BABUA PANDEY Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Eight persons, namely, Mukesh Singh Choudhary, Sohrab Ansari, Shashi Choudhary, Awadh Vishwakarma @ Chenga, Ravi Shankar, Munna Nawab, Babua Pandey and Hemant Yadav were named as accused by the informant in his fard-beyan which was recorded at Central Hospital, Dhanbad on 24.03.2007 at 10:00 p.m. On the basis of his fard-beyan, Govindpur P.S Case No.74 of 2007 has been lodged against them under section 302 r/w section 34 of the Indian Penal Code and section 120 (B) of the Indian Penal Code. After the investigation, a charge-sheet was submitted against the appellants, namely, Babua Pandey and Awadh Vishwakarma @ Awadh Bishwakarma @ Chenga while investigation in respect of other accused persons was kept pending. It has come on record that before the trial concluded, Final Form was submitted in favour of the accused, namely, Sohrab Ansari, Shashi Choudhary, Ravi Shankar, Munna Nawab and Hemant Yadav. Subsequently, a supplementary charge-sheet was submitted against the accused, namely, Mukesh Singh Choudhary.

(2.) The appellant in Criminal Appeal (D.B) No.363 of 2011, namely, Babua Pandey and the appellant in Criminal Appeal (D.B) No.386 of 2011, namely, Awadh Vishwakarma @ Awadh Bishwakarma @ Chenga have faced the trial on the charge under section 302 of the Indian Penal Code and under section 302/149 of the Indian Penal Code for committing murder of Mritunjay Kumar Singh @ Minku Singh.

(3.) Sri A.K. Kashyap, the learned Senior counsel for the appellant, namely, Babua Pandey has submitted that: P.W 2 and P.W 5 are not eye-witness; their presence at the place of occurrence is doubtful; conduct of P.W 2 in not informing P.W 1 name of the assailants makes his testimony unreliable; P.W 5 is a chance witness, and his presence at the place of occurrence is not established by the prosecution. The learned Senior counsel has further contended that conviction of Babua Pandey with the aid of section 149 of the Indian Penal Code is not sustainable, atleast for two reasons;(i) only four persons have been named as accused by P.W 5, and (ii) firing by the appellant in air would not establish that he was sharing common object with others. In support of his contention, the learned Senior counsel has referred to the decisions in "Parsuram Pandey & Ors. Vs. State of Bihar", 2004 13 SCC 189, "Deomuni Sharma Vs. State of Jharkhand", 2009 16 SCC 80 and "Bal Mukund Sharma alias Balmukund Chaudhry Vs. State of Bihar", 2019 5 SCC 469.