Patna High Court
Indu Jha And Anr vs The State Of Bihar on 16 May, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.930 of 2017
Arising Out of PS. Case No.-13 Year-2015 Thana- BAHADURPUR District- Darbhanga
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1. Indu Jha, Son of Ram Binod Jha, resident of village - Balbhadrapur
Navtol, Police Station -Bahadurpur, District - Darbhanga.
2. Ajay Thakur, Son of Late Mahabir Thakur, resident of Mohalla -
Shahgunj Benta, Police Station - Laheriasarai, District - Darbhanga
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr.Shambhu Nath Jha
For the Respondent/s : Mr.Shashi Bala Verma
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 16-05-2024
1. We have heard Shri Shravan Kumar, the
learned Advocate for the appellants and Mr.
Abhimanyu Sharma, the learned APP for the State.
2. One Gangesh Kunwar is said to have been
killed by appellant no. 1/ Indu Jha. Appellant no.
2/Ajay Thakur knew about the occurrence as it was
told to him and from his house, the weapon of
assault, namely, an automatic country-made pistol,
was recovered.
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
2/25
3. Both the appellants, therefore, were charged
for the offences under Sections 302/32, 201/34
and 34 of the IPC and Section 25(1-b)a of the
Arms Act after obtaining sanction from the District
Magistrate.
4. They were put on trial and the Trial Court viz.
the learned 1st Additional District & Sessions
Judge, Darbhanga in S.Tr. No. 315/2015 arising
out of Bahadurpur P.S. Case No. 13/2015 after
examining fourteen witnesses on behalf of the
prosecution and none on behalf of the defence
convicted the appellants for the offence under
Sections 302/34 read with Section 120 (B) and
201/34 read with Section 120(B) IPC and Section
25 (1-B)a of the Arms Act vide judgment dated
29.05.2017
. Apart from that appellant / Indu Jha
has also been convicted for the offence under
Section 27(1) of the Arms Act and appellant/Ajay
Thakur for the offence under Sections 26 and 27
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
of the Arms Act. By order dated 01.06.2017, they
have been sentenced to undergo imprisonment for
life along with a fine of Rs. 20,000/- each and in
default of payment of fine, to further suffer R.I. for
six months for the offence under Sections 302/34;
R.I. for three years, to pay a fine of Rs. 5,000/-
and in default for payment of fine, to further suffer
R.I. for two months each for the offence under
Section 201/34 IPC and R.I. for three years, to
pay a fine of Rs. 2,000/-each and in default of
payment of fine, to further suffer R.I. for one
month each for the offence under Section 25(1-B)a
of the Arms Act. Apart from that appellant / Indu
Jha has been sentenced to undergo R.I. for five
years along with a fine of Rs. 5,000/- and in
default of payment of fine, to further suffer
imprisonment for three months for the offence
under Section 27(1) of the Arms Act and
appellant /Ajay Thakur has been sentenced to
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
undergo R.I. for five years along with a fine of Rs.
3,000/- and in default of payment of fine, to
further suffer R.I. for one month for the offence
under Section 26 and 35 of the Arms Act.
5. The sister of the deceased had lodged the
FIR on 10.01.2015 at about 10.00 P.M. alleging
that the deceased/her brother, had been residing
alternately in the houses of his two aunts. A few
days ago, the deceased had sold his land with the
help of appellant no. 1, his cousin, but the entire
money of the sale proceeds were not given by the
vendees. On 10.01.2015, she learnt in the evening
that her brother has been killed at Balbhadrapur,
Navtol. On this information, she went to the place
indicated to her, where she found her brother dead
with gunshot wounds in his chest. The brother of
the informant had come to his aunt's house,
namely, Siya Devi only on 10.01.2015. She
suspected that because of the dispute over sale of
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
land or the proceeds of the same, her brother was
killed.
6. On such written report by the sister of the
deceased (PW7), a case vide Bahadurpur P.S.
Case No. 13/2015 dated 10.01.2015 was
registered for investigation under Sections 302/34
of the IPC and Section 25(-b)a 26/35 of the Arms
Act against unknown.
