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2025 DIGILAW 472 (RAJ)

Jay Ranjan Pandey v. State

2025-02-20

GANESH RAM MEENA

body2025
JUDGMENT : GANESH RAM MEENA, J. 1. The present criminal appeal has been filed by the accused-appellant under Section 374(2) Cr.P.C. against the judgment of conviction and sentence dated 13.07.2006 passed by the Court of learned Additional Sessions Judge (Fast Track) No.1, Ajmer (for short ‘the learned trial Court’) in Sessions Case No.79/2005 (State of Rajasthan Vs. Jayranjan Pandey), whereby, the learned trial Court while acquitting the accused appellant from the charge under Section 302 IPC, sentenced him for the offence under Section 304 Part-II IPC and directed to undergo four years rigorous imprisonment and a fine of Rs.500/-, in default of payment of fine to further undergo three months additional simple imprisonment. 2. As per the case of the prosecution, complainant Haripal Singh Yadav (PW1) who was posted as Company Commander, 51 Battalion, Central Reserve Police Force, Ajmer, submitted a hand written report (Ex.P1) to the S.H.O. Police Station, Civil Lines, Ajmer to the effect that on 09.06.2005 he was appointed for Jail Security. On 09.06.2005 No.850853174 Havaldar M.D.S. Mandal was on duty and during his duty hours, Sepoy Jayranjan Pandey was also on duty. The post No.8 was with LMG. On making challenge call by Jayranjan Pandey, Constable and on asking for the password fixed for that day, when no reply was given, Constable- Jayranjan Pandey at 3.45 A.M. fired a single shot which hit to the lower part of the waist of M.D.S. Mandal. On receiving information, the Company CHM immediately instructed the Company Commander No.690090693-Haripal Singh to reach to the place of occurrence and he took Havaldar M.D.S. Mandal to Government Hospital (J.L.N.) in Emergency Ward, where he was admitted. During his treatment on 09.06.2005 itself at 7.45 A.M. the Havaldar Mandal died. 3. On the basis of the hand written report (Ex.P1), an F.I.R. No.144/2005 (Ex.P2) was registered at Police Station Civil Lines, Ajmer for the offence under Section 304 IPC. 4. The Police after investigation submitted charge- sheet against the accused-appellant for the offence under Section 302 I.P.C. 5. Since the offence for which the Police filed charge- sheet, is triable by the Court of Sessions, therefore, the Judicial Magistrate No.3, Ajmer committed the case to the Court of learned Sessions Judge, Ajmer and the learned Sessions Judge, Ajmer transferred the case to the learned Additional Sessions Judge (Fast Track) No.1, Ajmer for its trial. 6. Since the offence for which the Police filed charge- sheet, is triable by the Court of Sessions, therefore, the Judicial Magistrate No.3, Ajmer committed the case to the Court of learned Sessions Judge, Ajmer and the learned Sessions Judge, Ajmer transferred the case to the learned Additional Sessions Judge (Fast Track) No.1, Ajmer for its trial. 6. After taking cognizance, the learned trial Court framed the charges against the accused-appellant for the offence under Section 302 I.P.C., to which he denied and opted for trial. 7. From the prosecution side, the statements of twenty three (23) witnesses were recorded and twenty eight (28) documents were exhibited. 8. The statement of the accused-appellant was recorded under Section 313 Cr.P.C. The accused-appellant in his statement has submitted that at the time when he was on duty, he asked for password fixed for that day and on failure to tell the password, he bonafidely and in pursuance to his duty, made fire. 9. The learned trial Court vide its impugned judgment dated 13.07.2006, while acquitting the accused appellant from the charge under Section 302 IPC, convicted and sentenced him for the offence under Section 304 Part-II I.P.C. 10. Mr. S.K. Gupta, Senior counsel appearing for the accused-appellant submitted that the learned trial Court has committed serious illegality and material irregularity while convicting and sentencing the accused-appellant. Learned counsel further submitted that the impugned judgment passed by the learned trial Court is against the facts available on record and well established legal principles. He also submitted that the learned trial Court has framed the charge against the accused-appellant erroneously, which has seriously prejudiced his case and has also not read and appreciated the evidence available on record correctly and in right perspective. Senior Counsel further submitted that the conviction of the accused-appellant under Section 304 I.P.C., cannot be sustained when even the learned trial Court has held that the accused-appellant opened fire in a hurry without due care and caution. Even if this finding is taken on its face value, the