Samsher Miyan vs The State Of Bihar
2022 Latest Caselaw 4521 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                          DEATH REFERENCE No.7 of 2021
        Arising Out of PS. Case No.-739 Year-2018 Thana- ARA NAGAR District- Bhojpur
     ======================================================

The State of Bihar

... ... Petitioner/s Versus

1. Samsher Miyan S/o Late Md. Kashim R/o of Mohalla- Abarpur P.S. Ara Nagar, District - Bhojpur.

2. Guddu Miyan S/o Md. Jalil R/o of Mohalla- Rouza, P.S. Ara Nagar, District

- Bhojpur.

3. Furchan Miyan @ Fuchan Miyan S/o Md. Ehshan Ahmad R/o of Mohalla-

Khetari, P.S. Ara Nagar, District - Bhojpur.

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 513 of 2021 Arising Out of PS. Case No.-739 Year-2018 Thana- ARA NAGAR District- Bhojpur ====================================================== Furchan Miyan @ Fuchan Miyan S/o Ehshan Ahmad R/o village- Khetari, P.S.- Ara Nagar, Distt.- Bhojpur

... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 556 of 2021 Arising Out of PS. Case No.-739 Year-2018 Thana- ARA NAGAR District- Bhojpur ======================================================

1. Samsher Miyan S/o Late Md. Kashim R/o Abarpur, P.S.- Ara Nagar, District- Bhojpur, Bihar

2. Guddu Miyan S/o Md. Jalil R/o Mohalla- Rouza, P.S.- Ara Nagar, District-

Bhojpur, Bihar

... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

     (In DEATH REFERENCE No. 7 of 2021)
     For the Petitioner/s :    Mr.
     For the Respondent/s :    Mr. J.P. Singh, Amicus Curiae

Mr. Kamlesh Kumar Singh, AC to Amicus Curiae Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

(In CRIMINAL APPEAL (DB) No. 513 of 2021) For the Appellant/s : Mr. Rajani Ranjan Prasad Singh, Advocate Mr. Pratik Mishra, Advocate For the State : Ms. Shashi Bala Verma, APP For the Informant : Mr. Ravindra Kumar, Advocate (In CRIMINAL APPEAL (DB) No. 556 of 2021) For the Appellant/s : Mr. Ashutosh Nath, Advocate Mr. Yash Singh, Advocate For the State : Ms. Shashi Bala Verma, APP For the Informant : Mr. Ravindra Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE HARISH KUMAR CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH) Date : 17-08-2022

The appellants Furchan Miyan @ Fuchan Miyan,

Samsher Miyan and Guddu Miyan have been held guilty vide

order dated 09.03.2021 passed in Sessions Trial No.209 of 2019

arising out of Ara Town P.S. Case No.739 of 2018 by the learned

Additional Sessions Judge-IXth, Bhojpur at Ara to the charges

under Sections 302 read with 34, 307 read with 34, 387 read

with 34 and 120B of the Indian Penal Code (for short 'IPC') and

Section 27 of the Arms Act.

2. Consequent upon the conviction, vide order dated

14.06.2021, the aforesaid convicts have been sentenced to death

and to pay a fine of Rs.one lakh each for the offence punishable

under Section 302 read with 34 of the IPC, rigorous

imprisonment for ten years and a fine of Rs.50,000/- each for the

offence punishable under Section 307 read with 34 of the IPC,

rigorous imprisonment for seven years and a fine of Rs.50,000/-

Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

each for the offence punishable under Section 387 read with 34

of the IPC, rigorous imprisonment for seven years and a fine of

Rs.50,000/- each for the offence under Section 120B of the IPC

and rigorous imprisonment for seven years and a fine of

Rs.10,000/- each for the offence punishable under Section 27 of

the Arms Act and in default of payment of fine to undergo

simple imprisonment for a further period of three months. The

Trial Court has directed that all the sentences shall run

concurrently.

3. Reference made by the Trial Court under Section

366 of the Code of Criminal Procedure (for short 'CrPC') for

confirmation of death sentence awarded to the convicts in the

aforesaid sessions trial has been registered as Death Reference

No.07 of 2021.

4. The appellant Furchan Miyan @ Fuchan Miyan has

challenged his conviction and sentence awarded in the aforesaid

sessions trial by filing Criminal Appeal (DB) No.513 of 2021.

The appellants Samsher Miyan and Guddu Miyan have

challenged their conviction and sentence imposed by the Trial

Court by filing Criminal Appeal (DB) No.556 of 2021.

5. These appeals preferred by the appellants as well as

the reference made by the Trial Court under Section 366 of the Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

CrPC have been heard together and are being disposed of by a

common order.

6. The sessions trial in which the impugned judgment

and order were passed relates to the first information report (for

short 'FIR') that had been registered at 6:30 pm on 06.12.2018

in Bhojpur Town Police Station in respect of an incident that had

occurred at Shobha Market, Dharman Chowk situated at a

distance of 0.5 kilometre in the eastern direction from the Ara

Town Police Station on the basis of the written report submitted

by one Akil Ahmad.

