IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (DB) No.575 of 2015

Arising Out of PS. Case No.-122 Year-2013 Thana- CHAPRA MUFFASIL District- Saran

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Sanjay Kumar Singh S/o Late Pashupati Nath Singh, resident of village- Enai,

Post- Enai, P.S.- Revilganj, District Saran

... ... Appellant/s

Versus

The State of Bihar

... ... Respondent/s

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Appearance :

For the Appellant/s: Mr. Subodh Kumar Sinha, Advocate

Mr. Divyam Verma, Advocate

Mr. Sanjeet Kumar Singh, Advocate

For the State : Mr. Sujit Kumar Singh, APP

For the Informant: Mr. Dewendra Narayan Singh, Advocate

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CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

and

HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA

ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

Date : 29-08-2023

The present appeal has been filed under Section 374(2)

of the Code of Criminal Procedure, 1973 (hereinafter referred as

‘the Code’) challenging the order of conviction dated 22

nd

May,

2015 and order of sentence dated 28

th

May, 2015 passed by learned

Additional Sessions Judge - IV, Saran, Chapra in Sessions Trial

No. 678 of 2013/2631 of 2014 arising out of Chapra Mufassil P.S.

Case No. 122 of 2013, G.R. No. 2300 of 2013, whereby the

concerned Trial Court has convicted the present appellant for the

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offences punishable under Sections 302 of I.P.C. and under Section

27(3) of the Indian Arms Act, 1959.

2. He has been sentenced to undergo rigorous

imprisonment of life and a fine of Rs. 15,000/- under Section 302

of the I.P.C. and 5 years R.I. under Section 27(1) of the Arms Act

and a fine of Rs. 5,000/- in default of fine 6 months S.I. Both the

sentences have been ordered to run concurrently.

3. The factual matrix of the present case is as under:-

“The elder sister of the informant, namely, Rinku

Devi was married to Sanjay Singh in the year 1992 and two

sons and one daughter were born out of that wedlock.

Sanjay Singh used to beat his wife. Recently, Sanjay Singh

had badly beaten his wife, and upon getting this information

the informant went to the matrimonial home ‘Enai’ and

brought back his sister to his home. After that Sanjay Singh

came there again and again but they did not send his wife

with him because she was not ready to go to her sasural (in-

laws house), due to which Sanjay Singh had threatened of

dire consequences. On 30.05.2013 at about 11 O’clock in

the morning, Sanjay Singh came to informant’s house on his

motorcycle with his licensed rifle and started abusing, upon

which the younger brother of the informant Sunil Kumar

Singh came out of the house. Sanjay Kumar Singh murdered

Sunil Kumar Singh at the verandah of the informant’s house

by firing a gun-shot from his licensed rifle from the point

blank range at the neck of Sunil Kumar Singh. Before they

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came shouting out of their house, he (Sanjay Kumar Singh)

ran away from the spot on his motorcycle.”

4. After registration of the F.I.R., the Investigating

Agency has started investigation and recorded the statement of the

witnesses. The dead body of the deceased was sent to the Doctor

for conducting the post mortem. The Investigating Officer also

seized the licensed rifle of the appellant/accused from which it is

alleged that the firing took place and thereafter, the same was sent

to F.S.L. for necessary analysis. After the investigation was over,

the Investigating Officer filed the charge-sheet against the

appellant before the concerned Magistrate Court. However, since

the case was exclusively triable by the Court of Session, the

learned Magistrate committed the same to the concerned Sessions

Court where the same was numbered as Sessions Trial No.678 of

2013/2631 of 2014.

5. During the course of the trial, the prosecution had

examined nine witnesses and also produced the documentary

evidence. Thereafter, further statement of the appellant/accused

came to be recorded under Section 313 of the Code and after

conclusion of the trial, the Trial Court passed the impugned order,

as observed hereinabove.

6. Heard Learned Advocate Mr. Subodh Kumar

Sinha, assisted by Mr. Divyam Verma and Mr. Sanjit Kumar Singh

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for the appellant/convict, Mr. Sujit Kumar Singh, learned

Additional Public Prosecutor for the Respondent-State and Mr.

Dewendra Narayan Singh for the Informant.

