Suman Sourabh @ Suman @ Shubham ... vs The State Of Bihar
2023 Latest Caselaw 5111 Patna

      IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.895 of 2017
       Arising Out of PS. Case No.-126 Year-2016 Thana- BAUNSI District- Banka
======================================================

Prafulla Yadav @ Prafulla Kumar Yadav, Son of Sri Shankar Yadav, R/o Village-Simramore, P.S.-Bounsi, District-Banka.

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

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 831 of 2017 Arising Out of PS. Case No.-126 Year-2016 Thana- BAUNSI District- Banka ====================================================== Suman Sourabh @ Suman @ Shubham Sourav @ Louli, Son of Sri Govind Mandal, R/o Village-Acharaj Dam Road, P.S.-Bounsi, District-Banka.

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

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 479 of 2021 Arising Out of PS. Case No.-126 Year-2016 Thana- BAUNSI District- Banka ====================================================== Sawan Kumar Singh, male, aged about 28 years, S/o Pawan Kumar Singh, R/o Village-Liladanga, P.S.-Rajmahal (Kajigaon), District-Sahebganj (Jharkhand).

... ... Appellant/s Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

Versus The State of Bihar

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

(In CRIMINAL APPEAL (DB) No. 895 of 2017) For the Appellant/s : Mr. Anil Kumar Sinha, Adv.

Mr. Satya Veer, Adv.

For the Informant : Mr. Ajay Mukherjee, Adv. For the State : Mr. Dilip Kumar Sinha, APP (In CRIMINAL APPEAL (DB) No. 831 of 2017) For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.

Ms. Kiran Kumari, Adv.

Md. Imteyaz Ahmad, Adv.

Mr. Ritwik Thakur, Adv.

Ms. Vaishnavi Singh, Adv.

Mr. Purushottam Kumar, Adv.

For the Informant : Mr. Ajay Mukherjee, Adv. For the State : Mr. Dilip Kumar Sinha, APP (In CRIMINAL APPEAL (DB) No. 479 of 2021) For the Appellant/s : Mr. Kaushal Kumar Jha, Sr. Adv.

Mr. Amish Kumar, Adv.

For the State : Mr. Dilip Kumar Sinha, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR) Date : 06-10-2023

All the three appeals have been heard

together and are being disposed off by this common Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

judgment.

2. Mr. Ajay Kumar Thakur, the learned

Advocate has appeared on behalf of appellant/Suman

Sourabh @ Suman @ Shubham Sourav @ Louli in Cr.

Appeal (DB) No. 831 of 2017, whereas Mr. Kaushal

Kumar Jha, the learned Senior Advocate has appeared

for appellant/Sawan Kumar Singh in Cr. Appeal (DB)

No. 479 of 2021. Mr. Anil Kumar Sinha, the learned

Advocate has appeared for appellant/Prafulla Yadav @

Prafulla Kumar Yadav in Cr. Appeal (DB) No. 895 of

2017.

3. In all the three appeals, the State is

represented by Mr. Dilip Kumar Sinha, the learned APP.

Mr. Ajay Mukherjee, the learned Advocate for the

informant has appeared in all the appeals.

4. One Dilip Panjiar was shot dead in the

night of 01.07.2016 while he had been coming from

his shop to his home. His wife/Chandni Kumari (P.W.

16) has lodged a written report in the same night, Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

alleging that on hearing the sound of firing, she came

out of her house and saw that there was a crowd on

the road near her house. When she went there, she

found her husband lying dead on the road. She has

also alleged that the miscreants ran towards the jungle.

She had telephonic talk with her husband few minutes

ago. She has also alleged that one of the business

associates of her late husband, namely, Pradeep

Bhuwania had fallen foul with him and was not happy

with his growth for quite some while. She, therefore,

suspected that perhaps aforesaid Pradeep Bhuwania

has got her husband killed.

5. On the basis of the afore-noted written

report, a case vide Baunsi P.S. Case No. 126 of 2016,

dated 01.07.2016, was registered for investigation

against Pradeep Bhuwania and about two or three

unknown miscreants for the offences under Sections

302/34 of the IPC and 27 of the Arms Act, 1959.

6. The FIR was attested by Biharilal Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

Panjiyar (P.W. 7), Pawan Kumar Panjiar (P.W. 14) and

Ghanshyam Panjiar (P.W. 18). The other person who

had attested the FIR, namely, Satyadeo Singh has not

been examined.