7. In his written report, Akil Ahmad stated that on

06.12.2018, at around 12:48 pm, when he, his brother and

family members were running the shop in Shobha Market,

suddenly, Khurshid Qurashi, Md. Naiyer, Raju Khan, Babli

Miyan, Abdullah Qureshi, Sarla Miyan, Ahmad Miyan,

Shamsher Miyan and Taushif Miyan, all residents of Mohalla-

Milki and Kasai Tola, P.S.- Ara Town, District- Bhojpur and 4-5

unknown persons came to the shop and demanded

Rs.10,00,000/- (Ten Lakh) as extortion money. When his brother

denied to pay the said amount, all the accused persons took out

pistol from their lower back and started hurling abuses. When

his brother Imran opposed, Khurshid Qurashi and Naiyer Miyan Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

opened indiscriminate firing upon Imran because of which he

died on the spot. At the same time, Babli Miyan and Shamsher

Miyan also opened fire with an intention to kill him and a bullet

hit him in his abdomen as a result of which he became

unconscious. When he regained consciousness, he came to know

that one another person had also sustained gun shot injury in the

said incident. He attributed the motive for the said incident to be

demand of Rs.10,00,000/- as extortion money by the accused

persons because he and his family members had purchased a

shop in the Shobha Market.

8. Upon receipt of the aforesaid written report, Jay

Prakash Singh, Station House Officer (for short 'SHO') of Ara

Town Police Station handed over the investigation of the case to

Jay Prakash Rai, a Sub-Inspector of Police (P.W.7) and

registered Ara Town P.S. Case No.739 of 2018 on 06.12.2018

under Sections 387, 302, 307 read with 34 of the IPC and

Section 27 of the Arms Act against altogether nine named

accused persons and 4-5 unknown accused persons.

9. While the investigation was still continuing, Jay

Prakash Rai (P.W.7) was transferred to a different police station.

He handed over the investigation of the case to J.P. Singh, the

SHO of the Ara Town Police Station on 31.12.2018. Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

Subsequently, the investigation of the case was handed over to

one Rahmatullah (P.W.8) who took over the investigation of the

case on 19.01.2019. After completing investigation, he

submitted charge sheet under Sections 387, 302, 307/34, 120B

of the IPC and Section 27 of the Arms Act finding the

allegations made in the FIR to be true. On perusal of the police

report, the learned Chief Judicial Magistrate took cognizance of

the offences on 09.07.2019.

10. After complying with the statutory requirements

under Section 207 of the CrPC, the learned Chief Judicial

Magistrate, Ara committed the case to the court of sessions for

trial.

11. On receipt of the record from the court of Chief

Judicial Magistrate, Ara, learned Sessions Judge, Ara transferred

the case to the court of Additional Sessions Judge,IXth, Ara.

12. Thereafter, the appellants were charged for the

offences punishable under Section 302 read with 34, 387 read

with 34, 307 read with 34, 120B of the IPC and Section 27 of

the Arms Act vide order dated 23.07.2019 to which they did not

plead guilty. Hence, the trial commenced.

13. During trial, the prosecution examined altogether

eight witnesses and proved certain documents in support of Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

charges.

14. Amir Faiyaj (P.W.1) stated in his examination-in-

chief that the incident took place at 12:30 pm on 06.12.2018. At

that time, Suhail (not examined), Imran, Suhaib, Akil Ahmad

(not examined) and Saddam (not examined) were present with

him in the shop situated at Dharman Chowk, Ara. They were

talking together. In the meantime, about 13-14 persons came to

the said shop. Out of them, he could identify Khurshid Quraishi,

Naiyer Quraishi, Babli Miyan, Haji Shamsher, Raju Khan,

Fuchan, Guddu Chor, Sarla Miyan, Abdullah Quraishi, Ahmad

Miyan. He stated that Khurshid, Naiyer and Babli started

arguing with Akil Ahmad and Imran and asked as to why the

demand of Rs.10 lakh as rangdari was not fulfilled. They started

abusing them and, thereafter, they resorted to indiscriminate

firing. He stated that Akil Ahmad sustained gun shot injury in

his abdomen and head and Imran sustained gun shot injury near

his nose, throat, back and head. He sustained two shots in his

chest. He also sustained gun shots in his waist and legs as a

result of which he fell down and died on the spot. He stated that

due to the firearm injury in abdomen, Akil Ahmad also fell

down. While leaving the place of occurrence, the accused

persons resorted to indiscriminate firing in air in order to Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

terrorise the local people and, in the process, one Farukh also

sustained gun shot injury. He stated that after the occurrence, he,

Suhail and Saddam carried the body of Imran on one rickshaw

and Suhaib and Saddam sat on that rickshaw and went to the

Sadar Hospital, Ara. Thereafter, he and Suhail put the injured

Akil on another rickshaw and took him to the Sadar Hospital,

Ara. Akil Ahmad was treated in the hospital whereas Imran died

on the spot and his postmortem examination was conducted at

the Sadar Hospital, Ara. When they were taking the deceased

and the informant to the hospital, Suhaib informed the police on

telephone. The police seized the CCTV footage of 06.12.2018 of

the Shobha Market and he put his signature on the seizure list.

He also identified the signature of Akil Ahmad and Suhaib on

the seizure list which were marked as Exhibit- 1/1 and 1/2

respectively. He identified the accused Samsher in the dock. He

also identified two other accused, namely, Guddu and Furchan

by face and stated that they were also involved in the offence but

he could not identify them by their name.

