SANJAY PASWAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) The sole appellant has preferred the present appeal under Section 374(2) of the Code Of Criminal Procedure, 1973 [hereinafter referred to as the "Cr.P.C."] after being convicted and sentenced under Section 302 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"] in Sessions Trial No. 670 of 2010.

(2.) The appellant by judgment dated 18/07/2013 was convicted for the offence under Section 302 of the I.P.C. and Section 27 of the Arms Act and by order dated 19.07.2013 under Section 302 of the I.P.C. he was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 10,000/-. In case of default in payment of fine he was directed to further undergo rigorous imprisonment for two months. Under Section 27 of the Arms Act he was sentenced to undergo rigorous imprisonment for four years. Both the sentences were directed to run concurrently. The appellant has been convicted and sentenced in Sessions Trial No. 670 of 2010 [arising out of Hilsa (Karai Parsurai) P.S. Case No. 402 of 2009] by the learned 1st Additional Sessions Judge, Hilsa, Nalanda [ hereinafter referred to as the "trial judge"]

(3.) Short fact of this case is that on 28.10.2009 at 9.00 P.M. Sub Inspector of Police -cum-S.H.O. of Karai Parsurai Police Station namely: Sri Krishna Prasad (P.W. 15) recorded fardbyan of Shailesh Kumar (P.W. 6) of village - Sandh, P.S. - Karai Parsurai. The fardbyan was recorded in Karai Police Station itself. In the fardbyan the informant (P.W. 6) disclosed that on the same day i.e. on 28.10.2009 in the evening at 5.00 P.M. his uncle Lallu Gope (deceased) of village - Karai Parsurai had gone along with the OX of his nephew to the house of his co-villager: Bal Krishna Modi. While he reached near his house in the lane, (1) Sanjay Paswan carrying pistol in his hand, (2) Satyendra Paswan carrying rifle in his hand, (3) Gorakh Paswan carrying pistol in his hand, (4) Rajesh Mochi carrying rifle in his hand, and (5) Sudhir Paswan carrying pistol in is hand arrived there and all started abusing Lallu Gople. Lallu Gope asked not to abuse. Thereafter Satyendra Paswan ordered by using filthy language to kill him whereupon his uncle- Lallu Gope started fleeing away. In the meanwhile Sanjay Paswan (appellant) gave one shot of firing from his pistol on his back side. His uncle was seriously injured and fell down and started squirming and said that Sanjay Paswan had shot him. On hearing the sound of abuses and firing neighbours namely: Ajay Kumar (P.W. 3), Nageshwar Prasad (P.W. 13), Jatan Prasad ( P.W. 5) and other number of persons arrived there whereas the miscreants raising slogan [1] and by firing fled away from the Western side. This witness stated that at the time of occurrence he was near the shop of Bal Krishna Modi since he had gone to purchase something and claimed to be eye witness to the occurrence. After his uncle -Lallu Gope was seriously injured he along with others put him on tempo and carried him for his treatment to P.M.C.H. but while they were moving towards P.M.C.H. on way near Fatuha the injured- Lallu Gope succumbed to his injuries. Thereafter the informant brought dead body of his uncle and came to Karai Pasurari Police Station where his fardbyan was recorded. The reason for the occurrence was explained as old animosity. He further disclosed that on the wearing of his deceased uncle one damaged projectile was found which was lacerated with blood and same was produced by him. The informant claimed that (1) Sanjay Paswan (appellant), (2) Satyendra Paswan, (3) Gorakh Paswan, (4) Rajesh Mochi, (5) Sudhir Paswan forming unlawful assembly with deadly weapons had killed his uncle- Lallu Gope by giving shot of firing. The said fardbyan was read over to him and after finding it correct in presence of his villager -Mithilesh Prasad (P.W. 11) he put his signature in the bottom of the fardbyan. As a witness to the fardbyan Mithilesh Prasad ( P.W. 11) also put his signature. The said fardbyan was forwarded by Krishna Prasad (P.W. 15) to S.H.O. Hilsa Police Station for instituting a case. On the basis of the said fardbyan on 29.10.2009 at 9.00 A.M. a formal F.I.R. vide Hilsa ( Karai Parsurai ) P.S. Case No. 402 of 2009 was drawn up for the offence under Section 147, 148, 149, 326, 302 of the I.P.C. and Section 27 of the Arms Act against the aforesaid five accused persons. After registering F.I.R. the case was investigated and on 06.03.2010 charge sheet was submitted against the appellant keeping investigation pending against others. On 17.03.2010 learned Additional Chief Judicial Magistrate, Hilsa took cognizance of the offence and the case was committed to the court of Sessions on 03.07.2010 and as such it was numbered as Sessions Trial No. 670 of 2010. On 13.12.2010 charge under Section 302 of the I.P.C. and Section 27 of the Arms Act was framed against the sole appellant.