Vir Bahadur Singh @ Lakki Singh @ ... vs The State Of Bihar
2023 Latest Caselaw 3763 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.117 of 2016
Arising Out of PS. Case No.-87 Year-2008 Thana- DURGAWATI District- Kaimur (Bhabua)
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Vir Bahadur Singh @ Lakki Singh @ Bir Bahadur Singh Son of Jang Bahadur Singh Resident of Village-Baduri P.s Durgawati, district Kaimur at Bhabhua.

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

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

For the Appellant/s : Mr. N.K. Agarwal, Sr. Advocate Mr. Viveka Nand Singh, Advocate For the Respondent/s : Mr. Sujit Kumar Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 17-08-2023 Heard Mr. N.K. Agarwal, learned Senior Advocate

for the appellant and Mr. Sujit Kumar Singh, learned APP

for the State.

2. The appellant has been convicted under

Section 302 of the IPC and Section 27 of the Arms Act

vide judgment dated 07.01.2016 passed by the learned

Additional Sessions Judge 1st -cum-Special Judge, Bhabua,

Kaimur in Sessions Trial No. 02 of 2009/14 of 2015,

arising out of Durgawati P.S. Case No. 87 of 2008 and

vide order dated 13.01.2016 he has been sentenced to Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

undergo R.I. for life, to pay a fine of Rs. 10,000/- and in

default of payment of fine to further suffer R.I. for one

year under Section 302 of the IPC and R.I. for seven

years, to pay a fine of Rs. 5000/- and in default of

payment of fine to further suffer R.I. for six months.

3. It appears that the learned Trial court has not

indicated whether the sentences will run concurrently or

consecutively.

4. The deceased (Gulab Sah) is the father of

Mithai Lal (P.W. 4), who is the informant of this case. He

has alleged in his fardbeyan recorded on 31.07.2008 in his

village that the appellant and others had come to his house

in the evening of 30.07.2008 and were abusing the family

members. At that time, one Vijay Singh came and scolded

the accused persons and sent them back to their respective

homes. He has further alleged that the cause for abusing

him and others was that he had filed a complaint before

the Sub-Divisional Officer, Mohania about a month ago in

which notice was issued and served upon one Kamla Sah Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

through a Chowkidar viz. Mahendra Rai. This had

infuriated Kamla Sah, who had complained against the

informant and others before the accused persons including

the appellant.

5. At about 08:00 P.M. on the same day, the

deceased was at his house whereas the informant and his

nephew Uday Chandra Keshari (P.W. 3) also came to rest.

Both P.Ws. 4 and 3 went inside the hut whereas the

deceased lay on the cot in the sitting area. At about 11:00

O' clock in the night, five persons are alleged to have come

from the northern direction. They flashed their torches

and again started abusing the informant and others. P.W.

4 claims to have seen the appellant with a torch in his

hand and a fire weapon in the other hand. He also saw the

appellant firing from 10 feet distance at his father. He

identified the other accused persons also who were

accompanying the appellant. After the firing was over,

P.W. 4 claims to have come to the place where the

deceased had been hit and found him dead. P.W. 4 could Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

see that the deceased was hit in his chest. The members

of the family and of the neighbourhood came. The female

inmates of the house started wailing.

6. The P.W. 4 therefore, has alleged that because

of the enmity with respect to a lane and the consequent

dispute of ingress and egress, the accused persons

including the appellant have killed the deceased.

7. On the basis of the aforenoted fardbeyan of

P.W. 4 Durgawati P.S. Case No. 87 of 2008 dated

31.07.2008 was instituted for investigation under Sections

302/34 of the IPC and 27 of the Arms Act against five

accused persons including the appellant. All the five

accused persons were chargesheeted and were put on trial.

8. However, the Trial Court after examining six

witnesses on behalf of the prosecution and one on behalf

of the defence acquitted all other accused persons but

convicted and sentenced the appellant as aforesaid.

