Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 521 (PAT)

Dabloo Ram v. State Of Bihar

2003-05-02

CHANDRA MOHAN PRASAD, PRABHAT KUMAR SINHA

body2003
Judgment Prabhat Kumar Sinha and Chandra Mohan Prasad JJ. 1. The appellant, Dabloo Ram stands convicted under Section 302 of the Indian Penal Code (the Code, in short) and sentenced to undergo rigorous imprisonment for life, further sentenced to undergo rigorous imprisonment for three years under Section 27 of the Arms Act, both sentence ordered to run concurrently. 2. The informant, Raj Kishore Mandal is the son of the deceased Bhama Devi and, in the first information report dated 19.1.1997 recorded at 4.45 p.m. narrated, in brief, that on the same day at about 3.00 p.m. while his mother was sitting on the verandah of his neighbour Sitaram Mandal, outside his house, talking with Radha Devi (PW 2) and another women, he came out of his house to call her to take meal and then he saw that the appellant was standing before his mother with a country made pistol in hand from which he fired hitting in the chest of the mother who fell down, writhing. Dabloo Ram fled towards Anjuman Masjid Road, chased by the informant and others of the mohalla who caught Dabloo Ram with a country made pistol loaded with an empty cartridge. The mother, thereafter, was taken for treatment by informants brother, Nand Kishore Mandal (PW 1) and others of the mohalla whereas the informant, PW 8 Amar Kumar Mandal, his nephew and others produced the appellant at the police station with the fire arm. The first information report also mentions that while the same was being written, Nand Kishore Mandal came from the hospital informing that mother had died. The informant did not know about any quarrel or about any reason for which the appellant might have killed his mother. A total of nine witnesses were examined in the case, PWs 6 and 9 being formal witnesses and PW 7, Braj Nandan Singh, being the Investigating Police Officer. PW 5, Dr. Sudhir Kumar had conducted post-mortem upon the dead-body. Out of the rest of the witnesses informant, PW 3, and PW 2, Radha Devi are said to be the witnesses of the occurrence with PW 2 narrating the entire episode. PW 1, PW 4 Gopal Prasad Mandal, a student, and PW 8 are the witnesses who had come just after occurrence and had chased the appellant and also supported the prosecution case as to how he was caught after chase. 3. PW 1, PW 4 Gopal Prasad Mandal, a student, and PW 8 are the witnesses who had come just after occurrence and had chased the appellant and also supported the prosecution case as to how he was caught after chase. 3. The defence of the appellant/accused was, particularly thrown in shape of a suggestion to the informant in cross- examination, that the informant himself used to keep a pistol and while handling that, accidental firing took place hitting his mother and in order to save his neck he falsely implicated the appellant. 4. First, the evidences of the witnesses who have lent a supporting hand to the prosecution story, may be seen. PW 1, another son of the deceased, came out of his house, he having given in the evidence that the brothers were living at nearby places, on hearing firing sound and when he reached near his mother, saw the appellant fleeing away and the informant chasing him. This witness also chased and the appellant was caught with pistol whereafter he came back to the house and took the injured to the Munger hospital where, soon after, she died after which he went to the police station to give informant of that to the informant. He also proved his signature over the seizure list (Exhibit-1). This witness has extensively been cross-examined about the incident and the topography of the place but he appears to have well withstood the test of cross-examination. 5. PW 4 happens to be the brother-in-law of the informant who claimed that on that day he was in the village and on hearing the firing sound he came to the place of occurrence and saw Bhama Devi writhirg and Dabloo Ram standing with pistol. He also narrated as to how Dabloo Ram was chased and caught and brought to the police station. Thereafter, he came back and also went to the hospital where the injured died. He has testified about the inquest report prepared by the Police Officer in the hospital on which he also had signed. The inquest report is Exhibit-6. He also was cross-examined in detail including about the chase and catching of the culprit, but appears to have given satisfactory replies. 6. He has testified about the inquest report prepared by the Police Officer in the hospital on which he also had signed. The inquest report is Exhibit-6. He also was cross-examined in detail including about the chase and catching of the culprit, but appears to have given satisfactory replies. 6. PW 8, nephew of PW 1 and the informant in his evidence said that he also came to the place of occurrence on hearing fixing sound and found his grand-mother writhing with fire arm injury in the chest, and Dabloo Ram fleeing away. He also had chased him who was caught at some distance with a pistol, from where he was brought to the police station where the firm arm with cartridge was seized (by police). He also appears to have replied satisfactorily in course of cross-examination. 