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

Criminal Appeal No. 387 of 1985 on special leave is taken out by Accused 10 Ram Sanjiwan Singh in Sessions Trial Case No. 195 of 1974 in the Court of 2nd Additional Sessions Judge, Jamshedpur while the companion Criminal Appeal No. 338 of 1985 also by special leave is taken out by Accused 1 Moti Lal Tiwary, Accused 4 Malkit Singh and Accused 6 Ganesh Gwala who werein the same sessions case. Earlier Accused 2, 3 and 5 respectively in the same case had also joined in Criminal Appeal No. 388 of 1985 but as they have died pending this appeal now Criminal Appeal No. 388 of 1985 survives only for Accused 1, 4 and 6 respectively who are the remaining three appellants in this appeal. In these appeals a common judgment rendered by a Division Bench of the High Court of Judicature at Patna has been brought in challenge. The said common judgment was rendered in Criminal Appeal No. 15 of 1976 filed by appellant Ram Sanjiwan Singh, original Accused 10 before the High Court against whom Criminal Revision Application No. 137 of 1976 was also filed by the first informant seeking conviction under Section 302 Indian Penal Code (in short IPC) and enhancement of his sentence as rendered by the trial court. The High Court also issued notice for enhancement of sentence in the appeal of Accused 10. By the same common judgment the High Court also disposed of the companion criminal appeals by the other accused as well as the appeal against acquittal of the accused concerned as filed by the State. The criminal appeal of Ram Sanjiwan Singh, Accused 10 was dismissed by the High Court while the notice for enhancement was made absolute and the sentence of Ram Sanjiwan Singh under Section(sic 304 Pt. 7), IPC was enhanced up to life imprisonment. It is order of the High Court which is challenged by Accused 10 Ram Sanjiwan Singh in his Criminal Appeal No. 387 of 1985. So far as Criminal Appeal No. 388 of 1985 is concerned the surviving three1, 4 and 6 respectively who were convicted by the trial court under Section 302 read with Section 34 IPC and were sentenced to undergo life imprisonment, unsuccessfully challenged the said order of conviction and sentence before the High Court in their Criminal Appeal No. 28 of 1976 which came to be dismissed by the High Court by the very same common judgment. It is this judgment of the High Court that is brought in challenge by these three1, 4 and 6 respectively in their Criminal Appeal No. 388 of 1985. In order to appreciate the grievance voiced on their behalf by the learned Senior Counsel Shri Rajender Singh it is necessary to glance through a few introductory facts leading to theseIn Sessions Trial No. 195 of 1974 in the Court of 2nd Additional Sessions Judge, Jamshedpur, 13 accused including the present four accused were tried under Section 302 IPC, Section 302 read with Section 149 IPC, Section 302 read with Section 109 IPC, Section 150 read with Section 302 IPC, Section 302 read with Sectionand Section 148 IPC and Sections 25(a) and 27 of the Arms Act. 1959. The prosecution case against these 13 accused including the present four accused ran asbetween 14th August 1971 to the 24th May 1972 at Mohalla Kasidih and Jail Compound, Jamshedpur they agreed to murder Ramchandra Singh in pursuance to which he was in fact murdered. Accused Pyara Singh, Siroman Singh and Dhurandhar Singh, have been further charged under Sections 150/302 IPC that onat Sakchi Bazar they engaged the remaining accused persons to murder the said Ramchandra Singh which was committed in pursuance to that engagement. These three accused have also been charged under Sections 302/109 IPC for abetting the remaining accused persons for committing that murder. The remaining 10 accused persons have been charged under Section 148 IPC for committing rioting armed with firearms onat Sakchi Bazar and also under Sections 25(a) and 27 Arms Act. The accused persons named under Serial Nos. 1 to 6 in the judgment have been further charged under Section 302 IPC that onthey committed the murder of the said Ramchandra Singh and the remaining accused persons 7 to 10 under Sections 302/149 IPC for the same murder."was the prosecution case that between72 at Mohalla Kasidih and Jail Compound, Jamshedpur in State of Bihar these accused had agreed to murder one Ramchandra Singh and in pursuance of that criminal conspiracy he was in fact murdered. Original Accused Nos. 11, 12 and 13, namely, Pyara Singh, Siroman Singh and Dhurandhar Singh respectively had been further charged under Section 150 read with Section 302 IPC alleging that onat Sakchi Bazar they engaged the remaining 10 accused to murder the said Ramchandra Singh. The aforesaid three accused were also charged with Section 302 read with Section 109 IPC for