Patna High Court
Serajuddin @ Bachha Khan vs State Of Bihar on 11 November, 2017
Author: Vinod Kumar Sinha
Bench: Ajay Kumar Tripathi, Vinod Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.175 of 1994
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Serajuddin @ Bachha Khan
.... .... Appellant/s
Versus
State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Rampravesh Nath Tiwary, Advocate
Mr. Abul Kalam, Advocate
Mr. Sanjay Kumar Sinha, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
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CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI
and
HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA)
Date: 11-11-2017
This appeal has been preferred by the appellant against the
judgment dated 22.02.1994 and order of sentence dated 26.02.1994
passed by Sri Tarkeshwar Prasad Singh, 3rd Additional Sessions
Judge, Chapra, in S.T. No. 18/93, whereby the appellant was
convicted for the offence punishable under Sections 302 of the Indian
Penal Code and was sentenced to undergo rigorous imprisonment for
life.
2. Brief facts of the case are that while the informant and his
mother was at home, appellant came armed with double barrel gun
and fired on the mother of the informant due to which she died.
3. On the basis of above, a case being Taraiya P.S. Case No. 27 of
92 was registered against the appellant under Section 302 of Indian
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Penal Code. Police after investigation submitted charge-sheet against
the appellant under Section 302 of the Indian Penal Code and
cognizance of the offence was taken. Thereafter, the case was
committed to the court of sessions, which ultimately traveled to the
file of Sri Tarkeshwark Prasad Singh, learned 3rd Additional
Sessions Judge, Chapra, for trial and disposal.
4. Learned Trial Court after conclusion of trial convicted the
appellant under Section 302 of Indian Penal Code and sentenced him
to undergo rigorous imprisonment for life.
5. Aggrieved by the said judgment, the appellant preferred the
present appeal.
6. Learned counsel for the appellant has assailed the judgment of
trial court and submitted that the appellant has falsely been implicated
in this case at the instance of informant as he used to suspect that
there was love affair between his wife and the appellant, which will
appear from the evidence of D.W. 1, who had stated in his evidence
that the appellant used to visit the house of the informant. Further
submission that almost all the witnesses of the prosecution side are
interested witnesses as they all were members of one family and
further there is no independent eye witness to prove the occurrence,
though occurrence took place in broad daylight. It has also been
submitted that the Medical report is contradictory to the established
principle of Medical Jurisprudence as wound of exit is smaller in size
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than the wound of entry.
7. Learned counsel for the State, on the other hand, has countered
the submission of learned counsel for the appellant and submitted that
there is direct allegation against the petitioner of firing on the
deceased causing her death, which has been substantiated by the
evidence of P.W. 2, P.W. 3, P.W. 5 and P.W. 6. Further other
witnesses had also seen the appellant fleeing away from the place of
occurrence with a double barrel gun. It has also been submitted that
the above evidence of witnesses found further corroboration from the
medical evidence, in which cause of death has been ascertained due to
gunshot injury. Learned counsel for the State further submitted that
the motive behind the occurrence is also apparent as some days prior
to the occurrence deceased had asked the appellant either to pay back
her money or execute a sale deed, on which the appellant had become
angry and had threatened her.
8. From perusal of material available on record, it appears that
P.W. 5 is the informant in this case and he has stated in his chief that
at about 4.30 to 5.00 am in the morning he was tying ox near his
darwaza and her mother was sitting in a chowki on darwaza, the
appellant came armed with double barrel gun and he fired on his
mother and fled away. Her mother fell on the ground and died. He has
also stated in his evidence that his wife (P.W. 2) Jhagru Pandit (P.W.
3) and Lalmuni Devi (P.W. 6) had seen the occurrence. His evidence
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also shows that Jalandhar Pandit (P.W. 4) was also sleeping there.
