1 Criminal Appeal (DB) No. 234 of 1997 (R) IN THE HIGH COURT OF JHARKHAND AT RANCHI (Criminal Appellate Jurisdiction) Criminal Appeal (DB) No. 234 of 1997 (R) 1. Kedar Choudhary 2. Sudeshwar Choudhary Sons of Late Dukhi Choudhary of village: Kalyanpur, PS: Chainpur, District: Palamau, ... Appellants -Versus- State of Bihar now Jharkhand ...Respondent CORAM :- HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE ARUN KUMAR RAI For the Appellants : Mr. G.K. Sinha, Advocate For the Respondent : Mrs. Nehala Sharmin, Spl.P.P. … CAV on: 12/02/2025 Pronounced on: 11/03/2025 Per, R.Mukhopadhyay, J. Heard Mr. G.K. Sinha, learned counsel for the appellants and Mrs. Nehala Sharmin, learned Spl.P.P. 2. This appeal is directed against the judgment and order of conviction and sentence dated 29.08.1997 passed by Mr. B.B.M. Murti, learned 4th Additional Sessions Judge, Palamau at Daltonganj in Sessions Trial No. 316 of 1990, whereby and whereunder, the appellants have been convicted for the offence punishable under section 302/34 of the Indian Penal Code and have been sentenced to RI for life while the appellant no.2 has been further convicted for the offence under section 27 of the Arms Act and has been sentenced to RI for five years. Both the sentences so far as the appellant no.2 is concerned shall run concurrently. 3. The prosecution case arises out of the farbeyan of Tetri Devi recorded on 29.06.1990 in which it has been stated that the land adjacent to her house was being forcibly cultivated by the accused persons. The husband of the informant had earlier given Rs.10,000/- to Puran Choudhary, the owner of the land towards purchase money but no documents were executed. It has been alleged that on the date of occurrence Sudeshwar Choudhary was ploughing the land in the presence of Kedar Choudhary and Madeshwar Choudhary was digging the land for the purpose of making a boundary when Gajju Choudhary along with Kail Bhuiya had objected at which a quarrel ensued and in course of the same Kedar Choudhary felled Gajju Choudhary on the ground while Sudeshwar Choudhary fired at him from his country made pistol which 2 Criminal Appeal (DB) No. 234 of 1997 (R) resulted in the death of Gajju Choudhary. On hearing the sound of firing when several persons started assembling the accused persons had fled away. Based on the aforesaid allegations Sadar PS Case No.73 of 1990 was instituted under section 302/34 of the Indian Penal Code and section 27 of the Arms Act. On completion of investigation charge-sheet was submitted and after cognizance was taken the case was committed to the Court of Sessions where it was registered as Sessions Trial No. 316 of 1990. Charge was framed against both the accused under section 302/34 of the Indian Penal Code. An additional charge was framed against Sudeshwar Choudhary under section 27 of the Arms Act. Both the charges were read over and explained to the accused in Hindi to which they pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as 17 witnesses in support of its case. 5. PW-1 Jodhan Uraon has stated that the incident is of a year back at 7:30 a.m. and he was making arrangements for providing water to the buffalo of Gajju Choudhary. The accused Sudeshwar Choudhary was ploughing the field of Gajju Choudhary. A quarrel had ensued between Kedar Choudhary and Gajju Choudhary after which Kedar Choudhary and Madeshwar Choudhary had felled Gajju Choudhary on the ground and thereafter Sudeshwar Choudhary fired at him. When he raised a cry of alarm Patia Devi assaulted Gajju Choudhary with a stone on his face. Gajju Choudhary died instantly. The wife and brother of Gajju Choudhary were shouting after which villagers had assembled at which the accused persons fled away. In cross-examination, he has deposed that he does not know the plot no. or khata no. of the land which was being ploughed. He had reached the place of occurrence when a tussle was going on. He was at a distance of 10 ft. from the place where the firing was done. He has deposed that he was the first person to reach the place of occurrence after which Puran Choudhary, Chenari Choudhary and Magan Choudhary had come. He had only raised an alarm and did not disclose about the incident to anyone. Gajju Choudhary had purchased the disputed plot of land from Puran Choudhary about two years back. PW-2 Mangru Choudhary has been tendered by the prosecution. PW-3 Surya Choudhary has stated that it was morning and while Kedar