Patna High Court
Ram Lal Singh And Anr vs The State Of Bihar on 29 March, 2024
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.969 of 2012
Arising Out of PS. Case No.-24 Year-2008 Thana- BARHARA District- Bhojpur
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1. Ram Lal Singh son of Late Kalaktar Singh, Resident of village-Shaligram
Singh Ka Tola, Niknam Tola, P.S.-Barhara in the district of Bhojpur.
2. Chhote Singh, son of Sri Bachcha Singh, Resident of village-Niknam Tola,
P.S.-Barhara in the district of Bhojpur.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
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Appearance :
For the Appellants : Mr. Bimal Kumar, Advocate
For the Respondent State: Mr. S.N.Prasad, A.P.P.
Km. S.B.Verma, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 29-03-2024
The present appeal has been filed under Section 374(2)
of the Code of Criminal Procedure, 1973 (hereinafter referred to as
'Code') challenging the judgment of conviction dated 23.08.2012
and the order of sentence dated 28.08.2012 passed by learned
Additional Sessions Judge-III, Ara, Bhojpur, in Sessions Trial No.
295 of 2009 arising out of Barhara P.S. Case No. 24 of 2008,
whereby and whereunder the appellant No.1, namely, Ram Lal
Singh has been convicted for the offence punishable under Section
302/34 of the Indian Penal Code ('IPC' for short) and has been
sentenced to undergo life imprisonment and a fine of Rs.5,000/-
and in default of payment of fine to undergo simple imprisonment
Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024
2/20
for one month. Appellant No.2, namely, Chhote Singh, has been
convicted for the offence punishable under Section 302 of the IPC
and Section 27 of the Arms Act and has been sentenced to undergo
imprisonment for life with fine of Rs.3,000/-for the offence under
Section 302 of the IPC and three years rigorous imprisonment for
the offence under Section 27(1) of the Arms Act with fine of
Rs.1,000/-. In default of payment of fine, the appellant has been
directed to undergo simple imprisonment for one month. Both the
sentences have been directed to run concurrently.
2. The facts of the present case, in a nutshell, is as
under:-
2.1. The prosecution case is based on the fard-
beyan of the informant Lallan Sah recorded by Assistant Sub
Inspector of Police of Barhara Police Station, on 07.02.2008, at
about 11.30 AM, at Male Surgical Ward of Sadar Hospital, Ara,
that a quarrel took place between the family of the accused Chhote
Singh and the informant Lalan Sah on account of some dispute
between their children. Due to that reason, on 07.02.2008, at about
09:00 AM, the informant had gone to the orchard of Nathuni Singh
for a walk. Meanwhile, accused Ram Lal Singh told the accused
Chhote Singh that the informant was there alone and he should be
finished and, on the exhortion of Ram Lal Singh, accused Chhote
Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024
3/20
Singh opened fire from his country-made pistol (katta), one bullet
hit the back of the chest and crossed across the body of the
informant through his chest. On shouting of the informant, his
brother Chhitani Sah and other persons of the vicinity reached
there, who saw the alleged occurrence and brought the informant
to Sadar Hospital for his medical treatment, where above statement
was given by the informant.
2.2. After recording of the fard-beyan of the
informant, formal FIR came to be registered before Barhara Police
Station, bearing Barhara P.S. Case No. 24 of 2008 for the offences
punishable under Section 307/34 of the IPC and 27 of the Arms
Act at about 3:00 PM on 07.02.2008. The informant was referred
to Patna Medical College and Hospital for treatment and on the
way to hospital, he died. Thereafter, Section 302 of the IPC was
added.
2.3. Upon death, the dead body of the deceased was
brought again to Ara Sadar Hospital on the same day, but due to
strike of Doctors, the inquest report of the dead body of the
deceased was prepared at the verandah of Sadar Hospital at 10.15
AM on 09.02.2008 and the post mortem examination was done on
09.02.2008.
Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 4/20 2.4. After registration of the FIR, the Investigating Officer commenced the investigation and during the course of the investigation, he had recorded the statement of the witnesses and collected documentary evidence and thereafter filed the charge- sheet against the appellants-accused before the concerned Magistrate Court. As the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the same to the Sessions Court under Section 209 of the Code, where the same was registered as Sessions Trial No. 295 of 2009.
3. Before the trial court, the prosecution examined 12 witnesses and also produced the documentary evidence. Thereafter, the statement of the accused under Section 313 of the Code came to be recorded.
3.1. After conclusion of the trial, the trial court passed the impugned judgment of conviction and the order of sentence against which the appellants/convicts have preferred the present appeal.
