JUDGMENT

Kailash Prasad Deo, J. - Heard, learned Senior counsel for the appellant, Mr. Rajeeva Sharma, Senior Advocate assisted by Mrs. Nitu Singh, Advocate and learned counsel for the State, Mr. Sanjay Kumar Pandey, learned Additional Public Prosecutor.

2. The instant Criminal appeal is directed against the judgment of conviction and order of sentence, both dated 21.01.2004, passed by 6th Additional Sessions Judge, (F.T.C.), Dumka, in Sessions Case No. 245 of 1993 / 147 of 2003, whereby, the appellant has been convicted for the offence committed and punishable under Sections 307/34 and 353 of the Indian Penal Code and awarded Rigorous Imprisonment for five years for the offence committed and punishable under Section 307/34 of the Indian Penal Code and Rigorous Imprisonment for six months for the offence committed and punishable under Section 353 of the Indian Penal Code. Both the sentences are directed to run concurrently. Co-accused, Kanchan Kumar Das has also been convicted for the offence committed and punishable under Sections 307/34,353 and 332 of the Indian Penal Code, but he has not preferred any criminal appeal as he has already served out the sentence during trial. By the same impugned judgment learned trial Court has acquitted the appellant, Papu Sah @ Ghanshyam Sah from the charge under Section 332 of the Indian Penal Code and under Section 27 of the Arms Act and co-accused, Kanchan Kumar Das under Section 27 of the Arms Act.

3. The prosecution case, is based upon, written report submitted by, A.S.I., Ramanand Singh, before the Officer-In-Charge, Dumka(T) Police Station, on 24.02.1992 about the occurrence which took place on the same day at 18.50 Hrs. The informant was at the Police Station on duty, when he got a telephonic information by a girl that some miscreants were looting the property of Hanuman Agrawal. On the basis of that information, the informant, along with other Police constables rushed to the place of occurrence, where the miscreants were committing robbery in the house of Hanuman Agrawal. It is stated that, one miscreants was on the gate, armed with country made pistol and another was on the roof, armed with pistol. After seeing police party, they opened fire on them. Thereafter, a series of firing took place from both the sides. As a result of which one miscreant was hit by a bullet of Police party. On hearing brawl several persons came there from all sides but one injured accused and two other miscreants managed to escape from the place of occurrence. One of the miscreants, was caught by the Police. But said miscreant hurled dagger on the Hawaldar namely, Sachida Nand Singh, as a result of which Hawaldar has sustained injury, thereafter, inmates of the house snatched the dagger and caught hold him. The apprehended accused disclosed the name of other accused persons, who fled away.

4. On the basis of the written report, the Police has registered First Information Report bearing Dumka(T), P.S. Case No. 30 of 1992, dated 24.02.1992, under Sections 353/307/332/34 of the Indian Penal Code, against the Papu Sah @ Ghanshyam Sah, Kanchan Kumar Das, Varun Kumar Sah and Mangal Pal. On the same day police has also registered First Information Report Dumka(T) P.S. Case no.29 of 1992 and 31 of 1992.

5. After investigation, the police has submitted charge sheet vide charge sheet no. 46 of 1992, dated 22.05.1992, under Sections 353/307/332/34 of the Indian Penal Code against all the four named accused persons.

6. The cognizance of the offence has been taken vide order dated 25.05.1992 and the case has been committed to the Court of Sessions vide order dated 09.06.1993.

7. The learned trial Court has framed charge against all the four accused persons, on 23.12.1993, under Sections 353/307/332/34 of the Indian Penal Code of the Indian Penal Code and 27 of the Arms Act, to which the accused/appellants have pleaded their innocence and thus, they were put under trial.

8. The prosecution, in order to prove its case, ha