7. However, during the course of

investigation, the accusation against Pradeep Bhuwania

could not be established and he was not sent up for

Trial.

8. All the three appellants were charge-

sheeted, who have faced the Trial. Their implication in

the present case is on the basis of a confession given

by them to the Investigating Officer of this case,

namely, Parikshit Paswan (P.W. 19) but in different

cases, namely, Baunsi P.S. Case Nos. 127 of 2016 and

128 of 2016.

9. The Trial Court has examined nineteen

(19) witnesses on behalf of the prosecution and four

(4) on behalf of the defence and has convicted the

appellants under Sections 302/34 of the IPC and Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

Section 27 of the Arms Act, 1959. They have been

sentenced to undergo imprisonment for life and to pay

a fine of Rs. 5,000/- each for the offence under

Sections 302/34 of the IPC and to undergo

imprisonment for three years and to pay a fine of Rs.

3,000/- each for the offence under Section 27 of the

Arms Act, 1959. The sentences have been ordered to

run concurrently.

10. Mr. Thakur, Mr. Jha and Mr. Sinha, the

learned Advocates for the appellants have argued that

it is an illustrative case where instead of the accused

persons trying to find out some way of wriggling out of

the accusation, the investigating agency has provided

supposed linkages of the appellants to the crime which

prima facie is based on no admissible material

whatsoever.

11. The sum and substance of their

arguments is that if the wife of the deceased (P.W. 16)

had heard the sound of firing, the occurrence must Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

have taken place near her house. If this be so, it has

been urged, then it is quite natural that she would have

been the first responder and would have come to the

place of occurrence before anybody else. That she did

is further evident from the fact that she gave the

written report at the police station. In the written

report/FIR, there is no reference of any one of these

appellants; not even suspicion, even though they all

hail from the same locality.

12. One Pradeep Bhuwania was suspected

to have had his role in the killing of the deceased.

13. Even if it be repetition, it is necessary

to again iterate that such written report was signed by

five persons, out of whom four have been examined as

prosecution witnesses. All those witnesses have, in

some way or the other, alluded to the presence of the

appellants at the time of occurrence. Some of them

have even gone to the extent of identifying two of the

appellants. From their narrative, it appears that Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

appellant/Prafulla Yadav had caught hold of the

deceased, whereas one out of the two other appellants

fired the fatal shot. The accused persons, thereafter,

went away. If the afore-noted four persons, namely,

P.Ws. 4, 7, 14 and 18 had seen the occurrence and

knew about the participation of the appellants, they

would have either told P.W. 16 about the assailants or

would have themselves lodged the FIR. Surprisingly,

as would appear from the record, their statements were

recorded by the Investigator after several days of the

occurrence.

14. Apart from this, it has been argued that

the Investigator (P.W. 19) claims to have received a

secret information on 03.07.2016 that some

miscreants were about to commit a crime. After

recording such entry in the Station Diary, P.W. 19

along with his police team proceeded for apprehending

the miscreants when appellant/Sawan Kumar Singh

and two others were arrested and from their Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

possession, firearm weapons were recovered. On the

confession of appellant/Sawan Kumar Singh, the two

other appellants were also arrested, who are also said

to have confessed their guilt with reference to the

killing of the deceased.

15. As noted above, separate cases were

lodged, namely, Baunsi P.S. Case Nos. 127 of 2016

and 128 of 2016 under the Arms Act and other

sections of the Indian Penal Code. Though, the

seizures made in connection with the afore-noted two

cases and the confession of the appellants have been

brought on record, but the Trial Court was not informed

about the status of those cases.

16. Mr. Kaushal Kumar Jha, the learned

Senior Advocate representing appellant/Sawan Kumar

Singh [Cr. Appeal (DB) No. 479 of 2021] has informed

us that he was convicted in the afore-noted case under

the provisions of Arms Act and was saddled with

imprisonment for three years, which he has already Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

undergone.

17. Mr. Ajay Kumar Thakur, the learned

counsel representing appellant/Suman Sourabh @

Suman @ Shubham Sourav @ Louli [Cr. Appeal (DB)

No. 831 of 2017] has submitted that he was never put

on trial in the afore-noted case as he was not sent up

by the police.

18. There is no information available with

Mr. Anil Kumar Sinha, the learned Advocate

representing appellant/Prafulla Yadav @ Prafulla Kumar

Yadav [Cr. Appeal (DB) No. 895 of 2017] regarding

the status of the case against him.

