LALU YADAV Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This criminal appeal is directed against the Judgment of conviction dtd. 16/7/2002 and order of sentence dtd. 17/7/2002 passed by the learned Addl. Sessions Judge-, FTC-II, Hazaribagh in Sessions Trial No. 512 of 1993, whereby and whereunder, the appellants having been found guilty of charge under Ss. 302/149 and 201 of Indian Penal Code and have been convicted and sentenced to undergo imprisonment for life for the offence under Sec. 302/149 IPC and R.I. for three years under Sec. 201/149 of the Indian Penal Code.

(2.) The learned senior counsel for the appellants submitted that the Trial Court has wrongly appreciated the evidence, led by the prosecution as P.W. 5 did not identify any of the assailants. He further submitted that only 3-4 assailants were there, thus the prosecution version that more than ten persons were present in committing the offence is absolutely false. He also contended that the evidence of P.W.5 cannot be brushed aside, as he has not been declared hostile. It has also been contended that from the evidence of this prosecution witness, it is quite clear that just because of grudge and enmity, all the accused persons have falsely been implicated in this case. He also submitted that to bring home the charge under Sec. 302 IPC, the prosecution has to prove the homicidal death, but in this case, the doctor, who conducted the postmortem of the deceased, has not been examined, thus it can be held that there is no material to prove the homicidal death. It has also been contended that the Investigating Officer of this case has also not been examined, which caused great prejudice to the defence as the place of occurrence has not been proved. It has also been contended that the appellants have been convicted under Sec. 302/149/201 IPC only and there is no charge framed either under the Arms Act or under the Explosive Substance Act, which would clearly suggest that the prosecution case as narrated in the FIR that there was firing from gun and pistol and there was hurling of bomb is false. On these grounds, learned senior counsel for the appellants has prayed for acquittal of the appellants.

(3.) Counsel for the State submitted that there are eye witnesses to the occurrence who had supported the prosecution case, as they have stated how the deceased was murdered. He further submitted that since the eye witnesses have supported the prosecution case and there is no material to disbelieve the eye witnesses, the conviction is justified. He also submitted that P.Ws. 1, 2 and 4 are the eye witnesses, who narrated exactly what they had seen and they are reliable witnesses, thus their testimony cannot be brushed aside. As per their statement, the death is homicidal and involvement of these appellants is proved.