ARUN YADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) The sole appellant after being convicted and sentenced in Sessions Trial No. 49(A) of 2010 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."].

(2.) The sole appellant by judgment dated- 18.12.2014 was held guilty and convicted for the offence under Section 302 of the Indian Penal Code, 1860 [hereinafter referred to as the "I.P.C."] and 27(1) of the Arms Act, 1959 [hereinafter referred to as the "Arms Act"]. By order dated: 20.12.2014 under Section 302 of the I.P.C. the appellant was sentenced to undergo imprisonment for life and to pay a fine of Rs. 10,000/- In case of default in payment of fine he has been directed to further undergo imprisonment for one year. Under Section 27(1) of the Arms Act the appellant has been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/-. In case of default in payment of fine he has been directed to further undergo imprisonment for six months. Both the sentences were directed to run concurrently.

(3.) Short fact of the case is that on 18.05.2009 at 22.15 Hours (10.15 P.M.) Sub Inspector of Police -cumS.H.O., Gwalpara O.P. namely: Sri Sanjay Kumar (P.W. 7) recorded fardbyan of Murari Lal Das (P.W. 6). The fardbyan was recorded at Primary Health Center, Gwalpara. In the fardbyan informant (P.W. 6) disclosed that on the same day i.e. on 18.05.2009 in the night as usual he along with his son Chandan Kumar, aged about 25 years (deceased) after closing digital photo shop namely Chhaya Studio, Gwalpara was returning back to his home along with his staff- Arvind Kumar Rai (P.W. 4) and one another nearby shopkeeper namely Pramod Yadav (P.W. 3). At about 9.00 in the night while he reached on metalled road opposite Kala Bhawan, Gwalpara he from the back heard sound of one firing which hit his son Chandan Kumar and his son fell down in the middle of the road. His chest was bleeding. He in the light of torch saw the appellant who after killing his son carrying pistol was fleeing away along with his other associates, however the informant could not identify others. He raised alarm and thereafter number of persons arrived there and carried the injured to Primary Health Center, Gwalpara where on arrival doctor declared his son as dead. The reason for the occurrence was explained by the informant that on earlier occasion with Arun Yadav (appellant) some dispute was going on in relation to Udakishunganj (Gwalpara) P.S. Case No. 46 of 2006 in which the appellant was accused. He stated that due to said animosity the appellant conspiring with his other associates had shot at and killed his son. The said fardbyan was read over to him and after finding it correct, in presence of his nephew- Nutan Kumar Das (P.W. 1) the informant put his signature. The said fardbyan was forwarded by A.S.I. to Gwalpara Police Station and thereafter on the same day i.e. on 18.05.2009 a formal F.I.R. vide Udakishanganj (Gwalpara) P.S. Case No. 58 of 2009 was registered for the offence under Section 302/34/120(B) of the I.P.C. and Section 27 of the Arms Act against the appellant and two other unknown accused persons. The said F.I.R. was received in the court of Chief Judicial Magistrate, Madhepura on 20.5.2009. After recording fardbyan the Sub Inspector of Police Sanjay Kumar (P.W. 7) took up investigation of the case. He conducted raid to apprehend the accused persons. He prepared inquest report and dead body was sent for post mortem examination. The Police initially tried to apprehend the accused persons but all the accused persons were found absconding. Finally on 20.08.2009 charge sheet was submitted against one of the accused- Naresh Yadav, who was not named in the F.I.R., keeping investigation pending against others. Thereafter on 22.08.2009 learned Chief Judicial Magistrate, Madhepura took cognizance of the offence. Subsequently on 06.10.2009 the appellant was arrested. Thereafter on 30.11.2009 supplementary charge sheet against appellant, Pankaj Yadav and Dharmendra Yadav was submitted, but after submission of supplementary charge sheet the case of appellant and other two accused person was committed to the court of Sessions on 27.04.2010. The case of Naresh Yadav, who was earlier arrested in which charge sheet was submitted, proceeded separately. In the present case after commitment, on 30.09.2010 charge was jointly framed against appellant and other two accused persons under Section 120B, 302/34 of the I.P.C. and Section 27 of the Arms Act which was denied and the accused persons claimed to be tried.