15. In cross-examination, he admitted that it is true that

in the previous trial arising out of the same police case, he had

deposed that he did not see who had fired. He stated that he had

given such evidence in nervousness. He further stated that the Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

deceased Imran had sustained 16-17 firearm injuries. He had

sustained gun shot injuries in his front and back both. He stated

that there was blood on the floor as well as on the street. He

admitted that when he had put his signature on the seizure list,

others were also present there. He further admitted that after

sustaining injury Akil Ahmad was throughout conscious. He

denied the defence suggestion that he had not witnessed the

incident. He also denied the defence suggestion that he together

with his brother Imran and Suhail are involved in trade of liquor.

He further denied knowledge that Imran and Suhail had been

sent to custody in connection with the offence under the Excise

Act.

16. Suhaib (P.W.2) stated in his testimony that the

incident took place at about 12:30 pm on 06.12.2018. At the

relevant time, when he and his brothers Akil Ahmad, Imran,

Amir Faiyaj and Md. Saddam were present in the shop situated

at Shobha Market, the accused persons, namely, Khurshid

Quraishi, Raju Khan, Babli Miyan, Saral @ Anwar Miyan,

Guddu Miyan, Shamsher, Taushif and Ahamad came and asked

as to why they have not sent the ransom amount of Rs.10 lakh.

They told them that they have recently opened the shop and they

do not have the capacity to pay Rs.10 lakh. At best, all the Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

brothers can jointly afford to pay Rs.5 lakh only. Upon this, they

started abusing, which was protested by them. Thereafter, the

accused persons took out pistol from their lower back and

resorted to indiscriminate firing upon them causing injury to his

brother Imran near his nose, neck, chest and both legs. His

brother Akil Ahmad sustained gun shot injury in his abdomen.

One Farukh, a BSNL employee also sustained gun shot injury in

the incident. He stated that due to the gun shot injuries, his

brother Imran died on the spot and all the accused persons fled

away by resorting to firing. He stated that they and others

present there took Imran and Akil Ahmad to Sadar Hospital, Ara

where the doctor declared his brother Imran as 'brought dead'.

They started treatment of his brother Akil Ahmad. He stated that

the inquest report of the deceased Imran was prepared in his

presence. He identified the carbon copy of the inquest report and

proved his signature on it which was marked as Exhibit-1/2. He

further stated that on 05.01.2019, the police officer of Ara Town

Police Station had seized the CCTV footage of 06.12.2018 from

the shop on which he had put his signature, which was marked

as Exhibit-1/2. He identified the accused persons, namely,

Guddu Miyan, Shamser and Furchan in the dock.

17. In cross-examination, he stated that rangdari was Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

demanded by the accused persons two days before they had

taken the possession of the shop. He admitted that no

information was given to the police. He admitted that they had

arranged for Rs.5 lakh from different sources and had decided to

pay the said amount to the accused persons. He stated that on the

date of occurrence, 20-25 rounds of firing were made and his

brother Imran had sustained 7-8 gun shots. He admitted that his

brother Imran did die on the spot. His body was taken to the

hospital where the doctor declared him 'brought dead'. He

stated that blood had fallen on the floor to a great extent. The

Daroga had seen the blood. He further admitted that from the

place of occurrence, Gopali Chowk is at a very short distance of

8-9 paces. He admitted that the police station is situated at a

distance of 0.5 kilometre. He denied the defence suggestion that

on the date of occurrence, he and his brother Suhail were not

present at the place of occurrence. He further denied the defence

suggestion that he came to know about the occurrence after he

visited Sadar Hospital, Ara. He also denied that the accused

persons have falsely been implicated due to old enmity.

18. Dr. Jitendra Nath Mishra (P.W.3) stated in his

testimony that he was posted as Medical Officer at Ara Sadar

Hospital. He conducted the postmortem examination on the Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

body of the deceased Imran at 3:10 pm on 06.12.2018 and found

the following antemortem injuries on his person:-

a) 1st entry wound-Lacerated inverted wound 1/2 inch X 1/2 inch X cavity deep over route of nose (right side).

b) IInd entry wound- Lacerated, inverted wound of size 1/2 inch X 1/4 inch X cavity deep over right cheek.

c) IIIrd entry wound-Lacerated, inverted wound of size 1/2 inch X 1/2 inch X cavity deep over right side of upper neck.

d) IVth entry wound- Lacerated, inverted wound of size 1 inch X 1 inch X cavity deep, just below right clavicle (Lateral side).

e) Vth entry wound-Lacerated, inverted wound of size 1 inch X 1 inch X cavity deep on upper chest, 1 inch right from the middle.

f) VIth entry wound- Lacerated, inverted wound of size 1/2 inch X 1/2 inch X cavity deep on right chest above and medial to right nipple.

g) VIIth entry wound- Lacerated, inverted wound of size 1/2 inch X 1/2 inch X cavity deep at right inguinal region.

h) VIIIth Exit wound- Lacerated, everted wound of size 3/4 inch X 3/4 inch X cavity deep at posterior to left ear.

i) IXth Exit wound- Lacerated, reverted wound of size 3/4 inch X 3/4 inch X cavity deep on left Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

chest on back side.

j) Xth Exit wound- Lacerated, everted wound of size 3/4 inch X 3/4 inch deep over left iliac crest.

k) XIth Exit wound- Lacerated, everted wound of size 1 inch X 1 inch X cavity deep on upper natal cleft (2 inch lateral to mid line).

l) XIIth Exit wound- Lacerated, everted wound of size 3/4 inch X 3/4 inch X cavity deep on anterior aspect or left upper thigh.

m) XIIIth Exit wound- Lacerated, everted wound of size 3/4 inch X 3/4 inch X cavity deep at upper thigh (left lateral).

n) XIVth Exit wound-Lacerated, everted wound of size 3/4 inch X 3/4 inch X cavity deep on posterior thigh.

