D.K.SINHA, J. - (1.) THE present appeal is directed against the judgment of conviction passed by the Add!. Sessions Judge (FTC), Latehar in S.T. No. 41 of 2002 on 10.11.2003 for the charge under sections 364N302/201 of the Indian Penal Code whereby and whereunder the appellant Shiv Kumar Oraon was sentenced to undergo life imprisonment under section 364A. again imprisonment for life under section 302 with fine of Rs. 10,000/ - with default stipulation and finally 5 years rigorous imprisonment under section 201 of Indian Penal Code. It was directed by the trial court to deliver 60% of the fine amount to the father of the deceased (informant) and the sentences to run concurrently. We find that the operation portion of the order lackes clarity in the impugned judgment.
(2.) THE brief facts of the case as it stands narrated in the Fardbeyan of the informant, Deo Raj Sao was that in the night of 5.9.2001 at about 9.30 O'clock, about 8/10 persons arrived at his house and knocked the door on the pretext that they were guests. When his son Kundan Prasad opened the door, all the culprits took him away alongwith his another son Nandan Prasad (since deceased) and his nephew Sudarshan Prasad. The culprits tied the hands of all the three boys and took them in the deep forest. It was further alleged that the miscreants let off Kundan Prasad and Sudarshan Prasad after extending some torture with the condition to bring ransom of Rs. 1.5 lakhs to secure the release of their brother Nandan Prasad. The matter was informed to the police by the informant in the night of occurrence itself. The informant started searching his son after communication from the witnesses Nandan Prasad and Sudarshan Prasad on their return. On 9.9.2001 pursuant to the information received that a dead body of an unknown person was lying in the bogey No. 93466 of the goods train at Khelari -Dakra railway siding, he alongwith his son Kundan Prasad went there and identified that the dead body belonged to his son Nandan Prasad who was killed by the miscreants for non -payment of ransom. However, the informant claimed in his statement before the police that his elder son as well as nephew could recognize the culprits by their faces, if produced before them. Latehar P.S. Case No. 85 of 2001 was registered on 12.9.2001 on the statement of the informant for the offence under sections 364A/302/201 of Indian Penal Code against 8/10 unknown culprits. The police after investigation submitted charge -sheet against the appellant. The appellant was identified by the informant and his son Kundan Prasad in the test identification parade which was held on 5.12.2001 during the investigation. The other accused persons were discharged by the committing court itself since not being identified by the witnesses in the test identification parade. The charge was framed by the trial court only against the appellant under sections 364A/302/201 IPC. Mr. A.K. Chaturvedi, the learned counsel by advancing his arguments submitted that altogether 8 witnesses were produced and examined on behalf of the prosecution. P.W. 1 Deo Raj Sao, father of the deceased and informant of the case, corroborated his earlier version in his testimony as to how the occurrence took place with the participation of 8/10 culprits in his house wherein his two sons Kundan and Nandan Prasad as well as his nephew Sudarshan were abducted and how Sudarshan and Kundan were let off by the culprits to secure the release of Nandan Prasad (since deceased) against ransom of Rs. 1.5 lakhs. P.W. 1 testified having identified the appellant in the TIP but after three months. Similarly P.W. 2 Kundan Prasad, son of the informant Claimed to identify the appellant Shiv Kumar Oraon in the test identification parade which was held after three months of the occurrence in the jail and therefore, according to Mr. Chaturvedi, such TIP has got no legal sanctity. By drawing our attention Mr. Chaturvedi further submitted that P.W. 4 Sudarshan Prasad admitted in his testimony that he was not aware of the name of the appellant but his name was appraised by his uncle (informant) and that he had not seen the appellant prior to the alleged date of occurrence and he claimed to identify the appellant for the first time in trial court. The specific defence of the appellant was that he was shown to the witnesses at the police station and for such reason the witnesses could easily identify him at the test identification parade but no independent corroborative evidence was produced to connect the appellant with the alleged offence. Mr. Chaturvedi exhorted that other witnesses such as P.W. 3 Tup Chand Sao, P.W. 5 Lakheshwari Devi were the inmates in the house of the informant at the time of alleged occurrence but they could not identify the appellant in the dock. P.W. 6 Amod Narayan Singh, Officer -Incharge of Chandwa police station investigated the case erroneously and submitted the Charge -sheet only against the appellant though FIR was instituted against 8/10 unknown. Similarly the test identification parade as conducted in presence of P.W. 7 Sri Ramjiyavan Judicial Magistrate, Latehar was against the procedural law who proved TIP chart Ext. 6.
(3.) C .w. 1 Dilip Kumar, Dy. Superintendent of Sub -Divisional Hospital, Latehar was produced as court witness who held autopsy on the body of Nandan Prasad on 10.9.2001 and found the following injuries: - (i) One oval shaped wound with charred margin, size 1" x 1/2" x 1/2" over front of right side of chest, in middle sixth and seventh intercostal. (ii) One wound of exit, size 2" x 1" x 1/2" over back of chest on right side. On Dissection Right lung pierced. chest cavity -Full of blood In the opinion of the Doctor. death was caused due to haemorrhage and shock on account of firearm injury. Time since death was assessed two to three days. He proved the post mortem report Ext. 7. In the cross -examination the witness opined that injury on the victim was caused by firearm from close range.;