Criminal Appeal (D.B.) No. 1770 of 2003
[Against the Judgment of conviction dated 22.11.2003 and Order of
sentence dated 24.11.2003, passed by learned Additional Sessions Judge-
th
5 , Palamau, in Sessions Trial No.135 of 2003]
Vivek Kumar Gupta @ Vicky Gupta S/o Kanhaiya Lal Gupta,
Resident of Village Redma, P.S. Daltonganj(T), Distt. Palamu.
.... …. Appellant
Versus
The State of Jharkhand
.... .... Respondent
P R E S E N T
SRI ANANDA SEN, J.
SRI PRADEEP KUMAR SRIVASTAVA, J.
……
For the Appellant : Mr. Jitendra Shankar Singh, Advocate
Mr. Randheer Kumar, Advocate
For the State : Mr. Shiv Shankar Kumar, Addl. P.P.
……
C.A.V. on 11.12.2024 Pronounced on 20.12.2024
Per Pradeep Kumar Srivastava, J.
1. We have already heard, Mr. Jitendra Shankar Singh, learned
counsel for the appellant as well as Mr. Shiv Shankar Kumar,
learned Addl. P.P. appearing for the State.
2. This instant criminal appeal is preferred against the judgment of
conviction dated 22.11.2003 and sentence passed on 24.11.2003
by learned Additional Sessions Judge-V, Palamau in S.T. Case
No.135 of 2003, whereby and whereunder the appellant has been
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convicted for the offence under Section 302 of the Indian Penal
Code and sentenced to undergo imprisonment for life.
3. Factual matrix giving rise to this appeal as depicted in the
fardbeyan of informant namely Arun Prasad (P.W.5) is that
informant is the eldest among three brothers, next brother
Kanhaiya Lal aged about 44 years and youngest brother is Raj
Kumar Gupta aged about 32 years. There is dispute regarding
partition of family property between the parties. It is alleged that
informant is running a General Merchant Shop in the name and
style ‘Arun Kirana Bhandar’ situated at a distance of 100 yards
from his house at Redma Ranchi Road. It is further alleged that on
07.05.2002 at about 07:00 am, informant went to open his shop,
meanwhile his younger brother Kanhaiya Lal’s son namely Vinay
Kumar Gupta came to the shop and protested against the opening
of the shop by the informant. The informant went to his house and
informed to his younger brother Raj Kumar about the said
resistance caused by Vivek Kumar Gupta in the opening of the
shop and returned to the shop along with him and started opening
the shop but his brother Kanhaiya Lal who was suffering from
kidney ailment, came with sword towards the shop but he was
apprehended by the local persons present near the shop. Upon this
Kanhaiya’s elder son Vivek Gupta @ Vicky (appellant) came to
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the shop and started abusing and threatening to the informant and
his younger brother. Upon some scuffle, Vicky also went away but
within interval of 10 minutes returned with a pistol and fired a
shot in air which hit no one. Thereafter, Vicky started loading
second cartridge in the pistol then younger brother of the
informant namely Raj Kumar caught hold of him but Vivek Gupta
fired a shot causing injury on head from the close range as a result
of which Raj Kumar Gupta fell down on the spot and the accused
Vicky managed to flee away. The injured was brought to Sadar
Hospital, Daltonganj where he was declared dead by the attending
Medical Officer.
On the basis of above information, F.I.R. was registered as
Sadar (T) P.S. Case No.121 of 2002 dated 07.05.2002 for the
offences under Section 302/34 of the I.P.C. and Section 27 of the
Arms Act against all the three accused persons namely Kanhaiya
Lal, Vicky Kumar Gupta and Vinay Kumar Gupta.
4. After completion of investigation, the accusation was found true
against present appellant only and other co-accused persons were
not sent up for trial. Accordingly, charge-sheet was submitted
against the sole appellant of this case for the offences under
Section 302 of the I.P.C. and Sections 25(1)(b)A, 26 and 27 of the
Arms Act. After cognizance, the case was committed to the Court
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of Sessions. After hearing the prosecution and defence, the charge
under Section 302 of the I.P.C. was framed against the appellant
and no charge for the any of the Sections of Arms Act were
framed. The accused denied from the charges and pleaded not
guilty and claimed to be tried.
5. In the course of trial, altogether twelve witnesses were examined
by the prosecution namely P.W.1 Dr. Kundan Prasad, P.W.2 Jay
Prakash Tiwari, P.W.3 Ajay Prasad, P.W.4 Vinod Kumar Sao,
P.W.5 Arun Prasad (informant), P.W.6 Umesh Singh, P.W.7 Ratan
Kumar (I.O.), P.W.8 Lalit Kumar, P.W.9 Rakesh Tiwari @ Guddu
Tiwari, P.W.10 Satyendra Tiwari, P.W.11 Manish Kumar and
P.W.12 Ganga Ram.
