IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. APPEAL (DB) No.779 of 2010
PANKAJ KUMAR SINGH, S/O SRI RAM NARESH SINGH, R/O
VILLAGE + P.O. DARIHARA, P.S. DARIYAPUR, DISTRICT SARAN AT
CHAPRA .. APPELLANT
Versus
THE STATE OF BIHAR .. RESPONDENT
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For the appellant .. Mr. Rana Pratap Singh,
Sr. Advocate with
Mr. Sumant Singh, Adv.
For the State .. Mr. Ashwini Kumar Sinha
A.P.P.
For the informant .. Mr. Basant Kr. Singh, Adv.
****
/6/ 27 April 2011 Heard the counsel for the appellant and the
State.
The learned counsel for the appellant placed the
copies of depositions etc. and on this basis it appeared that
the appeal is fit to be taken up on merit with the consent of
the other side. The appeal has been taken up on merit and
is being disposed off. The lower Court’s record has also
been received.
The appellant has been convicted under
Sections 302 of the Indian Penal Code and had been
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sentenced to undergo rigorous imprisonment for life. He
was, further, convicted under Section 27 of the Arms Act
and was sentenced to undergo rigorous imprisonment for
three years. The judgment of conviction and sentence was
passed on 16th April, 2010, by the Additional Sessions
Judge, XI, Saran at Chapra, in S.T. No. 24 of 2009. The
sentences were directed to run concurrently. The fardbeyan
of P.W. 7, Jagjiwan Paswan, was the basis of the
prosecution case. According to Jagjiwan Paswan on
16.12.2007 at 07.00 p.m. his son, deceased, Santosh
Kumar, aged about 20 years was basking the fire in front of
the house. At that time Pankaj Kumar Singh, the appellant,
aged about 19 years, was also basking fire. Suddenly, the
appellant got annoyed with Santosh Kumar upon which
Santosh Kumar wanted to run away, but, the appellant took
up pistol and fired causing instantaneous death of Santosh
Kumar. Initially appellant and the deceased were friends.
The occurrence was witnessed by P.W. 2, Banti Kumar
Paswan, P.W. 3, Kalawati Devi, wife of the informant,
Jagjiwan Paswan, and P.W. 4, Kalawati Devi, wife of Raj
Kumar, and Bahoo of P.W. 7, Jagjiwan Paswan, who were
present at the time of occurrence. The fardbeyan was
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entered into and registered as Dariyapur P.S. Case No. 102
of 2007 on 17.12.2007 against the sole appellant under
Sections 302 of the Indian Penal Code and 27 of the Arms
Act. The case was investigated into, charge sheet was
submitted, cognizance was taken and the case was
committed to the Court of sessions where the charge sheet
under Sections 302 of the Indian Penal Code and 27 of the
Arms Act was framed.
The plea of innocence was taken by the sole
accused/appellant. His, further, defence was that the father
of Santosh Kumar has not attributed any immediate cause
or motive of the occurrence and so there was possibility
and the implication with a view to ulterior motive.
The trial Court after considering the defence
and after hearing the parties subsequently convicted and
sentenced the appellant.
In order to prove the case, prosecution has
examined P.W. 1, Durgesh Paswan, P.W. 2, Banti Paswan,
P.W. 3, Kalawati Devi, wife of the informant, Jagjiwan
Paswan, P.W. 4, Kalawati Devi, wife of Raj Kumar Prasad
and aunt of the deceased, Santosh Kumar, P.W. 5, Gupta
Paswan, P.W. 6, Ramji Pandit, P.W. 7, Jagjiwan Paswan,
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the informant, P.W. 8, Dularchand Prasad, P.W. 9 Hareram
Singh, P.W. 10 Madan Singh, P.W. 11, Rafik Ahmad Kha,
the investigating officer, and P.W. 12, the doctor who has
conducted the post mortem examination and prepared the
post mortem examination report (exhibit 8). The doctor
has found the following ante mortem injuries on the body
of the deceased :
“External injury :-
(i) One lacerated with black chard margin
oval in shape ½” x ½” in size cavity deep
with margin inverted present at posterior
surface of left chest wall is would of
entry.(ii) One oval lacerated wound of size 1″ x 1″
in diameter with margin extruded on
middle of posterior chest wall is wound
of exit.”
The cause of death was due to fire arm injury.
The time as suggested by the doctor is identical as the time
given by the informant so death due to use of fire arm at the
given time has been established.
Subsequent to the filing of the appeal a plea
was taken by the appellant that wrong judgment has been
passed because on the date of occurrence the appellant was
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a juvenile. The claim of juvenility was taken by the
appellant through I.A. No. 1298 of 2010 in which it was
stated that on the date of occurrence, i.e., on 16th April,
2010, his age was assessed to be twenty years. The date of
occurrence being 06.12.2007 so that he was below eighteen
years on the date of occurrence, which was recorded in the
register of Indradeo Sanskrit Prathmik Sah Uchch School,
Saran. This Court on 15.12.2010 directed the Juvenile
Justice Board, Saran, to consider the plea of juvenility of
the appellant and a report was called for.
The called for report has been received,
according to which, the appellant was 16 years 2 months
and 27 days on the date of occurrence and he was declared
a juvenile by order, dated 14.02.2011 in J.E. No. 156 of
2011 by Juvenile Justice Board.
Subsequent to receipt of the enquiry report of
the Juvenile Justice Board the learned lawyer for the
appellant has taken plea that he is not challenging the
conviction, but, he is challenging the sentence. Reliance
has been placed on several decisions of the Apex Court.
One of the decisions reported in (2010) 6 S.C.C., 669
(Mohan Mali & Anr. Vrs. State of Madhya Pradesh),
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the Apex Court has allowed the appeal and the accused was
directed to be released forthwith. In another judgment
reported in (2010) 5 S.C.C., 344 (Dharambir Vrs. State
(N.C.T. of Delhi) and Anr.) the Apex Court sustained the
conviction and quashed the sentence. The learned lawyer
of the appellant has submitted that he is not challenging the
conviction and he prays that conviction may be sustained
and sentence be quashed.
On merit, with regard to period spent by the
appellant it has been submitted that he has remained in
custody since 21.01.2008 and as he has become major due
to efflux of time, now, he can not be sent to Juvenile Home
and so his case is on the identical footing as that of the case
reported in (2010) 5 S.C.C. 334 (supra). In another case
reported in A.I.R. 1994 S.C., 104 (Pradeep Kumar Vrs.
State of U.P.), the accused has attained majority during
pendency of the case and so direction was given to release
the accused forthwith while conviction was sustained.
The appellant has already undergone the maximum
sentence which could be awarded by the Juvenile Justice
Board. Now no useful purpose is going to be served by
keeping the appeal pending and if the appeal will be kept
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pending the ultimate result would be that the appeal would
have be disposed off in terms of the judgment reported by
the Apex Court. The legal position will be same.
Considering the submission that the conviction
is not challenged, in our view, the order of conviction is
sustained and sentence is set aside.
With the aforesaid observations and directions
this appeal is disposed off.
Let the order of release of the appellant, Pankaj
Kumar Singh, in connection with S.T. No. 24 of 2009,
pending in the Court of Sri Gangotri Ram Tripathi,
Additional Sessions Judge, XI, Saran at Chapra, be
transmitted forthwith.
(Shyam Kishore Sharma, J.)
S.A.
( Gopal Prasad, J.)