Jharkhand High Court
Kundan Singh vs The State Of Bihar (Now Jharkhand) on 11 March, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
Criminal Appeal (DB) No. 181 of 1997(R)
(Against the judgment and order of conviction and sentence
dated 30.06.1997 (sentence passed on 03.07.1997) passed by
Sri Dhruv Dev Pandey, learned 3rd Additional Sessions Judge,
Dhanbad in S.T. No. 163/94.)
Kundan Singh, S/o Atma Singh, R/o Nirsa, Bidla Dal, P.S.
Nirsa, Dist. Dhanbad ... Appellant
Versus
The State of Bihar (now Jharkhand) ... Respondent
----
PRESENT
HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
----
For the Appellant : Mr. Mahesh Tewari, Adv.
For the Respondent : Mr. Pankaj Kr. Mishra, A.P.P.
----
Dated : 11/03/2025
Per Rongon Mukhopadhyay, J. :
1. Heard Mr. Mahesh Tewari, learned counsel for the appellant and
Mr. Pankaj Kumar Mishra, learned A.P.P.
2. This appeal is directed against the judgment and order of
conviction and sentence dated 30.06.1997 (sentence passed on
03.07.1997) passed by Sri Dhruv Dev Pandey, learned 3rd Additional
Sessions Judge, Dhanbad. in S.T. No. 163/94, whereby and
whereunder, the appellant has been convicted for the offence
punishable under Section 302 IPC and has been sentenced to
imprisonment for life.
3. The prosecution case arises out of a written report given by Prem
Sah on 25.10.1992, in which it has been stated that at 10:00PM, his
brother Kailash Gupta was performing Laxmi Puja in his shop when
Kundan Singh (appellant) burst some crackers and inspite of
requesting Kundan Singh not to indulge in such act, he refused and
instead he threw one cracker inside the shop which displaced some
puja articles. It has been alleged that when the informant and others
reprimanded him, Kundan Singh went home in an enraged state and
after 20 minutes he came back with a firearm and when Kailash
Gupta protested, Kundan Singh shot at him from point blank range,
at which Kailash Gupta fell down on the ground in an injured state.
He was taken to the hospital where, in course of treatment, he died.
It has been stated that Pawan Sharma, Sudhir Kumar Ekka, Suresh
Kumar Naik, Ramesh Kumar Naik and Sunil Kumar Ekka were
present at the time of the incident.
Based on the aforesaid allegations, Nirsa P.S. Case No.191/92
was instituted against Kundan Singh under Section 302 IPC. On
completion of investigation, charge sheet was submitted and after
cognizance was taken, the case was committed to the Court of
Sessions, where it was registered as S.T. No. 163/94. Charge was
framed against the accused under Section 302 IPC which was read
over and explained to him, to which he pleaded not guilty and claimed
to be tried.
4. The prosecution has examined as many as nine witnesses in
support of its case:
P.W.1 Shiv Kumar Sharma has proved his signature on the
seizure list which has been marked as Exhibit-1/1.
P.W.2 Sunil Kumar Ekka has stated that on 25.10.1992 at 10-
10:30PM, he was in the shop of Kailash Prasad Gupta, where Kali Puja
was going on. Kundan Singh was bursting crackers and he was asked
not to do so, at which Kundan Singh left and went home. After the
puja was over, he saw Kundan Singh standing with a firearm and
when a request was made not to harm anyone, Kundan Singh insisted
that he will murder Kailash Prasad Gupta. When Kailash Prasad
Gupta confronted Kundan Singh asking about what mistake he has
committed, Kundan Singh fired at him, at which Kailash Prasad
Gupta fell on the ground. When he and the others chased Kundan
Singh, they were threatened, at which they came back to the place of
occurrence. Kailash Prasad was taken to Kumardubbi Hospital, but
on the way he died. The incident was later on informed to the Police.
The Police had recorded his statement. He has proved his signature
in his statement before the Magistrate which has been marked as
Exhibit-2.
In cross-examination, he has deposed that on the date of
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occurrence he had gone to the shop of Kailash at 5:00PM. Pawan
Sharma and Ramesh Nonia were also present at the time of
occurrence. Kailash was trying to reason with Kundan Singh not to
harm him at a distance of 2 feet, when Kundan Singh stepped
backwards and fired at Kailash Prasad. There was no previous enmity
between Kailash and Kundan Singh. When the Police came, Kailash
Prasad was already lying dead at the place of occurrence.
