Chandan Singh @ Chandan Kumar vs The State Of Bihar
2022 Latest Caselaw 2997 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.645 of 2012
     Arising Out of PS. Case No.-80 Year-2009 Thana- AURAI District- Muzaffarpur
======================================================

Kislay Kumar Singh S/O Uma Shankar Prasad Singh Resident Of Village Chahuta, Police Station Aurai, District Muzaffarpur.

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

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 655 of 2012 Arising Out of PS. Case No.-80 Year-2009 Thana- AURAI District- Muzaffarpur ====================================================== Chandan Singh @ Chandan Kumar S/O Shiv Kumar Singh Resident Of Village- Chauhata, P.S.- Aurai, District- Muzaffarpur

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

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

(In CRIMINAL APPEAL (DB) No. 645 of 2012) For the Appellant/s : Mr. Pratik Mishra, Adv.

For the Respondent/s :    Mr.A.Sharma App
(In CRIMINAL APPEAL (DB) No. 655 of 2012)
For the Appellant/s  :    Mr.Udit Narayan Singh, Adv.
                          Mr. Gajendra Kumar Singh, Adv.
For the State        :    Mr.Shashi Bala Verma, APP
For the Informant    :    Mr. Gopal Pd. Roy, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE A. M. BADAR and HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR)

Date : 20-05-2022

Heard Mr. Pratik Mishra, Mr. Udit Narayan Singh and

Mr. Gajendra Kumar Singh, learned counsel appearing for the

appellants as well as Mr. Gopal Prasad Roy, learned counsel Patna High Court CR. APP (DB) No.645 of 2012 dt.20-05-2022

appearing for the informant and Ms. Shashi Bala Verma and Mr.

Abhimanyu Sharma, learned Additional Public Prosecutor for

the State.

2. This appeal is preferred by the appellant

challenging the judgment of conviction dated 27 th of April, 2012

and order of sentence dated 19th of May, 2012 passed by the

learned Sessions Judge, Muzaffarpur in Sessions Trial no. 45 of

2010 arising out of Aurai P.S. Case No. 80 of 2009.

3. By the aforesaid judgment dated 27th April, 2012

appellant- Chandan Singh has been convicted for the offence

punishable under Section 302 of the Indian Penal Code and

appellant Kislay Kumar Singh has been convicted for the

offence punishable under Section 302/34 of the Indian Penal

Code. By the impugned order, both the appellants have been

sentenced to undergo imprisonment for life and a fine of Rs.

25,000/- and in default of payment of fine to undergo an

additional imprisonment for one year.

4. The FIR giving rise to the sessions trial was

registered on the basis of the statement of the informant,

namely, Prakash Kumar Sinha @ Nattu Singh, P.W.-6.

Recapitulating the prosecution case, in short, is that on

28.09.2009 at about 6 or 6.30 p.m. two idols of Goddess Durga, Patna High Court CR. APP (DB) No.645 of 2012 dt.20-05-2022

installed at Semri Bazar, were being taken to Lakhan Dei river

for immersion. When the procession for taking the idols to the

river reached near the bridge, some altercation took place

between the son of the informant, namely, Samant Kumar Singh

and accused persons Chandan Singh and Kislay Kumar. Both

the accused persons threatened to kill the son of the informant

saying that they would eliminate him from the world. After

immersion of the idols, Samant Kumar returned to the flour mill

of his uncle Krishna Chandra Sharma. At that time, informant

was sitting there. At about 7 or 7.30 p.m. both the accused

persons reached at the flour mill with knives in their hands.

They threatened the persons present there not to raise alarm

otherwise they would be killed. The informant and his brother,

who were present there, became afraid. After that the accused

persons caught hold of Samant Kumar with his collar and

dragged him to the brick soling road situated in front of the flour

mill. Accused Kislay Kumar Singh caught hold of the arms of

Samant Kumar and accused Chandan inflicted knife blow under

his left armpit. On hearing the alarm, the informant and his

brother Krishna Chandra Sharma and the villagers rushed to the

spot, but the assailants managed to flee away. With the help of

villagers, informant took his son to the local doctor, who after Patna High Court CR. APP (DB) No.645 of 2012 dt.20-05-2022

giving first aid, advised the informant to take his son to Aurai

Hospital or to Muzaffarpur Hospital. Then the informant took

his son to Aurai Hospital, where the doctor declared him dead.

