Jharkhand High Court
Vijay Kumar Soni vs State Of Jharkhand & Ors. on 27 January, 2016
Equivalent citations: 2016 CRI. L. J. 4297, 2016 (3) AJR 123
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
1
Cr. Appeal (DB) No.705 of 2006
with
Cr. Appeal (DB) No.655 of 2006
(Against the judgment of conviction and order of sentence dated 01.05.2006
passed by Sri Prabhat Kumar Sinha, Sessions Judge, Palamau at Daltonganj in
connection with Sessions Trial No.249 of 2004, corresponding to G.R. No.618
of 2004 arising out of District Palamau, Sadar (Satbarwa O.P.) P.S. Case
No.128 of 2004)
Vijay Kumar Soni ............. Appellant (in Cr.Appeal (DB) No.705 of 2006)
Subhash Prasad Soni ........... Appellant (in Cr.Appeal (DB) No.655 of 2006)
Versus
The State of Jharkhand ...... Respondent
PRESENT: HON'BLE MR. JUSTICE D.N. UPADHYAY
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellants : Mr. B.M. Tripathy, Sr. Advocate
M/s N.K. Jaiswal & Pramod Kr. Gupta, Advocates
(in Cr. Appeal (DB) No.705 of 2006)
M/s Amit Sinha, Avishek Prasad, Asmita Prasad &
Nilesh Kumar, Advocates
(in Cr. Appeal (DB) No.655 of 2006)
For the Respondent : Mr. Sudhanshu Kr. Deo, A.P.P.
(in Cr.Appeal (DB) No.705 of 2006)
Mr. Vijay Kr. Gupta, A.P.P.
(in Cr.Appeal (DB) No.655 of 2006)
For the Informant : Mr. Krishna Murari, Advocate
J U D G M E N T
By Court: These criminal appeals have been directed against the judgment
of conviction and sentence dated 01.05.2006 passed by the learned Sessions Judge, Palamau at Daltonganj in connection with Sessions Trial No.249 of 2004, corresponding to G.R. No.618 of 2004 arising out of DistrictPalamau, Sadar (Satbarwa O.P.) P.S. Case No.128 of 2004 whereby appellant Vijay Kumar Soni has been held guilty for the offence punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act whereas appellant Subhash Prasad Soni has been held guilty for the offence punishable under Section 302/34 and Section 307 of the Indian Penal Code and Section 27 of the Arms Act. Appellant Vijay Kumar Soni has been 2 sentenced to undergo R.I. for life under Section 302 of the Indian Penal Code and seven years R.I. under Section 27 of the Arms Act. So far appellant Subhash Prasad Soni is concerned, he has been sentenced to undergo R.I. for life under Section 302/34 of the Indian Penal Code, ten years R.I. under Section 307 of the Indian Penal Code and seven years R.I. under Section 27 of the Arms Act. All the sentences so passed shall run concurrently.
2. The case of prosecution, as it appears from the fardbeyan of Sushil Kumar recorded on 18.05.2004 at 22 hours at Satbarwa O.P. within Palamau Sadar police station, in brief, is that on 18.05.2004 at about 21 hours when the informant with his family members and relatives were returning after performing Matkore ceremony (collecting earth from a holy place) and reached near a banyan tree, the appellants with their associates stopped the band party and light men by standing in the middle of the road, exchange of hot words took place between the informant party and the appellants whereafter appellant Vijay Kumar Soni took out a pistol and opened fire causing injury on the head of Kamlesh Prasad (uncle of the informant) from close range. After sustaining injury Kamlesh Prasad fell down. Thereafter appellant Subhash Prasad Soni also took out pistol from his waist and opened fire on the informant which caused abrasion and superficial injury on right side of his back below axillary. Due to the firing resorted, all the persons present in Matkore ceremony scattered. Injured Kamlesh was removed to hospital but declared dead.
On the basis of fardbeyan of Sushil Kumar, Palamau, Sadar (Satbarwa O.P.) P.S. Case No.128 of 2004 dated 19.05.2004 under Section 302, 307 & 504/34 of the Indian Penal Code and Section 27 of the Arms Act against appellants and their associates Sunil Saw and Nand Lal Saw was registered. The police after due investigation, submitted chargesheet and accordingly, cognizance was taken and the case was committed to the court of sessions and registered as S.T. No.249 of 2004.
Charge under Section 302 of the Indian Penal Code against appellant Vijay Kumar Soni, charge under Section 302/34 of the Indian Penal Code against appellant Subhash Prasad Soni and accused Sunil Saw and and Nandlal Saw, charge under Section 307 of the Indian Penal Code against appellant Subhash Prasad Soni and charge under Section 27 of the Arms Act against appellant Vijay Kumar Soni and Subhash Prasad Soni have been 3 framed to which they pleaded not guilty and claimed to be tried.
