Shahid Akram @ Munna vs The State Of Bihar
2023 Latest Caselaw 2579 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
              CRIMINAL APPEAL (DB) No.269 of 2017

    Arising Out of PS. Case No.-327 Year-2010 Thana- MAJHAULIA District- West
                                    Champaran
==============================================

Shahid Akram @ Munna, Son of Late Sk. Ekram, Resident of Village- Semraghat, P.S.- Majhaulia, District- West Champaran

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

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

For the Appellant/s : Mr. Udit Naryan Singh, Advocate Mr. Ram Adya Singh, Advocate For the State : Mr. Ajay Mishra, APP ============================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE SHAILENDRA SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR) Date : 20-06-2023

We have heard Mr.Udit Naryan Singh for the

appellant and Mr. Ajay Mishra for the State.

2. The sole appellant stands convicted under

Section 302 of the IPC and has been sentenced to

undergo R.I. for the remainder of his life and a fine of

Rs.50,000/-. The fine so realized from the appellant has

been directed to be paid to Soni Khatoon, the widow of Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

one of the deceased (Faiyaz) and in her absence, to her

legal heirs vide judgment of conviction and order of

sentence dated 03.02.2017 and 10.02.2017,

respectively, passed in Sessions Trial No.482 of 2011

arising out of Majhaulia P.S. Case No.327 of 2010 by

the learned 5th Addl. Sessions Judge, West Champaran.

3. The case of the prosecution is that after a

discussion in the family in front of the Panches for

partition of property, a dispute arose between three

brothers, one being the appellant and the two others

being the deceased, with respect to apportionment of

family property. When the suggestion of the appellant

that a land contiguous to the house owned by the

brothers which stood in the name of Faiyaz, one of the

deceased, be given to him was denied by the two other

brothers, the appellant got enraged and attacked Faiyaz

with a knife and when the other brother, namely, Neyaz

came to the rescue of Faiyaz, he too was assaulted by

knife. This led to the death of both the brothers (Faiyaz Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

and Neyaz). The weapon of assault was handed over to

the appellant by his wife / Mahe Ara, who has not been

put to trial. After the occurrence, the appellant is said to

have fled away with the weapon of assault. On the cries

raised by the wife of Faiyaz / Soni Khatoon / P.W. 5,

many persons of the neighbourhood arrived and

attempted to take both the injured brothers to hospital

for treatment; but both of them succumbed to the

injuries a little later. Thereafter, their bodies were

brought back to the house and police was informed. The

father of P.W. 5, on being informed by her about the

occurrence, arrived but only after the police had arrived.

4. On the basis of the fardbeyan statement

lodged by P.W. 5, Majhaulia P.S. Case No.327 of 2010

dated 04.12.2010 was instituted for investigation for the

offence under Sections 302/34 of the Indian Penal Code

against the sole appellant.

5. The police, after investigation, submitted

charge-sheet, whereupon cognizance was taken and the Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

case was committed to the Courts of sessions for trial.

6. The Trial Court, after having examined

eighteen witnesses on behalf of the prosecution and two

on behalf of the defence, convicted the appellant and

sentenced him to undergo R.I. for life by taking resort to

the provisions contained under Section 211(7) read with

Sections 236 and 298 of the Code of Criminal

Procedure, as noted above.

7. Mr. Udit Narayan Singh, the learned

Advocate for the appellant, while assailing the judgment

of conviction and order of sentence, submitted that even

P.W. 5 is not an eye-witnesses to the actual assault,

whereas majority of the prosecution witnesses turned

hostile and did not support the prosecution case. He has

further submitted that P.Ws. 1, 2 and 7, who have

supported the prosecution case along with P.W. 5, are

only hearsay witnesses. He has further submitted that

there has been an inordinate delay in dispatching the

fardbeyan to the nearest Magistrate, which makes the Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

prosecution case highly doubtful. Additionally, it has

been argued that there was no reason for subjecting the

dead bodies to post-mortem on the next day when the

F.I.R. had already been recorded on 04.12.2010 by

around 06:30 p.m. The evidence in the case, it has been

argued, is absolutely lacking in as much as even the

witness on the point of recovery of knife on the pointing

of the appellant, which weapon was presumably used in

the commission of crime, has not supported such

recovery.

8. Apart from this, it has been urged that the

tenor of the evidence of P.W. 5 clearly indicates that

there was consultation and confabulation before naming

the appellant as the assailant of the two brothers. This

was not without any motive. One of the deceased /

Neyaz was unmarried and issueless, whereas the

appellant had only daughters. In case the appellant

would be convicted, the family property would have

devolved upon P.W. 5 or her children / heirs. Such Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

suggestions were also given during trial to P.W. 5 and

her father (P.W. 2).