The informant brought the dead body of his son to Aurai police

station and got recorded his Fardbeyan.

5. On the basis of Fardbeyan of the informant, Aurai

P.S. Case No. 80 of 2009 was registered under Section 302/34

of the Indian Penal Code against both the accused persons. The

police investigated the case and after completing the

investigation submitted charge-sheet against Chandan Kumar

and Kislay Kumar Singh. Cognizance of the offence was taken

by learned Magistrate on 21.11.2009. The case was committed

to the court of Sessions on 18.01.2010 for trial and disposal.

6. Charge has been framed against Chandan Kumar

u/s 302 IPC and against Kislay Kumar Singh u/s 302/34 IPC.

The trial court explained the charge to them to which they

pleaded not guilty and claimed to be tried. Hence, the trial

commenced.

7. To substantiate the charge levelled against the

accused persons, altogether nine witnesses have been examined

by the prosecution, out of which, six witnesses are witnesses of

fact and rest three are official witnesses. PW-1 Subhash Chandra Patna High Court CR. APP (DB) No.645 of 2012 dt.20-05-2022

Sharma is uncle of deceased. He proved the statement recorded

under Section 164 Cr.P.C, marked as (Ext.-1) and seizure list

marked as (Ext.-2). PW-2 Vimal Chandra Sharma is uncle of

deceased. His statement was recorded under Section 164 Cr.P.C.

marked as Ext-3. PW-3 Gopal Jha who is neighbour, has signed

the inquest report marked as (Ext.4). PW-4, Krishna Chandra

Sharma is uncle of deceased. He has signed the seizure list

marked as Ext.-2/1 and fardbeyan of the informant marked as

Ext.-5. PW-5 Shambhu Kumar Singh villager has signed the

inquest report marked as (Ext.-4/1). PW-6 informant/father of

deceased, signed on the fardbeyan marked as Ext. 6. PW-7 Dr.

Satyendra Kumar Sharma, who has provided first aid to the

deceased. PW-8 Dr. Vipin Kumar, who has conducted

postmortem on the dead-body of the deceased and had prepared

postmortem report marked as (Ext.-7) and PW-9 Amanullah

Khan, SHO of P.S. Aurai who has registered a case and prepared

the formal FIR marked as (Ext.-9) and was also the I.O. of the

case.

8. Statement of the accused persons was recorded

under Section 313 Cr.P.C.. Both the accused persons denied the

allegations and submitted that they are innocent. Accused

Chandan Singh has stated that he can not walk properly as he is Patna High Court CR. APP (DB) No.645 of 2012 dt.20-05-2022

disabled by his leg. On the alleged day of occurrence, he was

not in a position to move as he was on fast on the eve of

Dushehrra.

9. The defense examined one witness namely Naval

Prasad Singh (DW-1). He had come to the court along with

Handicap Register pertaining to the year 2008 and has proved

the disablement certificate of accused Chandan Singh. He has

filed photocopies of Handicap Register marked as Ext.-A and

disablement Certificate marked as Ext.-B.

10. PW-1 Subhash Chandra Sharma, uncle of

deceased has stated that at 7 or 7.30 p.m. on 28.09.2009 when

he was returning home with Vimal Chandra Sharma (PW-2)

from Semari Chowk and reached near the flour mill, he heard

some noise. He rushed to the spot and saw that Kislay Kumar

was catching hold of the arm of Samant Kumar and Chandan

Kumar holding the collar of the deceased with one hand and

inflicted knife blow by another hand. In the light of electric bulb

of the flour-mill, he saw and recognized the assailants. He along

with others chased the accused persons for about twenty steps

but they fled away, waiving the knife in the air. Samant kumar

was lying in pool of blood. He was taken to Dr. Satyendra

Sharma (PW-7) who after providing first aid, advised to take Patna High Court CR. APP (DB) No.645 of 2012 dt.20-05-2022

him to Aurai or to Muzaffarpur for better treatment. They took

the injuired to Aurai Hospital, where the doctor declared him

dead. Then, they brought the dead body to the police station and

the father of the deceased Prakash Kumar Sinha got his

statement recorded there. His statement u/s 164 Cr.P.C. was

recorded by Magistrate and he identified his signature on

statement available on record, marked as Ext.-1. The police

collected blood stained earth from the spot. He has also

identified his signature on the recovery memo of blood stained

earth, marked as Ext. 2/1. P.W. 1 has further stated that due to

some dispute at the time of immersion of idols of Goddess

Durga, accused Chandan and Kislay had threatened to kill the

deceased.

