Sadhu Singh vs State of Jharkhand

D.K. Sinha, J.—Instant criminal appeal is directed against the judgment of conviction of the appellant u/s 307 of the Indian Penal Code and u/s 27 of the Arms Act recorded by Shri Ganga Dhar Bhagat, Additional Sessions Judge, F.T.C. III, Jamshedpur in S.T. No. 304/93, arising out of Sidhgora P.S. Case No. 88/93, by which he was sentenced to undergo rigorous imprisonment for ten years u/s 307 of the Indian Penal Code but no sentence was inflicted for his conviction u/s 27 of the Arms Act.

Prosecution story in short was that the statement of the informant Dasrath Singh was recorded by Bistupur police on 11.7.1993 at about 10:30 a.m. at bed No. 24, Ward- 3A of the Tata Main Hospital, Jamshedpur, who narrated that on the previous day i.e. on 10.7.1993 at about 7:30 p.m. while he was returning from the house of his friend Gopaljee, situated at Panchwati Road, he found the appellant Sadhu Singh standing on the road. When the informant crossed ahead of the appellant Sadhu Singh on way to his home, the informant alleged that Sadhu Singh came from his behind and pointed a pistol almost by touching his back. The informant immediately though wanted to ward off, but Sadhu Singh fired shot from the pistol causing bleeding injuries in his right arm. He then started running towards his house by shouting "Bachao Bachao" as Sadhu Singh had been chasing him. However, on the alarm raised by him, when the neighbouring people as well as the members of his family came out, the appellant Sadhu Singh escaped by firing one another shot upon him which did not hit any one. He further stated that he was removed by his neighbouring friend Arbind, Mantu with the help of the members of his family to the Tata Main Hospital, Jamshedpur on auto-rickshaw where he was admitted and his treatment was going on. On the basis of his fardbeyan, Sidhgora P.S. Case No. 88/93 was registered on 11.7.1993 for the offence u/s 307 of the Indian Penal Code as also under. Section 27 of the Arms Act. Investigating Officer after investigation submitted charge-sheet against the appellant Sadhu Singh for the offence under Sections 307/326 of the Indian Penal Code as also u/s 27 of the Arms Act.

I find from the record that after framing of charge u/s 307 of the Indian Penal Code and u/s 27 of the Arms Act the appellant Sadhu Singh was put on trial. Prosecution had examined only five witnesses to substantiate the charge viz. P.W.-1 Dr. S.K. Bhatnagar who proved the injury report of the informant, P.W.-2 is the informant-victim Dasrath Singh, P.W.-3 Sanjeev Kumar Singh, P.W.-4 Arbind Kumar Ojha, who projected themselves to be the eye-witnesses of the occurrence, and P.W.-5 Uma Shankar Singh, who also claimed to be the eye witness. The Investigating Officer could not be examined on behalf of the prosecution.

Learned Counsel Mr. P.S. Ghosh appearing on behalf of the appellant at the outset submitted that neither the injury report nor the F.I.R. or the fardbeyan could be properly proved and brought on the record. Yet, ignoring such lapses on the part of the prosecution, the learned Trial Judge recorded the finding of conviction of the appellant. The appellant was highly prejudiced for non-examination of the Investigating Officer.

Advancing his argument, Mr. Ghosh submitted that no motive was assigned by the informant-P.W.-2 for any kind of assault alleged to be made upon his person by firing shot and the involvement of the appellant therein. Even no pellet/projectile was found/recovered from the arm of the victim Dasrath Singh and there was no exit wound if at all in the backdrop of the prosecution case that the shot was fired at point blank range or by pointing the barrel of the pistol on the body of the informant.

Learned Counsel Mr. Ghosh submitted that the informant was admitted at Tata Main Hospital, Jamshedpur on the same day after few hours and his injuries were examined at about 8: 50 p.m. by the attending Doctor, but the statement of the informant-victim was recorded after about more than twelve hours, though there was police post within the premises of Tata Main Hospital, Jamshedpur and no explanation could be given by the prosecution as to what prevented the police from recording the statement of the informant victim at the earliest point in time and such lapses has caused the appellant highly prejudiced.