9. Mr. Agrawal, learned Senior Advocate while

defending the appellant has submitted that from the Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

testimonies of informant/P.W. 4, his nephew/P.W. 3 and

the brother of the deceased viz. P.W. 2, it would become

very clear that none of them had seen the occurrence and

it was only because of old enmity that five persons were

made accused and out of the five such accused persons,

the role of firing was attributed to the appellant.

10. He has further submitted that if there was

any enmity which had to be avenged, it was against P.W. 4

and not against his father, who was an old man and had

nothing to do with the dispute between the parties.

11. The other ground on behalf of the appellant is

that according to the eye witnesses, the deceased was shot

at when he was sleeping on a cot. The post-mortem report

indicates that the deceased received two gun-shot wounds,

communicating with each other; the wound of entry being

in the chest. It has been submitted that such an injury

cannot be caused to a person who is lying on a cot. The

sequitur of this argument is that none of the eye witnesses

have actually seen the occurrence.

Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

12. Lastly, it has been submitted that the

appellant is alleged to have fired from a distance of 10

feet. This is too long a distance for causing the injuries as

was found on the body of the deceased. Additionally, it has

been urged that neither the source of identification viz. the

torch nor the weapon of assault were seized.

13. Thus, the argument on behalf of the appellant

is that the deceased may have died in some other

transaction or by somebody else, but the opportunity was

grabbed by the informant/P.W. 4 to frame all such persons

who had raised a dispute regarding the ingress and egress

through the lane for which a complaint was lodged by P.W.

4 before the Sub-Divisional Officer, Mohania.

14. As opposed to the aforenoted contentions Mr.

Sujit Kumar Singh, learned APP has submitted that in view

of the categorical assertion of three of the eye witnesses

that the appellant fired from his weapon hitting the

deceased, all other infirmities in the prosecution case are

reduced to insignificance. The houses in villages are not so Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

big that it will take long time for any body in a room

situated beyond the place of occurrence to come forward

and see the act himself.

15. Apart from this, it has been submitted that if

there was any intention on the part of the prosecution to

take advantage of the death of the deceased, the best

person to have been chosen for being framed was Kamla

Sah, against whom notice was issued and served on the

day of the occurrence.

16. This, therefore, pre-supposes that it was not

any concerted effort of the prosecution to frame Kamla

Sah but the prosecution aimed at bringing to the book the

guilty person, who in the present case is the appellant.

Merely because the source of identification viz. the torch

was not seized and the weapon of assault was not

recovered, the prosecution case cannot be discarded.

17. Three of the eye witnesses having no special

enemity with the appellant would not otherwise name him

as the main assailant of the deceased.

Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

18. It is a trite law by now that no body would

avoid naming the correct person as the assailant and

framing innocent person in his place.

19. On the aforenoted grounds, Mr. Sujit Kumar

Singh, APP submits that the judgment of trial court needs

no interference.

20. P.W. 4 has specifically stated during the trial

that he, P.W. 3, P.W. 2 and the wife of the deceased had

witnessed the occurrence. The cause of occurrence

according to him was a dispute with respect to a lane near

his house. A suggestion was given to him during the trial

that his father (deceased) was an accused in a case of

murder of his own uncle but the same was denied by him.

21. However, in the same breath, he has further

stated that there was no land dispute with the accused

persons. The dispute was only with respect to the lane.

22. However, what is important to note is that in

his cross-examination, P.W. 4 has specifically stated that

there is no electric connection in his village. In this Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

context, Mr. Agarwal for the appellant has drawn the

attention of this Court to the deposition of P.W. 2, who

also, according to P.W. 4, had seen the occurrence. He in

his examination-in-chief has stated that on the sound of

firing, he came out of his room and switched on the

electric light in which he saw the appellant shooting at the

deceased. If this be the correct version, then obviously

P.W. 4 had not made a true statement with respect to the

source of light for other witnesses, especially eye

witnesses, to have identified the appellant as having shot

at the deceased.

23. Contextually, while commenting upon the

veracity of the prosecution case, Mr. Agrawal has also

pointed out that P.W. 3, who is the grand-son of the

deceased and nephew of P.W. 4 has stated in his cross-

examination that after the occurrence, P.W. 4 called P.W.

