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2018 DIGILAW 174 (JHR)

Arun Kumar Singh v. State Of Jharkhand

2018-01-18

ANIL KUMAR CHOUDHARY

body2018
ORDER Anil Kumar Choudhary, J. - Both these criminal applications arise out of the same judgment and as such they are being disposed of together by this common judgment. 2. Both these appeals have been filed by the appellants being aggrieved by the Judgment of conviction dated 23.12.2005 and Order of Sentence dated 03.01.2006 passed by the 2nd Additional Sessions Judge, Jamshedpur in Sessions Trial No. 226/125 of 2004-2005 whereby and whereunder both the appellants namely Arun Kumar Singh @ Vicky and Arun Kumar Das have been found guilty for the offence punishable under Section 25 (1-B) (a) of the Arms Act and sentenced to undergo rigorous imprisonment for 3 years. By the said judgment and order of sentence the appellant Arun Kumar Singh @ Vicky was also convicted for the offence punishable under section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years and the appellant Arun Kumar Singh @ Vicky has also been convicted for the offence punishable under Section 307 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for five years with fine of Rs. 3,000/-. 3. The case of the prosecution in brief as mentioned by the informant Ram Chandra Ram, the S.I. is that on 01.10.2003 at about 10:10 p.m. a dacoity was committed in Barnawal Handloom Emporium (Kishore Textiles), Jugsalai in Jamshedpur. During the course of investigation, the informant along with police party reached near the place of occurrence and heard the sound of conversation between some persons from the bushes. There they saw a few persons hiding in the bushes in suspicious circumstances. The police party challenged the persons hiding behind the bushes. There was exchange of fire between two sides. Finally, the police party managed to arrest the appellant-accused persons. A country made pistol containing a fired cartridge case was recovered from the possession of Arun Kumar Singh @ Vicky along with Rs. 20,000/- looted from the Barnawal Handloom Emporium. From the possession of Arun Kumar Das one double barrel loaded country made pistol was recovered along with Rs. 10,000/-of the looted money of the said dacoity. The appellants confessed their guilt. Two more accused persons were arrested from the said bush and from their possession also, looted money of the dacoity was recovered. From the possession of Arun Kumar Das one double barrel loaded country made pistol was recovered along with Rs. 10,000/-of the looted money of the said dacoity. The appellants confessed their guilt. Two more accused persons were arrested from the said bush and from their possession also, looted money of the dacoity was recovered. On the basis of confessional statement of the arrested accused persons of the case, two more accused persons were also arrested from a tempo and the money looted in the dacoity was also recovered from their possession. After completing of investigation, the police submitted the charge-sheet in the case. 4. Upon commitment of the case to the Court of Session, charge was framed against the accused persons for the offence punishable under Section 307/34 of the Indian Penal Code and Section 25 (1-B) (a) of the Arms Act and section 27 of the Arms Act. Upon the accused''s pleading not guilty and claiming to be tried, they were put to trial. 5. Vide order dated 23.12.2005, the charge under Section 307/34 of the Indian Penal Code was altered by framing the charge under Section 307/149 of the Indian Penal Code. The said altered charge was read over and explained to the accused along with other co-accused persons. 6. During the trial, the prosecution altogether examined thirteen witness and proved documents and material exhibits. No witness, was examined on behalf of the defence. 7. Out of the witnesses examined by the prosecution, P.W.2- Ram Chandra Ram has stated that on 01.10.2003 at about 10:10 p.m. he got the telephonic information about the dacoity in the cloth shop namely Barnawal Handloom Emporium. He along with other police personnel proceeded to the place of occurrence intimating the patrolling party over wireless. After reaching the place of occurrence, he came to know about the direction in which the accused persons have fled away and proceeded in that direction along with other police personnel and the staff of Barnawal Handloom Emporium. At about 10:45 p.m. when they reached near Garibnawaj colony, Jugsulai, they saw some persons hiding inside the bush towards south of railway line. He challenged those persons. Suddenly, the persons started firing at the police party but the fire missed the police party. RW. 2 also fired at the bush. One of the miscreants went towards Garibnawaj colony, Jugsulai. RW. He challenged those persons. Suddenly, the persons