Ghanshyam Prasad, J.@mdashThree persons including this appellant faced trial for commission of murder. Two persons, namely, Tulsi Sharma and Sudhir Kumar were acquitted. However, this appellant Ajit Sharma has been found guilty u/s 302 I.P.C. and has been awarded death sentence. The appellant has challenged his conviction and sentence recorded by 2nd Additional Sessions Judge, Jehanabad vide judgment and order dated 19.4.2003/ 21.4.2003 passed in Sessions Trial No. 188 of 2001/266 of 2002. A trivial matter led to murder of son of the informant, namely, Anand Kumar Sharma. It appears from the fardbeyan (Ext. 4) lodged by Chitranjan Prasad Singh (since dead) that on 25.1.2000 at about 9.15 A.M. the accused-appellant Ajit Sharma attempted to drive his tractor just from the side of the house of the informant. The deceased Anand Sharma objected on the ground that it would damage the wall of the house. It led to an altercation between them. Thereafter, the accused-appellant whipped out his pistol "and fired upon the victim. The shot after passing through the left arm entered into the chest of the victim. He fell down at the spot. Witnesses assembled at the spot and brought the victim to the clinic of Dr. Ram Kumar Singh situated at Sahar Telpa Dih Bazar where he was declared dead.
2. Shri G.N. Singh (P.W. 6) S.I. of Sahar Telpa OP. came at the place immediately and recorded fardbeyan of Chitranjan Prasad Singh, the father of the deceased. He prepared inquest report of the dead body at the spot, which is Ext. 7 and sent the dead body to Sadar Hospital, Jehanabad for post mortem. P.W. 5 Dr. Mukesh Kumar Singh conducted post mortem on the dead body of the deceased on the same day at 5.00 P.M. Ext. 3 is the post mortem report. S.I. G.N. Singh (P.W. 6) investigated the case. In course of it, he seized blood stained earth from the P.O. through seizure list (Ext. 5). Ultimately, he submitted chargesheet against three persons including this appellant.
3. In support of the charges framed against the accused persons the prosecution examined as many as six witnesses, out of whom P.W. 5 Mukesh Kumar Singh is the then M.O. of Sadar Hospital, Jehanabad, who conducted postmortem and P.W. 6 Gorakh Nath Singh is the I.O. of the case. Other witnesses are P.W.1 Dwarika Prasad. Singh, P.W. 2 Lal Bacha Singh, P.W. 3 Manoj Kumar and P.W. 4 Sharad Chandra Sharma.
4. Apart from usual plea of innocence the other plea of the defence is that the appellant has been falsely implicated due to enmity and in fact the deceased was killed by unknown extremist. In support of the defence, five witnesses have been examined and some letters have also been produced which are Exts. A and B. The witnesses examined by the defence are D.W. 1 Munilal Das, D.W. 2 Bacha Singh, D.W. 3 Lala Razak, D.W. 4 Chandra Bhushan Sharma and D.W. 5 Ram Niwas Sharma. Except D.W. 5 other four defence witnesses are formal in nature.
5. In course of submission, the learned counsel for the appellant challenged the judgment in question and submitted that the court below has not properly appreciated oral evidence adduced on behalf of the prosecution or the defence and has wrongly convicted the appellant. The other submission of the learned counsel is that in violation of Section 354(3) Cr.P.C. the court below has awarded extreme penalty of death to the appellant. He has not considered the facts and circumstances of the case as well as age of the appellant. According to him, the case does not fall within the category of "rarest of rare cases" and, therefore, at any event the appellant does not deserve death penalty.
6. It is needless to say that the deceased Anand Kumar Sharma died as a result of fire arm injury. This fact has been confirmed by the doctor (P.W. 5) Mukesh Kumar Singh who held post mortem on the dead body of the deceased. He conducted post mortem on 25.1.2000 at 5.00 P.M. and found following ante mortem injuries:--
"(i) Lacerated oval wound about 2 cm. diameter over left outer surface of left upper 1/3 arm with eruption of skin over it margin inverted with fracture of left huntrous(oval) going towards chest.
(ii) Lacerated wound about 4 cm. diameter of left internal surface of upper 1/3 of arm with inverted margin.
(iii) Lacerated wound about 2 cm. in diameter over outer surface of left side of chest in left 5th intercostal space margin inverted.
(iv) Laceration over back of head about 3 cm. in diameter with blood smeared hair".
According to him, the cause of death was injuries caused by gun shot wound. Ext. 3 is the post mortem report.
7. In this case, there is little scope to challenge the conviction of the appellant. In support of the allegation, the prosecution has examined as many as four independent eye witnesses, who are also natural witnesses. They all have their houses in the vicinity of the P.O. Their presence near the P.O. at the time of the alleged occurrence cannot be doubted.
8. P.W.1 Dwarika Prasad Singh is the distant agnate of the deceased. He has his house near the house of the deceased Anand Kumar. On the alleged date of the occurrence at 9.00-9.15 A.M. he was sitting at his Darwaza. He has stated in his evidence that at that very time, the appellant Ajit Sharma alongwith two others came on tractor and got down from it at his Sahan. The deceased Anand Kumar Sharma objected passage of tractor on the ground that it would damage his wall. He has further stated that after some altercation the appellant whipped out pistol and shot at the deceased. The shot after passing through arm hit at the chest. After moving some steps the deceased fell down. Thereafter, the appellant and the others fled away. He has further stated that the injured was brought to clinic on cot where he was declared dead. The fardbeyan was also recorded in his presence which bears his signature.