3. The prosecution, in order to bring home the charges, examined altogether 18 witnesses and proved post mortem report, injury reports, fardbeyan, inquest reports etc. The learned Sessions Judge, placing reliance on the statement of witnesses and documents, held appellant Vijay Kumar Soni guilty under Section 302 of the Indian Penal Code and Section 27 of the Arms Act whereas appellant Subhash Prasad Soni has been held guilty for the offence punishable under Section 302/34 & 307 of the Indian Penal Code and Section 27 of the Arms Act and they were sentenced for the respective offences for which they have been held guilty, as indicated above. The learned Sessions Judge did not find accused Sunil Prasad Soni and Nand Lal Sah guilty for the offence under Section 302/34 of the Indian Penal Code and they stood acquitted.
4. The appellants have assailed the impugned judgment mainly on the ground that independent witnesses who were available at the spot did not support the prosecution case and they have turned hostile. Those witnesses are Ramchandra Mochi PW10, Ashok Ram PW11, Sajindra Ram PW12, Rajesh Kumar Soni PW13 and Sandip Ram PW14. It is submitted that remaining witnesses are either close relatives of the deceased or formal witness like the doctor who conducted post mortem examination or the investigating officer. The witnesses are not consistent with regard to number of family members and relatives who attended aforesaid ceremony of Matkore. There are contradictions in the statement of witnesses with regard to manner of assault. If the ocular evidence, as described by the witnesses, is taken to be true, it was not possible for all of them to see the entire incident by their own eyes. Umesh Prasad PW3 in his crossexamination has stated that as soon as shot was fired, there was Bhagdar in the mob. All the persons who had gone to attend the function had started fleeing to a space to which they feel convenient. Shravan Kumar Soni PW6, who happens to be son of deceased Kamlesh, had also spoken the same fact. It could well be inferred, if any firing is being done within a crowd, all the people present overthere shall flee to save their live. In such situation each individual shall see the occurrence according to the place occupied and they would give details of the occurrence as per the scene captured by their eyes. If all such witnesses give stereo type statement about the occurrence that would not be 4 possible and no reliance should have been placed.
5. Learned counsel appearing for appellant Subhash Prasad Soni has submitted that the appellant has been held guilty under Section 302 of the Indian Penal Code with the aid of Section 34 of the Indian Penal Code but appellant Vijay Kumar Soni is not included in the charge. Without being Vijay Kumar Soni added to the charge under Section 302/34 of the Indian Penal Code, any other accused including appellant who has been charged under Section 302/34 of the Indian Penal Code for committing murder of Kamlesh could not be held guilty. Non inclusion of appellant Vijay Kumar Soni in aforesaid charge framed under Section 302/34 of the Indian Penal Code has caused great prejudice to the appellant because none of three had caused injury to deceased Kamlesh. This is not only an error in the charge which could be waived but the learned Sessions Judge has failed to give any finding on this count. Learned counsel has further referred the evidences available on record and submitted that appellant Subhash Prasad Soni had neither committed any overt act nor accommodated or facilitated appellant Vijay Kumar Soni in committing murder of Kamlesh and therefore, no evidence is available for holding him guilty for the offence punishable under Section 302/34 of the Indian Penal Code. He has further pointed out that only because the appellant was present along with other accused and stopped the light men and band party, he could not be held guilty for the offence of murder because on the same set of evidence other coaccused Sunil Prasad Soni and Nand Lal Sah have been acquitted. Evidence to hold appellant Subhash Prasad Soni guilty for the offence of murder with the aid of Section 34 of the Indian Penal Code is highly lacking. The prosecution has not come forward that the accused persons including the appellants were having common intention to commit murder of Kamlesh. From the evidence available on record, at best it could be said that the appellant with his associates had been to the place only to disturb the marriage of informant Sushil which was likely to be held on 20.05.2004 i.e. two days after the occurrence. It is also pointed out that the appellant and informant party are Gotias and they were having strained relation from before. It is submitted that only mensrea is not important but actus reus is also to be considered for holding any person guilty for any offence and that too with the help of either section 34 or section 149 of the Indian Penal Code. Last but not least, 5 it was submitted that conviction and sentence passed against appellant Subhash Prasad Soni under Section 302/34 of the Indian Penal Code is liable to be set aside.
