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2019 DIGILAW 1269 (JHR)

Jamuna Singh v. State Of Jharkhand

2019-07-11

RATNAKER BHENGRA, SHREE CHANDRASHEKHAR

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JUDGMENT Shree Chandrashekhar, J. - Both the appellants have faced trial in S.Tr. No.414 of 1996 for causing death of Parwati Devi in furtherance of common object of all - for the offence under section 302/149 IPC. 2. They have been convicted for the offence under section 147 and 302/149 IPC and under section 27 of the Arms Act. They have challenged the judgment of conviction dated 02.07.2001 and the order of sentence of R.I for life dated 03.07.2001 passed by the 3rd Additional Sessions Judge, Palamau at Daltonganj in S.Tr. No. 414 of 1996. 3. Three persons namely, Jamuna Singh, Niladhar Singh and Deoraj Singh were named as accused by the informant-Gobind Sao in his fardbeyan which was recorded at about 11.30 p.m on 23.05.1995. He has stated that two other unknown persons have also participated in the occurrence. After the investigation, charge-sheet was submitted against Jamuna Singh, Niladhar Singh and Deoraj Singh, however, the accused-Deoraj Singh absconded and his trial was split-up. During the trial, the prosecution has examined altogether 11 witnesses; the informant has been examined as P.W.4 and his daughter namely, Lalita Kumari and sons namely, Sanjay Sah, Dayanidhi Prasad and Jawahar Prasad have been projected as eye-witness. Dr. Surender Kumar Singh, who has conducted autopsy, has found the following injuries on the body of the victim lady: (i) External Injury: Wound of entry lacerated wound in the middle in front of chest oral in shape (charred skin) size 1-1/2" X 1". (ii) Internal injury: Laceration of the heart ...........illigible caused by gun shot injury leading to Haemmorhage shock and death. 4. The doctor, however, has not found any bullet or pellet inside the dead body and he has stated that he did not find any exit injury. He has opined that the shot was fired from a distance of 10 feet. 5. Three prosecution witnesses namely, Sitaram Mishra, Ramkishun Singh and Matukdhari Singh have been declared hostile at the instance of the prosecution. 6. On the basis of the evidences laid before him, the learned 3rd Additional Sessions Judge, Palamau has held that the prosecution has proved the charge under section 302/149, 147 IPC and under section 27 of the Arms Act and, accordingly, convicted the appellants for the aforesaid offences. 7. 6. On the basis of the evidences laid before him, the learned 3rd Additional Sessions Judge, Palamau has held that the prosecution has proved the charge under section 302/149, 147 IPC and under section 27 of the Arms Act and, accordingly, convicted the appellants for the aforesaid offences. 7. The prosecution story as narrated by the informant in his fardbeyan would reveal that the informant was unable to pay the balance amount of Rs.250/- to the accused-Niladhar Singh; few days back daughter of the accused-Niladhar Singh had sold Lac to the informant for which he was to pay Rs.350/- to him, and after arranging Rs.100/- when he had gone to the house of Niladhar Singh he was threatened by him. On 23.05.1995, at about 7 p.m, when the informant returned home he found 5 persons loitering outside his shop and when he entered the shop he found Sitaram Mishra, Ramkishun Singh and Matukdhari Singh tied by the accused Jamuna Singh, Niladhar Singh and Deoraj Singh alongwith two unknown persons, inside his shop. He further says that when he entered the shop the abovenamed accused persons started assaulting him with fist and sandles. In the meantime, his wife- Parwati Devi came inside the shop and pleaded with the accused-Jamuna Singh not to beat him, however, the accused Jamuna Singh did not listen and he shot his wife on her chest. The informant raised alarm whereupon several villagers assembled there. He claims that he and his son-Sanjay Sah and daughter-Lalita Kumari tried to identify the other two accused persons, however, they could not recognise them. 8. In the court, the informant in his examination-in-chief has, however, introduced his daughter and two sons as eye-witness to the incident. His son-Sanjay Sah, who has been examined as P.W.5, on his own account is not an eye-witness to the actual occurrence. The prosecution witnesses namely, Dayanidhi Prasad and Jawahar Prasad, both sons of the informant, who have been examined as P.W.6 and P.W.7 respectively, were not named in the First Information Report by the informant. We find that the prosecution story, that 5 persons were loitering outside the shop of the informant and the co-villagers namely, Sitaram Mishra-P.W.8, Ramkishun Singh-P.W.2 and Matukdhari Singh-P.W.9 were found by the informant tied inside his shop, has gone wary, inasmuch as, these prosecution witnesses have been declared hostile at the instance of the prosecution. 9. We find that the prosecution story, that 5 persons were loitering outside the shop of the informant and the co-villagers namely, Sitaram Mishra-P.W.8, Ramkishun Singh-P.W.2 and Matukdhari Singh-P.W.9 were found by the informant tied inside his shop, has gone wary, inasmuch as, these prosecution witnesses have been declared hostile at the instance of the prosecution. 9. True, the informant and other witnesses who have been projected as eye-witnesses have supported the prosecution''s case of assault upon Parwati Devi by Jamuna Singh and presence of co-accused- Niladhar Singh when the unfortunate incident had occurred is established, but, insofar as, role played by the appellant no.2-Niladhar Singh is concerned, we find that except an allegation that he alongwith other accused persons has also assaulted the informant with fist and sandle no other overt act has been imputed to him. The learned trial Judge has also recorded a finding that the accused-Niladhar Singh has not touched the deceased. Still, he has held that he is liable to be convicted for the offence under section 302 IPC with the aid of section 149 IPC. 10. Here we find approach of the learned Judge palpably erroneous. Section 149 of the Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. In " Masalti Vs. The State of U.P., (1965) AIR SC 202 ", the Supreme Court has held, thus: 17. In " Masalti Vs. The State of U.P., (1965) AIR SC 202 ", the Supreme Court has held, thus: 17. "...................it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly in fact, S. 149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly; is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by S. 149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly. Therefore, we are satisfied that the observations made in the case of Baladin, (S) AIR 1956 SC 181 must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition of law such as Mr.Sawhney suggests." 