OM PRAKASH Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) This appeal is directed against the judgment of conviction dated 22.12.2004 and order of sentence dated 23.12.2004 passed by the then Additional Sessions Judge, F.T.C.-I, Dhanbad in Sessions Trial No.108 of 2003 whereby and whereunder the court having found the appellant guilty for committing murder of Hari Ram, convicted him for the offence punishable under Section 302 of the Indian Penal Code and also under Section 27 of the Arms Act and sentenced him to undergo imprisonment for life and to pay a fine of Rupees five thousand and further to undergo rigorous imprisonment for three years and to pay a fine of Rupees two thousand with default clauses. Both the sentences were ordered to run concurrently.

(2.) The case of the prosecution, as has been made out in the First Information Report, is that the deceased Hari Ram had a grocery shop at Sector 11 Bhuli, 'D' Block at the market of Khiru Yadav. On 29.09.2002, at about 9 O' Clock while the deceased and his son Mukesh Kumar (P.W.6) were in the shop, the appellant, who was quite angry, came over there and asked the deceased to pay money. That led to verbal altercation in between the deceased and the appellant as the deceased told the appellant that unless there would be accounting of transaction to know as to whether money is due to be paid to him, he would not be paying money to him. Upon it, the appellant took out a country made pistol from his waist and fired shot from close range over the chest of the deceased. Upon hearing the sound of gunshot, P.W.4- Shailendra Kumar, who was having a saloon by the side of grocery shop of the deceased and one person from 'Khatal' came over there and took the deceased along with P.W.6 to Bhuli hospital where first aid treatment was given and then they were asked to take him to Central hospital, Dhanbad. While the deceased was being taken to Central hospital, Dhanbad, he died in the way. Thereupon, they took the dead body to Bhuli police station where the informant Mukesh Kumar (P.W.6) gave his fardbeyan (Ext.3/3) which was recorded by Surendra Prasad (P.W.-8), Officer-in-Charge of Bhuli police station at 11.10 a.m. Upon which, a formal F.I.R. (Ext.5) was drawn. Thereafter, the Officerin-Charge, Surendra Prasad took up the investigation. During investigation, he held inquest on the dead body of the deceased and prepared an inquest report (Ext.4/1). Thereafter, the I.O. came to the place of occurrence from where he seized pellet smeared with blood and broken country made pistol but of which was separate from barrel, which was also in two pieces under the seizure list (Ext.6). The I.O. sent the dead body for its post-mortem examination which was conducted by Dr. Shailendra Kumar (P.W.7), who upon holding autopsy did find following injuries on the person of the deceased:-

(3.) The I.O. in the meanwhile sent the country made pistol for its examination before the Sergeant Major, who upon examination, submitted its report(Ext.-7) reporting therein that since it was found in broken condition, presently it is not effective. One empty cartridge was found fixed over the barrel, which is indicative of the fact that the firing could not have been made. However, it has been reported that the seized pellet was the part of the empty cartridge. After completion of the investigation, the I.O. submitted the charge-sheet upon which cognizance of the offence was taken and when the case was committed to the court of Sessions, the appellant was put on trial. During trial, the prosecution examined as many as eight witnesses. Of them, P.W.1 Mukuleshwar Choudhary, P.W.2-Khiru Yadav, P.W.3- Samsuddin Ansari, P.W.4-Shailendra Kumar have been declared hostile. P.W. 5 Amit Kumar, the brother-in-law of the deceased, claimed himself to be an eye-witness by deposing that while he was coming to shop of his brother-in-law and was 30 ft. away from the shop, he heard sound of gun firing and then saw this appellant running away from the shop. P.W. 6 is the informant, who happened to be the son of the deceased. He has testified that while he was in the shop along with his father, appellant came and asked for money to which his father replied that he will not pay unless it is found after accounting that money is due to him and then the appellant took out a revolver from his waist and fired shot causing injury to him and then the appellant fled away. Thereafter, he with the help of other witnesses brought him to the Bhuli hospital where first aid treatment was given and the case was referred to Central Hospital. While they were taking him there, the deceased died. After closure of the prosecution case, when the incriminating materials were put to the appellant under Section 313 of Cr.P.C., the appellant denied. Thereupon, the trial court having found P.W.6 to be trustworthy whose testimony being corroborated by the medical evidence, recorded the order of conviction and sentence, which is under challenge.