Choudhary was sitting in the field, Sudeshwar Choudhary was ploughing the field and Madeshwar Choudhary was making a boundary of the field. His father had asked Kedar to open the plough which was refused by Kedar and 3 Criminal Appeal (DB) No. 234 of 1997 (R) he instead felled his father on the ground and climbed on his chest. Sudeshwar Choudhary took out a pistol and fired at the left side of the chest of his father while Madeshwar Choudhary pinned him to the ground. Patia Devi had given a blow with a stone on the face of his father. In cross-examination, he has deposed that his father was several times taken away by the police on the allegation of manufacturing liquor. When the quarrel had started between his father and the accused persons he out of fear had gone to his house where he started weeping. PW-4 Ganesh Choudhary has been tendered by the prosecution. PW-5 Kailu Bhuiyan has stated that he used to plough the field of Gajju Choudhary. He had seen Sudheshwar Choudhary ploughing the field of Gajju Choudhary and Kedar Choudhary, Madeshwar Choudhary, and Patia Devi were also present. Gajju Choudhary had asked Kedar Choudhary to open the plough but Kedar Choudhary did not agree and instead had thrown Gajju Choudhary on the ground while Sudheshwar Choudhary shot at him and Patia Devi had assaulted with stone on his face. In cross-examination he has deposed that Kedar Choudhary and Sudeshwar Choudhary were ploughing the field for more than a decade and prior to the date of occurrence Gajju Choudhary had never objected to such act of the accused persons. The land originally belonged to Puran Choudhary and he had sold it to Gajju Choudhary. He had seen Sudheshwar Choudhary firing at Gajju Choudhary. PW-6 Samsuddin Mian was in his house when he heard the sound of firing at which he went to the place of occurrence and saw Kedar Choudhary, Sudheshwar Choudhary, Madheshwar Choudhary and Patia Devi fleeing away. He had seen Gajju Choudhary lying dead. The wife of Gajju Choudhary, Kailu Bhuiyan and Jodhan Uraon had disclosed about the name of the accused persons involved in committing the murder of Gajju Choudhary. In cross-examination he has deposed that he had come to the place of occurrence alone. It took in 10 minutes to reach the place of occurrence. PW-7 Budhni Devi and PW-8 Baichi Choudhary were tendered by the prosecution. PW-9 Tetri Devi is the informant and the wife of the deceased who has stated that at 7:30 a.m. her husband had gone to Kankari village to call ploughman Kail Bhuiyan and when he returned with Kail Bhuiyan he found that his land is being tilled by Sudeshwar Choudhary. Kedar Choudhary and Madeshwar Choudhary were sitting on the ridge and when her husband 4 Criminal Appeal (DB) No. 234 of 1997 (R) objected to the tilling of his land Sudheshwar Choudhary and the others clearly stated that the land belongs to them and they will not release the plough. She has stated that when her husband tried to open the plough a quarrel started after which Sudheshwar Choudhary shot at him while Kedar Choudhary and Madheshwar Choudhary had pinned him to the ground. Patia Devi had assaulted her husband with a stone. The field in which the incident had taken place was purchased by her husband and who had also paid Rs.10,000/- towards such transaction and Rs.14,000/- was due. Her husband died at the place of occurrence itself. In cross-examination she has deposed that when her husband had gone to call the ploughman she was at home preparing food. When she heard some commotion she had gone to the field and had found her husband lying on the ground and the accused persons fleeing away. The land belongs to Puran Choudhary. The accused persons were ploughing the field from before. There was no dispute between her husband and the accused persons before such incident. PW-10 Lalti Kumari has been declared hostile by the prosecution. PW-11 Salamat Khan has proved his signature on the seizure list which has been marked as Ext.1. PW-12 Parmeshwar Choudhary, PW-13 Bhawani Choudhary and PW- 14 Ramchandra Choudhary have all been tendered by the prosecution. PW-15 Surendra Kumar Singh was posted as officer-in-charge of Chainpur PS and on 04.08.1990 he had taken over investigation from Shri T. Rai. He had recorded the statement of Puran Choudhary and had sent the blood stained earth to the forensic science laboratory. He had submitted charge-sheet. In cross-examination he has deposed that Puran Choudhary had