According to him motive of the occurrence is that appellant has taken
Rs. 3,000/- from his mother and given 3 katha of land in mortgage and
his mother has asked the appellant either to execute the sale deed in
her favour or pay back the money. The aforesaid evidence of P.W. 5
has been corroborated by the fardbeyan, the earliest version of the
prosecution in toto. This witness has been cross examined also at
length and even in his cross examination he has stated that the gun
carried by the appellant was a double barrel gun but there is nothing in
his cross-examination to doubt the veracity of testimony of this
witness rather his evidence has been corroborated by the evidence of
P.W. 2 who is the wife of the deceased as well as P.W. 3 and P.W. 6,l
who are the uncle and aunt of the informant and they have been
named in the F.I.R also as a witness in this case.
9. Learned counsel for appellant has come with the defence that
he has relationship with P.W. 2 and due to that P.W. 5 being her
husband was annoyed as such he has named the appellant in this case.,
However, the evidence of P.W. 2 shows that while she was washing
the utensils the appellant came and fired on the deceased and she had
seen on her own eyes appellant firing on the deceased. She has also
supported the motive behind the occurrence in her evidence in chief in
para -1 and 2 of her chief. This witness has also been cross examined
and she has also stated in her cross-examination that her mother in
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law fell on the darwaza after receiving injuries and she died. This
witness has been cross-examined at length and her evidence does not
show that she is not eye witness of the occurrence. She has also been
cross-examined and she has stated that in spite of her marriage of
eight years, she had no issue and the appellant is known to her for last
eight years. He is unmarried and he used to come in her house for last
eight years. Her evidence further shows that appellant is father in law
in relation. No doubt her evidence in para -4 also shows that her
husband asked the appellant not to come six months prior but there is
nothing in cross examination to show that there was any intimacy
between her and the appellant or she had any soft corner for the
appellant. On the other hand, it clearly appears that she is an eye
witness and supported the prosecution case.
10 P.W. 3 and 6 are the uncle and aunt of the informant and P.W. 3
has stated that he was standing on his darwaza from where darwaza of
the informant was visible and the appellant came and fired on the
deceased and after firing he fled away, thereafter, he had gone near
the deceased, who died after two minutes and in spite of cross
examination of this witness, there is nothing to show that he is not an
eye witness of the occurrence and even no suggestion has been given
that he has not seen the occurrence.
11. P.W. 6 has also stated in her evidence that the darwaza of the
informant is visible from her darzawa and she saw that appellant came
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with a rifle and fired on the deceased and fled away. Even in her cross
examination that she has stated that firing was made from a distance
of two to two and half hands and the deceased fell there. No
suggestion has been given to this witness to show that she is not an
eye witness of the occurrence.
12. P.W. 4 is the brother of informant and he has also stated that on
hearing the sound of firing, he woke up and saw the appellant fleeing
from there. His evidence also shows that he was sleeping at darwza of
the informant, which has been corroborated by the F.I.R also and in
spite of cross-examination, his evidence appears to be impeccable.
P.W. 1, P.W. 7 had also stated that on the sound of firing they saw the
appellant fleeing away from the place of occurrence, carrying double
barrel gun. The evidence of I.O. in para -9 also shows that to the west
from the house of the informant, there is house of Jhagru Pandit (P.W.
3) of east facing and house of P.W. 1 Khaderan Pandit, which is of
west facing as such, it appears that P.W. 1, 3 and 6 are the close
neighbours of the informant and their presence is quite natural.
13. Aforesaid oral evidence, which is impeccable in character has
been supported by the evidence of P.W. -11 Doctor Arvind Kumar
Gupta, who has found one lacerated would about ¾" X ½" in oval in
the neck, black tattooing around the wound, the wound was passing
downward and backward, blood vessels of right side of neck lacerated
at the root of neck. This was the wound of entry. His evidence also
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shows that one lacerated wound about ½"x ¼" in middle of right side
of back was found, this was the wound of exit. One foreign body was
found at the wound, taken out and sealed. His evidence further shows
that cause of death in his opinion was haemorrhage and shock and
damage of right lung caused by the injuries above mentioned, which
were fire arm pellet injuries.
