Sanjay Singh @ Kumar Sanjay Singh vs The State of Bihar

Narayan Roy, J.—Heard learned Counsel for the parties.

The sole Appellant has been convicted u/s 302/34 and Section 394/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and ten years, respectively. Sentences, however, have been directed to run concurrently.

Prosecution case, briefly stated, is that on 13.02.1993 the informant (P.W. 6), Maharana Pratap Singh along with the deceased was coming on a motor cycle from their native village to Patna and at about 12.45 p.m. while they reached Brahma Sthan in between Bihia Bazar and Chaurasta, three persons appeared before them and asked them to stop. The deceased was driving the motor cycle, whereas the informant was the pillion ridder and no sooner, the motor cycle was stopped, the miscreants asked Akhilesh Prasad Singh, the deceased, to hand over the motor cycle, to which the deceased protested and a tall boy standing at his back, wearing pant and shirt, took out a pistol and shot at Akhilesh Prasad Singh, the deceased, by putting the pistol near his Kanpatti, as a result of which both of them fell down from the motor cycle and those three miscreants put threat to the informant (P.W. 6) and they sped away with the motor cycle. In the meantime, the police reached there and by that time Akhilesh Prasad Singh had already succumbed to his injuries. The fardbeyan of R.W. 6 was recorded at the place of occurrence by P.W. 7, which has been marked as ext. 5/1 and the informant (P.W. 6) claimed to identify the miscreants by face. On the basis of the fardbeyan (Ext. 5/1) a formal first information report (ext. 6) was drawn up and the police took up investigation.

After due investigation, police submitted chargesheet against the Appellant and one Fulkesari Devi for an offence under Sections 302/34, 394/34 and 414 of the Indian Penal Code. After taking cognizance of the offence, case was committed to the court of sessions and in the trial, the Appellant was found guilty of the charges and was convicted and sentenced, as referred to above, and Fulkesari Devi was acquitted for want of evidence.

Prosecution, in all, examined nine witnesses in support of its case. P.Ws. 1, 2, 8 and 9 are formal witnesses. P.Ws. 1 and 2 are seizure witnesses, whereas P.W. 8 has proved ext. 8/1 and P.W. 9 has also proved exts. 8/2 to 8/5. P.W. 3, Awadhesh Shah, is witness of inquest. P.W. 4, Udai Bhan Dwedi, is a Judicial Magistrate, who conducted the test identification parade and proved the test identification parade" chart (ext. 3). P.W. 5 is the doctor, who held autopsy over the dead body of the deceased and proved the post-mortem report (ext. 4). P.W. 6, Maharana Pratap Singh, is the informant, whereas P.W. 7 Indrasan Choudhary is the first Investigating Office, who recorded the fardbeyan of the informant (P.W. 6) and proceeded with the investigation to some extent and has also proved the police case diary (ext. 7). P.Ws. 4, 5, 6 and 7 are the material witnesses.

The informant (P.W. 6) in his evidence has stated that on 13.02.1993 while he along with the deceased was returning to Patna from his native Village and when he and his Bhagina reached near Brahma Sthan in between Bihia and Chaurasta, three persons appeared before them and one of them asked them to stop and no sooner, Akhilesh Prasad Singh, who was driving the motor cycle, stopped the motor cycle, one of the miscreants asked to hand over the motor cycle, which was protested by Akhilesh Prasad Singh, the deceased, by saying that he was also a local person and on that one tall person from amongst the miscreants took out a pistol and shot at Akhilesh Prasad Singh, the deceased, from point blank range hitting him at the temporal region, as a result of which, both of them fell down and the miscreants after hurling threat to him sped away with the motor cycle and, in the meantime, P.W. 7, Officer-in-charge, Bihia Police Station, reached there and recorded his fardbeyan and the same was read over to him and thereafter he put his signature. This witness, however, claimed before the Investigating Officer that he would identify the accused persons by their face if they are shown to him. In his cross-examination this witness has not been shaken and he stood candid in saying that he had seen the accused persons and before that he had not seen them. He further stated in his cross-examination that before test identification parade he had not seen the accused persons. He has further stated in his cross-examination that he had identified this, Appellant in the test identification parade and he pointed out towards this Appellant, who was standing in the dock.

P.W. 4 is the Judicial Magistrate, who held the test identification parade and proved the test identification parade chart (ext. 3). In his evidence he has stated that he had held the test identification parade on 11.6.1993 as per the direction of the Chief Judicial Magistrate, Ara. He has further stated in his evidence that test identification parade chart (ext. 3) was prepared by him and it was in his signature. He has also stated that for the first time he met the informant (P.W. 6) in the jail where he was standing outside the jail at the time of arrival and P.W. 6 was introduced to him by the Investigating Officer.