7. Learned Advocate for the appellant has referred to

the depositions of PW-2, PW-3, PW-5 and PW-6 who are claiming

to be the eye-witnesses to the incident in question. After referring

to the deposition of the said witnesses, it is submitted that, in fact,

the aforesaid prosecution witnesses have not actually seen the

incident in question and they reached the spot after the occurrence

took place and they have seen that the appellant fled away from

the place of occurrence. Thus, in fact, there is no eye-witness to

the incident in question. It is also submitted that, in fact, the

appellant came to the house of the first informant with his licensed

rifle. However, he was not having any intention to kill the

deceased and a sudden quarrel took place between the deceased

and the appellant and accidentally the firing took place in which

the bullet hit the deceased, as a result of which he died. Learned

counsel, therefore, submitted that even assuming, without

admitting, that the death of the deceased was caused in the incident

in question, there was no intention or knowledge on the part of the

appellant to kill the deceased and, therefore, alternatively it is

submitted that the case of the appellant falls under Exception 4 of

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Section 300 of the I.P.C. and, therefore, it is punishable under

Section 304 Part-II of the I.P.C. The maximum sentence for the

same is 10 years’ imprisonment. It is submitted that the

appellant/convict is in jail since 04.06.2013 i.e. more than 10 years

and, therefore, the conviction be substituted from 302 to 304 Part

-II and when the appellant is in jail since more than 10 years, he

may be immediately released from jail.

8. On the other hand, learned APP has opposed this

appeal. Learned APP would mainly submit, after referring to the

deposition of four eye-witnesses, that all the four eye-witnesses are

the family members of the deceased and they were present in the

house at the time of occurrence and, therefore, their presence was

natural as the incident took place at 11:00 a.m. in the morning.

Learned APP has also pointed out the conduct on the part of the

appellant as he has fled away from the place of occurrence

immediately after the incident took place. It is also pointed out by

learned APP about the motive on the part of the appellant to

commit the murder of the deceased. It is submitted that there was

an ill treatment on the part of the appellant to his wife who is sister

of the first informant and who is also sister of the deceased Sunil

Kumar Singh. The wife of the appellant was brought to the house

of the first informant and immediately after 2-3 days, the appellant

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came to the house of the informant with his licensed rifle which

was fully loaded with the cartridges. Learned APP has also

referred to the deposition given by PW-8, the Doctor who had

conducted the post mortem of the deceased and submitted that the

firing took place from a very close range. Learned APP has also

referred to the report given by the F.S.L. in support of his

submission that the appellant has committed the offence

punishable under Section 302 of the I.P.C. At this stage, learned

APP has also submitted that the alternative submission canvassed

by the learned Advocate for the appellant may not be accepted for

the reason that the appellant came at the place of occurrence with

his licensed rifle and there was no occasion to use the said rifle. It

is also submitted that there was no grave and sudden provocation

as contended by the learned counsel for the appellant. He,

therefore, urged that the alternate submission canvassed by the

learned counsel appearing for the appellant may not be entertained.

Learned APP, therefore, urged that this appeal be dismissed.

Learned counsel for the informant has also supported the

arguments canvassed by the Learned APP.

9. We have considered the submissions canvassed by

the learned counsel appearing for the parties. We have also perused

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the entire evidence produced by the prosecution before the

concerned Trial Court.

10. PW-1 Ashutosh Kumar Singh is a witness of the

seizure memo and he has stated in his examination-in-chief that

the blood-stained clothes of the deceased was seized and the

panchnama was prepared and he had signed the same panchnama.

He has also signed on the panchnama of the seizure of the

cartridges which were seized from the house of the deceased and

the mobile phone.

11. PW-2 Alka Singh, who is the wife of the first

informant, has stated in her examination-in-chief that the incident

took place at 11:00 a.m. on 30

th

May, 2013. At that time, she was

in her house with her family members. They were sitting in the

hall. At that time, the accused came at their residence with a rifle.

When Sunil Kumar Singh interrupted him, immediately the

appellant opened fire from his rifle and in the said incident, Sunil

Kumar Singh sustained injury and immediately thereafter, the

accused fled away from the spot on his motorcycle. The said

witness had specifically stated that she had seen the incident in

question. During cross-examination of the said witness, she had

stated that when they heard the sound of firing, they immediately

rushed to the place and saw that Sanjay Singh has fled away from

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the place of occurrence. She has denied the suggestion that a

scuffle took place between Sunil Kumar Singh and the appellant

and the incident in question had taken place.

12. PW-3 Kamla Devi is the mother of the deceased

and the mother of the first informant. She has also stated in her

examination-in-chief that the incident took place on 30

th

May,

2013 at 11:00 a.m. At that time also she was present in the hall in

their house. The appellant Sanjay Kumar Singh came at the same

place and used abusive language and when Sunil Kumar Singh

asked him not to use such type of language, immediately the

appellant Sanjay Kumar Singh started firing. In the said incident,

the bullet hit Sunil Kumar Singh and, therefore, immediately he

was shifted to Hospital where he was declared dead. She has

specifically stated that she had seen the incident in question. She

has also denied the suggestion that in a scuffle suddenly the firing

took place.