7. From the narration made in the written
report, it clearly appears that no suspicion was
raised against appellant no. 1, who is the cousin of
the deceased as the informant stated that the land
of the deceased was sold with the help of appellant
no. 1. The murder could have been committed
according to her by the vendee/vendees who had
not yet paid the entire consideration amount.
8. The Investigator of this case, namely, Deenanath
Mandal had actually received an information at the
police station at about 4.40 in the day on
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
10.01.2015 that a person belonging to Sinwar
Gopal has received gun-shot injuries at
Balbhadrapur Navtol and he has been taken to
DMCH for treatment. A station diary entry was
recorded by him and he along with the police party
went to DMCH, only to find the deceased dead. An
inquest report was prepared at 5.45 P.M. on the
same day. The written report by the sister of the
deceased was received thereafter and her further
statement was recorded. Before the Trial Court,
the Investigator has further narrated that in the
hospital, he learnt that perhaps the deceased was
killed in the cattle-house located behind Gyan
Niketan School in Bahadurpur, Navtol. With the
help of local Chowkidar, namely, Bilak Paswan (not
examined), he visited the house of one Suraj Jha
who owned the cattle-house. He had found one
pellet and two empty cartridges in the cattle-
house. The pellet was of 7.65 mm. In the afore-
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
noted cattle shed, few empty bottles of liquor
were also found. Cigarette packets and match
boxes were also found strewn on the floor.
Everything which could be incriminating was seized
from the cattle-house and a seizure list was
prepared (Ext. 8). The map of the location of the
cattle shed was also prepared. Thereafter, he
visited the house of appellant no. 1 but he did not
find him. It was at the house of appellant no. 1
that the Investigator learnt that one Bhaglu Bhagat
(PW5), a mason by profession, had gone along
with appellant no. 1. All attempts were made to
look for afore-noted Bhaglu Bhagat, who was
contacted and his statement was recorded. On
12.01.2015, he received the stuck-up bullet which
was taken out from the body of the deceased
during postmortem too was preserved by him.
Thereafter, the other witnesses were examined.
Since some information relevant for the purposes
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
for investigation was obtained from Bhaglu Bhagat
(PW5), he was also made to give his statement
under Section 164 Cr.P.C. By 19.01.2015,
appellant no. 1 had surrendered to the process of
law. The Investigator prayed for remand of
appellant no. 1, which he could obtain and
thereafter he interrogated him. He is said to have
confessed before the Investigator and told him that
it was an accidental firing which unfortunately hit
the deceased. Thereafter, the deceased was taken
to the hospital where he was declared "brought
dead". After the occurrence had taken place, the
appellant no. 1 had gone to the house of appellant
no. 2, his friend, who was told about the
occurrence and the weapon of assault was hidden
in his house.
9. On the basis of the afore-noted confession of the
appellant no. 1, the house of appellant no. 2 was
raided and from the thatched roof of his house, the
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
weapon of assault was recovered in front of two
independent witnesses. The weapon was a semi
automatic country made pistol with six bullets of
7.65 mm loaded in it. The weapon and the bullets
were seized (Ext. 10). The seized and sealed
weapon of assault, the bullets loaded in the
chamber of pistol, one pellet which was found in
the cattle-house and two used cartridges found
there were sent for forensic examination. Only
thereafter, chargesheet was submitted against both
the appellants.
10. During the course of investigation, the
Investigator had recorded the statements of Munna
Kumar Jha, Poonam Chaudhary, Kari Chaudhary
and others.
11. At the Trial, Munna Kumar Jha (PW1) did not
claim to have any information about the incident.
12. Poonam Devi (PW2) was declared hostile.
13. Kari Chaudhary (PW3) also did not offer
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
anything substantive and was declared hostile.
14. Manoj Jha (PW6) gave only a hearsay
account of the occurrence but disclosed before the
Trial Court that the deceased had died because of
gunshot but he did not know who the perpetrator
was.