P.W.3 Sudhir Kumar Ekka has stated that on 25.10.1992 at
10:00PM, he had heard the sound of firecrackers at which he came
out from his house and saw Kundan Singh bursting firecrackers.
When Kundan Singh was asked not to indulge in such act, he threw
a firecracker inside the shop which damaged some puja materials.
Kundan Singh was scolded for such act and after sometime, he
returned with a firearm and shot at Kailash Gupta on his chest.
Kailash Gupta was taken to Kumardubbi Hospital, where doctors
declared him dead. The dead body was thereafter brought to Nirsa
P.S., where Prem Sao had given a written report. The Police had
recorded his statement.
In cross-examination, he has deposed that Kundan Singh was
reprimanded by him, Kailash Gupta, Pawan Kumar Sharma, Ramesh
Nonia and Sunil Kumar. The accused was chased away by these
persons. He does not know as to whether there was any previous
enmity between Kailash Gupta and Kundan Singh.
P.W.4 Ramesh Kumar Nonia has stated that on 25.10.1992 at
10:00PM, he was in the electronic repair shop of Kailash Gupta where
Laxmi Puja was going on. Kundan Singh had come all of a sudden and
threw a firecracker in front of the shop and when he and the others
resisted Kundan Singh, a firecracker was burst inside the shop which
led to scattering of the puja articles. He and the others had caught
Kundan Singh and forbade him to do such acts. Kundan Singh got
enraged and left for his house and after 20 minutes, returned back
with a double barrel gun and shot at Kailash from a close distance.
Kailash Gupta was thereafter taken to the hospital in Chirkunda, but
on the way he died. He has proved his signature in his statement
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before the Magistrate which has been marked as Exhibit-3.
In cross-examination, he has deposed that except Kundan Singh
nobody was bursting crackers. Nobody had heckled Kundan Singh
before he had fired.
P.W.5 Pawan Kumar Sharma has stated that he had gone to
the shop of Kailash Gupta on his invitation. Before the puja could be
over, the sound of firecracker was heard at the door of the shop and
when they came out, they saw Kundan Singh standing with a
chocolate bomb. In spite of the persons present objecting to such act,
Kundan Singh threw a chocolate bomb upon Kailash Gupta who fled
from the spot. Kundan Singh had thrown another firecracker inside
the shop and the same caused damage to some puja articles. Kundan
Singh was persuaded to leave, but after 15-20 minutes, he came back
with a double barrel gun and by taking an aim, shot at Kailash Gupta
at which he fell down. He has stated that Kailash Gupta was taken to
Kumardubbi Nursing Home, where on the way, he died. He has proved
his signature in the statement given before the learned Magistrate
which has been marked as Exhibit-3/1.
In cross-examination, he has deposed that he had not seen
blood either inside the shop or in the doorsteps of the shop. At the
time of the incident the mother, sister and wife were present. There
was no animosity between Kailash Gupta and Kundan Singh before
the occurrence.
P.W. 6 Lalita Devi is the mother of the deceased, who has been
declared hostile by the prosecution.
P.W.7 Dr. Binod Kumar was posted as an Assistant Professor
in the Department of Forensic Medicine, PMCH, Dhanbad and on
26.10.1992, he had conducted autopsy on the dead body of Kailash
Gupta and had found the following:
(i) Upper part of abdomen and lower part of
chest were bandanged.
(ii) Skin to cavity deep penetrating wounds of
pea sized diameter on the right side of
front of lower part of chest and at
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epigastria region at abdomen in an area of
6" diameter seen.
(iii) Skin to muscle deep penetrating wounds
of pea sized diameter on the dorsum of
right wrist joint.
(iv) On dissection- Both side chambers of the
heart were empty. Blood and clot seen in
the right side chest and abdominal cavity
which was about 1.1/2 liters. Liver,
diaphragm, base of right lung showed
multiple lacerations in which pellets were
found embedded. Eleven pellets were
taken out of the wound and kept in the
sealed labelled contained and was
handed over to Havaldar Birendra
Mishra.
(v) Stomach contained 200g pasty digested
rice. Urinary bladder was empty. All the
internal organs were pale.
The cause of death was opined to be on account of hemorrhage
and shock as a result of the above-mentioned injuries caused by
pellets. Such injuries may be caused by firearm from a distance of 10-
12 feet. He has proved the post mortem report which has been marked
as Exhibit-4.
In cross-examination, he has deposed that injury no. (i) and (ii)
did not show blackness at their margins. The injuries on the chest
cannot be caused from a distance of less than 10 feet.
