Mahesh Keshri @ Mahesh Kumar Keshri & Ors. vs The State Of Jharkhand

Heard learned counsel for the parties.

The instant Criminal Appeal is directed against the judgment of conviction and order of sentence dated 04.04.2006 passed by learned Additional Sessions Judge, Fast Track Court No. Vth, Deoghar in Sessions Case No. 264 of 2004, whereby and whereunder, the appellants have been held guilty for the offence under Section 324/34 of the I.P.C. and Section 27 of the Arms Act and sentenced to undergo R.I. for 3 years for the offence under Section 324 of I.P.C. and R.I. for 2 years for the offence under Section 27 of the Arms Act. Both the sentences were directed to run concurrently.

The factual matrix giving rise to this appeal as per fardbeyan of informant Maheshwar Prasad Sah (P.W.-2) recorded by A.S.I. at 2:00 A.M. at Sadar Hospital, Deoghar on 14/15.08.2003 is that on 14/15.08.2003, in the night at about 12:30 A.M., while the informant was going to his house after closing his shop and as soon as he reached near the house, four persons, who were standing there and hiding themselves armed with pistols, came and shouting to assault the informant. On seeing pistol in the hands of all the four persons, the informant swinging his bag round and round in his hand. The informant identified accused persons as Mahesh Keshri, Rajesh Gupta and Chamru Sah in the street light, but could not identify the fourth accused. In the meantime, one of the accused persons namely, Mahesh Keshri fired upon the informant with his pistol on the direction of Rajesh Gupta causing a loud sound. Thereafter, Mahesh Keshi asked for fleeing away as all people have woke up. The informant received one bleeding wound on his left thigh and thereafter, he became unconscious. He regained his sense at Sadar Hospital, Deoghar, where he was treated. The reason behind the occurrence is that the accused persons are already accused in a criminal case with him, in which there is likelihood of them being convicted.

On the basis of fardbeyan of Maheshwar Parsad (P.W.-2), FIR being Deoghar (Town) P.S. Case No. 209 of 2003 was registered against three named accused persons and one unknown for the offence under Sections 307/34 of the I.P.C. and Section 27 of the Arms Act.

After completion of investigation, charge sheet was submitted against three named accused persons for the aforesaid offences. After taking cognizance of the offence, the case was committed to the Court of Sessions, where charges were framed for the offence under Sections 307/34 of I.P.C. and Section 27 of the Arms Act and the same was read over and explained to the accused persons, to which they denied from the charges and claimed to be tried.

In course of trial, the prosecution has examined altogether 05 witnesses and also adduced following documentary evidence:-

Exhibit-1 : Signature of injured informant on the fardbeyan.

Exhibit-2 : Injury Report of Maheshwar Prasad Sah.

Exhibit-3 : Signature of Officer-in-Charge, Deoghar P.S. in formal F.I.R.

Exhibit-4 : Endorsement on the fardbeyan

Exhibit-5 : Certified copy of Judgment of Sessions Case No. 120/2001.

Exhibit-6 : Relevant order sheet in the Sessions Case No. 120/2001.

However, defence has examined two witnesses on their behalf and also adduced following documentary evidences:

Exhibit-A : Notice under Section 107.

Exhibit-B : C/C of Charge Sheet in Deoghar P.S. Case No. 130/1999.

Exhibit-B/1 : C/C of F.I.R. in Deoghar P.S. Case No. 130/1999.

Exhibit-C : Copy of Medical Prescription.

Exhibit-C/1 : Copy of Medical Prescription.

Exhibit-C/2 : Copy of Medical Prescription.

The learned trial court, after considering the oral as well as documentary evidence available on record, held the appellant guilty for the offence under Section 324 of the I.P.C. and Section 27 of the Arms act and sentenced them, as stated above.

Learned counsel for the appellants has vehemently argued that the learned trial court has miserably failed to properly appreciate the evidence of witnesses in right perspective and arrived at wrong conclusion. It is further submitted that the appellants have been falsely implicated in this case due to previous enmity. Not a single independent witness has been examined in this case. All the witnesses examined in this case are family members and interested witnesses.