offence would not travel beyond Section 304-A I.P.C., otherwise, on the facts and findings of the learned trial Court, it cannot be said that the appellant was doing a lawful thing in a lawful manner and taking due care and caution. Even if this finding is taken on its face value, the offence would not travel beyond Section 304-A I.P.C., otherwise, on the facts and findings of the learned trial Court, it cannot be said that the appellant was doing a lawful thing in a lawful manner and taking due care and caution. Therefore, the death of the deceased can be said to be only accidental, which is covered by Section 80 I.P.C. and is one of the general exception enshrined in Indian Penal Code. Senior Counsel further submitted that the act of the accused- appellant is also covered by yet another "General Exception" given in the Indian Penal Code, namely, "the act committed under the mistake of fact." There is overwhelming evidence available on record to prove that the Central Jail, Ajmer was on high alert, it was storming dark night and the accused- appellant mistook the deceased to be an intruder as the deceased neither responded to his warning nor he could tell the password meant for that particular night. Senior Counsel further submitted that the learned trial Court itself has recorded the finding that the accused- appellant did not have any "animus" towards the deceased. Mens-rea excluded, only because some death has taken place, on account of an act done by the accused-appellant, he cannot be held criminally responsible. He further submitted that the accused-appellant, as duty bound Security Guard, was supposed to take a decision in a flush of time and any judgment would not make criminally responsible unless it can be shown and proved that the accused-appellant acted malafidely, which the prosecution has failed to prove in the present case. He also submitted that the learned trial Court has disbelieved the testimonies of the witnesses produced by the prosecution on the point of motive or enmity on the part of accused-appellant for having caused the death of the deceased. He further submitted that the learned trial Court itself has held that there was no sufficient light at that time and at the place where the incident took place. He also submitted that the learned trial Court itself has held that the relations between the accused-appellant and the deceased were very cordial and there is no motive of the accused-appellant to cause death of the deceased. Counsel further submitted that the conviction of the accused-appellant is totally based upon surmises and conjectures. He also submitted that the learned trial Court itself has held that the relations between the accused-appellant and the deceased were very cordial and there is no motive of the accused-appellant to cause death of the deceased. Counsel further submitted that the conviction of the accused-appellant is totally based upon surmises and conjectures. The prosecution has failed to prove the guilt of the accused-appellant even for the offence under Section 304 Part-II I.P.C. beyond reasonable doubt. There is no evidence available on record to connect the accused-appellant with the alleged offence for which he has been convicted by the learned trial Court. He further submitted that the sentence awarded by the learned trial Court is too exorbitant and the accused-appellant has remained in custody for about fourteen and a half month. 11. Learned Public Prosecutor opposed the submissions advanced by the learned Senior Counsel and submitted that there is no material irregularity or illegality committed by the learned trial Court and keeping in view the evidence on record, the accused-appellant has rightly been convicted. 12. Considered the submissions advanced by learned counsel appearing for the accused-appellant, learned Public Prosecutor appearing for the State and gone through the impugned judgment including the record of the case. 13. The prime submission made by learned Senior Advocate is that the accused appellant cannot be convicted for the offence under section 304 Part-II IPC as the act which is said to have been committed by the accused appellant is a part of discharge of his official duty and there is no mensrea or motive or intention of the accused appellant of causing any injury to the deceased and also there are ample evidence on record that both- deceased and the accused appellant were having good relations. Senior Counsel has further submitted that the accused appellant was on duty at the Security Check Post of the High Security Jail, Ajmer, where the hardcore criminals or terrorists are confined and he has to remain always alert. He has further submitted that any accident in doing a lawful act is saved under section 80 IPC. 14. Senior Counsel has further submitted that the accused appellant was on duty at the Security Check Post of the High Security Jail, Ajmer, where the hardcore criminals or terrorists are confined and he has to remain always alert. He has further submitted that any accident in doing a lawful act is saved under section 80 IPC. 14. So as to see whether the act of the accused appellant of using firearm, causing injury on the lower part of the body of the deceased which resulted into his death, is a lawful act which turned into an accident, the scrutiny of the prosecution evidence is being made by the Court. 