P.W.8 Prem Kumar Sao is the informant and the brother of the
deceased who has stated that on 25.10.1992, Deepawali was being
celebrated in the shop of Kailash Gupta and at 10:00PM, Kundan
Singh was busting firecrackers. Although he was forbade not to do so,
he did not listen and threw a firecracker on the "Aarti plate" which
resulted in the puja materials getting scattered. When an objection
was raised, Kundan Singh went away and after ten minutes, he
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returned back with a gun and fired at Kailash Gupta which proved
fatal. The body was taken to Nirsa P.S. where he had submitted a
written report. He has proved the fardbeyan which has been marked
as Exhibit-5. The incident of firing was seen by Pawan Sharma,
Ramesh Nonia, Sudhir Ekka and Sunil Ekka.
In cross-examination, he has deposed that at the time of the
occurrence, the wife of Kailash Gupta was the only female present.
The firecrackers were burst at the time when the puja was going on.
In his written report, he had denied that firing was made by Kundan
Singh upon Kailash Gupta from a point-blank range.
P.W.9 Satyendra Narayan Singh was posted as a Sub-Inspector
of Police at Nirsa P.S. and on 25.10.1991 at 11:55PM, the informant
along with Sudhir Kumar Ekka, Sunil Ekka, Pawan Kumar Sharma
and Ramesh Kumar Nonia had come to the Police Station. He has
proved the signature of Prem Sah on the written report which has
been marked as Exhibit-5/1. The investigation was handed over to
him after which he recorded the restatement of the informant. He had
inspected the place of occurrence which is at Birla Dhal, Jamtara
Road in Dhiren Electronics which is the shop cum residence of
Kailash Gupta. He has proved the seizure list of seized box in a burnt
condition, a distorted steel plate, one incense stick and an earthen
lamp which has been marked as Exhibit-1/2. The burnt sound box
has been produced as Material Exhibit No.-I, while the steel plate has
been produced as Material Exhibit-II. He had prepared the inquest
report, though the same is not available on the record. The body was
sent for post-mortem to PMCH, Dhanbad. He had got recorded the
164 Cr.P.C. statements of Ramesh Kumar Nonia, Pawan Kumar
Sharma and Sunil Kumar Ekka before the Magistrate. He had
searched out the antecedents of the accused which are four in number
and in all the cases charge sheet have been submitted. After recording
the statement of the witnesses and after obtaining the post-mortem
report, charge sheet was submitted by him. He has proved the formal
FIR which has been marked as Exhibit-6.
In cross-examination, he has deposed that the written report
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was scribed by Satyendra, but he had not recorded his statement. He
had not recorded the statement of the priest. The FIR was sent to the
C.J.M. after two days, but he does not know the reason for the delay.
He had not seized blood-stained cloths and pellets.
5. The statement of the accused was recorded under Section 313
Cr.P.C. in which he has denied his complicity in the murder of Kailash
Gupta.
6. It has been submitted by Mr. Mahesh Tewari, learned counsel
for the appellant that the evidence of the witnesses is contradictory to
the written report of P.W.8. In the written report it has been mentioned
that Kailash Gupta was shot at by the appellant from point blank
range, but the report of the doctor conducting post-mortem speaks
otherwise. Some of the important witnesses have not been examined
by the prosecution which is evident from the testimony of the
Investigating Officer (P.W.9). The mother of the deceased has been
declared hostile by the prosecution. It has been submitted that the
FIR was sent to the Magistrate after two days and no explanation has
been furnished for such delay. The appellant has merely been made a
scapegoat, as the evidence would suggest, and since the learned trial
court has not considered these aspects of the case, this appeal
deserves to be allowed.
7. Mr. Pankaj Kumar Mishra, Learned A.P.P. has submitted that
the incident had taken place in the presence of several witnesses, who
all have supported the incident of the appellant firing at the deceased.
The delay in sending the FIR to the Magistrate has been sufficiently
explained in the judgment.
8. We have heard the learned counsel for the respective parties and
have also perused the trial court records.
9. The act of the appellant of having shot at Kailash Gupta from a
close range seems to gain muscle from the evidence of P.W.2, P.W.3,
P.W.4, P.W.5 and P.W.8. All these witnesses, including the informant,
were present in the shop of Kailash Gupta on invitation where a puja
ceremony was going on. They have witnessed the initial act of the
appellant in bursting crackers and on objection, throwing a
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firecracker at the place where the puja was being performed,
destroying and scattering some articles kept for the purposes of puja.
