Jharkhand High Court
Dinesh Kumar Singh vs The State Of Jharkhand on 1 October, 2024
Author: Ananda Sen
Bench: Ananda Sen
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.1161 of 2016
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(Against the judgment of conviction dated 26.08.2016 and order of sentence
dated 27.08.2016 passed by learned Additional Sessions Judge-III, Chatra
in Sessions Trial No. 34 of 2005)
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Dinesh Kumar Singh, son of late Chandra Deo Singh, resident of
village Doragadha, PO and PS Chatra Sadar, District Chatra
... Appellant(s).
Versus
The State of Jharkhand ... Respondent(s).
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PRESENT
SRI ANANDA SEN, J.
SRI GAUTAM KUMAR CHOUDHARY, J.
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For the Appellant(s) : Mr. Ashim Kumar Sahni, Advocate
For the Respondent(s) : Mrs. Priya Shreshtha, Sp.PP
.........
JUDGMENT
CAV on :19.09.2024 Pronounced on : 01 / 10 /2024
Per Ananda Sen, J.: This Criminal Appeal arises out of the judgment of
conviction dated 26.08.2016 and order of sentence dated
27.08.2016 in Sessions Trial No. 34 of 2005 whereby and
whereunder learned Additional Sessions Judge-III, Chatra
convicted the appellant under Sections 147, 148, 302, 323 of the
Indian Penal Code and section 27 of the Arms Act and sentenced
him to undergo RI for life with fine of Rs. 25,000/- under
Sections 302 of the Indian Penal Code, RI for 3 years with fine of
Rs. 5,000/-under Section 27 of the Arms Act, SI for 6 months
under section 147 IPC, SI for one year under section 148 IPC and
SI for 6 months under section 323 IPC.
2. The learned counsel appearing on behalf of the appellant
submitted that the prosecution had neither exhibited the
postmortem report of the deceased nor examined the doctor who
conducted the postmortem. In absence of the postmortem report,
it cannot be said that the deceased died a homicidal death. The
witness merely stated that the appellant shot the deceased on his
head, but the same has not been corroborated by any medical
evidence. The incident occurred on 25.06.2004 but there is no
document to suggest when the deceased died, though it has been
stated that he died on 30.06.2004. It has come in evidence that the
deceased was treated in Patna but none of the doctors who
treated him in Patna were produced by the prosecution as a
witness. It has been further submitted that the murder weapon
was not seized nor was examined by the experts. The entire
prosecution case that the deceased was shot was false and
concocted. From the FIR, prosecution case and evidence of the
witnesses it would be clear that the appellant had no intention to
commit murder. Dispute of the appellant was admittedly not
with the deceased. Further in the evidence it has come that this
appellant with the butt of the revolver assaulted the injured
witness with whom there was dispute. If the appellant had any
intention to commit murder, he could have fired upon the person
with whom he was in inimical term and there was no occasion
nor intention to shoot the deceased. PW13, the doctor, who
examined Mithilesh Kumar, Aarti Devi and Pankaj Kumar, did
not find any life threatening injuries on them, which would
suggest that there was no intention to commit murder. On these
grounds he prays for acquittal.
3. The learned counsel for the State admitted that though the
postmortem report and the doctor who conducted the
postmortem was not examined, yet the inquest report clearly
suggests that the deceased died a homicidal death. Eye-witnesses
including injured witnesses stated that the appellant shot the
deceased. The learned counsel also argued that from the
evidence it is quite clear that admittedly there was no dispute
between the appellant and the deceased and the deceased only
intervened when fight was going on between this appellant and
others, but the appellant shot dead the deceased. The weapon
used is a fire arm. There is nothing to suggest that this appellant
was a license holder of the said fire arm used, thus the natural
corollary would be that the fire arm used was by illegal means,
thus offence under the Arms Act is attracted. Thus the appellant
has been rightly convicted.
