Jharkhand High Court
Jay Prakash Yadav Son Of Sheo Nath Yadav vs The State Of Jharkhand on 23 September, 2024
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
Criminal Appeal (D.B.) No. 1351 of 2016
[Arising out of judgment of conviction dated 27.09.2016 and order of
sentence dated 03.10.2016 passed by learned Additional Sessions Judge-II,
Chatra in Sessions Trial No. 235 of 2014]
Jay Prakash Yadav son of Sheo Nath Yadav, resident of Deoriya,
P.O. Hasulahi, P.S. Kopa, District Chapra .... .... .... Appellant
--Versus--
The State of Jharkhand .... .... .... Respondent
For the Appellant: Mr. Soumitra Borai, Advocate
For the State : Ms. Priya Shrestha, Special P.P.
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PRESENT: SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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JUDGMENT
Reserved on:18.09.2024 Pronounced On: 23.09.2024
Per Gautam Kumar Choudhary, J. Appellant is before this Court against the judgment of
conviction under Section 302 of the IPC and under Section 27 of the Arms
Act.
2. As per the prosecution case, the appellant- Jai Prakash Yadav was
serving as a Constable in Indian Reserve Battalion and was on sentry duty on
18.05.2014 to 19.05.2014 at Piparwar Armory (IRB- 3 Camp), along with the
informant- Umesh Kumar (Hawaldar) and three other Constables. He was
allotted INSAS Rifle bearing butt no.351 with 100 round cartridge and 05
magazines. At around 7.30 p.m., informant heard the sound of firing on which
he came out and found that appellant was missing from the picket and saw
him coming out from the room of Sunil Soren, S.I. (Deceased). On being
enquired, he disclosed to the informant that he had gunned down Sunil Soren
as he was not giving him leave. When the informant entered into the room, he
saw deceased lying dead in a pool of blood and 11 empty cartridges were
scattered on the ground. Although, INSAS rifle bearing butt no.329 was issued
to the appellant, but he was on duty bearing INSAS rifle no.351.
3. On the basis of the fardbeyan, Piparwar P.S. Case No.33/14 was
registered under Section 302 of the IPC and Section 27 of the Arms Act. After
investigation, charge sheet was submitted and the appellant was put on trial for
offence under Section 302 of the IPC and Section 27 of the Arms Act.
4. Altogether ten witnesses have been examined on behalf of prosecution
and three witnesses as court witnesses. Apart from this, relevant documents
have been marked into exhibit as Exhibit 1 - 7, which includes post-mortem
report, seizure list, fardbeyan, arms and ammunition inspection report. INSAS
rifle, cartridges etc. were also produced and marked as material exhibits.
5. It is argued by the learned counsel on behalf of the appellant that there
was no direct eye witness of the shooting incidence and the prosecution case
rests on circumstantial evidence. P.W. 4 and P.W. 5 were also Constables
posted in the same camp and were declared hostile. P.W. 6, P.W. 7, P.W. 8 and
P.W. 9 are also police personnel posted in the camp at the relevant time, have
not supported the prosecution case and were declared hostile. Rifle that was
used in the incidence was admittedly not issued to the appellant.
6. It is argued that the case rests on the testimony of P.W. 3 in which there
are material contradictions. He was unable to depose about the butt number of
the rifles of the other Constables who were posted on duty in the armory at the
relevant time.
7. Learned counsel on behalf of State has defended the judgment of
conviction and sentence. It is submitted that it is not a case of circumstantial
evidence, but of direct eye witness account of P.W. 2 and P.W. 3 (informant).
There was exchange of rifle of Md. Ajmal Hussain (C.W. 2) and he has
deposed that by mistake he had taken rifle no.329 which was allotted to the
appellant, leaving behind his rifle no.351 and cartridges which was taken by
the appellant. He had proceeded with this rifle for training to Musabani.
Considering the testimony of C.W. 2, I do not find any merit in the plea of the
appellant and no capital can be made out on this count.
8. Having heard both the sides and perusal of materials on record, it is
evident that deceased- Sunil Soren died on account of fire arm wounds, has
been established by the post-mortem examination report (Exhibit 1) proved by
the Doctor (P.W. 1), who conducted autopsy on the dead body on 19.05.2014.