abetting the remaining accused for committing the murder while the remaining 10 accused including the present four accused were charged under Section 148 IPC for committing rioting armed with firearms onat Sakchi Bazar. They were also charged under Sections 25(a) and 27 of the Arms Act. Accused 1 to 6 were further charged under Section 302 IPC on the ground that onthey committed the murder of the said Ramchandra Singh and the remaining Accused 7 to 10 were charged under Section 302 read with Section 149 IPC for committing the very sameThe prosecution case in its inception rested on the fardbeyan, Exh. 2 given by one Sunil Singh, PW 5 and which was recorded onat 7.00 p.m. The prosecution case was that deceased Ramchandra Singh was the Supervisor in the cooperative store, Sakchi. Onat 6.15 p.m. he was getting himself shaved by a barber in the western portion of the verandah of that cooperative store sitting on a tin chair facing towards the east. The informant Sunil Singh PW 5, one Rameshwar Prasad PW 1, Gazraj Singh PW 3 and Shankar Singh PW 4 were standing in the same verandah in its eastern portion. The coolies and the salesman of the cooperative store were alsoIt is further the prosecution case that this cooperative store opened on the road running east to west. There were shops opposite to this store on the other side of the road which were also open at that time. It was bazar area and at the time of the incident the shops in the bazar were open. It is alleged by the prosecution that at that time Accused 1 Moti Lal Tiwary, Accused 2 Panchu Ram, Accused 4 Malkit Singh, Accused 3 Laxmi Sonal, Accused 10 Ram Sanjiwan Singh, Accused 5 Arurendra Bahadur Singh alias Lallu Singh, Accused 7 Dineshwar Singh alias Babua and Accused 9 Bansilal Tiwary along withpersons armed with revolvers came from the western side and took their position opposite the cooperative store. Seeing them the barber slipped away. Accused 1 Moti Lal Tiwary fired two gunshots on Ramchandra Singh who fell down from the chair. Accused 5 Lallu Singh, Accused 4 Malkit Singh, Accused 2 Panchu Ram, Accused 3 Laxmi Sonal also are alleged to have fired on Ramchandra Singh while Accused 10 Ram Sanjiwan Singh fired in the air to scare away the public and for preventing anyone coming to rescue the victim. It is alleged that the remaining accused were guarding the road. There was a lot of commotion on account of this firing. Thereafter the accused slipped away. Victim Ramchandra Singh was carried in a bleeding state to Tata Memorial Hospital by a car but on arrival he was declared dead. The motive of this daylight murder was said to be enmity between the deceased Ramchandra Singh and Accused 11 Pyara Singh. It is alleged that the remaining accused belonged to the group of Pyarar P.N. Singh PW 44 having received a telephonic message of firing in Sakchi Bazar made a station diary entry and went to the bazar at 6.30 p.m. along withL.P. Srivastava PW 39, S.J. Ramjit Singh and others. He went to the TISCO Cooperative Store and found it open. A bloodstained chair and shaving brush and cup were also found there. The entire area looked deserted. Having keptRanjit Singh there to guard the place of offence he went to Tata Memorial Hospital along with his companions and reached there at 6.55 p.m. In the hospital he met the informant Sunil Singh PW 5 and recorded his fardbeyan Exh. 2. He then went to the morgue of the hospital and found the dead body of Ramchandra Singh covered with a cloth. He performed inquest Exh. 4 over the body in the presence of Bharat Singh PW 9, Mohan Singh PW 10 and Saatan Mukhi PW 23. The body had several bleeding injuries. Its beard was partly shaved. Bloodstained clothes of the deceased were seized. They also had holes in them. He deputed Constable Girja Singh PW 29 and Chhedi Singh PW 30 to guard it. He further examined the complainant. He also sent the fardbeyan with L.P. Srivastava PW 39 and directed him to draw the formal first information report (FIR) which was drawn at the police station (Exh. 2 series). After visiting the scene of offence and noting the physical features of the scene of offence and after recording statements of various witnesses and after arresting the accused investigation was completed and all the accused wereas aforesaid. After the usual committal proceedings before the Court ofMagistrate, Jamshedpur all the 13 accused were committed to the Court of Sessions to stand their trial for the various offences with which they were charged. After recording the prosecution evidence and after hearing the accused the learned Sessions Judge came to the conclusion that the prosecution had failed to establish its case of criminal conspiracy against the accused concerned. Consequently Accused 11 Pyara Singh, Accused 12 Siroman Singh