Cr. Appeal No. 279 of 2001
with
Cr. Appeal No. 364 of 2001
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Against the judgment of conviction and order of sentence dated
13.07.2001 passed by the Learned 2nd Additional Sessions Judge,
Seraikela in Sessions Trial No. 613 of 1990.
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Ashok Kumar Mishra (Cr. Appeal No. 279/2001)
Ajay Kumar Ojha (Cr. Appeal No. 364/2001) Appellants
Versus
The State of Jharkhand Respondent
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For the Appellant: Mr. Abhishek Kr. Dubey, Advocate
(Cr. Appeal 364/01)
For the State: Miss.. Anita Sinha, APP
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PRESENT
The Hon'ble Mr. Justice R.K. Merathia
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Judgment
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Dated 20h September 2011
By Court: Both these appeals are directed against the judgement of
conviction and order of sentence dated 13.07.2001 passed by the
learned 2nd Additional Sessions Judge, Seraikela in Sessions Trial No.
613 of 1990 convicting the appellants under sections 307/34 IPC and
sentencing them to undergo R.I. for seven years.
2. Learned counsel for the appellants submitted that the main
accused in both these appeals was Bijoy Kumar Ojha who had filed a
separate appeal being Cr. Appeal No. 391 of 2001 which has been
disposed of consequent upon his release from jail after serving his
sentence. So far as these appellants are concerned, the appellant-Ajay
Kumar Ojha happens to be brother of Bijoy Kumar Ojha and
appellant-Ashok Kumar Mishra happens to be the neighbour of the
informant and there is general allegation against them and against
one Surendra that they instigated the main accused-Bijoy Kumar Ojha
to fire at the informant. Except this, there is no overt act attributed to
these appellants; and that they have remained in jail for about three
months and they have suffered this prosecution since 1989.
3. Learned counsel for the State supported the impugned
judgment and submitted that the prosecution has proved it’s case
beyond all reasonable doubts.
4. The prosecution case in short is that on 7.9.1989 the informant
came to his house on the scooter of Braj Mohan who lives in front of
his house and kept the scooter in the house of Braj Mohan after
opening the lock and started going to his house. The accused Bijoy
whose house was situated in front of the house of the informant, was
sitting along with his younger brother Ajay Kumar Ojha on the cot
and on the same cot, his neighbours Ashok, Surendra and one boy
were sitting. On seeing the informant, all these persons stood up and
accused Bijoy Ojha demanded key from him to which he refused
whereupon Bijoy Ojha told him that if he did not hand over the key to
him, then he would be shot dead. Other persons named above told
Bijoy Ojha to fire at the informant if he did not hand over the key. Out
of fear, when the informant started handing over the key to Bijoy
Ojha, he shot at the left thigh of the informant and snatched the key
from his hand. Thereafter, all the accused persons fled away. The
informant was taken to hospital for treatment. The reason behind the
incident was that the accused persons wanted to grab the quarter of
Braj Mohan.
5. PW1 is the informant of the case who fully supported the
prosecution case. PW3 is the doctor who examined the informant on
7.9.1989 and found punctured wound in the left thigh measuring
1″x1″ and multiple superficial punctured wound surrounding the
punctured wound. He opined that the injuries were caused by
penetrating substance such as firing from country made pistol.
6. PW2-Savitri Devi is the mother of the informant who supported
the prosecution case, by saying that on hearing the sound of firing,
she came out of her house and found the informant injured. PWs 4
and 6 were tendered and PW5 was declared hostile.
7. After hearing the parties and going through the materials
brought on record, it appears that there is vague and general
allegation against these appellants that they instigated the main
accused Bijoy Ojha to fire at the informant. In my opinion, the
appellants deserve the benefit of doubt.
8. In the circumstances, these appeals are allowed. The judgement
of conviction passed against the appellants under sections 307/34 IPC
by the trial court, is hereby set aside. The appellants are acquitted of
the charges. The appellants are on bail, they are discharged from the
liabilities of their bail bonds.
(R.K. Merathia, J)
Jharkhand High Court, Ranchi
Dated 20th September 2011
Ranjeet/