As per the post-mortem examination report, six ante-mortem injuries were
found on the dead body which were of penetrating wound over chest, entry
and exit wounds were also found. Doctor opined that ante-mortem injuries
were caused by fire arms.
9. P.W. 3 is the informant of the case. He has deposed that at the time of
incidence he was on duty with other four constables including constable- Jay
Prakash Yadav (appellant) at IRB camp Piparwar behind the armory. At
around 7.30, he heard the sound of firing on which when he went to picket
no.3 he found that Appellant was not present at picket no.3. When he went
near the canteen, he saw him coming from the room of Sunil Soren and was
holding his INSAS rifle in hand. When he asked what happened, he disclosed
that he had killed Sunil Soren for not granting him leave. When he entered
into the room of Sunil Soren, he found him drenched in blood lying on the
ground whereas empty cartridges were scattered all around. The testimony of
this witness has remained undemolished in the cross examination on the
factum of incidence and is corroborated under Section 157 of the Evidence
Act by his fardbeyan (Exhibit 3/1) recorded by the police on the same day.
There is no material to remotely suggest that this witness had any reason to
falsely implicate the appellant in the case. In the absence of any contradiction
in his account, there can be no reason to disbelieve his account and it can be
regarded as wholly reliable evidence.
P.W. 2 has corroborated the testimony of the informant. He has deposed
that he was posted at IRB camp at the relevant time of incidence. He was in
the barrack at 7.30, when he heard the sound of firing. The people were
running helter skelter and when he went near the place of occurrence near the
canteen, he saw Sunil Soren in a pool of blood on his chair. Constable 499- Jai
Prakash Yadav, had shot him dead by INSAS rifle after entering his room.
After a while, Jai Prakash Yadav was arrested and taken to the police station.
10. Informant is a direct eye witness to the incidence and cannot be said to
be hearsay, for the reason that he had heard the sound of firing. His testimony
is corroborated by the attending circumstance of the appellant being arrested
soon after the incidence. Under Section 60 of the Evidence Act, a person who
has seen or heard a fact, can be said to be direct evidence. It has been deposed
by P.W. 3 that appellant immediately after the incidence stated to him that
deceased had refused leave, therefore, he killed him. This will be relevant both
under Section 6 of the Evidence Act and will also be extra judicial confession
of the appellant. Further, the incidence of firing, immediately followed by
arrest of the appellant with the rifle which was used in the shooting, all form
part of the same transaction and therefore relevant under Section 6 of the
Evidence Act. Illustration (a) to this Section reads as under: -
A is accused of the murder of B by beating him. Whatever was said or done by
A or B or the bystanders at the beating or so shortly before or after it, as to
form part of same transaction, is a relevant fact.
11. FIR was lodged on the same day of incidence i.e. on 18.05.2014. As per
the seizure list prepared on 18.05.2014 (Exhibit 2/12), the blood-stained
plaster, eleven fired cartridges of INSAS rifle and one loaded magazine, was
seized from the room of deceased- Sunil Soren on 18.05.2014 at 10.30 at
night. The Investigating Officer (P.W. 10) has given the description of place of
occurrence to be in the room of deceased- Sunil Soren (S.I.) from where 11
round fired cartridges and INSAS rifle loaded magazine were seized. The
testimony of Investigating Officer corroborates the testimony of informant
(P.W. 3) that incidence took place in the room of the deceased.
12. Under the aforesaid facts and circumstance and in view of the wholly
reliable and formidable testimony of P.W. 2 and P.W. 3, I do not find any
infirmity in the conviction under Section 302 of the IPC and under Section 27
of the Arms Act. Hence, the conviction and sentence passed by the learned
trial Court is affirmed.
Criminal Appeal is dismissed.
Pending Interlocutory Application, if any, is disposed of.
Let the Trial Court Records be transmitted to the Court concerned along
with a copy of this judgment.
(Gautam Kumar Choudhary, J.)
Ananda Sen, J. I agree.
(Ananda Sen, J.)
High Court of Jharkhand, Ranchi
Dated, 23rd September, 2024
AFR/Anit