2 on telephone. If the nephew (P.W. 3) of the informant is

to be believed, then perhaps P.W. 2 had not seen the Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

occurrence and had come to the P.O. only after being

informed by P.W. 4.

24. Thus, it appears that there are some doubts

about P.Ws. 2 and 4 having witnessed the occurrence.

25. If tested from another angle, we have further

found that P.W. 2 in his cross-examination has admitted

that when he came out of his room and saw the accused

persons including the appellant, his brother and nephew

had run away by that time and came back to the P.O. only

after the deceased was dead. This further creates doubt

about P.W. 2 having witnessed the occurrence.

26. However, we have found that the informant

(P.W. 4) and his nephew (P.W. 3) were all along present

when the occurrence had taken place and it is precisely for

this reason that the FIR was also lodged by P.W. 4.

27. P.W. 4 though has asserted that the firing

was resorted to from a distance of 10 feet but the nature

of injuries suffered by the deceased does not conform to Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

such a long distance firing. That apart, the deceased

according to P.W. 4 was sleeping when he was shot at.

28. Did the deceased get some idea that he was

the target that he got up from cot or he fell down from the

cot on receiving the gun-shot when he was again shot at

leading to the injuries?

29. In this context, it would be necessary to refer

to the deposition of P.W. 3, who in his cross-examination

has stated that when he went to the P.O. after the

deceased had already been shot at, he found him to have

fallen from the cot on the ground.

30. This, therefore, satisfies us that the deceased

may not have been shot at while he was sleeping on the

cot but sometimes later, either when he would have got up

or when he would have fallen down from the cot.

31. In this context, we have also taken note of

the statement of the I.O. that he had received telephonic

information at the police station that there was firing

between two groups of people in the village. This, Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

therefore, could be because of several rounds of firing by

the accused persons. Inter se firing between the

prosecution and the defence does not appear to be the

case, as there is no evidence confirming that there was

cross-firing between the parties. Even otherwise, the

attempt of the defence has been to demonstrate that the

appellant was not present at the P.O. and therefore,

perhaps, a witness on behalf of the defence has been

examined viz. the Doctor who has testified to the fact that

the appellant was admitted in the hospital.

32. However, such an alibi has not been believed

by the Trial Judge and rightly so on the ground that there

is no mention of any disease or immediate necessity of

hospitalization of the appellant at the time when D.W. 1

claims it to be.

33. That there was dispute with respect to the

ingress and egress to a lane stands proved. But for the

aforenoted dispute, there was no other dispute. Some of Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

the accused persons come from the same village, as it

appears from the evidence on record.

34. However, we have not been able to find out

the relationship between Kamla Sah and the appellant.

Kamla Sah was the person who was served with a notice

from the Sub-Divisional Magistrate, Mohania against a

complaint made by P.W. 4 against Kamla Sah and others.

According to the prosecution version, Kamla Sah got

infuriated because of such notice and he along with his

companions came to the house of P.W. 4 and abused him.

With the intervention of one Vijay Singh, the immediate

fight between the parties could be avoided. It is required to

be noted that aforesaid Vijay Singh has not been examined

at the trial. He would have been the most impartial person

to state about these skirmishes which ultimately led to the

killing of the deceased.

35. The appellant along with Kamla Sah and

about four others are then said to have come to the house

of the informant at about 11 O' Clock in the night. Either Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

the appellant was very close friends with Kamla Sah or

related to him for him to accompany the accused persons

to the house of the informant. Who would have been the

target, if at all there was an intention of the accused

persons to commit some crime? The answer is obviously

the informant and no body else with whom Kamla Sah

would only be interested in avenging the enmity.

36. In this fact-scenario, if at all, the informant

would have chosen to falsely implicate any one of the

accused persons, the natural choice would have fallen on

Kamla Sah and not the appellant, unless it were shown

that it was at the instance of the appellant that this crime

was executed or that the appellant also was somehow or

the other concerned with the dispute regarding the lane.

Kamla Sah was present at the place of occurrence, if P.Ws.