started firing at the police party but the fire missed the police party. RW. 2 also fired at the bush. One of the miscreants went towards Garibnawaj colony, Jugsulai. RW. 2 informed the police control room and surrounded the bush with the help of villagers and entered inside the bush. In the process, both the appellants were apprehended. They were brought out of the bush and on being searched, one country made pistol containing fired cartridge case along with looted money were recovered from the possession of Arun Kumar Singh @ Vicky and one double barrel country made pistol along with the looted money of dacoity was also recovered from the possession of Arun Kumar Das. Subsequently, other two accused persons were arrested from the bush and two more accused persons were arrested near Parvati Ghat when they were boarding the tempo by which the miscreants came for committing the offence. On being proved, by the P.W. 2, the carbon copy of the seizure list and seizure list of recovered money was marked as Ext. 1 and 1/1, respectively. PW2 also proved his self-statement which was marked as Ext. 2. He has further stated that after arresting one of the accused Rajiv Mishra, one country made pistol was also recovered from the place of occurrence. He identified the accused persons in the dock. In his cross-examination, he has stated that the case number given on the carbon copy of the seizure list, relates to the case of dacoity which took place prior to the arrest of the accused person. He has also stated that the accused persons had fired five to six rounds. 8. P.W. 1 - Surendra Prasad, who was a member of the raiding party, has stated about the appellants being apprehended from the bush and also stated about the recovery of one country made pistol containing fired cartridge case from the possession of accused Arun Kumar Singh @ Vicky and one double barrel loaded country made pistol from the accused Arun Kumar Das. He has also stated about the arrest of the rest accused persons but he has stated that the miscreants had fired only one shot. 9. P.W. 10 - Nand Kishore Barnawal is the owner of Barnawal Handloom Emporium. He has stated about the commission of dacoity in his shop. He has also stated about the arrest of the rest accused persons but he has stated that the miscreants had fired only one shot. 9. P.W. 10 - Nand Kishore Barnawal is the owner of Barnawal Handloom Emporium. He has stated about the commission of dacoity in his shop. He has also supported the fact that he along with police party went in the direction towards which the dacoits had fled. He has also stated that the dacoits were hiding in the bush near the Garibnawaj colony and there was exchange of fire between the dacoits and the police. The police recovered the looted money from the dacoits. He has identified the accused persons in the dock. In his cross-examination, he has stated that the dacoits fired at him, his staffs and the police. 10. P.W. 3 - Pankaj Kumar Gupta, P.W.4-Jitendra Pandit and P.W.5- Madanlal Sharma are the staffs of Barnawal Handloom Emporium and they have stated about the commission of dacoity in their shop. In their cross-examination, they have stated that they have not taken part in any T.l. Parade of the accused persons though they have identified the accused persons in the court. 11. P.W. 6- Md. Yusuf, P.W.7- Md. Murtuza, P.W.8 - Sahid and P.W.9- Alamgir are the witness of seizure list. They have not supported the case of the prosecution and have been declared hostile. P.W.9 - Alamgir before being declared hostile has identified his signature in seizure lists which were marked as Ext. 1 and 1/1 earlier. 12. P.W. 11- Sergeant Major Ram Anuj Sharma, stated that he examined and verified the fire arms and on being proved by him, the requisitions for examination of fire arms have been marked as Ext. 3 series and his reports have been marked as Ext.4 series. He has stated that all the fire arms were in working condition and firing was made Jrom them. 13. P.W. 12- Ratan Kumar Gupta is a formal witness. He has proved the material exhibits which were marked as material Exhibits I to VII. In his cross-examination, he has stated that he has got no knowledge as to which case, the seized articles are related. 14. P.W. 13- Pradip Chowdhary is the I.O. of this case. He has stated about the place of occurrence with its boundaries. He has proved the material exhibits which were marked as material Exhibits I to VII. In his cross-examination, he has stated that he has got no knowledge as to which case, the seized articles are related. 