Rama Shanker Dubey vs State Of Bihar
2021 Latest Caselaw 6186 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (DB) No.7 of 1996
======================================================

1. Ram Kishun Dubey, son of Late Sukhdeo Dubey

2. Vijay Bahadur Dubey, son of Muradu Dubey Both are residents of Village-Sehan, P.S.-Chand, District-Bhabhua

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 54 of 1996 ====================================================== Rama Shanker Dubey, son of Late Ram Suner Dubey, resident of Village- Sehan, P.S.-Chand, District-Kaimur

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 7 of 1996) For the Appellant/s : Mr. Prince Kumar Mishra, Amicus Curiae Mr. Rajesh Kumar, Advocate Mr. Vinod Kumar Seth, Advocate For the Informant : Mr. Rajesh Kumar Singh, Sr. Advocate For the State : Mr. S.N.Prasad, APP (In CRIMINAL APPEAL (DB) No. 54 of 1996) For the Appellant/s : Mr. Prince Kumar Mishra, Amicus Curiae Mr. Baxi S.R.P Sinha, Sr. Advocate Mr. Rajni Kant Pandey, Advocate For the Informant : Mr. Rajesh Kumar Singh, Sr. Advocate For the State : Mr. D.K. Sinha, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR And HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR)

Date : 16-12-2021

Heard the parties.

2. It would be relevant to mention here that Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

vide order dated 09.12.2021, Cr. Appeal(DB) No. 7 of

1996 stands abated in respect of appellant No. 2 namely

Vijay Bahadur Singh since appellant No. 2 has already

died. However, this appeal is proceeded in respect of

appellant No. 1 namely Ram Kishun Dubey.

3. The appellant Ram Kishun Dubey in Cr.

Appeal (DB) No. 7 of 1996 and appellant Rama Shanker

Dubey in Cr. Appeal (DB) No. 54 of 1996 have

challenged the judgment of conviction and order of

sentence dated 21st of December, 1995 passed by

learned 3rd Additional Sessions Judge, Kaimur at

Bhabhua in Sessions Trial No. 557/206 of 1993 arising

out of Chand P.S. Case No. 20 of 1993.

4. By the aforesaid judgment, the appellants

have been convicted for the offences punishable under

Sections 302/34 and 201 of the Indian Penal Code. The

appellant Rama Shankar Dubey was further convicted

under Section 27 of the Arms Act and appellant Ram

Kishun Dubey was also been convicted under Section Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

114 read with Section 302 of the Indian Penal Code.

5. After hearing the convicts on the point of

sentence, vide consequential order, the Trial Court

sentenced the appellants to undergo rigorous

imprisonment for life under Sections 302/34 and 201 of

the Indian Penal Code. It would be proper to mention

here that no separate sentence had been passed against

appellants Rama Shankar Dubey under Section 27 of the

Arms Act and Ram Kishun Dubey under Section 114

read with Section 302 of the Indian Penal Code.

6. The prosecution case recapitulated as

hereunder is based on the fardbeyan (Ext-5) as given by

Kesh Nath Dubey, the informant(P.W.-8) of Village-

Sehan, P.S.-Chand is to the effect that on 3 rd July, 1993,

the appellant Ram Kishun Dubey was constructing his

wall by encroaching over the land of the informant

(P.W.-8) and when the informant along with his father

namely Ram Surat Dubey(deceased) went to protest

against the construction of the said wall in the land of Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

the deceased, there appears to be a hot exchange of

words between appellant Ram Kishun Dubey and Ram

Surat Dubey (deceased). It is alleged that appellant Ram

Kishun Dubey called Rama Shankar Dubey (appellant)

and his nephew Vijay Bahadur Dubey (appellant) who

came with country made single barrel gun. Thereafter,

on the order of Ram Kishun Dueby (appellant), Rama

Shanker Dubey (appellant) fired from his pistol on Ram

Surat Dubey (deceased), as a result of which, he fell

down in the field and died. It is further alleged that Vijay

Bahadur Dubey (appellant) also chased the informant

Kesh Nath Dubey but he managed to flee away from the

place of occurrence and concealed himself in the house

of one Lalita Dubey. Thereafter, all the three accused

persons lifted the dead body of Ram Surat Dubey and

brought the dead body to the house of Vijay Bahadur

Dubey (appellant) where the dead body was concealed.

The informant also raised alarm but the villagers did not

turn up at the place of occurrence due to fear. However, Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

brother of the informant namely Shambhu Nath Dubey

(P.W.-7) came running at the place of occurrence. The

motive behind the occurrence is said to be the old

enmity with Ram Kishun Dubey (appellant).