It is further submitted that even if the entire evidence of injured person in the light of his injury report is taken to be true on its face value, no offence under Section 324 of I.P.C. is constituted, as from perusal of injury report (Exhibit-2), it appears that the injuries caused to the injured is simple in nature.

It is further submitted that the conviction for the offence under section 27 Arms Act is totally bad in law in absence of any proved fact with respect to either contravention of section 5 or section 7 of the Arms Act in order to constitute the offence punishable either u/s 27(1) or 27(2) or 27(3).

Therefore, the conviction of the appellant for the offence under Section 324 of the I.P.C. and Section 27 of the Arms Act may be set aside and the appellants may be acquitted from the charges levelled against them.

On the other hand, learned APP appearing for the State has opposed the contentions raised on behalf of the appellants and defended the impugned judgment and order on merits. Further, learned APP has submitted that the conviction of the appellants under section 27 of the Arms Act along with section 324 of IPC is fully sustainable as injured have sustained gun-shot injuries which have also been proved by the medical evidence.

I have gone through the record the case along with impugned judgment of conviction and order of sentence of the appellants in the light of contentions raised on behalf of both side.

Before imparting my judgment, it would be apposite to take brief resume of prosecution evidence.

It appears that altogether 05 witnesses have been examined in this case, out of which P.W.-1 Sachin Gupta is the son of the informant-cum-injured, P.W.-2 Maheshwar Prasad Sah @ Mahish is the injured informant, P.W.-3 Nirmala Devi is the wife of the informant, P.W.-4 Dr. R.K. Pandey is the Doctor who treated the injured and P.W.-5 A.S.I. Jyotinder Nath Azad is the I.O. of this case.

The main allegation attributed against the appellants is of giving firearm injuries upon the injured, so the evidence of injured Maheshwar Prasad Sah (P.W.-2) (informant) is important to decide the case.

P.W.-2 Maheshwar Pd. Sah @ Mahesh has stated that on 14.08.2003 in the night at about 12:30 the moment he reached in front of the door of his house and called to open the door, he saw four persons standing there from before came out from the left lane, three of the miscreants have been identified as Mahesh Keshri, Rajesh Kumar Gupta and Chamru Sah, whereas the fourth was not known to him. All the four miscreants were armed with revolver and shouting to shot him. This witness has raised alarm and tried to save himself, but upon direction given by Rajesh Gupta, Mahesh Keshri opened fire, which hit on the thigh of this witness, causing bleeding wound. Thereafter, he fell down and became unconscious. He was treated at Sadar Hospital, Deoghar, where police recorded his statement, which has been marked as Exhibit-1. The reason behind the occurrence is that the accused persons had tried to commit the murder of his wife for which a case under Section 307 I.P.C. was pending in the court of Sessions Judge and the accused persons threatened him to withdraw the same to which, he denied.

P.W.-1 Sachin Gupta is the son of the informant. In his evidence, he has stated that at about 12:30 in the night he was at this home along with his mother Nirmala Devi (P.W.-3) and brother Tinku Gupta. His house is on the first floor. Upon hearing the ‘Hulla” of his father in front of his gate, he and his mother came down and opened the door. He saw four persons encircled his father, amongst whom, this witness identified Mahesh Keshri, Rajesh Gupta and Chamru Saw. All the four persons were armed with revolver. On the direction of Rajesh, Mahesh Keshri open fire upon his father, which hit on his left thigh causing bleeding wound. His father fell and the accused persons fled away. Thereafter, this witness took his father to Sadar Hospital, Deoghar on a rickshaw. His mother has also filed a case against the accused persons under Section 307 of the I.P.C. prior to this occurrence, which is pending in the court of Sessions Judge. The accused persons were threatening and giving pressure to withdraw the case or else she shall be killed. However, they did not withdraw the case.