11. PW-2 Vimal Chandra Sharma is second uncle of

deceased and has stated that he was also returning to home from

Semari Chowk and when he heard the noise, he rushed there

and saw the entire occurrence in the light of bulb of flour mill.

12. PW-3 Gopal Jha is a hearsay witness of the

incident. On 28.9.2009 at 7-730 p.m. it was the day of Dussehra

and he was at home. After hearing alarm, he came out of his

house and reached at the place of occurrence and saw that

Samant Kumar was lying in the pool of blood. Blood was Patna High Court CR. APP (DB) No.645 of 2012 dt.20-05-2022

profusely oozing out from his left armpit. He saw there that

father of the deceased (PW6) and his three uncles, namely,

Krishna Chandra Sharma (PW-4), Subhash Chandra Sharma

(PW-1) and Bimal Chandra Sharma (PW-2) were speaking that

Kislay caught hold of the arm of deceased and Chandan gave a

knife blow at left armpit of the deceased and fled away from the

spot. He has further stated that there was a cut in the shirt of the

deceased. He has proved his signature on inquest report, which

is marked as Ext. 4.

13. PW-4 Krishna Chandra Sharma is third uncle of

the deceased. He is also an eye witness of the incident. At the

time of alleged occurrence he was operating his flour mill.

Deceased was sitting there on a chair and father of the deceased

was sitting on cash counter. Kislay and Chandan entered into his

flour mill. Kislay was having knife in his hand. Both of them

started quarreling with Samant Kumar. When the informant and

his brother tried to pacify the matter, accused persons

challenged them with the words that if anybody would raise

alarm, they would kill him. Chandan with his left hand caught

hold of the collar of Samant, dragged him out to brick soling

road and stabbed knife under the left side of his armpit. Kislay

Kumar was catching hold the arms of Samant Kumar from back. Patna High Court CR. APP (DB) No.645 of 2012 dt.20-05-2022

He has proved his signature on the Fardbeyan as a witness,

which is marked as Ext.-5. PW-4 has further stated about the

motive or reason behind the occurrence that deceased wanted to

immerse idols of Goddess Durga from the bridge but Chandan

and Kislay wanted that before immersion, the idols be taken

round to the village.

14. PW-5 Shambhu Kumar Singh is a hearsay

witness. He has stated that on 28.9.2009 at 7-730 pm., he was at

Semari Bazar. When he heard about the incident, he reached at

the flour mill and saw that Samant Kumar was lying in the pool

of blood before the brick soling road of flour mill. His father

Prakash Kumar Sinha (PW-6) told him that Chandan Kumar has

stabbed the knife under the left arm pit of Samant while Kislay

was catching hold of his arms from back. This witness has

identified his signature on the inquest report, which was marked

as Ext. 4/1.

15. PW-6 Prakash Kumar Sinha is father of the

deceased. He is informant of the case and also an eye witness of

the occurrence. He has stated that on the day of Dussehera on

28.9.2009 at 7-7.30 p.m., he was sitting on the flour mill of his

younger brother and on same time his son also came there and

sat on a chair. Kislay and Chandan came to his mill and started Patna High Court CR. APP (DB) No.645 of 2012 dt.20-05-2022

quarrel with his son Samant. Chandan holding his collar,

dragged him out to the brick soling road and stabbed him under

left armpit. Kislay was catching hold of his arm from back and

after the alleged incident, they fled away from the spot waiving

the knife in the air. His son fell down. Vimal Chandra (PW-1)

and Subhash Chandra (PW-2) chased them upto some distance.