On being rebuked, the appellant went home enraged and resurfaced
after some time with a double barrel gun and despite the pleadings of
Kailash Gupta, shot at him in the chest which proved fatal for Kailash
Gupta. Mr. Tewari, in course of his submission, has tried to
distinguish the contents of the fardbeyan regarding firing from a
point-blank range and the evidence of P.W.7, but that by itself could
not demolish the case of the prosecution. P.W.2, P.W.3, P.W.4 and
P.W.5 have all stated that initially the appellant had threatened the
deceased by putting his firearm in the chest of the deceased, but later
on he moved back and fired which would be in consonance to the
evidence of P.W.7, who has deposed that the injury was caused by a
firearm shot at from a distance of 10-12 feet from the target. The
audacity of the appellant and his diabolical act in snuffing out the life
of an innocent person is writ large in the evidence of the witnesses.
The FIR is not an encyclopedia containing each and every minutest
details and mere saying that the appellant had shot at the deceased
from point blank range, which is contrary to the evidence of P.W.7,
would not hold ground primarily on account of the overwhelming
evidence on record which, in fact, vindicates the opinion of the doctor
and which categorizes the appellant as the solitary assailant. So far
as the delay of two days in sending the FIR to the Magistrate is
concerned, Mr. Tewari has relied upon the case of Meharaj Singh
(L/Nk.) v. State of UP reported in (1994) 05 SCC 188, wherein it has
been held as follows:
"12. FIR in a criminal case and
particularly in a murder case is a vital and
valuable piece of evidence for the purpose of
appreciating the evidence led at the trial. The
object of insisting upon prompt lodging of the FIR
is to obtain the earliest information regarding
the circumstance in which the crime was
committed, including the names of the actual
culprits and the parts played by them, the
weapons, if any, used, as also the names of the
eyewitnesses, if any. Delay in lodging the FIR
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often results in embellishment, which is a
creature of an afterthought. On account of delay,
the FIR not only gets bereft of the advantage of
spontaneity, danger also creeps in of the
introduction of a coloured version or
exaggerated story. With a view to determine
whether the FIR was lodged at the time it is
alleged to have been recorded, the courts
generally look for certain external checks. One
of the checks is the receipt of the copy of the FIR,
called a special report in a murder case, by the
local Magistrate. If this report is received by the
Magistrate late it can give rise to an inference
that the FIR was not lodged at the time it is
alleged to have been recorded, unless, of course
the prosecution can offer a satisfactory
explanation for the delay in despatching or
receipt of the copy of the FIR by the local
Magistrate. Prosecution has led no evidence at
all in this behalf. The second external check
equally important is the sending of the copy of
the FIR along with the dead body and its
reference in the inquest report. Even though the
inquest report, prepared under Section 174
CrPC, is aimed at serving a statutory function,
to lend credence to the prosecution case, the
details of the FIR and the gist of statements
recorded during inquest proceedings get
reflected in the report. The absence of those
details is indicative of the fact that the
prosecution story was still in an embryo state
and had not been given any shape and that the
FIR came to be recorded later on after due
deliberations and consultations and was then
ante-timed to give it the colour of a promptly
lodged FIR. In our opinion, on account of the
infirmities as noticed above, the FIR has lost its
value and authenticity and it appears to us that
the same has been ante-timed and had not been
recorded till the inquest proceedings were over
at the spot by PW 8."
10. The aforesaid findings would not be of much assistance to the
cause of the appellant for the reason that the FIR was lodged in the
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night of 25/26.10.1992 and 27.10.1992 was a Court holiday on
account of Chitragupta Puja and on 28.10.1992, the FIR was received
in the Court of the learned C.J.M., Dhanbad which would indicate an
appropriate explanation for such delay.
11. The learned trial court having considered all aspects of the
matter, had accordingly convicted the appellant for the offence
punishable under Section 302 IPC and had sentenced him to
imprisonment for life. We endorse the findings recorded by the learned
trial court and consequently, dismiss this appeal.
12. Since the appellant is on bail, he is directed to surrender
immediately and forthwith before the learned trial court to serve out
the rest part of his sentence.
13. Pending I.A.s, if any, stands closed.
(RONGON MUKHOPADHYAY, J.)
(ARUN KUMAR RAI, J.)
Jharkhand High Court, Ranchi
Dated the 11th Day of March, 2025
Preet/N.A.F.R.
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