Cr. Appeal No. 226 of 2002
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Against the judgment dated 22.5.2002 and order of conviction dated 23.5.2002
passed by Sri Rajeev Kumar, Vth Additional Sessions Judge, Palamau at
Daltonganj in Sessions Trial No. 11 of 1999.
Dhananjay Singh.......................................Appellant
-Versus-
The State of Jharkhand ...... Opposite party.
--
For the Appellant : M/s.V. P. Singh, Sr. Advocate
Ashok Kumar Sinha &
Ashish Kumar Shekhar, Advocates.
For the State : Mr. Ravi Prakash, APP
PRESENT
HON'BLE MR. JUSTICE PRADEEP KUMAR
RESERVED ON 9.10.2009 PRONOUNCED ON 21/12/2009
Pradeep Kumar,J, This appeal is directed against the judgment dated
22.5.2002
and order of conviction dated 23.5.2002 passed by Sri Rajeev
Kumar, Vth Additional Sessions Judge, Palamau at Daltonganj in Sessions
Trial No. 11 of 1999, by which judgment he found the appellant, Dhananjay
Singh guilty under Section 304 of the Indian Penal Code read with Section
27 of the Arms Act and convicted him thereunder and sentenced him to
undergo R.I. for 3 years under Section 304 of the Indian Penal Code and
further sentenced him to undergo R.I. for 3 years and a fine of Rs. 5,000/-
and in default to undergo R.I. for 6 months under Section 27 of the Arms
Act. However, he directed both the sentences shall run concurrently.
2. It is submitted by the learned counsel for the appellant that
the appellant has falsely been implicated in this case. He has further
submitted that although the F.I.R. was lodged on 22.5.1997, but the same
was sent to the Chief Judicial Magistrate on 23.5.1997 and hence there is a
delay in sending the F.I.R. which creates doubt in the prosecution case
itself. He has further submitted that there is only two eye witnesses of the
occurrence i.e. P.W.1, Suresh Ram and P.W.6, Rajdeo Singh (informant)
and others came after the occurrence and only they saw the dead body of
the deceased even presence of P.W.6, the informant at the place of
occurrence is doubtful and hence the finding of conviction is bad in law and
fit to be set aside. Lastly he has argued that it is a case of accidental firing
and as such at best the appellant should be found guilty only under Section
304(II) of the Indian Penal Code and not under Section 304 of the Indian
Penal Code.
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3. On the other hand, learned counsel for the State has opposed
the prayer and submitted that there is no delay in sending the F.I.R. It will
appear from the F.I.R. itself that the F.I.R. was registered on 21.5.1997 and
formal F.I.R. was drawn at 5.30 A.M. in the afternoon. Thereafter, the same
was sent on 22.5.1997 to the Court of Chief Judicial Magistrate, Palamau at
Daltonganj since Daltonganj is at far distance from Haidernagar Police
Station hence, the same was seen by Chief Judicial Magistrate on 23.5.1997
although it reached at Daltonganj Court on 22.5.1997 itself and hence there
is no delay which can create undoubt. He has further submitted that the
evidence of eye witnesses clearly proved that the appellant caused the death
of the deceased knowingly as the gun fire injury was caused on the chest
hence the conviction under Section 304 of the Indian Penal Code read with
Section 25 of the Arms Act is well founded and requires no interference by
this Court.
4. After hearing both the parties and going through the record, I
find that in order to prove the charges the prosecution has examined 13
witnesses. P.W.1, Suresh Ram is an eye witness, P.W.2, Anirudh Singh, he
came after the occurrence, P.W.3, Jag Narayan Singh is witness of seizure
of blood at the place of occurrence, P.W.4, Ram Prasad Singh he came after
the occurrence, P.W.5, Baikunth Singh he saw the dead body, P.W. 6, Raj
Deo Singh, the informant is an eye witness, P.W.7, Nanku Mahto reached
on the next day of the occurrence, P.W.8, Jamni Mahto, who has been
declared hostile, P.W.9, Dr. Rajeshwar Singh, who proved the postmortem
report, P.W.10, Faugni Mahto, he came to know about the occurrence after
he came to the village, P.W.11, Kail Saw, who has been declared hostile,
P.W.12, Satya Devi wife of P.W.1, Suresh Ram and P.W.13, Bhola Singh
who saw the dead body of the deceased.
5. Thus, the main witnesses for consideration are P.W.1, P.W.6,
P.W.9 (Doctor) and P.W.12 wife of P.W.1.
The main witness P.W.1 stated in Court that on the date of
occurrence he was sitting on the door of his house when Hari Singh and
Dhananjay Singh came to his door and sat down on the Chauki, which was
lying in his Varandah. Thereafter, Hari Singh asked him to bring water
when he came out with a glass of water then he saw that both Hari Singh
and Dhananjay Singh are having entered hot dialogue. Thereafter, suddenly
Dhananjay Singh brought out a pistol and put it on the chest of Hari Singh
Singh whereupon Hari Singh said that whether he wants to kill him.
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Thereafter Dhananjay Singh while continuing hot dialogue and suddenly
fired from the pistol causing injury on the chest of deceased, Hari Singh
and he fell down then, he started making Hullah. On his Hullah Rajdeo
Singh father of the deceased came and thereafter Anuj Singh, Bhola Singh
and other also came and the deceased died on the spot.
