High Court allowed criminal appeal challenging murder conviction. Court acquitted appellant holding he exercised right of private defence against deceased who fired first. Rejected prosecution version based on medical reports and seized exhibits.
Appellant acquitted and directed to be released forthwith.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.490 of 2012
Against the judgment/ order of sentence dated 1.5.2012/ 4.5.2012 passed by Additional Sessions Judge, Fast Track Court No. IV, Siwan in Sessions Trial No. 357/2003.
=========================================================== Ganesh Singh, S/O Late Rudal Singh, resident of Gangpur Siswan, Post and P.S.Siswan, District- Siwan .... .... Appellant/s Versus
The State of Bihar
.... .... Respondent/s
===========================================================
Appearance :
For the Appellant/s : M/s. Srinandan Singh, Gyan Prakash Ojha, Sarvesh Kumar Singh, Ashok Kumar, Advocates For the State : Mr. S.C. Mishra, APP
For the Informant : M/s. Surendra Kumar Singh, Sudha Chandra, Ganesh Prasad Singh, Advocates
=========================================================== CORAM: HONOURABLE MR. JUSTICE V.N. SINHA
and
HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE V.N. SINHA) Date: 13-08-2013
This appeal is directed against the judgment/ order of sentence dated 1.5.2012/ 4.5.2012 passed by Additional Sessions Judge, Fast Track Court. No. IV, Siwan in Sessions Trial No. 357 of 2003 whereunder the sole appellant has been convicted for the offence under Section 302 of the Indian Penal Code, Section 27 of the Arms Act and directed to undergo rigorous imprisonment for life and to pay fine of Rs. 25,000/-, in default of payment of fine to undergo further rigorous imprisonment for one year under Section 302 I.P.C. Under
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Section 27 of the Arms Act appellant has been directed to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 3,000/-, in default of payment of fine to further undergo rigorous imprisonment for 3 months. Both the sentences have, however, been directed to run concurrently.
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Kumar Singh and shot at his son on his leg and also at himself in leg. After the assault informant raised alarm, ran towards the village and came back to the place of occurrence along with police party and saw her husband is profusely bleeding. In the concluding portion of the fardbeyan informant claimed that her husband has been killed by Rudal Singh, Ganesh Singh, Sudhir Kumar Singh and Rajesh Singh after they called him for measurement of the lands.
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an intent to kill him which was objected to by the appellant exclaiming asserting that has he (Baijnath Singh) become mad and resorting to firing but Baijnath Singh attempted another shot at the appellant causing bleeding injury just below the knee of his left leg and thigh. It is further stated in the fardbeyan of the appellant that having suffered the injury his son fell down but the appellant remained standing and shot from his licensed pistol on Baijnath Singh who died at the spot.
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seized one regular pistol 7.65 MM/32 bearing no. SI-37 2058 with magazine and 3 live bullets. In connection with Siswan P.S. Case No. 37/02 Investigating Officer seized from the field of Rudal Singh i.e. the father of the appellant one 12 bore double barrel gun bearing no. 1629 with 12 bore empty cartridge and 12 bore misfired cartridge. Aforesaid seizure list has also been admitted in evidence of the present case and marked Ext. C, which is evident from the evidence of Investigating Officer himself, paragraph 40. The Investigating Officer having made seizure referred the deceased for post mortem and the two injured i.e. appellant, his son for treatment. It appears the two injured were first sent to Siswan Referral Hospital vide O.D. slip dated 18.05.2002, Exts. B/1, B. Medical Officer at the Referral Hospital, Siswan having examined appellant and his son on the same day further referred the two injured to Sadar Hospital, Siwan for management and determination of injuries suffered by them. After making reference of the injured to the hospital Investigating Officer recorded the statement of informant Kanak Malti Devi and statement of the other witnesses including Jitendra Kumar Singh, Dilip Singh, Surendra Singh, Amarnath Singh. In the light of the seizure list, the statement of the witnesses, Investigating Officer, P.W. 5 submitted charge-sheet against all the 4 accused persons named in the fardbeyan of Siswan P.S. Case No. 36/02. P.W. 5 also found true the prosecution
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case set out in Siswan P.S. Case No. 37/02. Cognizance was, however, taken for the offences alleged in the fardbeyan, found true during investigation of Siswan P.S. Case No. 36/02 and the case committed to the court of sessions. During trial accused Rudal Singh left for heavenly abode, his name was deleted from the array of accused facing trial.
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Sudhir Kumar Singh at P.M.C.H.
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deceased informant Kanak Malti Devi (P.W. 3) and two other covillagers, P.W. 1 Bhagwan Singh, P.W. 2 Surendra Singh have consistently supported the aforesaid version.
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deceased himself from his DBBL gun on Sudhir Kumar Singh, the son of the appellant causing injury not only to Sudhir Kumar Singh but also to the appellant, appellant in self defence shot the deceased dead. In this connection, it is also pointed out that son of the appellant having suffered gun shot injury, may be in knee, thigh as also punctured wound in the stomach, chest, appellant had genuine apprehension that deceased may further cause injury killing both father and son and to prevent such assault by Baijnath Singh he shot at him in exercise of the right of private defence as is available to him under clause first, secondly of Section 100 I.P.C.
Ext. B/1 – “Examined Sudhir Kumar Singh, aged 35 years, S/o Ganesh Singh of Vill.- Gangpur, P.S. Siswan, Dist. Siwan
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vide ERM 82 dated 18.05.2002 at 7.30 A.M. and noted following
injuries over his body :
All wounds are surrounded by black areas.