P.W.-3 Nirmala Devi is the wife of the informant. She has stated in her evidence that in the night of 14.08.2003 at about 12:30 mid night, she was in her house along with her son Sachin, where they were having talks. After hearing the sound of ‘Bachao-bachao’ in front of her door by her husband Maheshwar Sah, she along with her son Sachin came to the door and saw the accused Mahesh, Rajesh Kumar Gupta and Chamru along with one unknown, all armed with revolvers encircled her husband and on the direction of Rajesh, Mahesh opened fire upon her husband, which hit the left thigh of her husband, causing bleeding injury and he became unconscious. She took her husband to Hospital on rickshaw, where he treated and regained his sense. Earlier also the accused persons assaulted her with regard to which a criminal case was filed against the accused persons, in which they were convicted.

P.W.-4 Dr. R.K. Pandey had examined the victim at 1:30 A.M. on 15.08.2003 and had found two small wounds over the posterior lateral aspect of left upper thigh. The first wound has everted margin about 1 cm in diameter while the second wound was having everted margin about 3.5 cm diameter. Both the wounds were lacerated and charring and blackening were found around the wound which were bleeding. The x- ray shows no foreign body or no vital organ damaged, so the wounds are simple in nature.

The Doctor has opined that the wounds may be caused by firearm weapon, such as revolver or pistol. This witness has proved the injury report marked as Exhibit-2.

P.W.-5 Jyotindra Nath Singh is the I.O. of this case, who has investigated the case and submitted charge sheet in this case. He has identified the handwriting and signature of Sri Mani Bhushan Prasad of Deoghar P.S., who has handed over the investigation of Deoghar P.S. Case No. 209 of 2003 to him. He has identified the signature of the Officer-in-Charge, Mani Bhushan Prasad on the formal F.I.R. which has been marked as Exhibit-3 and the endorsement on the fardbeyan which has been marked as Exhibit-4.

On the other hand, the defence has also examined two witnesses i.e. D.W.-1 Pawan Kumar and D.W.-2 Sanatan Rawani.

D.W.-1 Pawan Kumar. In his evidence, this witness claims to be residing in the house of Mohan Sah for the last 6-7 years in the neighbourhood of the informant-injured in Mohalla Kanu Tola, Deoghar and works as a tailor. He has stated that two and half years back in the night a gun shot was fired and upon hulla, he came out and talked with Maheshwar Pd. Sah, who told him that he was coming with money and certain persons wanted to snatch the same and shot upon him and fled away.

D.W.-2 Sanatan Rawani is a formal witness, who has identified the handwriting and signature of Dr. A.K. Chatterjee, who has jotted down the three prescriptions marked as Exhibit-C, C/1 and C/2.

From recapitulating the entire evidences available on record, it appears that there is no reason to disbelieve the testimony of P.W.-1, P.W.-2 (injured) and P.W.-3, which have been corroborated by the medical evidence. It is settled principle of law that the evidence of injured witness has greater evidentiary value, unless compelling reasons exist, their statements are not to be discarded lightly. It also appears that these appellants were previously assaulted the wife of injured i.e. Nirmala Devi (P.W.-3) and the appellant no. 1 and appellant no. 2 were convicted for the offence under Section 324 of the I.P.C. in Sessions Case No. 120 of 2001 passed by learned Sessions Judge, Deoghar vide its judgment dated 15.04.2004.

Considering the entire facts and circumstances of the case, this Court does not think fit to interfere in the impugned judgment of conviction and order of sentence of the appellants, which is hereby affirmed.

Accordingly, this appeal is dismissed.

The appellants are on bail. Their bail bonds are hereby cancelled.

The appellants are directed to surrender before the concerned Trial Court within two months from the date of this judgment and receive the remaining period of sentence awarded by the learned Trial Court, failing which, the learned Trial Court shall take all coercive steps in securing the attendance of the appellants and sending them under proper conviction warrant to jail custody for undergoing the remaining period of sentence awarded to them.

Pending I.A., if any, stand disposed of.

Let a copy of this judgment along with trial court record be sent back to the court concerned for information and needful.