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2018 DIGILAW 126 (JHR)

Rahul Deo Pandey v. State of Jharkhand

2018-01-16

PRAMATH PATNAIK, RONGON MUKHOPADHYAY

body2018
JUDGMENT : RONGON MUKHOPADHYAY, J. 1. Flowering marital bliss of a bride was nipped in the bud on the date of her marriage on account of a dastardly act of murder committed by the assailant. Whether the appellant was the perpetrator of the crime or not or whether the learned trial court was justified in convicting the appellant u/s. 302 I.P.C. is the question which we seek to answer in the present appeal. The appellant has preferred this appeal against the judgment dated 19.7.2012 passed by the learned 3rd Additional Sessions Judge, Hazaribagh in connection with S.T. No. 440 of 2005 by which the appellant has been convicted for the offence u/s. 302 I.P.C. and was sentenced to R.I. for life and a line of Rs. 10,000/- (ten thousand). 2. The allegation made in the F.I.R. reveals that on 29.4.2005, the marriage ceremony of the daughter of the informant was to be solemnized with Awadhesh Kumar Pandey. During the course of marriage ceremony when some rituals were going on in the morning on 30.4.2005 at 3 a.m., the informant heard the sound of a gunshot. The informant rushed inside the house along with his family members and villagers and found that the appellant was fleeing away from inside the room of Bina Kumari (deceased). He was chased and apprehended and on search a loaded country made pistol was recovered from the left side of his waist. When the informant and his family members entered into the room of Bina Kumari she was found lying dead and there was gunshot injury on her head. Plenty of blood and brain matters were spread on the floor and other places. The informant alleges that the appellant often visited his house and was a man of suspicious character. The allegation noted above led to institution of Chouparan P.S. Case No. 68 of 2005 u/s. 302 of the Indian Penal Code (I.P.C.) and Section 27 of the Arms Act. Investigation culminated in submission of charge-sheet under the said sections and on 22.9.2005 the case was committed to the Court of Sessions. Thereafter charge was framed u/s. 302 I.P.C. and 27 of the Arms Act and trial proceeded. 3. In course of trial 10 witnesses were examined on behalf of the prosecution. 4. Investigation culminated in submission of charge-sheet under the said sections and on 22.9.2005 the case was committed to the Court of Sessions. Thereafter charge was framed u/s. 302 I.P.C. and 27 of the Arms Act and trial proceeded. 3. In course of trial 10 witnesses were examined on behalf of the prosecution. 4. P.W. 1, Sumit Kumar Pandey, is the brother of the deceased who had stated that it was 3 to 3.15 a.m. in the night of 29.4.2005 when shot was fired in the room where the deceased was sleeping. He has stated that hearing gunshot, the informant, this witness, Ashok Kumar Pandey, Amit Pandey and others had rushed to the said room and they had seen the appellant coming out. The appellant was apprehended and thereafter all the persons went inside the room where the deceased was found dead lying on a cot and blood was coming out from her head. It was stated that the appellant was searched and from his left pocket one country made pistol and two cartridges were recovered of which one was a live cartridge. He further submitted that the police was informed who came and arrested the appellant. In cross-examination this witness had stated that if anyone would have entered the room of the deceased, he would have been seen. He had stated that no one had seen the appellant entering into the room of his sister. This witness has further stated that although he heard the sound of firing but did not hear any cry of alarm from the deceased. He has also stated that the uncle of the appellant is related to him. P.W. 2 Deo Nandan Pandey had deposed that marriage ceremony of his granddaughter (deceased) was to be solemnized on 29.4.2005 when all of a sudden he heard the noise of fire from the room of the deceased. He has stated that when he along with others ran towards the room they saw the appellant coming out and he was apprehended. One country-made pistol was recovered from his possession. When this witness had gone inside the room he had seen Bina Kumari dead. The witness has stated that the appellant was of suspicious character. He has further deposed that the inquest report was prepared in his presence. In cross-examination he has stated that he had not seen the appellant entering into the room of the deceased. When this witness had gone inside the room he had seen Bina Kumari dead. The witness has stated that the appellant was of suspicious character. He has further deposed that