15. The informant, namely, the sister of the
deceased (PW7) knew only the fact that the
deceased was killed by gunshot but had no clue
about the manner in which the deceased was killed
or who killed him. This was found to be against the
prosecution theory and therefore she was declared
hostile.
16. Rajeev Ranjan Singh (P.W. 8), Ashok Kumar,
the Sergeant Major (P.W. 9), Sewanand Singh, a
formal witness (P.W. 10), Mohan Mandal, a seizure
list witness (P.W. 12), Vishnu Nath Jha, another
seizure list witness (P.W. 3) and Shashinath Jha
(P.W. 14) were also examined during the trial.
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
17. Rajeev Ranjan Singh (PW8) had produced
the sealed packet of exhibits received from the
forensic laboratory. Those were the fire-arms and
cartridges which were recovered on the pointing of
the appellant no. 1 from the house of appellant
no. 2
18. The Sergeant Major (PW9), a ballistic expert
deposed that the weapon of assault was effective
and bullet of 7.65mm could be used by such
weapon.
19. PW10 had proved the sanction given by the
District Magistrate, Darbhanga for initiating
prosecution under the provisions of the Arms Act.
20. Mohan Mandal (PW12) did not support the
prosecution and denied that anything incriminating
was recovered in his presence.
21. However, the recovery of two empty
cartridges, packet of cigarettes, intoxicants from
the cattle-house of Suraj Jha were proved by
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
Vishnu Nath Jha (PW13).
22. The postmortem on the deceased was
conducted by Dr. Prafull Kumar Das (PW4) on
11.01.2015 at 10.00 A.M. He had found one
rounded lacerated puncture wound ½" x ¼" in the
left chest with the projectile entering into the left
chest cavity and moving over the left chest wall. It
had pierced the ribs and left ventricle of heart. The
diaphragm also was perforated. From inside the
body of the deceased, a small metallic bullet with
rounded tip was recovered, which was put in a
sealed envelope and was labelled and then handed
over to the I.O. of the case. The deceased had
died of the afore-noted injury. The timing of the
death was almost synchronous with the time of the
occurrence suggested in the prosecution case.
23. With this evidence on record, it is without
question that the deceased died of gunshot.
24. That the firing had taken place in the cattle-
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
house also stands proved. The used cartridges
were the ones which would have fitted in the
weapon of assault and the weapon of assault was
recovered at the instance of appellant no. 1 from
the house of appellant no. 2. All these seizures
were proved by the witnesses, which have been
referred to above. Such recovery is admissible
under Section 27 of the Evidence Act.
25. No questions have been raised by the
defence with respect to such recovery pursuant to
the confession of appellant no. 1.
26. The Trial Court has primarily relied upon
PW5, the mason, who had accompanied the
deceased before he was shot dead as has been
noted by us from the deposition of the
Investigator. It was learnt at the house of
appellant no. 1 that PW5 was the person who
could have provided some clue about the details
and the manner of occurrence. He had also given
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
his statement under Section 164 Cr.P.C. which is
quite consistent with what he had to depose before
the Trial Court. As PW5, he has narrated the
entire incident that took place on 10.01.2015. On
that day, he was working at the house of the
deceased in Bariyagachhi. Along with him, there
were two other masons and three labourers. He
had accompanied the deceased to the local market
for sharpening the spade which was to be used in
the construction work. Thereafter, he accompanied
the deceased to a shop from where mobile
telephone was purchased. The deceased offered
him food and also gave him Rs. 500/- to bring
liquor for him. He procured the liquor for the
deceased. In the meantime, the deceased received
a telephone call and he talked to the caller for
some time. On PW5 asking the deceased as to who
had called, the deceased disclosed that appellant
no. 1 had called him for some work. PW5 was
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
insisted upon by the deceased to accompany him.
Both of them went to Balbhadrapur, where in a
school, two-three persons were present from
before. There was presence of a person by the
name of Guru also. On the asking of the
deceased, P.W. 5 gave Rs. 500/- to appellant no.
