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2016 DIGILAW 329 (JHR)

Sushil Sardar v. State of Jharkhand

2016-02-11

D.N.UPADHYAY, RATNAKER BHENGRA

body2016
JUDGMENT : Heard the parties. 2. This criminal appeal has been directed against the judgment of conviction and order of sentence dated 24-5-2006 and 25-5-2006 respectively, passed by the Additional .Sessions Judge, FTC No. IX, Jamshedpur in Sessions Trial No. 90 of 2005 corresponding to G.R. No. 926/2004 arising out of Potka PS. Case No. 38/2004 whereby the appellant has been held guilty for the offence punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act and sentenced to undergo R.I. for life under Section 302 of the Indian Penal Code. No separate sentence has been awarded under Section 27 of the Arms Act. 3. The facts emerging from the fardbayan of Kamal Lochan (P.W.4) recorded on 9-6-2004 at 21:00 hrs. at P.H.C. Potka within the district of Singhbhum East is that the informant along with his companion labourers was returning home on their respective bicycles. When they reached near Dabangi Bridge, one of the cyclists caused dash to another bicycle driven by person coming from Kalikapur side i.e. from opposite direction and due to dash caused some altercation took place between them. After a while the cyclist who had caused dash proceeded ahead but the person on whose bicycle dash was caused, remained there and he was abusing. The informant and his companion told since the person who caused dash had already gone away, the matter has come to an end but he became furious and started abusing informant and his companion. To avoid further litigation, the informant with his co-labourers proceeded towards their destination but they were being followed by that unknown person. The informant and Krishna Dhal (deceased) stopped their bicycle near the shop of Sheetal Mandal situated nearest to their village. By that time that unknown person also reached to the place and again started abusing them. When the informant raised objection he took out a pistol from his pocket and pointing towards the informant said - "you do not know me, I am bodyguard of supervisor Nandu and my name is Sushil". Thereafter Krishna Dhal told him "why you are abusing us in our village?". No sooner it was uttered, said person who had disclosed his identity as that of Sushil opened fire causing injury to Krishna Dhal on his chest and fled away. Thereafter Krishna Dhal told him "why you are abusing us in our village?". No sooner it was uttered, said person who had disclosed his identity as that of Sushil opened fire causing injury to Krishna Dhal on his chest and fled away. Krishna Dhal was removed to Potka Hospital and thereafter he was shifted to M.G.M. Hospital and again referred to Tata Main Hospital, Jamshedpur. On the basis of fardbayan of Kamal Lochan (P.W.4) recorded at Potka PHC, Jamshedpur, Potka P.S. Case No. 38/2004, dated 9-6-2004 under Section 307 of the Indian Penal Code and Section 27 of the Arms Act against the appellant Sushil Sardar was registered. In course of treatment Krishna Dhal succumbed to his injuries and thereafter Section 302 of the Indian Penal Code vide order dated 11-6-2004 was added. 4. The appellant Sushil Sardar surrendered and the police after due investigation submitted charge-sheet. Accordingly, cognizance was taken and case was committed to the Court of Session and registered as S.T. No. 90/2005. Charges under Section 302 of the Indian Penal Code and Section 27 of the Arms Act against the appellant were framed to which he pleaded not guilty and claimed to be tried. The prosecution in order to substantiate charges examined altogether eleven witnesses and proved documents like postmortem report, inquest report, seizure list etc. The learned Additional Sessions Judge, F.T.C. No. IX, Jamshedpur at the conclusion of trial placing reliance on the evidence and documents available on record held the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act and sentenced him as indicated above. 5. The appellant has assailed the impugned judgment and sentence mainly on the ground that the informant has not supported the prosecution case wholeheartedly and he did not claim to identify the appellant in Court. The appellant and deceased were not known to each other and there was no motive behind the murder. The story brought by the prosecution on record if admitted to be correct, no offence under Section 302 of the Indian Penal Code is made out because the appellant was not having intention to commit murder. Admittedly altercation took place on a petty cause of dashing the bicycle. Exchange of hot words had taken place between the person who caused dash and the appellant. Admittedly altercation took place on a petty cause of dashing the bicycle. Exchange of hot words had taken place between the person who caused dash and the appellant. The informant, the deceased and their companion labourers were intending to make the appellant convince but the appellant was in a drunken state and he started abusing the informant and companion labourers. When they left the place to avoid further litigation, they were chased by the appellant up to the shop of Sheetal situated near village of the informant. Again the appellant hurled abuses which was objected by the informant and Krishna Dhal (deceased). At this stage the appellant took out the pistol and opened fire. The facts and circumstances brought by the prosecution on record do not constitute offence punishable under Section 302 of the Indian Penal Code. The appellant was in a drunken state and to show his power, intending to teach a lesson to the informant and his companion, he opened fire and lied away. The judgment of conviction and sentence recorded under Section 302 of the Indian Penal Code may be altered to one under Section 304 Part-I of the Indian Penal Code and for that offence the appellant has practically served out the sentence by remaining in jail for more than 11 years. 