Dabloo Ram vs State of Bihar

Prabhat Kumar Sinha and Chandra Mohan Prasad, JJ.—The Appellant, Dabloo Ram stands convicted u/s 302 of the Indian Penal Code (''the Code'', in short) and sentenced to undergo rigorous imprisonment for life, further sentenced to undergo rigorous imprisonment for three years u/s 27 of the Arms Act, both sentences ordered to run concurrently.

The informant, Raj Kishore Mandal is the son of the deceased Bhama Devi who, in the first information report dated 19.1.1997 recorded at 4.45 p.m. narrated, in brief, that on the same day at about 3.00 p.m. while his mother was sitting on the verandah of his neighbour Sitaram Mandal, outside his house, talking with Radha Devi (P.W. 2) and another women, he came out of his house to call her to take meal and then he saw the Appellant was standing before his mother with a country made pistol in hand from which he fired hitting in the chest of the mother who fell down, writhing. Dabloo Ram fled towards Anjuman Masjid Road, chased by the informant and others of the Mohalla who caught Dabloo Ram with a country made pistol loaded with an empty cartridge. The mother, thereafter, was taken for treatment by informant''s brother, Nand Kishore Mandal (P.W. 1) and others of the mohalla whereas the informant. P.W. 8 Amar Kumar Mandal, his nephew and others produced the Appellant at the police station with the fire arm. The first information report also mentions that while the same was being written, Nand Kishore Mandal came from the hospital informing that mother had died. The informant did not know about any quarrel or about any reason for which the Appellant might have killed his mother. A total of nine witnesses were examined in the case, P.Ws. 6 and 9 being formal witnesses and P.W. 7, Braj Nandan Singh, being the Investigating Police Officer. P.W. 5, Dr. Sudhir Kumar had conducted post mortem upon the dead body. Out of the rest of the witnesses informant, P.W. 3, and P.W. 2, Radha Devi are said to be the witnesses of the occurrence with P.W. 2 narrating the entire episode. P.W. 1, P.W. 4 Gopal Prasad Mandal, a student, and P.W. 8 are the witnesses who had come just after occurrence and had chased the Appellant and also supported the prosecution case as to how he was caught after chase.

The defence of the Appellant/accused was, particularly thrown in shape of a suggestion to the informant in cross-examination, that the informant himself used to keep a pistol and while handling that, accidental firing took place hitting his mother and in order to save his neck he falsely implicated the Appellant.

First, the evidence of the witnesses who have lent a supporting hand to the prosecution story, may be seen. P.W. 1, another son of the deceased, came out of his house, he having given in the evidence that the borthers were living at neartl places, on hearing firing sound and where he reached near his mother, saw the Appellant fleeing away and the informant charging him. This witness also chased and this Appellant was caught with pistol whereafter* he came back to the house and took the injured to the Munger hospital where,soo(sic); after, she died after which he went to the police station to give information of that to the informant. He also proved his signature over the seizure list (Exhibit-1). This willness has extensively been cross-examined about the incident and the topography of the place but he appears to have well withstood the test of cross-examination.!

P.W. 4 happens to be the brother in-law of the informant who claimed that (sic) that day he was in the village and p(sic) hearing the firing sound he came to (sic) place of occurrence and saw Bhama Dabloo writhing and Dabloo Ram standing w(sic) pistol. He also narrated as to how Babloo Ram was chased and caught and brougth to to the police station. Thereafter, he case back and also went to the hospital where the injured died. He has testified about the inquest report prepared by the police ficer in the hospital on which he also be signed. The inquest report is Exhibit-6 also was cross-examined in detail include about the chase and catching of the cute but appears to have given satisfactory plies.

P.W. 8, nephew of P.W. 1 and informant in his evidence said that he came to the place of occurrence on he ing firing sound and found his grand-m(sic)writhing with fire arm injury in the (sic) and Dabloo Ram fleeing away. He also (sic); chased him who was caught at some tance with a pistol, from where he brought to the police station where the arm with cartridge was seized (by police) He also appears to have replied satisfy any in course of cross-examination.