4. Heard learned counsel Mr. Bimal Kumar for the appellants and Mr. Satya Narayan Prasad, learned APP for the respondent-State.
5. Learned Advocate for the appellants-accused has submitted that the appellants have been falsely implicated in Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 5/20 the occurrence in question because of the enmity between the parties. It is submitted that, as per the case of the prosecution, the informant is Lallan Sah (deceased), who gave his fard-beyan in Sadar Hospital, Ara. It is submitted that it is further case of the prosecution that when the informant was admitted in the said hospital in Surgical Ward, his statement came to be recorded by the police. However, it is contended that though the injured was in the hospital, the endorsement of the Doctor was not obtained by the police officer who has recorded the fard-beyan. It is not clear from the evidence led by the prosecution that whether the informant was, in fact, in a position to give his statement before the police or not. At this stage, learned counsel has referred the deposition given by PW 4, Chhitani Sah, who is brother of the deceased. It is submitted that as per the version given by the said witness, fard-beyan of the injured Lallan Sah was recorded by Darogaji while the injured was on the way to Sadar Hospital, Ara, and after reaching at the hospital, Lallan Sah signed the fard- beyan. At this stage, learned counsel has also referred the deposition given by PW 7, Sipato Devi, who is mother of the deceased. It is submitted that the said witness has specifically stated in paragraph 7 of the cross-examination that her son said something at the place of occurrence and thereafter he became Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 6/20 unconscious. At this stage, it is submitted that thereafter when the said injured informant regained consciousness, it is not stated by any of the prosecution witnesses.
5.1 Learned counsel for the appellants thereafter submits that the informant has stated in the fard-beyan that when he sustained gun shot injury, he cried and thereafter his brother Chhitani and other persons from nearby came to the place of occurrence. It is submitted that PW 4, Chhitani Sah, has also stated that after he reached to the place of occurrence, 50 persons gathered at the place of occurrence. However, both the aforesaid persons have not stated that their other family members also came to the place of occurrence. Thus, learned counsel submits that though independent witnesses gathered at the place of occurrence, the prosecution has intentionally not examined the independent witnesses and only near relations of the deceased were produced before the court as prosecution witnesses. He also submitted that the murder weapon, i.e., the country-made pistol, was also not recovered. The Investigating Officer has not collected blood stained soil from the place of occurrence nor the blood stained clothes of the deceased were seized by the Investigating Officer. It is also submitted that, as per the version of PW 4 (brother of the deceased), place of occurrence is the orchard of one Nathuni Singh Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 7/20 and that too near sesame tree. However, as per the deposition given by the Investigating Officer, place of occurrence is a foot- way near the field of Butan Singh and also near the barbed wire fencing. He has also submitted that the police officer, namely, Bismillah Khan, who has recorded the fard-beyan of the informant, has also not been examined by the prosecution. Learned counsel for the appellants, therefore, urged that the prosecution has failed to prove the case against the appellants beyond reasonable doubt despite that the trial court has passed the impugned judgment and order, which deserves to be quashed and set aside.
6. Learned Additional Public Prosecutor has opposed the appeal and has submitted that the injured himself has given the fard-beyan before the police when he was admitted in the Sadar Hospital, Ara. The version given by the informant is supported by the other prosecution witnesses who reached at the place of occurrence immediately after the occurrence took place. It has further been submitted that the medical evidence also supports the version of the informant and, therefore, when the prosecution has proved the case against the appellants beyond reasonable doubt, the trial court has not committed any error while passing the impugned order. Learned Additional Public Prosecutor has, therefore, urged that the present appeal may be dismissed. Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 8/20
7. We have considered the submissions canvassed by learned counsel appearing for the parties and also perused the materials placed on record including the evidence led by the prosecution before the trial court. It would emerge from the record that PW 1, Ram Awadhesh Singh, PW 2, Nathuni Singh, PW 5, Sudarshan Sah and PW 6, Rahul Kumar @ Mangal, have not supported the case of prosecution and they have turned hostile.
8. PW 3, Muni Kunwar, has stated in her examination-in-chief that the occurrence took place three years and ten days ago at about 10:00 AM. She was at her home at the relevant time. On hearing the sound of fire, she rushed to the bathan (outhouse) of Nathuni Singh, when she heard that Chhotu has shot Lallan Sah and Lallan Sah has died. When she reached there, she saw that bullet hit on his back and exit from his chest. Lallan was conscious and told that Chhotu shot him on being exhorted by Ram Lal Singh to shoot him as he is alone. She further deposed that Lallan Sah was brought to Sadar Hospital, Ara. Police arrived there and took the statement of Lallan Sah. Lallan Sah was sent to PMCH, Patna. He died in the way near Koilwar.