6. Learned APP has opposed the arguments and submitted that the occurrence did not take place at spur of moment. When the bicycle of the appellant was dashed by another cyclist near Dabangi Bridge, is the first place of occurrence, exchange of hot words had taken place between the appellant and the cyclist who caused dash and the matter had come to an end when that cyclist proceeded ahead. Thereafter, the appellant started abusing the informant and co-labourers. They had also left the place to avoid litigation but they were being followed by the appellant. Again he had started hurling abuses which was objected by informant and Krishna Dhal, where after the appellant took out pistol and opened fire on the chest of Krishna Dhal and the fire arm injury so caused proved fatal. The occurrence would not come within any of the exception of Section 300 of the Indian Penal Code. It is submitted that evidence of P.Ws. 4, 5, 9 and 10 are relevant, P.Ws. 7 and 8 are hearsay witnesses and they have deposed what was heard by them. P.Ws. The occurrence would not come within any of the exception of Section 300 of the Indian Penal Code. It is submitted that evidence of P.Ws. 4, 5, 9 and 10 are relevant, P.Ws. 7 and 8 are hearsay witnesses and they have deposed what was heard by them. P.Ws. 1 and 11 are the investigating officers and they have supported prosecution case and described the investigation done by them. It is submitted that appellant has rightly been held guilty and the judgment of conviction and sentence needs no interference. 7. We have carefully examined the case record, perused the evidence and documents and gone through the impugned judgment of conviction and sentence. The informant Kamal Lochan (P.W.4) has supported the entire prosecution case as narrated by him in his fardbayan. Only on the point of identification of the assailant he has changed his version and has said that he could not identify the appellant as it was dark. He has clearly stated in para 3 of his deposition that said unknown person followed them up to the shop of Sheetal and again started abusing them. When Krishna Dhal raised objection, said person took out a pistol and pointing towards informant, threatened him The informant with folded hands begged pardon but again Krishna Dhal intervened and uttered why he has been abusing them even after reaching to their village. No sooner Krishna Dhal uttered the sentence, said unknown person opened fire causing injury to Krishna Dhal. The informant has concealed in his examination-in-chief only that sentence in which the appellant had told - "you do not know me, I am bodyguard of supervisor Nandu and my name is Sushil". At this juncture learned APP conducting case in the Trial Court sought permission to cross-examine the informant and it was accordingly allowed. In course of cross-examination done by the APP, the informant in para 8 has admitted that the person who fired has said "Shala Mujhe Pahchante Nahin Ho, Main Hansda Gonda Ke Int Bhatta Malik Khudi Patro Ke Munshi Nandi Patro Ka Body Guard Sushil Hoon." The informant admits that this facts was brought by him in his fardbayan. Thus, it is clear that for the reasons best known to informant, he did not identify the appellant in Court. 8. Now we have to consider whether identity of the appellant as an offender has been established by the prosecution or not? Thus, it is clear that for the reasons best known to informant, he did not identify the appellant in Court. 8. Now we have to consider whether identity of the appellant as an offender has been established by the prosecution or not? P.W.5-Polta Puran has stated that Sushil is known to him and he is bodyguard of Nandu. He has clearly stated, when Krishna Dhal raised objection against hurling of abuses, the appellant took out pistol and opened fire causing gun shot injury to Krishna Dhal on his chest. Therefore, identity of appellant as offender has been proved by the P.W.5, Not only that, Officer Sardar (P.W.9) and Sustan Sardar (P.W.10) are the persons from whom the appellant had taken lift while they were returning from Kalikapur Bazar. They have stated when they were returning from the market, Sushil Sardar (appellant) met with them and requested to give him lift up to brick-kiln. Thereafter Officer Sardar sat on the career of the bicycle and appellant started driving it. After covering some distance, some altercation took place between the appellant and the persons coming on their bicycles from opposite direction. The informant and Krishna Dhal were also amongst them. After the altercation, Sushil followed Krishna Dhal and his companion. On the next day they heard that Sushil Sardar had killed Krishna Dhal. Therefore, evidence of P.Ws.9 and 10 are very important. The appellant was known to them and he had taken lift from them and the first incident took place near Dabangi Bridge. Thereafter, P.Ws. 9 and 10 leaving Sushil Sardar at the place of altercation, proceeded to their destination. They have stated that Sushil Sardar followed Krishna Dhal and his companion. 9. In view of the evidence of P.Ws.5, 9 and 10, the identity of appellant as offender has well been proved. If we summarise the evidence of P.Ws.4, 5, 9 and 10, the story which comes up is that the appellant had abused the cyclist who caused dash to his bicycle near Dabangi Bridge. 9. In view of the evidence of P.Ws.5, 9 and 10, the identity of appellant as offender has well been proved. If we summarise the evidence of P.Ws.4, 5, 9 and 10, the story which comes up is that the appellant had abused the cyclist who caused dash to his bicycle near Dabangi Bridge. When said cyclist left the place, the appellant followed informant Krishna Dhal from the first place of altercation, when the informant and Krishna Dhal stopped their bicycle near shop of Sheetal, the appellant reached there and again started abusing them, when the informant and Krishna Dhal raised objection against abusing, the appellant took out pistol and after disclosing his identity, opened fire causing gun shot injury to Krishna Dhal resulting in his death. We do not agree with the submission that offence committed by the appellant comes within purview of Exception-I of Section 300 of the Indian Penal Code and the appellant is liable to be punished under Section 304 of Part-I of the Indian Penal Code. The occurrence did not take place at spur of moment at first place of occurrence rather the appellant chased the deceased and the informant up to the shop of Sheetal and to show his supremacy and power, opened fire aiming at chest of the informant. Due to gun shot injury Krishna Dhal died. The intention could be gathered from the weapon used and the part of the body aimed at for causing injury. Here in the case at hand, the weapon used is fire arm and injury was caused on chest of the deceased. No provocation was ever made either by the informant or by the deceased. As a matter of fact they were trying to pacify the issue but the appellant was violent to commit the offence. We do not agree to alter the sentence from Section 302 of the Indian Penal Code to Section 304 Part-I of the Indian Penal Code. 10. In the result, the impugned judgment of conviction and order of sentence dated 24-5-2006 and 25-5-2006 respectively, passed by the Additional Sessions Judge, F.T.C. No. IX, Jamshedpur in Sessions Trial No. 90 of 2005 is hereby upheld. In the result this appeal stands dismissed. Appeal dismissed.