Judgment:
The sole appellant was put on trial for the charges under Section 302 of the Indian Penal Code and also under Section 27 of the Arms Act on the allegation that the appellant with his rifle shot dead one Balihari Harijan. Learned trial court having found the appellant guilty for the charges sentenced him to undergo rigorous imprisonment for life under Section 302 of Indian Penal Code and also to pay fine of Rs. 10,000/- and in default to undergo rigorous imprisonment for six months. He was also sentenced to undergo rigorous imprisonment for seven years under Section 27 of the Arms Act. Both the sentences were ordered to be run concurrently.
2. The case of the prosecution is that the informant, Babulal Kahar, P.W. 2, a security guard, as well as Hawaldar, Ram Chandra Singh, and also Balihari Harijan (deceased) had been deputed to keep vigilance at Jamtara railway siding. On the day of occurrence i.e. on 30.1.1997, while the deceased- Balihari Harijan was present in a hut in which he was living at railway siding, the informant and one Girija Mahto, P.W. 1, a private guard, came to attend their duties at railway siding at about 8:45 p.m. Meanwhile, three personnel of C.I.S.F. came over there with their rifles to discharge their duties. While the informant, Babulal Kahar, P.W. 2, and his co-fellow were about 25 to 30 yards away, they heard sound of firing at about 9:15 p.m. and upon it, they came rushing at the hut where they found Balihari Harijan lying dead over the cot. There they found the appellant, Gajendra Singh Kushwaha, a C.I.S.F. personnel, present with a rifle who on seeing them pointed rifle to them and asked him to take dead-body towards railway line and while they were taking the dead-body out of the hut, two C.I.S.F. personnel, namely, Janadhan Pradhan, P.W. 6 and V.N. Vellandhan, P.W. 9, came over there and then the appellant fled away and then both the C.I.S.F. personnel told the informant that the appellant had had verbal altercation with the deceased before the occurrence.
3. Thereafter, when Manager Ram, S.I. of Jamtara Police Station, reached at the place of occurrence, he recorded fard-beyan (Ext. 4) of the informant, Babulal Kahar, P.W. 2, on 30.1.1997 itself at 10:30 p.m. Thereupon, a case was registered and the matter was taken up for investigation by said S.I., Manager Ram, who has not been examined as the prosecution witness. However, from the records, it appears that said S.I., Manager Ram, held inquest on the dead-body of the deceased and prepared Inquest Report (Ext. 9-B).
4. In course of investigation, S.I., Manager Ram, also seems to have seized the rifle bearing No. 70693 with magazine under a Production-cum- Seizure List dated 30.1.1997 (Ext. 9), whereas under Ext. 9-A, a Production-cum- Seizure List dated 31.1.1997, earth smeared with blood as well as empty and live bullets of .303 were seized. On the same day, the dead-body was sent for post mortem examination, which was conducted by Dr. Baliram Prasad Gupta, C.W. 1, who on holding inquest on the dead-body found following injuries :
Entry wound present on front of chest about 3/4 c.m. round clear cut margin with blood and blood clot. Wound of exit was present on left side of back of chest about 1 1/2' leading into incised chest with blood and blood clots. He also found the chest of sternum as well as fourth rib on back on left side fractured.
Accordingly, the doctor issued post mortem report (Ext. 8) with an opinion that death of the deceased was caused on account of hemorrhage and shock due to injury caused by cartridge of rifle. Subsequently, when the investigation was taken by Jagat Narayan Singh, P.W. 7, he sent the rifle as well as empty and live cartridges for examination before the Surgeon Major, Dumka under his Letter No. 6.9.1998 (Ext. 6) and the Surgeon Major on its examination reported that the shot was fired by the rifle having .303 bore and submitted his report under Ext. 7.
5. After completion of the investigation, the police submitted charge-sheet upon which cognizance was taken. On committal of the case, charge was framed to which the appellant pleaded not guilty and claimed to be tried.
6. In course of trial, the prosecution examined as many as 10 witnesses, whereas Dr. Baliram Prasad Gupta, who held post mortem examination, and one Jag Lal Kishore, a formal witness, were examined as C.W. 1 and 2 respectively. The informant, Babulal Kahar, P.W. 2. as well as Girija Mahto, P.W. 1, who, according to the prosecution case, reached to the place of occurrence immediately and saw the appellant present, did not support the case of the prosecution, as they did not identify the appellant as assailant, though they speak about the occurrence. P.W. 6, Janadhan Pradhan, a constable of C.I.S.F., has supported the prosecution case, whereas another Constable, P.W. 9, V.N. Vellandhan, turned hostile.