9. P.W. 2 Lal Bacha Singh, aged about 69 years, came at the spot on hearing hulla and saw altercation going on between the appellant and deceased for passage of tractor. He has stated in his evidence that in the meantime, Ajit Sharma shot at deceased Anand Kumar which hit at his chest after passing through his arm as a result of which he fell down after moving some steps. Thereafter, he was brought to a doctor who declared him as dead. He has further stated that the father of the deceased, who was informant, also died later on as a result of shock of death of his son.
10. P.W. 3 Manoj Kumar is the other eye witness of the occurrence. At the time of the occurrence he was in his house. He came out of the house on hearing sound of the tractor. He has stated in his evidence that all the three accused persons including this appellant came down from the tractor near Dalan of Dwarika Prasad Singh. Altercation took place for passage of tractor and thereafter appellant Ajit Kumar Sharma whipped out pistol and shot at the deceased Anand Kumar. As a result of injury, Anand Kumar fell down on the ground and later on he died. He has further stated that he alongwith others chased but the appellant and his associates managed to flee away. He has further stated that father of the deceased also died later on due to shock of his son''s death.
11. P.W. 4 Sharad Chandra Sharma is also an eye witness of the occurrence. He has not only testified the occurrence as alleged but has also stated that Dwarika Prasad Singh (P.W.1) Lal Bacha Singh (P.W. 2) and Manoj Singh (P.W. 3) were present at the spot at the time of the occurrence. According to him, in course of altercation between the appellant Ajit Kumar Sharma and deceased Anand Kumar for passage of tractor, appellant Ajit Kumar Sharma whipped out pistol and shot at Anand Kumar as a result of which he died. He is also one of the witnesses of the inquest report as well as seizure list (Ext. 5).
12. As said above, the informant Chitranjan Prasad Singh was not examined in the case as he died before start of the trial due to shock of his son''s death. However, P.W. 6 Gorakh Nath Singh, the I.O. of the case who had recorded the fardbeyan has proved the same as Ext. 4. The fardbeyan was recorded by him just after the occurrence at 9.30 A.M. The evidence of this witness lends support to the prosecution story. In course of the investigation, he inspected the P.O. and found bloods at the P.O. He also seized blood stained, earth through Ext. 5.
13. In course of the argument, the learned counsel for the appellant failed to offer any meaningful criticism against the evidence of prosecution witnesses. Even no definite suggestion has been given to the witnesses with regard to any enmity. Suggestion given on behalf of the appellant is quite vague and uncertain.
14. Of course, defence has examined as many as five witnesses and has also brought on record some documents i.e. Exts. A, B and C series. However, apart from the evidence of D.W. 5 Ram Niwas Sharma, the evidence of other witnesses is of no consequence. They are mostly formal witnesses. The learned counsel for the appellant has also not refer the evidence of those witnesses or the documents in support of the defence. D.W. 5 has tried to throw some light on the point of enmity but of a very insignificant nature which by no stretch of imagination can lead to false implication of the appellant in a case like murder. According to him, in the year 1999 some altercation had taken place between father of the appellant and deceased over a piece of land. However, the allegation is quite vague and uncertain and not supported by any document. Even the appellant in his statement u/s 313 Cr. P.C. has not taken this plea as defence.
15. The appellant in his statement u/s 313 Cr. P.C. has tried to take plea of alibi by saying that while he was at Patna he came to know that he had also been implicated in the case. However, in support of it neither oral nor documentary evidence has been adduced. In course of submission, the learned counsel for the appellant also did not raise this point.
16. The only criticism against the prosecution witnesses, as disclosed in cross-examination, is that they have falsely supported the prosecution story as the matter relates to their family. However, the learned counsel has failed to show that any of them is closely related to the victim. They are only distant agnate having no special weakness for the deceased and animosity against the appellant to falsely implicate him in a case like murder. I have gone through entire evidence of prosecution witnesses and I do not find any infirmity in their evidence which cuts the root of the prosecution story. All of them have firmly stood the test of cross-examination on each material point. They being resident in vicinity of the place of occurrence are competent and natural witness of the occurrence. I find no reason to cast doubt on their testimony.
17. In view of the above discussions, I find that the learned counsel for the appellant has failed to make out any case for interference in the findings of the court below with regard to guilt of the appellant. The court below has rightly convicted the appellant u/s 302 I.P.C. for murder of Anand Kumar Sharma.
18. So far sentence of the appellant is concerned, I am of the view that the court below has not taken due consideration of Section 354(3) of Cr. P.C. as well as mitigating circumstances occurring in favour of the appellant. In view of Section 354(3) Cr.P.C. now in case of murder sentence of life imprisonment is rule and death penalty is exception. There are catena of decisions of apex court (see 1980 S.C. 898, 2002 S.C.C. (Cri.) 3741) which clearly lay down that death penalty can be awarded only in those cases which fall in category of "rarest of rare cases". The case in hand, by no stretch of any imagination falls within the category of "rarest of rare cases". There is no element of extreme brutality or exceptional depravity or pre-plan which attracts sentence of death penalty. There is also strong mitigating circumstance in favour of the appellant. The convict is in his prime age of his life. He is aged about 25 years. Under the circumstances, I am of the opinion that the appellant does not deserve to be awarded death penalty. Accordingly, the death penalty awarded to the appellant by the court below is hereby commuted to life imprisonment. In the result, the Cr. Appeal is dismissed with above modification in sentence. The death reference is, accordingly, refused.
I.P. Singh, J.
I agree.