N/I – Opinion reserved as patient is being sent to Sadar Hospital for management and for determination of nature of injuries.”
Ext. B – “Examined Ganesh Singh aged about 64 years, S/o Rudal Singh of Vill. Gangpur, P.S. Siswan, Dist. Siwan vide ERM 83 dated 18.05.2002 at 7.30 A.M. and noted following injuries over his body.
(1) Round puncture wounds each of ½ c.m. diameter with blacked
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area around wounds present on
M/I – A mole on right side of lower chest on costal margin
A/I – Within 6 hours
C/I – Firearm injury
N/I – Opinion reserved as patient is being referred to Sadar Hospital, Siwan for management and for determination of nature of injuries.”
the seizure list made in connection with Siswan P.S. Case No. 37/02 and submitted that along with double barrel gun no. 1629 of the deceased an empty and misfired cartridge also seized from the vacant field of father of appellant Rudal Singh near the place of occurrence. With reference to aforesaid seizure list, Ext. C it is submitted that the story that two shots were fired by the appellant from the gun of the deceased after the gun was snatched by Sudhir Kumar Singh from the deceased and taken by the appellant does not appear to be probable as from the seizure list, it is quite evident that one fired, another misfired cartridge was recovered along with the gun. In this connection, it is further submitted that the injuries caused on the person of the appellant and his son suggests that both suffered injury from one shot
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made from the opposite direction as the cartridge containing pellet after being shot from gun while disbursing, spread and then cause injury. It is also submitted that in the event shot from the gun was fired from close range pointing the same downwards aiming at knee of Sudhir Kumar Singh could not have caused injury to the appellant.
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AIR 1993 Supreme Court 1538, State of Rajasthan Vs. Sughad Singh and others, AIR 1994 Supreme Court 1593, paragraph 3 and Vijayan alias Vijayakumar Vs. State Rep. by Inspector of Police, AIR 1999 Supreme Court 1311, paragraph 25 and submitted that from the conjoint reading of the injury report of the son of the appellant, appellant together with the seizure list, Ext. C, there should not be any difficulty in holding that the appellant while exercising his right of private defence in order to prevent Baijnath Singh from causing further injury to him resorted to firing by his own licensed pistol causing death of Baijnath Singh.
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which is not the place of occurrence, as according to him the place of occurrence is the field of Nand Kishore Singh. They further submitted that there is no ocular evidence to suggest that it was the deceased who first resorted to firing from his licensed DBBL gun causing injury on the person of Sudhir Kumar Singh, the appellant whereafter the appellant shot at him from his licensed pistol. They also submitted that from the fardbeyan lodged by the appellant as also his 313 Cr.P.C. statement it would appear that two shots were fired by the deceased from his DBBL gun but such fact is not appearing from the material exhibits seized vide seizure list, Ext. C.
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who had earlier snatched the gun from the deceased and then appellant fired two shots from the gun, first on his son and the other on himself.
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occurrence itself, vide Ext. 5/1 together with one empty cartridge, the front portion of the used cartridge, rexin belt of the deceased containing 23 cartridges of 12 bore was also recovered from the place of occurrence near the dead body of the deceased vide seizure list, Ext. 5.
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from the material exhibit seized from the place of occurrence it is quite evident and probable that only single shot was fired from the DBBL gun of the deceased. Single gun shot from the DBBL gun of the deceased from near distance could not have caused the nature of injuries found on the person of Sudhir Kumar Singh and the appellant. Such injuries as found on the person of Sudhir Kumar Singh and appellant by single gun shot is possible if shot is fired from distance and there is opportunity for the pellet to disburse before it strikes the target. The case of the appellant that deceased fired first shot causing injury to his son and on protest by the appellant fired another shot causing injury to him is perhaps for the reason that in the heat generated during altercation the appellant noticed the first shot fired by the deceased causing injury to his son but perhaps misunderstood the sound created by the misfired shot to be the second shot. The injuries caused on the person of Sudhir Kumar Singh, appellant and the material exhibits recovered by the Investigating Officer, P.W. 5 from the place of occurrence persuade us to hold that the prosecution story as set out by the informant, P.W. 3, the two eye witnesses in the fardbeyan as also in court is not wholly probable persuading us to further hold that the appellant fired from his pistol in exercise of right of private defence as he had genuine apprehension of being grievously injured by the deceased from his DBBL gun.
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(V.N. Sinha, J)
AFR Rajesh/-
(Rajendra Kumar Mishra, J)
2 issues framed by the court
Whether the appellant had a genuine apprehension of grievous injury to exercise right of private defence.
Whether the prosecution story regarding shots fired and injuries sustained is probable in light of medical evidence and seizure lists.
Colour shows how this judgement treated each authority
Khuddu and others Vs. State of U.P.Referred¶14
Khuddu and others Vs. State of U.P., AIR 1993 Supreme Court 1538 · Who else cites this
State of Rajasthan Vs. Sughad Singh and othersReferred¶14
State of Rajasthan Vs. Sughad Singh and others, AIR 1994 Supreme Court 1593 · Who else cites this
Vijayan alias Vijayakumar Vs. State Rep. by Inspector of PoliceReferred¶14
Vijayan alias Vijayakumar Vs. State Rep. by Inspector of Police, AIR 1999 Supreme Court 1311 · Who else cites this
3 provisions across 2 enactments
Ganesh Singh
The State of Bihar
V.N. Sinha
Rajendra Kumar Mishra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
