Patna High Court
Santosh Lal @ Santosh Kumar Sinha vs The State Of Bihar on 10 January, 2017
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh, Arun Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.502 of 2009
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Arising out of a common judgment of conviction dated 19.5.2009
and order of sentence dated 21.5.2009, passed in Sessions Trial No. 644
of 2007, arising out of Imamganj Police station Case No. 62 of 1991, by
Sri Ram Shankar Singh, learned Additional Sessions Judge cum FTC-I,
Gaya
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Santosh Lal @ Santosh Kumar Sinha .... .... Appellant
with
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Criminal Appeal (DB) No. 509 of 2009
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Arun Kumar Modi @ Munna Seth .... .... Appellant
Versus
The State of Bihar .... .... Respondent in both cases
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Appearance :
(In CR. APP (DB) No. 502 of 2009)
For the Appellant : Mr. Gauranga Chatterjee, Advocate
Mr. Ashok Kumar, Advocate and
Mr. Ravi Kumar, Advocate
For the State : Mr. A K Sinha, APP
For the informant : Mr. AK Thakur, Advocate,
Md.Imteyaz Ahmad, Advocate &
Mr. Shashank Shekhar, Advocate
(In CR. APP (DB) No. 509 of 2009)
For the Appellant : Mr. Akhileshwar Prasad Singh, Sr. Advocate
For the State : Mr. A.K.Sinha, APP
For the informant : Mr. AK Thakur, Advocate,
Md.Imteyaz Ahmad, Advocate &
Mr. Shashank Shekhar, Advocate
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CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP
SINGH
and
HONOURABLE MR. JUSTICE ARUN KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH)
Date: 10-01-2017
Both the appeals arise out of a common judgment of
conviction, dated 19.5.2009 and order of sentence, dated
Patna High Court CR. APP (DB) No.502 of 2009 dt.10-01-2017
2/17
21.5.2009, passed in Sessions Trial No. 644 of 2007, arising out of Imamganj Police station Case No. 62 of 1991, by Sri Ram Shankar Singh, learned Additional Sessions Judge cum FTC-I, Gaya.
2. The sole appellant Santosh Lal @ Santosh Kumar Sinha of Cr. Appeal (DB) No. 502 of 2009 has been convicted under sections 302/34 of the IPC as well as 27 of the Arms Act. For the offence under sections 302/34 of the IPC, he has been sentenced to undergo RI for life and for the offence under 27 Arms Act, he has been sentenced to undergo RI for five years. Both the sentences have been directed to run concurrently.
3. The sole appellant Arun Kumar Modi @ Munna Seth of Cr. Appeal (DB) No.509 of 2009 has been convicted under sections 302/34 of the IPC and has been sentenced to under go RI for life.
4. The prosecution case, as made out in the fard beyan of Ajay Kuamr Barnwal s/o Late Krishnalal Barnwal, resident of Raniganj, Police Station Imamganj, district Gaya recorded by Chaudhary Officer-in-charge of Imamganj Police Station on 23.7.1991 at 9.30 PM on the Dharmshala road bazaar, Raniganj, in short, is as follows:-
(a) The informant stated that on 23.7.1991, his brother Patna High Court CR. APP (DB) No.502 of 2009 dt.10-01-2017 3/17 Rajendra Lal Barnwal, aged 32 years, who stayed outside, had come to his shop at about 5.45 PM. After enquiring well beings of each other, the informant lowered the shutter of his cloth shop and started along with his brother via Dharmshala road, situated south side of his cloth shop.
(b) As soon as they reached the southern corner of the house of Srimahuri, one Anuji @ Anuj Pandey, s/o Late Gopal Pandey, resident of Tola Ganderia of Raniganj village and one Munna Seth s/o Sri Biswanath Prasad Modi @ Nishu Seth, also of village Raniganj came from the front and started scuffle with his brother. In the meantime, the appellant Santosh Lal s/o Sahendra Lal resident of Raniganj village reached from the sweetmeat shop of Arjun Sao, holding a pistol in his right hand. The aforesaid Santosh Lal after taking aim at his brother shot at him which hit the back portion of his head on account of which he fell instantly.
