LAKSHMAN URAON AND S.J.MUKHOPADHAYA JJ. - (1.) THE sole appellant has preferred this appeal against the judgment and order of conviction and sentence dated 13th April, 2000 and 18th April, 2000 respectively, passed by Sri Moongeshwar Sahu, learned 1st Additional Sessions Judge, Godda. in Sessions Case No. 95 of 1998/156 of 1998, whereby and whereunder, the appellant has been convicted under Section 302 of the Indian Penal Code and under Section 27 of the Arms Act and sentenced to under rigorous imprisonment for life under Section 302 of the Indian Penal Code and to undergo rigorous imprisonment for two years under Section 27 of the Arms Act, directing both the sentences to run concurrently.
(2.) THE prosecution case is based on the fardheyan (Ext. 3/ 1) of the informant Santosh Kumar Yadav (PW 9) recorded on 11.7.1997 at 16.30 hours at State Dispensary, Poraiyahat, by L.D. Singh, S.I. of Poraiyahat Police Station, on which the informant Santosh Kumar Yadav signed (Ext. 4) and on that basis formal First Information Report (Ext. 3) was drawn and a case was registered. After investigation, chargesheet was submitted against this appellant and one Pramod Yadav. As the other two were juvenile, their cases were sent for trial by the Juvenile Justice Court. The informant (PW 9) has alleged that on 11.7.1997 at about 3.00 p.m. he along with his maternal uncle Pradip Yadav (deceased) was carrying wheat bags belonging to Dwarika Soren from Poraiyahat Block to Village Padampur. At about 4.30 p.m. when the bullock cart reached near Mission Field at Poraiyahat Godda Pitch Road, a white Ambassador car, bearing Registration No. BR -09C.3982 coming from Hasdiha side touched and dashed the bullock cart. Pradeep Yadav, maternal uncle of the informant, asked the driver to drive the car cautiously, on which some altercation took place in between his maternal uncle and the car driver. There were four persons in the car who came out of it. The informant identified this appellant Munchun Jha of Village Dumaria, who was driving the car. He also identified Pramod Yadav of Village Gorsada. He claimed to identify the other two, who were juvenile. They threatened the maternal uncle of the informant and this appellant ordered to shoot him. Thereafter, he himself brought out small pistol and fired at Pradip Yadav, touching the chest, causing injury on the left chest of Pradip Yadav as a result of which Pradeep Yadav fell down. One shot was fired at the informant also but he bowed down by sitting and thereby saved himself from the bullet injury. After causing injury by fire arms to Pradip Yadav, all the four, including this appellant, boarded the car and plied it towards Godda. The police officers of Poraiyahat Police Station followed them on motorcycle. The neighbours on hearing the sound of firing also assembled there. The informant took his injured maternal uncle Pradip Yadav to Poraiyahat Hospital, where he was declared dead by the doctor. Charges under Sections 302/34 of the Indian Penal Code and under Section 27 of the Arms Act were framed against Munchun Jha alias Raman Jha (appellant) and another Pramod Yadav.
(3.) THE prosecution examined altogether nine witnesses out of whom informant Santosh Kumar Yadav (PW 9) is the Bhagina of the deceased, who did not support the prosecution case as stated by him in his fardbeyan (Ext. 3/1) and, therefore, he was declared hostile by the prosecution. PW 1 Ashok Kumar Yadav, brother of the deceased, went there on hearing the sound of gun firing and found Pradip Yadav fallen down there with bleeding injuries on his chest. He saw this appellant and three others entering into the car through which they fled away. PW 2 Saket Kumar Yadav resides in the Hostel of PW 1, who claims himself to be the eye -witness, who is also the eye - witness as also a witness of seizure list regarding seizure of empty cartridge. His signature is Ext. 1 PW 3 Yogeshwar Yadav is the father of the deceased, who in course of his deposition in Court has claimed himself to the eye -witness whereas in course of investigation under Section 161, Cr PC he claims himself not to be the eye -witness as he came to know about the alleged occurrence by the informant (PW 9). PW 4 Shyam Babu Sha, another student residing in the Hostel of PW 1 Ashok Kumar Yadav, is a seizure list witness of the seized empty cartridge on which he signed (Ext. 1/1). PW 5 Dr. Satyendra Mishra has conducted the autopsy on the dead body of Pradip Yadav and has prepared post -mortem report (Ext. 2) in his pen and signature. PW 6 Anil Kumar Singh, SI, along with PW 7 Prem Shankar Pandey and one Home -guard Bharat Ravidas chased the assailants and apprehended appellant Munchun Jha and one Jitendra Kumar whereas the other two namely, Pramod Yadav and Riesh Kumar Singh managed to flee away. From their possession, they recovered country made pistol and cartridges. The fire arm recovered from the possession of the assailant and from the car were deposited at Godda Mofassil Police Station. PW 8 another ASI Barunesh Kumar Dubey has recorded the confessional statement of appellant Munchun Jha and Jitendra Kumar. He saw the injuries on their persons and sent them for medical treatment to Sadar Hospital, Godda, on 12.7.1997 in between 8.30 to 9.30 a.m. PW 9 Santosh Kumar Yadav although is Bhagina and claims himself to be the eye witness, has been declared hostile by the prosecution.;