Kuldip Choudhary vs State of Jharkhand

Shree Chandrashekhar, J

The sole appellant has faced the trial in Sessions Trial No. 156 of 2006 on the charges framed U/s. 302/34 of the Indian Penal Code for committing murder of Chandradeo Choudhary and U/s. 307/34 of the Indian Penal Code for attempt to commit murder of Balram Choudhary, the informant. A charge under section 27 of the Arms Act was also framed against him.

The appellant has suffered punishment of R.I. for life and fine of Rs. 2,000/- under section 302 of the Indian Penal Code and R.I. for ten years and fine of Rs. 2000/- under section 307 of the Indian Penal Code.

On the basis of the fardbeyan of Balram Choudhary, Hunterganj P.S. Case no. 04 of 2006 was registered on 26.1.2006 against the appellant.

During the trial, the prosecution has examined nine witnesses. Dr. S.N.Singh who has proved the post-mortem report vide Ext.4 has been examined as P.W-9.

The appellant has examined Birendra Das as a defence witness to set up a defence that he is a man of good character, without any criminal antecedent and he has been falsely implicated in this case.

The informant is an injured witness. He is the brother of Chandradeo Choudhary, the deceased. In his fardbeyan which was recorded on 26.1.2006, at about 6 a.m. at PHC Hunterganj, the informant has stated that last evening he and his brother were enjoying drinks (Tari). At that time, 3-4 unknown persons came there and they also started drinking Tari at his verandah. After some time, he went to ease himself and, thereafter, the appellant and those 3-4 unknown persons also started moving after him. When they reached in front of his house, appellant-Kuldip Choudhary suddenly drew out a pistol and fired at him. The bullet pierced the left side of his chest. He ran to his house raising hulla whereupon Chandradeo Choudhary came out at the verandah. The informant has alleged that the appellant then fired a shot at his brother due to which he fell on the ground and died. Thereafter, the appellant and his unknown associates fled away. At the place of occurrence, the appellant had left his yellow-coloured plastic bag containing a light-green shawl, red-stripped lungi and blue-coloured stripped lungi. In the night, the appellant was shifted to PHC, Hunterganj. In the court, the appellant has reiterated a similar story of the incident. He has made a specific allegation of firing on himself and his brother by the appellant. In his cross-examination, the informant has disclosed that there was a quarrel between his brother and the appellant for Rs. 4,000/- which was lend by his brother to the appellant.

The other prosecution's witnesses- PW-2, PW-3, PW-4 and PW-8 are not the eye witnesses, but they had seen the dead body of Chandradeo Choudhary lying on the road and the informant who had sustained gunshot injury on the left part of his chest. They have supported the prosecution's case to the extent that the informant had informed them that the appellant has fired shot on him and his brother. Dr. Binod Kumar Singh, who has examined Balram Choudhary, the informant, on 26.1.2006, has found one penetrating wound on the left side of abdomen below chest-wall which was through and through. He was operated by Dr. A.K.Barnwal and on the basis of his report Dr. Vinod Kumar Singh, who was examined as the court witness, has stated that grievous internal injuries were found on Balram Choudhary.

On such evidence, we are of the opinion that the prosecution has proved that the appellant was present at the place of occurrence and at the time of occurrence. The prosecution has also proved that the appellant has fired gunshots at the informant and Chandradeo Choudhary.

However, we are of the opinion that conviction of the appellant under section 302 of the Indian Penal Code is not sustainable.

At the juncture when the appellant has fired a shot from his pistol at Balram Choudhary, the informant, his brother was not in the picture. On such evidence, it can be safely concluded that the appellant did not intend to cause death of Chandradeo Choudhary. The evidence of the informant during his cross-examination would reveal that there was a quarrel for demand of Rs. 4,000/- which was lend by Chandradeo Choudhary to the appellant. It was cries of the informant when he had suffered gunshot injury which has brought Chandradeo Choudhary at the place of occurrence. This fact would indicate that there was no pre-meditation on the part of the appellant to cause death of Chandradeo Choudhary.

In the aforesaid state of evidences, we are of the opinion that all that the prosecution has succeeded to prove is that the appellant intended to cause grievous hurt to Chandradeo Choudhary and attempted to commit murder of Balram Choudhary.

Therefore, the judgment of conviction and the order of sentence of R.I. for life dated 25.9.2008 under section 302 IPC with fine of Rs. 2,000/- passed against the appellant, namely, Kuldip Choudhary by the District and Sessions Judge, Chatra in S.T. Case No. 156 of 2006 are set aside.

The appellant is convicted and punished under section 326 IPC. He is sentenced to undergo R.I. for ten years.

However, in view of the injury found on the informant, the judgment of conviction and order of sentence of R.I. for ten years with fine of Rs. 2,000/- dated 25.9.2008 under section 307 IPC passed by the District and Sessions Judge, Chatra in S.T. Case No. 156 of 2006 against the appellant, namely, Kuldip Choudhary are upheld.

15 Both the sentences shall run concurrently.

Mrs. Vandana Bharti, the learned APP states that a report has been received according to which the appellant has served the sentence of more than thirteen years.

Accordingly, the appellant, namely, Kuldip Choudhary shall be set free forthwith, if not wanted in connection to any other criminal case.

In the result, Criminal Appeal (DB) No. 1346 of 2008 is partly allowed

Let lower court records be transmitted to the court concerned, forthwith.