(c) On account of firing, there was a lot of commotion in the nearby bazaar area. Shopkeepers started pulling down their shutters. The accused fled from the lane just east to the place of occurrence. The informant too started raising hulla. Some of the shopkeepers namely, Arjun Sao, Sunil Chaudhary, Shankar Sah and others also came to the spot and witnessed the occurrence.
(d) The informant stated that in the year 1979, one Subodh Patna High Court CR. APP (DB) No.502 of 2009 dt.10-01-2017 4/17 Lal, elder brother of the appellant Santosh Lal was murdered in which his (informant) elder brother Lalu was made an accused.
The accused persons used to threaten that they too would kill one of his five brothers. Informant claims that the accused persons have killed his brother in vengeance.
5. On finding the fard beyan to be correct, the informant put his signature which was also signed by Sonu Lal and Basant Kumar Singh, both not examined. On the basis of fard beyan, Imamganj Police Station Case No. 62 of 1991 was instituted under sections 302/34 of the IPC and 27 of the Arms Act. On completion of the investigation, police submitted charge sheet under sections 302/34 of the IPC and 27 Arms Act against all the three accused persons, namely, (1) Santosh Lal (2) Arun Modi (3) Anil Sao and (4) Anujji Pandey. Learned Magistrate took cognizance of the offence under sections 302/34 of the IPC and 27 of the Arms Act. The case was committed to the court of sessions. However, before the charge was framed Anujee Pandey was killed and as such charges were framed only against the three persons under sections 302/34 of the IPC and 27 of the Arms Act to which they pleaded not guilty.
6. The defence did not examine any witness in support of its case nor adduced any documentary evidence. The case of the Patna High Court CR. APP (DB) No.502 of 2009 dt.10-01-2017 5/17 defence in their statements under section 313 of the Cr.P.C. was complete denial of the occurrence. The trial court on consideration of materials on record, while acquitting Anil Sao of the charges, convicted both the appellants, namely, Santosh Lal @ Santosh Kumar Sinha for offence under sections 302/34 of the IPC, as well as under 27 of the Arms Act. He was sentenced as noticed in the earlier paragraphs.
7. The prosecution, in order to substantiate its case, examined nine witnesses. Out of these nine witnesses, Ajay Kuamr Barnwal (PW 1) is the informant and the brother of the deceased. PW 2 Sunil Chaudhary is a co-villager. PW 3 (Mohan Lal Barnwal) is uncle of the deceased. PW 4 Gouri Shankar Poddar and PW 5 Shankar Sao are co-villagers. PW 6 Manjoo Halwai is the sweetmeat dealer, who had his shop close to the place of occurrence. PW 7 Arjun Prasad is also a neighbour of the informant. Out of these seven witnesses produced by the prosecution in support of the case, PWs. 2 to 7 have not supported the prosecution case and have been declared hostile. The I.O. Indramani Chaudhary was examined as PW 8, whereas one Dr. Arvind Prasad, who proved the post mortem report was examined as PW 9. The prosecution, apart from oral evidence, also produced the documents including the fard beyan, inquest report, post Patna High Court CR. APP (DB) No.502 of 2009 dt.10-01-2017 6/17 mortem repot as well as formal FIR.
8. We would first consider the evidence of PW 1 Ajay Kuamr Barnwal, who is informant and own brother of the deceased. He has fully supported the prosecution case in his evidence. He stated that the deceased Rajendra Prasad Barnwal @ Chunnulal was killed on 23.7.1991 at about 7 PM. At the relevant time, he (the informant) along with his brother (the deceased) were going to their old house after closing down the shutter of his shop. As soon as they reached southern corner of the house of one Mahuri, accused Anujee Pandey Pandey @ Anuj Pandey (now dead) and Arun Kumar Modi @ Munna Seth came and caught by twisting his hands in the back. In the meantime, appellant Santosh Lal came running from the sweetmeat shop of Arjun Sao. He was holding a pistol in his right hand. Accused Santosh Lal, after taking aim, shot at the back of the head of his brother from behind, who instantly fell and died. Accused Santosh Lal had suspicion that his brother Subodh Lal was murdered 10 to 12 years back at the hands of his (informant) elder brother Lallu and in order to take vengeance, the instant murder has committed. After the incident, police came to the place of occurrence, where his statement was recorded by the I.O. Indramani Chaudhary, Sub- inspector of Police, PW 8. After finding his statement to be true, Patna High Court CR. APP (DB) No.502 of 2009 dt.10-01-2017 7/17 he put his signature on the fard beyan which was also signed by Sonu Lal and Basant Kumar Singh. The informant proved his signature on the fard beyan which was marked as exhibit 1. He further stated in his evidence that at the time of occurrence, his family had shifted to Rourkela, being terrified by the accused persons, who threatened to kill them. He recognized accused Santosh Lal who was present in the Dock and claimed to recognize the other accused persons.
