SUKUMAR MODAK Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The present appeal has been preferred against the judgment and order of conviction and sentence dated 11.9.2002 and 12.9.2002 respectively, passed by the learned 3rd Additional District & Sessions Judge, Dhanbad, in Sessions Trial No. 303 of 2000 whereby the appellant has been held guilty for offence under section 396/ 412 of the Indian Penal Code and accordingly he has been convicted under section 396 IPC and sentenced to undergo rigorous imprisonment for life. Further, the appellant has also been convicted under section 412 of the Indian Penal Code and accordingly sentenced to undergo rigorous imprisonment for five years. However, both the sentences have been ordered to run concurrently. It is the case of the prosecution that the informant Rekha Kumari P.W. 4 gave fard beyan before the Police on 14.6.2000 that on 14.6.2000 at about 8.00 to 8.30 p.m. when she was in her house at village, Chota Domgarh, P.S. Sindri, within the district of Dhanbad with her mother (P.W. 3) and with her brother (P.W. 9), suddenly, she heard loud noise outside her house. She came out of her house and then 6-7 accused persons forcibly entered into the house. One of them caught hold of the informant (P.W. 4) and the second person caught hold the mother of the informant; the third person, aged about 40 years, who was wearing kurta and pyjama, was standing in the veranda. Thereafter, several persons entered into the house and started taking away articles. Accused persons were carrying sharp cutting instruments like, bhujali, tangi and farsa in their hands and they threatened the informant not to raise alarms, otherwise, they would kill her. It is also stated by P.W. 4 Rekha Kumari that the accused persons assaulted her brother Kameshwar Mahato (P.W. 9) and injured him. It is further alleged by the informant (P.W. 4) that her driver Dilip Kumar Goswami protested this and thereupon the accused persons assaulted him with a bomb as a result of which he (Dilip Kumar Goswami) sustained injuries and fell down. Thereafter, the accused persons had taken away four suit cases, two bags, jewelery, the papers of the vehicle and the matriculation certificate of the brother of the informant. Accused persons fled away exploding one more bomb towards southern side of the river Damodar. Thereafter the injured Dilip Goswami was taken to hospital where he expired.

(2.) On the basis of the fard beyan of the informant P.W. 4 Sindri PS Case No. 54 of 2000 was registered, investigation was carried out After completion of investigation, charge sheet was submitted against the appellant, who faced the trial and was convicted by the learned trial court on the basis of the evidence given by P.Ws. 1 to P.W. 11 and also on the basis of the deposition of the defence witness. Against the judgment and order of conviction passed by the trial court, the appellant has preferred this appeal.

(3.) We have heard counsel for the appellant who submitted that the prosecution has failed to prove the offence beyond all reasonable doubts, it is also submitted that the prosecution has failed to prove the seizure list and there is no signature of the accused persons upon the seizure list, though they were in custody, it is also submitted by the learned counsel that the intention on the part of the present appellant is not proved. Learned counsel for the appellant further submitted that the prosecution has failed to prove that the looted articles were recovered at the behest of the appellant under section 27 of the Indian Evidence Act. It is further submitted by the learned counsel that there are major omissions, contradictions and improvements in the depositions of the prosecution witnesses. This aspect of the matter has not been properly appreciated by the learned trial court and hence the judgment and order of conviction and sentence of the appellant passed by the learned trial court deserves to be quashed and set aside. It is further submitted by the learned counsel for the appellant that the present appellant has not committed murder of the deceased Dilip Goswami because the other witnesses have stated that this appellant had not thrown bomb upon the deceased Moreover it is further submitted by the learned counsel for the appellant that the appellant is in judicial custody since twelve years, six months and a few days and, therefore, as per section 396 of the Indian Penal Code, the appellant may be punished for ten years imprisonment and he may be enlarged as he has already undergone the sentence of 12 years, six months and a few days.