7. The evidence of the informant in so far as the actual occurrence is concerned, commences from the point when he came out of the house to call his mother for taking her food and saw that Dabloo Ram was standing in front of his mother with a pistol in his hand and when the appellant saw him, he fired hitting the mother in chest. He also supported his version as given in the First Information Report about chase and catching hold of the appellant and producing him with the weapon before the Police Officer, at the police station. He also said that while he was at the police station, PW 1 had come and informed him about death of his mother. In cross-examination, he said that they were four brothers living separately and the mother used to live with any one of them and take her meal, as per her own wishes. On the date of occurrence the mother had to take her meal in the house of the informant. He admitted that the appellant was chased only after he had fired his shot. He has claimed, like other witnesses also, that the pistol was in the hand of the appellant when he was produced before ,the Police Officer. This witness also identified the pistol with an empty cartridge inside it, which was marked material Exhibit-I. By that time the pistol was rusted and empty cartridge inside was stuck in that. 8. He has claimed, like other witnesses also, that the pistol was in the hand of the appellant when he was produced before ,the Police Officer. This witness also identified the pistol with an empty cartridge inside it, which was marked material Exhibit-I. By that time the pistol was rusted and empty cartridge inside was stuck in that. 8. PW 7, Sub-Inspector of Police who had investigated the case, besides proving the fardbeyan of the informant, also proved the seizure list by which the fire arm was seized stating that when the appellant was produced before him, the informant also had produced a country made pistol with an empty cartridge. He said that from Sadar hospital he received an out-door slip of which a Sanha entry was made, and Assistant Sub-Inspector of Police, Gopal Paswan, was sent to hospital who came back and said that Bhama Devi was died and the body was in hospital whereafter he also went there. This witness identified the inquest report prepared by another Police Officer, Sharda Nand Suman, and proved that. About place of occurrence this witness said that it was house of Sitaram Mandal which contained one room having three doors with a cemented portion extended towards west, 3 wide which was used as open verandah, which was the main place of occurrence. He also obtained sanction report from the District Magistrate for prosecution of the appellant under Arms Act. However, he also said that in the case diary he had not noted about finding of the blood at the place of occurrence, but volunteered that it was night-time. Therefore, from the evidence of the prosecution as produced in the Court it is amply proved, some points raised by learned counsel for the appellant to be discussed later, that on the date of occurrence while Bhama Devi was sitting on the verandah of the house of Sitaram, this appellant was seen there with a pistol with which he had fired, killing the deceased whereafter the appellant fled away from the place of occurrence but was caught by the chasers and produced at the police station with the firearm. 9. Evidence of PW 2, Radha Devi also supports this much of the prosecution case that the appellant had firearm the shot had hit Bhama Devi who subsequently succumbed to her injury. 10. 9. Evidence of PW 2, Radha Devi also supports this much of the prosecution case that the appellant had firearm the shot had hit Bhama Devi who subsequently succumbed to her injury. 10. Before further discussing evidence of PW 2, some of the points raised by the learned counsel for the appellant may be seen. Learned counsel argued that the appellant obviously had no motive to kill Bhama Devi. This point is correct as the prosecution did not come out with any motive on the part of the appellant which might have compelled him to kill Bhama Devi and even the informant had admitted that both had no enmity. Moreover, PW 2 has said that mother of the appellant was working as maid servant in the house of the deceased. 11. Learned counsel also submitted that medical evidence is contradictory to the ocular evidence. The ocular evidence was that the appellant was standing before the deceased and as per evidence of PW 2, at that time he was standing while the victim was sitting but as per medical evidence the shot had entered lower, and it exited from the upper portion of the body clearly indicating that the shot was fired from a place that was lower to the deceased. 12. The doctor witness has made the following findings when he examined the dead body on 20.1.1997 at 8.00 a.m. : "(i) Wound of entry 1/2" lacerated circular wound x abdominal cavity deep with inverted margin on the right side of abdominal flank posteriorly 3" lateral to lumber 1 vertebra, edge blacken, margin of the wound blacken. (ii) Wound of exit. Lacerated oval wound 1" x 3/4" x chest cavity deep with averted margin on the right of chest and 4th coastal state middle front." The Doctor found both the wounds connecting as also fracture of right 3rd and 4th ribs. According to the Doctor the death was caused because of shock and haemorrhage due to aforesaid fire-arm injuries, within twenty four hours of the examination. The post-mortem report was marked Exhibit-4. 13 It was, thus, obvious that this wound could have been caused only when the shot was fired was a lower position. 14. It has sufficiently come in the evidence that at the time the occurrence took place, the deceased was sitting on a raised verandah attached to the house of Sitaram. The post-mortem report was marked Exhibit-4. 13 It was, thus, obvious that this wound could have been caused only when the shot was fired was a lower position. 