- (1.) This appeal is directed against the judgment of conviction dated 29- 4-1998 and order of sentence dated 30-4- 1998 passed in Sessions Trial No. 126 / 1988 whereby and whereunder the learned 1st Additional Sessions Judge. Palamau at Daltonganj held the appellants guilty under Sections 395 and 307 IPC and convicted and sentenced them to undergo RI for 10 years under Section 395 IPC and a fine of Rs. 5000/- and in default of payment to undergo RI for two years and appellant Ramji Yadav is further directed to undergo RI for ten years under Section 307 IPC and to pay a fine of Rs. 5000/- and in default of payment to undergo RI for two years and sentences were directed to run concurrently.
(2.) Prosecution case in brief is that Jathli Devi gave a fardbeyan on 2-4-1986 at about 7.30 a.m. before DSP Chattrapur in the local hospital alongwith her son Ram Parvesh Yadav and youngest daughter Jayariti Kumari, Sundarkalia Devi and others that on the previous night at about 1 a.m. when she was sleeping with her daughter then all of a sudden there was some sound of riddling on the surface of the roof of the house, as a result of which she woke up and saw that there were persons in the courtyard. She alongwith her daughter went over the first floor when two persons named Ramji Yadav and Janki Yadav also followed her and one of them was armed with pistol and Ramsundar Yadav was armed with Gandasa. Ramji Yadav enquired about her son Ram Parvesh Yadav and told that today he will be murdered. At that time Ram Parvesh Yadav was not in the house and she gave the same reply whereupon Ramji Yadav started abusing her then she raised alarm and Ramji Yadav fired a shot from his pistol, as a result of which she and her daughter sustained injuries. After injury informant and her daughter came down and they peeped through the window and saw that persons were standing in the courtyard and she identified them as Navalki Yadav Khakhnu Yadav, Jugeshwar Yadav, Janki Mahto and they were uttering that anyhow family members have to be finished. She and other members of the family raised alarm from the upper floor and also called for help and save them then accused persons firing left the place with some articles. The villagers did not come to their help immediately due to firing being made by the dacoits. Ramnandan Bhuiyan also sustained fire arm injury. Cause of occurrence is said to be murder of the father of the accused persons namely Jugeshwar Mahto of this case in which husband of the informant is facing trial as an accused. She identified the dacoits in the light of Dhibri. Forceful cultivation of a piece of land by Navalki Yadav is also said to be the reason for commission of occurrence. On the basis of fardbeyan a case under Sections 147, 148, 149, 324, 307, 448. 380 IPC and 27 of the Arms Act was registered against all the appellants and police after investigation submitted chargesheet. With the death of one of chargesheeted accused, proceeding pending against him was dropped and cognizance was taken and case was committed to the Court of session where the first additional sessions Judge recorded the evidence of witnesses both oral and documentary and came to a finding and held the appellants guilty and convicted and sentenced them as aforesaid.
(3.) Prosecution has examined 8 witnesses. PW8 is a formal witness, who has proved the formal FIR (Ext. 3) PW 7 has been tendered for cross examination. PW 6 is also a formal witness who has proved the formal FIR, PW 5 is a doctor, who examined the injured Ramnandan Bhuiyan and found the following injuries. "One small lacerated puncture wound over the posterior surface of the lower part of the right arm. There was one small pellet embedded in the wound. The skin surrounding the wound was blackened and scorched. The nature of the injury was simple, caused by fire arms may be country made pistol or gun." The doctor further examined Jethli Devi and found the following injuries on her person : "There were about more than fifty small circular lacerated puncture wounds over the right arm and right elbow joint. There were huge swelling and tenderness of the right arm and elbow joint. The sizes of the pellets were variable in shape and size. The edges of the wounds were blackened and inverted and echymosed. The skin around the wound was scratched with partition of the gun powder. There was loss of function of the right elbow and wrist joint due to fatal injury. Nature of the injury was grievous caused by fire arms may be country made pistol or guns. On the same day doctor has again examined Jayanti Kumari and found the following injuries. "There were two small puncture lacerated wounds size about 1 cm x 1/2 cm x skin tender and blackened. The edges of the wounds were inverted and echymosed. The skin surrounding over wounds were scratched with particles of gun powder. Nature of injuries was simple caused by fire arms may be country made gun or pistol." ;