P.W. 5 is the doctor, who held the autopsy over the dead body of the deceased on 13.02.1993 at 4.20 p.m. He has stated in his evidence that on external examination he found lacerated wound over left side of face and skull of the size of 4" x 3" brain tissue deep extending from tragus of left ear to the lateral angle of left eye. Margine everted tatooing-there was charring and blackening of margin of the skin over an area of 5" diameter around the wound. On dissection he found a complete loss of skin subcutaneous tissue part of skull and facial bones including upper maxillaea zygeomatic part of temporal Derital and frontal bones in relation to the wound. Brain matter was extensively torn and smeared with fluidy and black blood. From right temporal lobe of brain and embedded metallic substance with distorted shape was recovered. In the opinion of the doctor (P.W. 5) injury No. 1 caused by firearm was sufficient in ordinary course to cause death.

P.W. 7, the first investigating officer of the case, has stated that on 13.02.1993 he received information at 12.55 p.m. that one person had been shot dead and the miscreants had sped away with the motor cycle near Brahma Sthan in between Bihia Bazar and Chaurasta and on that information he rushed to the place of occurrence and there he found P.W. 6 Maharana Pratap Singh near the dead body of the deceased and recorded his fardbeyan at 1.10 p.m. and thereafter he prepared inquest report, marked as Ext. 2/2, in presence of the witnesses (P.Ws. 1 and 2). At the place of occurrence he found sufficient quantity of blood on the road and at a distance of 2 ft. he also recovered one empty cartridge of 315 bore. This witness has further in his evidence stated that thereafter he enquired about the motor cycle and ascertained the number of the motor cycle bearing Registration No. BR-1C 7095 and thereafter he handed over the charge of the case to one Dilip Kumar on 15.02.1993 on account of his transfer. This witness has further stated that he has proved the case diary (ext. 7) prepared by Dilip Kumar, the subsequent Investigating Officer.

The whole case hinges upon the evidence of P.W. 6 corroborated by the evidence of P.Ws. 4, 5 and 7. P.W. 6 is the eye-witness of the occurrence and from his evidence it appears that he had occasion to see the miscreants from very close range, as he was pillion rider on the motor cycle, which was being driven by the deceased. From his evidence, it is manifest that he gave vivid description of the occurrence, and reiterated his statement as recorded in the fardbeyan in his evidence and claimed to have identified them by their face. It is also manifest from his evidence that he identified this Appellant in the test identification parade, held in the local jail in presence of P.W. 4, the Judicial Magistrate, who conducted the test identification parade. There is nothing in the evidence of P.W. 6 to suggest otherwise that he had occasion to see the Appellant before holding of the test identification parade and evidence of P.W. 4 is suggestive of the fact that for the first time, he was introduced by the Investigating Officer at the jail gate. P.W. 6 in his evidence has very categorically stated that one of the miscreants, who was tall, took out a pistol from his person and shot at Akhilesh Prasad Singh, the deceased, which caused his instantaneous death. The evidence of P.W. 5, the doctor, who held autopsy, corroborates the prosecution version of the case to the extent that he had found firearm injuries on the person of the deceased and particularly on the temporal region, which in ordinary course was sufficient to cause death. At the same time, the evidence of P.W. 7 lends support to the prosecution case, as divulged by P.W. 6. P.W. 7 in his evidence has stated that he held the inquest and found sufficient injuries on the face of the deceased and had also found sufficient quantity of blood, which had oozed out from the person of the deceased at the place of occurrence and hardly at a distance of 2 ft. he also recovered one empty cartridge of 315 bore evidence of P.W. 7, thus, clearly, corroborates the prosecution version of the case that the deceased was shot at by one of the miscreants.

Learned Counsel appearing on behalf of the Appellant submitted that the Appellant is in custody since 30th March, 93 and at the time of occurrence he was (sic)ged about 22 years; therefore, learned Counsel submitted that a lenient view of the matter may be taken.

Learned Counsel appearing on behalf of the State, however submitted that there is overwhelming evidence to warrant conviction and sentence as awarded to the Appellant and no interference is required.

I have scrutinised the evidence with all objectivity and I find sufficient evidence against the Appellant, who has been found guilty under Sections 302/34 and 394/34 of the Indian Penal Code. From the evidence, it is manifest that all the miscreants including the Appellant had come to the place of occurrence with fire-arm and they opened fire upon the deceased with a purpose to loot the motor cycle, in which they succeeded. The evidence adduced by the prosecution has fully proved the guilt of the Appellant u/s 302/34 of the Indian Penal Code and, therefore, I have no option but to uphold the findings and order of conviction and sentence passed against this Appellant. The conviction and sentence passed against the Appellant u/s 394/34 of the Indian Penal Code, in my opinion, also do not require any interference, as there is overwhelming evidence that the motor cycle in question was looted away by the miscreants including the Appellant after killing Akhilesh Prasad Singh, the deceased.

In the result, I do not find any merit in this appeal. It is, accordingly, dismissed.

Prabhat Kumar Sinha, J.

I agree.