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2004 DIGILAW 425 (PAT)

Sanjeev Kumar @ Gonga v. State Of Bihar

2004-04-13

MRIDULA MISHRA, RAM NANDAN PRASAD

body2004
Judgment RAM NANDAN PRASAD and MRIDULA MISHRA JJ. 1. The sole appellant has preferred this appeal against the judgment order dated 21.9.2000 passed by the Additional Sessions Judge VI, Gaya in Sessions Trial No. 528/97/161/2000 whereby he has been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. He has further been convicted for the offence under Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years 2. Ramjee Prasad, the brother of the deceased is informant. He gave his fardbeyan on 15.7.1997 at about 9.45 p.m. in Anugrah Narain Medical College Hospital, Gaya before the Assistant Sub-Inspector of Police, Kotwali Police Station that at about 3.30 p.m. he was a his shop. One Dharmendra Kumar of his mohalla came and informed that his brother Ramesh has sustained firearm injury in the stomach. He closed the shop and proceeded from there and when he reached near pilgrim hospital he saw his brother being taken to hospital for treatment on scooter-. He also accompanied him on another scooter and reached Anugrah Narain Medical College Hospital where his treatment started. He inquired about the incident from his brother, who disclosed that he had gone to bring his clothes from the house of Rakesh Kumar, owner of Mukesh Medical situated at Jheelganj mohalla. He was sitting on the outer platform Gonga came and he without any rhyme or reason fired at him causing injury on the right side of his stomach. On the aforesaid fardbeyan formal FIR was drawn and investigation was taken up and on completion of the investigation charge-sheet was submitted against the appellant. Cognizance was taken and the case was committed to the Court of Session for trial. The trial Court convicted the appellant as indicated above. The defence of the appellant was that he was innocent and had falsely been-implicated in the case out of grudge. At the relevant time he was not present at the place of occurrence. He had gone to local market for purchasing a camera. 3. The prosecution in support of its case examined seven witnesses. PW 1 is an eye-witness. PW 2 had seen the appellant running away with country-made pistol and in his presence the deceased disclosed the name of the appellant as his assailant. He had gone to local market for purchasing a camera. 3. The prosecution in support of its case examined seven witnesses. PW 1 is an eye-witness. PW 2 had seen the appellant running away with country-made pistol and in his presence the deceased disclosed the name of the appellant as his assailant. PW 3 is witness to the disclosure of the name of the appellant when he reached the place of occurrence. PW 4 is informant and is a hearsay witness. PW 7 is also a witness who reached the place of occurrence and in his presence the injured disclosed the name of the appellant as his assailant. PW 5 is the doctor, who held post mortem over the dead body. PW 6 is Investigating Officer. On defence witness was also examined to "say that the appellant was within him at the relevant time in the market for purchasing a camera. In this case there are two types of evidence. PW 1 is an eye-witness to the occurrence and the other type of evidence is that in presence of the witnesses the deceased had disclosed the name of the appellant as assailant. PW 1 is a resident of Patratu. He had come to Jehanabad to attend the marriage of the daughter of the sister of Rakesh Kumar, the owner of Mukesh Medical on 13.7.1997. He and Ramesh the deceased, had left their clothes in the attach of Rakesh. He and the deceased Ramesh had gone to the house of Rakesh Kumar situated at mohalla Jheelganj to brig their clothes. The house of Rakesh Kumar was closed. They sat on the outer platform of the house. In the meantime, boy came there and asked Ramesh as to how he had come in that lane, upon which Ramesh replied why he could not come. Then the boy said that he would shoot him (goli mar denge). Ramesh told if only he had seen cartridge (kya gonga tumhi goli dekha hat?). The boy took out a pistol from his waist and fired causing injury on the right side of his stomach. Gonga thereafter ran away. On hearing sound of firing people came and took Ramesh on a tempo to Magadh Medical College Hospital. Ramesh died in the hospital during treatment. He identified the appellant in the dock. In cross-examination the witness reiterated that the house of Rakesh is situated in Jheelganj mohalla. Gonga thereafter ran away. On hearing sound of firing people came and took Ramesh on a tempo to Magadh Medical College Hospital. Ramesh died in the hospital during treatment. He identified the appellant in the dock. In cross-examination the witness reiterated that the house of Rakesh is situated in Jheelganj mohalla. They wre sitting on the outer platform of the house as it was closed. There are several houses near the place of occurrence. It was rainy season. In his presence