4. The case of the prosecution is based on the fardbeyan of
Pankaj Kumar (informant) who stated that on 25.06.2004 at about
6:00 PM he was sitting in his house with his grandfather Dhanu
Kahar, when 5-6 persons came and started beating him, his
mother, aunt, uncle and Mithilesh Singh. On hearing the alarm,
Ashok Kesari along with others came to rescue Pankaj Kumar
when Dinesh Kumar Singh fired shot from a firearm upon Ashok
Kesari, on his head. Ashok Kesari fell down and became
unconscious. He was taken to hospital from where he was
referred to Patna for treatment, where he died on 30.06.2004
during treatment. On the basis of fardbeyan of Pankaj Kumar, the
F.I.R. of Chatra Sadar PS Case No. 152 of 2004 dated 25.06.2004
was registered under sections 147, 148, 149, 447, 341, 323, 324,
325, 307, 504 of IPC and section 27 of Arms Act.
5. After investigation, the Investigating Officer submitted
chargesheet against the appellant for the offence punishable
under Section 147, 148, 323, 341, 324, 325, 504, 307 and 302 of the
Indian Penal Code and section 27 of the Arms Act.
6. On the basis of chargesheet and materials available on
record cognizance was taken and case was committed to the
Court of Sessions where charges were framed and trial
proceeded.
7. To prove the prosecution case, altogether 15 witnesses
were examined by the prosecution who are as follows:-
i. PW1 :- Jugal Kishore Singh, I.O. of this case.
ii. PW2 :- Ajay Prasad Keshri
iii. PW3 :- Aarti Devi
iv. PW4 :- Sunil Kumar Keshri
v. PW5 :- Badho Prasad Keshri, father of the deceased.
vi.PW6:- Chinta Devi
vii. PW7:- Mithilesh Kumar
viii. PW8 :- Subhash Rawani
ix. PW9:- Umesh Prasad Keshri
x. PW10:- Uday Kumar Keshri
xi. PW11:- Prakash Prasad Keshri
xii.PW12:- Pankaj Kumar, Informant
xiii. PW13:- Dr. Jitendra Kumar
xiv. PW14:- Parmeshwar Prasad Keshri
xv. PW15:- Arjun Prasad Keshri
8. PW1 is the investigating officer of this case. He had taken
restatement of informant and statement of several witnesses. He
proved the fardbeyan which is marked as Exhibit-1 and also
proved the endorsement made in the fardbeyan in the
handwriting and signature of Inspector, Sri B.B. Ram which was
marked as Exhibit-2. He had also proved the formal FIR which
was marked as Exhibit-3.
PW2 stated that the occurrence is of 25.06.2004. Dinesh
Singh along with other accused were assaulting Pankaj, his
uncle, aunt and brother, when Ashok Keshri who is brother of
PW2 tried to intervene. Dinesh Singh had fired on the head of
Ashok Keshri thereupon Ashok Keshri fell down and blood
started oozing from his head. He was taken to hospital from
there he was referred to Patna for treatment, where he died on
30.06.2004 during treatment.
PW3 is the injured eye witnesses of the occurrence. She
stated that the occurrence was of 25.06.2004 at about 6:00 PM.
Dinesh Singh along with other accused were assaulting Pankaj
and when Ashok Keshri tried to stop them, Dinesh Singh had
fired shot from a fire weapon on the head of Ashok who fell
down in the floor. He was taken to Chatra Hospital from where
he was referred to Patna for treatment where he died.
PW4 is the eye-witness of the occurrence. He had seen
revolver in the hand of Dinesh Singh and Bablu Mali. Upon fire
by Dinesh Singh on the head of Ashok Keshri, he fell and became
unconscious. He was referred from Chatra Hospital to Patna for
treatment where he died. He has proved his signature on the
inquest report, which is marked as Exhibit-4.
PW5 is the father of the deceased and an eye witness of the
occurrence. He stated that at about 6:00 PM on 25.06.2004 he was
at his home when he heard some commotion from the house of
Pankaj. He along with others went there and saw Dinesh Singh
along with other accused assaulting Pankaj, his uncle and aunt.
When they asked to stop the assault, Dinesh Singh fired at the
head of Ashok. Ashok died on 30.06.2004 while treatment at
Patna.