9. PW 4, Chhitani Sah, is the elder brother of the deceased, who has deposed in his examination-in-chief that the occurrence took place three years ago at about 9:00 AM. He was at Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 9/20 his doorstep at the relevant time. He heard the sound of gun shot. He rushed to the orchard of Nathuni Singh, where he saw that Lallan Sah was lying. He was shot in his back and the bullet got out from his chest. Blood was oozing out. Lallan Sah told him that Chhotu shot him on being exhorted by Ram Lal Singh. He saw Ram Lal Singh and Chhotu Singh running towards south with the weapon. PW 4, Sanjay and one more person brought Lallan Sah to Sadar Hospital, Ara. Darogaji took statement of Lallan Sah in his presence. Lallan Sah put his signature on the statement in his presence. PW 4 put his thumb impression on it. Doctor told him to take Lallan Sah to PMCH, Patna. He was accordingly being taken to Patna. However, on reaching Koilwar, Lallan Sah died. His dead body was again brought to Sadar Hospital, Ara. Since, there was strike of Doctors, his post mortem was done on the third day. He has further deposed that on hearing the sound of fire, he ran towards that direction shouting aloud. When he reached at the orchard of Nathuni Singh, no one else was there. Thereafter, fifty persons gathered there. Lallan Sah was lying in the middle of the orchard near a sesame tree. He was lying straight. Lallan was conscious at that time. When Lallan Sah told about the occurrence, fifty persons of the village were there. He did not see chowkidar at that time. He took him to Sadar Hospital. One cot was brought by Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 10/20 his son Sanjay Sah. He and his son Sanjay Sah carried the cot to Keshopur and, from there, he was brought to Sadar Hospital, Ara by tempo. There was too much blood spread near the sesame tree in the orchard of Nathuni Singh, where Lallan Sah was lying. When he took him to hospital, he met Darogaji of Barhara Police Station on the way. Darogaji took the statement of Lallan on the way. Lallan Sah put his signature on his statement in Sadar Hospital, Ara. Darogaji did not take signature of Lallan Sah on the way. Darogaji has not taken his statement with regard to the occurrence. He has taken the statement of Lallan. He cannot say that the Doctor, who treated Lallan Sah at Sadar hospital, has given his statement. He also remained with Lallan in Sadar Hospital till he was there. Wife of Lallan was also in the hospital.
10. PW 7, Sipato Devi, who is mother of the deceased, has deposed in her examination-in-chief that Lallan Sah was her son. She was at her home at 9 AM when the occurrence took place. Her daughters-in-law were also at home. She and her daughters-in-law went to the place of occurrence. When she reached the orchard, on seeing her son injured, she fell on him. Her son was lying near the roots of the sesame tree. He was lying by his side. He told everything and became unconscious. At that time, no other person of the village was there except them. Her son Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 11/20 was wearing dhoti-kurta. Blood was there on his clothings. Lallan was sent to hospital by the vehicle of Mukhiyaji. Darogaji visited on the day of occurrence itself. She told Darogaji that he died while being taken to Patna from Sadar Hospital, Ara.
11. PW 8, Prabhawati Devi, has in her examination-in-chief deposed that Lallan Sah was his Devar (brother of her husband). Lallan Sah was killed by gun shot. The occurrence took place at 9:00 AM nearly three years two months ago. She was at her home. She heard that Lallan Sah has been shot. Then she reached at the doorstep of Nathuni Singh, where she saw that Lallan Sah was shot and soaked in blood and took him to Sadar Hospital, Ara. On the date of occurrence, some boys shouted that Lallan has been shot. One girl Kusum told that, she, wife of Hiraman, some more gotni (sisters-in-law) and her mother-in-law took Lallan Sah to Ara Hospital. Lallan was brought to Ara hospital on a cot by Ramu Sah, Chhitani and two more persons of the village. After statement of Lallan Sah was recorded, he was taken to Patna for treatment by Chhitani Sah and the female members returned home. Lallan died on the way to Patna for treatment.
12. PW 9, Ramawati Devi, who is the niece of the deceased, has in her examination-in-chief deposed that at 9:00 Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 12/20 AM, she heard the sound of fire and on hearing it, she rushed to the orchard of Nathuni Singh where Lallan Sah was lying with bullet injury. She came to know that Chhotu has shot him on being exhorted by Ramkhelawan. She had deposed that six months ago, Chhotu Singh asked Sanjay Sah to bring cow dung cake (goitha), then Sanjay said that he is not well, upon which Chhotu Singh manhandled Sanjay. Deceased Lallan Sah and his brother Diwani Sah went to Chhotu Singh's place to complain about the incident, upon which Chhotu Singh threatened him with dire consequences. She has deposed that upon hearing the sound, she felt that a gun shot has been fired.
