Jagdish @ Thurai Mistry vs The State of Bihar (now Jharkhand)

This appeal has been preferred against the judgment of conviction and order of sentence dated 1.5.1998 passed by Shri Kumar Ganesh Dutt, 1st Additional Sessions Judge, Palamau in Sessions Trial No. 292 of 1995 whereby the appellant has been found guilty of committing murder of deceased informant, Pradeep Ram and has been convicted Under Sections 302 of IPC. and 27 of Arms Act and sentenced to undergo life imprisonment u/s 302 IPC. and to pay a fine of Rs. 5000/- and in default to undergo two years rigorous imprisonment. The appellant has been sentenced u/s 27 of the Arms Act to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1000/- and in default of payment to undergo rigorous imprisonment for six month. Both the sentences are to run concurrently.

The prosecution case was initially registered on the basis of the fardbeyan of the deceased, Pradeep Ram, u/s 307 of the I.P.C and 27 Arms Act. Subsequently, Pradeep Ram, the informant died after about five days and Section 302 I.P.C. was added.

The fardbeyan of the deceased, Pradeep Ram was recorded on 13 2 1995 at 10 a.m. in the hospital.

The prosecution case in brief is that while the deceased, Pradeep Ram was taking part in the religious function of ''Nagar Kirtan'' the appellant, Jagdish @ Thurai Mistry came there and demanded money from the informant to purchase sweat meat. When the informant expressed his inability, the appellant took out the pistol from his waist and fired at the informant causing injury on his neck. The informant was taken to hospital with the help of his brother and other persons where in course of treatment he succumbed to injuries after five days.

The police investigated the case and submitted the charge sheet u/s 302 I.P.C and 27 Arms Act. Cognizance was taken and charges were framed under Sections 302 I.P.C and 27 of the Arms Act The appellant pleaded not guilty and claimed to be tried.

The defence was complete denial of the charge and false implication.

Prosecution in order to bring home the charges against the appellant altogether examined 7 witnesses. P.W.s 1, 3 and 4 happened to be the brothers of the informant They claimed to be the eye witnesses. P.W. 5 another brother of the informant was tendered by the prosecution. P.W.6, Deo Raman Singh is the Investigating Officer of the case and P.W. 7 is the doctor Sita Ram Choudhary who conducted autopsy of the dead body of the deceased, Pradeep Ram.

Learned trial court mainly relying upon the testimonies of the said P.W.s 1, 3 and 4 as also on the evidences of P.W.6 and P.W.7 held the appellant guilty of committing minder of the informant by fire ann and convicted and sentenced him as aforesaid.

Learned Counsel for the appellant assailed the conviction and sentence of the appellant on the following grounds-

(i) All the material witnesses are highly interested. Out of them P.W.s 1, 3, 4 and 5 are brothers of the deceased.

(ii) There are vital contradictions on the point of manner of occurrence and the motive assigned by the prosecution.

(iii) The evidences are inconsistent and contradictory.

(iv) Even if the entire prosecution story h accepted; the ingredient of Section 302 of the I.P.C. is lacking and at best the case falls within the ambit of Section 326 I.P.C.

(v) The injury was caused by fire arm from the closed proximity but it was not aimed at to cause death. There was no pre-conceived intention to kill the deceased. There was no repetition of attempt.

Advancing his argument learned Counsel for the appellant referred to and relied upon the decisions of the Supreme Court in Rattan Singh, Ran Singh and Another Vs. State of Punjab, ". It has been submitted that learned court below has committed an error in ignoring the established legal principles and convicted the appellant u/s 302 of the IPC. Learned Counsel for the appellant further submitted that the appellant has already remained in custody for about 14 years and has been sufficiently punished.

Learned A.P.P. on the other hand supported the impugned judgment/order and submitted that though there is no clear evidence regarding the motive, the accused had clear motive to kill the deceased. H had fired at the neck of the informant to cause his death. Clear account of the incident was given by the deceased, informant himself, which is admissible after his death under the provision of Section 32 of the Evidence Act. Other prosecution witnesses have also proved the said charges against the appellant. Though there are some contradictions in the prosecution evidences, the same are insignificant and have no effect of nullifying the evidence regarding the pistol shot given by the appellant causing injury in the neck of the informant which ultimately caused death of the deceased. He submitted that the trial court has rightly come to the conclusion on the basis of the evidences on record and there is no infirmity or illegality in the impugned judgment.

Having heard learned Counsel for the appellant and learned A.P.P., we have ourselves appraised the evidences and materials on record.

We find that the occurrence took place in the presence of about 500-600 persons who had assembled in the religious gathering of ''Nagar Kirtan''. It is evident from para 1 of the, deposition of P.W.I, Jitu Ram, brother of the deceased, informant that no independent witnesses has come forward to support the prosecution version.

All the material witnesses are own brothers. Only independent witness, P.W.2, Santosh Kumar turned hostile. There is no independent corroborative testimony on record. The deceased died in course of treatment after 5-6 days. The doctor who first attended the injuries of the deceased has not been examined. P.W.7, Dr. Sita Ram Choudhary who held the postmortem of the dead body of the deceased, on dissection of lower part of front of neck and chest, found laceration of soft tissue, muscles and trachea and blood in chest cavity. In the bandaged wound he found-lacerated oval shaped wound of 3/4" diameter and cavity on the left lower mid part of the front of neck. In his opinion the cause of death was shock and haemorrhage due to fire arm injury. Time elapsed since death is 6-36 hours. Postmortem was held on 17.2.1995 at 10.45 a m., whereas the deceased died on 17.2.1995 itself, but the time of death has not been disclosed by the prosecution.

In the prosecution evidences, there are several contradictions on vital points.

On scrutiny and assessment of the evidences and circumstances appearing on record, we are unable to hold the appellant guilty of the said charges beyond shadow of all reasonable doubt and approve the impugned judgment. In the case of Rattan Singh (Supra) the Supreme Court held that on general type of evidences regarding the blow and injury leading to death, the accused cannot be convicted u/s 302 I.P.C.

In the instant case, there is clear evidence that the appellant had fired only once for not giving money for purchasing sweat meat. The injury did not cause immediate death. There was no repetition of the attempt. It is not the case that the appellant attempted to kill the deceased. Death occurred after 5/6 days in course of treatment in the hospital.

In our opinion the prosecution has failed to prove the charges u/s 302 I.P.C. The prosecution, however, has been able to prove the charge of voluntarily causing grievous hurt to the deceased-informant by the appellant by means of fire arm which ultimately caused death of the informant in course of his treatment. The said charge falls within the fold of Section 326 I.P.C. and the deceased-informant by the appellant by means of fire arm which ultimately caused death of the informant in course of his treatment The said charge falls within the fold of Section 326 I.P.C. and the appellant as such is held guilty of the said offence. His conviction u/s 302 I.P.C. is set aside and he is convicted u/s 326 I.P.C.

So far as the conviction u/s 27 Arms Act is concerned, there is consistent evidence that injury on the deceased was caused by fire arm. We find no infirmity in the said part of the judgment holding the appellant guilty for the said offence

We are informed that the appellant has remained in custody for more than 10 years (about 14 years). We modify the sentences on both counts to the period already undergone by the appellant.

In the result, we allow this appeal in part and set aside the impugned judgment (with modification) of conviction and order of sentence dated 1.5.1998 passed by the 1st Additional Sessions Judge, Palamau. Since the appellant is in jail custody, he shall be set free forthwith, if not wanted: in any other case.

Before we part, we express our appreciation for the valuable assistance rendered by Sri Ranjan Kumar Singh, amicus curie in this appeal.