PW6 had stated that the occurrence is of two and half years
ago i.e. dated 25.06.2004. Dinesh Singh along with other accused
were assaulting Pankaj and when she along with her brother-in-
law and sister-in-law tried to stop the assault then Dinesh Singh
had fired on the head of Ashok Keshri who fell and became
unconscious. He was taken to Chatra Hospital from where he
was referred to Patna for treatment where he died.
PW7 is the brother of the deceased. He stated that the
occurrence is of 25.06.2004 at about 6:00-6:30 PM. Dinesh Singh
along with other accused were assaulting Pankaj. When he,
Ashok Keshri along with other tried to rescue Pankaj, Dinesh
Singh fired shot on the head of Ashok Keshri, who fell down and
became unconscious. Thereafter the accused persons fled away.
Ashok Keshri was taken to Chatra Hospital from where he was
referred to Patna for treatment where he died.
PW8 is the uncle of the deceased who had stated that the
occurrence is dated 25.06.2004 at about 6:30 PM when Dinesh
Singh along with other accused were assaulting Pankaj Kumar.
When he along with other family members tried rescue Pankaj
Kumar, Dinesh Singh and Dablu Mali assaulted him with the
butt of the revolver and when Ashok Keshri along with other
tried to stop the assault, Dinesh Singh fired shot at the head of
Ashok Keshri. He also stated that after 4-5 days, he got
information that Ashok Keshri had died.
PW9, PW10 and PW11 were declared hostile by the
prosecution.
PW12 is the informant of the case. He has denied that any
murder was committed in his presence and no firearm was used.
He was also declared hostile by the prosecution. He was cross
examined by prosecution but nothing important could be
extracted.
PW13 is the doctor who examined the injured. On
examination of Mithilesh Kumar he found the following
injuries:-
(i) lacerated wound over upper lip with bruise size ½" x 1"x
1½", four stiches done.
(ii) Abraded wound over right chin size ½" x ½" x ¼".
(iii) Pain and swelling over right thumb and right hand with
tenderness and unwilling to attend movement of thumb.
(iv) Pain and swelling and tenderness over left hand and
unable to move his hand.
(v) Pain and swelling and tenderness over left leg and unable
to move left leg.
(vi) Pain and swelling over right third finger.
(vii) Pain and swelling over right shoulder.
He found following injuries on the person of Pankaj Kumar :-
(i) Lacerated wound over mid parietal region ½" x ½" x 1½",
three stitching done.
(ii) Abrasion over nose ½" x ½" x ¼".
(iii) Pain and swelling over right zygomatic region.
(iv) Pain and swelling over right lower lip.
(v) Bruise over lower lumber.
The doctor found the following injury on Aarti Devi :-
Lacerated wound over left parietal region of skull with bruise
size 1" x ½" x ¼".
The doctor found the following injury on Chinta Devi :-
(i) Pain and swelling over right hand.
(ii) Pain and swelling over pelvis region.
(iii) Pain and swelling over right knee.
All four injury reports are marked as Exhibit Nos.6, 6/1,
6/2 and 6/3.
PW14 is the hearsay witness. He was informed about the
occurrence by Sunil Prasad Keshri. He has also proved inquest
report which was earlier marked as Exhibit-4. He identified his
signature on it also which was marked "X" for identification.
PW15 is also an eye-witness of the occurrence. He also
stated that the date of occurrence is 25.06.2004. On provocation
of Dablu Mali, appellant Dinesh Singh shot on the head of Ashok
Keshri. Dinesh Singh died on 30.06.2004 during his treatment at
Patna.
9. Following documents were exhibited on behalf of the
prosecution:
i. Ext.1 - Fardbeyan.
ii. Ext.2 - Endorsement on fardbeyan
iii. Ext.3 - Formal FIR
iv. Ext.4 - Signature of Sunil Kumar Keshri on inquest report
v. Ext.5 - Signature of Pankaj Kumar on the fardbeyan
vi. Ext.6 - Injury report of Mithilesh Kuamr.
vii. Ext.6/1 - Injury report of Pankaj Kumar
viii. Ext.6/2 - Injury report of Aarti Devi
ix. Ext. 6/3 - Injury report of Chinta Devi
Mark X - Signature of Parmeshwar Prasad Keshri on inquest report.