14. It has sufficiently come in the evidence that at the time the occurrence took place, the deceased was sitting on a raised verandah attached to the house of Sitaram. PW 2, an independent witness who was also handicapped, has said in her evidence that at that time she herself was sitting on the road. It has come in the evidence that verandah was adjacent to the road. According to PW 2, she was talking with Bhama Devi and others. At that time the appellant came there, but according to this witness he was in ebriated state. Another lady told him as to why he was being loquacious and why he was not bringing back his wife (who was in Naiher). At that Dabloo Ram took out his pistol and the lady, who had taunted him, fled away. Thereafter Bhama Devi told that that was a fake pistol, but PW 2 said that the pistol was. real. Then the appellant stood up and opened the pistol and the cartridge fell down. He told them that the pistol was real and again loaded the cartridge and pointed that towards the sky asking them as to whether he should fire. Bhama Devi told him not to fire and to do and keep the pistol in his house. Thereatfer, twice the appellant asked whether he should fire and, in the meantime, the shot was fired accidentally which hit Bhama Devi in the right chest. She said that when the hand of Bhama Devi fell down she saw blood and her head started reeling. Dabloo Ram was standing there but when he saw the blood, he realised as to what he had done and fled away. In cross-examination this witness said that whatever incident she saw, she saw from road and at that time Bhama Devi was sitting on the verandah. She also admitted that the firing was done when the appellant was standing and he had fired towards sky. She also said that Bhama Devi had no enmity with the appellant. 15. From her evidence it is also clear that the appellant, when he had come, had sat where PW 2 was sitting, that is, on the road. She also admitted that the firing was done when the appellant was standing and he had fired towards sky. She also said that Bhama Devi had no enmity with the appellant. 15. From her evidence it is also clear that the appellant, when he had come, had sat where PW 2 was sitting, that is, on the road. Obviously, Bhama Devi was sitting at a height, on verandah. The height of the verandah and the height of the appellant has not come on the record, but it is obvious that the firing of the appellant was from a lower level and he had fired upward. According to PW 2, he was also in a drunken state. How drunken, it has not come in evidence to show as to whether or not he was totally incapable of understanding what he was doing. But in that state, some wavering cannot be ruled out. 16. Evidence of PW 2 on a plain reading appears to be the evidence of a truthful witness who simply has narrated what she had actually seen. That, the allegation that the shot fired from the pistol of the appellant had hit the deceased stands amply proved from her evidence and evidence of other witnesses, and evidence of PW 2 also indicates that at that time victim was sitting at a higher platform, and the appellant was standing on the road. 17. Learned counsel for the appellant has relied on a decision of the Apex Court in the case of Awadhesh V/s. State of Madhya Pradesh, AIR 1988 SC 1158 : 1988 East Cr C 645 (SC). In that case, however, the shot had travelled downward and there was definite evidence on the record that the assailant had fired from a place which was lower in leve to the place where the deceased was sitting, on a well, drinking water. 18. The aforesaid facts as coming out of the evidence of witnesses, particularly of two eye-witnesses, and others who had seen the appellant with a pistol quite near the deceased soon after firing had taken place, leave no doubt that the firing was done by this appellant which had hit the deceased. 19. Learned counsel also submitted that in the seizure list, the case number was not noted which showed that the seizure was done before the First Information Report was registered as a case. 19. Learned counsel also submitted that in the seizure list, the case number was not noted which showed that the seizure was done before the First Information Report was registered as a case. It was pointed out that PW 1 was also a witness to the seizure list but the First Information Report itself would show that he had reached the police station when the First Information Report was being recorded which two situations are contradictory. It was also pointed out that according to the Investigating Officer, on the receipt of O.D. slip from the hospital a Police Officer was sent there who said that the dead-body was lying in the hospital, brought by PW 1. It was argued that if Nand Kishore had himself come down to the police station with the news of death, there was no need for a Sub-Inspector also to say that. But this last argument does not contain any contradiction. There is sufficient evidence on the record that PW 1 had brought the deceased on a rickshaw to the Sadar Hospital and, according to his evidence, when soon thereafter she died, he had gone to the police station and had given the information there. But Sub- Inspector was sent there on receipt of O.D. slip which was a natural thing for a Police Officer to do. Therefore, there is no contradiction as both coming from the hospital had brought the same news about the death of the deceased. In so far as the other argument is concerned, it is true that the case number has not been mentioned at the top of the seizure list but at the bottom this refers to Kotwali P.S. case No. 29 of 1997 dated 19.1.1997 under Section 302 of the Code and under Arms Act. This reference was written obviously after the case was registered because as per First Information Report, when its writing was coming to an end the information was given that Bhama Devi and died, which necessitated registering of the case under Section 302 of the Code. 20. This reference was written obviously after the case was registered because as per First Information Report, when its writing was coming to an end the information was given that Bhama Devi and died, which necessitated registering of the case under Section 302 of the Code. 20. Learned counsel pointed out that PW 3 had said that on being fired, the mother had fell down on road and was writhing but evidence of other witness, PW 2, was that when the deceased received the shot, she continued sitting there though