7. Mr. R.K. Singh, S.I. of P.S.-Chand, on the

same day at about 20:30 P.M of Village-Sehan recorded

the fardbeyan of the informant Kesh Nath Dubey.

Thereafter, a formal F.I.R was recorded at Chand P.S

and investigation was accordingly initiated.

8. After completing the investigation, charge-

sheet has been submitted against all the three accused

persons after finding the case true against them.

Thereafter, the case was committed to the Court of

Sessions for trial and disposal. The charges were read

over and explained to the accused persons to which they

pleaded not guilty and claimed to be tried. Their defence

is that they have been falsely implicated in this case and

the murder did not take place in the manner as alleged

by the prosecution.

Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

9. To substantiate the charges levelled against

the accused persons, altogether nine witnesses have

been examined on behalf of the prosecution.

10. P.W.1 Sheo Pujan Pandey, P.W. 2 Ram

Ashray Paswan and P.W. 3 Ravindra Kumar Pandey are

the formal witnesses. P.W. 4 is Dr. Ranjeet Kumar who

has held the postmortem on the dead body of the

deceased. P.W. 5 Narad Prasad and P.W. 6 Janardan

Prasad Dwivedi claim to be the eye witnesses of the case

before the police but they had been declared hostile

before the Court. P.W. 9 Raj Kumar Singh is the

Investigating Officer of this case.

11. P.W. 7 Shambhu Nath Dubey claims to be

an eye witness of the occurrence in part and is also son

of the deceased. He has supported the prosecution

version that he was in his house when he heard two

shots of gun firing and when he came out from his house

he saw that the dead body of his father was being taken

to the house of Vijay Bahadur Dubey. The Investigating Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

Officer (P.W. 9) has also recovered the dead body of his

father from the house of Vijay Bahadur Dubey. This

witness supported this fact that the dead body of Ram

Surat Dubey had been taken by the accused persons

from the place of occurrence.

12. P.W. 8 Kesh Nath Dubey, the informant and

star witness of this case has stated about the place of

occurrence, manner of occurrence and time of

occurrence. He deposed that on 03.07.1993 at about

5:00 P.M, Ram Kishun Dubey was constructing a wall by

encroaching over his land, hence, his father Ram Surat

Dubey pushed to the wall, resulting in removal of few

stones block from the wall. In the meantime, Ram

Kishun Dubey called Rama Shankar Dubey and Vijay

Bahadur Dubey and told that Ram Surat Dubey

(deceased) was not allowing the wall to be constructed.

The accused Rama Shankar Dubey and Vijay Bahadur

Dubey came armed with double barrel gun, upon which

Ram Kishun Dubey gave order for assault whereupon Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

Rama Shankar Dubey fired from his country made pistol

on Ram Surat Dubey, as a result of which he fell down

in the field. The informant fled away apprehending

danger to his life. However, Vijay Bahadur Dubey fired

on him from back which did not hit him. All the three

accused persons lifted the dead body of Ram Surat

Dubey and took into the house of Vijay Bahadur Dubey.

On raising alarm, his brother namely Shambhu Nath

Dubey(P.W. 7) came there. This witness stated to him

that accused persons lifted the dead body of his father.

P.W. 5 Narad Prasad and P.W. 6 Janardan Prasad

Dwivedi had seen this occurrence by standing at their

doors. This witness has also stated and narrated the

story of assault on the person of his father to his

brother. The accused persons also took the dead body of

his father into the house of Vijay Bahadur Dubey. This

witness also deposed that there is a dispute between this

witness and the accused persons for the last 13 years.

His fardbeyan was recorded by the Investigating Officer Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

and signature of this witness is Exhibit-3 on the

fardbeyan. This witness also deposed that inquest of the

dead body of his father was prepared in presence of

Narad Gorh and Janardan Dwivedi and both took their

signatures on the inquest report. In his cross

examination, this witness subjected in respect of place of

occurrence and demolition of construction of wall and

boundary in respect of place of occurrence in detail.

This witness stood firmly and nothing surfaced by the

defence which disbelieved to this witness.

13. P.W. 9 Raj Kumar Singh is the Investigating

Officer of this case who found the blood on the place of

occurrence which is the site where a new wall was being

constructed by the accused Ram Kishun Dubey. This

witness has also found the blood trail from the site of

construction of wall till the house of Vijay Bahadur

Dubey. This fact supports the prosecution version that

the dead body of Ram Surat Dubey was removed from

the site of construction of the boundary to the house of Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

Vijay Bahadur Dubey.