9. Lastly, it has been urged that the sentence

slapped upon the appellant is also not in tune with the

legal provisions in as much as, no such charge was

framed regarding the previous conviction of the

appellant in a case of murder where he was sentenced to

life nor was such charge added during the course of trial.

In that case, there was no occasion or the justification of

the Trial Court to have sentenced the appellant for the

remainder of his life as such sentence for a fixed

period / whole life could be awarded only by

Constitutional Courts, viz., the Supreme Court and the

High Courts as has been held in Union of India vs. V.

Sriharan @ Murugan and Ors.; 2016(7) SCC 1 and

Vikash Chaudhary vs. State of Delhi; 2023 SCC

OnLine SC 472.

10. As opposed to the aforesaid contentions,

Mr. Ajay Mishra, the learned counsel for the State has Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

submitted that no doubt many of the witnesses have

turned hostile, but that does not take away the sterling

quality of the evidence offered by the wife of one of the

deceased, in whose presence the murder was committed.

It has further been submitted that only because P.W. 5

vacillated for a while in lodging the F.I.R. even on the

timely arrival of the police and waited for her father

(P.W. 2) to come, it cannot for sure be inferred that the

fardbeyan lodged by her was the product of consultation

and planning to falsely frame one of the surviving

brothers in the case. He has also submitted that the

contention of the appellant that the recovery of knife

was inadmissible as no Panchnama was drawn up with

respect to such pointing by the appellant and the

discovery of knife from the room occupied by the

appellant in the common house not being supported by

one of the witnesses to the recovery, the entire case

falls, is incorrect. The purpose of admitting that part of

the information which had led to the discovery is only to Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

ascertain that prima facie, the statement made by the

accused / appellant could be relied upon.

11. True, that such recovery has not been

proved to the extent that it ought to have been, but that

itself, would not efface the clear version of the sole eye-

witness of the occurrence, who is the wife of one of the

deceased.

12. In order to appreciate the contention of

the parties, it would be necessary to refer to the

deposition of P.W. 5 / Soni Khatoon, who has out-rightly

supported the prosecution case. The occurrence took

place on 04.12.2010 at about 02:30 in the day. The

discussions amongst the brothers and the Panches with

respect to apportionment of the family property

continued for the whole day till about 2 O'clock,

whereafter the Panches had left for their respective

homes. At about 02:30 in the day, only the three

brothers were discussing amongst themselves about

giving final shape to the partition agreement, when there Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

was an insistence of the appellant that a land registered

in the name of Faiyaz, located in the southern direction

of the house, be given to him as family arrangement.

This was not agreeable to either Faiyaz or Neyaz.

According to P.W. 5, this denial of the two brothers to

the demand of the appellant enraged him to such an

extent that he accepted the exhortation of his wife /

Maheara to kill both the brothers. The wife of the

appellant is said to have handed over a knife to the

appellant with which he first attacked Faiyaz. Then

Neyaz came to his rescue. The appellant attacked him

with the same weapon, leaving both the brothers

seriously injured. At this point of time, P.W. 5 claims to

have rushed near the slain husband and brother-in-law

and raised cries, which attracted the attention of many

others who came and took the two brothers to hospital

for treatment. However, the two brothers could not

survive. In the meantime, somebody had informed the

police about the occurrence for which a station diary Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

entry also was recorded, which fact stands confirmed by

the evidence of the I.O. (P.W. 16). Though the police

arrived at about 04:30 p.m., but P.W. 5 wanted her

father (P.W. 2) to come before she would give her

statement to the police.

13. P.W. 5, in her deposition, has admitted

that both the deceased brothers resided together. The

agricultural operations were conducted by her husband /

Faiyaz, who only maintained Neyaz, who at the relevant

time was studying at Aligarh. The appellant was separate

in mess and business. She has completely denied the

suggestion that the case has been lodged at the instance

of her father, who stands in the relation of maternal

uncle to the appellant. She has also denied the

suggestion that there was dispute between the two

deceased and when Neyaz demanded the account of the

family expenditure, Faiyaz attacked him, and as a

reprisal, Neyaz also attacked Faiyaz and in which scuffle,

both the brothers died. Though Neyaz was unmarried Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

and issue-less and the appellant had five daughters,

whereas P.W. 5 had two sons and one daughter, she has

rubbished the suggestion that the appellant has been

framed in this case only for the purposes of securing the

entire family property in her or her children's name.