9. The prosecution has not examined PW 9 Dr. Arvind Prasad, who conducted the post mortem examination of the deceased as he was not traceable. The prosecution examined PW 8 Indramani Chaudhary, S.I., who inspected the place of occurrence and prepared the inquest report and also obtained the post mortem report. He being the I.O. of the case, took the statement of the informant and other witnesses. They stated that the informant's brother Rajendra Kumar Barnwal died on account of the fire arm injury inflicted on the head of the deceased.
10. Separate arguments have been adduced on behalf of the two appellants by their respective learned counsel. Mr. Akhileshwar Prasad Singh, learned Senior counsel appearing for the appellant Arun Kumar Modi @ Munna Seth of Cr. Appeal (DB) No. 509 of 2009 submits that there is no legal evidence Patna High Court CR. APP (DB) No.502 of 2009 dt.10-01-2017 8/17 against this appellant. Furthermore, the allegation of firing is against appellant Santosh Lal and no witness has stated that he (appellant Arun Kuamr Modi @ Munna Seth) was armed with any weapon. Besides this, he submits that on his petition, this Court vide order, dated 15.4.2015 had directed to make an enquiry regarding claim of the appellant Arun Kumar Modi, to be a juvenile on the date of occurrence. After enquiry, the Juvenile Justice Board, Gaya came to a finding that the appellant was a juvenile on the date of occurrence. He further submits that this Court vide order, dated 31.8.2015, agreeing with the report of the JJB, held the appellant Arun Kumar Modi to be a juvenile. On these premises, learned counsel submits that this appellant is entitled to be acquitted.
11. Mr. Gouranga Chatterjee, learned counsel appearing for the appellant Santosh Lal of Cr. Appeal (DB) No.501 of 2009 against whom the allegation is of firing and killing the deceased, assailing the impugned judgment, submits that the prosecution case is based on the solitary testimony of single witness, namely, Ajay Kumar Barnwal, PW 1, who is the informant of the case. As such, the Court may scan and scrutinize the evidence with utmost caution and circumspection. He next submits that there are vital infirmities and discrepancies in the statement of this witness, Patna High Court CR. APP (DB) No.502 of 2009 dt.10-01-2017 9/17 which does not inspire confidence and as such his evidence should be held unreliable. Learned counsel further submits that the prosecution has failed to establish the motive for the cause of occurrence as assigned in the FIR. Elaborating the submissions, learned counsel submits that though the occurrence took place at 7 PM in the Bazar, still the informant did not take any step to inform the police or take him to the hospital for treatment. He next submits that it is the prosecution's case that the deceased had come from outside and had gone to his brother's shop at about 5 PM. However, only Rs.2.30 was found in his pocket during the inquest which falsifies the informant's case that the deceased had come from outside. He submits that it is very improbable that any one who is coming from outside would be having only Rs.2.30 in the pocket. Besides this, none of the family members have been referred to in the FIR nor any one had arrived at the place of occurrence till 9.30 PM, when the statement of the informant was being recorded, which all also seems fishy. He next submits that the informant in his fard beyan as well as in his evidence stated that the deceased fell by his face on the ground, whereas the I.O. recorded in the inquest report and also stated in his deposition that the dead body of informant's brother was lying on his back (patt). He contended that as per the prosecution's case, two accused Patna High Court CR. APP (DB) No.502 of 2009 dt.10-01-2017 10/17 persons, namely, Anujee Pandey and Munna Seth @ Arun Modi had captured his brother by holding his hands back, whereafter, appellant Santosh Lal, after taking aim from the back from a distance of 2 to 4 steps, fired at the head of his brother. The post mortem report does not show that the deceased was shot at least from a distance of 2 to 4 steps. He submits that even the informant stated in his evidence that the deceased was shot by Santosh Lal from the distance of 2 to 4 steps which would be, roughly 3 to 6 feet. Learned counsel further submits that it would have been full of risk for a co-accused to fire upon the brother of informant from a distance of 3 to 6 feet without risking or endangering the life of other two accused who were scuffling with the informant's brother. Besides this, it would appear from the post mortem report that the projection of injury was slightly upwards, which belies the prosecution's case that the informant's brother was shot from a distance of merely 3 to 6 feet.