Learned Counsel further explained that it would be evident from perusal of the statement of P.W. -3, P.W.-4 and F.W.-5 that they cannot be held to be the eye-witnesses because they had arrived at the place of occurrence after alleged firing of shot. Informant had not shown the place of occurrence to the Investigating Officer and objective finding of the Investigating Officer could not be brought on the record so as to establish the place of occurrence. Informant had narrated that the members of his family had also appeared at the scene on the alarm raised by him, besides the neighbouring people, who removed him to the hospital immediately by putting him on auto-rickshaw, but neither the members of his family nor any neighbour could be produced on behalf of the prosecution to prove the consistency of the sequence of event as narrated by the informant and in that manner, the ocular evidence of the informant-P.W. 2 did not find support by the independent evidence.

Finally, Mr. Ghosh submitted that statement of the appellant recorded u/s 313 of the Code of Criminal Procedure suffers from infirmity and irregularity. The question was put to the appellant that on 10.7.1993 he fired shot on Dasrath Singh with the intention to commit his murder by touching the pistol on his back near J.P.S. School which caused injury on his right arm, to which the appellant denied his guilt and implication and further denied to adduce defence witness. Mr. Ghosh pointed out that when the place of occurrence could not be established by the prosecution, in that situation question put to the appellant by specifying the place of occurrence caused prejudice to him and in that manner, the judgment of conviction and order of sentence recorded against the appellant u/s 307 of the Indian Penal Code cannot be sustained under law and he may be acquitted.

Mr. Tapas Roy, the learned A.P.P., strongly opposed the contention made by the learned Counsel Mr. P.S. Ghosh appearing on behalf of the appellant Sadhu Singh and submitted that all the four witnesses viz. P.W.-2, P.W.-3, P.W.-4 and P.W.-5 were consistent by testifying the complicity of the appellant that he had fired shot upon the victim Dasrath Singh with the intention to commit his murder and corresponding injuries were found on his right arm when examined by the Doctor P.W.-1 at Tata Main Hospital. Even in absence of any assigned motive the charge under 307 of the Indian Penal Code could be proved by the consistent evidence of the eye-witnesses P.W.-3, P.W.-4 and P.W.-5 that the appellant fired shot causing injury on the arm of the informant. In such a situation motive is not very much relevant when there was direct allegation against the appellant that he targeted the vital part of the organ by firing shot but it hit the arm of the informant and in the opinion of the Doctor P.W.-1 such injury was caused by fire arm. The P.W.-3, P.W.-4 and P.W.-5 were consistent that the appellant had fired two shots. First shot that was pointed at the back of Dasrath Singh, hit his right arm causing bleeding injury and when he started running towards his home to save his life, he was chased by the appellant, who fired second shot targeting the informant but it did not hit him and such act of the appellant demonstrated that the appellant had dominant intention to commit murder of Dasrath Singh but he narrowly escaped and the prosecution could be able to prove the charge u/s 307 of the Indian Penal Code beyond reasonable doubt against the appellant and he was convicted and adequately sentenced which did not call for interference.

Having regard to the facts and circumstances of the case, arguments advanced on behalf of the appellant as well as the State-respondent. I find that the appellant was sentenced to undergo rigorous imprisonment for ten years for his conviction u/s 307 of the Indian Penal Code. He was convicted as also u/s 27 of the Arms Act but no separate sentence was awarded to him for the reasons best known to the Trial Judge.