19. According to him, the time elapsed since death was

6 to 36 hours and the cause of death was shock and haemorrhage

caused by the abovementioned firearm injuries. He proved his

writing and signature on the postmortem report which was

marked as Exhibit-4. He stated that he had held the postmortem

examination on the body of the deceased Imran in presence of

Dr. M. H. Ansari and Dr. Sujit Kumar.

20. In cross-examination, he stated that all the wound

of entries are situated on the right side of the body of the

deceased meaning thereby that the injuries were caused from the Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

right side of the body of the deceased. He stated that he cannot

say the distance from which the firing was caused at the

deceased. He admitted that he had not mentioned the contents of

stomach of the deceased. He further admitted that rigor mortis

was present on the whole body of the deceased. He stated that

rigor mortis develops within 3 to 6 hours and, thereafter, appears

on the whole body. He stated that normally rigor mortis starts

disappearing after 36 hours of the death of the deceased. He

admitted that in the postmortem examination report the police

station case number is not mentioned.

21. Dr. Sujit Kumar (P.W.4) stated in his

examination-in-chief that on 06.12.2018, he was posted as

Medical Officer at the Sadar Hospital, Ara. On this date, a

medical team was constituted for conducting the postmortem

examination on the person of the deceased Imran. He was one of

the members of that team. He stated that postmortem of the

deceased Imran was done in his presence and the report was

prepared before him over which he had put his signature. He

identified his signature, which was marked as Exhibit-4/1.

22. Dr. Md. Mobinul Haque Ansari (P.W.6) stated in

his examination-in-chief that on 06.12.2018, he was posted as

Medical Officer at the Sadar Hospital, Ara. On this date, he was Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

made a member of the team constituted for conducting the

postmortem examination on the body of the deceased Imran.

The postmortem examination of deceased Imran was done in his

presence. He identified his signature on the postmortem

examination report, which was marked as Exhibit-4/2.

23. Dr. Arun Kumar (P.W.5) stated in his testimony

that on 06.12.2018 he was posted at the Sadar Hospital, Ara in

the Emergency Department. On this date, he had examined the

injured Akil Ahmad in the Emergency Ward and found a

lacerated wound 1 inch X 1/4 cm X 1/4 cm in left lower side of

his abdomen. He advised ultra sound and plane X-ray of

abdomen of the injured. The opinion regarding the nature of

injury was kept reserved till receipt of the X-ray report. Since

the X-ray report showed that no bony injury was caused on the

person of the injured Akil Ahmad, the nature of injury was

opined to be simple. He identified his own writing and signature

on the injury report which was marked as Exhibit-5/1.

24. In cross-examination, he stated that he cannot say

as to who had brought the injured before him in the Emergency

Ward. He stated that he cannot say the distance from which the

firing was made. He further admitted that there was no

blackening at the place of injury. He denied that he was known Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

to the injured Akil Ahmad from before and had issued the injury

report just in order to help him due to the old acquaintance.

25. Jay Prakash Rai (P.W.7), the first Investigating

Officer of the case stated in his testimony that on 06.12.2018, he

was posted as Sub-Inspector of Police at Ara Town Police

Station. On this date, he was handed over investigation of the

Ara Town P.S. Case No.739 of 2018 by the SHO, Jay Prakash

Singh. He stated that the formal FIR of Ara Town P.S. Case

No.739 of 2018 was in the writing of an Assistant Sub-Inspector

of Police, namely, Jagniwas Sharma and it was duly signed by

the SHO, Jay Prakash Singh. He identified and proved the

signature of the SHO, which was marked as Exhibit-3/1. The

seizure list was prepared by the Assistant Sub-Inspector of

Police, namely, Pawan Kumar Singh of Ara Town Police

Station. He identified the signature of Pawan Kumar Singh on

the seizure list which was marked as Exhibit-3/2. He stated that

the inquest report of the deceased was prepared by one Ramanuj

Singh, a Sub-Inspector of Police of Ara Town Police Station. He

identified the signature and writing of Ramanuj Singh, which

was marked as Exhibit-1/2. He stated that he received the copy

of the FIR and seizure list after the investigation was handed

over to him. Thereafter, he recorded the subsequent statement of Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

the informant Akil Ahmad. The informant had supported the

contents of the FIR in his subsequent statement. Thereafter, he

perused the seizure-list and inspected the place of occurrence.

He recorded the statements of the witnesses, namely, Md.

Suhaib Ahmad and Md. Farooq. He took the FIR named accused

Abdullah Quraishi on remand for 24 hours. On 31.12.2018, he

was transferred to Aayar Police Station whereafter he handed

over the investigation to the SHO, J. P. Singh.