14. P.W. 13- Pradip Chowdhary is the I.O. of this case. He has stated about the place of occurrence with its boundaries. He has stated about the encounter between the police and the dacoits and that the dacoits fired at the police with an intention to kill them. In his cross-examination, he has stated that P.W.10 - Nand Kishore Barnawal did not tell him about any shot or fire by the dacoits in the dacoity rather P.W. 10 has stated before him that the dacoits only terrorized him and others at the point of fire arms during the dacoity 15. After closure of the evidence of the prosecution, statements under Section 313 Cr.P.C., 1973 of the appellants wer8 recorded but they denied the materials appearing in evidence against them. Taking into consideration the evidences available in record, the learned trial court convicted and sentenced the appellants as indicated above. 16. At the hearing, it was submitted by the learned counsel for the appellant Arun Kumar Singh @ Vicky that the case of the prosecution is improbable as though it has been stated by the witnesses that firing was made from a distance of 20-25 feet, no one has received any injury. It is also submitted by the learned counsei for the appellants that the independent witnesses of the seizure have not supported the case of the prosecution and there is no direct evidence against the appellant Arun Kumar Singh @ Vicky of having fired at police and as no one has sustained any injury hence the learned court below erred by convicting the appellant Arun Kumar Singh @ Vicky for the offence punishable under section 307 of the Indian Penal Code. Hence, it is submitted that this is a fit case where the appellant Arun Kumar Singh @ Vicky be acquitted of the charges at least by giving him the benefits of doubt. 17. Learned counsel for the accused appellant Arun Kumar Das submitted that the examination of the accused appellant under Section 313 Cr.P.C., 1973 has not been done properly and questions regarding the circumstances appearing in evidence against him which were ultimately used for his conviction were not put to him. 17. Learned counsel for the accused appellant Arun Kumar Das submitted that the examination of the accused appellant under Section 313 Cr.P.C., 1973 has not been done properly and questions regarding the circumstances appearing in evidence against him which were ultimately used for his conviction were not put to him. Further, he submits that imposition of maximum sentence of three years imposed upon the appellant is harsh keeping in view of the fact that this appellant was of tender age at the time of commission of the offence and it was his first offence. Hence, he submits that the appellant Arun Kumar Das be acquitted by giving the benefit of doubts. 18. Learned Addl. P.P. on the other hand defended the impugned judgment of conviction and submitted that the prosecution has proved its case beyond all reasonable doubts and though there is no direct evidence against the appellant Arun Kumar Singh @ Vicky of having fired at the police but the circumstantial evidence put forth by the prosecution as also the seizure of the pistol which was recovered from the place of occurrence leads to the conclusion that the appellant Arun Kumar Singh @ Vicky fired at the police personnel as well as on P.W. 10 and his staffs, obviously with an intention to kill them. Hence he further submitted that the learned trial court having rightly convicted and sentenced the appellants, these appeals being without any merit, be dismissed. 19. After going through the evidence in the record, I found that the evidence in the record is sufficient to prove the fact that the appellants Arun Kumar Singh @ Vicky and Arun Kumar Das were arrested at the place of occurrence and fire arms were recovered from them. Hence, I have no hesitation in holding that the evidences in the record are sufficient to bring home the charge for the offence punishable under Section 25(1-B) (a) of the Arms Act, 1959 against the appellants hence their conviction and sentence for the said offence is confirmed. Hence, I have no hesitation in holding that the evidences in the record are sufficient to bring home the charge for the offence punishable under Section 25(1-B) (a) of the Arms Act, 1959 against the appellants hence their conviction and sentence for the said offence is confirmed. So far as the conviction of the appellant Arun Kumar Singh @ Vicky for the offence punishable under Section 307 is concerned, the evidence put forth by the witnesses establishes the fact that the accused Arun Kumar Singh @ Vicky was apprehended from the place of occurrence immediately after the occurrence and firing from a close range was made from behind the bushes, where he was hiding, at the police party. From the possession of the appellant Arun Kumar Singh @ Vicky, one country made pistol with fired cartridge case was recovered. The opinion of P.W.11 - Ram Anuj Sharma who examined and verified the fire arms, show that firing was made from the pistol used and recovered from the possession of appellant Aran Kumar Singh @ Vicky. The appellant Arun Kumar Singh @ Vicky was failed to inform as to how the pistol which was recovered from his possession, was having an empty cartridge case, though he was privy to such information and he has not come up with any explanation for the same. 20. Section 307 of the Indian Penal Code reads as under - 307. Attempt to murder. - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine: and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned. Attempts by life convicts. - 2[When any person offending under this section is under sentence of [imprisonment for life], he may, if hurt is caused, be punished with death.] Illustrations (a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued. A would be guilty of murder. A is liable to punishment under this section. (Emphasis Supplied) Reading of section 307 of the Indian Penal Code shows that it envisages two punishments. A would be guilty of murder. A is liable to punishment under this section. (Emphasis Supplied) Reading of section 307 of the Indian Penal Code shows that it envisages two punishments. The first one is for a term which may extend to ten years, and shall also be liable to fine and the second one is if hurt is caused to any person b such act, the offender shall be liable either to imprisonment for life or to such punishment as is hereinbefore mentioned. This in other words means, the first punishment is when the offence is committed without causing hurt and the second punishment is for an offence if hurt is caused by such act. The illustration ''A'' further clarifies by mentioning that for the overt act of "A shooting at Z with intention to kill him" without categorically mentioning that hurt or physical injury must be caused by such shooting, A would be guilty of murder. Thus I have no hesitation in holding that causing of hurt or physical injury is not a sine qua non for establishing a charge for the offence punishable under section 307 of the Indian Penal Code. In order to succeed in establishing the charge punishable under section 307 of the Indian Penal Code, the prosecution is required to prove (i) that the death of the person fired at was attempted, (ii) that his death was attempted to be caused by or in consequence of the act of the appellant and (iii) that such act was done with the intention of causing death or that it was done with the intention of causing such bodily injuries as the appellant knew to be likely to cause death or were sufficient in the ordinary course of nature to cause death. What the court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under the circumstances mentioned in the section. The intention of the assailants can be gathered from the motive for the crime, nature of weapon used, number of blows given by him, severity of blow and the parts of the body where the injuries are inflicted and other surrounding circumstances, if any. 21. The intention of the assailants can be gathered from the motive for the crime, nature of weapon used, number of blows given by him, severity of blow and the parts of the body where the injuries are inflicted and other surrounding circumstances, if any. 21. It is a settled principle of law that when the accused shoots from a close range on the victim, the knowledge of possible death can be imputed to the accused as has been held by the Hon''ble Apex in the case of Liyakat Mian and others v. State of Bihar reported in AIR 1973 SC 807 in paragraph-8 as under: - "8 Now by this act of shooting at Burhan Mahaton from such close quarters, had Jashim Mian caused Burhan Mohaton''s death, then, he would certainly have been guilty of murder. His guilt is thus quite clearly established on the plain language of Section 307 and on the reasonable consequences which must be assumed to flow from the act of shooting indulged in by him. Knowledge to this effect can legitimately be imputed to him. This submission is therefore, wholly unacceptable." 22. Hence, I have no hesitation in holding that the evidence in the record is sufficient to bring home the charge for the offence punishable under Section 307 of the Indian Penal Code as the evidence put forth by the prosecution leads to the only conclusion that the appellant Arun Kumar Singh @ Vicky fired at the police personnel from a short distance and by that act had he caused death of any police personnel then, he would certainly have been guilty of murder. Hence, I hold the conviction and sentence of the appellant for the offence punishable under Section 307 of the Indian Penal Code, has rightly been made by the learned court below. So far as the conviction of the appellant Arun Kumar Singh @ Vicky for the offence punishable under section 27 of Arms Act is concerned, section 27 of Arms Act is in three parts, as under: - 27. Punishment for using arms, etc. - (1) Whoever uses any arms or ammunitions in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Punishment for using arms, etc. - (1) Whoever uses any arms or ammunitions in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. (2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine. (3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death. 