ASHOK MAHTO @ ASHOK PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) (Oral) - The appeal on behalf of the sole appellant is directed against the judgment and order of conviction dated 15th March, 2007 and the order of sentence dated 16th March, 2007 passed by the Additional District and Sessions Judge (FTC V) Nawada in S.T. No. 555 of 2006/178/2006 whereby the appellant was held guilty and convicted under section 302/149 Penal Code and sentenced to suffer R.I. for life and also imposed a fine of Rs. 20,000.00 with default clause. He was also held guilty under section 307 Penal Code for causing injury to the informant (P.W.2) and sentenced to undergo R.I. for ten years with fine having default clause. Further the appellant was held guilty under section 379 Penal Code and sentenced to undergo R.I. for three years and under section 148 Penal Code sentenced to undergo R.I. for three years. The appellant was also held guilty under sections 224 and 225 Penal Code and sentenced to undergo R.I. for 02 years on each count besides the conviction under section 120B Penal Code and sentenced to suffer R.I. for 02 years. All the sentences were however directed to run concurrently.

(2.) On 23.12.2001 Lallan Prasad (P.W.2) lodged the Fardbeyan alleging therein that at about 10.00/10.30 a.m. he was on duty as Jail Guard/Warden at the outer gate of the District Jail, Nawada. The deceased Shashi Bhushan Sharma, Jail Warden-cum-Guard was on duty at the main inner gate of the jail. At about 10-10:30 a.m., 20-25 accused persons forming groups of five persons pretending to be the visitors of the co-accuseds Akshat Singh and the appellant(the two prisoners) reached the Jail precincts and after getting purzas (visitor pass) met the two prisoners at the place fixed for such meeting with the visitors. After few minutes they came to the grill near the main gate of the Jail and requested Amrendra Sharma (P.W.4) for permitting them to give some fruits and sweets which they had carried for those prisoners. P.W. 4 made search of those articles and took the articles to the main gate of the Jail. P.W.4 unlocked the smaller gate of the Jail and directed the deceased Shashi Bhushan Sharma who was on duty at the main gate to open the lock of the small gate from inside which was accordingly opened by him. No sooner he was about to give the fruits to the accused person, the accused Akshat Singh standing near the main gate fired on the head of Shashi Bhushan Sharma with a country-made pistol and pushed him out of the main gate as a result whereof he fell on the ground and became senseless. The accused Akshat Singh and the appellant Ashok Mahto came out of the smaller gate of the main gate along with six other jail inmates named in the Fardbeyan and on being intercepted someone from amongst the visitors fired at the informant which hit him on his left hand. In the meanwhile, 08 jail prisoners ran about 20 ft away from the main gate. The informant anyhow managed to fire twice which however did not hit anyone. On hearing the sound of firing the appellant Ashok Mahto came back with 10 visitors near the main gate and tried to snatch the rifle from his hand which was objected to by the informant and in the process he along with his rifle was dragged to the main gate where he was hit another gunshot injury on his thigh as a result whereof he fell down and the accused persons managed to flee with the rifle of the informant on Tata 407 vehicle on which the visitors had arrived. They also took away the holster (ammunition pack) carried by the informant in his waist. On hearing Hulla, the people assembled there and pelted stones which however did not deter the accused persons from fleeing away from the scene of occurrence towards Nawada on the said vehicle parked on the road. The informant alleged that all the visitors had come hiding firearms inside the shawl/Chadar. After the retreat the other jail staff came to the place of occurrence and the informant and the deceased were carried to the Sadar Hospital for treatment and in course whereof Shashi Bhushan Sharma succumbed to his injuries. The recording of the Fardbeyan (Ext.1) set the criminal law in motion and the investigation commenced. The post mortem on the cadaver was conducted by Dr. Dheo Dayal Das (P.W.9) who submitted the post mortem report (Ext.3). He also examined the injury on person of the informant and prepared the injury report (Ext. 4). The statements of witnesses were recorded and on conclusion of investigation the charge sheet was submitted against the appellant where after cognizance of the offence was taken and the case was later committed to the court of sessions by the Chief Judicial Magistrate, Nawada on 5.12.2006. The trial court framed charges under the penal provision of the IPC, as noticed above, to which the appellant pleaded not guilty. In his statement made under section 313 Cr. P.C., the appellant took the plea of false implication. He set up a plea that in connivance with the other jail officials his escape from the jail custody was facilitated and due to protest by Shashi Bhushan Sharma he was shot at by the informant and thereafter he inflicted injury on his person to save his skin. The trial court on conclusion of trial, convicted the appellant as noticed above. Hence the appeal.

(3.) We have heard Mr. Akhileshwar Pd. Singh learned Sr. counsel in support of the appeal and Mr. Abhimanyu Sharma, learned APP who has assisted the Court on behalf of the State.