the inquest report was prepared in his presence. In cross-examination he has stated that he had not seen the appellant entering into the room of the deceased. He has further disclosed that several persons had reached the room on hearing the gun shot prior to arrival of this witness. P.W. 3 Ashok Pandey has stated that on 29.4.2005, the Barat for solemnization of the marriage of his niece had come. He has stated that rituals were going on when all of a sudden he had heard sound of firing from the room of the deceased. When several persons reached near the place of occurrence they had seen the appellant fleeing away who was apprehended. This witness has deposed that on reaching the room of Bina Kumari he had found her dead. He has stated that the appellant used to regularly come to the house and that he did not want solemnization of marriage of Bina Kumari which resulted in commission of the murder. In cross-examination this witness had stated that several witnesses had assembled on hearing the sound of firing and he was the first who had apprehended the appellant. P.W. 4 Suresh Pandey is the informant and the unfortunate father of the deceased. He has disclosed that the marriage of his daughter was fixed with Awadhesh Kumar son of Basudeo Pandey. The Barat had reached at about 8 p.m. on 29.4.2005 and when the marriage rituals were being done, they heard the sound of firing which led to a chaotic situation. He had seen the appellant fleeing from the room of the deceased upon which he was apprehended. When this witness entered in the room of his daughter he found her dead. The appellant was searched and a loaded country made pistol was recovered. This witness proved his signature on fardbeyan, which has been marked as Ext.-1. In cross-examination he has stated that no one had seen the appellant entering into the room of Bina Kumari. He never felt anything suspicious about the appellant. P.W. 5 - Shashidhar Pandey, has deposed that while the rituals were being carried out he heard the sound of firing. In cross-examination he has stated that no one had seen the appellant entering into the room of Bina Kumari. He never felt anything suspicious about the appellant. P.W. 5 - Shashidhar Pandey, has deposed that while the rituals were being carried out he heard the sound of firing. This witness claims to have caught the appellant when he was trying to flee away. He has stated that one country made pistol was recovered from the possession of the appellant. He has further stated that the police had come and prepared the inquest report which was also signed by his uncle Deo Nandan Pandey. This witness had also signed on the inquest report. In cross-examination he has stated that he never heard the sound of firing before the said occurrence. He has stated that Ashok Pandey had raised alarm about the sound of gunshot coming from the room of Bina Kumari. P.W. 6 - Uma Devi is the mother of the deceased who has supported the prosecution case to the extent that after hearing sound of firing from the room of the deceased people had rushed and the appellant was seen fleeing away at which he was caught and a revolver was recovered from his possession. In cross-examination she has stated that she had not seen the appellant entering into the room. She further disclosed that on the date of occurrence the appellant was present throughout. P.W. 7 - Amit Kumar Pandey is the brother of the deceased who has supported the prosecution case and has stated about apprehending the appellant and the death of his sister occurred due to a firearm injury. In cross-examination he has stated that the appellant was with him from evening and he was not having the revolver then. There was no suspicious movement on the part of the appellant. He has further stated that the appellant was frequently going to the room of the deceased and in fact this was seen by everyone. He had deposed that Bina had never made any complaint against the appellant. He has further stated that he had seen the appellant going inside the room of the deceased 5-7 minutes before the sound of firing was heard. P.W. 8 - Ajit Pandey had also supported the prosecution case regarding apprehension of the appellant with a firearm and the death caused to Bina Kumari. He has further stated that he had seen the appellant going inside the room of the deceased 5-7 minutes before the sound of firing was heard. P.W. 8 - Ajit Pandey had also supported the prosecution case regarding apprehension of the appellant with a firearm and the death caused to Bina Kumari. P.W. 9 - Navin Kumar Sinha was invited as a guest to the house of Bina Kumari and he was present when the sound of firing was heard. He had not seen the appellant entering into the room of Bina