In his cross-examination, he stated that in his basti about
people of 60 castes lived. He further stated that the house of Rajdeo Singh
father of the deceased is in the middle of the village and from his house it is
at distance of 500 yard. He further stated that he had given evidence under
Section 164 Cr. P. C. also and he had not stated in his 164 Cr. P. C.
statement that after the occurrence of firing by Dhananjay Singh he ran
away towards the house of Hari Singh and then his father came. In para 13
he had not stated in his evidence that the deceased Hira Singh was
dismissed from police service and thereafter he was not doing any work and
used to drink wine and roam about here and there and was bad character. In
para 14 he stated that the accused, Dhananjay Singh is a good looking tall
man and at the time of occurrence he was looking like a young boy. He also
admitted in para 16 that at the time of occurrence in his house his wife and
children were present. In para 18 he also admitted that when he came out of
his house he found Dhananjay Singh at a distance of about 25 steps from
Hari Singh. He also stated that his statement was recorded after 15 days of
the occurrence by the police.
The next important witness is P.W.6 Raj Deo Singh, the
informant he fully supported the prosecution case and stated that the
deceased Hari Singh was his son and he was killed on the door of Suresh
Ram by accused Dhananjay Singh by firing. He stated that while searching
for his son, Hari Singh, when he came near the house of Suresh Ram then
he saw that Dhananjay Singh is having hot dialogue with his son, Hari
Singh and suddenly he fired upon him, whereupon, he fell down. The
Investigating Officer came at the place of occurrence his statement was
recorded. He stated that the statement was read over then he put his L.T.I.
on the same. He identified the accused in Court. He further stated that after
the occurrence the witnesses, Bhola Singh and Jitendra Singh came at the
place of occurrence. Then, he told about the occurrence to them. In his
cross-examination, at para 8 he stated that when he reached near the house
of Suresh Ram then he saw that Suresh Ram was standing there and at
some distance the accused, Dhananjay Singh and his son (deceased) were
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there. After he reached then only one firing was done by Dhananjay Singh
thereafter his son fell down then he had also fallen down on the body of his
son and became unconscious and there was blood stained in his cloth also.
In para 15 he further stated that he had shown the blood stained to the
Daroga also.
The third important witness to consider is doctor (P.W.9). He
stated on 22.5.97 I was posted at sadar hospital at Daltonganj, who
examined the deceased, Hari Singh on his body. He found lacerated wound
on the chest of size ½” x ¼” x chest cavity deep with blackening and
tattooing both skin and around the wound ( wound of entry).
In the opinion of the doctor the deceased died due to shock
and hemorrhage caused by injury no. 1 by fire arm.
P.W.12, Satya Devi wife of P.W.1, Suresh Ram. She stated in
Court that on the date of occurrence she was in her house cooking food
when she heard sound of firing she came out and saw the deceased, Hari
Singh lying down at her door with fire arm injury and nobody was present
there. She was declared hostile. She denied that she had stated to the police
that when she came out of the house she saw the accused Dhananjay Singh
running away from the place of occurrence and he had fired upon Hari
Singh.
6. Thus all the other witnesses, namely, P.W.2, Anirudh Singh
stated that he came after the occurrence and he was informed about the
occurrence by Suresh Ram and his wife. P.W.3, Jag Narayan Singh also
stated that he came after the occurrence and he was informed about the
occurrence by Suresh Ram and his wife. P.W.4, Ram Prasad Singh also
stated that he was informed by Suresh Ram that Dhananjay Singh caused
the death of Hira Singh and ran away. He denied, in his cross-examination,
in para 10 that he was informed by Suresh Ram that at the time of
occurrence Hari Singh was drunken and was making jokes. The accused
Dhananjay Singh and other witness are all hearsay witnesses.
7. Thus, after considering all the evidences as discussed above, I
find that there is no doubt that there was no enmity between the accused,
Dhananjay Singh and the deceased, Hari Singh. They came to the house of
Suresh Ram ( P.W.1) and peacefully sat on the chauki in front of his house
and they asked for water and when Suresh Ram went inside his house. On
some point they started quarreling with each other verbally and when
P.W.1, Suresh Ram came out he saw that they are engaged in verbal
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dialogue and suddenly the accused, Dhananjay Singh brought out a pistol
and aimed the deceased who asked him not to do it, otherwise he may die,
but during dialogue it appears that suddenly firing took place causing the
death of the deceased. The defence has tried to bring into the evidence that
the deceased Hari Singh was dismissed from his police service and used to
roam about the village in drunken condition and on that day also he had
come with the accused, Dhananjay Singh in that condition and due to
influence of liquor he must said something, due to which Dhananjay Singh
during hot discussion took out his pistol and suddenly firing took place,
which shows that it was an accidental fire.
8. In that view of the matter, conviction of the appellant under
Section 304 of the Indian Penal Code read with Section 27 of the Arms Act
is too harsh. The conviction of the appellant is altered to that of Section
304(II) of the Indian Penal Code and he is sentenced to the period already
undergone by him in custody during trial.
9. It is submitted by the learned counsel for the appellant that
the appellant has remained in custody for more than 6 months and has
sufficiently been punished.
10. With the aforesaid alteration in the conviction and sentence
the appeal is allowed in part.
[ Pradeep Kumar,J]
Jharkhand High Court, Ranchi
The 21 /12 /2009
Jk/NAFR