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2003 DIGILAW 797 (JHR)

RADHA KUMAR v. STATE OF BIHAR

2003-07-10

AMARESHWAR SAHAY

body2003
Judgment : AMRESHWAR SAHAY, J. ( 1 ) THE appellant has filed the present appeal against the judgment dated 18-5-1996 in S. T. No. 651 of 1993 by the 2nd Additional Judicial Commissioner, Ranchi, convicting the appellant under Section 304, Part II of the Indian Penal Code and sentencing him to undergo Rigorous Imprisonment for eight years. ( 2 ) THE prosecution case as per the Fard- beyan of Rambriksha Choudhary (P. W. 7) is that on 19-3-1993 at about 5 p. m. Radha Kumar (appellant), a constable of police force stationed at the telephone office, came to the informant and demanded Rs. 50/- for the drinks of the Jawans. On refusal by the informant the constable, Radha Kumar, became infuriated and started abusing and assaulting him with slaps and thereafter called his associates from the telephone office. The informant was dragged to the telephone office building and there he was assaulted with fists, slaps and Danda and with the butt of the rifle causing injuries to the informant. The neighbouring shop-keepers and the passers-by assembled in the campus of the telephone office and started protesting against the high handed action of the constables, which further infuriated the constable, Radha Kumar who asked the mob to leave the place otherwise he threatened to fire on them. It was further stated that Radha Kumar after some chase fired from his rifle which hit a woman. The injured woman was taken to R. M. C. H. for treatment. Accordingly, the police registered the case under Sections 385/341/342/323/324/325/326 and 307 of the Indian Penal Code and 27 of the Arms Act. Since the injured woman died in the hospital in course of the treatment, therefore, (sic) Section 302 of the Indian Penal Code. ( 3 ) ALTOGETHER four persons including the appellant were chargsheeted and put on trial. ( 4 ) THE defence case is of denial of the occurrence and that the accused persons did not commit any such occurrence as alleged. ( 5 ) BY the impugned judgement the learned trial Court acquitted the other three accused persons from the charges giving them benefit of doubt, but however, convicted the appellant under Section 304, Part II of the Indian Penal Code and sentenced him thereunder. ( 6 ) ALTOGETHER 12 prosecution witnesses were examined by the prosecution in order to establish the charge. ( 6 ) ALTOGETHER 12 prosecution witnesses were examined by the prosecution in order to establish the charge. ( 7 ) P. W. 1 is the Dr. Niranjan Minz, who conducted the post-mortem examination and proved the post-mortem report (Ext. 1) prepared by him. P. Ws. 2, 3, 4 and 6 are material witnesses on the point of the occurrence. P. W. 5 was tendered. P. W. 7 is the informant, P. W. 8 is a seizure witness and P. W. 9 has been declared hostile. P. W. 10, Silwanus Bakhla is the Fire Arm Expert who examined the rifles and bullets seized and sent by the police. P. W. 11 is the Investigating Officer and P. W. 12 is the Dr. Lala S. K. Sinha who proved the injury report (Ext. 10) i. e. injuries on the person of the informant. ( 8 ) P. W. 7, Rambriksha Choudhary i. e. informant stated in his evidence that he used to sell Toddy near the gate of Mahendra College on Circular Road, Ranchi. On 19-3-1993 while he was selling Toddy, the home- guard Jawans came there in the evening and demanded Toddy. The informant asked them to pay the price, at which the Jawans assaulted him and dragged him to the Telephone office situated in front of Mahendra College across the Circular Road. The said Jawans used to live in that office. When he was being assaulted by the Jawans several persons assembled there and protested against the action of Jawans who were five to six in number. Jawans threatened the mob which had assembled there and then the mob blocked the Circular Road. He further stated that on the intervention of the public, Jawans left him and from there the informant went to his house and thereafter he went to hospital where he was treated and on the next date i. e. 20-3-1993 his statement was recorded in Lalpur Police Station. ( 9 ) P. W. 12, Dr. Lala S. K. Sinha, who was posted in Sadar Hospital, Ranchi on the date of occurrence, has stated that he examined the informant at about 8. 25 p. m. and found two cut injuries each over parietal region and one cut injury on the lower lip with swelling and bleeding. One scratch over the right knee region and one scratch over left knee region. 25 p. m. and found two cut injuries each over parietal region and one cut injury on the lower lip with swelling and bleeding. One scratch over the right knee region and one scratch over left knee region. The injuries were simple in nature and caused by hard and blunt substance. ( 10 ) THE informant alleged in the F. I. R. that the appellant-Radha Kumar came to his Toddy shop and demanded Rs. 50/- for drinks but in his statement before the Court the informant did not state that the appellant-Radha Kumar had come to his Toddy shop and demanded Rs. 50/- for drinks of the constables. This witness did not identify any of the accused in dock as assailants, on the contrary in his examination-in-chief he stated that he did not know accused Radha Kumar and, therefore, the prosecution declared him as hostile. Though this witness i. e. informant was declared hostile but the fact remains that he admitted that he used to sell Toddy on 19-3-1993 in the evening. On refusal to give