Kumari. P.W. 10 - Saiyad Noor Mohammad was posted as Civil Assistant Surgeon, Sadar Hospital, Hazaribagh who had conducted autopsy on the dead body of the deceased and had found the following ante mortem injury:-- "(i) External Examination and ante mortem injuries: Left eye open. Right eye damaged. Mouth half open. Rigor Mortis present in both upper and lower limbs. Wound of entry on forehead left side near middle just above eyebrow. Margin inverted 1/4" X a/4" X Brain deep. Blackening of the surrounding area of the wound with tato mark. Wound of exit right side of the skull. Brain matter out 5" X 4" X Margin everted. (ii) On dissection:-- Both lungs intact and pale. Heart both chambers-Empty. Liver, spleen and kidney-Intact and pale. Stomach contained mucoid fluid 3 ounce. Stomach was normal. Time elapsed since death is 6 to 36 hours. Cause of death has been assigned by the doctor as shock and haemorrhage due to firearm injury." Post mortem report was identified by this witness which has been marked as Ext.-3. One Court Witness was also examined being one of the Investigating Officers, Gajanan Singh who was examined as C.W. 2. This witness has stated that on hearing a rumour that someone has killed a lady, he had made station diary entry and proceeded towards the place of occurrence. He has further stated that he had recorded the statement and had also prepared the inquest report which bears his signature which was identified by him and was marked as Ext.-2/2. This witness has given a description of the place of occurrence. On 13.7.2005 he had handed over the formal charge of the investigation to one Shri U.S. Pandey. 5. The defence in support of its case had examined one witness D.W. 1-Dr. Kishori Pd. This witness has given a description of the place of occurrence. On 13.7.2005 he had handed over the formal charge of the investigation to one Shri U.S. Pandey. 5. The defence in support of its case had examined one witness D.W. 1-Dr. Kishori Pd. Singh, who was posted at Chouparan Primary Health Centre, Hazaribagh as Medical Officer-cum-Civil Assistant Surgeon and on 30.4.2005 he had treated the appellant. Photocopy of the injury report was marked as Ext.-X for identification and this witness had also proved some registers. 6. Since the prosecution has been able to prove its case beyond all reasonable doubt, the learned trial court vide judgment dated 19.7.2012 convicted the appellant for the offence u/s. 302 I.P.C. and sentenced him to R.I. for life as also to pay a fine of Rs. 10,000/-. 7. Heard Mr. B.M. Tripathi, learned senior counsel for the appellant assisted by Mr. Yogesh Modi, learned counsel and Mr. Sanjay Kumar Pandey No. 2, learned APP for the State. 8. Assailing the impugned judgment of conviction and sentence, Mr. B.M. Tripathi had submitted that there is no direct evidence or any eyewitness to the occurrence and the entire conviction is based on circumstantial evidence. It has been stated that the conviction of the appellant under the provisions of the Arms Act in a separate trial can in no way justify the conviction of the appellant u/s. 302 I.P.C. It has been stated that there are loopholes and lacuna in the prosecution case which has proved fatal to the prosecution. Learned senior counsel submits that the incident as depicted seems to have happened in a flash as the prosecution has made out a case that on hearing the shot of gun fire people rushed to the room of the deceased Bina Kumari where they saw the appellant fleeing away who was apprehended and a firearm was recovered from his possession, which story seems to be absolutely improbable. It has been stated that the weapon in question was not examined by the ballistic expert to suggest as to whether the same was in a workable condition or not. Submission has been advanced that there is no ballistic report which has been brought on record by the prosecution. It has been stated that the empty cartridge which was recovered was not tallied with the firearm which was found in possession of the appellant. Submission has been advanced that there is no ballistic report which has been brought on record by the prosecution. It has been stated that the empty cartridge which was recovered was not tallied with the firearm which was found in possession of the appellant. Learned senior counsel submits that nothing has been brought forward by the prosecution to show that there was any traces of carbon which must have been present if at all the appellant had used the firearm since it is the case of the prosecution that the appellant was apprehended immediately on the incident having happened. It has further been submitted that the prosecution has miserably failed to conclusively prove that the firearm recovered from the possession of the appellant was in fact the crime weapon used in the murder. Learned senior counsel has referred to Ext.