claimed ownership of the disputed land. He has also stated about Kedar Choudhary having forcibly occupied two khattas of his land. PW-16 Dr. Rajeshwar Pd. Sinha was posted as a Civil Assistant Surgeon and on 29.06.1990 he had conducted autopsy on the dead body of Gajju Choudhary and had found the following: “(i)Wound of entry on the left side of chest where on dissection muscles were found lacerated, rib was fractured, lung and heart were also lacerated and damaged. Profuse blood clot was seen in thoracic cavity. One pellet was found which was kept and sealed for further investigation. No wound of exit was found. (ii)Abrasion and mild lacerations were seen over left side of chest.” 5 Criminal Appeal (DB) No. 234 of 1997 (R) The cause of death was opined to be due to shock and haemorrhage on account of the above-mentioned injuries by firearms. Injury no.(i) was sufficient to cause death in ordinary course of nature. He has proved the post-mortem report which has been marked as Ext.2. PW-17 Feku Ram has proved the carbon copy of the inquest report which has been marked as Ext.4. 6. The statements of the accused were recorded under section 313 of the Code of Criminal Procedure in which they have denied their complicity in the murder. 7. It has been submitted by Mr. G.K. Sinha, learned counsel for the appellants, that there are no eye-witnesses to the occurrence. It was the appellants who were in possession of the land and the deceased was the aggressor. No document has been brought on record to substantiate the fact that the deceased had purchased the land from Puran Choudhary. It has been submitted that several material witnesses were not examined by the prosecution including Puran Choudhary and withholding of such witnesses would lead to an adverse inference being drawn against the prosecution. Non- examination of the Investigating Officer has caused prejudice to the defence. An alternative argument has been put forward that even if the allegations are accepted to be true no case under section 302 of the Indian Penal Code is made out as the incident occurred out of a quarrel and only a single shot was fired by the appellant no.2 thus making the case come within the purview of section 304 part-II of the Indian Penal Code. 8. Mrs. Nehala Sharmin, learned Spl.P.P. has submitted that evidence of PW-1, PW-3, PW-5 and PW-9 clearly reveals about the premeditated manner in which the incident had taken place. There are several eye-witnesses to the occurrence and the post-mortem report also corroborates the manner of assault. 9. We have heard the learned counsels for the respective sides and have also pursued the trial Court records. 10. The incident seems to have taken place on account of the ownership of the land in which the firing was done resulting in the death of Gajju Choudhary. While PW-1, PW-5 and PW-9 have claimed that the land was purchased by Gajju Choudhary from Puran Choudhary, PW-9 being more specific with respect to the advance consideration amount paid and the balance consideration amount to be paid but on the other hand the ownership of the land has also been claimed by the appellants. None of the sides have 6 Criminal Appeal (DB) No. 234 of 1997 (R) been able to bring on record any document which would indicate about their ownership over the disputed plot of land. The person who could have cleared the picture was Puran Choudhary but he has not been examined by the prosecution for reasons best known to the prosecution. It is also to be noted herein that PW-5 and PW-9 in their cross-examination have stated about the accused persons ploughing the field since long. Given the ambiguous situation emanating from the evidence of the witnesses where the ownership of the land itself is hazy, the contention of learned counsel for the appellants that the deceased was the aggressor has to be negated. 11. With respect to the firing committed upon Gajju Choudhary is concerned, it transpires that while PW-1, PW-3 and PW-5 claims to have witnessed the firing, PW-6 and PW-9 have stated about seeing the appellants fleeing away when they arrived at the place of occurrence. PW-3 is the son of the deceased and a child witness, who though seems to have given a vivid description of the occurrence but his evidence as an eye-witness has been considerably diluted by virtue of his cross-examination wherein he has deposed that when the quarrel ensued he had fled away to his house where he started crying. However, PW-1 and PW-5 have withstood the test of cross- examination and have categorically stated about the participation of the appellants in committing the murder of Gajju Choudhary. Though it has been argued by way of an alternative that at best a case under section 304 Part-II of the Indian Penal Code is made out against the appellants but we negate such submission simply for the reason that though only one shot was fired at the deceased but the presence of the firearm would be indicative of the intention of the appellants. 