6. Learned A.P.Ps. appearing for the State and learned counsel Sri Krishna Murari appearing for the informant have vehemently opposed the argument advanced on behalf of appellants. It is submitted that the informant himself is an injured witness and the contention made in the fardbeyan has not only been supported by him but that is being corroborated by eye witnesses namely Surendra Prasad PW2, Umesh Prasad PW3, Sharwan Kumar PW6, Satyendra Kumar Soni PW7 and Sushil Kumar PW8. He has further pointed out that the female witnesses namely Dhanmano Devi PW1 (mother of the deceased), Anju Devi PW4 and Sharda Devi PW5 have also supported the prosecution case. All the eye witnesses have given a consistent statement that on the date of occurrence at about 9 p.m. while they were returning after performing Matkore ceremony from the land of Dhiru Bhuiyan and reached near a banyan tree, they were stopped by the appellants and their associates. They restrained the members present in the band party and the light men. In course of that, exchange of hot words had taken place, whereafter appellant Vijay Kumar Soni caused injury to Kamlesh from a pistol which he was having in his possession. Thereafter, appellant Subhash Prasad Soni also took out pistol from his waist and opened fire on informant Sushil causing injury below right axillary region. The members who were present in the band party and light men have been examined and they have not supported the prosecution case on the point of identification of the accused persons, but they have proved the factum of occurrence. The doctor who had conducted post mortem examination has proved the post mortem report and described the injuries. Jagdish Chandra PW17 has proved the injury report. There is clinching evidence that the appellants have participated in commission of murder of Kamlesh and they further caused injury to informant Sushil with an intention to kill him and for causing injury to the informant and deceased they all had used fire arm.
7. Learned counsel appearing for the informant has submitted that learned Sessions Judge has rightly held appellant Subhash Prasad Soni guilty for the offence punishable under Section 302/34 of the Indian Penal Code. Only because two of the accused who had been charged along with Subhash 6 Prasad Soni have been acquitted from the charges, the appellant could not get the same benefit. The learned Sessions Judge has assigned cogent reasons for not holding them guilty. They were neither armed with any weapon nor committed any overt act at the time of occurrence. Furthermore, accused Nand Lal Sah was not at all present at the place of occurrence at the relevant point of time and he has been included in the charge only because he had pelted stone on the house of informant. On the other hand, Subhash Prasad Soni was having loaded pistol in his possession which was used by him for causing injury to informant Sushil and firing was done by him in quick succession after Kamlesh was shot at by coappellant Vijay Kumar Soni. To bring an accused within the ambit of Section 34 of the Indian Penal Code, the ingredients required are fully available and that has well been proved by the prosecution. With premeditation of mind both the appellants were present with loaded fire arm in their possession. They intercepted and restrained the band party and the light men. No sooner the informant and deceased Kamlesh came forward to make protest against highhandedness of the appellants and their associates, Kamlesh was shot at by Vijay Kumar Soni and Subhash Prasad Soni also opened fire causing injury to Sushil (informant). Learned counsel has relied on the judgment reported in 2012 (7) SCC 646 (Shyamlal Ghosh Vrs. State of West Bengal) and 2011 (9) SCC 479 (Mrinal Das and Others Vrs. State of Tripura). It is submitted that learned Sessions Judge has rightly applied the provisions and ingredients contained under Section 34 of the Indian Penal Code for holding appellant Subhash Prasad Soni guilty for the offence of murder. There is no merit in these appeals and the same are liable to be dismissed.
8. We have carefully examined the case record, evidence and documents available and also perused the impugned judgment. After perusing the evidence adduced by the prosecution, we feel no hesitation to hold that prosecution has brought on record ample evidence to prove the fact that appellants with their associates had stopped the informant and his family members while they were returning after performing Matkore ceremony which is being held prior to the marriage and it is a kind of ritual because marriage of informant was to be solemnised on 20.05.2004 i.e. after two days of the incident. The appellants restrained the members present in the band party and light men on the road when they reached near the place 7 of occurrence, exchange of hot words took place between the parties whereafter appellant Vijay Kumar Soni took out pistol from his waist and caused injury to Kamlesh on his head from a close range. Thereafter appellant Subhash Prasad Soni also took out pistol from his waist and opened fire on the informant causing injury to him on the right side of his back below axillary. The injury caused to the informant was of superficial in nature and it was abrasion only. Thereafter all the members who had gone to attend Matkore ceremony scattered. Kamlesh was taken to hospital but declared dead, within an hour fardbeyan of Sushil was recorded and case being District Palamau, Sadar (Satbarwa O.P.) P.S. Case No.128 of 2004 was registered.