14. The appellant Vijay Bahadur Dubey had also

filed a petition before the learned Chief Judicial

Magistrate, Bhabhua from the jail premises which has

been marked as Exhibit-A in this case. In this petition,

by way of defence, Vijay Bahadur Dubey had attempted

to make out a case that Ram Surat Dubey(deceased),

Kesh Nath Dubey (informant) and Shambhu Nath Dubey

(PW 7) went to the place where a wall was being

constructed in the land of Ram Kishun Dubey and Ram

Surat Dubey (deceased) gave a push to the wall, as a

result of which, a few pieces of stones of that wall

collapsed and it is also alleged that Ram Surat Dubey

(deceased), Kesh Nath Dubey (informant) and Shambhu

Nath Dubey (P.W 7) chased the appellant Vijay Bahadur

Dubey and he entered into his house where Shambhu

Nath Dubey (P.W. 7) fired on Vijay Bahadur Dubey but

unfortunately the firing hit Ram Surat Dubey (deceased)

and he fell down in the courtyard of Vijay Bahadur Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

Dubey and subsequently died.

15. By way of this defence, it is tried to make

out a case that Vijay Bahadur Dubey went to Chand

Police Station to lodged the F.I.R but the Officer-in-

charge did not lodge his case and went to the Village

Sehan and when he returned from the village, he

arrested Vijay Bahadur Dubey and sent to the jail

custody.

16. From perusal of the prosecution evidence

adduced by the P.W. 7 Shambhu Nath Dubey and the

Investigating Officer (P.W. 9) of this case, the story of

defence appears to be imaginary and cannot be accepted

regarding death of Ram Surat Dubey. The Investigating

Officer did not find any blood mark in the house of Vijay

Bahadur Dubey nor any sign of firing which shows that

the murder had not taken place in the house of Vijay

Bahadur Dubey. However, the prosecution story is true

in this regard that Ram Surat Dubey was murdered at

the site where boundary wall was being constructed in Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

the field of Kesh Nath Dubey (informant).

17. The Investigating Officer (P.W 9) in his

evidence has asserted that he has found the blood on

the place of occurrence which is the site where a new

wall was being constructed by the accused Ram Kishun

Dubey. He has also found the blood trails from the site

of construction of wall till the house of Vijay Bahadur

Dubey.

18. D.W. 2 Basawan Yadav has stated in his

statement that he found blood in the house of Vijay

Bahadur Dubey but Baswan Yadav was present in the

house of Vijay Bahadur Dubey along with the

Investigating Officer and at that time this D.W. 2 had

not stated this version before the Investigating Officer.

So, the evidence of this D.W. 2 has not made any scope

for its acceptance.

19. The defence argued that they have been

falsely implicated in this case and the murder did not

take place in the manner as alleged by the prosecution. Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

20. We find no force in this contention because

of the evidences of P.W. 7 and P.W. 8, who are the eye

witnesses of this case and have supported that the

deceased succumbed to his injuries by shot firing by the

accused Rama Shankar Dubey on the order of accused

Ram Kishun Dubey. The deceased fell on the ground

after receiving gunshot injury.

21. The Investigating Officer (P.W. 9) has

explicitly deposed that he has found the blood at the

place of occurrence which is the site where a new wall

was being constructed by the accused Ram Kishun

Dubey. The I.O. has also found the blood trails from the

site of construction of wall till the house of Vijay

Bahadur Dubey. P.W. 1 and P.W. 3 corroborated the

evidence and deposed that Darogaji collected and seized

the blood stained earth from the place of occurrence i.e.

where the wall was constructed.

22. From bare reading of the written application

(Ext-A) which is alleged to be given by the accused Vijay Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

Bahadur Dubey before the Court below, this fact is

admitted by the accused that deceased Ram Surat

Dubey and Kesh Nath Dubey went to a place where a

wall was being constructed. The deceased Ram Surat

Dubey gave a push to the wall, as a result of which, few

pieces of stones of that wall collapsed. In this petition, it

is not mentioned that informant's side were armed with

lethal weapon or fire arm. So, this fact of the defence is

not trustworthy that death of Ram Surat Dubey occurred

mistakenly at the house of Vijay Bahadur Dubey by shot

firing at the hand of his own son Shambhu Nath Dubey

(P.W 7).

23. A plea of alibi has been taken by appellant

Rama Shankar Dubey that at the time of alleged

occurrence, he was present at the school of Village

Saraian from 10:30 A.M. to 4:30 P.M. The Headmaster

of the said school namely Ram Kunwar Singh (D.W 3)

had been examined to prove the alibi. This witness has

proved the attendance register produced before the Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

Court and the attendance has been marked as Ext-B.

