15 meters away from his shop and when the injured was returning he met the injured informant only 4 meters away from the shop. Therefore, the evidence laid down by PW-8 is rather conclusive. Lastly,learned counsel for the State submitted that the judgment of conviction and order of sentence 10 passed by the learned Court below against the appellants is based on proper evidence and be fully sustained and upheld.

FINDINGS

15. I have heard both the learned counsels, gone through the evidences and records of the case and the facts and circumstances. In this case some of the witnesses specifically PW-4, PW-5, PW-6 and PW-8 are hostile witnesses and hence question arises to what extent and how much evidence of these hostile witnesses can be taken. Here, it will be fruitful to note the view of Hon'ble Apex Court on hostile witness before proceeding further. In case of Mrinal Das and others v. State of Tripura reported in (2011)9SCC 479 Apex Court has held at paragraph-67 of its judgment that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The court should be slow to act on the testimony of such witness, normally, it should look for corroboration with other witnesses. The Apex Court further held that the evidence of hostile witness can be relied upon at least up to the extent, hostile witness supports the case of prosecution.Paragraph-67 of Mrinal Das(Supra) case is reproduced herein below -

"67. It is settled law that corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness was declared hostile at the instance of the Public Prosecutor and he was allowed to cross-examine the witness furnishes no justification for rejecting en bloc the evidence of the witness. However, the court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The court should be slow to act on the testimony of such a witness, normally, it should look for corroboration with other witnesses. Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. To make it clear that evidence of hostile witness can be relied upon at least up to the extent, he supported the case of the prosecution. The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution."

16. (I) In this case PW-8 Ashok Kumar Agrawal, though he is a hostile witness, is the most crucial witness as the prosecution case is that on the night of occurrence on 26-10-1993 the informant before the occurrence was at the shop of PW-8 Ashok Kumar Agrawal and listen the news on radio in the shop of PW-8.After listening the news informant was returning to his home at village Bihra and in the way at a distance of 500 yards east of Manatu Bazar near a mahua tree informant was shot by pistol by the appellants. In his examination-in- chief PW-8 Ashok Kumar Agrawal stated that the alleged occurrence took place in the year 1993 at 7:30 p.m. He further stated informant Deo Narayan Ram and two-three persons came to his shop at 7 p.m. and after hearing news on radio informant proceeded to his home situated in village Bihra and he was engaged in closing his shop.PW-8 further stated that after sometime he heard alarm and then he along with other persons of the market went towards the place of alarm. When they reached at "Tin Muhan" he saw the victim Deo Narain Ram coming from the opposite side catching his head and blood was oozing from his head. A vehicle was arranged and the injured Deo Narain Ram was sent to hospital.Informant PW-10 has also in his fardbeyan as well as in his examination-in-chief has stated that on the night of occurrence on 26-10-1993 at 7.30 p.m. informant was returning home at village Bihra after listening news on radio from the shop of Ashok Kumar Agrawal (PW-8) and when he reached at a distance of about 500 yards east of Manatu Bazar near a mahua tree then firstly accused Basudeo Mahto and then accused Sarju Ram fired a shot from a pistol on him.Hence,PW-8 has corroborated the evidences of informant's fardbeyan and testimony of informant given in examination-in-chief. (II) Now, coming to the cross-examination of PW-8 Ashok Kumar Agrawal. As PW-8 is a hostile witness, so statement of PW-8 given in his cross-examination shall be considered as a whole to find out whether any weight should be attached to it. At Para-5 of his cross- examination PW-8 has deposed that he saw the informant Deo Narayan Ram coming in struggling condition and Deo Narayan Ram was saying that accused accused Sarju Ram and Basudeo Mahto had shot him. Further,in para-9 of his cross-examination PW-8 deposed that he met injured Deo Narayan Ram at a distance of about 4 meter from his shop.

At para-13 PW-8 again deposed that in spite of being injured Deo Narayan Ram anyhow came walking up to Manatu market. So,PW- 8,though hostile witness,his statement given in cross-examination,has coroborrated the prosecution case.

17. Though PW-4 and PW-5 have been declared hostile but PW-4 in his examination-in-chief has stated that he saw informant Deo Narayan Ram in injured condition coming from the side of Bhihra and there was injury on his head. Likewise PW-5 has in his examination-in-chief deposed that he had carried the informant, who sustained fire arm injury, by his bus to Manatu Hospital and thereafter he returned back. Hence, prosecution case regarding fire arm injury caused to the informant also finds support from the ocular evidence of PW-4 and PW-5.

18. Now, regarding corroboration of medical evidence of Doctor PW-9 with the ocular evidence of informant,I find that injured informant P.W.-10 Deo Narayan Ram in his examination-in-chief at para-2 deposed that appellant no.2 Basudeo Mahto shot him by a pistol as a result pellet hit him in the back of his head. Thereafter, appellant no.1 Sarju Ram snatched pistol from appellant no.1 Basudeo Mahto and shot him as a result pellet hit him at the right side of his chest. From evidence of Doctor P.W-9 and injury report Ext-2 of the injured informant, I find that Doctor viz. injury no. 1(a) and 1(b) found lacerated wound entrance ¼"x ¼" over right occipital region and lacerated wound exit ½" x ½" over right parietal region. Further, Doctor viz. injury no.2(a) and 2(b) found lacerated wound entrance ¼"x ¼"x 1/4'' over medial size of right shoulder and lacerated wound exit ½"x ½" over upper 1/4th of right arm. Hence,Doctor PW-9 has found two entrance wounds and two exit wounds on the person of informant.Regarding injury no.3 Doctor has also indicated that there was unburnt and partial burnt powder grains extending over medial surface of right shoulder, right cheek and right surface of neck. The Doctor has also given his opinion that injury No.1 was caused by bullet fired by short arm weapon such as pistol through close. Tattooing marks was found near the wound and the pellet passed through the skin muscle deep below to a upward direction which formed track length 3 inches. An entrance wound was made over the surface of right occipital 13 region and exit wound made over parietal region.Doctor PW-9 also indicated that injury No.2 was caused by short fire arm such as pistol.Though there is some inconsistency in the fardbeyan and examination-in-chief of the informant regarding injury on right shoulder vis-a-vis right chest but doctor in his medical report found two gunshot wounds and therefore, there are two entrances wound viz injury no.1(a) and injury no 2(a) and two exits and exit wound viz injury no.1(b) and injury no 2(b) and hence ocular evidence of the injured informant is corroborated by the medical evidence of doctor PW-9.

