SHEIKH TEJAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) This Criminal Appeal has been preferred against the judgment of conviction and sentence order dated 04.09.1995 passed by learned Ist Additional Sessions Judge, Banka in Sessions Trial No.199 of 1993 by which and whereunder he convicted the appellant no.2, namely, Sheikh Nejam for the offence punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act and furthermore convicted the appellant no.1 Sheikh Tejam for the offence punishable under Sections 302/114 of the Indian Penal Code and, accordingly, both the above stated appellants were sentenced to undergo imprisonment for life for their above stated offences. No separate sentence was given to appellant no.2 Sheikh Nejam for the offence punishable under Section 27 of the Arms Act.

(2.) Briefly stated the prosecution case is that on 29.05.1992 at about 9.30 P.M. at Amarpur Referal Hospital, deceased Md. Raju in injured condition gave his fardbeyan to Sub Inspector of Amarpur police station to this effect that on the same day at about 8.10 P.M. while he was returning to his home from the tea shop of one Mokim after taking tea and reached near the house of appellant no.2, namely, Sheikh Nejam, he saw that appellants were standing there. He further stated in his fardbeyan that both the above stated persons started abusing him and when he asked the reason of abuse, appellant no.1 Sheikh Tejam ordered to shoot him. Thereafter, appellant no.2 Sheikh Nejam took out country made pistol from his waist and with intention to commit murder opened fire on him as a result whereof he sustained fire arm injury on the front of his left shoulder and having sustained fire arm injury, he fell down there. The appellants fled away from there. He further claimed in his fardbeyan that his brother Sk. Azad (PW-1), Shyam Sunder Das (PW-5), Sk. Samsuddin (not examined), Sk. Gani (PW-2) and several other persons witnessed the occurrence. He, further, claimed that after the occurrence, he was taken to Amarpur Referal Hospital for treatment.

(3.) On the basis of above stated fardbeyan of deceased Md. Raju, Amarpur P.S.Case No.147 of 1992 for the offences punishable under Sections 307/34 of the Indian Penal Code and Section 27 of the Arms Act was registered on the same day, i.e., on 29.05.1992 and on the same day at about 10.30 P.M. formal FIR was drawn up for the above stated offences against the appellants. However, the formal FIR was dispatched to the Court through Special Messenger but the date of dispatch was not given in formal FIR. The formal FIR was put up before the learned Chief Judicial Magistrate, Banka on 02.06.1992. It is pertinent to note here that there appears to be over writing on the date of receipt of formal FIR in the Court of learned Chief Judicial Magistrate, Banka. The perusal of original FIR goes to show that earlier, below the initial signature of learned Chief Judicial Magistrate, Banka, the date was given as 01.06.1992 but, subsequently, after making overwriting it was made as 01.06.1992. However, the lower court record reveals that the formal FIR was put up before learned Chief Judicial Magistrate, Banka on 11.06.1992.