The court modified the conviction from attempted murder to a lesser charge due to insufficient evidence of intent and lack of specific identification of the appellants as shooters.

JUDGMENT :

NAVNEET KUMAR, J.

Both the appeals have arisen in the wake of the common judgment of conviction and order of sentence passed against these two appellants namely, Vinod Kumar Rajak, appellant in Cr. Appeal (SJ) No. 1623 of 2006 and Santosh Kumar Razak appellant in Cr. Appeal (SJ) No. 95 of 2007 by which both the appellants have been convicted for the offence punishable under Sections 307 & 120-B of the IPC .

Challenge in the appeal:

2. These two appeals are directed against the judgment of conviction dated 23.11.2006 and order of sentence dated 24.11.2006 passed in Sessions Trial No.242 of 2004 by the Court of Learned Additional Sessions Judge, FTC-VIth, East Singhbhum at Jameshedpur whereby and whereunder the appellants were convicted under sections 307 along with Section 120-B of IPC and sentenced to undergo R.I. for 7 years for the offence punishable under Section 307 of the IPC and to pay a fine of Rs.5,000/- and in default of payment of fine, further directed to undergo S.I. for 6 months and further directed to undergo R.I. for three years under Section 120-B of the IPC .

Prosecution Story:

3. The prosecution story is based on the Fardbayan of the informant, Kishore Kumar Mandal @ Raju, PW-5 whose statement was recorded by the S.I. on 22.04.2002 in TMH Emergency Ward at about 11:00 O‟Clock in the night. The informant PW-5, Kishore Kumar Mandal @ Raju stated that on 22.04.2002 at about 10:00 PM, the informant was in his house when one person said “open the door, we are from Rani Kudar and to participate in dance program. We have a group and some discussion is required”, upon which, he opened the door and found his neighbours, namely, Rajesh Rajak, Binod Rajak and Santosh Kumar and three unknown persons, out of whom, one was tall and two having medium height.

4. It is alleged that they were armed with pistol and opened fire. The bullet hit him on the chest. He fell down raising alarm. His „Bhagina‟ Amit Mandal rushed to the spot and the accused persons also shot him at the back. It has further been alleged that the accused persons fled away and entered in the house of one Binod Rajak and Rajesh Rajak. The motive of the said crime was the protest made by the informant in respect of getting pandal erected on the disputed land of Mahadeo Mahto. Due to all these reasons, accused persons by hatching conspiracy to commit murder shot fire upon him and his Bhagina Amit Mandal.

5. On the basis of the aforesaid fardbeyan of the informant PW-5, a formal F.I.R was drawn and the case was registered being Kadma P.S. Case No. 45 of 2002 which was registered under Sections 447, 307, 324, 34 and 120-B of the IPC & 27 of Arms Act in which the investigation was conducted by the police and charge-sheet submitted as against the appellants and other accused persons on 18.06.2002 for the offence under Sections 447, 307, 34 and 120-B of the Indian Penal Code and 27 of Arms Act, on the basis of which cognizance was taken. Further, after the submission of the charge-sheet, the case was committed to the Court of Sessions and charge was framed on 04.01.2005 by Additional Sessions Judge Fast Track Court No.6 u/s 447, 307/34, 120-B of IPC against 7 accused persons. Later on, informant filed a petition u/s 319 of Cr.P.C . making a prayer to implicate the appellants Binod Kumar Rajak & Santosh Rajak and subsequently appellants were made accused and the Learned Additional Sessions Judge-VI Jamshedpur on 25.08.2005 had framed charge under Sections 447, 307/34 120-B of the IPC and 27 of the Arms Act which was explained to them to which they pleaded not guilty and claimed to be tried.

6. The learned trial Court after conducting the full-fledged trial passed the impugned judgment of conviction and order of sentence and convicted both the appellants along with co-accused since (deceased)- Rajesh Rajak for the offence punishable under Section 307 and 120B of the IPC and order of sentence was passed under which both the appellants were sentenced to undergo rigor