14. When questioned in cross-examination,

P.W. 5 has candidly admitted that she could not prevent

Mahe Ara from handing over knife to her husband /

appellant for hurting the two deceased persons. Both,

she and Mahe Ara, were pregnant at that time.

15. Mr. Singh, however, has submitted that

from the statement of P.W. 5, it appears that she was

made to know about the occurrence only after the two

brothers had died. Such proposition does not appear to

be correct for the reason that P.W. 5 was present all

through the discussion between the brothers and the

assault on the two deceased by the appellant.

16. We have not found any discrepancy in the

deposition of P.W. 5 to disbelieve her on any point Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

whatsoever, be it the genesis of the occurrence or the

actual assault. If heated discussions were being held

between the brothers, P.W. 5 would not have realized

that the appellant would loose his nerve and would

commit such an act. Precisely for this reason, we do not

find anything unusual in P.W. 5 not immediately jumping

in the fray for preventing Mahe Ara from handing over

the weapon of assault to the appellant. There was some

hiatus between the assault and death, which becomes

very clear from the deposition of P.W. 5. The statement

of P.W. 5 that she was brought to the veranda of the

house to see the dead persons, therefore has to be seen

in that context. P.W. 5, we recon, saw the occurrence of

assault in which both, her husband and the brother-in-

law, lost their lives. The dead-bodies of the two slain

were brought back home when they succumbed to the

injuries. It was then that P.W. 5 was escorted to the

veranda to see the dead-bodies. This does not mean that

P.W. 5 had not witnessed the occurrence. Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

17. We have no reasons to accept the

proposition of the learned counsel for the appellant that

the vacillation of P.W. 5 in lodging the F.I.R. when the

police had already arrived and her waiting for her father

before such report was indicative of a studied

consultation for deliberately and maliciously framing the

appellant for ultimately securing the entire family

property in the name of P.W. 5. A woman, in whose

presence, her husband and the brother-in-law are killed

would become nonplussed and would wait for any family

or emotional support. The conduct of P.W. 5 in waiting

for her father before lodging the F.I.R. does not justify

any inference of such consultation and confabulation.

18. We have examined the deposition of the

I.O. of this case (P.W. 16). He admits of having learnt

telephonically at about 04:00 p.m. that somebody in

village Semraghat has been killed. On such information,

he went to the village Semraghat and recorded the

fardebyan of P.W. 5. Thereafter, he recorded the Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

statement of Nasir Ahmad (P.W. 2), Kallimullah (P.W.

12) and others. In presence of these witnesses, inquest

was prepared (Ext. 2/2). In presence of P.Ws. 2 and 12,

the blood-stained earth and grass was also seized and a

seizure-list was prepared (Ext. 4/2). Since darkness had

dawned by that time, the dead-bodies were not sent for

post-mortem. However, one Dafadar and Chowkidar

were deputed by P.W. 16 for the safety of the dead-

bodies. After recording the F.I.R., he visited the place of

occurrence on the next day and sent the dead-bodies for

post-mortem. The other witnesses were also examined

by him on the next day. The appellant was arrested on

06.12.2010 from a sugarcane field and his confession

was recorded. While confessing his guilt, the appellant

agreed to show the place where he had hidden the

weapon of assault. On such pointing, the knife was

recovered in presence of Javed Ahmad and Amirul

Hasan, P.Ws. 3 and 15 respectively.

19. It is necessary to note that P.Ws. 3 and Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

12, both, were declared hostile, but only P.W. 12 was

cross-examined about his being a witness to the

recovery of the knife, which he denied. Most of the

witnesses, who have later turned hostile during the trial,

stated before him (P.W. 16) during investigation that the

three brothers had fought amongst themselves and the

appellant had killed the two other brothers. In fact,

P.W. 16 has asserted that Khairati Amin (P.W. 10) had

stated before him that after the measurement of the

land, he had learnt that there was a fight between the

brothers for division of the property.

20. When questioned during cross-

examination, P.W. 16 has stated that because the

information on telephone was received on number 403,

therefore the name of the informer could not be

registered. Precisely for this reason, the name of the

deceased persons also could not be known before he

reached Semraghat village. He had recorded the receipt

of such telephonic information in the case diary. Only Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

five minutes later than recording of such information, he

had proceeded for the place of occurrence and reached

there by 06:30 p.m. He had also inquired as to who all

persons had taken the two injured for treatment, but on

way, both the injured brothers died. They were Javed

Ahmad, Kanihya Lal Prasad and Mangi Lal Gupta.

21. P.Ws. 2 and 12 have also supported the

version of P.W. 5, though as a hearsay witnesses only.