1 for again procuring liquor. P.W. 5 was then
asked to wait at a shop and the deceased as well
as the appellant no. 1 went somewhere. Later, he
has clarified that both of them had gone to cattle-
house of Suraj Jha. Later, P.W. 5 also went to that
place. The deceased had requested appellant no. 1
to train him as to how a firearm weapon is used.
While the same was being demonstrated by
appellant no. 1, a bullet accidentally got fired and
hit the deceased. He fell down injured. All of them
were worried and appellant no. 1 was looking for a
rickshaw to take the deceased, while perhaps he
was still alive, to the hospital. It was at that point
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
of time that P.W. 5 developed cold-feet and he ran
away. Beyond that, he had nothing else to offer.
27. From the evidence on record, we find his
statement to be quite consistent. There is no
reason to disbelieve him. The informant of this
case, as we have noted, had no suspicion against
appellant no. 1. In fact, even most of the
witnesses did not even know appellant no. 2, who
is the friend of appellant no. 1. That initial
suspicion was against the vendees of the land
which was sold by the deceased with the help of
appellant no. 1. In fact, the deceased had been
residing in the house of appellant no. 1. There was
no dispute so far as the distribution of sale
proceeds were concerned. Precisely for this reason,
no suspicion was raised against appellant no. 1 or
anybody.
28. During the course of investigation, it was
secretly but reliably learnt, as we have already
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
noted, by the Investigator (PW11) that part of the
occurrence might have taken place in the cattle-
house. That the incriminating materials which were
recovered and seized from the cattle-house throw
much light on the prosecution case and the claim
of the prosecution to that extent, stands
completely proved. There is no dispute about the
seizures made at the cattle-house. The occurrence,
for sure, had taken place there.
29. The prosecution, however, is silent as to how
the deceased was taken to the hospital. The gap in
the evidence but can be explained. The deceased
was declared to be "brought dead" at the DMCH.
No sooner had the Investigator learnt about one
person having been killed at Balbhadrapur Navtol,
he proceeded to the DMCH. It was thereafter that
the inquest proceedings were conducted. Till such
time and even later, the name of no one had
surfaced as the possible perpetrator(s) of the
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
crime. The evidence further reveals that there was
no enmity with appellant no. 1. The appellant no. 1
had only been assisting and aiding the deceased in
selling off his family property.
30. The version of PW5, therefore, appears to be
the only possible explanation of the deceased
having received gunshot in an accidental firing of
the weapon, which was being operated by
appellant no. 1, and that also on the asking of the
deceased.
31. In the meantime, the written report of the
informant, who is the sister of the deceased (PW7)
was lodged at 10.00 P.M. All these facts could be
hewn in one single thread, which explains the
prosecution case.
32. The deceased had attempted to sell his
property with the help of appellant no. 1. While the
process of sale was on, a construction also was
going on in the house of the deceased, where PW5
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
worked as a mason. Evidence has also come that
the deceased as well as the appellant no. 1 were
regular in consuming liquor. They have tainted
police record as well. However, no evidence came
forth of any enmity with the deceased which could
have been avenged by anyone. On the day of the
occurrence, a spade, used in the construction work,
had to be sharpened. PW5 offered to get it done
on his own, but on the insistence of the deceased,
PW5 accompanied him to the market. The first
thing done by the deceased was to feed P.W. 5
and also get a bottle of liquor procured. Thereafter,
the deceased and PW5 went to meet appellant no.
1 on the asking of appellant no. 1 on telephone.
This could have been, perhaps, for completing the
paper requirements for sale of land. Around three
to four perons were present in the school, including
one person by the name of Guru. All those persons
left after some paper work was done. It was then
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
that P.W. 5, on the asking of the deceased, gave
Rs. 500/- to appellant no. 1 to procure another
bottle of liquor. All of them consumed liquor. At
this point of time, in a playful banter, the deceased
asked appellant no. 1, his cousin to train him for
using a firearm weapon. It was at that point of
time, a bullet accidentally got fired hit the
deceased.
