Mukesh Kumar Yadav @ Mukesh Yadav vs The State of Jharkhand

This criminal appeal has been filed by the appellant against the Judgement of conviction and sentence dated 22.10.2002 passed by Additional Judicial Commissioner, Fast Track Court, Ranchi in Sessions Trial No. 214 of 2002/T.R1. No. 286 of 2002 corresponding to Sukhdeonagar P.S. Case No. 338 of 2001 whereby the appellant has been held guilty for the offence punishable u/s 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and further rigorous imprisonment for one year for each of the offences punishable under Sections 25(1-B) and 26 of the Arms Act and rigorous imprisonment for seven years for the offence, punishable u/s 27 of the Arms Act and all the sentences were directed to run concurrently. This Criminal Appeal was earlier heard and dismissed by a Bench of this Court vide Judgment dated 17.01.2007 and after remand by the Apex Court vide order dated 23.07.2007 in Criminal Appeal No. 941 of 2007 [arising out of SLP (Crl.) No. 1960 of 2007], it has been re-heard and being disposed bf by this Judgment and Order.

That prosecution case in brief is that Pardbayan of Sunil. Kumar Singh recorded on 28.06.2001 at R.M.C.H. Ranch! at 15:00 hrs., discloses the fact that on the said date, at about 12:00 noon,,  the informant was sitting in a shop of scrap dealer situated near Kabristan, Rata Road, Ranchj. In the mean time, he heard some noise from the said of Navjivan Tyre Shop. When) he reached there, he saw the appellant Mukesh Kumar Yadav causing injury to Sachin Kumar Singh by means of a dagger. The informant had witnessed infliction of repeated blows by means of dagger by the appellant Sachin Kumar Singh happened to be the brother of informant and, therefore, he rushed to rescue him but till then, the appellant took out a Pistol from his waist and opened fire but it did not hit because of misfire.

Sachin Kumar Singh, after sustaining multiple injuries. fail: down. The occurrence was i witnessed by many persons who also tried to catch Mukesh Kumar Yadav (appellant), but the appellant, aiming at them, pressed the trigger but again it was misfired and then he had thrown the Pistol at the place and; fled away towards Birsa Body Gaii. Sachin Kumar Singh was removed to Hospital for treatment but succumbed to the injuries.

That on the basis of Fardbayan lodged by Sunil Kumar Singh, Kotwali Sukhdeo Nagar P.S. Case No. ''338 of 2001 dated 28.06.2001, u/s 302 of the Indian Penal Code and Section 25(1-B), 26 and 27 of the arms Act, against the sole, accused/ appellant Mukesh Kumar Yadav was registered..

The Police, after due investigation, submitted chargesheet and after commitment, the appellant was put on trial for facing charges framed u/s 302 Of the Indian Penal Code and Section 25(1-B), 26 and 27 of the Arms Act..

The prosecution had examined altogether 10 (ten) witnesses out of whom, Manoj Kumar Singh (P.W.-1), Binay Kumar Singh (P.W.-2), Anil Kumar Singh (P.W.-4), Sunil Kumar Singh (Informant - P.W.-7) are the eye witnesses whereas Dr.. Ajit Kymr Choudhary (P.W.-6) had conducted the postmortem examination on he dead body of Sachin Kumar Singh and Narsirrgfr Sngh Gautam, (P.W.-10) is the Investigating Officer. Narayan Prasad Agarwal (P.W.-3) is a, part eye witness. Ashok Kumar Pathak (P.W.-5) is Sergeant Major who had examined the Pistol seized from the place of occurrence. Fatehuilah Khan (P.W.-8) and Shyam Kumar Purty (P.W.-9) are the formal witnesses.

The informant has fully supported the prosecution case and he has said that on 28.06.2001, at about 12:00 noon, he was sitting in a shop of scrap, dealer situated at Ratu Road. He was attracted towards the incident which was going on near Navjiwan Tire Shop. When he went there, the appellant Mukesh Kumar Yadav was causing injuries to Sachin Kumar Singh (brother of the informant) by means of a dagger. He had witnessed that the appellant inflicted repeated blows by means of dagger causing multiple injuries to Sachin, as a result, the injured fell down. When he tried to rescue his brother; the appellant took out a ''Pistol from his waist and fired at him but the projectile did not come out due to misfire and he did not sustain injury.

Manoj Singh with Some persons present at the spot also tried to catch the appellant but he again pressed the trigger of Pistol aiming at them which stood misfired and then he threw the Pistol and fled away.

The injured Sachin Kumar Singh" was removed to R.M.C.H. and Fardbayan of the informant was recorded there to which he had signed. Manoj Singh and B.K. Beri had also put their signature as witnesses on the Fardbayan. He had identified the appellant in dock..

The statement of P.W.-7 found support from the evidence of P.Ws. 1 to 4 who had also witnessed the occurrence. They have repeated the same fact that after hearing "Hulla'', they ran towards Navjiwan Tire shop and saw the appellant causing injury to Sachin by means of Dagger. They had tried to catch Mukesh (appellant) but could not succeed because the appellant, aiming at them, opened fire from the Pistol which he had. Fortunately the Pistol got misfired and they did not sustain injuries.

P.Ws.-1 to 4 have further stated that the Pistol thrown by the appellant at the place of occurrence was seized by the Police in their presence.

Dr. Ajit Kumar Choudhary (P.W.-6) had; proved the postmortem report and explained the injuries. He had found number'' of stabbed and incised wound on the person of the deceased.

The Investigating Officer (P.W.-10) has supported the investigation done by him. He has said that after receiving rumour that a person has been stabbed near Kabristan on Ratu Road within Sukhdeonagar Police Station he made Station Diary at 12:30 hrs. and proceeded to the place to verify the information. Till he reached the place of occurrence, the injured was removed to the hospital for his treatment and, therefore, he had instructed his companion Police Officers to find and search out the-injured but he remained at the place of occurrence.