12.1. In her cross-examination, PW 9 stated that one girl Radhekusum shouted that Lallan has sustained bullet injury. Radhekusum shouted that Lallan is lying in the orchard. Before they reached the orchard, some persons of the village had reached there. She again said that before they reached, the accused persons had fled away and no other person of village had reached before them at the place of occurrence. She has deposed that her uncle was lying in the north side of the orchard by his face. Blood was spilled over the earth in the radius of 2-4 feet. Chhitani and Sanjay carried the cot. No female member accompanied Lallan Sah. Darogaji visited on the date of occurrence at about 12 noon. Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 13/20 Darogaji enquired from her at her house and he has not taken statement of any other person of the village. Nathuni Singh is witness in this case. She denied the suggestion that she is giving false deposition since the deceased was her uncle.
13. PW 10, Sanjay Sah, who is nephew of the deceased, has in his examination-in-chief deposed that the occurrence had taken place at about two years three months ago. At 9:00 AM, he was at his home. He heard a sound of fire and upon hearing the same, he reached to the orchard of Nathuni Singh, where he saw that the shot has hit in the chest of his uncle Lallan Sah. His uncle said that Ramlal Singh exhorted and Chhotu shot him. He was taken to hospital in an injured condition. Police arrived at Sadar Hospital and took statement of his uncle. Doctor referred him to Patna, he died on the way, whereafter they all returned to Sadar Hospital. He also deposed that Chhotu Singh asked Sanjay Sah to bring cow dung cake (goitha), then Sanjay said that he is not well, upon which Chhotu Singh manhandled Sanjay.
13.1. In his cross-examination, PW 10 stated that, at the time of occurrence, he was sitting at his doorstep with Vikki and Nanhku. The sound of fire came from east. Upon hearing the same, he along with 10-20 persons rushed there. One Ranjeet, son Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 14/20 of Phukan, told him that firing has taken place in the orchard. Orchard is nearly one mile from his house. They reached to the orchard in five minutes time. Orchard was of Nathuni Singh. There were 4-5 hundred trees in that dense orchard. His uncle was lying in the north side of the orchard, where there was no tree. He was lying flat. Too much blood was spilled on the earth. He was not unconscious. He, his uncle Bachcha, Anil and Prem lifted him up. Anil and Prem are not witnesses. All female members of his family were there. No other male or female of the village were there.
14. PW 11, Dr. Madan Kumar Pandey, the Medical Officer, who conducted the post mortem examination on 09.02.2008 at 12:45 PM of the dead body of Lallan Sah (deceased), had found following ante mortem and post mortem injuries:-
"(A) One lacerated wound obliquely directed with margin stained-inverted, over back of chest right side 1" away from mid-line at the level of T-12 vertebra 1/2" x 1/8" x cavity deep-wounded entry.
(B) Lacerated wound over right side of chest enteriorly with margin everted over with intercoastal space - 2" away from mid line 1" x 1"
cavity deep-exit wound."
14.1. On the basis of these injuries, PW 11 has found entry wound as injury no.1 and exit wound as injury no.2, which is Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 15/20 communicating injury of injury no.1. Colour of injury has not been written as there was no mark of bleeding, charring nor burning. Only margin was found stained. He has opined that if fire is made from close range, charring or blackening may appear. This is not a case of close range firing.
15. PW 12, Raj Kumar Pandey, is the Investigating Officer of the case. He has deposed in his examination-in-chief that the place of occurrence is the footway (pagdandi) in the southern portion of the land of Butan Singh where barbed wire fencing is there. When deceased tried to escape, he got tangled in the barbed wire and fell down. He found blood there. He has deposed that he has taken fard-beyan of Chittani Sah and received the inquest report of Lallan Sah. He did not collect the blood stained soil from the place of occurrence. The family members of the deceased have not given blood stained clothes of the deceased to him. He got the information about the said occurrence from the fard-beyan of the deceased. Neither the village Chowkidar nor the family members of the deceased informed him. He had taken the statement of elder grand-daughter of the informant. He has deposed that witness Ramawati has not said in her statement that when she went to the orchard after hearing the sound of fire, she saw Lallan Sah lying.
Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 16/20
16. We have re-appreciated the entire evidence led by the prosecution before the trial court. It would emerge from the record that PW 1, PW 2, PW 5 and PW 6 have not supported the case of the prosecution and they have turned hostile. It further transpires that, as per the case of the prosecution, fard-beyan of injured Lallan Sah was recorded by the police officer Bismillah Khan. However, the said police officer has not been examined by the prosecution. Fard-beyan of the informant Lallan Sah was recorded at male surgical ward of Sadar Hospital, Ara. As per his fard-beyan, after the incident in question took place, on his shouting, his brother Chhitani and other persons of the vicinity reached at the place of occurrence in question. Thus, from the aforesaid fard-beyan, it is revealed that there is no eye-witness to the occurrence in question. Therefore, the case of the prosecution rests on the information given by the informant Lallan Sah who subsequently died on the way when he was being taken to PMCH, Patna. It would emerge from the record that the police officer, who has recorded the fard-beyan of the informant did not obtain the endorsement of the Doctor that the patient was conscious and was in a position to give his statement. At this stage, it is relevant to note that, as per the case of the prosecution, fard-beyan of the informant was taken when he was in male surgical ward of Sadar Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 17/20 Hospital, Ara. Therefore, the presence of the Doctor at the said place could be natural. However, endorsement of the Doctor was not taken on the fard-beyan. Further, the prosecution has also failed to produce the papers of medical treatment given to the informant (deceased) when he was in male surgical ward, Sadar Hospital, Ara.
16.1. There are major contradictions and inconsistencies in the depositions given by the prosecution witnesses also. As per PW 7, Sipato Devi, who is mother of the deceased, her son said something at the place of occurrence and thereafter he became unconscious. She has said so in paragraph 7 of the cross-examination. It is relevant to note, at this stage, that none of the prosecution witnesses has stated when the informant regained consciousness. It further transpires from the deposition given by PW 4, Chhitani Sah, who is brother of the deceased, fard- beyan of Lallan Sah was recorded by Darogaji while injured was on way to the Sadar Hospital, Ara and after reaching the hospital, Lallan Sah signed the fard-beyan. Thus, the aforesaid major inconsistencies in the version given by the prosecution witnesses are there though it is a case of the prosecution that the injured informant himself has given the information to the police about the manner in which the occurrence took place. The said theory of the Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 18/20 prosecution is not required to be believed looking into the evidence produced by the prosecution before the trial court.
16.2. It would further reveal from the deposition given by the IO that he did not collect the blood stained soil from the place of occurrence nor the blood stained clothes of the deceased were seized by him. Further, as per the version of PW 4 (brother of the deceased), place of occurrence is the orchard of one Nathuni Singh and that too near sesame tree. However, as per the deposition given by the IO, place of occurrence is footway near the field of Butan Singh and also near barbed wire fencing. Thus, there is discrepancy in the place of occurrence also.
16.3. At this stage, it is also relevant to note that the murder weapon, i.e., the country-made pistol, was not recovered or discovered by the investigation agency. Even the independent witnesses gathered at the place of occurrence were not examined by the prosecution and only near relatives of the deceased were produced before the court as prosecution witnesses. It is also relevant to note that PW 9, Ramawati Devi, who is a niece of the deceased, stated that one girl Radhekusum shouted that Lallan has sustained bullet injury and she has also shouted that Lallan is lying in the orchard. The said girl was not examined by the prosecution. Similarly, PW 10, Sanjay Sah, has also admitted in the cross- Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 19/20 examination that when he was sitting at his door with Vikki and Nanhku, the sound of fire came from east when he along with 10- 20 persons rushed to the place, one Ranjit, son of Phukan told him that firing had taken place in the orchard. However, said Vikki and Nanhku as well as Ranjit have not been examined by the prosecution.
17. In view of the aforesaid discussion, we are of the view that the prosecution has failed to prove the case against the appellants-convicts beyond reasonable doubt, despite which the trial court has recorded the judgment of conviction and the order of sentence. Hence, the same are required to be quashed and set aside.
18. Accordingly, the judgment of conviction dated 23.08.2012 and the order of sentence dated 28.08.2012 passed by learned Additional Sessions Judge-III, Ara, Bhojpur, in Sessions Trial No. 295 of 2009 arising out of Barhara P.S. Case No. 24 of 2008 are quashed and set aside.
19. Both the appellants are acquitted of the charges levelled against them by the learned trial court. The appellant No. 1, namely, Ram Lal Singh, is on bail. He is discharged from the liabilities of his bail bond and sureties, if any. The appellant No. 2, Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 20/20 namely, Chhote Singh, is in jail. He is directed to be released forthwith, if not required in any other case.
20. The appeal stands allowed.
(Vipul M. Pancholi, J) (Sunil Dutta Mishra, J) Pawan/-
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