The evidence of the informant in so (sic) as the actual occurrence is concerned, (sic)mmences from the point when he came but of the house to call his mother for (sic)ding her food and saw that Dabloo Ram as standing in front of his mother with a(sic)as in his hand and when the Appellant (sic)w him, he fired hitting the mother in best. He also supported his version as even in the first information report about (sic)hase ar d catching hold of the Appellant and producing him with the weapon before the Police Officer, at the Police Station. He also said that while he was at the police Station P.W. 1 had come and informed him about death of his mother. In cross-examination, ho said that they were four brothers having separately and the mother used to have with any one of them and take her (sic)eal, as per her own wishes. On the date occurrence the mother had to take her (sic)eal in the house of the informant. He (sic)dimitted that the Appellant was chased (sic)ly after he had fired his shot. He has (sic)med like other witnesses also, that the (sic)ol was in the hand of the Appellant when he was produced before the police officer. This witness also identified the pis(sic) with an empty cartridge inside it, which (sic)s material Exhibit-I. By that time the pistol was rusted and empty cartridge (sic)de was stuck in that.

P.W. 7, Sub-Inspector of Police who (sic) Investigated the case, besides proving fardbeyan of the informant, also proved seizure list by which the fire arm was (sic)ed stating that when the Appellant was (sic)ueed before him, the informant also produced a country made pistol with (sic)mpty cartridge. He said that from Sadar (sic)pital he received an out-door slip of (sic) a Sanha entry was made, and As- (sic)ht Sub-Inspector of Police, Gopal (sic)van was sent to hospital who came back and said that Bhama Devi has died and the body was in hospital whereafter he also went there. This witness identified the inquest report prepared by another Police officer, Sharda Nand Suman, and proved that. About place of occurrence this witness said that it was house of Sitaram Mandal which contained one room having three doors with a cemented portion extended towards west, 3'' wide which was used as open verandah, which was the main place of occurrence. He also obtained sanction report from the District Magistrate for prosecution of the Appellant under Arms Act. However, he also said that in the case diary he had noted about finding of the blood at the place of occurrence, but volunterred that it was night-time. Therefore, from the evidence of the prosecution as produced in the court it is amply proved, some points raised by learned Counsel for the Appellant to be discussed later, that on the date of occurrence while Bhama Devi was sitting on the verandah of the house of Sitaram, this Appellant was seen there with a pistol with which he had fired, killing the deceased whereafter the Appellant fled away from the place of occurrence but was caught by the chasers and produced at the police station with the fire-arm.

Evidence of P.W. 2, Radha Devi also supports this much of the prosecution case that the Appellant had fire-arm in his hand and by firing from that fire-arm the shot had hit Bhama Devi who subsequently succumbed to her injury.

Before further discussing evidence of P.W. 2, some of the points raised by the learned Counsel for the Appellant may be seen. Learned Counsel argued that the Appellant obviously had no motive to kill Bhama Devi. This point is correct as the prosecution did not come out with any motive on the part of the Appellant which might have compelled him to Kill Bhama Devi and even the informant had admitted that both had no enmity. Moreover, P.W. 2 has said that mother of the Appellant was working as maid servant in the house of the deceased.

Learned Counsel also submitted that medical evidence is contradictory to the ocular evidence. The ocular evidence was that the Appellant was standing before the deceased and as per evidence of P.W. 2, at that time he was standing while the victim was sitting but as per medical evidence the shot had entered lower, and it exited from the upper portion of the body clearly indicating that the shot was fired from a place that was lower to the deceased.

The doctor witness has made the following findings when he examined the dead body on 20.1.1997 at 8.00 a.m.-

(i) Wound of entry 1/2" lacerated circular wound x abdominal cavity deep with inverted margin on the right side of abdominal flank posteriorly 3" lateral to lumber 1 vertebra, edge blacken, margin of the wound blacken.

(ii) Wound of exit. Lacerated oval wound 1" x 3/4" x chest cavity deep with everted margin on the right of chest and 4th coastal state middle, front.

The doctor found both the wounds connecting as also fracture of right 3rd and 4th ribs. According to the doctor the death was caused because of shock and haemorrhage due to aforesaid fire-arm injuries, within twenty four hours of the examination. The post mortem report was marked Exhibit-4.

It was, thus, obvious that this wound could have been caused only when the shot was fired from a lower position.