-A which is the injury report by stating that the appellant was treated by the Doctor at 5 a.m. in the presence of his father which creates serious doubt on the prosecution case as it is the case of the prosecution that the appellant was apprehended by the villagers and family members of the deceased and was handed over to the police after 6.15 a.m. Reference has also been made to Ext.-X which has been proved by D.W. 1 to suggest that the appellant was admitted in the Hospital. Learned senior counsel by referring to the injury report of the appellant has tried to convince this court regarding the serious infirmities in the prosecution case. It has been highlighted that sufficient explanation has been given by the appellant in the statement recorded u/s. 313 Cr.P.C. to the effect that while preparing the Pandai he received electric shock which led to charring of a portion of his finger. Learned senior counsel adds while referring to the statement of the Investigating Officer (C.W. 2) that the appellant was handed over by the Doctor which has been contradicted by the evidence of the prosecution witnesses who have stated about the appellant being arrested from their possession after the police had come. It has been submitted that the arrest memo has not been brought on record and the same would have cleared the picture regarding arrest of the appellant but absence of the same has shrouded in mystery that from where the appellant was actually apprehended. It has been submitted that the arrest memo has not been brought on record and the same would have cleared the picture regarding arrest of the appellant but absence of the same has shrouded in mystery that from where the appellant was actually apprehended. It has been stated that whether the villagers or the family members or the Doctor had handed over the appellant to the Investigating Officer is not clear. Learned senior counsel has also submitted that due weightage has also to be given to the defence witness as is given to the prosecution witnesses, but the learned trial court had brushed aside the evidence of D.W. 1. It has been stated that preponderance of probabilities has to be drawn from the defence witness which is lacking in the trial court judgment. Mr. Tripathi concludes his arguments by stating that in view of the discrepancies and infirmities which has appeared to the fore in view of the statement of the witnesses of the prosecution as also of the defence, the benefit of doubt is attributable to the appellant. 9. Mr. Sanjay Kumar Pandey No. 2, learned APP on the other hand has stated about consistency of evidence from the side of the prosecution to the effect that all the witnesses have stated in unison about the appellant fleeing away from the room of Bina Kumari immediately after the sound of gunshot was heard and from his possession a country made pistol was recovered. It has been stated that prosecution has been able to complete the chain of circumstances which points to the guilt of the appellant and the appellant has not been able to explain regarding possession of a firearm. Learned State Counsel in support of his contention has referred to a judgment in the case of Bhagwan Jagannath Markad & Ors. vs. State of Maharashtra reported in 2017 (2) JLJR (SC) 153. 10. We have given our anxious consideration to the arguments advanced by the respective sides and have also perused the Lower Court Records. The evidence of the prosecution witnesses reveals that the marriage ceremony of the daughter of the informant (P.W. 4) was in progress and at the time of some rituals being carried out, sound of firing was heard from the room of the appellant. The evidence of the prosecution witnesses reveals that the marriage ceremony of the daughter of the informant (P.W. 4) was in progress and at the time of some rituals being carried out, sound of firing was heard from the room of the appellant. Several persons including family members of the deceased as well as villagers and the invitees had rushed to the room of the deceased where they had seen the appellant fleeing away. Immediately the appellant was pounced upon and on his apprehension, a country made pistol was recovered from his possession. After such apprehension the people who had gathered went to the room of Bina Kumari where she was seen lying dead in a cot with a gunshot injury on her head and there were blood and brain matters sprayed all over the place. Admittedly there is not a single eyewitness to the actual incident. Whether the appellant was the perpetrator of the crime or not has therefore to be gathered from the circumstantial evidence so collected. In this context it would be apposite to refer to the judgment passed by the learned trial court in connection with Chouparan P.S. Case No. 69 of 2005. The appellant was in the said case convicted by the learned Sub-Divisional Judicial Magistrate, Hazaribagh on 5.1.2009 for the offence u/ss. 25(1-b)A and 26 of the Arms Act. The said judgment has been exhibited as Ext.