33. There does not appear to be any variance in
this story from the prosecution case. The deceased
was taken to the hospital where the inquest was
done and on the next day, the dead body was
subjected to postmortem examination. The
postmortem examination report is absolutely sync
with the prosecution theory of the deceased having
been hit because of a bullet fired from the weapon
of assault which was recovered from the house of
Appellant No. 2, at the instance of Appellant No. 1.
34. Appellant no. 2 knew about the occurrence
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
but still agreed to keep the weapon and allowed it
to be kept safely below the thatched roof of his
house. The same was recovered from his house on
the basis of confession made by appellant no. 1.
35. However, what is intriguing for us is the lack
of any reason for convicting the appellants under
Section 302 with the aid of 34 IPC. For an offence
of culpable homicide, whether or not amounting to
murder, intention is the basic ingredient. No
evidence has been led by the prosecution for
proving the charge of either culpable homicide not
amounting to murder or murder at the hands of
appellant no. 1.
36. Appellant no. 2 was not even in the picture
when the deceased was hit by a bullet. That the
appellant no. 1 and the deceased were drunk does
not become very clear from the evidence of PW5.
Both had consumed liquor, but the level of
intoxication was not such that they could have
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
taken the defence under general exceptions of the
Indian Penal Code. It was also not an accident in
doing any lawful act. It was not an act likely to
cause harm but done without criminal intent and to
prevent other harm. It was not even an act of a
person incapable of judgment by reason of
intoxication, caused against his will. At best, the
appellant no. 1 could have been charged for the
offence of indulging in rash and negligent act in
using a firearm weapon and trying to train the
deceased to use the same. It was a locally
procured weapon, which was not manufactured
with any precision or finesse. He should have
known the outcome of his act.
37. With this evidence on record with practically
no variance in the deposition of P.W. 5, we are at
a loss to understand as to how the Trial Court
concluded that both the appellants are guilty of
murder of the deceased. With the essential
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
ingredient of "intention" lacking and all evidence
pointing towards the accidental firing of the
weapon, the appellant no. 1 can only be said to
have committed a rash and negligent act,
punishable under section 304 (A) of the Indian
Penal Code. For the reason of his having procured
and being in possession of fire arm weapon
unauthorizedly, his conviction under Sections
Section 25 (1-B)a and 27(1) of the Arms Act is
also justified.
38. The appellant no. 2 was not even in the know
of what had happened till the time he was told by
appellant no. 1 about the occurrence. The only
fault of his was to allow the weapon of assault to
be kept in his house. Beyond this, there is no
evidence of any conspiracy or of having taken part
in the occurrence in any manner whatsover.
However, he knew about the occurrence as it
appears from the evidence but he still allowed the
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
weapon to be kept in his house. That makes him
liable to be punished for the offences under
Sections 201 IPC and 26 read with 35 of the
Arms Act.
39. We thus do not approve of the judgment of
the Trial Court, convicting both the appellants
under Sections 302/34 read with Section 120 (B)
and 201/34 read with Section 120(B) IPC.
40. The conviction of appellant no. 1 is converted
into one under Section 304(A) and 201 IPC and
Section 25 (1-B)a and 27(1) of the Arms Act.
41. The conviction of appellant no. 2 is converted
into Section 201 IPC and Section 25 (1-B)a, 26
read with 35 of the Arms Act only.
42. The period of custody suffered by the
appellants up till now would suffice and account for
the offences for which we have held the appellants
guilty.
43. Appellant no. 1 is in jail since 19.01.2015
Patna High Court CR. APP (DB) No.930 of 2017 dt.16-05-2024
and appellant 2 is in jail since 29.05.2017.
44. Both the appellants are thus directed to be
released from jail forthwith unless their detention
is required in any other case, as having served out
the sentences.
45. The appeal stands partially allowed.
46. The interlocutory application/s, if any, also
stands disposed of.
47. Let a copy of this judgment be communicated
to the concerned Trial Court for record and
compliance.
48. Let the records of this appeal be returned to
the concerned Trial Court forthwith.
(Ashutosh Kumar, J)
( Jitendra Kumar, J)
sunilkumar/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 17.05.2024
Transmission Date 17.05.2024
o