15. PW1 Haripal Singh in his examination has stated that the accused appellant was on duty at Chowki No.9 in between 2-4. He has further stated that as soon as the accused appellant saw the deceased, he made a call 'Thamm' and thereafter asked for the Password and when the deceased did not speak the Password then the accused appellant called a challenge and asked for the Password again and when the deceased again failed to give out the Password, the accused appellant made a fire on the lower part of the body of the deceased. This witness further stated that after deceased got injured, he had conversation with him and said that first get me treated and thereafter I will narrate what happened. In cross-examination, this witness has stated that the Personnels on duty at the Central High Security Jail, Ajmer, always remain on alert because there is an alarm of terrorist activity. PW3 R. Googan has stated that at the time of the alleged incident a heavy wind was blowing and even there was a storm and rain in the evening. He has also stated that the deceased and the accused appellant were having good relations. PW4- Jeeta Urao has stated that he heard the voice of calling 'Thamm' and thereafter he heard the voice of fire. This witness has further stated that at the time of incident small bulbs were lightening and two lights were not in order. He has also stated that the deceased and the accused appellant were having good relations. PW4- Jeeta Urao has stated that he heard the voice of calling 'Thamm' and thereafter he heard the voice of fire. This witness has further stated that at the time of incident small bulbs were lightening and two lights were not in order. He has further stated that the deceased and the accused appellant were having good relations and further stated that even on asking if any person does not hands up and goes towards the LMG then there can be a danger to the LMG and if a LMG is captured by the terrorist, he may cause huge loss. PW5 Avatar Singh in his testimony has stated that he heard three times the voice of 'Thamm' towards the Post No.8 where there was a darkness as lights were not in order. PW14 Sahi Ram Yadav has stated that at about 4:00 AM, he heard the voice of fire. The accused appellant sound 'Thamm' and thereafter there was a fire. As per the statement of PW22 Dr. Sumer Singh, who prepared the medical report, there was a right groin at about abdomen. 16. The statement of the accused appellant was also recorded under section 313 CrPC. The accused appellant in his statement deposed that he was on duty at Chowki No.8 of the Central High Security Jail, Ajmer and acted in a manner as provided in the guidelines. He has stated that he called a challenge and asked the stranger to give his identification and Password. When the deceased did not utter the Password then he asked him to hands up but he did not care even for hands up and did not stop even after calling 'Thamm' and thereafter, as a part of duty, he used the firearm causing injury on the lower part of the body. 17. The guidelines have been issued for the persons deputed on the Chowkis of the Central High Security Jail, Ajmer, which are as under:- 18. From the extensive scrutiny of the prosecution evidence, as discussed above, the Court finds that the accused appellant when posted at Chowki No.8, where there was some darkness, high winds were blowing after storm and rain and when the deceased was going towards him, he first of all called a challenge. From the extensive scrutiny of the prosecution evidence, as discussed above, the Court finds that the accused appellant when posted at Chowki No.8, where there was some darkness, high winds were blowing after storm and rain and when the deceased was going towards him, he first of all called a challenge. Thereafter, he called 'Thamm' and also called to hands up and when the deceased came near to him then he again called 'Thamm' and asked for the Password and thereafter when the deceased did not stop, he made a fire that too on the lower part of the body of the deceased. Looking to the prosecution evidence in the light of the guidelines for the persons deputed on LMG duty of the Central High Security Jail, Ajmer, this Court can hold that the accused appellant did the lawful act which resulted into an accident and death of the deceased. Section 80 IPC runs as under:- "Section 80:- Accident in doing a lawful act- Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution." Hence, the alleged act of the accused appellant is an accident while doing a lawful act i.e the duty. Therefore, the conviction and sentence of the accused appellant for such an act is not sustainable. 