High Court
Case Details
Criminal Appeal (D.B.) No. 1119 of 2018 [Arising out of judgment of conviction dated 18.07.2018 and order of sentence dated 26.07.2018 passed by learned Additional Sessions Judge-I, Rajmahal in Sessions Case No.63 of 2016] Vikash Kmr Jain @ Vikash Kumar Jain @ Vikash Jain @ Pappu age about 42 years, son of Late Manilal Jain, resident of Village Kasim Bazar, P.O. & P.S. Rajmahal, District Sahibganj .... --Versus-- The State of Jharkhand …. …. …. Respondent .... …. Appellant Criminal Appeal (D.B.) No. 843 of 2018 With Ashok Kumar Jain @ Ashok Kr Jain age about 54 years, son of Late Manilal Jain, resident of Village Kasim Bazar, P.O. & P.S. Rajmahal, District Sahibganj .... .... …. Appellant --Versus-- The State of Jharkhand …. …. …. Respondent For the Appellant For the State : Mr. Jitendra Shankar Singh, Advocate Mr. Raja Ravi Shekhar Singh, Advocate : Ms. Vandana Bharti, A.P.P. For the Informant (In Criminal Appeal (D.B.) No. 1119 of 2018)
Legal Reasoning
We are of the view that mere presence at the place of occurrence of this appellant is not by itself sufficient for applying Section 34 of the IPC to hold him criminally liable for the act of his brother. Judgment of conviction and sentence passed against him under Section 302/34 of the IPC is accordingly set aside. He is however held guilty for committing act of assault resulting in simple injury to Pradeep Jain and is accordingly convicted for the offence under Section 323 of the IPC. A sentence of imprisonment for the period already undergone will meet the ends of justice. He is already on bail, the sureties are discharged from the liability of the bail bond. In the result, Criminal Appeal (D.B.) No. 1119 of 2018 is dismissed and Criminal Appeal (D.B.) No.843 of 2018, is partly allowed with modification of finding and sentence. Let the Trial Court Records be transmitted to the Court concerned along with a copy of this judgment. (Gautam Kumar Choudhary, J.) Per Ananda Sen, J. I agree. (Ananda Sen, J.) High Court of Jharkhand, Ranchi Dated, 22nd July, 2024 AFR/Anit 6
Arguments
Mr. Shailendra Kumar Tiwari, Special P.P. (In Criminal Appeal (D.B.) No. 843 of 2018) : Mr. B.M. Tripathy, Sr. Advocate Mr. Gautam Kumar Singh, Advocate ----- PRESENT: SRI ANANDA SEN, J. SRI GAUTAM KUMAR CHOUDHARY, J. ----- JUDGMENT Reserved on: 09.07.2024 Pronounced On: 22.07.2024 Per Gautam Kumar Choudhary, J. Both these criminal appeals arise out of the common judgment of conviction and sentence passed in Sessions Case No.63 of 2016 by which the appellants have been convicted and sentenced under Sections 302/34 of the Indian Penal Code. 2. Prosecution case is about fratricide of cousin on account of dispute over share in business. 3. Father of the deceased Pradeep Kumar Jain is the informant of the case. As per the FIR, he and his four brothers owned China Clay Silica Sand Company with 20% share each in it. It is alleged that the said Company the informant was being denied their 20% share in the business. In order to claim his share, he went to Rajmahal from Dhanbad on 26.01.2015, but the accused 1 persons kept on dilly-dallying on one pretext or other, and finally on 10.02.2015, share was refused. 4. On the very same day, Ashok Jain and Vikash Jain @ Pappu Jain also came from Dhanbad to Rajmahal to get the share of their business which was paid to them by M.T. Raza. It is alleged that share of the informant was also received and swindled by them. 5. On 14.02.2015 at 3.30 p.m., he was having conversation with Gautam Chiraniya and after Gautam Chiraniya left the place, and was going upstairs, he was accosted by Ashok Jain and Vikash Jain who abused him with regard to the dispute of share in the business. One Vinod Sharma caught hold of him and he was assaulted by Vikash Jain and Ashok Jain by fist and wooden stick. At this, he raised alarm and his son Anurag Jain (deceased) rushed to his rescue. It is alleged that all the three joined in the assault and on the order given by Ashok Jain, Vikash Jain took out his .315 rifle from almirah and fired at his son. As a result of gunshot injury, he fell down. When Vikash Jain tried to fire at him, he caught hold of the rifle and pulled it, as a result he fell down. Thereafter, all the three fled away from the place of occurrence. 6. On the basis of the statement of Pradeep Kumar Jain, Rajmahal P.S. Case No.58 of 2015 was registered under Sections 307, 302/34 of the Indian Penal Code and Section 27 of the Arms Act against Ashok Jain, Vikash Jain and Vinod Sharma. 7. After investigation, charge sheet was submitted against altogether three named accused persons and one Sweety Jain, who were jointly charged under Sections 307, 302, 201 and 120B of the Indian Penal Code and put on trial. 8. Altogether 14 witnesses were examined on behalf of prosecution and Exhibit 1 – 14 were marked as exhibits on behalf of prosecution. The seized rifle, seized cartridge and call detail report were produced and marked as material exhibits. 9. After prosecution evidence, the statement of the accused persons was recorded under Section 313 of the Code of Criminal Procedure. The defence is of innocence. 10. After statement of the accused, defence has adduced documentary evidence which have been marked as Exhibit A – N. 2 11. Learned trial court convicted these two appellants and held that charge was not proved against accused Birendra Singh and Sweety Jain (wife of main accused Vikash Jain) and they were acquitted of the charges. 