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2003 DIGILAW 1276 (PAT)

Ajay Kumar Singh @ Ajay Singh v. State Of Bihar

2003-12-10

CHANDRA MOHAN PRASAD, PRABHAT KUMAR SINHA

body2003
Judgment Chandra Mohan Prasad, J. 1. The appeal is against the judgment dated 24.4.1999 of the 6th Additional Sessions Judge, Rohtas, Sasaram, passed in Session Trial No. 233 of 1999 whereby the appellant has been convicted under Section 302 of the Indian Penal Code and 27 of the Arms Act and respectively sentenced to undergo rigorous imprisonment for life and rigorous imprisonment for two years. 2. The informant Nand Kumar Singh (DW 7) carrying the dead body of his deceased brother Ramashrey Singh came to Bikramganj Police Station on 2.11.1990 at 11.15 a.m. along with his brother Shiva Kumar Singh (PW 2), uncle Ram Bilas Singh (PW 1), Sipahi Singh (PW 3) and Ram Chandra Singh and lodged the first information report (Ext. 2/1) stating that, that day he, along with his brothers Ramashrey Singh (deceased) and Shiv Kumar Singh (PW 2) had got the paddy crop of his field harvested and they were bringing the bundles from their field to their khalihan carrying the same through the khalihan of their co-villager Chandramadhav Singh. In course of that, it was at about 8 a.m., when the (informant) reached in the khalihan of the said Chandrmadhav Singh he protested to the carrying of the bundles through his khalihan wereupon the informant party replied that one day ago when he (Chandramadhav Singh) had carried his crop bundles through their khalihan they (informant side) had put no objection. On this the informant alleged in his first information report that Chandramadhav Singh started abusing the informant side calling their mother and sister whereupon hard words and altercation began from both sides. On this Chandramadhav Singh got incensed and he asked his nephew Ajay Singh (appellant) to bring gun saying that the informant side could not be stopped without it. The appellant brought the gun. Then it is said that on the exhortation of his father Shatrughan Singh (already acquitted) the appellant fired the gun which hit the deceased on his right panjara as a result of which the deceased cried and fell down and profused bleeding started. The informant further alleges that his uncle Rambilas Singh (PW 1) and cousin Sipahi Singh (PW 3) who were in the nearby area in connection with their work saw the occurrence. The informant further alleges that his uncle Rambilas Singh (PW 1) and cousin Sipahi Singh (PW 3) who were in the nearby area in connection with their work saw the occurrence. Thereafter, it is said that the informant along with PW 1, PW 3, PW 6 and PW 9 brought the dead body on a cot to Natwar Government Hospital but the doctor gave one injection there and telling that it was a serious case asked them to take him (deceased) to Bikramganj hospital. Then the informant immediately arranged one Trekker and brought the deceased to Bikram hospital but the doctor declared the deceased there dead. Thereafter, he (informant) brought the deceased to Natwar Police Station and lodged the first information report there. 3. As many as 10 witnesses were examined by the prosecution. The accused examined two defence witnesses namely DW 1 Shivji Singh, DW 2 Nepal Singh. The DW 1 and 2 are the co-villagers who deposed that on hearing hulla from deceaseds khalihan that Ramashray Singh deceased had been shot they went to deceaseds khalihan. and found the deceased dead. They further deposed that several villagers including the family members of the deceased had assembled there but nobody had disclosed to them the name of assailants there. 4. Out of the prosecution witnesses the PW, 7 Nand Kumar Singh is the informant himself. PW 1 Rambilas Singh, the uncle of the informant, PW 2 Shiv Kumar Singh, brother of the deceased, PW 3 Sipahi Singh, cousin of the deceased are the witnesses to the occurrence. PW 4 Surya Narayan Singh is also a witness but prosecution has declared him hostile witness. PW 5 Shriram Singh Chaukidar No. 6/5 produced the deceaseds blood soaked lungi, gamcha, and one ganjee in rotten condition in Court which were marked material Exts-I, II and III. This witness also produced one sealed vial containing plastic wad of cartridge which was marked material Ext. IV. PW 6 Ramraj Singh is a witness on the point of seizure of blood soaked soil from the place of occurrence. He deposed that after seizure the seizure list was prepared in his presence and he had put his signature (Ext 1) on the same. He also stated that Sipahi Singh (PW 3) had also put his signature (Ext. 1/1) on the seizure list. He deposed that after seizure the seizure list was prepared in his presence and he had put his signature (Ext 1) on the same. He also stated that Sipahi Singh (PW 3) had also put his signature (Ext. 1/1) on the seizure list. PW 9 Ramchandra Singh is a witness on the point of preparation of the inquest report of the dead body of the deceased.. He deposed that at Natwar Police Station daroga had prepared deceaseds inquest report on which he had put his signature (Ext 4). He also deposed that Ram Gahan Singh had also put his signature (Ext. 4/1) in his presence on the inquest report. The PW 8 Dr. Binod Kumar is the doctor who had conducted postmortem examination on the dead body of the deceased. The PW 10 Devendra Singh is the Investigating Officer of the case. 5. The doctor PW 8 deposed that on 3.11.1990 at 7 a.m. he had conducted postmortem examination on the dead body of deceased Ramashreay Singh and had found the following antemortem injuries on his per.son. (i) Lacerated wound with inverted margin and charring 1/2" x 1/2" cavity deep on right illiac fossa. (ii) Lacerated wound with inverted margin 1" x 1" communicating with injury No. 1 cn left gluteal region. The injury No. (i) was the wound of entrance and injury No.