26. In his cross-examination, he admitted that he did

not find a single drop of blood at the place of occurrence. He

admitted that he did not record the statement of any independent

witness except the injured. He admitted that the place of

occurrence is situated at a distance of 500 metre from Ara Town

Police Station. He admitted that he received information

regarding the incident firstly on his mobile no.7004118107, but

he did not remember number by which the call was made. The

said call was made by one Manoj, a Sub-Inspector of Police

posted at Ara Town Police Station. He admitted that he did not

record the statement of said Manoj in the case-diary. He

admitted that when he reached at the place of occurrence,

neither the family members of the deceased nor any other person

was present there. He did not seize any article from the place of Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

occurrence. He admitted that the place of occurrence is in the

Shobha Market where many people came for shopping. He

admitted that he did not make any effort to know the antecedent

of the deceased Imran. He further admitted that he did not seize

any weapon of crime.

27. Rahmatullah (P.W.8) is the second Investigating

Officer of the case. He stated in his testimony that he took over

the investigation of the case under the orders of SHO, Jay

Prakash Singh on 19.01.2019. After taking over the investigation

of the case, he recorded the statements of witnesses, namely,

Amir Faiyaj and Suhaib Ahmad. On finding the allegations

made in the FIR to be true during investigation, he submitted

charge sheet No.151 of 2019 on 31.05.2019 under Sections 387,

302, 307 and 120B of the IPC and Section 27 of the Arms Act

against Shamsher Miyan, Guddu Miyan and Fuchan Miyan.

28. In cross-examination, he admitted that when the

witnesses had seen the CCTV footage, they did not identify

Shamsher Miyan. He admitted that he had shown CCTV footage

of Shobha Market to Md. Suhail, which was produced by him as

material Exhibit-1 before the court. However, he could not

locate Ahmad Miyan, Abdullah Qureshi and Khurshid Qurashi

in the CCTV footage when it was shown to him on 20.01.2019. Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

He admitted that during investigation, Suhail has not stated him

that Amir Faiyaj and Md. Saddam were present at the place of

occurrence. He admitted that during investigation Suhail did not

tell him that at the time of occurrence Amir Faiyaj and Md.

Saddam were present at the place of occurrence. He admitted

that when the incident had taken place, he was posted at

Aurangabad District. He joined at Ara Town Police Station on

31.12.2018. He had no concern with the investigation of the case

prior to 31.12.2018. He admitted that he has not mentioned in

the case diary as to when he took over the investigation of the

case. He admitted that he had not prepared the seizure list of

CCTV footage. He admitted that there is no mention that the CD

of CCTV footage was kept in sealed cover. He stated that he had

sent the CD to FSL, Patna, but it was reported to him that

examination of CD is not done at the FSL, Patna. After the

Material Exhibit-1 was shown to him, he admitted that there is

no mention on the envelop as to when it was sealed. He admitted

that there is no seal of the police station on the envelop. He

admitted that he did not record the statement of any independent

witness during investigation. He also admitted that the CD of

CCTV footage was not played before the court and he

categorically stated that he is not aware as to when the CD was Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

prepared. He stated that he does not remember as to when it was

received by him. He also admitted that the envelop of CD

appears to be new. He denied the defence suggestion that he had

made an erroneous investigation and had illegally submitted the

charge sheet in the case.

29. After examination of P.W.8, the prosecution closed

its case. Thereafter, in order to enable the appellants to explain

the circumstances appearing against them, the Trial Court

recorded their statements under Section 313 of the CrPC in

which they denied the charges and pleaded their innocence.

30. The defence did not lead any oral or documentary

evidence during trial.

31. Since the defence did not lead any oral or

documentary evidence, the Trial Court closed the defence case.

32. Thereafter, arguments advanced on behalf of the

parties were heard and, on appreciation of evidence on record,

the Trial Court held the appellants guilty to the charges noted

hereinabove vide impugned judgment dated 09.03.2021 and

sentenced them vide impugned order dated 14.06.2021.

33. Mr. Pratik Mishra, learned counsel for the appellant

Furchan Miyan @ Fuchan Miyan in Criminal Appeal (DB)

No.513 of 2021 submitted that in the instant case, there was an Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

inordinate delay of about six hours in the institution of the FIR.

He contended that it is admitted by the witnesses that the police

station was situated at a distance of 0.5 kilometre from the place

of occurrence and the police had arrived at the place of

occurrence immediately after the incident and prepared the

seizure list and the inquest report. He contended that the undue

delay caused in the institution of the FIR specially when the

witnesses were present at the place of occurrence when the

police reached there immediately after the incident creates a

serious doubt about the veracity of the prosecution case. He

contended that the FIR becomes a suspicious document also

because the same was instituted after the major part of the

investigation was over. He contended that the medical evidence

in the present case is highly inconsistent with the prosecution

story. The doctor who conducted the postmortem examination

on the body of the deceased stated that the time elapsed since

death was 6 to 36 hours whereas the postmortem examination on

the body of the deceased was conducted within 3 hours of the

commission of the crime. Lastly, he contended that the non-

examination of the material witnesses like the injured informant,

police officers, who lodged the FIR formally, prepared the

inquest report and the seizure list on the date of occurrence and Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

the brothers of the informant and the deceased, namely, Suhail

and Md. Saddam has caused serious prejudice to the defence

case. He urged that the findings of the Trial Court are erroneous

as the prosecution has miserably failed to prove its case beyond

reasonable doubts.