22. Mr. Singh has submitted that even though

the police station was located only at a distance of about

12 to 15 kilometers from the place of occurrence, but it

took an unreasonable time for the I.O. to reach the

place of occurrence. In the same strain, he had

submitted that the F.I.R. was dispatched after a delay.

Both delays, according to him, reflect that the

prosecution has not come with true version.

23. We are unable to accept such submissions

for the reason that the deposition of the witnesses

appear to be consistent and reliable as well. The seized Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

blood-stained earth and the weapon of assault were

though sent to the Forensic Science Laboratory for its

forensic examination, but the report does not prove

anything.

24. The result for the test of blood groupings

remained inconclusive.

25. Notwithstanding the aforesaid as also the

absence of proof of the recovery of the weapon of

assault at the instance of the appellant, we find that the

evidence of P.W. 5, the sole eye-witness to the

occurrence of assault, is highly reliable and cannot be

discarded on any score. The time of occurrence also fits

in the prosecution version. It was a winter afternoon

when the occurrence had taken place. While performing

the post-mortem, Dr. Ashok Kumar Chaudhary (P.W. 7)

found incised wounds on the bodies of the dead and also

found rigor mortis in both the dead-bodies. There is no

definite opinion regarding the onset of such rigor mortis.

The post-mortem examination was done at 09:00 a.m. Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

Even during winter months, rigor mortis would set in and

since it had not worn off, the timing of death suggested

by the P.W. 7, i.e., within 24 hours of the post-mortem

examination, appears to be consistent with the

prosecution case. What is important to note is that P.W.

7 denied that such injuries on the dead can positively be

said to have been caused by same weapon by each

other. Otherwise also, such an explanation / defense

does not appear to be probable. If Faiyaz had assaulted

Neyaz, it would be too much to expect that Neyaz would

take out such weapon of assault from his own body and

would assault Faiyaz leading to their death.

26. From the evidence during trial, it becomes

very clear and without any doubt that the only assailant

of the two brothers was the appellant and no one else.

27. This takes us to the sentencing of the

appellant. The factum of the appellant having been

convicted and sentenced earlier in a murder case was

never put in the charge. Section 211(7) of the Code of Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

Criminal Procedure provides that "if the accused, having

been previously convicted of any offence, is liable, by

reason of such previous conviction, to enhanced

punishment, or to punishment of a different kind, for a

subsequent offence, and it is intended to prove such

previous conviction for the purpose of affecting the

punishment which the Court may think fit to award for

the subsequent offence, the fact, date and place of the

previous conviction shall be stated in the charge; and if

such statement has been omitted, the Court may add it

at any time before the sentence is passed". (emphasis

provided).

28. The charge against the appellant does not

mention the factum of the appellant's earlier conviction

and sentence. Nor was it ever added by the Trial Court

prior to sentencing him. Per force, the proviso to

Section 236 of the Code of Criminal Procedure is also to

be noticed. It provides that "no such charge shall be

read out by the Judge nor shall the accused be asked to Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

plead thereto nor shall the previous conviction be

referred to by the prosecution or in any evidence

adduced by it, unless and until the accused has been

convicted under Section 229 or Section 235" .

29. The appellant has been convicted under

Section 235 of Code of Criminal Procedure. During his

arguments under Section 235(2) of the Cr.P.C., he

never disputed the factum of his earlier conviction and

sentence, but only submitted that such judgment is

under appeal which has yet not been decided. Thus,

there was no necessity of proving such conviction by the

Court. However, in the absence of any such mention in

the charge, the previous conviction of the appellant

could not have been taken into account while sentencing

the appellant for imposing imprisonment for whole of his

life. As noted above, even otherwise such power of

modified sentence or sentence for a fixed term or for the

remainder of life is not in the domain of the Trial Court

but in the Constitutional Courts, namely, the Supreme Patna High Court CR. APP (DB) No.269 of 2017 dt.20-06-2023

Court and the High Courts. [refer to Union of India vs.

V. Sriharan @ Murugan and Ors. and Vikash

Chaudhary vs. State of Delhi (supras).

30. On that score, we find flaw in the decision

of sentencing the appellant.

31. Thus, affirming the conviction of the

appellant, we deem it appropriate to modify the sentence

to imprisonment for life simplicitor which would enable

the appellant to seek admissible remission unless

otherwise refused.

32. The appeal, thus, is dismissed with the

modification in the sentence.

33. Interlocutory application/s, if any, also

stand disposed off.

                                                          (Ashutosh Kumar, J)


                                                           (Shailendra Singh, J)
Sanjay/Praveen

AFR/NAFR                 AFR
CAV DATE                 NA
Uploading Date           23.06.2023
Transmission Date        23.06.2023