she had taken support of the wall of the house which was on the back side. 21. Obviously, soon after the mother of the informant was hit by a shot, the informant had rushed chasing the appellant. He was hardly in a position to see that unless he also turned backwards to find out as to what was happening to the body. This may be a contradiction, but not such which could negate the impact of the entire prosecution case. 22. It was also pointed out that on the inquest report also no case number was noted. However, this inquest report was prepared at the hospital as has come in the evidence and hot at the police station, hence the case number might not have been given on it. But there is no denial that this inquest report was in connection with the dead-body of Bhama Devi. This also depicts a hole in the right chest and a bandage below that. 23. It was also pointed out that there was clear evidence of the witnesses that the appellant was produced at the police station possessing the fire-arm, but the seizure list showed that the fire-arm with the empty cartridge was handed over by the informant. 24. The evidence on record conclusively prove that after the firing the appellant had fled away and was chased by witnesses and caught at the same distance with the fire-arm in his possession and he and the fire-arm were brought to the police station. It is not very material as to whether the Police Officer seized the fire-arm from the hand of the appellant, or that was handed over by the informant. 25. Therefore, we do not find any reason to disagree with the findings reached at by the learned lower Court so far shot fired by the appellant hitting the deceased is concerned. 26. 25. Therefore, we do not find any reason to disagree with the findings reached at by the learned lower Court so far shot fired by the appellant hitting the deceased is concerned. 26. In the last, learned counsel submitted that from the evidence of PW 2 who is the only witness of the prosecution to have seen the entire occurrence it was apparent that this was a case of accidental firing, without any intention to kill Bhama Devi and, in that view of the matter, the appellant could not be convicted under Section 302 of the Code but at best, if the evidence was believed, the offence that was committed was punishable under Section 304-A of the Code. For this learned counsel has relied upto two decisions of the Apex Court, in the case of Balwant Singh V/s. State of Punjab, 1994 Supp (2) SCC 67, and in the case of State of U.P. V/s. Abdul, AIR 1997 SC 2512 : 1997 (2) East Cr C 135 (SC). The learned Additional Public Prosecutor, on the other hand, argued that this could hardly be a case of accidental death when the informants evidence clearly revealed that when he came out of the house he saw the appellant with the pistol which he immediately fired at his mother hitting in the chest. Obviously, as it may be mentioned here, the shot had only existed through chest but had entered into the lower right side of the body. It may be that since the injury on the chest, where the shot had exited, was clearly visible-the witnesses said that she shot in the chest. 27. We do not find any contradiction in the evidence of PW 2, on the one hand, and the evidence of the informant and other witnesses, on the other. According to PW 2, also it was the appellant who had a country made pistol in hand and firing had taken place from that pistol which had hit Bhama Devi. Informant is a witness from the stage when the appellant was standing with the pistol and when the firing had taken place. Therefore, on this point the two witnesses agree. But what had happened before that, to that only PW 2 was the witness. He have already said that evidence of PW 2 inspired confidence and was a true narration of what actually had happened. Therefore, on this point the two witnesses agree. But what had happened before that, to that only PW 2 was the witness. He have already said that evidence of PW 2 inspired confidence and was a true narration of what actually had happened. According to this witness, when the appellant had taken out his pistol on being taunted by another lady about bringing his wife from her naihar, deceased said that the pistol was fake and this witness said that it was real. It has come that at that time the appellant was in somewhat drunken state. He did not fire at once but to show that the pistol was real and loaded with a cartridge, as per PW 2, he had first opened the chamber exposing the cartridge which had fallen down. He again loaded the pistol and pointed the same skywards and as per this witness, thrice he asked as to whether he should fire (to show that it was real}. The clear impression that the evidence of PW 2 gives is that he was attempting to show that the pistol was real and for that he wanted to fire skyward but, in the meantime, the firing took place accidentally which had hit Bhama Devi. Therefore, accidental death of Bhama Devi appears to be more plausible than the homicide committed with mens rea. In view of that state of evidence on record, we do not find it safe to approve the conviction of the appellant under Section 302 of the Code. In our opinion, the appellant should have been convicted under Section 304-A of the Code, for causing homicide by rash and negligent act. However, in our opinion, the conviction and sentence of the appellant under Section 27 of the Arms Act shall stand, for which the sanction was received from the District Magistrate, as brought on the record. 28. In the result, the conviction of the appellant under Section 302 of the Code is set aside and, instead, he is convicted under Section 304-A of the Code, and sentenced to rigorous imprisonment for two years. However, in the circumstances of the case the sentences would run separately. 29. With the aforesaid nodification in conviction and sentence, this appeal is dismissed.