34. Mr. Ashutosh Nath, learned counsel for the

appellants Samsher Miyan and Guddu Miyan in Criminal

Appeal (DB) No.556 of 2021 has also made submissions on the

same line. He submitted that the impugned judgment of

conviction and order of sentence passed by the Trial Court is

illegal, perverse, unwarranted and against the materials on

record. He contended that though the incident took place in a

busy market, no independent witness has been examined in the

present case. He further contended that the Material Exhibit-1 is

an electronic evidence, which was neither played before the

court nor it is known what are its contents. Furthermore, it was

not proved in accordance with law.

35. Mr. J. P. Singh, learned amicus curiae appearing in

Death Reference No.07 of 2021 submitted that though P.W.1 and

P.W.2 have stated in their testimony that blood had fallen on the

floor from the wound of the deceased, the first Investigating

Officer admitted in this cross-examination that he did not find a Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

single drop of blood at the place of occurrence. He submitted

that the inquest report (Exhibit-2) would suggest that it was

prepared at 1:45 pm on 06.12.2018 and P.W.2 Suhaib was a

witness to the inquest. The inordinate delay caused in the

institution of the FIR would make the entire prosecution case

unbelievable. He submitted that even if the prosecution story is

believed to be true, awarding death penalty to all of the named

accused in the instant case seems to be erroneous and

exaggerating as the guidelines issued by the Supreme Court in

Bachan Singh vs. State of Punjab, reported in (1980) 2 SCC

684 and Machhi Singh & Ors. vs. State of Punjab, reported in

1983 SCR (3) 413 for awarding death sentence in the rarest of

rare case have been overlooked by the Trial Court.

36. On the other hand, Ms. Shashi Bala Verma, learned

Additional Public Prosecutor for the State being assisted by Mr.

Ravindra Kumar, learned counsel for the informant submitted

that the Trial Court has correctly appreciated the evidence on

record. She submitted that two brothers of the deceased Imran

and the injured Akil Ahmad are witnesses to the occurrence.

Their evidence is fully corroborated by the medical evidence.

They have fully established the place of occurrence and the

manner of occurrence in their testimony. She further contended Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

that P.Ws. 1 and 2 have given vivid description of the manner in

which the incident took place and P.W.3, the doctor, who

conducted the postmortem examination on the body of the

deceased Imran found seven entry wounds on his person.

Further, the doctor, who examined the injured Akil Ahmad also

found gun shot injury in his abdomen as narrated by the eye

witnesses to the occurrence. She further contended that the Trial

Court has rightly awarded the death sentence in the present case

as the incident was committed in broad day light in a busy

market at Ara township.

37. We have heard the submissions advanced on behalf

of the parties and the learned amicus curiae and perused the

materials on record.

38. Upon scrutinizing the evidence adduced on behalf

of the prosecution, we find that in the instant case, apart from

the deceased, there are two injured witnesses, namely, Akil

Ahmad and Md. Farukh. Neither the injured informant nor Md.

Farukh has been examined on behalf of the prosecution. There is

no explanation as to why they have not been examined in the

case.

39. We further find from the evidence of P.Ws. 1 and 2

that at the time of incident, their brothers, namely, Suhail and Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

Saddam were also present in the shop at the Shobha market.

They also accompanied the deceased and the injured when they

were taken to the Sadar Hospital from the place of occurrence.

However, they have been withheld by the prosecution during

trial.

40. Similarly, the formal FIR was drawn by one

Jagniwas Sharma, a police officer posted at Ara Town Police

Station, which was duly singed by Jay Prakash Singh, the SHO

of Ara Town Police Station. They too have been withheld by the

prosecution. The other two police officers, namely, Pawan

Kumar Singh and Ramanuj Singh, who had prepared the seizure

list and the inquest report respectively on 06.12.2018 have also

not been examined by the prosecution. The Sub-Inspector of

Police, namely, Manoj, from whom the Investigating Officer,

Jay Prakash Rai came to know about the incident first has also

not been examined by the prosecution. They all were material

witnesses. Their examination would have unfolded several

relevant facts of the case. Their withholdment by the prosecution

without any reasonable explanation has certainly caused

prejudice to the case of the defence.

41. As per the prosecution case, the offence was

committed at 12:48 pm on 06.12.2018. The distance of the Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

police station from the place of occurrence was merely 500

metre. The police officer had reached at the place of occurrence

at 1:30 pm itself which would be evident from the seizure list

which was prepared on 06.12.2018. The body of the deceased

Imran was taken to the Sadar Hospital, Ara where the inquest

report was prepared at 1:45 pm on 06.12.2018 by the Sub-

Inspector of Police Ramanuj Singh. The evidence would suggest

that P.W.1 and P.W.2 were present with the body of the deceased

when it was taken from the place of occurrence to the Sadar

Hospital, Ara. Not only this, P.W.2 Suhaib is a witness to the

inquest report. He has proved his signature on it, which has been

marked as Exhibit- 1/1. The postmortem examination on the

body of the deceased was conducted at 3:10 pm on 06.12.2018

by P.W.3, Dr. Jitendra Nath Mishra. The body of the deceased

Imran at the time of postmortem examination was identified by

one Yugal Manjhi, a Havildar. P.W.3 has admitted in his

deposition that in the postmortem examination report, police

station case number has not been mentioned. Till the completion

of the postmortem examination on the body of the deceased, no

statement was given to the police either by the P.W.1 Amir

Faiyaj or by P.W.2 Suhaib and the present FIR was lodged on

the basis of written report by the injured Akil Ahmad much latter Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

at 6:30 pm on 06.12.2018.