On careful perusal of the Trial Court Record, I find that P.W.-1 Dr. S.K. Bhatnagar had examined the injuries of the informant Dasrath Singh on 10.7.1993 at about 8:05 p.m. in the Emergency Department of Tata Main Hospital, Jamshedpur and he had found the following:

(i) Punctured wound surrounded by black charring sign just below the deltoid of right arm measuring �

(ii) Multiple abrasions and punctured would surrounded by charring on the face and left forearm of the victim. Injuries were within six hours of the examination as there was fresh blood in the wound. The nature of the injuries was found to be grievous and the patient was admitted in the hospital.

He proved the injury report in his pen and signature (Ext. 1).

In the cross-examination, the expert witness stated that as the charring was present so the fire must have taken place from a distance of about 2 ft. only and that he did not find any pellet in the injury.

I find from the deposition of P.W.-1 Dr. S.K. Bhatnagar that ample opportunity was given to the appellant to cross examine him but nothing could be elicited from his testimony to discredit his evidence and it could be established that the injury sustained by the victim-informant was caused by fire arm.

Learned Counsel for the appellant has consistently and emphatically pointed out that the appellant was highly prejudiced for non-examination of the Investigating Officer, who had submitted charge-sheet after investigation of the case and that no objective finding of the Investigating Officer could be brought on the record and that though the place of occurrence could not be established from the statement of the witnesses, but such question was put to the appellant in his statement recorded u/s 313 of the Code of Criminal Procedure as such, the entire proceeding was vitiated and that the appellant was entitled for acquittal.

Admittedly, Gurudeo Singh, A.S.I. of Sidhgora Police Station was the Investigating Officer, who could not be produced and examined on behalf of the prosecution, but for that the Counsel for the appellant failed to point out as to how the appellant was prejudiced for non-examination of the Investigating Officer. The other witnesses including the informant-P.W.-2 were consistent on the manner of occurrence, place of occurrence and the involvement of the appellant therein, who fired shot upon the informant causing bleeding injuries on his right arm. As regards the place of occurrence, the informant-P.W.-2 Dasrath Singh was more specific in his testimony that while he was returning towards his home and came near J.P.S. School, he spotted the appellant Sadhu Singh standing there and as soon as he crossed ahead to him, the appellant came from his behind and pointed a revolver on his back and fired shot which caused bleeding injuries on his right arm. The informant P.W.-2 then started running to save his life by shouting "Bachao Bachao". He again heard the sound of firing another shot. In the cross-examination, the victim-P.W.-2 very particularly specified the place of occurrence by giving boundary that it were the quarters of TISCO on the left of the place of occurrence, the J.P.S. School was in the right, behind him Golmuri Market was situated, whereas the way he was moving forward led to Baridih Market.

P.W.-3 Sanjeev Kumar Singh claimed to identify the appellant as assailant, who fired shot upon the informant- Dasrath Singh and at that time this witness was moving around J.P.S. School with P.W.-5 Uma Shankar Singh and P.W. -4 Arbind Kumar Ojha. The witness admitted that -he also helped the victim- Dasrath Singh and removed him to Tata Main Hospital. He was cross-examined at length but nothing could be elicited to discredit his testimony. Under cross-examination, he emphatically stated that he had witnessed the occurrence at the distance of 10 ft. and that the place of occurrence was adjacent to J.P.S. School.

P.W.-4 Arbind Kumar Ojha corroborated the statement of P.W.-3 Sanjeev Kumar Singh about the date of occurrence, time of occurrence and manner of occurrence that while he was moving with P.W.-3 Sanjeev Kumar Singh and P.W.-5 Uma Shankar Singh near J.P.S. School, he spotted Sadhu Singh firing shot from his revolver on Dasrath Singh as a result of which Dasrath Singh started screaming. He along with other witnesses immediately went there and found bleeding injuries on the right arm of the victim. In the cross-examination, he admitted by corroborating the statement of other witnesses that the occurrence took place at a distance of about 10/15 ft. from them. The cloth of Dasrath Singh was smeared with blood and that a hole was made in his cloth. Witness further admitted that Dasrath Singh had grown with him since their childhood and the appellant Sadhu Singh was his neighbour. Both were acquainted with him. He claimed to identify the appellant in the Court.