Apart from oral testimony of above witnesses, following
documentary evidence were adduced:
Exhibit 1 to 1/2 : Postmortem Report of the deceased.
Exhibit 2 and 2/1 : Signature of witnesses on inquest
report.
Exhibit 3 : Signature of informant on fardbeyan.
Exhibit 4 : F.I.R.
Exhibit 5 : Inquest Report.
Exhibit 6 and 6/1 : Seizure List.
Exhibit 7 : Examination Report of material exhibit.
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Exhibit 8 : Signature of Deputy Commissioner on
sanction report.
Exhibit 8/1 : Signature of scriber of sanction order.
Material Exhibit
Exhibit I : Revolver
Exhibit II : Blood stained soil
All the above documentary evidence have been marked
exhibit without objection.
6. After completion of prosecution evidence, statement of accused
under Section 313 Cr.P.C. was recorded. The case of defence is
denial from occurrence and false implication, however, no oral or
documentary evidence has been adduced by the defence.
7. The learned trial court after considering the testimony of ocular
witnesses as well as documentary evidence available on record
and the material exhibit produced during trial, found the appellant
guilty for the offence under Section 302 of the I.P.C. for causing
death of the deceased by shooting him and convicted for the
offence under Section 302 of the I.P.C. and sentenced as
mentioned above.
8. Learned counsel for the appellant assailing the impugned
judgment and order of conviction and sentence of the appellant
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has challenged the impugned judgment and order mainly on
following grounds:
(i) It is a case of murder caused by using firearm and shooting
the deceased, but no charge under Section 27 of the Arms
Act or any other relevant Sections of Arms Act were framed
against the appellant and he is not convicted for any offence
under Arms Act.
(ii) In absence of non-framing of charge under Section 27 of
the Arms Act, it cannot be believed that appellant has
caused death of the deceased by using illegal firearm.
(iii) The manner of occurrence is also not believable, in view of
evidence of sole eye witness P.W.5 that the deceased was
running towards the appellant head on with a view to
prevent him from further firing but the injury sustained by
the deceased has been caused on the posterior side which is
not possible in the given situation. There may be possibility
that anyone else might have fired from behind to the
deceased or it may be accidental firing during scuffle
between deceased and the appellant. If the evidence of sole
eye witness who happens to be informant (P.W.5) is taken
to be true, even then the genesis and manner in which the
firing took place cannot be said that it was intentional. It is
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admitted position that at first instance, there was firing in
the air by the appellant with a view to frighten the
informant party so that they should desist from opening the
shop, which was disputed property and the second firing as
alleged against the appellant was during the scuffle between
deceased and the appellant which might be accidental and
not intentional. Therefore, the offence comes under
category of Section 304 Part II of the I.P.C. and it is not a
case of murder punishable under Section 302 of the I.P.C.
(iv) The seizure list has not been properly proved. The arms
recovered from the place of occurrence and the cartridge
does not correspond to each other having different bore and
caliber.
(v) There is no link evidence that the arms seized from the
place of occurrence bore any finger prints of the appellant
and was actually used in causing death of the deceased.
(vi) In absence of cogent and reliable corroborative evidence,
the testimony of sole eye witness P.W.5 cannot be believed
and acted upon.
(vii) In the alternative, it is submitted that the cumulative effect
of the facts proved by the prosecution even by virtue of
evidence of P.W.5, who is sole eye witness in this case,
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there was no intention of the appellant to kill his own uncle
rather overall episode happened under struggle. Therefore,
the case falls under Section 304 Part II of the I.P.C. The
appellant has undergone more than 9 years’ imprisonment
during trial/post-trial of this case and has sufficiently been
punished for the offence committed by him.
(viii) The appellant was 22 years’ old on the date of occurrence.
As such, taking lenient view in the factual aspects of the
case, the appellant may be sentenced with imprisonment
already undergone and this appeal may be disposed of.
9. Per contra, learned Addl. P.P. controverting aforesaid contentions
raised on behalf of the appellant has submitted that P.W.5 is the
sole eye witness of the occurrence and there is no reason to
disbelieve his testimony. The occurrence is of day time broad
daylight. Fardbeyan of the informant, was promptly recorded and
investigation started immediately. There is no legal force in the
points of argument raised on behalf of appellant. The evidence of
P.W.5 has been corroborated from the ocular testimony of other
witness as well as medical evidence i.e. Postmortem Report of the
deceased showing gunshot head injury caused to the deceased on
head resulting in death of the deceased. Therefore, mere non-
framing of charge under Sections 25, 26 or 27 of the Arms Act
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against the appellant is not sufficient to absolve him from the
liability under Section 302 of the I.P.C. It is a clear-cut case of
causing death by using firearm which is well proved by the
prosecution. The involvement of the appellant is also not disputed.