(ii) was the wound of exit. 6. The doctor further deposed at paragraph 4 that the injuries were antemortem and caused by firearm. Death was due to shock and haemorarahage leading to cardiac failure. Time elapsed since death was within 24 hours of the postmortem examination. The doctor proved the postmortem report, Ext. 3 in his writing and signature. In the cross-examination at paragraph 5 he deposed that if cardwad of the shot is found inside the body that would go to show that the firing must have been made from a distance less than six feet. 7. Thus the medical evidence establishes that the deceased had died of firearm injury caused from short range nearing within 6 ft. 8. The Investigating Officer (PW 10) deposed that the informant, carrying the dead body of the deceased Ramashrey Singh had appeared at the police station and he gave his statement there on the basis of which the first information report was registered and then he (Investigating Officer) took upon the investigation of the case. 8. The Investigating Officer (PW 10) deposed that the informant, carrying the dead body of the deceased Ramashrey Singh had appeared at the police station and he gave his statement there on the basis of which the first information report was registered and then he (Investigating Officer) took upon the investigation of the case. He further deposed about preparing the inquest report (Ext. 4/2) in his writing and signature. Then he stated that he sent the dead body for postmortem examination through constable Ganga Prasad Singh and Chaukidar Jairam Yadav. 9. About the place of occurrence the Investigating Officer deposed that the place of occurrence was a hut situated adjacent west of informants khalihan and that the hut belonged to the informant and it was stated before him that the deceased had received the fire shot near the hut. He also found blood fallen near about the hut area. He further deposed that he had found cut crop bundle kept on the western ridge of accuseds khcdihan. He also deposed that 50 yards south of the khalihan of the accused the khalihan of the informant situated and there was parti land in between which belonged to the accused side. 10. He stated to have seized the blood soaked soil from the place of occurrence and then prepared the seizure list (Ext. 2). He proved writings and signature (Ext. 2/1) on the first information report. 11. The informant (PW 7) deposed that he along with deceased and Shiv Kumar Singh (PW 2) was carrying crop bundles to his khalihan. When they reached infront of the khalihan of Chandramadhav Singh who was also staking his crop bundles in his khalihan prohibited the informant side from carrying their crop bundles through infront of his (Chandramadhavs) khalihan. But this is relevant to be mentioned here that according to the evidence of the Investigating Officer there was parti land in between khalihan of the informant and the said Chandrmadhav Singh and it is also the admitted case of the prosecution in the first information report that the informant side were carrying the crop bundles through the land of the said Chandramadhav Singh. The informant further deposed that on being prohibited the informant side replied that was the only way for carrying the crop bundles whereupon, the informant further deposed that, Chandramadhav Singh abused the informant and his two brothers (deceased and PW 2) calling their mother and sister. The informant continues to depose that they (informant side), after keeping their crop bundles in their khalihan went to the accused side and asked as to why they had abused them. At that time Shatrughan Singh and appellant Ajay Singh who were also there started abusing the informant side. The informant further deposed that Chandramadhav Singh asked to bring a gun whereupon appellant Ajai Singh running went away to bring gun and then on the exhortation of Shatrughan Singh appellant Ajai Singh fired the gun and the shot did hit on the right panjara of the deceased whereafter the deceased fell down and died and the accused persons fled away from there. Then the informant deposes that the deceaseds wound was tied with Gamcha. The deceased was being taken to Natwar Hospital and from there further to Bikramganj hospital where doctor declared him dead and then the decased was brought on trekker to Nartwar Police Station where the first information report was registered. 