P.W.-5 Uma Shankar Singh testified almost the same fact that while he was walking along with P.W.-3 Sanjeev Kumar Singh and P.W.-4 Arbind Kumar Ojha on 10.7.1993 at about 7:00/7:30 p.m. near J.P.S. School situated at New Baridih, he witnessed Dasrath Singh going towards his home, but in the meantime, he claimed having witnessed the appellant Sadhu Singh pointing a pistol on the back of Dasrath Singh who fired shot, whereupon Dasrath Singh screamed "Bachao Bachao" and started running towards his house. Sadhu Singh chased him and again fired shot, but it did not hit the target. First shot had hit his right arm. He was first removed to his home and from there to Tata Main Hospital, Jamshedpur for his treatment. He identified the appellant Sadhu Singh in the Court. In the cross-examination, he stated that he was standing at the distance of only ten steps when Sadhu Singh fired his first shot. Arbind and Sanjeev were known to him before. He was cross-examined at length but his credibility could not be shaken and he stood to the test of his examination.

From the statement of all the four witnesses viz. P.W.-2, P.W.-3, P.W.-4 and P.W.-5. I find that they were consistent about the manner of occurrence, place of occurrence and the complicity of the appellant Sadhu Singh, who fired shot upon Dasrath Singh at point blank range causing charred injury in the right arm. P.W.-1 Dr. S.K. Bhatnagar had found punctured wound surrounded by black charring sign just below the deltoid of right arm measuring 1/4" and multiple abrasions with charring on the face and left forearm which were, in the opinion of the Doctor, were caused by fire arm, as he stated in the cross-examination that the charring was present, so the firing must have taken place from the distance of 2 ft. only. The witness admitted that he did not find any pellet in any of the injuries.

The evidence of the witnesses conclusively goes to show that the injuries sustained by the informant-P.W.-2 Dasrath Singh were caused by fire arm and it was the appellant Sadhu Singh, who fired two shots upon Dasrath Singh with the intention to commit his murder but the second fire from his pistol/revolver did not hit the target and he escaped from the place when the witnesses started pouring in on the alarm there being raised by him. The witnesses were cross-examined at length and each of them stood to the test by corroborating the prosecution case and I do not find any error in the judgment of conviction recorded against the appellant Sadhu Singh u/s 307 of the Indian Penal Code as also u/s 27 of the Arms Act. Admittedly, neither the fire arm nor the pellet could be recovered by the Investigating Officer in course of investigation either from the place of occurrence or from the person of the victim, but the expert witness Dr. Bhatnagar was consistent in his cross-examination by giving reasoning that injuries on the person of the victim were caused by firing shot. As the witnesses including the informant-P.W.-2 Dasrath Singh had specified the place of occurrence by giving boundary, there appears no substance in the argument that the place of occurrence in this case could not be established by the prosecution and for that the defence of the appellant was highly prejudiced for non-examination of the Investigating Officer. I find that the appellant was confronted with the materials, which appeared on the record in course of trial, but he denied his guilt and I do not find any irregularity or illegality in recording the statement of the appellant u/s 313 of the Code of Criminal Procedure.

In the given facts and circumstances, I find that the appellant Sadhu Singh was rightly held guilty u/s 307 of the Indian Penal Code as also u/s 27 of the Arms Act and was adequately sentenced for the charge u/s 307 of the Indian Penal Code. Learned Counsel for the appellant failed to show any ground so as to call for interference in the judgment and order recorded against the appellant and there being no merit, this criminal appeal is dismissed. Ad-interim bail granted to him stands vacated. The appellant Sadhu Singh is directed to surrender within four weeks of judgment to serve out remaining period of sentence, failing to which Trial Judge would take appropriate steps ensuring his arrest for remanding him to judicial custody.