Dhanjay Kumar Singh @ Dhananjay ... vs The State Of Jharkhand
2022 Latest Caselaw 3995 Jhar

                                                    1                      Cr.M.P. No. 2878 of 2021


                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                 Cr.M.P. No. 2878 of 2021
             Dhanjay Kumar Singh @ Dhananjay Kumar Singh @ Dhananjay Singh, son
             of Sri Satyanarayan Singh, aged about 47 years, resident of 201, Girja
             Apartment, Ramson Residency, Binay Vihar Colony, Khatal Road, Dhaiya,
             Bachpan Public School, Kalyanpur, P.O. & P.S. Kanyanpur, District- Dhanbad
                                                                    ... Petitioner
                                        -Versus-
             The State of Jharkhand                                ... Opposite Party
                                            -----

             CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                            -----
             For the Petitioner             : Mr. Saurabh Shekhar, Advocate
                                              Mr. Raj Vardhan, Advocate

             For the Opposite Party-State   : Mr. Gaurav Raj, A.C. to A.A.G.-II
             For the Informant              : Mr. Ravi Kumar Singh, Advocate
                                            -----

04/28.09.2022. I.A. No.4990 of 2022 has been filed for ignoring the surviving defect.

2. In view of the statement made in paragraph 6 of the said I.A., the

surviving defect is ignored.

3. Accordingly, I.A. No.4990 of 2022 stands disposed of.

4. Heard Mr. Saurabh Shekhar, learned counsel appearing for the

petitioner, Mr. Ravi Kumar Singh, learned counsel for the informant and

Mr. Gaurav Raj, learned counsel for the State.

5. This petition has been filed for quashing of order taking cognizance

dated 06.07.2021 passed by the learned Judicial Magistrate, 1 st Class,

Garhwa in Bhawnathpur P.S. Case No.234/2020, whereby, cognizance has

been taken under Section 304 (Part-II), 201 read with Section 34 of the

Indian Penal Code and under Section 27 of the Arms Act, pending in the

court of the learned Judicial Magistrate, 1st Class, Garhwa.

6. The case was lodged alleging therein that on 10.12.2020 at 07:45

a.m., Arvind Kumar Singh (deceased) along with his friend Govind Singh

had gone to a marriage at Bhawnathpur on his XUV vehicle along with other

friend Awadh Bihari Singh, Vinay Singh who had also accompanied him.

When Arvind Kumar Singh did not return from marriage then the informant

and his family members tried to find about Arvind Kumar Singh. Thereafter,

the informant came to know that in the marriage, guns were fired in the

night and one person got injured due to firing and he had been admitted in

Sadar Hospital, Daltonganj. It was further alleged that the informant along

with Vinit Pratap Singh went to the Hospital to identify the body of the

deceased and in the meantime the informant came to know that the vehicle

of Arvind Kumar Singh had been parked by somebody in the yard. Then the

informant tried to contact Awadh Bihari Singh through phone but he was

unable to reach him. The informant alleged that the deceased's friend

Awadh Bihari Singh, Vinay Singh and Dhananjay Singh did not inform about

the incident and took the deceased (Arvind Kumar Singh) to the hospital

and left him there unattended. On the basis of above written report,

Bhawnathpur P.S. Case No.234/2020 was registered.

7. Mr. Saurabh Shekhar, learned counsel appearing for the petitioner

submits that there was no intention to death. The death is causing by

negligence and therefore Section 304-A of the Indian Penal Code is

attracted although the learned court has taken cognizance under Section

304 (Part-II) of the Indian Penal Code and being aggrieved with that part

only, this petition has been filed. He further submits that the cognizance

was required to be taken under Section 304-A of the Indian Penal Code. He

also submits that in the postmortem report, the Medical Officer opined that

the firearm injury are antimortem in nature cause by firearm, death is due

to haemorrhagic shock and as a result of firearm injury. The time of death is

16-24 hours from the time term of postmortem. There is allegation that the

petitioner has intentionally fired upon the deceased and Section 304

(Part-II) of the Indian Penal Code was added instead of Section 304-A of

the Indian Penal Code. On these grounds, that part of the order is bad in

law. He relied upon the judgment passed by the Hon'ble Supreme Court in

State through PS Lodhi Colony, New Delhi v. Sanjeev Nanda,

[(2012) 8 SCC 450].

8. Paragraph 38 of the said order reads as under:

"38.We may profitably deal with the definition of "reckless" as defined in The Law Lexicon, which reads as under:

"Reckless.--Characterized by the creation of a substantial and unjustifiable risk of harm to others and by a conscious (and sometimes deliberate) disregard for or indifference to that risk; heedless; rash. Reckless conduct is much more than mere negligence: it is a gross deviation from what a reasonable person would do. (Black's Law Dictionary, 7th Edn., 1999) 'Intention cannot exist without foresight, but foresight can exist without intention. For a man may foresee the possible or even probable consequences of his conduct and yet not desire them to occur; none the less if he persists on his course he knowingly runs the risk of bringing about the unwished result. To describe this state of mind the word "reckless" is the most appropriate. ...'"

9. On the other hand, Mr. Ravi Kumar Singh who appeared suo motu on

behalf of the informant submits that these are the subject matter of trial

and the learned court has rightly taken the cognizance under Section 304

(Part-II) of the Indian Penal Code, which has also been supported by the

learned counsel for the State.

10. In view of the above submissions of the learned counsel for the

parties, the Court has gone through the materials on the record and finds

that in the cognizance order, it has been recorded that during investigation

it was found that the petitioner opened fire from the pistol during the dance

function at the marriage and he had been warned by his friends several

times that as it was closed room he must not open fire as someone may get

hurt, but first time the petitioner opened fire with his gun and bullet hit the

window. Then Arvind Kumar Singh (deceased) asked and tried to stop the

petitioner but he fired second shot from his gun and it hit the deceased.

11. The accused having knowledge that his act was likely to cause death,

but had no intention to cause death or such bodily injury likely to cause

death, then the conviction under Section 302 of the Indian Penal Code

modified to Section 304 (Part-II) of the Indian Penal Code. A reference may

be made to the judgment passed by the Hon'ble Supreme Court in

Bhagwan Singh v. State of Uttarakhand, [(2020) 14 SCC 184] . In this

judgment, the firing by accused in the marriage causing death of two

persons and injuries to three others was the subject matter before the

Hon'ble Supreme Court. In the identical situation, firing made in the

marriage ceremony was the subject matter before the Delhi High Court in

Nehru Jain v. State NCT of Delhi, (2005 SCC OnLine Del 47) . Moreover,

only cognizance has been taken against the petitioner and he can prove his

case by way of pleading the evidence, so far as the argument of Mr.

Saurabh Shekhar, learned counsel appearing for the petitioner is concerned.

12. In the case relied by Mr. Saurabh Shekhar, learned counsel appearing

for the petitioner, the Hon'ble Supreme Court has come to that finding after

considering the evidence led before the trial court. Thus, the judgment

relied by the learned counsel appearing for the petitioner is not helping the

petitioner.

13. Accordingly, this petition stands dismissed. However, the observation

made in this order shall not come into the way of trial and the trial court will

proceed on its own merit.

(Sanjay Kumar Dwivedi, J.) Ajay/