Therefore, no prejudice has been caused to the appellant in his
defence for the charge under Section 302 of the I.P.C. In this
regard, the learned Addl. P.P. has placed reliance upon provision
of Section 464 of the Cr.P.C. This appeal has no merit and fit to be
dismissed.
10. In view of the above submissions, we have to apprise and evaluate
at the outset the evidence of P.W.5 Arun Prasad who happens to be
informant-cum-sole eye witness in this case. According to his
evidence, on 07.05.2002 (Tuesday) at about 07:00 am, scuffle
took place between parties as regards opening of shop by this
witness. He has further stated that incident of firing took place at
07:30 am while he was present at his grocery shop. This witness
has further stated that scuffle took place at a distance of ten steps
from his shop and firing also started from that place. This witness
has further stated that he went to open his shop at about 07:00 am
where his nephew Vinay Kumar Gupta was already present who
protested against opening of shop unless partition is effected
between the parties. Then this witness returned to his home and
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informed to his younger brother Raj Kumar about the above
incident. Thereafter, this witness along with is younger brother
Raj Kumar Gupta (deceased) returned to his shop for opening the
same, but Vinay Kumar Gupta desisted and started scuffle which
was also seen by Kanhaiya Lal Gupta from his house sitting on
roof. Thereafter, Kanhaiya Lal Gupta also came with sword but he
was apprehended by neighbourers. In the meantime, shop was
opened by this witness due to intervention of local persons. He
has further stated that just after ten minutes of the above incident,
Vivek Kumar Gupta (appellant) came with a firearm and started
abusing and threatening, but he also went away and again after ten
minutes, he came armed with a pistol and opened a fire in the air
from mid of the road. Thereafter, Vivek @ Vicky loaded second
cartridge at this moment Raj Kumar (deceased) wanted to caught
hold of him but could not succeed and second round fire was hit
near his pinna then Vivek Kumar threw the pistol and fled away
from the spot. Rajkumar Gupta was brought to hospital but after
examination, the doctor declared him dead. The statement of this
witness was recorded at Sadar Hospital by the police which was
signed by him (Ex.3).
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In his cross-examination, this witness has admitted that at
first the accused fired in air and he was not intending to kill the
deceased.
P.W.1 Dr. Kundan Prasad has conducted autopsy on the
dead body of the deceased and found the following:
(i) 1”x1/2” penetrating wound with blackening and
singing of hairs and wound of entry near the right
mastoid process.
(ii) On dissection, the right mastoid process and nearby
bone was fractured paving the way for the bullet to
enter the skull and the underneath brain matter was
torn and lacerated along with the path of the bullet
which was found lodged underneath the left mastoid
process which was fractured as well. The bullet was
extracted and handed over to the police constable.
It is also admitted in his cross-examination that the above
said injury might have been caused by firearm from a
distance of 1 ft. to 2 ft. There is no possibility to find the bullet
inside the body.
P.W.2 Jai Prakash Tiwari is not an eye witness of the
occurrence rather he heard hullah that Rajkumar has been
murdered.
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P.W.8 Lalit Kumar, P.W.9 Rakesh Tiwari @ Guddu
Tiwari, P.W.10 Satyendra Tiwari and P.W.12 Ganga Ram are
hearse witnesses of the occurrence, who arrived at the place of
occurrence after incident and heard about murder of deceased.
P.W.3 Ajay Prasad and P.W.4 Vinod Kumar Sao are
witnesses of inquest report who went to hospital after hearing
about the murder of the deceased where inquest report was
prepared by the police.
P.W.6 Umesh Singh is a formal witness who has produced
the material exhibits of this case which is a pistol (Ex.I) and blood
stained soil (Ex.II). He also admits that the pistol bears MR
No.18/2002 and he does not bear the signature of any witness or
the I.O. rather only Ratan Kumar is scribed over it.
P.W.7 S.I. Ratan Kumar who was the then Officer-In-
Charge of the Daltonganj (Palamau) Town Police Station who has
proved the fardbeyan of the informant to be recorded by S.I.
Jaglal Ram and formal F.I.R. as Ex.4. He has further proved the
inquest report of the deceased as Ex.5 and two seizure lists as
Ex.6 and 6/1. He said that send the dead body for postmortem
examination and visited the place of occurrence at about 08:05
hours. He also seized the blood-stained soil and a country made
pistol from the place of occurrence and prepared a seizure list in
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presence of witnesses. He obtained Postmortem Report of the
deceased and sanction for prosecution under Arms Act and finding
sufficient evidence submitted charge-sheet against the accused.
