Shambhu Ram vs The State Of Bihar
2023 Latest Caselaw 4429 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.713 of 2017
   Arising Out of PS. Case No.-71 Year-2014 Thana- LAKHISARAI District- Lakhisarai
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Shambhu Ram Son of Late Satya Narayan Ram, Resident of Village- Bhola Tola, English Ward No.2, Police Station- and District- Lakhisarai.

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

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

For the Appellant/s : Mr. Sunil Kumar Singh, Adv. For the Respondent/s : 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 : 08-09-2023

We have heard Mr. Sunil Kumar Singh, learned

advocate for the appellant and Mr. Dilip Kr. Sinha,

learned A.P.P. for the State.

2. The appellant stands convicted under Section

302/201 I.P.C vide judgment dated 22.04.2017 passed

by the learned Sessions Judge, Lakhisarai in Sessions

Trial No. 110 of 2015 and vide order dated 26.04

2017, he has been sentenced to undergo imprisonment

for life, to pay a fine of Rs. 10,000/- and in default of Patna High Court CR. APP (DB) No.713 of 2017 dt.08-09-2023

payment of fine, simple imprisonment for three months

for the offence under Section 302 I.P.C. and Simple

Imprisonment for two years, fine of Rs. 1,000/- and in

default of payment of fine, to further suffer simple

imprisonment for one month for the offence under

Section 201 I.P.C. The sentences have been ordered to

run concurrently.

3. The deceased, a cook in a line hotel is alleged

to have been killed and his dead body was thrown in a

ditch near a brick kiln in a village. The matter was

reported by the wife of the deceased/Sony Devi who, in

a F.I.R lodged on 01.02.2014, disclosed that the

appellant and four others had come to her house and

had taken away the deceased for the purposes of

cooking. The husband of the P.W.4 did not return till the

next day. However, during the afternoon of 01.02.2014,

she learnt that a dead body was floating in a ditch near

the BBM brick kiln. She and others went there and

identified the dead body to be of her husband. She Patna High Court CR. APP (DB) No.713 of 2017 dt.08-09-2023

therefore suspected that the five persons including the

appellant who had come to her house for taking away

the deceased for the purposes of cooking had actually

killed the deceased.

4. On the basis of the aforenoted written report

lodged by P.W.4, Lakhisarai P.S. Case No. 71 of 2014

dated 01.02.2014 was instituted for offences under

section 302, 201 and 34 of the I.P.C.

5. The police after investigation submitted

charge-sheet against the appellant and another viz.

Kauwal Khatri @ Raj Kumar Khatri, who was shown as

an absconder.

6. The allegation against three other named

accused persons who allegedly had come to the house of

P.W.4 along with the appellant and another were not

sent up for trial.

7. The Trial court, after examining eight

witnesses on behalf of the prosecution, convicted and

sentenced the appellant as aforesaid. Patna High Court CR. APP (DB) No.713 of 2017 dt.08-09-2023

8. None of the witnesses have seen the act of

killing the deceased nor had they any clue about the

manner of occurrence.

9. One of the uncles of the deceased viz.

Maheshwar Yadav (P.W.1) has only stated before the

Trial court that when he went to the brick kiln on the

information that a dead body was lying there, the police

had already taken out the dead body. The dead body

was of his nephew. He was bleeding from his ears.

According to him, there had been a partition in the

family and the deceased worked in the line hotel of his

own brother/Ganga Yadav (P.W.2). They had no dispute

amongst them. The appellant belonged to the same

village whose house was situated only nearby.

10. Similar statement has been made by brother

of the deceased/Ganga Yadav (P.W.2) who too saw the

dead body at the brick kiln. He was told by the P.W.4

that two persons who were ultimately charge-sheeted

including the appellant had come to the house and with Patna High Court CR. APP (DB) No.713 of 2017 dt.08-09-2023

them, the deceased had gone away. They had come to

call the deceased for cooking.

11. Another brother of the deceased viz. Ranjeet

Yadav has also narrated the same story.

12. What is however noticeable is that the

P.W.4, the wife of the deceased, has made a statement

which reflects that the written report lodged by her was

actually not what she wanted to say. Though she had

signed on the written report but in the cross-

examination, she has stated that she did not remember

what she had written in the written report. She was not

in her senses also. She signed the document only when

she regained her consciousness. However, she makes

amends later and says that only two persons had come

to her house and not five as was narrated in the F.I.R.

The appellant and another were identified by her as they

were regular visitors to her house. She expressed no

suspicion on the brothers of her husband as there was

partition in the family and there existed no dispute. The Patna High Court CR. APP (DB) No.713 of 2017 dt.08-09-2023

P.W.4, therefore, has admitted during the trial that the

written report was prepared by somebody else, the

contents of which was made known to her. She had been

unconscious at the time when the written report was

prepared by someone about whom nothing is known.

She signed the document only after regaining her

consciousness. Precisely for in this reason, the P.W.4

has not supported the earliest version of five persons

having come to her house for calling the deceased for

the purposes of cooking.

13. Was it then an afterthought?

14. Who was the person who introduced the

names of three others whose complicity could not be

found during the course of investigation?

15. Was it one of the brothers of the deceased

or someone else who had to avenge some enmity?

16. During the course of trial, however, it came

to light through the evidence of the mother of the

deceased that in 2010, the deceased had lodged a case Patna High Court CR. APP (DB) No.713 of 2017 dt.08-09-2023

against the appellant. Since then, the visits of the

appellant in her house had reduced.