9. The prosecution case find support from the evidence of as many as seven eye witnesses. The witnesses who have turned hostile have also supported the factum of occurrence. The ocular evidence and medical evidence are corroborating to each other. We do not find the investigation done by PW18 as perfunctory or otherwise influenced from any corner because it could be held that the matter was reported to police immediately after the occurrence, fardbeyan was recorded and the police became active and successfully discharged their part of obligation by initiating investigation and also by submitting chargesheet after collecting cogent evidence. From the facts and documents available on record, we feel no hesitation to hold that appellant Vijay Kumar Soni has committed murder by causing injury to Kamlesh by means of fire arm and he has rightly been held guilty for the offence punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. Accordingly, the appeal preferred by appellant Vijay Kumar Soni stands dismissed.
10. Now coming to the appeal preferred by appellant Subhash Prasad Soni, we feel no hesitation to hold that he has rightly been held guilty for the offence punishable under Section 307 of the Indian Penal Code and Section 27 of the Arms act for causing injury to informant Sushil by using fire arm and therefore, the conviction and sentence passed under Section 307 of the Indian Penal Code and Section 27 of the Arms Act as against appellant Subhash Prasad Soni is hereby upheld. Since appellant Subhash Prasad Soni is on bail, his bail bond is canceled. He is directed to surrender within six weeks from today to serve out the punishment, failing which the 8 trial court/successor court shall be at liberty to take steps for his arrest.
11. The moot question which is now to be answered is whether the conviction and sentence passed under Section 302/34 of the Indian Penal Code against appellant Subhash Prasad Soni could be upheld ?
To answer this question, we have to understand true and correct appreciation of legislative intent in the matter of engrafting of Section 34 of the Indian Penal Code in the statute and one needs to have to look into the provisions and as such Section 34 of the Indian Penal Code is set out as follows: "34. Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
A bare reading of this sections shows that the section could be dissected as follows:
(a) Criminal act is done by several persons;
(b) Such act is done in furtherance of the common intention of all; and
(c) Each of such persons is liable for that act in the same manner as if it were done by him alone.
In other words, these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34.
The criminal act, according to Section 34 of the Indian Penal Code must be done by several persons. The emphasis in this part of the section is on the word 'done'. It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is 9 the result of their combined activity.
12. For bringing a person guilty with the aid of Section 34 of the Indian Penal Code, there must be premeeting of mind between the accused persons to commit a crime and the number of accused must be two or more. The crime so committed must have been done in furtherance of their common intention and participation of accused in commission of offence is essential. The offence committed must be the result of a plan prepared by the accused with prior concept. The learned counsel for the informant, by referring the judgments reported in Shyamlal Ghosh Vrs. State of West Bengal (supra) and Mrinal Das and Others Vrs. State of Tripura (supra) has submitted that the facts available in the case at hand find support from the findings of their Lordship given in the judgments cited above. He has submitted that both the appellants were present near the banyan tree and they were having loaded fire arm in their possession. No sooner the informant with his family members reached to their target, they were stopped and exchange of hot words took place between the informant party and the appellants. Immediately thereafter Vijay Kumar Soni took out pistol from his waist and opened fire causing injury to Kamlesh. In quick succession, appellant Subhash Prasad Soni also took out pistol from his waist and opened fire causing injury to informant Sushil. Therefore, ingredients of Section 34 of the Indian Penal Code are significantly attracted and the learned Sessions Judge has rightly held him guilty under Section 302 of the Indian Penal Code with the aid of Section 34 of the Indian Penal Code. We do not agree with the argument advanced by the counsel for the informant for the reasons assigned hereunder:
(i) The prosecution is silent that the appellants were having common intention to commit murder of Kamlesh and for that they were having motive. The evidence on record suggest that relation between the two family was strained from before.
(ii) The place of occurrence chosen for committing offence like murder and that too on an occasion when most of the family members and relatives of the deceased and informant were accompanying them - do not appear to be the result of preplan.
10(iii) The facts and evidence available on record do not indicate that appellant Vijay Kumar Soni, after seeing the deceased, immediately ran towards him and pumped bullet in his head from his pistol.
(iv) The consistent evidence available do not indicate that appellant Subhash Prasad Soni in any manner accommodated or facilitated coconvict Vijay Kumar Soni in committing murder of Kamlesh.
(v) Vijay Kumar Soni has been held guilty under Section 302 of the Indian Penal Code for his individual overt act i.e. for causing injury to deceased Kamlesh by using fire arm and he was not charged with other accused for the offence punishable under Section 302/34 of the Indian Penal Code.
(vi) After Kamlesh was shot at by appellant Vijay Kumar Soni, the people present had started fleeing to reach safe destination. In the mean time, shot fired by appellant Subhash Kumar Soni caused injury to informant.
