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2012 DIGILAW 1055 (PAT)

Shivnandan Singh v. State Of Bihar

2012-08-01

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT (Per: HONOURABLE MR.JUSTICE SHYAM KISHORE SHARMA) The sole appellant Shivnandan Singh has challenged the judgment of conviction dated 21.04.2005 and order of sentence dated 26.04.2005 passed by Additional Sessions Judge, Fast Track Court No.V, Munger in Sessions Case No.336 of l995 whereby the appellant has been held guilty under Section 302 of the Indian Penal Code and 27 of the Arms Act and has been convicted thereunder and has been sentenced to undergo rigorous imprisonment for life and also to pay fine of Rs.5000/- and in default of payment of fine to undergo rigorous imprisonment for six months under Section 302 of the Indian Penal Code and has further been sentenced to undergo rigorous imprisonment for three years under Section 27 of the Arms Act. Both the sentences were ordered to run concurrently. 2. Fardbeyan (Ext.1) of Mahesh Prasad Singh (P.W.1) was recorded at his house by ASI Barhama Singh on 30th January, 1994 at 3.50 A.M to the effect that on preceding night at about 7-8 P.M. quarrel ensued between Ramsewak Singh (P.W.2) and Shivnandan Singh (the appellant) for Bathan of cattle. Both tried to overpower each other for assaulting and on hearing hulla several villagers assembled there and tried to intervene and pacify. In the meanwhile, the informant and his younger brother Niranjan Singh arrived there and on seeing them, Shivnandan Singh fired from his country made gun which caused injury upon the right chest of Niranjan Singh. The injured was being carried to Hospital for treatment on a cot but as soon as reached at a distance of half kilometer the injured Niranjan Singh succumbed to his injury. The motive of the occurrence as stated in the fardbeyan is that Niranjan Singh used to do the work of Ramsewak Singh and he also used to milk his cattle which was not being liked by Shivnandan Singh and on account of that Niranjan Singh was fired upon and killed. The fardbeyan resulted in a formal F.I.R. of Tarapur P.S.Case No. 13 of 1994. The investigation proceeded and in course of investigation, the inquest report of dead body (Ext.2) was prepared and post mortem report (Ext.3) was also obtained. The statements of the witnesses under Section 161 of the Code of Criminal Procedure was recorded, the place of occurrence was inspected and after completion of investigation, chargesheet was submitted. The investigation proceeded and in course of investigation, the inquest report of dead body (Ext.2) was prepared and post mortem report (Ext.3) was also obtained. The statements of the witnesses under Section 161 of the Code of Criminal Procedure was recorded, the place of occurrence was inspected and after completion of investigation, chargesheet was submitted. Thereafter the case was committed to the court of session where charges under Sections 302 of the Indian Penal Code and 27 of the Arms Act were framed and explained to the accused to which he pleaded innocence. Hence trial proceeded. 3. The defence of the accused was of false implication and also that he had no intention to cause death of Niranjan Singh. 4. In order to substantiate its case the prosecution examined five witnesses. They are : P.W.1 Mahesh Prasad Singh who is informant of the case, P.W.2 Ramsewak Singh, P.W.3 Basuki Singh, P.W.4 Promod Singh and P.W.5 Dr. Anuj Prasad Singh who held autopsy over the dead body of the deceased. 5. The trial court after hearing learned counsel for the parties and after analyzing the evidences on records came to the conclusion that the prosecution has succeeded in proving that on the date of occurrence, the fatal shot given by Shivnandan Singh caused death of Niaranjan Singh and held the appellant guilty under Sections 302 of the Indian Penal Code and 27 of the Arms Act and accordingly order of conviction and sentence was passed, as stated above. 6. This Court is required to reappraise the evidences on record and to see as to whether the judgment passed by the trial court is based upon the evidence or not. 7. First of all, we would like to discuss the evidence of the doctor who is P.W.5 Dr.Arjun Prasad Singh. On 30.01.1994 this witness was posted as Medical Officer at Sadar Hospital, Munger and on that date, he conducted post mortem over the dead body of deceased Niranjan Singh and has found following injury: “ one lacerated oval wound 1”x ½” into abdominal cavity deep on right mid auxiliary line in the nineth enter coastal space. Margin of wound inverted. Margin blackened.” On dissection, the doctor found liver lacerated and perforated through and through. Stomach lacerated and perforated through and through. One bullet found lodged in left side chest wall in mid auxiliary line near tenth rib. Margin of wound inverted. Margin blackened.” On dissection, the doctor found liver lacerated and perforated through and through. Stomach lacerated and perforated through and through. One bullet found lodged in left side chest wall in mid auxiliary line near tenth rib. Abdominal cavity found full of blood and clot. Right chest cavity contained blood and clot. The firing was made from the distance of about 4 feet. The death, in the opinion of the doctor, was due to shock and haemorrhage as a result of aforesaid injury. The time elapsed since death was 12 to 24 hours. Doctor’s evidence has conclusively proved that Niranjan Singh has died on account of bullet injury received by him. Therefore, the prosecution has succeeded in proving the killing of Niranjan Singh by use of fire arm. 8. Once the factum of killing is proved, then the prosecution is required to prove the role of the accused with the offence. 9. P.W.1 Mahesh Prasad Singh is the informant of the case. He has stated in his evidence that on 29.01.1994 at 7-8 P.M. Ramsewak Singh and appellant Shivnandan Singh were quarrelling when the informant Mahesh Prasad Singh and his brother Niranjan Singh arrived and at that moment, Shivnandan Singh fired from his country made gun which caused injury upon the right chest of Niranjan Singh who fell down. Injured Niranjan Singh was being carried for treatment by Ambika Singh son of Borhan Singh, Dinesh Singh son of Sukhadeo Singh, Suresh Singh son of Late Parmeshwar Singh, informant’s brother Basuki Singh (P.W.3) and others but when they reached at the distance of half kilometer from the village injured succumbed to his injury. The dead body was brought back and kept at the door of his house where the Police Officer recorded the fardbeyan of the informant. The informant’s evidence regarding manner of assault has remained intact and detailed cross-examination has not succeeded in creating any doubt with regard to manner of occurrence as detailed by him. 10. P.W.2 Ramsewak Singh has deposed in similar vein and he has stated that while quarrel was going on between him and Shivnandan Singh, Niranjan Singh and others came but he was fired upon by Shivnandan Singh which proved fatal. Niranjan Singh was taking care of the cattle of this witness P.W.2 which was not liked by Shivnandan Singh and so he shot and killed Niranjan Singh. 