19. The learned Advocates have submitted

that whatever may be the facts of the Baunsi P.S. Case

Nos. 127 of 2016 and 128 of 2016, there is one thing

which is noticeable as very surprising. The appellants

were arrested in the morning of 4 th of July 2017, when

they are said to have made confession and from them,

firearm weapons were recovered. Curiously, the other Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

witnesses in this case were examined by the police

after such confession and all of them have made

statements which are, in some respects, in consonance

with the so-called confession made by the appellants.

The learned Advocates, therefore, infer that the

implication of the appellants in the present case is the

handy-work of the police and the statement of the

witnesses, who have later spoken before the Trial Court

of their having identified the appellants in the night of

occurrence participating in the crime, cannot at all be

accepted as correct statement. Even otherwise, those

witnesses appear to be completely chance witnesses.

20. Lastly, it has been submitted that the

evidence on record clearly depicts that the deceased

was killed, perhaps, by any one of his enemies or by

the miscreants who would have tried to loot him in the

night. The deceased was wearing causal dress,

namely, a pair of shorts and T-shirt when he was found

dead on the road. The occurrence took place Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

sometimes after 7:30 P.M. in the night on 01.07.2016.

The deceased and his wife were residing in a house

which stood at a secluded place.

21. On behalf of the appellants, it has fairly

been conceded that they were actually never targeted

by the informant (P.W. 16), but their names have been

provided by the police and the witnesses have been

tutored to take their names as the participants of the

crime before the Trial Court. Thus, the accusation

against the appellants is rendered absolutely doubtful.

Any conviction on such evidence is absolutely unsafe

and unwarranted.

22. As opposed to the afore-noted

contention, Mr. Ajay Mukherjee, the learned Advocate

for the informant has submitted that there could be

some chasm between the sequence of events pointed

out by the prosecution but what is important to

remember is that on 4th of July, 2016, when one of the

appellants was arrested, from the boot of the motor- Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

cycle, three documents belonging to the deceased was

recovered. The documents were the ID card, the bank

passbook and one more identity related paper of the

deceased. There was no attempt of the police to

falsely frame the appellants. The appellants

themselves have disclosed that they had participated in

the murder of the deceased. There is no evidence on

record, Mr. Mukherjee contends, which would suggest

or point towards any reason for the police to falsely

frame the appellants. There is nothing on record to

indicate that the appellants, as miscreants of the

locality under the territorial jurisdiction of the

concerned police station, had created a nemesis for

themselves for the local police to somehow or the other

send them to jail. It also does not appear from the

records that some innocent persons have been booked

in this case as the Investigator was completely clueless

about the miscreants.

23. Mr. Mukherjee also denies that in the Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

endeavour of the police to anyhow bring the case to a

logical conclusion, hasty investigation has been made

and somehow or the other, the appellants have become

the targets. He has further submitted that the

occurrence was not propelled by any enmity. It was a

plain and simple case of loot where the deceased may

have protested as he may have been emboldened by

the location where he was confronted and one of the

miscreants may have killed him. It is not unknown, Mr.

Mukherjee contends, that during the course of

investigation, new facts get unfolded on which

conviction can safely be based.

24. Similar arguments have been made by

Mr. Dilip Sinha, the learned APP for the State.

25. On perusal of the evidence on record,

we have found that four of the five persons, who have

attested the written report, have made different

statements, raising allegation against the appellants at

the Trial. There does not appear to be any reason or Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

accepting their statements as true for several reasons,

but primarily on the ground that if they had seen the

occurrence, they would have told P.W. 16 about it.

They have also made statements before the police

quite belatedly.

26. In this context, we have perused the

deposition of P.W. 19, the Investigator, who in his

cross-examination has also conceded that none of the

afore-noted prosecution witnesses have named the

appellants when they had given their statements to him

during the course of investigation (in Paragraph 42 and

43).

27. We have also found from the deposition

of P.W. 19 that immediately after the occurrence, he

had visited the village-home of the deceased at Piluwa.

It was only on 03.07.2016, in the late night, that he

had received information about some unknown

miscreants about to commit some crime, that he

arrested appellant/Sawan Kumar Singh and recorded Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

his confession. This confession led to the arrest other

appellants, who are also said to have confessed on the

same lines.

28. Was it then that the Investigator (P.W.

19) thought of closing the present case by saddling the

allegation on the appellants who had been arrested by

him?