He and Krishna Chardra raised alarm, then several villagers

gathered there. He took his son to Dr. Satyendra Kumar Sharma

(PW-7), who provided him first aid and referred him to Aurai

Hospital or Muzaffarpur Hospital for better treatment. At Aurai

Hospital, doctor declared him dead. Then he brought the dead

body of his son to the police station and got his fardbeyan

recorded. He identified his signature on the Fardbeyan, which is

marked as Ext.6. He has also proved his signature on the

statement recorded u/s 164 Cr.P.C., marked as Ext-5.

16. PW-7 Dr. Satyendra Kumar Sharma, had

provided first aid to the deceased Samant Kumar He had

examined him and found a wound on the left side of his chest,

which was bleeding profusely. After giving first aid, he referred

him to Aurai Hospital or Muzaffarpur Hospital as the injury was

grievous.

17. PW-8 Dr. Vipin Kumar, who has performed Patna High Court CR. APP (DB) No.645 of 2012 dt.20-05-2022

autopsy on the dead body of deceased. He has stated that on

29.9.2009 at 11.30 a.m., he performed the postmortem

examination on the dead body of Samant Kumar, which was

identified by Chaukidar Swarath Paswan. He found rigour

mortis on all the limbs and following ante mortem injuries were

found on the dead body of the deceased:

(i) One punctured wound over lower part of left arm pit 7"lateral and above left nipple 1,1/4" X 3/4", cavity deep spindle in shape with clear cut margins and acute angle passing downwards and middle cutting the skin muscles and axillary artery.

(ii) On opening chest cavity, upper part of left lung was found pierced and punctured. Chest cavity was full with fluid blood.

18. PW.-9 Amanullah Khan was the SHO of P.S.

Aurai at the time of occurrence, has registered a criminal case of

the occurrence and has also investigated the same.

19. It is submitted by learned counsel for the

appellants that the judgment of conviction and order of sentence

passed by the trial court is bad in law as well as on facts. Trial

court has not appreciated the evidence adduced during trial in

right perspective and has erred in passing the judgment of Patna High Court CR. APP (DB) No.645 of 2012 dt.20-05-2022

conviction.

20. On the other hand learned counsel for the State

submitted that the judgment of conviction passed by the trial

court is correct and based on consistent and reliable evidence.

He further submitted that though the eye witnesses are related to

the deceased but their evidence is trustworthy and reliable and

has rightly been appreciated by the trial court.

21. Heard learned counsel for the parties and perused

the evidences available on record.

22.After careful appreciation of the testimony of the

witnesses, it transpires that the evidences are trustworthy and

fully corroborated by the medical evidence.

23. In respect of manner of occurrence, it has rightly

been ascertained by the trial court that corroboration with the

statements of all the eye witnesses and also with the medical

evidence. All the material witnesses have stated that accused

Kislay Kumar caught hold the arm of deceased and accused

Chandan Kumar gave a knife blow on his left armpit, causing

fatal injury to the deceased. The description of ante-mortem

injuries in the psotmortem report shows the seat of injury in

lower part of left armpit. According to the statement of

witnesses only one knife blow was given by accused Chandan Patna High Court CR. APP (DB) No.645 of 2012 dt.20-05-2022

and the Doctor has also found only one punctured wound caused

by sharp pointed weapon. Thus, the description of manner of

occurrence fully coincides with the medical evidence and there

appears no discrepancy, contradiction or exaggeration in the

statements of witnesses regarding the manner of occurrence.

24. Learned counsel for the appellants submitted that

all the eye witnesses including the informant are close relatives

of the deceased, so they are highly interested witnesses and their

evidence cannot be relied on. We scrutinized the evidence and

the impugned judgment. We have no hesitation to go with the

observation made by the learned trial court in respect of

conviction.

25. There appears no force in the above arguments.

Hon'ble Supreme Court in the case of Seeman alias Veeranan

vs. State represented by Inspector of Police (2005) 11 SCC

Cri. Page 142 has observed that "the evidence of close relative

can not be discarded merely because of his relationship with the

deceased. If the testimony of related eye'witness is corroborated

by medical evidence and there is no discernible discrepancy in

his evidence, the accused may be convicted."

