CRIMINAL APPEAL 102 of 2007 on 16 December 2007

IN THE HIGH COURT OF JUDICATURE AT PATNA CR. APPEAL (DB) No.779 of 2010 PANKAJ KUMAR SINGH, S/O SRI RAM NARESH SINGH, R/O VILLAGE + P.O. DARIHARA, P.S. DARIYAPUR, DISTRICT SARAN AT CHAPRA .. APPELLANT

Versus

THE STATE OF BIHAR

.. RESPONDENT

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For the appellant

.. Mr. Rana Pratap Singh, Sr. Advocate with Mr. Sumant Singh, Adv.

For the State

.. Mr. Ashwini Kumar Sinha A.P.P.

For the informant

.. Mr. Basant Kr. Singh, Adv.

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/6/ 27 April 2011 Heard the counsel for the appellant and the State. The learned counsel for the appellant placed the copies of depositions etc. and on this basis it appeared that the appeal is fit to be taken up on merit with the consent of the other side. The appeal has been taken up on merit and is being disposed off. The lower Court's record has also been received.

The appellant has been convicted under

Sections 302 of the Indian Penal Code and had been sentenced to undergo rigorous imprisonment for life. He was, further, convicted under Section 27 of the Arms Act and was sentenced to undergo rigorous imprisonment for three years. The judgment of conviction and sentence was passed on 16[th] April, 2010, by the Additional Sessions Judge, XI, Saran at Chapra, in S.T. No. 24 of 2009. The sentences were directed to run concurrently. The fardbeyan of P.W. 7, Jagjiwan Paswan, was the basis of the prosecution case. According to Jagjiwan Paswan on 16.12.2007 at 07.00 p.m. his son, deceased, Santosh Kumar, aged about 20 years was basking the fire in front of the house. At that time Pankaj Kumar Singh, the appellant, aged about 19 years, was also basking fire. Suddenly, the appellant got annoyed with Santosh Kumar upon which Santosh Kumar wanted to run away, but, the appellant took up pistol and fired causing instantaneous death of Santosh Kumar. Initially appellant and the deceased were friends. The occurrence was witnessed by P.W. 2, Banti Kumar Paswan, P.W. 3, Kalawati Devi, wife of the informant, Jagjiwan Paswan, and P.W. 4, Kalawati Devi, wife of Raj Kumar, and Bahoo of P.W. 7, Jagjiwan Paswan, who were present at the time of occurrence. The fardbeyan was entered into and registered as Dariyapur P.S. Case No. 102 of 2007 on 17.12.2007 against the sole appellant under Sections 302 of the Indian Penal Code and 27 of the Arms Act. The case was investigated into, charge sheet was submitted, cognizance was taken and the case was committed to the Court of sessions where the charge sheet under Sections 302 of the Indian Penal Code and 27 of the Arms Act was framed.

The plea of innocence was taken by the sole accused/appellant. His, further, defence was that the father of Santosh Kumar has not attributed any immediate cause or motive of the occurrence and so there was possibility and the implication with a view to ulterior motive.

The trial Court after considering the defence and after hearing the parties subsequently convicted and sentenced the appellant.

In order to prove the case, prosecution has examined P.W. 1, Durgesh Paswan, P.W. 2, Banti Paswan, P.W. 3, Kalawati Devi, wife of the informant, Jagjiwan Paswan, P.W. 4, Kalawati Devi, wife of Raj Kumar Prasad and aunt of the deceased, Santosh Kumar, P.W. 5, Gupta Paswan, P.W. 6, Ramji Pandit, P.W. 7, Jagjiwan Paswan, the informant, P.W. 8, Dularchand Prasad, P.W. 9 Hareram Singh, P.W. 10 Madan Singh, P.W. 11, Rafik Ahmad Kha, the investigating officer, and P.W. 12, the doctor who has conducted the post mortem examination and prepared the post mortem examination report (exhibit 8). The doctor has found the following ante mortem injuries on the body of the deceased :

“External injury :-

(i) One lacerated with black chard margin oval in shape ½” x ½” in size cavity deep with margin inverted present at posterior surface of left chest wall is would of entry.

One oval lacerated wound of size 1” x 1” in diameter with margin extruded on middle of posterior chest wall is wound of exit.”

(ii) The cause of death was due to fire arm injury.

The time as suggested by the doctor is identical as the time

given by the informant so death due to use of fire arm at the given time has been established.

Subsequent to the filing of the appeal a plea was taken by the appellant that wrong judgment has been passed because on the date of occurrence the appellant was a juvenile. The claim of juvenility was taken by the appellant through I.A. No. 1298 of 2010 in which it was stated that on the date of occurrence, i.e., on 16[th] April, 2010, his age was assessed to be twenty years. The date of occurrence being 06.12.2007 so that he was below eighteen years on the date of occurrence, which was recorded in the register of Indradeo Sanskrit Prathmik Sah Uchch School, Saran. This Court on 15.12.2010 directed the Juvenile Justice Board, Saran, to consider the plea of juvenility of the appellant and a report was called for.

The called for report has been received, according to which, the appellant was 16 years 2 months and 27 days on the date of occurrence and he was declared a juvenile by order, dated 14.02.2011 in J.E. No. 156 of 2011 by Juvenile Justice Board.

Subsequent to receipt of the enquiry report of the Juvenile Justice Board the learned lawyer for the appellant has taken plea that he is not challenging the conviction, but, he is challenging the sentence. Reliance has been placed on several decisions of the Apex Court. One of the decisions reported in (2010) 6 S.C.C., 669 (Mohan Mali & Anr. Vrs. State of Madhya Pradesh), the Apex Court has allowed the appeal and the accused was directed to be released forthwith. In another judgment reported in (2010) 5 S.C.C., 344 (Dharambir Vrs. State (N.C.T. of Delhi) and Anr.) the Apex Court sustained the conviction and quashed the sentence. The learned lawyer of the appellant has submitted that he is not challenging the conviction and he prays that conviction may be sustained and sentence be quashed.

On merit, with regard to period spent by the appellant it has been submitted that he has remained in custody since 21.01.2008 and as he has become major due to efflux of time, now, he can not be sent to Juvenile Home and so his case is on the identical footing as that of the case reported in (2010) 5 S.C.C. 334 (supra). In another case reported in A.I.R. 1994 S.C., 104 (Pradeep Kumar Vrs. State of U.P.), the accused has attained majority during pendency of the case and so direction was given to release the accused forthwith while conviction was sustained. The appellant has already undergone the maximum sentence which could be awarded by the Juvenile Justice Board. Now no useful purpose is going to be served by keeping the appeal pending and if the appeal will be kept S.A.

pending the ultimate result would be that the appeal would have be disposed off in terms of the judgment reported by the Apex Court. The legal position will be same.

Considering the submission that the conviction is not challenged, in our view, the order of conviction is sustained and sentence is set aside.

With the aforesaid observations and directions this appeal is disposed off.

Let the order of release of the appellant, Pankaj Kumar Singh, in connection with S.T. No. 24 of 2009, pending in the Court of Sri Gangotri Ram Tripathi, Additional Sessions Judge, XI, Saran at Chapra, be transmitted forthwith.

(Shyam Kishore Sharma, J.)

( Gopal Prasad, J.)