2, 3 and 4 are to be believed. There were others also who

were armed with garasa etc. There does not appear to be

any premeditation or else other members of the house also

would have been harmed.

Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

37. In such a situation, it was the sole act of the

appellant in opening fire.

38. Could such injuries have been caused by firing

resorted to from such a distance is the question that

troubles us.

39. We, however, are of the view that the

assessment of P.W. 4 of the distance from which firing has

been made was only a ballpark assessment.

40. Thus disputing the homicidal death of the

deceased because of firing cannot be rejected only on the

aforenoted assessment of P.W. 4 about the distance from

which the firing was resorted to.

41. There are some other points on which the

prosecution version could be doubted. To name some; the

village had safety teams operating in the night. In such a

situation, if murder is committed by a group of villagers of

a co-villager, there is every likelihood of the accused

persons being nabbed by the village safety team. If not, Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

the weapon of assault would have been recovered. The

police is stated to have come to the village in the night.

42. We have no evidence on record to indicate

that any search was made in the houses of the accused

persons including the appellant. There is no evidence either

that the appellant and the other accused persons retreated.

From where were they arrested has not been brought in

evidence.

43. True it is that in the absence of weapon of

assault, when the same could have been easily recovered

and the torches in the light of which the identification

primarily was made, the prosecution case stands weakened

but these cannot be the grounds for rejecting the

prosecution case altogether.

44. The reason for our saying so is that many a

times, investigation is conducted in a faulty manner. For

the fault and unprofessionalism of the I.O., the case of the

prosecution cannot be jettisoned.

Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

45. Taking the totality of the circumstances, we

find that these lapses do not make the prosecution case

any doubtful for it to be rejected forthrightly.

46. The I.O. of this case has been examined as

P.W. 6. The description of the place of occurrence given by

him makes it very possible for the informant/P.W. 4 to

have seen the occurrence, if he were there at the time of

the occurrence. The deceased was sleeping on the veranda

on a cot whereas P.Ws. 4 and 3 were sleeping inside a

room, adjoining the veranda. No sooner was the sound of

firing heard by both of them, they came out to see the

appellant and others assembling at their house and

appellant firing from his weapon. It would have been

extremely naive of P.Ws. 3 and 4 to have waited for them

to have been harmed or to have challenged the accused

persons when they themselves were not armed. The

natural conduct therefore, was that they went for a cover

for themselves and came back only when the occurrence Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

was over, to find the deceased dead with a gun-shot

wound.

47. Lastly, we have found that there was no

reason strong enough for falsely attributing the role of

firing to the appellant. If P.W. 4 was attempting at feeding

fat the old grudge, the appellant was not the person. The

appellant has not been named in the first part of the

occurrence, when supporters of Kamla Sah had come to

his house in the evening to complain against such case

having been lodged by P.W. 4.

48. We have also wondered, as to why the

accused persons stopped after firing at the deceased,

leaving the main person viz. the informant alive. Not that

they were challenged by the inmates of the house or the

villagers that they fled away.

49. Not every question but can be answered but

in this scenario, we have found that to the extent of the

allegation that the appellant had fired which hit the

deceased, P.W. 4 is required to be believed.

Patna High Court CR. APP (DB) No.117 of 2016 dt.17-08-2023

50. These above noted aspects have persuaded

us to ratify and affirm the judgment and order of

conviction by the Trial Court.

51. As noticed by us, the sentences imposed upon

the appellant under Section 302 of the IPC and Section 27

of the Arms Act have not been directed to run

concurrently. In our estimation, this appears to be an

inadvertent mistake. Even otherwise also, we find that the

sentences imposed upon the appellant under two different

sections are required to run concurrently.

52. We order accordingly.

53. For the reasons aforenoted, the judgment and

order of conviction is affirmed and the appeal is dismissed.

                                                                            (Ashutosh Kumar, J)


                                                                          (Alok Kumar Pandey, J)

krishna/vasudha
AFR/NAFR                NAFR
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Uploading Date          21.08.2023
Transmission Date       21.08.2023