13. PW-4 Sikander Singh is also panch witness of the

seizure panchnama,

14. PW-5 Punam Devi, who is the sister of the

deceased, has also supported the case of the prosecution while

deposing before the Court and she has also denied the suggestion

made by the defense that in a sudden quarrel which took place

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between Sunil Kumar Singh and the appellant, the firing took

place.

15. PW-6 Santosh Kumar Singh is the first informant

who lodged the F.I.R. in which the said witness had specifically

stated that he was present in the house at 11:00 a.m. when the

incident took place. He has deposed that the appellant came to the

house of the said witness and started using abusive language. At

that time, his younger brother came from his room and

immediately thereafter, the appellant started firing from his

licensed rifle. In the said incident, his brother Sunil Kumar Singh

sustained injury and the appellant immediately left the place of

incident on his motorcycle. The injured was immediately shifted to

the Hospital and when they reached the Hospital, he was declared

dead. During cross-examination, he has stated that his working

hours are 10:30 a.m. to 04:30 a.m. Specific question was asked to

him that after hearing the sound of firing, he came out from the

room, he said that the firing took place in his presence and he has

seen the said incident. The said witness has also denied the

suggestion that during the scuffle which took place between Sunil

Kumar Singh and the appellant, suddenly the bullet hit Sunil

Kumar Singh.

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16. PW-7 Dr. Jyoti Saran is the Doctor who

conducted the post mortem of the dead body of the deceased Sunil

Kumar Singh. The said Doctor has stated in her deposition that the

deceased sustained following injuries:-

External Examination:-

1. Lacerated wound 1/2” X 1/2” on Rt cheek X mouth deep

charring margin (Entry wound).

2. Lacerated wound on Rt cheek 3” X 3” mouth entry deep

(Exit wound).

3. Loss of Skin muscle bone on Right cheek.

4. Clotted blood present on mouth cavity both nostril and

both ears.

On desertion:-

(I) Fracture of mandibular bone maxillary bone

(II) Fracture of palate.

(III) All viscera were intact and pale.

(IV) Stomach contained about 200 cc of liquid.

(V) Bladder was empty.

In my opinion, the cause of death was hemorrhage and

shock caused by fire arm injury.

17. PW-8 Subodh Kumar Singh is the Investigating

Officer who had carried out the investigation. The said witness has

narrated the manner in which he has carried out the investigation

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and recorded the statement of the witnesses, seized the licensed

rifle of the appellant/accused and the cartridges which were found

from the spot and from his residence. The blood-stained clothe of

the deceased was also seized by the said witness.

18. PW-9 Atul Raj was working as a Police Officer in

Chapra Mufassil Police Station, and the said witness had produced

seized material before the Court, including the rifle and the live

cartridges.

19. It is also relevant to note that the Office of the

Director, Forensic Science Laboratory, Bihar, Patna has given an

opinion with regard to the rifle and the cartridges which read as

under:-

“(a) The exhibit marked ‘A’ noted in item (1) is a IOF

make .315/8 mm calibre regular rifle bearing no. AD07 12496. It is in

perfect working order and can be used as an effective firearm. Its barrel

was got chemically tested. As a result of chemical analysis fire arm

discharged residue could be detected in inside its barrel indicating thereby

sign of previous firing. However, on exact date and time of firing is not

possible.

(b) The exhibits marked B

1, B

2, B

3, B

4, B

5, B

6, B

7, B

8, are

K.F. make live rounds of .315/8 mm calibre rifle cartridges. B

1 and B

2

were fired and tested and found effective. These are ammunition.”

20. From the aforesaid oral as well as the

documentary evidence produced by the prosecution, it is revealed

that PW-2, PW-3, PW-5 and PW-6 are the eye-witnesses to the

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incident and their presence at their house at 11:00 a.m. was

natural. The defense has not disputed the occurrence which took

place at the house of the first informant. The only defense which

was taken by the appellant before the concerned Trial Court was

that though the appellant came at the place of occurrence i.e. the

parental house of his wife, house of the informant (who is the

brother of the wife of the appellant), there was no intention on his

part to kill Sunil Kumar Singh, brother of the informant. It is the

defense of the appellant that the incident took place in a sudden

quarrel and, therefore, the appellant, at the most, be convicted

under Section 304 Part-II of the I.P.C. as the case of the appellant

falls under Exception 4 of Section 300 of the I.P.C. The appellant

had also not disputed the place of incident and his conduct of

fleeing away from the place of occurrence on his motorcycle

immediately after the occurrence took place. Thus, in the present

case, we have to examine the evidence produced by the

prosecution and the defense taken by the appellant in the aforesaid

context.

