C.A.V. JUDGMENT

(Per: HONOURABLE MR. JUSTICE PRAKASH CHANDRA JAISWAL)

Date: 21-03-2018

Heard learned counsel for the appellant as well as learned APP for the State and learned counsel for the informant on this criminal appeal.

2. This criminal appeal has been preferred against the Judgment and Order of conviction dated 28.08.2012 and order of sentence dated 31.08.2012 passed by Adhoc Additional District and Sessions Judge-V, Gopalganj in Sessions Trial No. 109 of 2010 / 21 of 2010 arising out of Kateya P.S. Case No. 157 of 2009, whereby the learned trial court convicted the appellant Anil Chaubey for the offence punishable under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act and sentenced him to undergo imprisonment for life and also slapped him with the fine of Rs. 10,000/- and in default of payment of fine to further undergo R.I. for one year under Section 302/34 of the Indian Penal Code and also sentenced him to undergo R.I. for three years and slapped him with fine of Rs. 1000/- and in default of payment of fine, to further undergo R.I. for six months under Section 27 of the Arms Act. All the sentences were directed to run concurrently.

3. Factual matrix of the case is that Kateya P.S. Case No. 157 of 2009 was instituted under Sections 326, 307 and 302/34 of the Indian Penal Code and Section 27 of the Arms Act against Anil Chaubey and two other unknown miscreants on the basis of the fardbeyan of Dr. Amresh Kumar Pandey, Son of Raj Rishi Pandey, recorded by S.I. B. B. Singh of P.S. Kateya on 11.08.2009 at 11:00 PM with the allegation in succinct that on 11.08.2009 at around 8 PM, the informant was present in his clinic and was busy in treatment of patient. In the meantime, three motorcycle borne miscreants arrived from northern side of the road and abruptly halted the motorcycle in front of his clinic. The person sitting on the extremely back of the said motorcycle pointed firearm towards him whereupon he tilted towards almirah kept in his room to escape the fire. In the meantime, the said accused resorted firing, fortunately he was left unhurt but it hit on the head of the patient, namely, Ratan Kumar Kanu. Sustaining injury, he fell down on the ground. Then aforesaid miscreants decamped towards Shiv Mandir Chowk on the said motorcycle. The persons sitting on the extremely back of the motorcycle and resorted firing was Anil Chaubey to whom he identified in the light of generator who had earlier demanded extortion of Rs. 5 lacs from him on his mobile phone time and again from 29.04.2009 to 08.05.2009 regarding which he had filed Kateya P.S. Case No. 75 of 2009 under Sections 386, 387, 504 and 120B of the Indian Penal Code. He could not identify rest two other persons sitting on the said motorcycle. The injured was rushed by his family members and villagers to Referral Hospital, Kateya where the Doctor declared him brought dead. Later on, he learnt that during the course of retreat, miscreants had resorted firing on the grocery shop of Subhash Kanu located near Pakaha More and also upon Sadhu Yadav on the road near Gandak making him injured.

4. Aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet against the aforesaid accused under Sections 326, 307 and 302/34 of the Indian Penal Code and Section 27 of the Arms Act.

5. On receiving the chargesheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against the accused and committed the case to the court of sessions and on transfer finally the case came in the seisin of Adhoc Additional District and Sessions Judge-V, Gopalganj for trial.

6. Charge against the accused was framed under Sections 326/34, 307/34 and 302/34 of the Indian Penal Code and Section 27 of Arms Act. Charge was read over and explained to him to which he pleaded not guilty and claimed to be tried. Later on Charge under Sections 307 and 302/34 of the Indian Penal Code was framed against the