- (1.) THE appellant Ashok Kumar Dubey and others were put on trial in S.T. No. 02 of 2004 on the charge of committing murder of Suresh Kumar Dubey. The then Additional Sessions Judge -cum -FTC No. II, Chatra having found the appellant guilty of the said charge recorded the judgment of conviction dated 15.9.2009 and awarded death sentence to the appellant Ashok Kumar Dubey, vide its order dated 16.9.2009. Being aggrieved with the judgment of conviction and order of sentence, an appeal has been preferred on behalf of the State, whereas the court referred the matter under Section 366 of the Code of Criminal Procedure for confirmation of the order upon which Death Reference (D.B.) No. 3 of 2009 has been registered. Accordingly, Reference as well as Appeal were heard together.
(2.) THE case of the prosecution as has been made out in the Fardbeyan (Ext. 1) is that in the year 1992, this appellant and the co -accused Himanshu Dubey had killed one Alakh Narain Dubey, father of the informant Rajesh Kumar Dubey (P.W.3) for which the appellant and other co -accused were facing trial in which some of the eye witnesses, P.W.1 and P.W.2 had even deposed against the appellant and co -accused. The informant (P.W.3) was supposed to give evidence on 11.8.2003. Before that on 6.8.2003 as per Fardbeyan Himanshu Dubey, co -accused and one Ajay Dubey had sent a message to the informant through a person, [which in course of evidence has come as Chandra Basu Debey (P.W.2),] not to depose in the case on the date fixed but the informant Rajesh Kumar Dubey was adamant to give evidence on the date fixed. On account of the said reason when the informant Rajesh Kumar Dubey was sleeping in the house in the night on 7.8.2003 along with his brother -in -law Suresh Kumar Dubey (deceased) over a cot while Jaimala Devi (P.W.5), wife of the informant was sleeping over another cot in a room having no door of the house which was newly constructed, the informant and his wife heard sound of firing in the midnight and woke up. The informant immediately took out his torch light which he had kept under the pillow and came out and saw this appellant and co -accused Himanshu Dubey running away. On seeing this, the informant raised alarm, upon which Kailash Singh and Binod Singh (not examined) residing in the neighbourhood came running over there and asked from them as to where firing has taken place. When the informant and his wife came back, they saw the deceased dead. Thereupon the informant and his wife with the help of villagers took the deceased to police station where the informant gave his Fardbeyan on 8.8.2003 at 7 a.m. stating therein about the incident as has been stated above. It was also stated that the deceased was sleeping by wearing lungi belonging to the informant which led the assailant to misidentify him as Rajesh Kumar Dubey and fired shot upon him on account of the reason that the appellant and co -accused Himanshu Dubey wanted that the informant should not depose in the case on the date fixed to which the informant did not agree for. Upon such Fardbeyan, a formal first information report (Ext. 4) was drawn. Thereupon the case was taken up for investigation by the Investigating Officer (not examined) who held inquest on the dead body at the police station and prepared an inquest report. Thereupon the dead body was sent for post mortem examination which was conduced by Dr. B.P. Singh (P.W.6), who on holding autopsy on the dead body did find the following injuries. "(1) External: - - wound of entry - total 17 numbers out of which 9 were transversing as anterior chest wall and anterior abdominal wall as shown in picture. All wound had collar of grease and abrasion and there was corresponding holes in gerua colour Ganjee (ii) On exploration of chest and abdomen there was blood in pleural cavity, right lung was lacerated 5" x 3" x 2" red in colour. Transverse mesocolon and transverse colour was lacerated 2 x 1 x 1 cm. red in colour. One big 1/2" x 1/2" cartridge and 3 pellets recovered and preserved. One cartridge was lodged in D 7 vertibra. One large wound of entry in mid Auxiliary line in 4th space near left nipple 1/2" in diameter having collar of ridge and abrasion communicating to pleural cavity. Rest wound of entry also communicated with pleural and abdominal cavity. (iii) Wound of exit - total 4 in number on posterior chest wall was seen. Margins everted and red in colour. Heart was found lacerated badly." Doctor issued post mortem examination report (Ext. 3) with an opinion that death was caused due to shock on account of above mentioned firearm injury from smooth barrel weapon fired from short distance resulting into cardiogenic and hemorrhagic shock.
(3.) MEANWHILE , the Investigating Officer recorded the statements of the witnesses. On completion of investigation when charge sheet was submitted against the appellant and the co -accused Himanshu Dubey, cognizance of the offence was taken and they were put on trial after the case was committed to the court of sessions.;