H.C. Mishra, J. - (1.) Heard learned senior counsel for the appellant and learned counsel for the State.
(2.) The appellant is aggrieved by the impugned Judgment of conviction dated 31st January 2012 and Order of sentence dated 02.02.2012, passed by the learned Additional Sessions Judge-II, Godda, in S.T. No. 35 of 1998, whereby, the appellant along with other co-accused, viz., his father Kuldeep Narayan Singh (since dead), had been found guilty and convicted for the offences under Sections 302 / 34 of the Indian Penal Code, and Section 27 of the Arms Act. Upon hearing on the point of sentence, both the accused were sentenced to undergo R.I. for life for the offence under Section 302 of the Indian Penal Code, and R.I. for five years and fine of Rs.5,000/- each, for the offence under Section 27 of the Arms Act, and the sentences were directed to run concurrently. It may be stated that the co-accused, father of this appellant, died during the pendency of his appeal filed separately, i.e., Cr. Appeal (DB) No. 188 of 2012, which stood abated.
(3.) The prosecution case was instituted on the basis of the fardbeyan of the informant Umakant Chaudhary, recorded on 20.08.1997 at 22:45 hours at Pathargama Road, near Raj Medical Hall, P.S. Pathargama, District Godda. It is stated in the fardbeyan that on 20.08.1997, at about 9:00 P.M., in the night, the informant and his father were talking in their house. He heard the gunshots from the roof of the house of Rajendra Singh, whereupon, he came out of the room and saw from his verandah, that at the roof of Rajendra Singh, the present accused Tapendra Singh, and one Sandeep Anand @ Pappu armed with guns, Kuldeep Narayan Singh armed with pistol and Rajendra Singh armed lathi were roaming on the roof. They were visible to the informant, as it was a moonlit night. They were abusing in filthy languages and were also firing the guns. The informant has also stated that his villagers Jago Manjhi, Nemani Manjhi, Kailu Manjhi, Kishori Manjhi, Janki Manjhi and Chhedi Manjhi went upon the roof of Rajendra Singh, armed with spears and all of them were instigating the accused persons to kill the informant's side entering their house, and they would support them. It is further alleged that thereafter, the accused persons came near the door of his cousin Pradeep Chaudhary and they were abusing the father of the informant in filthy languages. Pradeep Chaudhary opened his door and prevented them from using filthy languages, whereupon on the order given by Kuldeep Singh, the accused Tapendra Kumar Singh @ Laddu Singh fired his licensed gun injuring Pradeep Chaudhary, who fell inside the door towards the courtyard of his house. Upon the alarm raised by the father of Pradeep Chaudhary, the accused persons fled away. The informant and the neighbouring persons rushed there and saw Pradeep Chaudhary in injured condition with bleeding firearms injuries on his face and he was unconscious. They brought the injured on a cot to Pathargama Hospital, but as no doctor was available at Pathargama Hospital, they proceeded towards Godda, and near Raj Medical shop, the police arrived, where the informant gave his fardbeyan to the police. He has stated in the fardbeyan that the occurrence had taken place due to the dispute of sale proceeds of the fishes of a pond situated in the village. On the basis of the fardbeyan of the informant, Pathargama P.S. Case No.100 of 1997, corresponding to G.R. No.622 of 1997, was instituted for the offences under Sections 147, 148, 149, 307 and 504 of the Indian Penal Code, and Section 27 of the Arms Act. As the deceased died in the same night, Section 302 of the Indian Penal Code was added. It may be stated at this place that though the FIR is said to be registered on 20.8.1997, but the same has been received in the Court of Chief Judicial Magistrate on 22.08.1997, and there is no explanation for this delay. After investigation, the police submitted the charge-sheet in the case against the accused Kuldeep Narayan Sinha, Tapendra Singh @ Laddu Singh and Sandeep Anand, but Sandeep Anand died. Accused Kuldeep Narayan Singh, who had been tried with the appellant, died during the pendency of his appeal. As such, we shall confine to the materials on record against this appellant only, as far as practicable.;