Full Judgment
I.P. Singh, J.
1. The sole appellant has been convicted under Sections 307/34, 332/34 of the Indian Penal Code and also under Section 25(1)(A) and 26 of the Arms Act and to undergo rigorous imprisonment for seven years under Section 307/34 IPC three years Rl under Section 332/34 IPC and seven years Rl under Section 25(1)(A) Arms Act and seven years Rl under Section 26 of the Arms Act. However, sentence were directed out run concurrently.
2. The prosecution Case, in short, is that on 20-5-1982 the informant, Niraj Kumar Sinha, officer-in-charge of P.S. Bhagawan Bazar along with other police man were on patrolling duty on Jeep No. BHD 9331 and when they reached at Mohalla-Shyam Chak Naykatola near the house of Sheonath Sah he heard a sound of firing. The patrolling party proceeded forward and in the head light of jeep saw two dacoits, both armed, with country made gun, near a Palm tree in the east of the house of Sheonath Sah. The dacoits challenged and threatened to open fire and also directed to stop the jeep. Thereafter, the jeep was stopped and one police man came down from the jeep. The dacoits opened fire which caused injury to Paras Nath Singh, constable. The police also opened fire out of which one dacoits became injured at the place of occurrence and he fell down and other dacoits fled away. The dacoit, who fell down disclosed the name of Lalan Market and from his possession the police recovered one country made pistol and some live cartridges and other cartridges were also found in his Pheta of lungi. A leather hand bag containing 25 live cartridges was also recovered from the possession of the appellant at the place of occurrence. The seizure list was prepared. It has been stated that the another country made gun was also recovered, as thrown in the Bathan of Ram Janam. Thereafter, the fardbeyan of the informant was recorded and on the basis of which an FIR was registered. After completion of investigation chargesheet was submitted against the appellant. Cognizance was taken and the case was committed to the Court of sessions where trial concluded with the result as above. The appellant pleaded not guilty.
3. The prosecution, in support of its case, examined altogether seven witnesses. P.W. 1 is Dr. Bishnu Kant Gupta, who has examined the injured Paras Nath Singh, constable at 8.45 p.m. on 20-5-1982, P.W. 2 is Shankar Hazara, a constable, a member of the patrolling party, P.W. 3 is Raj Ballam Sah, a formal witness who proved Ext. 2, the sanction order, P.W. 4 is Sheonath Sah, who is witness of seizure list, P.W. 5 is Pradeep Kr. Gupta, son of P.W. 4, P.W. 6 is Seargent Major Chandradeo Chaudhary and P.W. 7 is Paras Nath Singh, the injured constable. Defence also examined two witnessed on its behalf,
4. P.W. 1 Dr. Bishnu Kant Gupta, who examined the injured Paras Nath Singh, constable at 8.45 p.m. on 20-5-1982 found eight injuries.
1. Laceration with charred margin of right forearm.
2. Laceration with charred margin below right elbow.
3. Laceration with charred margin near injury No. 1.
4. Abrasion of right thumb.
5. Laceration with charred margin right palm.
6. Laceration with charred margin tip of right finger and middle finger.
7. Laceration with charred margin right side abdomen.
8. Laceration with charred margin right abdomen.
In the opinion of the doctor, all injures were caused by fire arm and were simple in nature.
5. P.W. 2 is Shanker Hazara. He is a constable and the member of the patrolling party. He is the eye-witnesses and has supported the case of the prosecution. According to him, on the date of occurrence when he was on patrolling duty with the Officer-in-charge N.K. Sinha on a jeep and when the Jeep reached at Mohalla-Shyam Chak Naykatola near the house of Sheonath Sah, he heard a sound of firing. He including the patrolling party proceeded towards that direction and in the head light of the Jeep he saw two dacoits armed with country made gun near the house of Sheonath Sah. Both dacoits challenged them to open fire and also directed to stop the Jeep. Thereafter, the Jeep was stopped and one police man got down from the jeep. The dacoits opened fire which caused injury to Paras Nath Singh, the constable. According to him, the police also opened fire, on account of which one dacoit was injured at the place of occurrence and he fell down. Other dacoits fled away, the dacoit, who was injured disclosed his name as Lalan Miskar, He has also stated that the dacoits, had fired causing injury on Paras Nath Singh on his chest and abdomen.
6. P.W. 3 Raj Ballam Sah is formal witness. P.W. 4 Sheonath Sah is seizure list witnesses. He has stopped that the seizure list was prepared at about 10 p. m. A leather bag containing cartridge was recovered from the place of occurrence. P.W. 5 Pradip Kr. Gupta is also seizure list witness (Ext.1). According to him, a small country made gun was recovered from the hand of injured appellant who fell down at his Darwaja. P.W. 6 Chandra Deo Choundhary, Sergeant major who got the seized arms and ammunition tested. According to him, they were effective and also proved his report, Ext. 4 and 5.
7. Learned Counsel for the appellant has submitted that the I.O. and the information were not examined as such the case of the defence has been prejudiced. However, in this case P.W. 2 and 7 are members of the patrolling party. P.W. 7 also got injured by the firing done by the miscreants including the appellant That apart, injury on the person of P.W. 7, was corroborated by P.W. 1, the doctor who examined the injured on. the date of occurrence itself. This appellant also got injured and was apprehended during the occurrence. Arms and ammunition's, as alleged, was also recovered from his possession. The recovery was proved by P. Ws. 4 & 5, seizure list witness. The seizure list was also prepared for the seized arms and ammunications. In view of all corroborative evidence by competent witnesses on the point of firing, injuries and seizure of arms, the non-examination of I.O. and the informant does not adversely affect the prosecution case and it also did not prejudice the defence of the appellant. The Court below in paragraph-9 of the judgment has also discussed this point.
8. From the deposition of eye-witnesses P.Ws. 2 and 7 and seizure list witnesses P.Ws. 4 and 5 and corroborating statement of Dr. Bishnu Kant Gupta, P.W. 1 in respect of the injuries inflicted on the person of injured, there remains on doubt that the prosecution has proved its case beyond all reasonable doubts. The Court below, on the appreciation of materials available on the record, rightly came to the conclusion and convicted the appellant under Sections 307/34 and 332/34 of the Indian Penal Code and Sections 25(i)(a) of the Arms Act.
9. I find no reason to interfere with the conviction and sentence of the applicant. Accordingly, the order and judgment, passed by the learned Counsel below is upheld. In the result, this appeal is dismissed.