24. From perusal of the evidence of this

witness, we find that village Saraian where accused

Rama Shankar Dubey was allegedly working as a teacher

is only at a distance of 10 K.M from the place of

occurrence. The time of occurrence is 5:00 P.M and it is

very easy for the accused Rama Shankar Dubey to be

present at the time of the alleged occurrence. So, the

plea of alibi taken by the accused Rama Shankar Dubey

is not of any help. It is a well settled principle that plea

of alibi must be proved with absolute certainty so as to

completely explicit the possibility of presence of person

concerned at the place of occurrence. The general

principle of criminal jurisprudence that the prosecution

has to prove its case beyond reasonable doubt, the

reasonable doubt is one which occurs to a prudent and

reasonable man.

25. P.W. 4, Ranjeet Kumar is the doctor who

has conducted the postmortem report on the dead body Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

of the deceased Ram Surat Dubey on 04.07.1993 and

found the following injuries on the person of the

deceased.

(I) Inverted margin about 3/4" in diameter. Pellet injuries over right side of abdomen(Hepatic region)prove directing to upward and right to left in abdominal cavity which is the wound of entrance.

(ii) Inverted margin about 3/4" in diameter pellet injuries over right side of abdomen about 2" below injury no. 1 prove directing to abdominal cavity. It is the wound of entrance.

(iii) Inverted margin pellet injury of about 3/4" in diameter over palmer aspect of left ring finger with fracture of middle phalanx. It is the wound of entrance. One pellet recovered from the injuries.

(iv) Inverted margin pellet injury above 3/4" in diameter over medial aspect of left thigh. It is the wound of entrance.

(v) Exit wound inverted margin of left thigh lateral aspect above 1/2" in diameter, Injury no. 4 and 5 are communicated to each other.

26. The evidence of the doctor (P.W. 4) further Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

supports and corroborates the prosecution case and the

doctor found gunshot injury on the person of the

deceased Ram Surat Dubey and stated that injury Nos.

1 and 2 were sufficient to prove the cause of death. The

time of death given by the doctor also corroborates with

the time of the alleged occurrence.

27. We find no force on the submissions raised

on behalf of the appellants that the ocular evidence has

not corroborated with the medical evidence. This

submission is devoid of merit.

28. It is contended by learned counsel for the

appellants that all the prosecution witnesses are highly

interested and they are in relation to the informant and

the deceased.

29. In our view, it is an admitted fact that

P.W.s are related and interested witnesses. It is settled

principle of law that evidence of related witnesses should

be scrutinized with care and caution but that by itself will

not suffer from any infirmity. Once that approach is Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

made, the Court is satisfied that evidence of such

witnesses can be relied upon. In this respect, on close

scrutiny of the evidence of the eye witnesses, it is

established that there is consistency in the evidence of

the witnesses with respect to the place of occurrence,

time and manner of occurrence and except minor

contradictions, nothing major surfaced to discard their

evidences. Minor contradictions are natural upon

situation from where occurrence could be seen by them.

Parrot like version would have made their evidence

doubtful.

30. We are of the view, in the light of the

discussions as above, it can be safely concluded that

death of Ram Surat Dubey is due to the injuries caused

by fire arm which is likely possible for the injuries to

have been caused with the fire arm weapon with which

and in manner they are alleged to have been caused.

31. After scrutinizing the entire evidence

adduced by the prosecution, we affirmed that the Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

credibility of testimony of the prosecution witnesses

create and inspire confidence in our mind. These

evidences are free from major contradictions and

discrepancies. It is also candid that the prosecution

witnesses P.W.s 7 and 8 had personal knowledge and

they were present at the seen and they had paid

attention at the seen and their evidences are

trustworthy. However, minor contradictions in

consistencies over improvement of trivial points which do

not effect the prosecution case could not be made a

ground on which the evidence can be rejected in its

entirety.

32. In view of the evidence on record as

discussed above, we see no merits in these appeals. The

appeals are dismissed.

33. Mr. Prince Kumar Mishra, learned advocate

was appointed as Amicus Curiae to represent the

appellants/accused. We put on record the words of

appreciation for able assistance rendered by him in Patna High Court CR. APP (DB) No.7 of 1996 dt.16-12-2021

arriving this Court at the proper conclusion in deciding

the instant appeals. The Patna High Court Legal Services

Committee is, hereby, directed to pay Rs. 5,000/-

(rupees five thousands) to Mr. Prince Kumar Mishra,

Advocate.

( Sunil Kumar Panwar, J)

A.M. Badar, J

(A. M. Badar, J)

Shageer/-

AFR/NAFR                NAFR
CAV DATE                09/12/2021
Uploading Date          17/12/2021
Transmission Date       17/12/2021