Babban Singh @ Daddan Singh vs The State Of Bihar
2021 Latest Caselaw 2947 Patna

      IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (SJ) No.355 of 2018
      Arising Out of PS. Case No.-97 Year-2006 Thana- HARNAUT District- Nalanda
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Babban Singh @ Daddan Singh Son of Anirudh Singh, Resident of Village- Laluadih, P.S. Harnaut, District- Nalanda.

... ... Appellant Versus The State Of Bihar

... ... Respondent ====================================================== Appearance :

For the Appellant/s : Mr. Krishna Prasad Singh, Sr. Advocate Mr. Davendra Kumar Pandey, Advocate For the State : Mr. Binod Bihari Singh, A.P.P. For the Injured Mr. Rajesh Kumar Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR CAV JUDGMENT Date : 02-07-2021 Altogether twelve accused persons faced trial in

Sessions Trial No. 531 of 2008 corresponding to Harnaut P.S. Case

No. 97 of 2006 before the learned Fast Track Court No. 1,

Nalanda for offences under Sections 147, 148, 447/149, 307/149

and 307 I.P.C. as well as under Section 27 of the Arms Act. The

eleven were acquitted of all the charges on the very same evidence

and the sole appellant was convicted under Section 307 I.P.C. and

27 of the Arms Act by the impugned judgment of conviction dated

04.12.2017. By order of sentence dated 06.12.2017 the appellant

was awarded ten years rigorous imprisonment and a fine of rupees

fifty thousand for offence under Section 307 I.P.C. In default of

payment of fine, one year rigorous imprisonment was ordered. For

offence under Section 27 of the Arms Act, three years rigorous Patna High Court CR. APP (SJ) No.355 of 2018 dt. 02-07-2021

imprisonment was awarded along with fine of rupees one

thousand. In default of payment of fine, two months rigorous

imprisonment was ordered.

2. The prosecution case as disclosed in the written report

submitted by PW-4 Gajendra Prasad Singh is that on 11.06.2006

voting for Panchayat election was going on in village Laluadih P.S.

(Telmar O.P.) Harnaut District Nalanda. The informant was sitting

at his Dalan along with Shiv Shankar Singh (PW-2), Sudhir Singh

(PW-5), Murli Manohar Singh (PW-1) and other villagers. At

about 11:30 A.M., Mukhiya candidate Deshraj Singh Chauhan @

Dharmendra Singh along with his supporters (the twelve accused

persons who faced trial) variously armed came to the Dalan (outer

house of the informant) and exhorted others to kill Mukhiya i.e.

PW-4. On that co-accused Dharmendra Singh fired at the

informant but the informant hide himself behind a pillar. Others

who were sitting there started fleeing. Then the appellant Babban

Singh @ Daddan Singh, carrying a pistol, fired causing injury at

the left eye of Shiv Shankar Singh (PW-2). Shiv Shankar Singh

fell down and all who were firing returned to their house.

3. After investigation, the police submitted charge sheet

and accordingly, the appellant and others were put on trial. Patna High Court CR. APP (SJ) No.355 of 2018 dt. 02-07-2021

4. PW-1 Murli Manohar Singh, PW-2 Shiv Shankar

Singh, PW-3 Nand Kishore Singh, PW-4 Gajendra Prasad Singh

and PW-5 Sudhir Singh have supported, in their respective

depositions, about the date of occurrence, the manner of

occurrence, the place of occurrence and the perpetrators of the

crime as disclosed in the FIR. Save and except that Gajendra

Prasad Singh (PW-4) deposed that it was co-accused Pawan Singh

(since acquitted) who had caused injury to Shiv Shankar Singh at

the left eye.

5. PW-6 Dharmendra Kumar is a formal witness who

has proved the formal FIR.

6. PW-7 Dr. Parmanand Prasad Pal had treated the

firearm injury on Shiv Shankar Prasad Singh. The injury report

was proved by PW-7 and marked as Exhibit-7.

7. PW-8 Rajesh Ranjan and PW-9 Arjun Prasad were

investigating officer of the case. They have supported the

investigation done by them.

8. Mr. Krishna Prasad Singh, learned senior counsel for

the appellant contends that PW-4 Gajendra Prasad Singh who is

informant of this case is not a hostile witness. He has deposed that

it was co-accused Pawan Singh who had caused firearm injury at

the left eye of Shiv Shankar Singh. His statement cannot be taken Patna High Court CR. APP (SJ) No.355 of 2018 dt. 02-07-2021

as slip of tongue because Pawan Singh was also an accused in this

case. Thus two conflicting evidence is on the record. One is of

PW-4 that the injury was caused by co-accused Pawan Singh and

rest witnesses deposed that the injury was caused by the appellant.

