S.J.MUKHOPADHAYA, J. - (1.) THIS Criminal Appeal has been preferred by appellant Surendra Mishra against the judgment and order of conviction and sentence both dated 21st February, 2004, passed by the learned 12th Additional Sessions Judge, Dhanbad, in Sessions Trial No. 24 of 2001, whereby and whereunder, he has held the appellant guilty of the offence under Sec.302 of the Indian Penal Code as also Sec.27 of the Arms Act and sentenced him to undergo life imprisonment with a fine of Rs. 500.00 under Sec.302 of the Indian Penal Code and in default of payment of fine to undergo simple imprisonment for seven days. However, in view of the aforesaid sentenced, no separate sentence has been awarded under Sec.27 of the Arms Act.
(2.) THE prosecution, as arisen on the basis of fardbeyan (Ext. 4) of the informant Bidyut Kumar Modi, who was working as car -driver of Chandrashekhar Choubey (deceased) since 1999 and was driving the Ambassador Car of the deceased bearing Registration No. BR -17F -0041, recorded on 11th August, 2000, is that on the same day he drove Chandrashekhar Choubey (deceased) on the car to Chas Nala More. Within 3 to 4 minutes they reached Chas Nala More near N.S. City Computer Center and parked the car near the road -side "Gumti". Chandrshekhar Choubey asked him (the informant) to call for Shashadhar Mukherjee (PW 2) from his Auto Parts shop. Chandrashekhar Choubey was sitting on the back seat of the car and was talking with Shashadhar Mukherjee. When he (the informant) was about to sit in the car on the driving seat, all of a sudden Surendra Mishra (appellant), owner of Bhubneshwari Medical Hall, appeared with a country made pistol in his hand. He (the appellant) pushed aside Shashadhar Mukherjee and fired at Chandrashekhar Choubey from a point -blank range from his country made pistol. Chandrashekhar Choubey immediately fell down on the seat and there was perfused bleeding from his face. Thereafter, he (the informant) rushed through the vehicle to his owner 'shouse and told Vinod Kumar Choubey PW 4, the elder son of the deceased, that 'Malik ' has been shot at. Thereafter Vinod Kumar Choubey and Deepak Kumar Choubey PW 6 accompanied him and proceeded for Colliery Hospital. On the way, Vinod Kumar Choubey PW 4 informed the police patrolling party about the incident and rushed to Chas Nala Hospital with the police personnel where Chandrashekhar Choubey was declared dead. On the basis of the aforesaid fardbeyan, a formal First Information Report was drawn up and charge -sheet was submitted against the appellant for the offence under Sections 302 of the Indian Penal Code and 27 of the Arms Act. Thereafter, the trial proceeded and charges were framed, which were explained to the accused appellant in Hindi, to which he pleaded not guilty and claimed to be tried. The prosecution has examined altogether nine witnesses in support of its case whereas the defence has also examined two witnesses. Certain documents have also been exhibited on behalf of both the parties, as discussed hereunder. PW 1 Bidyut Kumar Modi, informant of the case, in his deposition, has stated that the occurrence took place on 11th August, 2000 the evening at about 7.00 p.m. At that time, he was the driver of Ambassador Car of Chandrashekhar Choubey. On the said day, at that particular time, he had gone to Chas Nala More along with Chandrashekhar Choubey and there was no other person in the said car. Choubey Jee was sitting on the back seat on left side of the Ambasador car bearing Registration No. BR -17F -0041. When they reached Chas Nala More near N.S. City Computer Center, he stopped the vehicle as Choubey Jee asked him to call Shashadhar Mukherjee. He called Shashadhar Mukherjee from his Auto Parts shop. While Choubey Jee was talking with Shashadhar Mukherjee, owner of Bhubneshwari Medical Hall (appellant) came there and pushed aside Mukherjee Babu and fired at Choubey Jee. He has further stated that Surendra (appellant) is the owner of the Bhubneshwari Medical Hall and it was he, who had fired at Choubey Jee with small pistol. Choubey Jee having been shot at, fell down on the right side of the seat. Surendra Mishra at that time threatened him of dire consequences. This witness has further stated that he took the injured Choubey Jee on the car to his house and thereafter, proceeded for Chas Nala Colliery Hospital after taking Vinod Kumar Choubey and Deepak Kumar Choubey with him. On the way, they met the police patrolling party, who took them to Chas Nala Hospital where Choubey Jee was declared dead. He has proved the signature of Shashadhar Mukherjee on the fardbeyan and has also identified the accused appellant. In his cross -examination, this witness PW 1 informant while stated that large number of crowd was not gathered when Choubey Jee was shot at, has further deposed that there are 10 to 12 shops on both sides of the road near the place of occurrence. He has further stated that he stayed at the place of occurrence for about a minute and did not call anyone, as he was panicked. He informed Vinod Kumar Choubey that "Malik has been shot at and Surendra Mishra had fired from the door - side of the car from a close range. The informant has fully corroborated the statement, made in the First Information Report, and no contradiction could be pointed out from his cross -examination. He is an independent witness and is an eye -witness of the occurrence.
(3.) PW 2 Shashadhar Mukherjee is another eye -witness of the occurrence, according to the First Information Report. He has deposed that he was acquainted with Chandrashekhar Choubey (deceased), who was a Trade Union Leader and was murdered on 11th August, 2000 in the even at about 7.00 p.m. On the said date in the evening, while he was sitting in his shop, namely, Sulekha Auto Parts, Bidyut Kumar Modi PW 1 informant, driver of Chandrashekhar Choubey, came to call him. He went to Chandrashekhar Choubey, who Was sitting at the left side of the car and while he was talking with him, someone came there and pushed him aside. He could not see the person, who pushed him and had come and stood near Choubey Jee. Thereafter, he heard as sound like cracker and when he got up, he saw the person running away. He has further stated that at the time the occurrence took place, darkness had set in and the person, who had pushed him, was stoutly built. He has stated to be acquainted with Surendra Mishra (appellant), who had a medical shop at his residence.;