19. In this case seizure list witnesses PW-6 Mahendra Prasad(Sao) was declared hostile and PW-7 Mahendra Ram has not supported the prosecution case.But,the testimony of injured informant PW-10,medical evidence of Doctor PW-9 and injury report of the informant Ext-2 and also the deposition of prosecution witnesses PW-4, PW-5 and PW-8, who have corroborated the prosecution case as discussed above, has established the prosecution case.

20. (I) Learned counsel for the appellants has submitted that the Appellant no.1 Sarju Ram has been acquitted in the Arms Act case by this court by judgment dated 11-9-2015 passed in Criminal Revision Case no.542 of 2003 and hence this criminal appeal may also be allowed. In this regard, I have perused the record of Criminal Revision Case no.542 of 2003 filed by Sarju Ram (Appellant No.1 herein).From the record Criminal Revision Case no.542 of 2003, I find that a case was registered against the accused Sarju Ram under the Arms Act being Manatu P.S. case no. 71 of 1993 for the same day of occurrence.The learned Judicial Magistrate First Class Daltonganj,Palamu by its order dated 26-8-1999 passed in T.R.No.537 of 1999 convicted the appellant Sarju Ram under section 25(1-B)(a) of Arms Act and sentenced him for rigorous imprisonment for two years. Thereafter, Criminal Appeal no.112 of 1999 was filed by the accused Sarju Ram before the 3rd Addittional Session Judge, Palamu at Daltonganj which was dismissed and the judgment of the learned trial court passed in T.R.No.537 of 1999 was upheld. Then,Criminal Revision Case no.542 of 2003 was filled by the accused Sarju Ram before this court and this court heard the Revision Case no.542 of 2003 of the accused Sarju Ram along with 14 other batch cases (Criminal Revision 412 of 2001 being the main case) and allowed the revision petition of the Sarju Ram (Appellant No.1 herein) by its order dated 11-9-2015.

(II) Now, question arises whether on the basis of acquittal of the accused Sarju Ram in Criminal Revision Case no.542 of 2003 by this court under the Arms Act, can Sarju Ram (appellant no.1 herein) in this appeal can be acquitted. I have perused the judgment dated 11-9-2015 passed in Cr. Revision No.412 of 2001.In this case this court considered the issue whether the penal offences under section 25(1- A),25(1-AA),26(2),26(3) and 27(2) of the Arms are Magisterial trial or Session triable. This Court held that trial by the learned Magistrate is without inherent jurisdiction,in turn without strength of law, as such non est/void and deserve to be vitiated. The revision petitions were allowed and petitioner was acquitted.At this juncture it would be pertinent to note the judgement of Hon'ble Apex Court delivered in the case of Gurcharan singh V. State of Punjab and Another reported in AIR 1963 SC 340 wherein the Apex Court has said that if the order of acquittal under the Arms Act is pronounced before the judgment in the principal case was delivered, then in the latter case the prosecution will not be entitled to contend that accused was in illegal possession of the firearm. In Gurcharan singh Case(Supra) question before the Apex Court was whether judgment in the firearm case was pronounced first or the judgment in the murder case was pronounced first. But, in the case in hand though Criminal Revision Case no.542 of 2003 of the Appellant No.1 Sarju Ram under the Arms Act was decided during the pendency of this appeal but Appellant No.1 Sarju Ram cannot take advantage of his acquittal in Criminal Revision Case no.542 of 2003 on account of two reasons. Firstly because Criminal Revision Case no.542 of 2003(Cr.Revision No.412 of 2001 being the main case along with other batch cases) was not decided on merit by this court as this court did not direct fresh trial due to reason that remanding the case for fresh trial when prosecution witnesses may not be available would serve no purpose. Secondly,in the case in hand there are two appellants of whom Appellant No.2 Basudeo Mahto firstly fired shot from pistol on the back side of the head of the informant as has come in the fardbeyan and deposition of the injured informant PW-10.

21. The judgement Amar Kumar Singh(Supra) relied on by the learned counsel for the appellants that prosecution has not proved the motive for the commission of crime against the appellant is not applicable in the facts and circumstances of the case because informant PW-10 has stated in his fardbeyan as well as in his examination-in-chief that the appellant no.1 Sarju Ram had deserted his first wife and for this informant intervened in the matter for which the accused Sarju Ram had grudge against him and hence prosecution has proved the motive against the appellants in the case in hand.

22. Hence, prosecution has been able to prove the charges under section 326 and 307/34 of IPC against the appellants beyond reasonable doubt. Accordingly, the Judgment of conviction and Order of sentence dated 15.02.2003, passed by the learned 3rdAdditional Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 244/94, is sustained and upheld. Bail bond of the appellants are cancelled.

23. Accordingly, this criminal appeal is dismissed.

(Ratnaker Bhengra, J.) S.B.-NAFR

Unlock Advanced Research with PRISMAI

Jharkhand High Court