Case: Ram Sanjiwan Singh &amp; Others Vs. State of Bihar

because of the firing the barber had run away. It was tried to be suggested that this very barber used to shave the deceased twice a week. That may be so. But it was not clear as to who was the barber who shaved the deceased on that fateful evening nor was anything pointed out in the cross-examination of Sunil Singh PW 5 that he knew the name of the barber. But even otherwise non-examination of the barber did not affect the core of the prosecution case against the accused which has stood well established on record by the eyewitness account of the aforesaid eyewitnesses PWs 1, 3, 4 and 5. 17. It was next contended that the case diary was tampered with. Even this submission cannot be accepted for the simple reason that the evidence of Prayag Narain PW 44 and other police witnesses clearly showed that four copies were taken out in connection with the entries in the police diary. The evidence of PW 44 Prayag Narain had shown that the case diary was written in the prescribed form. There was a connective number of the case diary. In that case the serial number of the case diary was not connective because that had been written in four copies instead of three. This part of the evidence has stood well established on record and consequently even this contention cannot be of any use of the appellants to show that the recording of the FIR was in any way ante-timed18. It was next contended that these alleged eyewitnesses had bad antecedents. That might be so. However if their presence on the spot was natural and they could witness what happened on spot it could not be said that they were necessarily deposing falsely about what they saw on spot. A faint attempt was tried to be made that if the assault was mounted from a distance of one foot, as one of the witnesses stated, the injuries found on the dead body would have been more pronounced. This submission loses its importance for the simple reason that witness Gazraj Singh PW 3 had deposed that accused Moti Lal Tiwary had fired from a distance of 1 or 1/2 or 2 metres and Malkit had fired from 1 metre and other people were firing from a distance of 2 or 3 metres. This part of the evidence has well stood the test of cross-examination and could clearly support the prosecution version regarding the finding of the firearm injuries on the deceased. In this connection it has also to be kept in view that PW 5 Sunil Singh had stated that even earlier an attempt was made to murder the deceased. Under these circumstances if the deceased had kept himself in the company of his bodyguards as well as his near relatives like Sunil Singh PW 5, his grandson and Shankar Singh PW 4, his nephew it could not be said that this was an unnatural conduct. 19. It was then submitted that in the inquest report the names of the assailants were not shown. It is obvious that there was no column in the inquest report about the names of the assailants and there was no occasion for anyone to mention the names of the assailants in the inquest report. It was then submitted that Dr Saroj Kumar Das PW 33 had stated that witness Shankar Singh had brought the dead body and he had not stated the name of Sunil. This appeared to be an omission as Sunils presence was clearly deposed to by PW 44 who got recorded his fardbeyan and once Sunils evidence that he accompanied the deceased to the hospital is found believable and has well stood the test of cross-examination the non-mentioning of the name of Sunil by Dr S.K. Das would not make any difference and would pale into insignificance. For all these reasons, therefore, these appeals are liable to be dismissed. These were the only contentions and as there is no substance in them, this result is inevitable. Consequently so far as Appellant 1 Accused 10 Moti Lal Tiwary, Appellant 5 Accused 4 Malkit Singh and Appellant 7 Accused 6 Ganesh Gwala are concerned, their Criminal Appeal No. 388 of 1985 is liable to be dismissed..20. However, so far as Criminal Appeal No. 387 of 1985 by accused Ram Sanjiwan Singh is concerned, as we have noted earlier, his acquittal under Section 302 IPC read with Section 34 IPC has stood confirmed. The learned Sessions Judge had imposed on him for that (sic) offence sentence to suffer rigorous imprisonment for seven years. In his appeal, however, pursuant to the notice of enhancement, the High Court thought it fit to enhance his sentence to life imprisonment. To that extent the decision of the High Court seems to be inconsistent. When the High Court held that accused Ram Sanjiwan Singh had not committed offence of murder and, therefore, as a logical corollary he was not liable to be sentenced to life imprisonment, it is difficult to appreciate how the same sentence of life imprisonment could be imposed on him by enhancing his sentence under Section 304 Part I. It is now well settled that imposing of sentence is in the realm of discretion of the court and unless this sentence is found to be grossly inadequate the appellate court would not be justified in interfering with the discretionary order of sentence. On the facts of the present case, it may not be said that the sentence of seven years rigorous imprisonment as imposed by the trial court was grossly inadequate. Consequently the Criminal Appeal No. 387 of 1985 filed by Ram Sanjiwan Singh will have to be partly allowed. While maintaining his conviction for an offence under Section 304 Part I, his sentence of life imprisonment as enhanced by the High Court will stand set aside and instead the sentence of seven years rigorous imprisonment as imposed by the learned trial Judge will stand restored.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]20. However, so far as Criminal Appeal No. 387 of 1985 by accused Ram Sanjiwan Singh is concerned, as we have noted earlier, his acquittal under Section 302 IPC read with Section 34 IPC has stood confirmed. The learned Sessions Judge had imposed on him for that (sic) offence sentence to suffer rigorous imprisonment for seven years. In his appeal, however, pursuant to the notice of enhancement, the High Court thought it fit to enhance his sentence to life imprisonment. To that extent the decision of the High Court seems to be inconsistent. When the High Court held that accused Ram Sanjiwan Singh had not committed offence of murder and, therefore, as a logical corollary he was not liable to be sentenced to life imprisonment, it is difficult to appreciate how the same sentence of life imprisonment could be imposed on him by enhancing his sentence under Section 304 Part I. It is now well settled that imposing of sentence is in the realm of discretion of the court and unless this sentence is found to be grossly inadequate the appellate court would not be justified in interfering with the discretionary order of sentence. On the facts of the present case, it may not be said that the sentence of seven years rigorous imprisonment as imposed by the trial court was grossly inadequate. Consequently the Criminal Appeal No. 387 of 1985 filed by Ram Sanjiwan Singh will have to be partly allowed. While maintaining his conviction for an offence under Section 304 Part I, his sentence of life imprisonment as enhanced by the High Court will stand set aside and instead the sentence of seven years rigorous imprisonment as imposed by the learned trial Judge will stand restored