14. It further appears that two witnesses namely Ramlal Rai,
Jamadar Singh, has been examined as court witness and Ramlal Rai
proved his signature over the seizure list and also his signature over
the fardbeyan and this witness claims to be the eye witness of the
occurrence but he has stated in cross examination by prosecution that
appellant was not present there and the informant has told him that the
firing was accidental and the informant has also stated so before the
police. However, this witness admitted his signature on fardbeyan,
which clearly shows that it is the appellant, who fired on the deceased.
As such it appears that this witness is supporting the real facts. C.W.
- 2 is the reader in the inspector's office and he has proved the part of
case diary.
15. On discussions of the oral evidence as well as medical
evidence, it clearly appears that witnesses have supported the
prosecution case so far manner of occurrence is concerned and the
same has been corroborated by the medical evidence.
16. So far submission of learned counsel for the appellant that all
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the witnesses are interested and related witnesses and no independent
witness was examined, though, the occurrence took place in midst of
the village, the evidence shows that it was dawn hour and the
evidence as discussed above also shows the presence of all the
witnesses, quite natural as they are neighbour. It further appears that
occurrence took place between 5.00 to 6.00 A.M. in the morning at
the Darwaza of the informant, as such; presence of the villagers may
not be possible at an early hour. It is also well established that the
evidence of the prosecution cannot be brushed aside only on the
ground that they are interested or related witnesses rather the evidence
of those witnesses require close scrutiny and in the present case, as
discussed above, there is nothing in their evidence to doubt their
presence at the place of occurrence or to discredit their testimony or to
show that they are not eye witness of the occurrence. Rather their
evidence has been corroborated by the evidence of doctor P.W. 11. In
this case appellant is sole accused and P.Ws 2, 3, 5 and 6, no doubt
are related witness but merely because they are related, they do not
become unreliable witnesses.
17. A submission has also been advanced that evidence of doctor
clearly shows that wound of exit is smaller than the wound of entry
and that falsifies the prosecution case as medical jurisprudence shows
that the wound of exit generally is larger than the wound of entry and
the doctor has also stated so in his evidence in para -5. However, in
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our opinion, where there is ample oral evidence available on record to
show that the appellant has fired from close range, causing death of
the deceased, prosecution case cannot be thrown out on the above
ground especially on the fact that the pellet was also recovered from
the body. It further appears that the gun was produced as material ext.
1 in the court and the verification report of the gun has also been
brought on record in this case, which shows that the gun was 12 bore
Indian Made hammered DBBL gun, it is in working order and
effective, the barrels of Ext. was examined chemically as a result of
chemical analysis, fire arm discharged residues were detected in both
the barrels indicating sign of previous firing.
18. On behalf of defence one witness has been examined, who has
proved that one Dindayal Rai has lodged a case against Lalji Rai and
other and he has proved the signature of Advocate over the complaint
lodged by him as Ext. A. His evidence has been brought to show that
some of the witnesses are at inimical terms but that is not sufficient to
hold the consistent evidence of P.W. 2, 3, 5 and 6, untrustworthy.
19. Considering the entire discussions made above, it appears that
prosecution case has been supported by the P.W. 2, 3, 5 and 6, who
are eye witness of the occurrence and the aforesaid evidence has been
corroborated by the medical evidence. It further appears that DBBL
gun has also been seized on the same day, which is Ext. 6 by the
police and sent for chemical examination to the F.S.L, in which it was
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found effective and was recently used, hence, there are sufficient
cogent, reliable and impeccable evidence available to show that
appellant fired on the deceased causing her death and defence taken
by the appellant does not appear to be convincing, as such, conviction
of the appellant under Section 302 of Indian penal code appears to be
just and proper and does not require any interference.
20. Accordingly this appeal is dismissed. Judgment dated
22.02.1994and order of sentence dated 26.02.1994 passed by Sri Tarkeshwar Prasad Singh, 3rd Additional Sessions Judge, Chapra, in S.T. No. 18/93 and the same is, hereby, affirmed
21. As the appellant is on bail, his bail bond is cancelled and he is directed to be taken into custody to face the remaining sentence.
(Ajay Kumar Tripathi, J) (Vinod Kumar Sinha, J) sunil/-
AFR/NAFR AFR CAV DATE N/A
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