In view of the facts and circumstances as well as evidence available on record, it could be observed that appellant with his associate might have been to the place to cause hindrance in the marriage ceremony of informant because they were having strained relation from before and for that they had stopped the members present in the band party and light men. The appellants did not trace out the deceased from the crowd to target him rather the deceased himself came forward.
13. There are some technical grounds also which makes the findings of the trial court unsustainable for the offence punishable under Section 302/34 of the Indian Penal Code for which appellant Subhash Prasad Soni has been held guilty. We cannot use Section 34 of the Indian Penal Code for holding one of the appellant guilty for the offence of murder and exclude and eliminate another for the offence under Section 307 of the Indian Penal Code. Admitted case of the prosecution is that the occurrence had taken place in one and same transaction. What we mean to say is that charge under Section 302/34 of the Indian Penal Code has been framed against 11 appellant Subhash Prasad Soni and acquitted accused Nand Lal Sah and Sunil Prasad Soni without adding the main assailant Vijay Kumar Soni. Had there been charge framed against all the four accused including Vijay Kumar Soni under Section 302/34 of the Indian Penal Code, the matter would have been otherwise. But here in the instant case charge simpliciter under Section 302 of the Indian Penal Code has been framed against appellant Vijay Kumar Soni and he has accordingly been held guilty for the said offence separately and conviction and sentence so passed has already been upheld in the preceding paragraph. Therefore, question of committing murder of Kamlesh in furtherance of common intention of other accused does not arise at all. Again, at the cost of repetition it is said that assailant Vijay Kumar Soni did not stand charge under Section 302/34 of the Indian Penal Code along with other accused including appellant Subhash Prasad Soni. Furthermore, we do not find that charge under Section 307/34 of the Indian Penal Code has been framed against appellant Vijay Kumar Soni for the injuries caused to informant by Subhash Prasad Soni. If the transaction was same in which Kamlesh was killed and informant Sushil sustained fire arm injury and injury to Kamlesh was caused by Vijay Kumar Soni whereas injury to informant Sushil was caused by appellant Subhash Prasad Soni, charge against both the appellants were required to be framed for both the offences i.e. 302/34 and 307/34 of the Indian Penal Code but it was not done. It is repeated again that the appellants and their associates had assembled to cause hindrance in the marriage of informant and for that they stopped the members present in the function on the road. The evidence adduced by the prosecution fail to suggest that there was premeeting of mind to commit murder of Kamlesh for which appellant Subhash Prasad Soni was in agreement. It is also observed that evidence available on record did not speak that appellant Subhash Prasad Soni, in any manner accommodated or facilitated coconvict Vijay Kumar Soni to commit murder of Kamlesh. We are of the considered view that only because appellant Subhash Prasad soni was present with fire arm in his possession, he could not be held liable for the murder of Kamlesh with the aid of Section 34 of the Indian Penal Code. The individual overt act committed by the appellant and acquitted accused shows that common intention, if any, was prevailing in their mind, that was only to disturb and cause hindrance in the marriage ceremony of informant Sushil 12 and therefore, acquittal of two of the accused namely Sunil Prasad Soni and Nand Lal Sah can well be justified because they did not commit any overt act after restraining the members present in the band party and light men. The common intention with premeeting of mind with which the appellant and their associates had assembled, had come to an end, as soon as they succeeded to cause hindrance by restraining the informant and his family members who were returning after performing Matkore ceremony. Thereafter action of each individual accused could be judged by their individual overt act. Considering all these aspects, we have upheld the findings of the trial court with regard to conviction and sentence recorded under Section 302 of the Indian Penal Code against appellant Vijay Kumar Soni. When we judge the overt act committed by appellant Subhash Prasad Soni, we find that he had opened fire when the crowd started fleeing to rescue themselves and bullet fired by appellant had caused some injury to the informant on right side of his back below axillary region. We do not agree with the reasonings and findings of the trial court for holding appellant Subhash Prasad Soni guilty for the offence punishable under Section 302 of the Indian Penal Code with the aid of Section 34 of the Indian Penal Code. Accordingly, the judgment of conviction and sentence passed under Section 302/34 of the Indian Penal Code against appellant Subhash Prasad Soni is hereby set aside.
14. Since judgment of conviction and sentence passed by the trial court against appellant Subhash Prasad Soni under Section 307 of the Indian Penal Code has been upheld, the court below is directed to issue modified conviction warrant.
15. In the result, the appeal preferred by appellant Vijay Kumar Soni stands dismissed whereas the appeal preferred by appellant Subhash Prasad Soni stands partly allowed.
(D. N. Upadhyay, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated : 27.01.2016
NKC// A.F.R.