After receiving Fardbayan of P.W.-7, case against the appellant was registered. He had seized Pistol from the place of occurrence which was thrown by the appellant and also collected blood stained earth and examined the witnesses. During investigation, the seized pistol was sent to P.W.-5 for its examination: and effectiveness. After concluding the investigation, he had'' submitted chargesheet.

The learned counsel appearing for the appellant has vehemently challenged the findings of* the, learned Additional Sessions Judge and assailed the impugned Judgment on various grounds. He has submitted-that none of the so called eye witnesses had seen the incident and they were not at all present at the place of occurrence. The story about the incident narrated by there is unbelievable. They had said that the appellant was having Pistol in his possession at the time of occurrence but he was inflicting injuries to the deceased by means of dagger with an intention to kill him and that too, at a place having busy affairs during noon hours, could not be relied upon. Had the appellant''s intention, to kill the deceased, he could have easily used the Pistol which he had in his possession because using Pistol for committing murder is an easier way to kill anybody. The informant, who is the brother of the deceased, did hot sustain a single scratch though the postmortem report indicates as many as 7 - 8 injuries on the person of the deceased. Certainly, such number of injuries could not have been possible for a man within no time and that too at a busy public place during day hours in presence of brother and relative of the deceased.

In order to justify their presence at the place, of occurrence, they had cooked up another improbable story that they were apprehended from giving rescue to the deceased because the'' appellant had fired upon them. Since none of them "sustained any injury caused by fire arm, they have again built up a story that the Pistol got misfired but this story is again unbelievable in view of the fact that the alleged Pistol, which was alleged : to have been recovered from the place, was a single barrel country made Pistol of 0.315 Bore.

From a Single Shot Gun, if it is once misfired, second fire without unloading the cartridge, is not at all possible. The aforesaid witnesses have again deposed the lieo that the appellant had again tried to make fire from the said Pistol which earlier got misfired. Not only that, the evidence of P.W.-5 is very clear that the Pistol, which was produced be him, was a Single Barrel from which cartridge of 0.315 Bore can be fired. The cartridge which was sent for examination, was also found effective, if aforesaid statement of witnesses are correct then what happened to that misfired cartridge which, according to the witnesses, was lodged in the barrel due to misfire.

He has further argued that there was no motive behind the murder though the deceased, the appellant and the witnesses were known to each other. It is also a surprising fact that the Investigating Officer'' (P.W.-10) had remained at the place of occurrence since from 12:30 hrs onwards till 5:30 p.m. but he has not stated that he had noticed the Pistol fallen at the place of occurrence.

Learned counsel for the State has fully supported the impugned Judgment and the'' findings of the learned Additional Judicial Commissioner. He has submitted that it is a were proved case against the appellant and all the witnesses stood to the test of cross examination. No material contradiction on any vital point has been taken out. In a case where direct evidence is available, disclosure of motive is not very much important.

We have carefully examined the impugned Judgment, perused the evidence on record, documents marked as exhibits. The learned counsel for the appellant has given much stress on the recovery of Pistol and he has tried to impress upon us that-none of the so called eye witnesses had seen the occurrence. We agree with the arguments to some extent that use of Pistol by the appellant and its recovery from the place, has not been proved by the prosecution beyond reasonable doubt. There appear force in the arguments that the investigating Officer, who had been to the place of occurrence from 12:30 noon td 17:30 hrs., did not notice the Pistol thrown by the appellant at the place. The argument is also convincing that the witnesses did rote sustain injury on their person though the appellant opened fire by using that Pistol. The report of P.W.-5 is also not indicative of the fact that the cartridge, which was sent for examination, was having hammer mark on the percussion cap.

Considering the arguments and the evidences available on the record, we do agreed that the use and recovery of fire arm has not been established by the prosecution and, therefore, the conviction and sentence passed under Sections 25(1-B), 26 and 27 of the Arms Act stands set aside.

Now coming to the other part of the evidence in which the witnesses have said that the appellant hurled repeated blows by means of dagger for causing injuries to the deceased at the alleged place of occurrence.

We have carefully scrutinised the evidence of P.Ws. -1, 2, 4 and 7. The evidence of all these witnesses is fully consistent on the point that they were attracted towards the incident after hearing ''Hulla'' and they had seen the appellant causing repeated injuries to the deceased by means of a dagger. P.W.-3 - Narayan Prasad Agarwal is also equally important because he is an independent witnesses and he was also present near the place of occurrence at the relevant point of time. He was also attracted towards the incident after hearing ''Hulla''. He had seen Sachin Singh being assaulted by a boy and after seeing this, he rushed to inform the father of Sachin. The initial part of the incident was witnessed by this independent witness. While he was leaving the place of occurrence in order to inform the parent of Sachin, he had witnessed the arrival of Sunil Singh, Manoj Singh, Binay Singh, B.K. Beri and this fact found mentioned in para-1 of his, deposition in view of evidence "of this independent witness, the presence of aforesaid eye witnesses i.e. P.Ws. T, 2, 4 and 7 could not be disbelieved. 16. So far motive behind incident is concerned, some of the eye witnesses have deposed that from" fast 2 - 3 days, the relation between the deceased and the appellant had become strained and they were: having grudge. We do agree with the submission of the learned State counsel that in a case where eye witnesses are available, the motive, if it is not brought on record, has no role to Play. In view of the discussions made above, we do not find any reason to interfere with the conviction and sentence passed against the appellant u/s 302 of the Indian Penal Code and accordingly, this appeal stands dismissed.