It has sufficiently come in the evidence that at the time the occurrence took place, the deceased was sitting on a raised verandah attached to the house of Sitaram. P.W. 2, an independent witness who was also handicapped, has said in her evidence that at that time she herself was. sitting on the road. It has come in the evidence that verandah was adjacent to the road. According to P.W. 2, she was talking with Bhama Devi and others. At that time the Appellant came there, but according to this witness he was in inebriated state. Another lady told him as to why he was being loquacious and why he was not bringing back his wife (who was in naihed At that Dabloo Ram took out his pistol and the lady, who had taunted him, fled aw(sic) Thereafter Bhama Devi told that that was fake pistol, but P.W. 2 said that the place was real. Then the Appellant stood up (sic) opened the pistol and the cartridge, (sic) down. He told them that the pistol was and again loaded the cartridge and point that towards the sky asking them to whether he should fire. Bhama Devi told him not fire and to go and keep the pistol in this house. Thereafter, twice the Appellant asi(sic) whether he should fire and, in the me time, the shot was fired accidentally wh(sic) hit Bhama Devi in the right chest. She said that when the hand of Bhama Devi down she saw blood and her head Sta(sic)reeling reeling. Dabloo Ram was standing (sic) but when he saw the blood, he realis(sic) to what he had done and fled aw(sic) cross-examination this witness said whatever incident she saw, she saw road and at that time Bhama Devi sitting on the verandah. She also ad(sic) that the firing was done when the a was standing and he had fired toward '' She also said that Bhama Devi he enmity with the Appellant.

From her evidence it is also that the Appellant, when he had com(sic) sat where P.W. 2 was sitting, that is (sic) road. Obviously, Bhama Devi was (sic) a height, on verandah. The height verandah and the height of the a(sic) not come on the record, but it is (sic)ous that the firing of the Appellant was (sic) and na lower level and he had fired upward. (sic)cording to P.W. 2, he was also in a(sic)nken state. How drunken, it has not me in evidence to show as to whether or (sic) (sic)he was totally incapable of understand-what he was doing. But in that state, (sic)ne wavering cannot be ruled out.

Evidence of P.W. 2 on a plain (sic)ding appears to be the evidence of a (sic)ful witness who simply has narrated that she had actually seen. That, the alle(sic)tion that the shot fired from the pistol of that Appellant had hit the deceased stands apply proved from her evidence and evidence of other witnesses, and evidence of (sic) 2 also indicates that at that time victim(sic) sitting at a higher platform, and the Appellant was standing on the road.

Learned Counsel for the Appellant (sic) rellied on a decision of the Apex Court the case of Awadhesh and Anr Vs. State of Madhya Pradesh, that case, however, the shot had trav(sic)d downward and there was definite evidence the record that the assailant had and from a place which was lower in level the place where the deceased was sit(sic) on a well, drinking water.

The aforesaid facts as coming out (sic) evidence of witnesses, particularly of (sic) eye-witnesses, and others who had in the Appellant with a pistol quite near (sic) deceased soon after firing had taken (sic) leave, no doubt that the firing was (sic) by this Appellant which had hit the (sic)ssed

Learned Counsel also submitted in the seizure list, the case number (sic) not noted which showed that the sei(sic) was done before the first information it was registered as a case. It was (sic)ed out that P.W. 1 was also a witness (sic) seizure list but the first information report itself would show that he had reached the police station when the first information report was being recorded which two situations are contradictory. It was also pointed out that according to the Investigating Officer, on the receipt of O.D. slip from the Hospital a Police Oficer was sent there who said that the dead body was lying in the hospital, brought by P.W. 1. It was argued that if Nand Kishore had himself come down to the police station with the news of death, there was no need for a Sub-Inspector also to say that. But this last argument does not contain any contradiction. There is sufficient evidence on the record that P.W. 1 had brought the deceased on a rickshaw to the Sadar Hospital and, according to his evidence, when soon thereafter she died, he had gone to the Police Station and given the information there. But Sub-Inspector was sent there on receipt of O.D. Slip which was a natural thing for a Police Officer to do. Therefore, there is no contradiction as both coming from the hospital had brought the same news about the death of the deceased. In so far as the other argument is concerned, it is true that the case number has not been mentioned at the top of the seizure list but at the bottom this refers to Kotwali P.S. Case No. 29 of 1997 dated 19.1.1997 u/s 302 of the Code and under Arms Act. This reference was written obviously after the case was registered because as per first information report, when its writing was coming to an end the information was given that Bhama Devi had died, which necessitated registering of the case u/s 302 of the Code.

Learned Counsel pointed out that P.W. 3 had said that on being fired, the mother had fell down on road and was writhing but evidence of other witness, P.W. 2, was that when the deceased received the shot, she continued sitting there though she had taken support of the wall of the house which was on the back side.