17. If this is to be believed then perhaps the

name of the appellant or for that matter others was

provided in the written report.

18. Lachho Devi, who is the mother of the

deceased, has been examined as P.W.7. She has also

been examined as a court witness. She knew about the

deceased having gone out of his house along with the

appellant and another. She had also learnt that a dead

body was found floating in a ditch near the brick kiln.

She also claims to have gone to the place where the

dead body of her son was found. However, as noted

above, she has admitted about a case having been filed

by the deceased against the appellant.

19. The I.O. of this case viz. Vishram Bhagat

(P.W.5) has clearly stated that the brother of the

deceased viz. Ganga Yadav (P.W.2) had not stated

before him during the course of investigation that he Patna High Court CR. APP (DB) No.713 of 2017 dt.08-09-2023

had seen the appellant accompanying the deceased. He

had only learnt about it.

20. A clerk at the brick kiln, near which the dead

body of the deceased was found, has been examined as

P.W.6 before the trial. He only knew about the fact of a

dead body having been found near the brick kiln.

Because he denied that before him, the inquest report

was prepared, he has been declared hostile.

21. This takes us to deposition of Dr. Ramprit

Singh, who had conducted the postmortem examination

on the deceased on 02.02.2014. He had found rigor

mortis present in the upper and the lower limbs of the

deceased. Froth was found coming out of nose. The

larynx and trachea were also found to be congested with

froth. The stomach was full of water. However apart

from the indications of death by drowning and resultant

asphyxia, P.W.8 also found one lacerated wound behind

the pinna of the left ear, which was but only skin deep

and another lacerated wound over the outer eyebrow. Patna High Court CR. APP (DB) No.713 of 2017 dt.08-09-2023

The other injuries, apart from the gagging because of

froth in larynx and trachea, was opined to have been

caused by hard and blunt substance. The time fixed for

death was 24 hours from the postmortem examination.

The medical report, therefore, clearly confirms that the

deceased died of drowning.

22. The viscera does not appear to have been

sent for any forensic/chemical examination. Had it been

done, it could have been deciphered whether the

deceased was intoxicated shortly before he got drowned.

23. The occurrence took place sometimes

between 31.01.2014 and 01.02.2014. Nobody of the

village or of the brick kiln saw the deceased in the

company of the appellant or for that matter any person.

24. Under such situation, there is no

circumstance which would accusingly point towards the

appellant. Even the story of the appellant having gone to

the house of the deceased to call him for the purposes of

cooking has been rendered doubtful.

Patna High Court CR. APP (DB) No.713 of 2017 dt.08-09-2023

25. As has been noted above, the written report

does not appear to be on the dictation of P.W.4. She

was unconscious when the same was being prepared and

signed it only after regaining consciousness. She denies

during trial that five persons had come to her house.

This is a clear indication that the prosecution has not

come with any clean story.

26. The fact that the appellant was an accused

in a case lodged by the deceased sometimes in the year

2010 further makes the prosecution story doubtful that

on the asking of the appellant, the deceased would

accompany him for cooking food. In fact, the mother of

the deceased has also admitted that after her son

(deceased) had lodged the case against the appellant,

his visits had been reduced since 2010. It appears

therefore that for sure, the name of the appellant was

provided by somebody else.

27. Even if the appellant would have actually

come to the house of the deceased to call him for the Patna High Court CR. APP (DB) No.713 of 2017 dt.08-09-2023

purposes of cooking, the other links in the chain were

required to be found out and established before jumping

to the conclusion that the deceased was killed by

appellant and nobody else.

28. Merely counting one incident as a

circumstance for convicting an appellant would amount

to expressing complete naivete at appreciating the

evidence. Circumstantial evidences are taken into

account only when the circumstances are such which

would exclude any other hypothesis except the guilt of

the accused.

29. In the absence of any other evidence

suggesting that the appellant ever accompanied the

deceased or their having been spotted by anyone in the

village, the chain does not get formed even a bit.

30. Thus, the prosecution has relied upon

practically no evidence for prosecuting the appellant.

31. The injuries on the deceased also appears to

be superficial which may have been caused during the Patna High Court CR. APP (DB) No.713 of 2017 dt.08-09-2023

fall of the deceased in the ditch.

32. As noted above, since the viscera was not

preserved, there is no confirmation of the fact that

deceased was intoxicated.

33. Be that as it may, there was no immediate

flash point for the appellant to have eliminated the

deceased. What was the nature of the case lodged by

the deceased against the appellant also remains

unknown to us.

34. In such background, it is difficult for us to

fathom that because of the enmity, the deceased was

killed at the hands of the appellant.

35. We find no substance in the opinion

delivered by the Trial Court which would justify the

conviction and sentence of the appellant.

36. Perforce, we set aside the judgment and

order of conviction and acquit the appellant of the

charges levelled against him.

37. The appellant is in custody. He is directed to Patna High Court CR. APP (DB) No.713 of 2017 dt.08-09-2023

be released from the jail forthwith if not detained or

required in any other case.

38. The appeal stands allowed.

39. Let a copy of this judgment be dispatched to

the Superintendent of the concerned Jail forthwith for

compliance and record.

40. The records of this case be also returned to

the Trial Court forthwith.

41. Interlocutory application/s, if any, also stand

disposed off accordingly.

(Ashutosh Kumar, J)

( Alok Kumar Pandey, J) rishi/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          12.09.2023
Transmission Date       12.09.2023