12. In such context, we may refer to the case of “Suresh Chandra versus State of U.P.” reported in (2005) 6 SCC 130 wherein it has been held as follows: “7. Learned counsel for the appellants submits that the incident had happened without any premeditation or prior concert, upon a sudden quarrel and the resultant attack on the victims was unintentional and, therefore, the offence would appropriately fall under Exception 4 punishable under Section 304 Part I or II. We find it difficult to countenance this argument. Though there was absence of premeditation and it was a case of sudden fight, that is not sufficient to bring the offence committed by the accused within the purview of Exception 4. The further requirement of Exception 4 that the offender should not have taken undue advantage or acted in a cruel or unusual manner should be satisfied. The very fact that the accused-appellants used the firearms in the course of a frivolous quarrel triggered off by the sarcastic remark of Ravindra Singh would demonstrate beyond doubt that the appellants acted in a cruel manner and it would further demonstrate the intention to cause death or at any rate, to cause bodily injury of the nature mentioned in clause thirdly of Section 300. Such intention is writ large on the acts done by the accused. Thus, it is a case in which clauses 1 to 3 of Section 300 IPC are attracted and, as already observed, Exception 4 would not come to the rescue 7 Criminal Appeal (DB) No. 234 of 1997 (R) of the appellants for the reason that they have acted in a cruel and unusual manner by shooting at unarmed victims who merely indulged in a verbal duel with them. The fact that the other two accused who were said to have exhorted the three appellants to attack the members of the other party were acquitted has no material bearing on the question whether the appellants could be given the benefit of Exception 4. Thus, the argument in regard to the nature of offence cannot be sustained. On the facts of this case, it is only Section 302 IPC that is attracted. 10. In the conclusion, we may note that there is overwhelming evidence including the evidence of the injured witness PW 5 to the effect that all the three appellants fired at the victims. Even if they fired indiscriminately without targeting any particular person, they cannot escape the punishment for murder. The ballistic expert's report and cartridges found at the spot of offence and the firearm injuries found on the deceased and others corroborate the prosecution version beyond reasonable doubt. It may be that the appellants did not carry the firearms with the purpose of attacking the persons who were present at the wedding venue or that they had no preconceived plan to attack the victims. Even then, all the three appellants enraged by what had happened at the venue, deliberately wielded the firearms held by them to cause injuries to the deceased persons. It is a case where the common intention sprang up at the spot. The manner in which the appellants took the extreme step of firing at the victims, causing injuries on the vital parts of their bodies would amply demonstrate the common intention that impelled them to resort to the shooting spree then and there.” 13. The common intention and the cruel manner in which the plan for eliminating Gajju Choudhary was executed leaves no room for doubt that the learned trial Court had rightly convicted the appellants for the offence punishable under section 302/34 of the Indian Penal Code and section 27 of the Arms Act and having been found no reasons to differ with such conclusion, we hereby dismiss this appeal. 14. Since the appellants are on bail, they are directed to surrender before the learned Court below immediately and forthwith to serve out rest part of their sentence. 15. Pending IA, if any, stands closed. (RONGON MUKHOPADHYAY, J.) (ARUN KUMAR RAI, J.) Jharkhand High Court, Ranchi, Dated:11 / 03 /2025 S.B.