-5. Perusal of the judgment under reference reveals that the report of the Sergeant Major was brought on record being Ext.-6 and it was opined that the firearm was in a working condition. The said report also has revealed that one live cartridge of .315 bore was found apart from empty cartridge of .315 bore. C.W. 2 has admitted in Para-22 of his evidence that he had not seized any articles in the present case but has seized an empty cartridge which was the subject matter of Chouparan P.S. Case, No. 69 of 2005. Since the judgment passed in Chouparan P.S. Case No. 69 of 2005 has been exhibited, we have thoroughly gone through the said judgment and if the report of the Sergeant Major is taken into consideration a strong circumstance emerges with respect to the use of the firearm by the appellant. Since the judgment passed in Chouparan P.S. Case No. 69 of 2005 has been exhibited, we have thoroughly gone through the said judgment and if the report of the Sergeant Major is taken into consideration a strong circumstance emerges with respect to the use of the firearm by the appellant. The factual matrix, as has been stated above has revealed the recovery of a firearm from the possession of the appellant which in terms of the report of the Sergeant Major marked as Ext.-6 in connection with Chouparan P.S. Case No. 69 of 2005 creates a suspicion beyond redemption about the appellant being the assailant in the ghastly murder of the deceased. There appears to be some discrepancies in the injury report of the appellant as well as Ext.-X and the statement of C.W. 2. Mr. Tripathi, learned senior counsel for the appellant has submitted that it was the Doctor who had handed over the appellant to the Investigating Officer. However, the Investigating Officer has stated in Para-28 of his evidence that after examination the appellant was handed over to the Investigating Officer. There may be some discrepancies with respect to the timing of the treatment and the arrival of the Investigating Officer at the scene of crime, but the same appears to be a feeble attempt made by the appellant taking the plea of alibi. It would be interesting to note here that in the requisition which has been brought on record by the defence (Ext.-A), the skin of the appellant in the little finger of his left hand was found charred and it was a superficial injury. The superficial burn injury may have been caused after the firing was done, while holding the firearm. Even if it is assumed that what has been explained by the appellant regarding his suffering such injury as true, then also it would be highly improbable for him to have visited the Doctor at 5 a.m. considering that it was a superfluous injury, which did not require a serious medical attention. It is also interesting to note here that in the requisition Ext.-A, the time of examination has been written in bold letters perhaps only with a view to highlight the plea of alibi taken by the defence. 11. It is also interesting to note here that in the requisition Ext.-A, the time of examination has been written in bold letters perhaps only with a view to highlight the plea of alibi taken by the defence. 11. Be that as it may such discrepancies in the timings, as narrated above would be a minor aberration and would not be a major contradiction in the background facts and circumstances of the case. Therefore, the discussions made hereinabove, leads this Court to conclude that there is presence of strong circumstantial evidence which points to the guilt of the appellant. The reason behind the murder committed by the appellant perhaps would never be known. None of witnesses, save and except P.W. 3 has stated about any reason leading to such ghastly act. P.W. 3 had stated that the appellant never wanted the solemnization of marriage of Bina Kumari. The same may be a reason for the appellant for committing such an act, but as stated by us the reasons may never come to light. 11A. As a cumulative result of the discussions made hereinabove, we come to the conclusion that the learned trial court had rightly convicted the appellant for the offence punishable u/s. 302 of the Indian Penal Code and sentenced him accordingly and since we do not find any reason to interfere in the impugned judgment and order of conviction and sentence, this appeal fails and the same is hereby dismissed.