29. We further find from the records that

about the murder of the deceased of the present case,

P.W. 19 had received information in the police station

that some unknown criminals had killed a person whose

dead-body was lying on the road. On such information,

he recorded one entry in the Station Diary vide S.D.E.-

24 on the same day at about 7:00 P.M. and reached

the place where the dead-body was found. This part of

the narration of P.W. 19 does not appear to be correct

with respect to timing. If P.W. 16 (the informant) is to

be believed, the police arrived at the scene after she

and others had came to the place of occurrence. If for Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

a moment the arrival of P.W. 19 at the P.O. at 7:00

P.M., i.e., before the arrival of P.W. 16 and others, is

accepted to be true, then also what is important to

remember is that he had come to the place of

occurrence on the information that the deceased was

killed by some unknown criminals. The afore-noted

position on facts about the cause of murder was

perhaps accepted by the I.O. (P.W. 19) there. It was

precisely for this reason that he acceded to the request

of P.W. 16 that she would not lodge any fardbeyan but

would give a written report about the occurrence. P.W.

16 asked one of her younger relatives to write the

written report which was handed-over to the I.O. (P.W.

19) at the place of occurrence, which he transmitted to

the police station for recording of the formal FIR. In

that FIR, the suspect was only one, namely, Pradeep

Bhuwania.

30. The Investigator (P.W. 19) appears to

have been convinced right from the beginning that the Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

implication of Pradeep Bhuwania was only in the realm

of suspicion as the wife of the deceased had some

conversation with her late husband sometime before

the occurrence that Pradeep Bhuwania is not

maintaining good relations with the deceased.

31. Whatever may be the truth in the

matter, Pradeep Bhuwania was neither arrested nor

sent up for trial.

32. Was it at that time that the I.O. (P.W.

19) thought of it as a general crime of loot and

murder? Perhaps, yes.

33. There is nothing on record to question

the correctness of the statement of P.W. 19 (I.O.) that

he had received some information two days later about

miscreants trying to commit some crime. We say so

for the reason that it was not an off the cuff movement

of the police party from the police station. The

information was recorded as Station Diary Entry No. 23

and the factum of the police party leaving for the place Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

of occurrence was also recorded as Station Diary Entry

No. 24. Till such time, there does not appear to be any

evidence to blame P.W. 19 for entertaining any idea of

falsely implicating any person. It was a separate

information regarding crime to which P.W. 19 came to

know and he acted with quite promptitude. Three

persons were arrested, one of them being

appellant/Sawan Kumar Singh in the raid conducted by

the I.O. All the three miscreants, two of whom were

not associated with the crime of the present case, had

weapons on them. Appellant/Sawan Kumar Singh is

then said to have made a statement incriminating

himself and also naming his two associates, who are

the two other appellants in these appeals.

34. It appears that at that point of time,

P.W. 19 had already spun a story of the deceased

having been killed by the three appellants. Otherwise,

there would have been no reason for the I.O. to have

been so imaginative as to find the identity documents Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

of the deceased with one of the appellants. After

committing a crime, the participants of the occurrence

would not roam around in the same area.

35. The documents belonging to the

deceased, which were recovered from the possession of

one of the appellants, cannot be said to be of any

monetary value. A passbook, by itself, would not fetch

any dividend to the miscreants. It is a matter of

common knowledge that things which are not of any

use to the snatchers/criminals, that is always disposed

off at the earliest.

36. Had the Investigator (P.W. 19) procured

some documents for the proper identification of the

deceased and then later used it as documents showing

it to have been recovered from one of the appellants

and then managing and tutoring the witnesses whose

statements were recorded much later at the police

station who supported the prosecution version later at

the Trial?

Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

37. There could be a possibility of this

happening.

38. It may sound very speculative but the

manner in which the prosecution witnesses Nos. 1 to 5

have claimed to be present at the place of occurrence

in the night when the deceased was shot dead raises

serious doubts about the prosecution story being true.

None of those witnesses who saw the appellants ever

gave any statement to the police immediately after the

occurrence. In fact, one of them has gone on to state

that he knew the elder brother of the deceased and had

told him about the occurrence only after sixteen days.

It was then that the elder brother of the deceased went

to the police station.

39. The learned Advocates for the

appellants have rightly questioned that even if those

witnesses are related to the deceased and residents of

the same area, would they not be called chance

witnesses for their deposition to be scrutinized with Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

greater care and circumspection.