12. On the other hand, Mr. Ashwini Kumar Sinha, learned Additional Public Prosecutor appearing for the State as well as Mr. Ajay Kumar Thakur, learned counsel representing the informant submits that there are sufficient materials to establish the charge of guilt against both the appellants and as such the trial court has rightly convicted them. Learned counsels submit that Patna High Court CR. APP (DB) No.502 of 2009 dt.10-01-2017 11/17 there is no vital discrepancy in the evidence of witnesses which would cut at the root of the prosecution's case and discrepancy, if any, is minor, which is very much possible when someone is examined after nine years of witnessing the occurrence. Elaborating the submissions, learned counsels submit that no weightage is to be given to the defence on the ground that the informant neither carried his victim brother to the hospital for treatment nor did he inform the police about the occurrence. They further submit that it is the prosecution's case that on account of fire shot, his brother died on the spot and as such there could not have been any point, in taking him to the hospital. They next submit that as the informant was the only person from his family, present on the spot, where dead body was lying, he did not move from the place, awaiting and expecting arrival of the police anytime, as the place of occurrence was a market place. Furthermore, the submission of the defence that it is prosecution's case that the deceased after coming from Rourkela straight away went to his brother's shop, is misconceived. Learned counsel submits that there is no suggestion from the defence that the deceased had come to his brother's shop straight from the railway station. As such, the point raised by the defence does not carry much weight. They next submit that there is no contradiction in Patna High Court CR. APP (DB) No.502 of 2009 dt.10-01-2017 12/17 the statement of informant that on receiving the gun shot, his brother fell on the ground by the face and the police who found the dead body lying on its back. They explain that it is quite possible on account of haemorrhage and shock, his body might have tilted sideways.
13. We have already heard learned counsel for the parties and perused the materials on record.
14. The prosecution's case is that in the evening of 23.7.1991, the informant's brother Rajendra Lal Barnwal @ Chunnulal was shot dead in Dharmshala road in the Raniganj Bazar. The defence has neither disputed the place of occurrence nor the death of informant's brother on account of fire arms injury on the back of his head. However, the appellants have disputed their involvement and the manner of occurrence. It is not in dispute that the informant is the only eye witness of the occurrence and some of the witnesses have corroborated the prosecution's case, whereas majority of the witnesses i.e. PWs 2 to 7 have been declared hostile. The informant, in his fard beyan, has stated that his brother who was staying outside and had come to his cloth shop at about 5 PM and after exchanging pleasantries, both of them were returning to their old house via south Darmshala road. On way, as soon as they reached near the Patna High Court CR. APP (DB) No.502 of 2009 dt.10-01-2017 13/17 southern corner of the house of one Mahuri, Anujee Pandey (now dead) and Arun Kumar Modi came from the front and entered into scuffle with his brother. In the meantime, appellant Santosh Kumar Lal came running from the sweetmeat shop of Arjun Sao and after taking aim, fired at his brother, which hit back side head of informant's brother, who instantly fell and died.
15. Learned counsel for the appellants argued that the case of the prosecution that firing was made from a distance of 2 to 4 steps, which is equivalent to 3 to 6 feet, stands falsified as no charring marks was found near the wound on the person of the deceased. In our view, the submission is only to be noted to be rejected. The charring marks, resulting from fire arm injury, would depend upon the quality of arms from which firing was made. In the instant case, the firing is alleged to have been made from a pistol from a distance of 3 to 6 feet. Generally, there would be no charring marks if firing is made by a local pistol from a distance beyond 2 feet. As such, non presence of charring marks on deceased would be rather in consonance with the prosecution case.