19. The learned trial court while convicting the accused appellant has taken into consideration the prosecution evidence in part. The learned trial court has erroneously observed that the accused appellant has shown hurry in calling 'Thamm' and did not try to identify the deceased, whereas he was well known to the voice of the deceased and could have easily identified his voice. The learned trial court has also observed that he has shown hurry in making fire without intimation to the Guard Commander and it is also not clear that before making fire the accused appellant asked the deceased to hands up. The findings of the learned trial court are contrary to the prosecution evidence because PW1 Haripal Singh called a challenge and asked for the Password two times. The hardcore criminals so as to mislead the security may make mimicry of a person or may sound voice of any other person. The findings of the learned trial court are contrary to the prosecution evidence because PW1 Haripal Singh called a challenge and asked for the Password two times. The hardcore criminals so as to mislead the security may make mimicry of a person or may sound voice of any other person. The trial court has lost sight to this kind of situation that too when there was already an alarm of the sensitive situation of danger. 20. On the scrutiny of the prosecution evidence, it is also very much clear that neither there is mensrea nor motive nor intention of the accused appellant of causing any firearm injury to the deceased, whereas the evidence clearly speaks that the said accident has taken place during discharge of the official duty by the accused appellant. 21. The learned trial court has convicted and sentenced the accused appellant for the offence punishable under section 304 Part-II IPC. For conviction under section 304 Part-II, the basic ingredient is 'the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death'. 22. Taking into consideration the prosecution evidence and the material fact that after adhering to the due process as provided under the guidelines for the LMG duty at Chowki, when the deceased failed to obey the commands and alerts and also failed to disclose the Password, the accused appellant made a fire on the lower part of the body of the deceased, which clearly shows that neither the accused appellant was having any intention to cause death nor it was in his knowledge that the said act may cause the death of the deceased. The prosecution evidence also very clearly reveals that the accused appellant and the deceased were having good relations and therefore, there was no occasion for the accused appellant to cause bodily injury which may result into death. The prosecution evidence clearly shows that the act was a part of the lawful duty of the accused appellant. 23. In view of the discussion made above, the conviction and sentence of the accused appellant is not sustainable and the same deserves to be quashed and set aside. 24. Accordingly, the criminal appeal filed by the accused appellant is allowed. The prosecution evidence clearly shows that the act was a part of the lawful duty of the accused appellant. 23. In view of the discussion made above, the conviction and sentence of the accused appellant is not sustainable and the same deserves to be quashed and set aside. 24. Accordingly, the criminal appeal filed by the accused appellant is allowed. The impugned judgment of conviction and sentence dated 13.07.2006 passed by the Court of learned Additional Sessions Judge (Fast Track) No.1, Ajmer in Sessions Case No.79/2005 (State of Rajasthan Vs. Jayranjan Pandey), is quashed and set aside and he is acquitted from the charges levelled against him. The accused appellant is on bail, his bail bonds stand discharged. 25. Keeping in view the provisions of Section 437-A of the Code of Criminal Procedure, 1973, the accused appellant Jay Ranjan Pandey is directed to forthwith furnish a personal bond in the sum of Rs.20,000/- and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the said appellant, on receipt of notice therefore, shall appear before the Supreme Court. 26. The Registry is directed to send back the record of the case to the trial court forthwith.