Toddy without payment, he was assaulted by Jawans residing in the Telephone office which was situated in front of the Toddy shop and further that the constables dragged him to the Telephone office where he was also assaulted. The mob protested to the said action of the Jawans and also blocked the Circular Road. ( 11 ) P. W. 4, Lakhicharan Lohar stated that on 19-3-1993 in the evening while he was going to Bazar along with his mother Salo Devi (deceased) and when he reached near the Telephone office, he saw a mob of persons and he also saw the police personnel were assaulting the Toddywala. He told about the said occurrence to his mother who went and protested, upon which a constable slapped his mother and thereafter there was firing from the telephone gate and the fire which was shot by the accused-Radha Kumar, hit his mother, Salo Devi as a result of which she fell down. He told about the said occurrence to his mother who went and protested, upon which a constable slapped his mother and thereafter there was firing from the telephone gate and the fire which was shot by the accused-Radha Kumar, hit his mother, Salo Devi as a result of which she fell down. When this witness went to pick up his mother, the said constable pointed rifle towards him and then he fled away to his Basti and told about the occurrence to Bastiwala in paragraphs 6 and 7 of his evidence, this witness has stated that he did not know the said constable by name or face prior to the date of occurrence and he saw the accused-Radha Kumar in the dock after the said occurrence and he could know the name of Radha Kumar from the newspaper. The learned Trial Court has not accepted the identification of the appellant in Court by P. W. 4 but, however, he held that this witness supported the prosecution case on the point of assault on Toddywala by the constable and also on the point of firing due to which, Salo Devi received bullet injuries. ( 12 ) P. W. 6, Laxman Lohara, son of the deceased from the second husband, has deposed as witness on the order of the trial Court because initially the Investigating Officer had recorded in the case diary that Laxman Lohara is a hearsay witness. He has stated that on the date of occurrence at about 5 P. M. , he was going to bazar along with his mother Salo Devi and when they reached near the J. P. Institute which is adjacent to Mahendra College, saw the mob of persons. He told to his mother that police personnel were assaulting the Toddywala upon which her mother went and protested. The police slapped his mother and mob started pelting stones. He further stated that the appellant-Radha Kumar, fired twice from his rifle, one fire hit his mother on the side of right cheek and his mother fell down on the roadside near Ashok tree and when he went to pick up her, the constable pointed rifle on him and then he fled away to his Basti and there he told the people about the occurrence. In cross-examination he has stated that he did not make statement before the police on hearsay basis. In cross-examination he has stated that he did not make statement before the police on hearsay basis. He further stated that he cannot say that the Investigating Officer recorded his statement correctly or not. He further stated that the appellant-Radha Kumar used to come the tea stall of Jagdish Lohara who is the uncle of the informant and, therefore, he knew the appellant from last one or two months prior to the said occurrence. This witness also identified the appellant in the dock. ( 13 ) P. W. 2 Balak Lohara stated in his evidence that on the date of the occurrence in the evening he was in his house from where he heard the sound of firing and then his nephew came running and told that his aunt has been shot at. He went to the place of occurrence and saw the appellant-Radha Kumar in police uniform. He further stated that the said appellant did not allow anybody to pick up the body of the injured and pointed rifle whoever went to pick up the injured. He has further stated that when he reached at the spot, till that time Salo Devi the injured had not died. He identified the appellant-Radha Kumar in Court. ( 14 ) JAGARNATH Lohara, P. W. 3 is the son of Jagdish Lohara, the uncle of P. W. 6 and thus P. W. 3 is the nephew of deceased Salo Devi. He has stated that he went near J. P. Institute and found his aunt is lying in injured condition. He went to pick up her but the constable pointed rifle towards him and did not allow to pick up her. He identified the appellant-Radha Kumar in Court as the said constable. ( 15 ) THE P. W. 11 is Investigating Officer. He stated that after recording the Fardbayan upon which formal F. I. R. (Ext. 6) was drawn by A. S. I. Dhaneshwar Paswan, he inspected the place of occurrence and found the injured woman lying near Ashok tree on the eastern gate of J. P. Institute and sent her to R. M. C. H. for treatment. He went to R. M. C. H. , but as the said woman was unconscious her statement couldnt be recorded. He went to R. M. C. H. , but as the said woman was unconscious her statement couldnt be recorded. He came back to the Telephone office at 7-30 p. m. and arrested the accused persons; constable 1424 Radha Kumar, Homeguard constable Khetramohan Munda, Bachan Lal Mahto and Bhaat Munda and seized rifle No. MB 28878 butt No. 554 and eighteen (18) rounds of live bullets from the possession of constable, Radha Kumar, Riffle No. 1001/85l 9652 and 20 (twenty) rounds of live bullets from the possession of Khetramohan Munda, Rifle No. 904/ba 