Defence also exhibited several documents like deposition
of the witnesses of S.T. Case No. 44 of 2007 and S.T. Case No. 137
of 2005, some orders of CJM and chargesheets of Sadar PS Case
No. 152 of 2007.
10. The case of the prosecution is that the appellant has
committed murder of Ashok Keshari by using firearm. It is also
the case of the prosecution that the appellant forming an
unlawful assembly, with the common object, was engaged in
rioting. He assaulted and caused hurt to Mithilesh Kumar,
Pankaj Kumar and Aarti Devi also with the butt of the gun
thereafter when the deceased came to intervene and save the
injured, he shot the deceased on his head. The eye-witnesses
PW2, PW3, PW4, PW5 and PW6 have stated that this appellant
along with other accused was assaulting Pankaj. PW5 who is also
an eye-witness and father of the deceased stated that he saw this
appellant along with other co-accused assaulting Pankaj, his
uncle and aunt also. PW6 is also an eye-witness who stated that
this appellant and others were assaulting Pankaj. PW7 was also
the injured witness, who also stated that he was also assaulted
and initially Dinesh Singh and this appellant was assaulting
Pankaj. Mithilesh Kumar (PW7), Aarti Devi (PW3) and Chinta
Devi (PW6) clearly stated that this appellant and others were
assaulting Pankaj Kumar. Pankaj Kumar is PW12 and the
informant of this case, surprisingly he was declared hostile. He
had not supported the prosecution case. The fact that he was
assaulted and Mithilesh and others were also assaulted, had been
admitted by him in his evidence but he did not take the name of
this appellant and others to be the assailants. If I analyse the
aforesaid evidence properly, I find the fact that Mithilesh, the
informant and others were assaulted has been established by the
prosecution. The informant though turned hostile but other eye-
witnesses are also the injured witnesses i.e. PW3, PW6 and PW7
had stated that this appellant has assaulted them. The Doctor
who is PW13 also found the injuries on Pankaj Kumar, Aarti,
Chinta Devi and Mithilesh Kumar and their medical reports
were marked exhibits. Thus from the evidence, I find that the
prosecution has been able to prove the charge under section 323
against this appellant for assaulting Pankaj Kumar, Aarti, Chinta
Devi and Mithilesh Kumar.
11. PW2 in his evidence has stated that nine persons came
forming an unlawful assembly and started assaulting Pankaj
with fist and slaps. They also started assaulting his uncle and
aunt also. He is an eye-witness to the occurrence. PW3 also had
taken names of the nine persons including this appellant who
assembled and starting abusing and assaulting the injured
persons. Similar is the statement of the PW4 and PW5. They have
also stated that these persons were also assaulting Pankaj and
other family members. This evidence is consistent. Thus, I am of
the opinion that the prosecution has also been able to prove the
charge under sections 147 and 148 of the Indian Penal Code as
these persons formed an unlawful assembly, which is evident
from the evidence and they had a common object to assault
Pankaj and other family members.
12. Now it has to be seen whether the charge under section 302
of the IPC and section 27 of the Arms Act have been proved
against this appellant or not. To bring home the charge of section
302 of the IPC, it has to be proved that the deceased died a
homicidal death, which is murder. In support of homicidal
death, I find that the prosecution had only produced oral
evidence. The witnesses who are eye-witnesses to the occurrence
had stated that this appellant was assaulting Pankaj, his uncle
and aunt and his brother along with others, when the deceased
and others intervened. The deceased was shot by this appellant
on his head by fire arm. This is the consistent evidence of all the
eye-witnesses of this case. The defence disputed the aforesaid
fact and submitted that this appellant had not shot the deceased.
PW4 is one of the important witness of this case who stated that
this appellant and one Bablu Mali was having revolver in their
hand. He stated that the injured were being assaulted by fist and
slaps and by the butt of the revolver. PW2 who is also eye-
witness stated that this appellant shot dead the deceased as the
deceased intervened in the fight when the appellant and others
questioned him as to why he is intervening in the matter of the
appellant and the injured and thereafter shot him on his head.