42. At this stage, it would be pertinent to note that

P.W.1 had admitted in cross-examination that the injured

informant was conscious after sustaining gun shot injury in his

abdomen. He was also under treatment in the Sadar Hospital,

Ara where the police had prepared the inquest report. Dr. Arun

Kumar (P.W.5), who examined the injured informant, opined

that the injury sustained by him was simple in nature. However,

he did not give any statement to the police when the police

visited the place of occurrence and the hospital. Thus, if the

prosecution evidence is to be believed, a definite information

about the killing of Imran and causing injury to the injured Akil

Ahmad was brought to the notice of the police pursuant to which

the police party reached at the place of occurrence and prepared

the inquest report at 1.30 pm on 06.12.2018.

43. Under such circumstance, the FIR ought to have

been registered promptly on 06.12.2018 specially when the

police station was at a distance of only 500 metre only and

several police officers were present at the place of occurrence.

But, in the instant case, despite the knowledge of a heinous

offence having been committed, no FIR was lodged by the

police and after a considerable lapse of time, the FIR was Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

instituted on a purported written report submitted by the injured

Akil Ahmad, who has not even turned up to depose before the

court during trial.

44. It is well known that the object of FIR is to set the

criminal law in motion. It is the information given to the police

on the basis of which the criminal law is set in motion. It

enables the officer-in-charge of the police station to initiate the

investigation and to collect evidence as soon as possible.

Though, there is no duration of time, which is fixed for giving

information of a crime to the police, if the police officer

deliberately fails to record the FIR on receipt of information of a

cognizable offence and registers FIR after considerable lapse of

time, the entire investigation gets contaminated. Many a time,

the faulty investigation leads to the collapse of the prosecution

case and the criminal justice system.

45. In State of Andhra Pradesh vs. Punati Ramulu

and Ors. reported in 1994 Supp (1) SCC 590, the Supreme

Court observed:

"The investigating officer has deliberately failed to record the FIR on receipt of information of a cognizable offence of the nature, as in this case, and had prepared the FIR after reaching the spot after due deliberations, consultations and discussions, the conclusion Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

becomes inescapable that the investigation is tainted and it would, therefore, be unsafe to rely upon such a tainted investigation, as one would not know where the police officer would be stopped to fabricate evidence and create false clues".

46. In Mukesh and Ors. vs. NCT of Delhi and Ors.

reported in (2017) 6 SCC 1, the Supreme Court observed:

"Delay in setting the law into motion by lodging of complaint in court or FIR at police station is normally viewed by courts with suspicion because there is possibility of concoction of evidence against an accused. Therefore, it becomes necessary for the prosecution to satisfactorily explain the delay. Whether the delay is so long as to throw a cloud of suspicion on the case of the prosecution would depend upon a variety of factors. Even a long delay can be condoned if the informant has no motive for implicating the accused."

47. The discussions made above would make it

evident that in the instant case the police have deliberately

failed to institute the FIR on receipt of an information about a

cognizable offence of heinous nature and started investigation

even without registration of the case. The police failed to

register the FIR even after reaching the spot and commencing Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

the investigation. They allowed the injured and the deceased to

be taken to the Sadar Hospital, Ara where they prepared the

inquest report and handed over the body of the deceased to the

doctor for postmortem examination and the doctor commenced

and completed the postmortem examination at 3:10 pm on

06.12.2018. The institution of the FIR in the evening at 6:30

pm on the basis of the written report by the injured Akil Ahmad

clearly gives an impression that the same was instituted after

due deliberations, consultations and discussions. Thus, in view

of the observations made by the Supreme Court in Punati

Ramulu (supra) and Mukesh and Ors. (supra), it can safely be

said that it would be highly unsafe to rely upon such a tainted

investigation, as one would not know to what extent the police

officers fabricated evidence and created false clues.

48. Insofar as the testimony of P.W.2 Suhaib is

concerned, he stated that he has signed on the inquest and his

signature has been marked as Exhibit-1/2. The deceased was

none other than the brother of P.W.2 Suhaib. It was prepared by

the police almost one hour after the occurrence on which P.W.2

had also signed. It is beyond comprehension what prevented

P.W.2 Suhaib to give statement to the police about the alleged

occurrence if he had actually witnessed the occurrence. Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

49. It may be a case of blind murder and nobody knew

who were the real culprits and that is the reason despite signing

on the inquest report, P.W.2 failed to give any information to

the police.

50. Insofar as the testimony of P.W.1 is concerned, he

stated that Akil Ahmad sustained firearm injury in his abdomen

and head. However, the doctor, who had examined the injured

informant did not find any injury on his head. He admitted in

his cross-examination that the deceased had sustained 16-17

firearm injuries, which is contrary to the postmortem report

where only 7 entry wounds have been found by the P.W. 3 Dr.