12. At paragraph 7 of cross-examination the informant deposed that after keeping their crop bundles in their khalihan he (informant) and his two brothers (deceased and PW 2) had gone to Chandramadhav Singh for asking him as to why he had abused them and then altercation and abuses had taken place between two sides for two to four minutes. It is relevant to mention here that in the first information report the informant stated that hard words had been spoken from both sides and in the midst of which Chandramadhav Singh had asked for bringing the gun saying that the prosecution party could not be sustained without the gun. The informant further deposed at paragraph 9 of his cross- examination that the appellant had fired only once and after firing the shot he fled away. At paragraph 8 of cross-examination the informant also deposed that the appellant had fired from 10-15 yards south of the northern ridge of Chandramadhavs khalihan. The informant further deposed at paragraph 9 of his cross- examination that the appellant had fired only once and after firing the shot he fled away. At paragraph 8 of cross-examination the informant also deposed that the appellant had fired from 10-15 yards south of the northern ridge of Chandramadhavs khalihan. According to paragraph 7 of the informant, the informant, deceased and the PW 2 had gone into the khalihan of Chandramadhav Singh for asking him as to why Chandramadhav Singh had abused them and then altercation and abuses had taken place between the parties at that time and in the meantime the appellant had fired the gun. Thus the shot was fired when the informant and deceased were in the khalihan of accused party and there was occasion of firing from close distance thus the informant corroborates his fardbeyan supporting the prosecution story on all the material point. 13. Amongst the witnesses the PW. 1 is the uncle of the deceased and PW 2 is the brother of the deceased who were accompanying the deceased at the time of occurrence. These two witnesses have deposed on similar line stating that they along with the deceased were carrying crop bundles through the khalihan of Chandramadhav Singh who had protested and abused them for carrying the same through his khalihan. The fardbeyan mentions that the appellant is the nephew of said Chandramadhav Singh. The evidence of these two witnesses (PW 1 and 2) had carrried their crop bundles through the khalihan of the accused side and carrying of the bundles was completed and nothing happened excepting the abuses given by the accused side. The evidence of these witnesses and the informant further show that after the completion of the carrying of the bundles the deceased, the informant and the deceased, the informant and the witnesses went to the Khalihan of the accused side and they asked as to why Chandramadhav Singh had abused them whereupon an altercation took place. It is further in the evidence of these witnesses and also in the fardbeyan that the altercation developed into exchange of hot words between the two sides. It is further in the evidence of these witnesses and also in the fardbeyan that the altercation developed into exchange of hot words between the two sides. It is also in the evidence of these witnesses that in the midst of the exchange of hot words Chandramadhav Singh stated that the informant side could not be sustained without a gun and he ordered for bringing a gun whereupon his nephew that is the appellant went and brought a gun. It is further in the evidence that after bringing the gun the appellant fired the gun which did hit the deceased. There is nothing in the evidence of the witnesses to show that before firing the gun the appellant had taken any aim rather from the evidence it appears that the appellant had fired the gun in hot moments while exchange of hot words was going on between the two sides. The evidence further shows that after the firing of the gun the appellant and others immediately fled away from there. 14. The PW 3 who is cousin of the deceased has deposed on similar lines as the informant and the PW 1 and 2. 15. During the hearing the learned counsel for the appellant argued that in this case the witnesses examined are the relatives of the informant and the deceased and that no independant witness has been examined. The learned APP replied that the occurrence took place in the Khalihan where the informant or his relatives who were working there are expected to be present and only they can be the natural and probable witnesses. No doubt the witnesses are relatives of the deceased and informant and they can be said to be interested witnesses due to such relationship, the evidence of such witnesses cannot be discarded simply on the ground that they are interested due to relationship. Whatever is required in such cases is that the evidence of such witness has to be examined with great care and caution. On having examined the evidence of these witnesses with such care and caution they appear to be natural and truthful witnesses and there is nothing to discredit their testimony due to this reason. 16. Whatever is required in such cases is that the evidence of such witness has to be examined with great care and caution. On having examined the evidence of these witnesses with such care and caution they appear to be natural and truthful witnesses and there is nothing to discredit their testimony due to this reason. 