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2007 DIGILAW 105 (PAT)

Rakesh Kumar @ Rakesh v. State Of Bihar

2007-01-15

DHARNIDHAR JHA, SHIVA KIRTI SINGH

body2007
Judgment Shiva Kirti Singh, J. 1. This appeal by the sole appellant/ convict is directed against the judgment and order dated 23rd January, 2002 passed by learned 2nd Additional Sessions Judge, Khagaria in Sessions Case No. 294 of 1999 (arising out of Parbatta P.S. Case No. 20/99). By the said judgment and order the appellant has been convicted under sec. 302 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for life and also to pay a fine of Rs. 500.00 only and in default to undergo further rigorous imprisonment for three months. No separate sentence has been awarded for the charge under sec. 27 of the Arms Act. 2. According to the Fardbeyan lodged by RW. 5, Sanjay Kumar Chaudhary the alleged occurrence took place in the night between 24th/25th February, 1999 at about 12.30 A.M. in village Chak Prayag when a marriage procession (Barat) was about to arrive at the Darwaja of one Chandradeo Chaudhary whose daughter Rani Devi was to be married in that night and in relation whereof the Barat had arrived from village Kanhaiyachak. In the Fardbeyan it is alleged that at the relevant time when the Barat was about to be received at Darwaja there was firing being made from both the sides and in that transaction accused Rakesh Kumar Chaudhary fired a gun which he was holding in his hand at the younger brother namely Babloo Kumar Chaudhary of the informant deliberately with a view to cause his death. The injured fell down on receiving gun shot injury on his back and within a short time he died at the place of occurrence itself. As per Fardbeyan the occurrence was witnessed by neighbours such as Kaushal Kishore Chaudhary (RW. 3). Upendra Chaudhary (RW. 4) Mahendra Chaudhary etc. The motive for the occurrence was alleged to be some differences between the two families on account of cutting of grass in the field. It was further alleged that about a fortnight earlier some exchange of abuses had taken place on that account. 3. The Sub-Inspector of Police, Shivnandan prasad (RW. 6) recorded the fardbeyan, drew formal F.I.R. and investigated the offence. He has proved the Fardbeyan (Ext. 2). formal F.I.R. (Exhibit-3) seizure-list of blood stained earth from the place of occurrence as Exhibit-4 and Inquest Report Exhibit-5. 3. The Sub-Inspector of Police, Shivnandan prasad (RW. 6) recorded the fardbeyan, drew formal F.I.R. and investigated the offence. He has proved the Fardbeyan (Ext. 2). formal F.I.R. (Exhibit-3) seizure-list of blood stained earth from the place of occurrence as Exhibit-4 and Inquest Report Exhibit-5. After conducting investigation and recording statements of witnesses under Sec.161 Cr.P.C. he submitted charge-sheet against the accused/appellant leading to the trial and the impugned judgment and order of conviction. 4. It appears from the trend of cross-examination and the submissions advanced before the trial court that appellants plea is that in the firing made by the Barat Party, deceased, Babloo Kumar Chaudhary was accidentally injured and he later succumbed to the injuries and the accused was implicated falsely. 5. The prosecution, in order to prove its case, had examined altogether 7 witnesses out of whom, as noticed RW. 5, Sanjay Kumar Singh is the informant and RW. 6 is the Investigating Officer, SubInspector, Shiv Nandan Prasad. RW. 1, Manoj Chaudhary P.W. 2, Ramdeo Chaudhary P.W. 3, Kaushal Kishore Chaudhary and P.W. 4, Upendra Chaudhary have claimed to be eye witnesses of the alleged occurrence and out of them name of only P.W. 2, .Ramdeo Chaudhary is not specifically mentioned in the Fardbeyan. P.W. 7, Purushottam Kumar Sinha conducted the autopsy on the dead body of the deceased and has proved the post mortem report as Exhibit-6. 6. Learned counsel for the appellant took the court through the evidence of all the witnesses and first tried to make out a case of false implication of the appellant on account of differences between the parties but on close scrutiny of evidence of the alleged eye witnesses as well as that of the informant who is himself an eye witness of the alleged occurrence it became clear that there was no good reason for falsely implicating the accused/appellant for the killing of the deceased and no material worth consideration on the point of previous enmity could be brought on record. No doubt some minor discrepancy as to whether the firing was still being done when the Barat had arrived near the Darwaja of Chandradeo Pd. No doubt some minor discrepancy as to whether the firing was still being done when the Barat had arrived near the Darwaja of Chandradeo Pd. Chaudhary has been pointed out between the evidence of some witnesses and the Fardbeyan but such contradiction does not appear to be material at all because there may be a lull before the firing made by way of celebration when the Barat actually reached near the house of the girl and it will depend upon the power of observation and perception of individual witnesses and how much attention they could pay to the time and distance when the Barat reached and firing took place. It appears on close scrutiny of evidence of eye witnesses including the informant, that firing by way of celebration which is usual in some parts of the State when the marriage procession is taken out and is about to reach at the Darwaja of girl side had taken place on the night of the occurrence also and there is nothing in the cross-examination of the eye witnesses to discredit their claim that a shot from the gun held in the hands of the appellant caused fatal injury on the back of the deceased at the time when Barat procession had virtually reached the Darwaja of girl side. 7. The evidence of the Investigating Officer, P.W. 6 and the various exhibits such as seizure list, inquest report support the prosecution case in respect of place of occurrence. The evidence of the doctor (P.W. 7) discloses that the deceased had sustained two injuries one being the wound of entry on the right side of back 1 1/2" lateral to mid line and 2" below inferior angale of scapula with blackening of margin and the other injury was of minor nature, two small lacerated wounds size 1/6" round muscle deep over right side of back adjacent to injury no.1. On dissection the doctor found right lung lacerated at multiple site communicating with injury no.1. Multiple pilletes about 11 in number as well as Khokha cap (wad) was removed from the right lung, preserved and handed over to the police. According to the doctor all the injuries were ante mortem in nature and caused by firearm. The cause of death in the opinion of the doctor was due to haemorrhage and shock due to abovementioned injuries caused by firearm. According to the doctor all the injuries were ante mortem in nature and caused by firearm. The cause of death in the opinion of the doctor was due to haemorrhage and shock due to abovementioned injuries caused by firearm. The post mortem was conducted on 25-2-99 at 3.40 P.M. and according to doctor death had taken place within 24 hours of the post mortem examination. 