ANIL URAON Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This Criminal Appeal arises out of the judgment of conviction dtd. 30/11/2010 and order of sentence dtd. 6/12/2010 in Sessions Trial No. 325 of 2009 whereby and whereunder learned Additional Judicial Commissioner, Fast Track Court X, Ranchi convicted the appellant under Sec. 302/34 of the Indian Penal Code and Sec. 27(1) of the Arms Act and sentenced him to RI for life with fine of Rs.500.00 and in default of payment of fine, further RI for 15 days for the charge under Sec. 302/34 of the Indian Penal Code and RI for 3 years with fine of Rs.500.00 and in default of payment of fine, further RI for 15 days for the charge under Sec. 27(1) of the Arms Act.

(2.) The learned counsel for the appellant submits that the conviction is based on the testimony of the sole witness i.e. PW7 and as per the ratio laid down by the Hon'ble Supreme Court in 'State of Maharashtra vs. Dinesh' reported in (2018) 15 SCC 161 he could not have been convicted. It is further argued that the Investigating Officer has not been examined in this case and the credibility of PW7 is in doubt. As per his deposition, he remained hidden and had seen the occurrence from the house of Jitu Munda, whereas the wife of Jitu Munda (PW9) has deposed that no one had entered her house. After the occurrence, as per his deposition, he found a mobile phone there, which belonged to one of the assailants and he handed over it to the police but no such mobile was seized or produced to fix the identity of the assailant(s) in the present case. It is submitted that failure to prove the same should be a circumstance for drawing adverse inference under the Indian Evidence Act. He submits that the conviction with the aid of Sec. 34 of the Indian Penal Code is bad as there is nothing about the other assailants.

(3.) The learned counsel for the State submits that there is no material to discredit PW7. PW7 is the cousin brother of the deceased and was with the deceased when the deceased was shot dead. PW7 is a reliable witness as he was along with the deceased on the same cycle when the assault had taken place. Place of occurrence is in front of the house of PW9, who saw the dead body in the ditch near the house. He further submits that the ocular evidence matches with the medical evidence. PW3 has admitted that a mobile phone was seized from the place of occurrence which corroborates the statement of PW7 who is eye-witness to the occurrence. PW4 also admitted recovery of a mobile phone from the place of occurrence where the dead body was lying. Both PW3 and PW4 supported their respective statements and the statement given by each other, which proved recovery of mobile phone. The place from where the dead body was recovered was also proved from the evidence of PW7 and PW8. Doctor also found gunshot injury on the deceased. Thus, he claims that the prosecution has proved the guilt of the appellant beyond all reasonable doubt and there is no scope of acquittal of the appellant.