16. Learned counsel for the appellant further argued that under the circumstances of the case the offence alleged is not a culpable homicide punishable under Section 302 of the Indian Penal Code but it falls in the category of culpable homicide not amounting to murder as categorised in exception 4 of Section 299 of the Indian Penal Code. 17. On critically analysing the fardbeyan which is the earlier written statement of the informant as well as the evidence adduced by the prosecution witnesses the following circumstances emerge for consideration. (i) That the prosecution party including the deceased were carrying their crop . bundles through the Khalihan land of accused side. (ii) That during the carrying of the crop bundles the accused side particularly Chandramadhav Singh had protested to the carrying and he had abused the prosecution party. (iii) That despite the protest and abusing the protection party carried their crop bundles through accuseds khalihan and stacked the bundles in their own khalihan. (iv) That after stacking the crop bundles in their khalihan the prosecution party including the deceased came to the khalihan of the accused side to remonstrate and asked as to why the accused side had abused them. (v) That on the prosecution party coming again to the Khalihan of the accused side an altercation took place and in course of altercation exchange of hot words between two sides took place. (vi) That in course of the hot exchange of the words between the two sides the said Chandramadhav Singh expressed that the prosecution party could not be sustained without a gun and he asked for a gun. (vii) That on Chandramadhav Singh saying so appellant Ajay Singh went and came with a gun which was fired by him (appellant) and which fire shot did hit the deceased. (viii) That there is nothing to show that before firing the gun the appellant had taken any aim on the deceased. 18. (vii) That on Chandramadhav Singh saying so appellant Ajay Singh went and came with a gun which was fired by him (appellant) and which fire shot did hit the deceased. (viii) That there is nothing to show that before firing the gun the appellant had taken any aim on the deceased. 18. On considering the above enumerated circumstances it appears that initially the accused side had simply protested and abused the prosecution party in carrying their crop bundles through their (accuseds) Khalihan but beyond this nothing was done at the hands of the accused side and the prosecution party was allowed to carry their bundles which were completed and the prosecution party carried their crop bundles through the Khalihan of the accused side and they (prosecution party) stacked the same in their Khalihan. It further appears that after completion of the work of the carrying of the crop bundles, the prosecution party including the deceased again came to the Khalihan of the accused side in a revengeful mood and they initiated the exchange of hot words between the two sides. 19. It further appears that in course of the exchange of hot words the seriousness of the mood and the other acts of prosecution party was felt by Chandramadhav Singh of accused side who had expressed that the prosecution party could not be sustained without a gun. It also appears that in such a situation while the exchange of hot words was going on the appellant had brought the gun which was fired by him. There is nothing on record to show that before firing the gun the appellant had taken any aim on the deceased or he acted in any manner showing a premeditation or cold blooded overt act in firing the shot. 20. Ther exception 4 of Section 299 of the Indian Penal Code reads as follows : "Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner." 21. 20. Ther exception 4 of Section 299 of the Indian Penal Code reads as follows : "Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner." 21. Examining the case in the back drop of this provision under exception 4 of Section 299 of the Indian Penal Code, I find that in this case the prosecution had initiated the hot exchange of words causing apprehension in mind of the accused party that the situation could not be dealt with without a gun and that in a situation of heat of passion without any premeditation the gun was brought and fired by the appellant without taking of any aim on the deceased and which fire shot did hit and kill the deceased. In such view of the matters I find that the instant case is squarely covered by exception 4 of Section 299 of the Indian Penal Code. Thus the offence is punishable under Section 304 Part-II of the Indian Penal Code. Therefore, the conviction of the appellant is modified from a conviction under Section 302 of the Indian Penal Code to under Section 304, Part II of the Indian Penal Code. So far the quantum of sentence is concerned I feel that under the circumstances of the case a sentence of rigorous imprisonment of seven years will meet the ends of justice. Therefore, the appellant is sentenced to undergo rigorous imprisonment for 7 years. The appeal is dismissed with the modification in the conviction and sentence as indicated above. PRABHAT KUMAR SINHA, J. 22 I agree. Appeal dismissed with modification.