8. On a careful consideration of the aforesaid facts and materials there is no difficulty in confirming the finding of the trial court that prosecution has succeeded in proving that on account of firing from the gun held by the appellant the deceased sustained firearm injury which caused his death. 9. The next submission of learned counsel for the appellant deserves careful consideration beccause according to him in spite of aforesaid finding the appellant should not be held guilty of charge under sec. 302 of the I.P.C. because the prosecution case as disclosed in the Fardbeyan and as unfolded by the witnesses in court would show that there was no intention on the part of the appellant in causing firearm injury to the deceased. According to learned counsel for the appellant the prosecution has alleged a motive of dispute over cutting of grass in a field about a fortnight earlier to the occurrence but the allegations are general and vague to the effect that this was on account of enmity between the two families but no particular incident to show enmity between the appellant and the deceased has been proved by any witness and none of the P.Ws. have claimed to have seen any exchange of abuses or altercation between the deceased and this appellant. On the basis of deposition of witnesses it was highlighted that there is clear prosecution case beginning from the statement in the Fardbeyan to the deposition of informant that there was firing in course of movement of the Barat procession. In the Fardbeyan it is mentioned that firing was being made by both the sides when the Barati reached at the Darwaja of the girl side. 10. On the basis of aforesaid facts and particularly the entire circumstances it was submitted that no witness has claimed to have seen the appellant taking aim and firing at the deceased. In the Fardbeyan it is mentioned that firing was being made by both the sides when the Barati reached at the Darwaja of the girl side. 10. On the basis of aforesaid facts and particularly the entire circumstances it was submitted that no witness has claimed to have seen the appellant taking aim and firing at the deceased. In that view of the matter it has been submitted that the circumstances and the evidence would show that firing at the hands of the appellant leading to injury on the back of the deceased was without any intention and hence at best only knowledge that such act of firing may cause grievous injury can be attributed to the appellant. On that basis it has been submitted that only an offence under sec. 304 Part II of the I.P.C. would be made out against the appellant and not offence under sec. 302 of the I.P.C. 11. Learned counsel for the appellant has placed reliance upon a judgment of the Apex Court in the case of Shankar Narayan Bhadilkar vs. The State of Maharashtra reported in 2004(2) Cri. Law Journal 1778 to submit that in somewhat similar circumstances where the prosecution had proved that accused picked up gun, unlocked it, loaded it with cartridges and aiming at the accused fired the gun from a close range of 4-5 ft., court held that the accused was liable to be convicted under sec. 304 Part II of the I.P.C. in view of the defence that on the date of occurrence he had invited 30-40 persons to attend the dinner party and the deceased being one of them was requested by the accused to come on the next day because the deceased was heavily drunk and the accused wanted him to return but his pleas were not paid any heed. Further defence was that to scare the deceased the appellant picked up a gun lying there and loaded the same with blank cartridges believing that it would only terrorise the deceased but when the firing took place-accidentally on account of snatching of the gun by the deceased, the firing caused injuries on the chest of the deceased that led to his death. Learned counsel for the appellant has submitted that in the present case the evidence of the witnesses and the entire circumstances indicate that the gun fire could be accidental and the purpose of firing was only to participate in the celebration of marriage. 12. On careful consideration of the entire facts and circumstances we are persuaded by the aforesaid judgment of the Apex Court to hold that in the facts of the case appellant would be liable to be convicted under Sec.304 Part II and not under sec. 302 of the I.P.C. Accordingly, the impugned judgment and order of conviction of the appellant under section 302 I.P.C. is modified. The conviction of the appellant under sec. 302 I.P.C. shall stand set aside and in that place he is being convicted under sec. 304 Part II of the I.P.C. We find no good reason to interfere with the findings against the appellant under sec. 27 of the Arms Act. 13. On the issue of sentence learned counsel for the appellant has submitted on the basis of records that appellant has remained in custody throughout since 23.4.1999 and has therefore completed about 7 years under custody. According to learned counsel for the appellant the period already undergone by the appellant shall meet the ends of justice. On the other hand, learned counsel for the State has submitted that the act of the appellant has led to loss of valuable life of a young man aged about 30 years and therefore the appellant should be awarded at least ten years rigorous imprisonment which may act as a deterrent punishment to check the unhealthy practice prevailing in some part of the State which encourages persons like the appellant to carry guns during marriage ceremony and fire in reckless manner knowing that it may be dangerous for human life. 14. Considering the aforesaid submissions and considering the fact that appellant is a young man aged about 21-22 years we think that the ends of justice would be satisfied if the appellant is sentenced to the period of imprisonment already undergone by him. Hence the sentence awarded to the appellant is also modified accordingly and he is directed to be released forthwith if not wanted in any other case. 15. The appeal is dismissed with the aforesaid modification in conviction and sentence of the appellant.