UMESH SINGH @ SUDAMA SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The sole appellant, has approached this Court by filing the present Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C." ) against judgment of his conviction and sentence. By the judgment dated: 18.04.2013 the appellant was convicted for the offence under Section 302/34 of the Indian Penal Code ,1860 ( hereinafter referred to as the "I.P.C.") and Section 27 of the Arms Act, 1959 (hereinafter referred to as the "Arms Act") and by order of sentence dated: 22.04.2013 he was directed to undergo rigorous imprisonment for life and was imposed a fine of Rs. 10,000/- under Section 302/34 of the I.P.C. and in default of payment of fine, he was directed to further undergo imprisonment for six months. For offence under Section 27 of the Arms Act, the appellant has been directed to undergo rigorous imprisonment for three years and a fine of Rs. 3,000/- and in default of payment of fine, he was directed to further undergo imprisonment for three months. The judgment of conviction and sentence was passed by Shri Md. Perwez Alam, learned Adhoc Additional District & Sessions Judge IInd, Gaya (hereinafter referred to as the "trial judge" ) in Sessions Trial No. 66 of 2011 / 87 of 2005 (S.J.) {arising out of Khizersarai P.S. Case No. 132 of 2001}.

(2.) Short fact of the prosecution case is that on 28.11.2001 at 20.00 Hours (8.00 P.M.) fardbayan of Ranjit Singh, S/o Ashlok Singh (deceased) of village: Dema Phatehpur, P.S. Khisarsarai, District :- Gaya was recorded in the Emergency Ward of Magadh Medical College and Hospital (hereinafter referred to as the "M.M.C.H.") . The fardbyan was recorded by Sub Inspector of Police Sri R.S. Paswan, O/C Magadh Medical Police Station, Gaya (M.M.P.S., Gaya). The said fardbyan was given by the informant in presence of his injured father Ashlok Singh who was lying on bed. In the fardbayan the informant disclosed that on the same day in morning at about 7.00 A.M. his father , one Balkeshwar Manjhi ( not examined ) and Sanjay Singh / P.W. 1 were returning after seeing the field. While they were about half kilometer before his village, Umesh Singh (appellant), S/o Suryanath Singh, Suryanath Singh, Ramswaroop Singh, Ramesh Singh and other 2-3 persons variously armed, surrounded them and Suryanath Singh immediately after noticing the father of the informant by using filthy language ordered to kill him by giving bullet shot. Immediately thereafter, Sudama Singh @ Umesh Singh (appellant) fired from his pistol which hit on abdomen of his father. Others also started firing. When persons nearby from village arrived there, all the accused fled away. The informant stated that at that very time he was in Gaya and when his father reached in M.M.C.H. he got information from his father. The informant stated that since at the time of fardbayan his father was seriously injured the informant will give detailed facts subsequently. Balkeshwar Manjhi and Sanjay Singh / P.W. 1 anyhow saved their life by fleeing away from the place of occurrence. He stated that all the accused persons were of his own village and claimed that all the aforesaid accused persons with intent to kill his father after surrounding his father had tried to kill him by giving fire arm injury. The said fardbayan was signed by the informant. Besides him, one Amrendra Singh also put his signature as witness to the fardbayan, however, Amrendra Singh Arun was not examined.

(3.) After recording fardbayan a formal F.I.R. was drawn on the next date i.e. on 29.11.2001 at 16.30 Hours ( 4.30 P.M.) vide Khizersarai P.S. Case No. 132 of 2001 for the offences under Sections 147/ 148/149/341/326/307 of the I.P.C. and Section 27 of the Arms Act against four F.I.R. named accused persons namely: 1- Umesh Singh , S/o Suryanath Singh/ appellant; 2- Suryanath Singh, 3- Ramswaroop Singh, 4- Ramesh Singh and other 2-3 unknown persons. Since subsequently the injured died, by order of the Court on 22.12.2001 Section 302 of the I.P.C. was also added in the F.I.R. The Police after registering F.I.R. investigated the case and during investigation the appellant was arrested and thereafter, charge-sheet was submitted on 11.12.2004 against the appellant keeping investigation open against other accused persons. After submission of charge sheet, on 13.12.2004 learned Chief Judicial Magistrate, Gaya took cognizance of offence, and thereafter, on 17.01.2005 the case was committed to the court of Sessions. Finally, on 2.4.2005 charge was framed against the appellant for commission of offence under Section 302/ 34 of the I.P.C. and Section 27 of the Arms Act.