11. Niranjan Singh was taking care of the cattle of this witness P.W.2 which was not liked by Shivnandan Singh and so he shot and killed Niranjan Singh. 11. Though P.W.3 Basuki Singh is also brother of the deceased but in view of his evidence that his statement was not taken by the police earlier during investigation his evidence is not required to be discussed in detail but simple perusal of his evidence shows that he has supported the version of P.Ws.1 and 2. 12. Learned counsel for the appellant has submitted that there was no knowledge or intention that the conduct of the appellant would lead to killing of Niranjan Singh because appellant was quarrelling with Ram Sewak Singh with whom he might have enmity. Niranjan Singh was not even present when quarrel had started. Thereafter, the informant and his brother Niranjan Singh came and intervened in the matter, then Niranjan was shot at according to evidence. It has further been submitted that in any case a case of culpable homicide can be established. So far under Section 302 of the Indian Penal Code is concerned, the occurrence occurred at 7-8 P.M. and means of identification has not been disclosed. No source of light has been stated by any witness. No blood was found at the place of occurrence and no independent witness has been examined and non-examination of the Investigating Officer has caused prejudice to the defence and the place of occurrence was not established. 13. It has come in evidence that it rained during night. Though Investigating Officer was not examined but his examination would not have succeeded in bringing the blood from the place of occurrence. Therefore, the submission of the appellant that the blood was not found at the place of occurrence is not a ground upon which the credibility of the prosecution can be doubted. The factum of death of Niranjan Singh by use of fire arm is not being challenged. Regarding source of light for identification it can be stated that the villagers are in tune of the system of livelihood since birth as they are passing the life in darkness. Even though there is nothing that supply of electricity was available then it hardly remains available during night. Therefore, the tuning of the villagers amongst themselves even during night does not require any light. Even though there is nothing that supply of electricity was available then it hardly remains available during night. Therefore, the tuning of the villagers amongst themselves even during night does not require any light. Without light the strangers may not be identified during night but the family members and the villagers in absence of light will be identified if they come across. The evidence on record is that Niranjan Singh has come in proximity when the quarrel between Ram Sevak Singh and appellant Shivnandan Singh was going on. The submission made on behalf of the defence that it was difficult to identify the accused during night does not appear to be based on reasoning because the occurrence is of rural area. Had the occurrence taken place in the urban area, this could have been a very good defence but in view of the fact that the place of occurrence is situated in a remote village, the light was not required to identify the appellant and the identification of the accused cannot be doubted. 14. Learned counsel for the appellant has lastly submitted that even if the entire evidence is accepted as true, then it can be said that there was no intention to cause death to Niranjan Singh as the appellant was quarrelling with Ramsewak Singh and when Niranjan Singh intervened he was fired upon suddenly without any pre-meditation or preconception. Therefore, it has been submitted that there was no intention at all to cause death, so the offence will not come under the purview of Section 302 of the Indian Penal Code and at best it will come under Section 304 Part I of the Indian Penal Code. In that view of the matter, it has been submitted that the charge under Section 302 of the Indian Penal Code cannot be said to have been established. There was no intention to cause death to Niranjan Singh rather the intention might have been to cause death to Ram Sewak Singh with whom quarrel was going on. 15. Section 304 of the Indian Penal code does not create separate offence. It is not an offence in itself but only mode of punishment has been changed. Section 304 of the Indian Penal Code provides punishment for culpable homicide not amounting to murder. 15. Section 304 of the Indian Penal code does not create separate offence. It is not an offence in itself but only mode of punishment has been changed. Section 304 of the Indian Penal Code provides punishment for culpable homicide not amounting to murder. If death is caused and the case is covered by any of the 5 Exceptions of Section 300 of the Indian Penal Code when there was no intention to kill a person and where there was only knowledge that death will be likely to be caused then the offence would come under the category of “culpable homicide not amounting to murder”. Section 304 draws a distinction for the penalty in cases covered by one of the 5 Exceptions when there was intention to kill a person and where there was only knowledge that the death will be likely to be caused but it has to be established that the death was caused by the accused under any of the circumstance mentioned in 5 Exceptions of Section 300 of the Indian Penal Code. 16. The above proposition of law is not being challenged by the learned counsel appearing for the State and he submits that punishment under Section 302 of the Indian Penal Code would be harsh. 17. After analyzing the evidences on record and considering the submissions, we are of the view that the order of conviction and sentence needs slight modification. The appellant is in custody for more than seven years during appeal and prior to that also he has remained in custody for a considerable period. 18. Considering all the above, the conviction of the appellant under Section 302 of the Indian Penal Code is modified to under Section 304 Part I of the Indian Penal Code and his sentence is reduced to the period already undergone by him in custody during trial and appeal which shall be deemed to be sufficient for the ends of justice. 19. In the result, this appeal is dismissed with the above modification in conviction and sentence. The appellant, who is in custody, is ordered to be released forthwith if not wanted in any other case.