and Accused 13 Dhurandhar Singh were acquitted of the offences with which they were charged. The learned Sessions Judge also found that the prosecution had failed to bring home the charge against Accused 7 Dineshwar Singh and Accused 9 Bansilal Tiwary. Thus these five accused were acquitted. So far as the remaining 8 accused were concerned the learned Sessions Judge held relying on the eyewitness account deposed to by the witnesses and other evidence on record that the prosecution had brought home charge under Section 302 read with Section 34 IPC against Accused 1 Moti Lal Tiwary, Accused 2 Panchu Ram, Accused 3 Laxmi Sonal, Accused 4 Malkit Singh, Accused 5 Arurendra Bahadur Singh and Accused 6 Ganesh Gwala. They were also convicted under Section 148 IPC. Accordingly for the offence under Section 302 read with Section 34 IPC the aforesaid six accused were sentenced to suffer rigorous imprisonment for life. For the offence under Section 148 IPC each of them was sentenced to undergo rigorous imprisonment for three years. They were also convicted under Sections 25(a) and 27 of the Arms Act and were sentenced to undergo rigorous imprisonment for three yearsSo far as Accused 10 Ram Sanjiwan Singh is concerned he along with Accused 8 Ganesh Choubey were found to have committed offences under Section 304 Part 1 read with Section 149 IPC and for that offence both of them were sentenced to undergo rigorous imprisonment for seven years. They were also found guilty of offence under Section 148 IPC and for that offence each of them was ordered to undergo rigorous imprisonment for three years. They were also convicted under Sections 25(a) and 27 of the Arms Act and were sentenced to undergo rigorous imprisonment for three years. All these sentences were ordered to runAs stated above Accused 10 Ram Sanjiwan Singh filed Criminal Appeal No. 15 of 1976 before the High Court of Judicature at Patna. Accused 1, 4 and 6 preferred Criminal Appeal No. 28 of 1976. The State of Bihar preferred Government Appeal No. 1 of 1976 seeking conviction under Section 302 so far as Accused 10 Ram Sanjiwan Singh was concerned and also for conviction of the other six accused who were acquitted by the trial court while informant Sunil Singh preferred Criminal Revision Application No. 137 of 1976 against six accused out of whom Accused 1, 4 and 6 were three of them. As noted earlier the High Court also issued notice of enhancement of sentence in the Criminal Appeal No. 15 of 1976 filed by Accused 10 Ram Sanjiwan Singh. All these appeals, revision and enhancement notice issued against Ram Sanjiwan Singh were heard together by the Division Bench of the High Court and were disposed of by a common judgment giving rise to the presentAppeal No. 387 of 1985 on special leave is taken out by Accused 10 Ram Sanjiwan Singh in Sessions Trial Case No. 195 of 1974 in the Court of 2nd Additional Sessions Judge, Jamshedpur while the companion Criminal Appeal No. 338 of 1985 also by special leave is taken out by Accused 1 Moti Lal Tiwary, Accused 4 Malkit Singh and Accused 6 Ganesh Gwala who werein the same sessions case. Earlier Accused 2, 3 and 5 respectively in the same case had also joined in Criminal Appeal No. 388 of 1985 but as they have died pending this appeal now Criminal Appeal No. 388 of 1985 survives only for Accused 1, 4 and 6 respectively who are the remaining three appellants in this appeal. In these appeals a common judgment rendered by a Division Bench of the High Court of Judicature at Patna has been brought in challenge. The said common judgment was rendered in Criminal Appeal No. 15 of 1976 filed by appellant Ram Sanjiwan Singh, original Accused 10 before the High Court against whom Criminal Revision Application No. 137 of 1976 was also filed by the first informant seeking conviction under Section 302 Indian Penal Code (in short IPC) and enhancement of his sentence as rendered by the trial court. The High Court also issued notice for enhancement of sentence in the appeal of Accused 10. By the same common judgment the High Court also disposed of the companion criminal appeals by the other accused as well as the appeal against acquittal of the accused concerned as filed by the State. The criminal appeal of Ram Sanjiwan Singh, Accused 10 was dismissed by the High Court while the notice for enhancement was made absolute and the sentence of Ram Sanjiwan Singh under Sectionc 304 Pt. 7), IPC was enhanced up to life imprisonment. It is order of the High Court which is challenged by Accused 10 Ram Sanjiwan Singh in his Criminal Appeal No. 387 of 1985. So far as Criminal Appeal No. 388 of 1985 is concerned the surviving three1, 4 and 6 respectively who were convicted by the trial court under Section 302 read with Section 34 IPC and were sentenced to undergo life