12. Learned counsel on behalf of appellants argues that the prosecution case rests on the solitary account of the informant / father of the deceased, who has been examined as P.W. 7. It is submitted that there are vital contradictions in his account which makes his very presence at the place of occurrence not proved. The argument advanced by learned counsel, Mr. Jitendra Shankar Singh may be summed up as under:- I. It has been deposed by the informant that he has sustained bleeding injury on being assaulted by the accused persons. He was examined by the Doctor and injury report has been proved and marked as Exhibit 7 in which injuries found were only bruise and not grievous injury as stated by the informant in his testimony. II. As per the FIR, Gautam Chiraniya (P.W. 13) was present along with the informant at the place of occurrence, but he has turned hostile and not supported the prosecution case. III. As per the seizure list (Exhibit 3 and 5) and deposition of the Investigating Officer (P.W. 9), empty 9 mm cartridge was seized from the place of occurrence, whereas the Sergeant Major (P.W. 14) submitted the ballistic report (Exhibit 13) and deposed that it was 8 mm cartridge that was received for examination. IV. It is consistent case of the prosecution that bullet was fired by .315 rifle, and it has been deposed by P.W. 9 that 9 mm cartridge cannot be fired by .315 rifle. V. As per Autopsy Surgeon (P.W. 8), it was a case of ‘near contacts wound’ and not of ‘contact wounds’. In this type of wound, muzzle will be some 6 inch or less away from the body. Entry wound was circular, surrounding wound was blackened by smoke and unburnt gun powder beyond the range of 6 inch disappears. It is argued that as per deposition of P.W. 7 in para 100, firing was made from distance of about 4 feet. 13. Learned A.P.P. assisted by Mr. B.M. Tripathy, learned senior counsel on behalf of informant, defended the judgment of conviction and sentence. 3 14. It is argued that the incidence took place in the said house where both the appellants and informant used to live, is not in a shade of doubt. Independent witnesses-P.W. 2, P.W. 5 and P.W. 6 have all testified the incidence to have taken place in the said house which has been duly corroborated by the Investigating Officer. Investigating Officer has admitted in para 49 of his deposition that in the seizure list by mistake, 9 mm has been written in place of 8 mm. 15. It is submitted by the learned counsel that there is no denial that the firing took place from the rifle which will be evident from the suggestion given to P.W. 7 by the defence in para 189 that the informant accidently fired his son. Therefore, plea that firing could not have been resorted to by the said rifle contradicts their very stand. FINDING 16. Anurag Jain died homicidal death on 14.02.2015 on receiving fire arm injury, is not in doubt as proved by the post-mortem examination report (Exhibit 6). 17. FIR is lodged without any delay on the very same day of the incidence. 18. This incidence took place on 14.02.2015 at around 4:00 – 4:30 p.m. in the house of Pradeep Jain, has been testified by P.W. 1. – Sudam Karmkar, P.W. 2 – Santosh Kumar Jain, P.W. 5 – Surajbhan Rai and P.W. 6 – Dilip Kumar Saha who arrived at the place of occurrence soon after the incidence. P.W. 1 and P.W. 2 have specifically deposed that on hulla and sound of firing, when they went to the place of occurrence, they found Anurag Jain was lying in a pool of blood and Pradeep Jain was also there. P.W. 6 has deposed that while he was going to his shop, he saw that near the house of Pradeep Jain crowd had gathered and when he went inside, he saw that Pradeep Jain was weeping and his son was lying in a pool of blood. The testimony of these witnesses regarding the place and time of occurrence and presence of Pradeep Jain there, has remained uncontroverted in the cross-examination. 19. Combined reading of deposition of these witnesses along with injury report of P.W. 7, establishes the presence of the informant at the place of occurrence. It hardly matters whether he sustained grievous or simple injury. Fact of the matter remains that he was present at the place of occurrence and 4 witnessed the incidence in which his son was shot dead. 20. This being case, it does not appeal to reason that father being the direct eye witness will implicate an innocent person, letting off the person who had shot dead his son. 21. There is no defence hypothesis as an alternative narrative to rebut the prosecution case that it was Vikash Jain, who fired fatal shot resulting in homicidal death of Anurag Jain. 22. In such circumstance, where multiple persons are locked in a fight, the place of occurrence does remain static and shifts with dynamics of the incidence. On these evidences, even without corroboration by ballistic report, the judgment of conviction can be returned against Vikash Jain. Any error or irregularity in the process of seizure, does not go into the root of the matter so as to disbelieve a wholly reliable evidence. 23. Since Vikash Jain (principal accused) fired fatal shot therefore, he is guilty of the offence under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. Judgment of conviction and sentence passed by the learned court below, is accordingly, affirmed. 24. Ashok Jain, brother of Vikash Jain has been convicted by the learned trial court with the aid of Section 34 the Indian Penal Code for the offence under Section 302 IPC. Matter for consideration is, can appellant Ashok Jain be held vicariously liable for the fatal shot fired by his brother? 25. In order to invoke Section 34 of the IPC, prosecution has to establish existence of common intention amongst the participants in the crime. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action. Thus, common intention and participation in action are the dominant features of this section. In order to impute a person with common intention, there should be some evidence to suggest prior concert or pre-arranged plan, which may even develop at the very place of occurrence. 26. In the present case, the manner in which the incidence took place, does not remotely suggest any common intention on the part of the appellant Ashok Jain to commit murder of his nephew Anurag Jain. It is not in dispute that both had come from Dhanbad to Rajmahal and were staying in the same house. When informant raised the issue of his share in the family business, Ashok Jain and Vikash Jain abused and assaulted him. It was this juncture that 5 son of the informant rushed to his rescue, when Vikash Jain suddenly took out his rifle and fired at him. It was an individual act, without any pre-concert and took place on the heat of moment. Appellant Ashok Jain cannot be said to have shared common intention with his brother in the commission of this act. 27.