the appellant took out pistol and fired. Blood oozed out from the injury and fell on the clothes. He was in sense. The marriage ceremony was at Jehanabad. The inmates of the house of Rakesh had also reached the place of occurrence. The tempo was brought by someone of the mohalla. Suggestion was given that he had not gone to bring clothes, no occurence had taken place in the manner as stated, which he denied. PW 2 is an independent witness. He was going to the house of Umesh Singh. He heard sound of firing and saw a boy running away with a pistol in his hand and one person fallen on the ground crying and saying that the appellant had shot him causing injury on his stomach. PW 3 also came there, who was known to him from before. His statement was recorded on the next day of the occurrence. I cross-examination the witness stated that the land of Umesh Singh is adjacent to his land and, as such, he was going to Umesh Singh to take his land on batai. The injured was in sense. Many people assembled at the place of occurrence. He did not know the appellant from before. Suggestion was given that he neither had gone to the place of occurrence on the relevant day nor had seen any person injured, which he denied. PW 3 is brother of the deceased. He was coming from his shop to take meal. He heard sound of firing and went to the place of occurrence and found his brother lying injured at the house of Rakesh Kumar, owner of Mukesh Medical. He was crying for help and disclosed the name of the appellant as the assailant. PW 1, PW 2, PW 7 were also there. He had seen the appellant running away. However, his brother died in the Magadh Medical College Hospital. He was crying for help and disclosed the name of the appellant as the assailant. PW 1, PW 2, PW 7 were also there. He had seen the appellant running away. However, his brother died in the Magadh Medical College Hospital. In cross examination the witness stated that his statement was recorded in the hospital in the night of the occurrence itself. He reiterated that he had stated before the police that he had seen the appellant running away. The occurrence took place on the platform of the house of Rakesh, the owner of Mukesh Medical. His brother was in sense. He found blood on the clothes of his brother.The injured was being taken to hospital on a tempo but on the way trouble started in it and, as such, the injured was taken on a scooter of Munna. The witness was driving the scooter and his brother was behind him. PW 1 was also sitting behind his brother. He reiterated that his brother was admitted in the emergency ward of the hospital and he was in sense. However, he died during the treatment. Blood was not found at the place of occurrence as it was raining. Suggestion was given to the witness that nobody had seen the occurrence nor he saw the appellant running away which he denied. PW 4 is informant and is a hearsay witness. He was at his shop when one Dhirendra informed that his brother Ramesh was shot at by Gonga. He proceeded from there and on the way he found his brother, Ramesh being taken to the hospital. He inquired from his brother on the way about the incident and he disclosed that the appellant fired at him without any rhyme or reason. His fardbeyan was recorded in the hospital. Inquest report was prepared in presence of the witnesses. He was coming from his shop on a scooter and found his brother Ramesh being taken on a scooter. He was sitting in the middle of the scooter. His brother was in sense. 4. From discussion of the evidence of the witnesses it is evident that PW 1 is a resident of Patratu but he has explained the circumstances under which he went to Gaya. The witness was cross-examined at length but nothing could be elicited to doubt his presence at the relevant time. His brother was in sense. 4. From discussion of the evidence of the witnesses it is evident that PW 1 is a resident of Patratu but he has explained the circumstances under which he went to Gaya. The witness was cross-examined at length but nothing could be elicited to doubt his presence at the relevant time. He is an eye-witness to the occurrence and has given a vivid picture of the commission of the crime by the appellant. PW 2 reached the place of occurrence soon after the firing and saw the appellant running away with pistol in his hand. He also stated in his evidence that Ramesh after sustaining injury was in sense and disclosed the name of the appellant as the assailant. The other witnesses, namely, PW 3 and PW 7 have deposed that they also went to the place of occurrence on hearing the sound of firing and in their presence Ramesh, the deceased, disclosed the name of the appellant as his assailant. PW 4 is a hearsay witness but he also deposed that while he was going to see his brother from his shop, on the way he found his brother being taken to hospital and on query his brother disclosed the name of the appellant as his assailant. Therefore, it is evident from the material on record that the evidence of PW 1 has been corroborated by the other witnesses as indicated above. 