The conflicting evidence aforesaid makes the prosecution case

doubtful.

Learned senior counsel further contends that on the very

same evidence, eleven accused persons were acquitted by the same

judgment without distinguishing how the case of the appellant was

on separate footing to that of acquitted accused persons. The law is

well settled that if two views are possible on the same evidence,

the views in favour of the accused should be preferred. Learned

senior counsel has drawn attention of the court to the statement of

PW-2 Shiv Shankar Singh, the injured witness who deposed that

when the firing started, they all started fleeing. There is no

evidence that they were fleeing facing the firing and normal

conduct would be that the people would flee away from the firing.

In that situation, it was difficult to see as to whose shot had caused

the injury when several persons were allegedly indulged in firing.

9. Mr. Binod Bihari Singh, learned A.P.P. and Mr. Rajesh

Kumar Singh learned counsel appearing for the injured contends

that except PW-4, other prosecution witnesses are consistent that Patna High Court CR. APP (SJ) No.355 of 2018 dt. 02-07-2021

the appellant had caused injury at the left eye of Shiv Shankar

Singh. Gajendra Prasad Singh had also stated in the FIR that

appellant had caused injury to Shiv Shankar Singh. If Gajendra

Prasad Singh said before the court as PW-4 that it was Pawan

Singh who had caused injury to Shiv Shankar Singh that would not

make other four trustworthy witnesses unbelievable.

Finding;

10. There is no dispute that PW-4 Gajendra Prasad Singh

is not a hostile witness. Even after conclusion of the prosecution

evidence, Gajendra Prasad Singh did not file any application that

his statement was a slip of tongue and in fact the appellant had

caused injury to Shiv Shankar Singh.

In Raja Ram V. The State of Rajasthan reported in

(2005) 5 SCC 272, the Hon'ble Supreme Court said that if a

witness is not declared hostile by the prosecution, the defence can

rely upon the evidence of such witness and it would be binding on

the prosecution. The aforesaid view was reiterated in Mukhtiar

Ahmed Ansari V. The State (NCT of Delhi) reported in (2005) 5

SCC 258 in following terms :-

"29. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a Maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case Patna High Court CR. APP (SJ) No.355 of 2018 dt. 02-07-2021

as PW 1. He, however, did not support the prosecution. The prosecution never declared PW 1 "hostile". His evidence did not support the prosecution. Instead, it supported the defence. The accused hence can rely on that evidence.

30. A similar question came up for consideration before this Court in Raja Ram V. State of Rajasthan (supra). In that case, the evidence of the doctor who was examined as a prosecution witness showed that the deceased was being told by one K that she should implicate the accused or else she might have to face prosecution. The doctor was not declared "hostile". The High Court, however, convicted the accused. This Court held that it was open to the defence to rely on the evidence of the doctor and it was binding on the prosecution.

31. In the present case, evidence of PW 1 Ved Prakash Goel destroyed the genesis of the prosecution that he had given his Maruti car to the police in which the police had gone to Bahai Temple and apprehended the accused. When Goel did not support that case, the accused can rely on that evidence."

11. Thus there is serious doubt on the identity of the

assailant of Shiv Shankar Singh. Moreover, on the very same

evidence, eleven persons have been acquitted and in absence of

any material to substantiate or reason disclosed in the impugned

judgment that case of the appellant stood on different and graver

footing, the conviction of the appellant is not sustainable. The Patna High Court CR. APP (SJ) No.355 of 2018 dt. 02-07-2021

learned trial Judge failed to consider that witness Shiv Shankar

Singh has deposed that he sustained injury while fleeing and there

was no definite evidence from any prosecution witnesses of the

occurrence that the witnesses including Shiv Shankar Singh were

fleeing facing the firing. Hence, it is doubtful that any one would

have seen the real person who had caused firearm injury.

12. In view of the aforesaid infirmities, in my view,

conviction of the appellant is not sustainable in law. Accordingly,

the impugned judgment of conviction and order of sentence are,

hereby, set aside. The appellant is acquitted and this appeal is

allowed. Let the appellant be set free at once.

(Birendra Kumar, J)

shahzad/-

AFR/NAFR                A.F.R.
CAV DATE                24.06.2021
Uploading Date          02.07.2021
Transmission Date       02.07.2021