23. In this case, it is not the case of the prosecution that the fire arm used by the appellant Arun Kumar Singh @ Vicky was a prohibited arm. So, the learned court below instead of simply convicting him for the offence punishable under section 27 of the Arms Act ought to have specified that the conviction is under section 27 (1) of the Arms Act. Section 27 prescribes a minimum punishment of 3 years. It is a sett principle of law that if any court in any Case for any reason intends to impose a sentence less than the minimum prescribed sentence than not only it has to assign reason b the reason assigned must be adequate are special reasons as has been held by the Hon''ble Supreme Court of India in the cast of State of M.P v. Bablu Natt (2009)1 SCC 272 in paragraph 20 which is as follows: - "20 ................... The power conferred on the court to impose a sentence less than the minimum prescribed must not only be supported bv anv reason but adequate and special reasons ought to be mentioned therefor. The High Court did not do so............. "(Emphasis Supplied) Hence the learned court below certainly erred in imposing the punishment of rigorous imprisonment of 2 years and fine without assigning any reason let alone adequate and special reason as required in law for imposing a sentence less than the minimum sentence prescribed for the said offence. The occurrence took place about a decade and half before. "(Emphasis Supplied) Hence the learned court below certainly erred in imposing the punishment of rigorous imprisonment of 2 years and fine without assigning any reason let alone adequate and special reason as required in law for imposing a sentence less than the minimum sentence prescribed for the said offence. The occurrence took place about a decade and half before. Keeping in view that no notice for enhancement of the punishment has been given and the appellant has also been held guilty for the offence punishable under Section 307 of the Indian Penal Code for which he has been sentenced to rigorous imprisonment for five years with fine of Rs. 3,000/- and in default of fine, the appellant was directed to undergo simple imprisonment for three months and it has also been ordered that the sentences shall run concurrently, hence the conviction and sentence in respect of the offence punishable under section 27 (1) of the Arms Act is confirmed and the sentence imposed upon the appellant Arun Kumar Singh @ Vicky for the offence punishable under section 27 (1) of the Arms Act, 1959 is not interfered with. 24. So far as the offence punishable under Section 25 (1-B) (a) of the Arms Act is concerned the said section prescribes a sentence of imprisonment for a term which shall not be less than one year but which may extend to three years and shall also be liable to fine, provided that the Court may for any adequate and special reasons to be recorded in the judgment impose a sentence of imprisonment for a term of less than one year. Keeping in view the evidence in the record as well as the attending facts and circumstances of this case as the appellant was of tender age at the time of the occurrence it will be proper to revise the sentence of rigorous imprisonment of three years to rigorous imprisonment of two years five months with fine of Rs. 1,000/- and in default of payment of fine to undergo simple imprisonment for fifteen days. 25. Accordingly, both the appeals are dismissed with the modification sentence in respect of the offence punishable under Section 25 (1-B) (a) of the Arms Act, 1959. The appellant of Criminal Appeal (SJ) No. 225 of 2006 namely Arun Kumar Singh @ Vicky is on bail. 25. Accordingly, both the appeals are dismissed with the modification sentence in respect of the offence punishable under Section 25 (1-B) (a) of the Arms Act, 1959. The appellant of Criminal Appeal (SJ) No. 225 of 2006 namely Arun Kumar Singh @ Vicky is on bail. Learned Trial Court is directed to take coercive steps for his apprehension/production for undergoing rest of the sentence. 26. Perusal of the record reveals that the appellant of Criminal Appeal (SJ) No. 155 of 2006 namely Arun Kumar Das was in custody after being remanded in this case since 09.10.2003 to 18.03.2006 when the lower court records was sent to this Court. It appears that he has already undergone the period in custody for 2 years 5 months. The learned Court below is directed to take appropriate steps in respect of him after verification of the records. 27. Let the lower court records be sent back to the trial court along with the copy of this judgment forthwith.