The pistol seized from the place of occurrence was smelling
recently fired which was sent for examination to Sergeant Major
and he obtained report from Sergeant Major which is proved as
Ex.7.
In his cross-examination, this witness admits that in the
seizure list, it is mentioned that pistol is of .315 bore but in the
examination report (Ex.7), it is mentioned to be .303 bore. He
expressed that in the seizure list, bore of the pistol was written on
the basis of guess work.
P.W.11 Manish Kumar has proved the sanction for
prosecution order issued from the office of the then Deputy
Commissioner Shri Subodh Nath Thakur as Ex.8 and 8/1.
11. We have given thoughtful consideration to the overall evidence
available on record as discussed above. It is obvious that except
P.W.5 Arun Prasad, there is no eye witness of the occurrence. It
is undisputed that deceased died homicidal death caused by use of
firearm. It is also obvious from the evidence of P.W.1 Dr. Kundan
Prasad that the shot was fired from the close distance of 1 ft. to 2
ft. range. In the given situation, we cannot ignore the evidence of
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P.W.5 Arun Prasad who has vividly described the genesis and
manner of the occurrence. He has stated in clear terms that
initially resistance was caused by accused persons in the opening
of shop by the informant when he called upon his younger brother
Raj Kumar (deceased), the opening of shop was again protested
by the accused while he was armless but just after ten minutes, he
managed a country made pistol and fired in the air with a view to
frighten the informant party. The evidence of this witness further
shows that while the present appellant again loaded the pistol, the
same was protested by the deceased and the deceased caught hold
of the appellant, meanwhile, the second fire was opened during
scuffle between them. The overall situation as depicted by P.W.5,
if taken to be entirely true, is indicative of the fact that the second
round fire was opened in a sudden manner without any pre-
meditation and intention of the accused to kill his own uncle.
Above testimony of P.W.5 has remained intact throughout and
appears to be free from any embellishment. In the above
mentioned circumstances, non-framing of charge under the
provisions of Arms Act against the accused does not hold much
water. In view of unrebutted testimony of the sole eye witness that
the firearm was used by the present appellant and fired upon the
deceased and during postmortem report on the dead body of the
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deceased also firearm injury was found caused from a close
distance. Therefore, no doubt can be raised in the prosecution case
solely on the ground that there is no conviction of the appellant
for the offence under Sections 25(1)(b)A, 26 and 27 of the Arms
Act and there was no such charge against him. He has all along
faced the trial for causing death of deceased by using firearm and
never taken to be surprised or prevented from his effective
defence due to non-framing of charge under the provisions of
Arms Act.
12. Now the moot question arises for consideration whether the case
falls under Section 304 Part II of the I.P.C. ?
13. In the instant case, the facts proved reveals that there was dispute
regarding partition of property between the parties and when the
informant (P.W.5) was opening his shop, it was resisted by the
accused. The informant called upon his younger brother and again
started to open the shop which was again protested by the
appellant but they succeeded in opening the shop. This caused
annoyance to the appellant who returned from the place of
occurrence, but again appeared at the place of occurrence with a
pistol. He at first used the pistol, opening fire in air with intention
to frighten the informant party so that they may close the shop,
but it is admitted fact that when he was loading second round of
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cartridge in his pistol that was interfered with by the deceased
who caught hold of him, meanwhile, firearm opened causing
injury to the deceased from posterior side of head and ear. Under
such circumstances, if the appellant had intended to commit
murder of his own uncle (deceased), he might have directly
approached to him and fired upon him but the events are
otherwise. It was the deceased, who intervened the second round
firing, which might be again opened in the air, but under struggle,
hit the deceased causing his death. Therefore, we are of the
considered view that it is not intentional murder of the deceased
by the appellant rather the case falls under Section 304 Part II of
the I.P.C. for causing death of the deceased without intending to
kill him but with the full knowledge that it is likely to cause death.
14. In view of aforesaid discussion and reasons, we set aside the
conviction and sentence of appellant for the offence under Section
302 of the I.P.C. and held him guilty for the offence under Section
304 Part II of the I.P.C. Since the appellant has already been in
custody for more than nine years during trial of this case and more
than 20 years have been lapsed from the date of occurrence and it
was a family dispute between the parties regarding partition of
properties. The appellant is sentenced to imprisonment already
undergone by him.
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15. Accordingly, this appeal is dismissed with modification/alteration
in the findings and sentence passed by the learned trial court.
16. Pending I.A., if any, stands disposed of.
17. Let a copy of this judgment along with Trial Court record be sent
back to the concerned Trial Court for information and needful.
(PRADEEP KUMAR SRIVASTAVA, J.)
Per Ananda Sen, J. : I agree
(ANANDA SEN, J.)
Jharkhand High Court, Ranchi
Dated: 20/12/2024
NAFR
Sachin /
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