5. PW 5 is a doctor, who held post mortem over the dead body on 16.7.1997 at about 11.15 a.m. He found ante-mortem injuries on his person, which are quoted hereinbelow : "(i) One vertical linear incised wound (stitched) was found over middle of anterior abdominal wall from xiphoid process to public symphasis. (ii) One oval wound of entry of size 3/4 x 1/2 x abdominal cavity deep was found over right part of abdomen in the middle of anterior abdominal wall. 3" right of umbilicus one corrugated rubber sheet was found introduced through the wound. Multiple black tattooing was found around the wound. Abrasion collar was found over the margin of the wound. Peritoriam was filled with dark blood and blood clots - coils of intestine were found stitched at places blood clot was found in thepelvis. 3" right of umbilicus one corrugated rubber sheet was found introduced through the wound. Multiple black tattooing was found around the wound. Abrasion collar was found over the margin of the wound. Peritoriam was filled with dark blood and blood clots - coils of intestine were found stitched at places blood clot was found in thepelvis. No bullet or pellet was found any where inside the body." From the evidence of the doctor it is evident that he found firearm injury on the person of the deceased and he has also stated that time elapsed since death was within 18 hours, which fits in the case of the prosecution. PW 6 is Investigating Officer. His evidence is that he heard rumour that in Jheelganj mohalla one person had been shot at. He along with police force had gone to Jheelganj mohalla where he learnt that the injured had been taken to Magadh Medical College Hospital. He went to Magadh Medical College Hospital and he learnt that Ramesh Kumar had sustained firearm injury and operation was going on. When he was brought out from the operation theatre he found him unconscious. However, he prepared injury report. He stated that he recorded the fardbeyan, Ext. 1 and also recorded further statement of the informant and other witnesses present there. He proved the formal FIR, Ext. 5 and inspected the place of occurrence and had give a vivid picture of the place of occurrence. He, however, stated in his evidence that the people showed him the platform where the occurrence was committed. It was raining and, as such, he did not find blood at the place of occurrence. He conducted raid to arrest the appellant but he was found absconding. He received the inquest report from the Magadh Medical College Hospital, Ext. 6. He handed over the investigation to the Officer-in-Charge of the Kotwali Police Station, who conducted further investigation and submitted chargesheet. He also investigated into the antecedent of the appellant and stated that he was an accused in Civil Lines P.S. Case No. 111/93 for the offence under Sections 25(l)B/26/35 of the Arms Act. The witness, however, stated that PW 3 did not say before him that he had seen the appellant running away. However, the witnesses stated that PW 4 had stated before him that Dhirendra came and informed that Ramesh was fired at by the appellant. The witness, however, stated that PW 3 did not say before him that he had seen the appellant running away. However, the witnesses stated that PW 4 had stated before him that Dhirendra came and informed that Ramesh was fired at by the appellant. Thus, it is evident from the discussion of the evidence of the I.O. that his evidence also corroborates the prosecution case, evidence of the eye-witness PW 1 and of other witnesses. 6. Learned counsel for the appellant, however, submitted that the deceased was not in a condition to speak and, as such, the evidence of the witnesses that in their presence the deccesed had disclosed the name of the appellant as his assailant cannot be believed. The submission appears to be attractive but it has no leg to stand. From the evidence of the doctor as well as the post-mortem report it is evident that the doctor did not find any injury on the vital parts, such as heart or the brain. If the injuries are found on the vital parts, as indicated above, then it is not possible that the injured will remain in sense. In the case of Surajdeo Oza and others V/s. State of Bihar, AIR 1979 SC 1505 , the Apex Court has held that no injury affecting brain or heart was found by the doctor. Only serious injury was found on the abdomen and as such it cannot be said that the injured would become unconscious and could not be in a position to speak. In the instant case also the doctor did not find any injury on the vital part as indicated above. Moreover, the eye-witness as well as the other witnesses had categorically stated that the injured after sustaining injury was in sense and had disclosed the name of the appellant as assailant. Thus, we find no substance in the submission of the learned counsel for the appellant. 7. Thus, on consideration as discussed above, we find no merit in the appeal. It is accordingly dismissed.