- (1.) By way of filing this petition, the petitioner has challenged the judgment of conviction and order of sentence dated 26.3.2018 passed by the learned Chief Judicial Magistrate, Simdega, in G.R. No. 62/2012, arising out of Kolebira P.S. Case No. 13/2012, whereby, the petitioner has been convicted for the offence under Sections 392, 411, 414 of the Indian Penal Code and Section 25(1-B)a 26/35 of the Arms Act and sentenced him to undergo R.I. for 5 years and fine of Rs.5,000/- under Section 392 IPC and undergo R.I for 03 years along with fine of Rs.2,000/- under Section 411 and 414 IPC and undergo R.I for 03 years along with a fine of Rs.5,000/- under Section 25(1-B)a/35 of the Arms Act and undergo R.I. For 5 years along with a fine of Rs.5,000/- under Section 26/35 of the Arms Act and in default of payment of fine, the petitioner has further been directed to undergo R.I for six months in default of payment of fine separately as well as for setting aside the judgment of confirmation passed in Cr. Appeal No. 25/2018 by the learned Principal Sessions Judge, Simdega.
(2.) The prosecution case is based upon fardbeyan of one Rajendra Prasad, recorded by Officer-in-Charge, Kolebira Police Station on 11.2.2012 stating therein that when he went to Larwa Market and was purchasing mahuwa and Urad, at about 11:30 a.m, three miscreants came to him riding on one black colour Hero Honda Passion Pro motorcycle without having any registration number, one of the miscreants pointed pistol on his temple and demanded money bag from him, due to fear he handed over money bag to them containing Rs.4,000/-.The miscreants started fleeing away towards Ranchi. Police came and chase was made. During chase, the miscreant lost balance of the motorcycle and dashed in a tree. All three miscreants fell down. Two of them started fleeing away in injured condition towards Aghrma. One miscreant died on the spot. On search one loaded country made pistol of 12 bore was recovered from the possession of accused Somra Mahto and cash of Rs.4,410/- of different denomination and one live cartridge of 12 bore was also recovered from the possession of the present petitioner. Thereafter a seizure list was prepared.
(3.) After closure of the investigation, the chargesheet was filed. The Court below took the cognizance for the offence under Sections 392, 411, 414, 279 and 304-A of the IPC and Sections 25(1-B) a/26/35 of the Arms Act. As the petitioner claiming not guilty, he along with others were put on trial after framing of charge. The prosecution has examined altogether 11 witnesses, which are as follows; P.W.1- Rajendra Prasad: This witness is the informant of this case, who deposed that the occurrence took place on 11.2.2012 when he was in Larwa Market. He claimed to identify the miscreants. He has proved his signature on statement which was marked as Ext. 1. In TIP he identified the looted plastic bag containing money. P.W.2- Madhusudan Biswal: This witness is a hearsay witness, who heard that Rajendra Prasad was looted by some miscreants in Larwa Market. P.W.3- Sheikh Aslam, P.W.5- Damodar Biswal and P.W.8- Marwari Singh: These witnesses have deposed that they have no knowledge about the alleged occurrence and they have been declared hostile. P.W.4 Dr. P.M. Bara: He is the Medical Officer who stated that on 12.2.2012 he conducted postmortem over the dead body of the deceased -Vijay. He has been brought and identified by Chowkidars. He opined that the cause of death is cardio respiratory arrest due to brain hemorrhage and the injury. P.W.6 Randhir Kumar: He in his examination in-chief stated that occurrence took place in the month of February 2012. He was called from police station and informed that some miscreants had looted Rajendra Prasad and during this course, one person died. P.W.7 Abhijeet Kumar Sahu: He has been declared hostile by the prosecution. P.W.9 Anil Kumar Singh: He was posted as Sergeant Major at Simdega and on 24.3.2012 the I.O. Shree Niwas Kumar produced material exhibits of Kolebira P.S. Case No. 13/2012 in sealed condition in white cloth containing one country made pistol along with two cartridges of 12 bore. In cross-examination, he stated that today the said weapon is not present in the court. He stated that his report is not faulty. P.W.10 S.I. Shree Niwas Kumar: He has supported the case and stated that on 11.2.2012 he was posted in Kolebira Police Station as Officer-in-Charge. On that day, he received information that some miscreants had looted one business man on the point of pistol. He went to the place of occurrence and recorded the fardbeyan of Rajendra Prasad, which is in his writing and signature, which is marked as Ext. 1/1. This witness in totality supported the case of the prosecution. P.W.11- ASI Jainath Ram: He in his examination -in-chief stated that he was posted in Kolebira Police Station as ASI and by the order of Officer-in-Charge, he appeared before the court with material exhibit challan and material exhibits of Kolebira P.S. Case No. 13/2012. He stated that he got no personal knowledge about this case and he only produced the material exhibit before the court. ;