12342 and twenty (20) rounds of live bullets from the possession of Bachan Lal Mahto and Rifle No. 756/220044 and twenty (20) rounds of live bullets from the possession of accused-Bharat Munda, besides one Rifle bearing No. 835/13897 and twenty (20) rounds of live bullets lying there and prepared the seizure list ( the carbon copy of which is Ext. 7) in presence of independent witnesses Nirjal Singh and Rajesh Kumar Gupta and took them to police station. He sent the seized rifles and bullets to Sergeant Major for inspection, who after inspection submitted report (Ext. 4 ). The seizure list witness Rajesh Kumar Gupta has not been produced by the prosecution and witness Nirjal Singh (P. W. 8) though has admitted his signature (Ext. 3) on the seizure list has been declared hostile and has stated that nothing was seized in his presence and he put his signature on the orders of the police. The I. O. in para 18 of cross-examination has further supported the factum of seizure of rifles and bullets from the possession of accused Radha Kumar. Thus from the statement of P. W. 11 (the I. O.) discussed above there is no doubt that the rifles and bullets were seized from the possession of the accused persons at telephone office. ( 16 ) P. W. 10 Silwanua Bakhla has stated that five rifles seized in this case were sent to him for examination by him. On examination he found that five rifles were police rifles and were effective. He further found that two rounds were fired from Rifle No. MB/28878 having butt. No. 544. He further stated that one empty bullet of 303 was also sent to him. He produced the Rifle No. MB/28878 and empty bullet in Court and the same have been marked material Exts. I and II respectively. He further found that two rounds were fired from Rifle No. MB/28878 having butt. No. 544. He further stated that one empty bullet of 303 was also sent to him. He produced the Rifle No. MB/28878 and empty bullet in Court and the same have been marked material Exts. I and II respectively. The said rifle was seized from the possession of the appellant-Radha Kumar. In addition to, only 18 rounds of live bullets were found by the Investigation Officer in possession of the appellant-Radha Kumar while 20 rounds of live bullets were seized from the possession of other accused persons (since acquitted), therefore, two rounds were found short with the appellant- Radha Kumar. This fact as well as the statement of the eye-witnesses establishes that the appellant-Radha Kumar fired two rounds from the police rifle. ( 17 ) DR. Niranjan Minz P. W. 1 who held post-mortem examination on the dead body of the deceased, found fire-arm injury having the wound of entrance 1 cm x 1 cm on the right side of cheek situated 2 cm right to the right angle of the mouth, the projectile passed through the right maxilla the zygotic bone thence through the right ramus of the right mandible. ( 18 ) AS per the Doctor the said injury was ante-mortem and was caused by a fire arm. Thus from the evidence of Doctor P. W. 10 taken together with the post-mortem (Ext. 1) it is established that Salo Devi had received bullet injury on her right side of cheek causing her death. ( 19 ) P. W. 11, Investigating Officer has stated that the Telephone office of S. D. O. Phones was situated on Circular Road. The said road run east to west. He found that in the ground floor of the said building, armed force were posted and certain huts were also found in front of the Telephone office building. The J. P. Institute and Mahendra College were situated across the Telephone office. The eastern gate of the said college was found in front of Telephone office. He further stated that he found one Ashok tree near the eastern gate of J. P. Institute and the injured woman lying near the said tree. The J. P. Institute and Mahendra College were situated across the Telephone office. The eastern gate of the said college was found in front of Telephone office. He further stated that he found one Ashok tree near the eastern gate of J. P. Institute and the injured woman lying near the said tree. The Circular Road was found blocked with bamboo pieces and glass panes of Telephone office was found broken and there were stone pieces in the boundary of the Telephone office. ( 20 ) FROM the close scrutiny of the statements of the material witnesses i. e. P. Ws. 2, 3, 4 and 6, I find that the statement of these witnesses to be reliable though there are certain minor contradictions but the same does not affect the prosecution case materially. ( 21 ) THE prosecution has been able to prove the cause of occurrence, manner of occurrence, scene of occurrence and particularly the fact that the appellant-Radha Kumar fired from his service rifle which hit the deceased, Salo Devi who died on the next day in the hospital due to the said injuries. ( 22 ) IN view of my above discussions and findings I find that the Additional Judicial Commissioner, Ranchi has rightly convicted the appellant under Section 304, Part II of the Indian Penal Code. ( 23 ) IN the facts and circumstances of the case, sentence awarded by the learned trial Court also does not seem to be excessive. ( 24 ) IN the result this appeal fails and is accordingly dismissed. The order of conviction and sentence passed by the Additional Judicial Commissioner, Ranchi, is hereby affirmed. Consequently bail bond of the appellant are hereby cancelled and he is directed to surrender before the trial Court to serve out the remaining period of sentence. Appeal dismissed --- *** --- .