7. After the case of the prosecution was closed, the appellant was questioned under Section 313 Cr.P.C. about the incriminating evidences appearing against him, which he denied. Thereupon, the trial court after taking into consideration the materials brought on record did find the appellant guilty and hence recorded the order of conviction and sentence, as aforesaid. Being aggrieved with the said judgment, this appeal has been preferred.
8. Learned Counsel appearing for the appellant submits that one of the witnesses, namely, P.W. 6, Janadhan Pradhan, though has come forward to support the case of the prosecution, but his testimony is not worth reliable, as there has been material contradictions in his testimony. In this respect, it was submitted that P.W. 6, Janadhan Pradhan, has testified that the appellant after leaving the rifle at the place of occurrence fled away but P.W. 2, Babulal Kahar, speaks otherwise where he has stated that the appellant fled away with his rifle. It was further submitted that admittedly P.W. 6 never saw the appellant committing murder of the deceased, but he considered the appellant as culprit, as according to him, the appellant was present with his rifle near the dead-body after the occurrence, but this assertion of P.W. 6 never proves the case beyond all reasonable doubts, as the prosecution has failed to bring on record that the appellant had been assigned with duty on the day of occurrence to keep vigil at the railway siding nor the prosecution has proved that the rifle, which is said to have been seized, was allotted to the appellant. Moreover, the rifle was not produced in the court and under these situations, the order of conviction against the appellant cannot be sustained and hence the order of conviction and sentenced is fit to be set aside.
9. Heard learned Counsel appearing for the State.
10. Having heard learned Counsel appearing for the parties and on perusal of the record, we do find that according to P.W. 6, Janadhan Pradhan, a Constable of C.I.S.F., he as well as P.W. 9, V.N. Vellandhan, head Constable, and the appellant came to the security post, where the deceased-Balihari Harijan, a security guard of E.C.L., and one Girija Mahto, P.W. 1, were present. The appellant asked the deceased-Balihari Harijan to come along with them for the duty, but the deceased-Balihari Harijan refused to obey him and that led to verbal altercation. However, the matter was pacified and then P.W. 6 and P.W. 9 took the appellant along with them. After going some distance, the appellant stopped to ease himself. After some time, he (P.W. 6) and P.W. 9 heard sound of firing and on hearing it, when he and the other Constable of C.I.S.F. came to the security post, they saw the deceased-Balihari Harijan lying on the ground, as he had received gun shot injury and the appellant was dragging him by saying that he will be thrown him at the railway siding and when they proceeded towards him, the appellant by pointing his rifle to them asked not to proceed and then the appellant by throwing his rifle on the dead-body fled away and the said rifle was seized. The testimony of this witness regarding verbal altercation in between the deceased-Balihari Harijan and the appellant gets support from the testimony of P.W. 9, who has been declared hostile by the prosecution. That apart, P.W. 2, who though has also been declared hostile, has testified about the dead-body being dragged. Furthermore, this witness (P.W. 2) has testified that the appellant fled away with the rifle, whereas P.W. 6 has said that the appellant by leaving his rifle on the dead-body did flee away from the place of occurrence and this version of P.W. 6 seems to be correct, as the rifle has been seized under Production-cum-Seizure List (Ext. 9-A). Even if this fact regarding seizure of the rifle at the place of occurrence is ignored, the appellant was seen with his rifle just after the occurrence by P.W. 6 as also by P.W. 2 at the place of occurrence from where earth smeared with blood and even live as well as empty cartridges were recovered and as per the evidence of Dr. Baliram Prasad Gupta, C.W. 1, the injury found on the person of the deceased was caused by the firearm.
11. Thus, we do find that the prosecution has been able to establish the circumstances that the appellant had some kind of verbal altercation with the deceased before the occurrence and when the deceased was shot dead, the appellant was found dragging the dead-body and that the empty as well as live cartridges being used in the rifle having .303 bore were found at the place of occurrence. All these circumstances go to prove that it was the appellant alone who could be responsible for causing death to the deceased and in the circumstances, non-production of the rifle as well as non-proving of the fact that the rifle, which was used in commission of the offence, was allotted to the appellant pale into insignificance, as those facts, under the circumstances, never appear to be so material so as to be established for holding the appellant guilty.
12. Thus, we find that the trial court has rightly convicted and sentenced the appellant for the charges levelled against him. Accordingly, we do not find any merit in this appeal. Hence, this appeal is dismissed.