16. It was further submission of appellant that it would not have been safe for Santosh Lal to fire from a distance of 3 to 6 feet without endangering the life of the other two accused, who were scuffling with the deceased. We find that the informant PW 1, in Patna High Court CR. APP (DB) No.502 of 2009 dt.10-01-2017 14/17 his evidence, has stated that other two accused had caught hold the hands of the deceased. Thereafter, appellant Santosh Lal fired at him from the back side from a distance of 3 to 6 feet and as the two accused persons, at the time of scuffle, were not standing in the same line, it was quite possible for the appellant Santosh Lal to open fire at the informant's brother without endangering the life of other accused persons. In the cross-examination also, PW 1 has stood his ground and supported the prosecution's case.
17. Besides this, in the cross-examination, the accused side has merely cross examined as to whether Anujee Pandey, at the time of scuffle, was standing left to Arun Kumar Modi or whether Arun Kumar Modi was standing left to Anujee Pandey. There is no suggestion that they were standing in the straight line, which would have been dangerous if appellant had fired. From the fard beyan also, it cannot be inferred that the two accused were in such a position which would have rendered Santosh Lal, difficult to fire at the deceased. As such, we do not find any substance in the submission of the learned counsel for the appellants that it was not possible for appellant Santosh Lal to fire from behind, putting his aides in danger.
18. Another argument of the appellants was that Raniganj area is a Naxal affected area and there was likelihood that Patna High Court CR. APP (DB) No.502 of 2009 dt.10-01-2017 15/17 naxalites might have killed informant's brother on failure to pay the levy. We find no chit of evidence to accept this argument. The other argument of the appellants that it would be unnatural for a brother not to inform the police regarding murder of his brother for two hours or not to carry him to the hospital for treatment, is too devoid of merit. We find from the fard beyan as well as from the evidence of the informant (PW 1) that the deceased soon after receiving fire shot at the head succumbed to the injury, and as such we would agree with the submission of the State and the informant that there could have been no point, in carrying him to the hospital for treatment as he died instantly on the spot. Furthermore, except for the informant, no other family member of the deceased was present with the corpse, as such, there was all probability that police would reach the place of occurrence as it was a market place. As such, the conduct of the informant in staying near the corpse of his brother and not going to the police station cannot be said to be unnatural, when the police in fact arrived after two hours.
19. Furthermore, the informant in his fard beyan, has stated that on account of threatening given by the accused persons, he along with other family members including the family of his assassinated brother Lallu, had shifted to Rourkela. At the relevant Patna High Court CR. APP (DB) No.502 of 2009 dt.10-01-2017 16/17 time, only two sons of his brother Lallu and his sister were staying in the old house and as such no adult member of the family was at the place of occurrence. We further find that though the informant was extensively cross examined, the defence was not able to elicit any contradiction worth the name to discredit his evidence. The discrepancy, in any manner, has not touched the core of the prosecution's case.
20. So far as the appellant Arun Kumar Modi is concerned, this Court vide order, dated 31.1.2013, has held him to be a juvenile on the date of occurrence i.e. 23.7.1991. The case is of the year 1991 and more than 25 years have elapsed. As such, no useful purpose would be served in remitting the matter to the Juvenile Justice Board for enquiry and disposal. This appellant has also remained in detention for quite sometime, as such, in the ends of justice, we set aside his conviction and sentence. Since the appellant Arun Kumar Modi is already on bail, he is discharged from the liability of the bail bonds. Cr. Appeal (DB) 509 of 2009 is thus allowed.
21. The case of the other appellant Santosh Lal @ Santosh Kr. Sinha is different as he was an adult at the relevant time. It is well settled that the conviction can be maintained even on the testimony of a single eye witness, if the same inspires confidence. Patna High Court CR. APP (DB) No.502 of 2009 dt.10-01-2017 17/17 We find that the informant has fully corroborated the prosecution's case set out in its fard beyan. The informant both in his fard beyan as well as in his evidence stated that it was the appellant Santosh Lal @ Santosh Kumar Sinha, who shot at the back of head of his brother, causing his death. As such, we find that the prosecution has been able to bring home the charge levelled against this appellant beyond all reasonable doubts. Cr. Appeal (DB) No.502 of 2009 fails. The appellant Santosh Lal @ Santosh Kumar Sinha has remained in custody for more than 8 years and will so remain in custody to serve out the remaining part of the sentence.
(Samarendra Pratap Singh, J) (Arun Kumar, J) Shashi.
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