Obviously, soon after the mother of the informant was hit by a shot, the informant had rushed chasing the Appellant. He was hardly in a position to see that unless he also turned backwards to find out as to what was happening to the body. This may be a contradiction, but not such which could negate the impact of the entire prosecution case.

It was also pointed out that on the inquest report also no case number was noted. However, this inquest repcrt was prepared at the hospital as has come in the evidence and not at the police station, hence the case number might not have been given on it. But there is no denial that this inquest report was in connection with the dead body of Bhama Devi. This also depicts a hole in the right chest and a bandage below that.

It was also pointed out that there was clear evidence of the witnesses that the Appellant was produced at the police station possessing the fire-arm, but the seizure list showed that the fire-arm with the empty cartridge was handed over by the informant.

The evidence on record conclusively prove that after the firing the Appellant had fled away and was chased by witnesses and caught at the same distance with the fire-arm in his possession and he and the fire-arm were brought to the Police Station. It is not very material as to whether the Police Officer seized the fire-arm from the hand of the Appellant, or that was handed over by the informant.

Therefore, we do not find any reason to disagree with the findings reached at by the learned lower court so far shot fired by the Appellant hitting the deceased is concerned.

In the last, learned Counsel sub(sic) mitted that from the evidence of P.W. 2 which is the only witness of the prosecution (sic) have seen the entire occurrence it was Apparent that this was a case of accidents firing, without any intention to kill Bhama Devi and, in that view of the matter, the Appellant could not be convicted u/s 302 of the Code but at best, if the evidence was believed, the offence that was committed was punishable u/s 304A of the Code. For this learned Counsel has relied upon two decisions of the Apex Court, in the case of Balwant Singh v. State of Punjab 1994 Sup. (2) S.C.C. 67, and in the case of State of U.P. Vs. Abdul and others, The learned Additional Public Prosecutor, on the other hand, argued that this could hard be a case of accidental death when the informant''s evidence clearly revealed the when he came out of the house he saw the Appellant with the pistol which he immedl(sic) ately fired at his mother hitting in the Chest Obviously, as it may be mentioned here the shot had only exited through chest but had entered into the lower right side of the body. It may be that since the injury on the chest, where the shot had exited, was clearly visible the witnesses said that she! was shot in the chest.

We do not find any contradiction in the evidence of P.W. 2, on the one hand, and the evidence of the informant and other witnesses, on the other. According to P.W. 2, also it was the Appellant who had a country made pistol in hand and firing had taken place from that pistol which had hit Bhama Devi. Informant is a witness from the stage when the Appellant was standing'' with the pistol and when the firing had taken place. Therefore, on this point the two witnesses agree. But what had happened before that, to that only. P.W. 2 was the witness. We have already said that; evidence of P.W. 2 inspired confidence and (sic) a true narration of what actually had (sic)ppened. According to this witness, when (sic) Appellant had taken out his pistol on (sic)ng taunted by another lady about bring (sic) his wife from the Naihar, deceased said at the pistol was fake and this witness and that it was real. It has come that at the time the Appellant was in somewhat (sic)nken state. He did not fire at once but to (sic)w that the pistol was real and loaded (sic)n a cartridge, as per P.W. 2, he had first (sic)ned the chamber exposing the car(sic)ge which had fallen down. He again (sic)ded the pistol and pointed the same (sic)ward and as per this witness, thrice he (sic)edas to whether he should fire (to (sic)w that it was real). The clear impres(sic)on that the evidence of P.W. 2 gives is but he was attempting to show that the (sic)ol was real and for that he wanted to (sic) skyward but, in the meantime, the firing (sic) place accidentally which had hit Bhama Devi Therefore, accidental death of Bhama Devi appears to be more plausible than the (sic)cide committed with mens rea. In view that state of evidence on record, we do (sic) find it safe to approve the conviction of the Appellant u/s 302 of the (sic)ds in our opinion, the Appellant should (sic) been convicted u/s 304A of Code, for causing homicide by rash and negligent act. However, in our opinion, (sic) conviction and sentence of the Appellant u/s 27 of the Arms Act shall (sic) lfor which the sanction was received are the District Magistrate, as brought on record.

In the result, the conviction of Apellant u/s 302 of thev he is set aside and, instead, he is (sic)cted u/s 304A of the Code (sic) santenced to rigorous imprisonment two years. However, in the. circumstances of the case, the sentences would peparately.

With the aforesaid modification in conviction and sentence, this appeal is dismissed.