imprisonment, unsuccessfully challenged the said order of conviction and sentence before the High Court in their Criminal Appeal No. 28 of 1976 which came to be dismissed by the High Court by the very same common judgment. It is this judgment of the High Court that is brought in challenge by these three1, 4 and 6 respectively in their Criminal Appeal No. 388 of 1985. In order to appreciate the grievance voiced on their behalf by the learned Senior Counsel Shri Rajender Singh it is necessary to glance through a few introductory facts leading to thesen Sessions Trial No. 195 of 1974 in the Court of 2nd Additional Sessions Judge, Jamshedpur, 13 accused including the present four accused were tried under Section 302 IPC, Section 302 read with Section 149 IPC, Section 302 read with Section 109 IPC, Section 150 read with Section 302 IPC, Section 302 read with Sectionand Section 148 IPC and Sections 25(a) and 27 of the Arms Act. 1959. The prosecution case against these 13 accused including the present four accused ran asn 14th August 1971 to the 24th May 1972 at Mohalla Kasidih and Jail Compound, Jamshedpur they agreed to murder Ramchandra Singh in pursuance to which he was in fact murdered. Accused Pyara Singh, Siroman Singh and Dhurandhar Singh, have been further charged under Sections 150/302 IPC that onat Sakchi Bazar they engaged the remaining accused persons to murder the said Ramchandra Singh which was committed in pursuance to that engagement. These three accused have also been charged under Sections 302/109 IPC for abetting the remaining accused persons for committing that murder. The remaining 10 accused persons have been charged under Section 148 IPC for committing rioting armed with firearms onat Sakchi Bazar and also under Sections 25(a) and 27 Arms Act. The accused persons named under Serial Nos. 1 to 6 in the judgment have been further charged under Section 302 IPC that ony committed the murder of the said Ramchandra Singh and the remaining accused persons 7 to 10 under Sections 302/149 IPC for the same murder."was the prosecution case that between72 at Mohalla Kasidih and Jail Compound, Jamshedpur in State of Bihar these accused had agreed to murder one Ramchandra Singh and in pursuance of that criminal conspiracy he was in fact murdered. Original Accused Nos. 11, 12 and 13, namely, Pyara Singh, Siroman Singh and Dhurandhar Singh respectively had been further charged under Section 150 read with Section 302 IPC alleging that onat Sakchi Bazar they engaged the remaining 10 accused to murder the said Ramchandra Singh. The aforesaid three accused were also charged with Section 302 read with Section 109 IPC for abetting the remaining accused for committing the murder while the remaining 10 accused including the present four accused were charged under Section 148 IPC for committing rioting armed with firearms onat Sakchi Bazar. They were also charged under Sections 25(a) and 27 of the Arms Act. Accused 1 to 6 were further charged under Section 302 IPC on the ground that ony committed the murder of the said Ramchandra Singh and the remaining Accused 7 to 10 were charged under Section 302 read with Section 149 IPC for committing the very sameIt is further the prosecution case that this cooperative store opened on the road running east to west. There were shops opposite to this store on the other side of the road which were also open at that time. It was bazar area and at the time of the incident the shops in the bazar were open. It is alleged by the prosecution that at that time Accused 1 Moti Lal Tiwary, Accused 2 Panchu Ram, Accused 4 Malkit Singh, Accused 3 Laxmi Sonal, Accused 10 Ram Sanjiwan Singh, Accused 5 Arurendra Bahadur Singh alias Lallu Singh, Accused 7 Dineshwar Singh alias Babua and Accused 9 Bansilal Tiwary along withs armed with revolvers came from the western side and took their position opposite the cooperative store. Seeing them the barber slipped away. Accused 1 Moti Lal Tiwary fired two gunshots on Ramchandra Singh who fell down from the chair. Accused 5 Lallu Singh, Accused 4 Malkit Singh, Accused 2 Panchu Ram, Accused 3 Laxmi Sonal also are alleged to have fired on Ramchandra Singh while Accused 10 Ram Sanjiwan Singh fired in the air to scare away the public and for preventing anyone coming to rescue the victim. It is alleged that the remaining accused were guarding the road. There was a lot of commotion on account of this firing. Thereafter the accused slipped away. Victim Ramchandra Singh was carried in a bleeding state to Tata Memorial Hospital by a car but on arrival he was declared dead. The motive of this daylight murder was said to be enmity between the deceased Ramchandra Singh and Accused 11 Pyara Singh. It is alleged that the remaining accused belonged to the group of Pyarar P.N. Singh