PRADEEP KUMAR, J. - (1.) THIS appeal is directed against the judgment dated 22.5.2002 and order of conviction dated 23.5.2002 passed by Sri Rajeev Kumar, Vth Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 11 of 1999, by which judgment he found the appellant, Dhananjay Singh guilty under Section 304 of the Indian Penal Code read with Section 27 of the Arms Act and convicted him thereunder and sentenced him to undergo R.I. for 3 years under Section 304 of the Indian Penal Code and further sentenced him to undergo R.I. for 3 years and a fine of Rs. 5,000/ and in default to undergo R.I. for 6 months under Section 27 of the Arms Act. However, he directed both the sentences shall run concurrently.
(2.) IT is submitted by the learned counsel for the appellant that the appellant has falsely been implicated in this case. He has further submitted that although the F.I.R. was lodged on 22.5.1997, but the same was sent to the Chief Judicial Magistrate on 23.5.1997 and hence there is a delay in sending the F.I.R. which creates doubt in the prosecution case itself. He has further submitted that there is only two eye witnesses of the occurrence i.e. P.W.1, Suresh Ram and P.W.6, Rajdeo Singh (informant) and others came after the occurrence and only they saw the dead body of the deceased even presence of P.W.6, the informant at the place of occurrence is doubtful and hence the finding of conviction is bad in law and fit to be set aside. Lastly he has argued that it is a case of accidental firing and as such at best the appellant should be found guilty only under Section 304 (II) of the Indian Penal Code and not under Section 304 of the Indian Penal Code. On the other hand, learned counsel for the State has opposed the prayer and submitted that there is no delay in sending the F.I.R. It will appear from the F.I.R. itself that the F.I.R. was registered on 21.5.1997 and formal F.I.R. was drawn at 5.30 A.M. in the afternoon. Thereafter, the same was sent on 22.5.1997 to the Court of Chief Judicial Magistrate, Palamau at Daltonganj since Daltonganj is at far distance from Haidernagar Police Station hence, the same was seen by Chief Judicial Magistrate on 23.5.1997 although it reached at Daltonganj Court on 22.5.1997 itself and hence there is no delay which can create undoubt. He has further submitted that the evidence of eye witnesses clearly proved that the appellant caused the death of the deceased knowingly as the gun fire injury was caused on the chest hence the conviction under Section 304 of the Indian Penal Code read with Section 25 of the Arms Act is well founded and requires no interference by this Court.
(3.) AFTER hearing both the parties and going through the record, I find that in order to prove the charges the prosecution has examined 13 witnesses. P.W.1, Suresh Ram is an eye witness, P.W. 2, Anirudh Singh, he came after the occurrence, P.W.3, Jag Narayan Singh is witness of seizure of blood at the place of occurrence, P.W.4, Ram Prasad Singh he came after the occurrence, P.W.5, Baikunth Singh he saw the dead body, P.W. 6, Raj Deo Singh, the informant is an eye witness, P. W.7, Nanku Mahto reached on the next day of the occurrence, P.W.8, Jamni Mahto, who has been declared hostile, P.W.9, Dr. Rajeshwar Singh, who proved the postmortem report, P.W.10, Faugni Mahto, he came to know about the occurrence after he came to the village, P.W.11, Kail Saw, who has been declared hostile, P.W.12, Satya Devi wife of P.W.1, Suresh Ram and P.W.13, Bhola Singh who saw the dead body of the deceased.;