11. As would appear from the story of the incident narrated by the informant in his fardbeyan, it was in respect of demand of Rs.250/- that the accused persons had gone to the shop of the informant and when the informant arrived there they assaulted him with fist and sandle. From this it can be safely inferred that other co-accused persons who have accompanied the appellant-Jamuna Singh did not share a common object to kill the wife of the informant. It has not come in the prosecution''s evidence that the appellant-Niladhar Singh had knowledge that co-accused- Jamuna Singh was carrying a pistol or that he had knowledge that death may be caused in furtherance of the common object of all. 12. In the above facts, viewed thus, we hold that conviction of the appellant no.2 namely, Niladhar Singh under section 302/149 IPC is unsustainable and, accordingly, it is set-aside. 12. In the above facts, viewed thus, we hold that conviction of the appellant no.2 namely, Niladhar Singh under section 302/149 IPC is unsustainable and, accordingly, it is set-aside. May be the informant was not examined by a doctor and, thus, the prosecution has failed to bring medical evidence on assault upon the informant by Niladhar Singh, in view of the consistent evidence by the prosecution witnesses on assault upon the informant by the accused persons, we hold that the appellant no.2-Niladhar Singh is liable to be convicted under section 323 IPC. On the question of sentence under section 323 IPC, the appellant no.2 namely, Niladhar Singh is sentenced to undergo R.I for six months and fine of Rs.1,000/-. 13. Section 146 of the Indian Penal Code defines rioting. Whenever force is used by the unlawful assembly or any member of the unlawful assembly, every member of the unlawful assembly is liable to be punished under section 147 IPC. Assault upon the informant was not in furtherance of any common object of the unlawful assembly and while so, the charge under section 147 IPC must fail. 14. Now, the question is whether conviction of the appellant-Jamuna Singh under section 302/149 IPC is proper. 15. Section 300 IPC provides that except in the circumstances mentioned therein culpable homicide is murder, if the act by which death is caused is done with the intention of causing death, or it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death. Section 300 IPC, however, provides five exceptions under which culpable homicide would not amount to murder. Section 304 IPC provides sentence for culpable homicide not amounting to murder. One of the exceptions under section 300 IPC is death caused in a sudden fight without premeditation. Section 300 IPC, however, provides five exceptions under which culpable homicide would not amount to murder. Section 304 IPC provides sentence for culpable homicide not amounting to murder. One of the exceptions under section 300 IPC is death caused in a sudden fight without premeditation. Essential ingredients to bring a cause of death under Exception 4 are; (i) the act was committed without premeditation, (ii) in a sudden fight, (iii) in the heat of passion and, (iv) upon a sudden quarrel. 16. To bring home a case of murder under Exception 4 to section 300 IPC, it must be shown that the offender has not taken any undue advantage or acted in a cruel or unusual manner. 17. The evidences laid by the prosecution during the trial of S.Tr. No.414 of 1996 would disclose that there was no premeditation to cause death of Parwati Devi. All that the prosecution has established is that the accused persons had intended to start a quarrel for demand of Rs.250/- and in the process they have assaulted the informant. At this stage, Parwati Devi is nowhere in the picture. She has arrived at the scene upon hearing quarrel between her husband and the accused persons. Now, the appellant-Jamuna Singh whips a pistol and shoots Parwati Devi. In the aforesaid state of affairs, we are of the opinion that the appellant-Jamuna Singh must be imputed with the intention to cause death, but he is held entitled to the benefit under Exception-4 to section 300 IPC. 18. In the above facts, having examined the records of S.Tr. No.414 of 1996, we hold that conviction of the appellant-Jamuna Singh under section 302/149 IPC is unsustainable and, accordingly, it is set-aside. The appellant-Jamuna Singh is convicted under section 304 Part-I IPC and he is sentenced to R.I for 10 years with fine of Rs.50,000/- which shall be paid to the informant. 19. In the result, Cr. Appeal (D.B.) No. 334 of 2001 is partly allowed. 20. The judgment of conviction dated 02.07.2001 and the order of sentence of R.I for life dated 03.07.2001 passed by the 3rd Additional Sessions Judge, Palamau at Daltonganj in S.Tr. No. 414 of 1996 are set-aside. 21. The bail-bonds furnished by the appellant no.1-Jamuna Singh stand cancelled. The appellant no.2-Niladhar Singh is discharged of liability of the bail-bonds furnished by him, upon deposit of fine of Rs.1,000/- within a period of 4 weeks. No. 414 of 1996 are set-aside. 21. The bail-bonds furnished by the appellant no.1-Jamuna Singh stand cancelled. The appellant no.2-Niladhar Singh is discharged of liability of the bail-bonds furnished by him, upon deposit of fine of Rs.1,000/- within a period of 4 weeks. 22. Let the lower-court records be transmitted to the court concerned, forthwith.