40. The law in this regard is very clear.

41. There is no expression as "chance

witness" in the Indian Evidence Act, 1872. The

expression "chance witness" denotes that such person

has been present at a particular place where the

occurrence took place but for him to be believed, he

would require to give a suitable explanation for his

presence at the place of occurrence. This principle has

been derived from the law of evidence of other

countries which acknowledge that every man's castle is

his own home and he must suitably and reasonably

explain his presence at other places, especially where

an occurrence takes place for him to be believed as a

witness. His position as a witness before the Trial

Court is but no less than an impartial witness, if his

testimony is worth believing. The same standard of

test is required to be applied to the deposition of a

chance witness as is required for any interested, Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

related or partisan witnesses. The substratum of the

rule is that their evidence have to be put to a colander

for winnowing the truth and that their statements

cannot be accepted as ex facie true.

42. We find from the deposition of P.Ws. 1

to 5 that the explanation given by them about their

presence in the dead of the night at a secluded place to

be highly doubtful. All of them knew the deceased as

also the appellants. They also claimed to have seen

the appellants grappling with the deceased. None of

them had seen any one of the appellants armed with

any lethal weapon. Under such circumstances, there

normally should not have been any fear till they

became witnesses to the gunshot resorted by one of

the appellants as alleged in the prosecution case. Their

not stopping to see what actually happened and the

appellants running away in the woods, makes the

description of the afore-noted witnesses absolutely

doubtful. If they had anticipated that the deceased Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

would be caused some harm, it was only natural that

they would have gone to his home and informed the

other family members. None of them have shown any

such promptitude.

43. True it is that people behave differently

in different situations. But in the present case, when,

in the first instance, a written report was lodged in their

presence where there was no whisper about the

participation of the appellants, believing those

witnesses who had come up with a new story of having

seen the appellants committing the crime at the trial is

difficult to accept.

44. Mr. Thakur and Mr. Jha, the learned

Senior Advocates, have submitted that even otherwise,

in the event of the appellants having been convicted for

the offence under Section 302 of the IPC, their specific

roles were required to be established. That but may

not be necessary in our estimation.

45. We have doubted the very prosecution Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

version against the appellants.

46. The deceased died a homicidal death is

beyond question. The post-mortem report and the

evidence of the Doctor confirms it. The deceased died

of gunshot. The timing of the death is also not in

dispute. The place where the deceased had been shot

dead has also not been attempted to be challenged by

the prosecution or the appellants.

47. The question is whether the appellants

were rightly blamed for the murder.

48. The evidence does not give any cogent

answer.

49. We find that the manner in which the

appellants were made accused in this case suggests a

tearing hurry of the local police to anyhow conclude the

investigation of this case. One arrest two days later,

provided the opportunity for the Investigator to do so.

Rest of it followed course.

50. For the reason of the attesting Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

witnesses making out a different case at the Trial and

prima facie the allegation appearing to be carved out of

the confession so extracted from the appellants, we

have doubted the entire prosecution version so far as

the appellants are concerned.

51. The conviction and sentence of the

appellants, referred to above, is not worthy of

acceptance and perforce, we set it aside.

52. All the appellants, above-named, are

acquitted of the charges levelled against them.

53. The appellant/Prafulla Yadav @ Prafulla

Kumar Yadav [Cr. Appeal (DB) No. 895 of 2017] and

the appellant/Suman Sourabh @ Suman @ Shubham

Sourav @ Louli [Cr. Appeal (DB) No. 831 of 2017] are

in custody. They are directed to be set at liberty

forthwith unless their detention is required in any other

case.

54. The appellant/Sawan Kumar Singh [Cr.

Appeal (DB) No. 479 of 2021] is on bail. His liabilities Patna High Court CR. APP (DB) No.895 of 2017 dt.06-10-2023

under the bail-bonds are cancelled.

55. The appeals stand allowed accordingly.

56. Let a copy of this judgment be

dispatched to the Superintendent of the concerned Jail

forthwith for compliance and record.

57. The records of these cases be returned

to the Trial Court forthwith.

58. Interlocutory application/s, if any, also

stand disposed off accordingly.

                                                  (Ashutosh Kumar, J)


                                                (Alok Kumar Pandey, J)

Praveen-II/
AFR/NAFR                 AFR
CAV DATE                 N/A
Uploading Date           10.10.2023
Transmission Date        10.10.2023