21. At this stage, we would like to refer to the

provisions contained in Section 300 Exception 4 of the I.P.C.

which provides as under:-

“300. Murder.—Except in the cases

hereinafter excepted, culpable homicide is murder, if the

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act by which the death is caused is done with the intention

of causing death, or—

2ndly.—If it is done with the intention of

causing such bodily injury as the offender knows to be

likely to cause the death of the person to whom the harm

is caused, or—

3rdly.—If it is done with the intention of

causing bodily injury to any person and the bodily injury

intended to be inflicted is sufficient in the ordinary course

of nature to cause death, or—

4thly.—If the person committing the act

knows that it is so imminently dangerous that it must, in all

probability, cause death or such bodily injury as is likely to

cause death, and commits such act without any excuse for

incurring the risk of causing death or such injury as

aforesaid.

Exception 4.—Culpable homicide is not

murder if it is committed without premeditation in a

sudden fight in the heat of passion upon a sudden quarrel

and without the offender having taken undue advantage or

acted in a cruel or unusual manner.

Explanation.—It is immaterial in such cases

which party offers the provocation or commits the first

assault.”

22. Thus, from the aforesaid provision, it can be said

that the culpable homicide is not murder if it is committed without

premeditation in a sudden fight in the heat of passion upon a

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sudden quarrel and without the offenders having taken undue

advantage or acted in a cruel or unusual manner.

At this stage, this Court would like to refer and rely

upon the decision rendered by the Hon’ble Supreme Court in the

case of Sukhlal Sarkar Vs. Union of India & Ors. reported in

2012 (5) SCC 703 wherein, the Hon’ble Supreme Court has

observed that person claiming the benefit of provocation has to

show that the provocation was grave and sudden, that he was

deprived of power of self control and that he caused the death of

the person while he was still in that state of mind.

23. In the case of Arun Raj Vs. Union of India &

Ors. reported in 2010 (6) SCC 457, the Hon’ble Supreme Court

has observed that to take into consideration situations wherein a

person with normal behaviour reacts into the given incident of

provocation. Thus, the protection extended by the Exception is to

the normal person acting normally in the given situation.

24. Keeping in view the aforesaid decisions rendered

by the Hon’ble Supreme Court, if the evidence of the prosecution

and even the defense of the appellant/accused/convict is carefully

examined, it is revealed that the appellant came at the place of

occurrence i.e. the parental house of his wife and the informant

(who is the brother of the wife) with loaded rifle with live

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cartridges only because of the fact that the first informant brought

his sister to his house because the appellant was giving ill

treatment to his wife i.e. the sister of the informant. Immediately

after reaching the house of the first informant, the appellant used

abusive language and, therefore, the deceased Sunil Kumar Singh

who is also brother of the wife of the appellant came from his

room and requested him not to use abusive language and,

thereafter, the appellant used his licensed rifle. In the incident, the

deceased sustained gun-shot injury on his vital part of the body.

Thus, we are of the view that the defense taken by the appellant is

that the incident took place in a sudden quarrel and in a sudden

fight which took place between him and the deceased cannot be

accepted.

25. We have also perused the further statement of the

appellant/accused recorded under Section 313 of the Code and in

the said statement also, he has not raised this defense that because

of the provocation made by the deceased in the sudden fight, the

incident took place.

26. Thus, from the aforesaid evidence, we are of the

view that the prosecution has proved the case against the appellant

beyond reasonable doubt, that the appellant has committed the

offence punishable under Section 302 of the I.P.C. and the case of

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the appellant does not fall under Exception 4 of Section 300 of the

I.P.C. and, therefore, he cannot be convicted under Section 304

Part-II of the I.P.C. as alternatively contended by the learned

counsel for the appellant. Thus, no error is committed by Learned

Trial Court while passing impugned order.

27. In view of the aforesaid discussion, we are not

inclined to entertain the present appeal.

28. Accordingly, this appeal is dismissed.

Sachin/Sanjeet/-

(Vipul M. Pancholi, J)

(Chandra Shekhar Jha, J)

AFR/NAFR

CAV DATE

Uploading Date 04.09.2023

Transmission Date 04.09.2023