PW4 also stated on the same line. PW3 stated that this appellant
hit the deceased with revolver. All the eye-witnesses stated that
the deceased was shot by this appellant. PW7 stated that in the
initial stage of fight this appellant was assaulting the injured
with the butt of the revolver. PW8 also stated that initially he
was also assaulted with the butt of the revolver. Thus all the eye-
witnesses have stated that with the butt of the revolver the
injured were assaulted. The fact that the injured was assaulted
and they sustained injury, as observed earlier, is established
from the evidence of PW13. Thus the prosecution has proved the
first incident of assault upon the injured which I have dealt in
paragraph no. 10 hereinabove.
13. The question now is whether the prosecution has been able
to prove the use of fire arm. The prosecution witness stated that
revolver was used by this appellant, firstly for assaulting the
injured with the butt of the same and thereafter, shooting the
deceased.
So far as firing from the revolver is concerned, I find that
there is only oral evidence to the aforesaid effect. It is the
prosecution case and also as per the evidence of the witnesses
that the appellant shot the deceased on his head. The deceased
was taken to Chatra Hospital in an injured condition from where
he was referred to the Patna and was admitted in Lal Nursing
Home where he died on 30.06.2004. From the evidence led, I find
that neither the doctor of Chatra Hospital who treated the
deceased in an injured condition nor the doctors of Lal Nursing
Home, Patna were examined in support of the prosecution case
that the deceased was shot on his head. Even the postmortem
report of the deceased was also not exhibited and the inquest
report was also not exhibited it was only marked as "X" for
identification. The revolver which was being carried by this
appellant and was used for firing bullet on the head of the
deceased was also not seized nor there is any report of Blastic
Expert to suggest that a revolver was used. The prosecution
failed to establish by medical evidence that the deceased was
shot on his head. The defence had taken a plea that the appellant
has not shot the deceased as it was never the intention of the
appellant to shoot anyone. The witnesses clearly stated that the
injured were being assaulted by this appellant and others with
the butt of the revolver. If he would have any intention to shoot
any person, this appellant would not have assaulted the injured
person with the butt rather he would have immediately shot
them. The fact that this appellant was initially assaulting the
injured witnesses with the butt of the revolver was admitted by
PW3, PW4 and PW8 also. This evidence coupled with the fact
that the prosecution had not brought the postmortem report or
the injury report nor had produced any report from the doctors
who treated the deceased at Chatra Hospital and Patna Hospital,
creates a doubt in the mind of this Court as to whether this
appellant had actually shot the deceased on his head or not. This
evidence also creates a doubt in the mind of this Court as to
whether this appellant had any intention to fire from the
revolver or not, causing death of the deceased.
14. For the reasons discussed above it is doubtful if the
appellant actually shot the deceased on his head using the
revolver. Under the circumstance conviction under section 302 of
the Indian Penal Code is not sustainable.
15. So far as use of the fire arm is concerned and assaulting the
injured with the butt of the fire arm is concerned, I find that
neither the fire arm was recovered nor there is anything to
suggest in the entire evidence oral or documentary that any fire
arm was recovered from the physical position of this appellant or
from the house of this appellant. Thus, when there is no
corroborative evidence of seizure of fire arm, it cannot be said
that the appellant had used the fire arm for any purpose.
16. Thus by giving benefit of doubt, I acquit the appellant from
the charge under section 302 of IPC and under Section 27 of
Arms Act, but his conviction and sentence for committing the
offence under sections 148 and 323 of IPC is upheld. Since the
appellant has already remained in custody for approximately 10
years and has already served the sentenced passed under
sections 148 and 323 of IPC, this Court directs the above named
appellant to be released forthwith from custody, if not required
in any other case.
17. This criminal appeal is partly allowed by modifying the
judgment of conviction dated 26.08.2016 and order of sentence
dated 27.08.2016 in Sessions Trial No. 34 of 2005.
18. I.A. No. 4826 of 2023 is disposed of.
19. Let a copy of the judgment along with the Trial Court
Records be sent back to the Court concerned forthwith.
(ANANDA SEN, J.)
GAUTAM KUMAR CHOUDHARY, J. - I agree.
(GAUTAM KUMAR CHOUDHARY, J.)
High Court of Jharkhand, Ranchi
Dated : 01 /10 /2024
Tanuj/
N.A.F.R.