26. Admittedly there was no previous enmity

between the parties. The defence has not even suggested any Patna High Court CR. APP (DB) No.645 of 2012 dt.20-05-2022

enmity between the parties. Therefore, the close relatives of

deceased had no reason to falsely implicate the accused persons,

while sparing the real culprits. Under these circumstances, it

appears that the quarrel between the deceased and accused on

the point of immersion of idols of Goddess Durga one hour prior

to the occurrence was the reason for the accused to commit the

offence.

27. All the prosecution witnesses have been cross-

examined at length by the defense, but except some minor

contradictions, they appear natural in their testimony. There

appears no embellishment, omission, exaggeration or

contradiction in the evidence of any of the witnesses so as to

cast a doubt on their credence or trustworthiness. Thus, the

evidence adduced by the prosecution as a whole appears reliable

and inspire confidence.

28. Further plea taken on behalf of the accused

Chandan Kumar is that he is handicapped person, therefore he is

unable to commit the offence. Prosecution has proved its case

by the consistent and trustworthy evidence of PWs 1, 2, 4 and 6

who are eye witnesses of this occurrence. It is not proved by the

defence that appellant Chandan Singh was unable to inflict knife

blow on the deceased. He participated in the procession of Patna High Court CR. APP (DB) No.645 of 2012 dt.20-05-2022

immersion of Goddess Durga. He can move smoothly from one

place to other. During examination of witnesses, on his behalf

this suggestion has not been made that he is unable to walk.

29. He has further argued that this is a case of single

blow in the left armpit. There is no attempt even to repeat the

blow. There is no intention to cause death. So this case comes

within the purview of Section 304 Part II of the IPC. It is proved

by the prosecution evidence that at the time of immersion of

Durga idols, some quarrel had taken place between the deceased

and the accused persons. Both the accused persons reached at

the deceased uncle's flour mill. They caught hold of him,

dragged him to the brick soling road. Kislay Kumar caught hold

of his arm and Chandan Kumar inflicted a fatal knife blow on

the left side of his armpit. PW.-8 Dr. Vipin Kumar Stated that

the injury caused to deceased was sufficient in ordinary course

of nature to cause death. The postmortem report shows that the

cause of death was found to be hemorrhage and shock as a result

of punctured wound caused by the sharp pointed knife. Thus,

this case is fully covered under the provision of Section 300 of

the IPC and punishable u /s 302 of the IPC.

30. So far as, appellant Kislay Kumar is concerned

allegation against him is that he was catching hold of the Patna High Court CR. APP (DB) No.645 of 2012 dt.20-05-2022

deceased to facilitate the accused Chandan Kumar to commit

the offence of stabbing. Thus he is equally responsible for the

murder of the deceased and, as such, benefits of doubt cannot be

given to him. The trial court rightly convicted both the

appellants for the offence committed by them. There is no

illegality in the impugned judgment of conviction and order of

sentence.

31. Having bestowed our deepest and anxious

consideration to all the evidence placed on record and also

attending circumstances of the case, I have not found any

compelling reasons for witnesses to implicate innocent persons

like the accused/appellants as they claim themselves to be

innocent. The many fold contentions raised by the counsel for

the appellants are devoid of merit. Hence, these two appeals are

fit to be dismissed.

32. In the result, the judgment of conviction dated 27 th

of April, 2012 and the order of sentence dated 19 th of May, 2012

passed by learned Sessions Judge, Muzaffarpur in Sessions Trial

no 45 of 2010 arising out of Aurai P.S. Case No. 80 of 2009 is

hereby confirmed. Appellant Kislay Kumar Singh is on bail. His

bail bond is cancelled and he is directed to surrender in the court

below to serve out the remaining period of sentence awarded by

the trial court.

Patna High Court CR. APP (DB) No.645 of 2012 dt.20-05-2022

33. Both the appeals stand dismissed.

( Sunil Kumar Panwar, J)

A.M. Badar, J:

(A. M. Badar, J) sushma/-

AFR/NAFR                    NAFR
CAV DATE                   17/5/2022
Uploading Date             20/5/2022
Transmission Date          20/5/2022