Jitendra Nath Mishra, who had held the postmortem

examination. He admitted in his cross-examination that in the

previous trial arising out of the same police case in which some

other accused persons were put on trial he had not taken name

of any of the accused persons involved in the crime.

51. Now coming to the medical evidence of the doctor

(P.W.3), we notice that he had held the postmortem

examination on the body of deceased Imran at 3:10 pm on

06.12.2018, i.e., less than 2 hours and 13 minutes from the time

of incident. He further stated that the time elapsed since death

was 6 to 36 hours. According to him, rigor mortis was present Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

on the whole body of the deceased. As discussed hereinabove,

the alleged time of occurrence is 12:48 pm.

52. As per Chapter XIV of Modi's Textbook of

Medical Jurisprudence and Toxicology: 24 Edition, 2012, the

time of onset of rigor mortis varies greatly in different cases,

but the average period of its onset may be regarded as 3 to 6

hours after death in temperate climates, and it may take 2 to 3

hours to develop. In India, it usually commences in 1 to 2 hours

after death. In temperate regions, rigor mortis usually lasts for 2

to 3 days. In Northern India, the usual duration of rigor mortis

is 24 to 48 hours in winter and 18 to 36 hours in summer. On

the basis of the study of various books on Medical

Jurisprudence, it can easily be inferred that in general, rigor

mortis sets in one to two hours after death and is well

developed from head to foot in about 12 hours. In the instant

case, the doctor stated that the rigor mortis had developed on

the body of the deceased when he had conducted the post

mortem examination within 3 hours of the death. Thus, we are

of the opinion that the medical evidence is definitely not in

alignment with the ocular evidence relating to the time of

incident and the death of the deceased.

53. Insofar as the place of occurrence is concerned, Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

P.W.1 has stated that there was blood on the floor as well as on

the street. Even P.W.2 has stated in his evidence that the

Investigating Officer had seen the blood on the floor, which

was flowing from the head and waist of the deceased. However,

the Investigating Officer (P.W.7) stated in his evidence that not

a single drop of blood was found at the place of occurrence.

When multiple firearm injuries were caused on the deceased

and the informant had also sustained firearm injuries, not a

single drop of blood was found at the place of occurrence

indicates that the occurrence did not take place at the so-called

place of occurrence. Thus, the prosecution has failed to

establish the place of occurrence by leading cogent evidence.

54. Insofar as the CD of CCTV footage is concerned,

the same in itself does not prove anything. The said seizure was

prepared on 05.01.2019 by the first Investigating Officer. In his

entire evidence, P.W.7 has not stated anything about the seizure

of the so-called CD of the CCTV footage nor has proved the

contents of the seizure list. P.W.7 stated that he was transferred

to another police station on 31.12.2018 and handed over the

charge of investigation to the SHO JP Singh. He stated that he

was posted at Ara Town Police Station from 18.12.2017 to

31.12.2018. Hence, it is a mystery that if P.W. 7 was the Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

Investigating Officer of the case till 31.12.2018 then under

what capacity he had prepared the seizure list dated

05.01.2019. This may be reason why he did not whisper a word

in his entire evidence about the seizure list dated 05.01.2019.

Moreover, JP Singh, the SHO of Ara Town Police Station, who

was handed over the charge of investigation on 31.12.2018 by

P.W.7 has not been examined. It raises question on the

genuineness of the seizure list dated 05.01.2019 in respect of

the CD of the CCTV footage of the alleged occurrence.

55. Thus, on consideration of the entire evidence, we

are of the opinion that the prosecution has miserably failed to

prove the case beyond reasonable doubt against the appellants.

56. For all the reasons discussed above, the appeals are

allowed. The impugned judgment of conviction dated

09.03.2021 and the consequent order of sentence dated

14.06.2021 passed in Sessions Trial No.209 of 2019 arising out

of Ara Town P.S. Case No.739 of 2018 by the learned Additional

Sessions Judge-IXth, Bhojpur at Ara are, accordingly, set aside.

57. The appellants, namely, Furchan Miyan @ Fuchan

Miyan (in Criminal Appeal (DB) No.513 of 2021), Samsher

Miyan and Guddu Miyan (in Criminal Appeal (DB) No.556 of

2021) are acquitted of the charges levelled against them. They Patna High Court D. REF. No.7 of 2021 dt.17-08-2022

shall be released from the jail forthwith unless they are required

in any other case.

58. Since, we have allowed the appeals and set aside

the impugned judgment of conviction and the consequent order

of sentence passed by the Trial Court, the reference made by the

Trial Court for confirmation of death sentence vide Death

Reference No.07 of 2021 is, hereby, rejected.

59. Before parting with the death reference and these

appeals, we would record our appreciation for the able

assistance rendered by Mr. J. P. Singh, learned amicus curiae.

60. The Patna High Court, Legal Services Committee

is, hereby, directed to pay Rs.7500/- to Mr. J. P. Singh, learned

amicus curiae in Death Reference Case No.07 of 2021 as a

consolidated fee for the services rendered by him.

(Ashwani Kumar Singh, J)

( Harish Kumar, J)

kanchan/-

AFR/NAFR                AFR
CAV DATE                27.07.2022
Uploading Date          17.08.2022
Transmission Date       17.08.2022