PW 44 having received a telephonic message of firing in Sakchi Bazar made a station diary entry and went to the bazar at 6.30 p.m. along withL.P. Srivastava PW 39, S.J. Ramjit Singh and others. He went to the TISCO Cooperative Store and found it open. A bloodstained chair and shaving brush and cup were also found there. The entire area looked deserted. Having keptRanjit Singh there to guard the place of offence he went to Tata Memorial Hospital along with his companions and reached there at 6.55 p.m. In the hospital he met the informant Sunil Singh PW 5 and recorded his fardbeyan Exh. 2. He then went to the morgue of the hospital and found the dead body of Ramchandra Singh covered with a cloth. He performed inquest Exh. 4 over the body in the presence of Bharat Singh PW 9, Mohan Singh PW 10 and Saatan Mukhi PW 23. The body had several bleeding injuries. Its beard was partly shaved. Bloodstained clothes of the deceased were seized. They also had holes in them. He deputed Constable Girja Singh PW 29 and Chhedi Singh PW 30 to guard it. He further examined the complainant. He also sent the fardbeyan with L.P. Srivastava PW 39 and directed him to draw the formal first information report (FIR) which was drawn at the police station (Exh. 2 series). After visiting the scene of offence and noting the physical features of the scene of offence and after recording statements of various witnesses and after arresting the accused investigation was completed and all the accused weres aforesaid. After the usual committal proceedings before the Court of, Jamshedpur all the 13 accused were committed to the Court of Sessions to stand their trial for the various offences with which they were charged. After recording the prosecution evidence and after hearing the accused the learned Sessions Judge came to the conclusion that the prosecution had failed to establish its case of criminal conspiracy against the accused concerned. Consequently Accused 11 Pyara Singh, Accused 12 Siroman Singh and Accused 13 Dhurandhar Singh were acquitted of the offences with which they were charged. The learned Sessions Judge also found that the prosecution had failed to bring home the charge against Accused 7 Dineshwar Singh and Accused 9 Bansilal Tiwary. Thus these five accused were acquitted. So far as the remaining 8 accused were concerned the learned Sessions Judge held relying on the eyewitness account deposed to by the witnesses and other evidence on record that the prosecution had brought home charge under Section 302 read with Section 34 IPC against Accused 1 Moti Lal Tiwary, Accused 2 Panchu Ram, Accused 3 Laxmi Sonal, Accused 4 Malkit Singh, Accused 5 Arurendra Bahadur Singh and Accused 6 Ganesh Gwala. They were also convicted under Section 148 IPC. Accordingly for the offence under Section 302 read with Section 34 IPC the aforesaid six accused were sentenced to suffer rigorous imprisonment for life. For the offence under Section 148 IPC each of them was sentenced to undergo rigorous imprisonment for three years. They were also convicted under Sections 25(a) and 27 of the Arms Act and were sentenced to undergo rigorous imprisonment for three yearsSo far as Accused 10 Ram Sanjiwan Singh is concerned he along with Accused 8 Ganesh Choubey were found to have committed offences under Section 304 Part 1 read with Section 149 IPC and for that offence both of them were sentenced to undergo rigorous imprisonment for seven years. They were also found guilty of offence under Section 148 IPC and for that offence each of them was ordered to undergo rigorous imprisonment for three years. They were also convicted under Sections 25(a) and 27 of the Arms Act and were sentenced to undergo rigorous imprisonment for three years. All these sentences were ordered to runs stated above Accused 10 Ram Sanjiwan Singh filed Criminal Appeal No. 15 of 1976 before the High Court of Judicature at Patna. Accused 1, 4 and 6 preferred Criminal Appeal No. 28 of 1976. The State of Bihar preferred Government Appeal No. 1 of 1976 seeking conviction under Section 302 so far as Accused 10 Ram Sanjiwan Singh was concerned and also for conviction of the other six accused who were acquitted by the trial court while informant Sunil Singh preferred Criminal Revision Application No. 137 of 1976 against six accused out of whom Accused 1, 4 and 6 were three of them. As noted earlier the High Court also issued notice of enhancement of sentence in the Criminal Appeal No. 15 of 1976 filed by Accused 10 Ram Sanjiwan Singh. All these appeals, revision and enhancement notice issued against Ram Sanjiwan Singh were heard together by the Division Bench of the High Court and were disposed of by a common judgment giving rise to the present

Reasoning:
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