IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (DB) No.130 of 2013 Arising Out of PS. Case No.-210 Year-1997 Thana- SHEKHPURA District- Sheikhpura ====================================================== Amir Singh S/O Late Munna Singh Resident Of Village- Mehush, P.S.- Mehush, District- Sheikhpura ... ... Appellant/s Versus The State Of Bihar ... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 617 of 2008 ====================================================== 1. Munna Singh, son of Late Ragho Singh 2. Arun Singh, son of Munna Singh. Both are residents of village-Mehush, P.S.-Mehush, District-Sheikhpura. ... ... Appellant/s Versus The State of Bihar .. ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 647 of 2008 ====================================================== Ranjeet Singh, son of Munna Singh, resident of village-Mehush, P.S.-Mehush, District-Sheikhpura. ... ... Appellant/s Versus The State Of Bihar .. ... Respondent/s ====================================================== Appearance : (In CRIMINAL APPEAL (DB) No. 130 of 2013) For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Ms. Swati Sinha, Advocate For the Respondent/s : Mr.S.C.Mishra, APP (In CRIMINAL APPEAL (DB) No. 617 of 2008) For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Ms. Swati Sinha, Advocate For the Respondent/s : Mr.D.K.Sinha, APP (In CRIMINAL APPEAL (DB) No. 647 of 2008) For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Ms. Swati Sinha, Advocate For the Respondent/s : Mr.A.K.Sinha, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY and HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE SHIVAJI PANDEY) Patna High Court CR. APP (DB) No.130 of 2013 dt.29-05-2020 2/145 Date : 29-05-2020 We have heard the parties and perused the records of these cases. Since all the appeals arise out of Sheikhpura (Mehus) P.S. Case No.210 of 1997, as such, all these appeals have been heard together and are being disposed of by this common judgment. The appellant, namely, Amir Singh of Cr. Appeal (DB) No.130 of 2013 has preferred this appeal assailing the judgment of conviction dated 21.01.2013 and order of sentence dated 22.01.2013 passed by the Ad-hoc Additional District & Sessions Judge-II, Sheikhpura in Sessions Trial No.273 of 2000/ Trial No. 11 of 2013 arising out of Sheikhpura (Mehus) P.S. Case No.210 of 1997 by which he has been convicted for the offences punishable under Section 302 of the Indian Penal Code and Section 27 (1) of the Arms Act and he has been sentenced to undergo rigorous imprisonment for life under Section 302 of the Indian Penal Code with a fine of Rs. 10,000/-, in default of payment of fine, he has to further undergo rigorous imprisonment for one year. He has further been sentenced to undergo rigorous imprisonment for three years with a fine of Rs. 5,000/- under Section 27 (1) of the Arms Act, Patna High Court CR. APP (DB) No.130 of 2013 dt.29-05-2020 3/145 in default of payment of fine, he has to undergo further imprisonment for six months. However, both the sentences were directed to run concurrently. The appellants, namely, Munna Singh and Arun Singh of Cr. Appeal (DB) No.617 of 2008 and Ranjeet Singh of Cr. Appeal (DB) No.647 of 2008 have preferred their respective appeal assailing the judgment of conviction dated 20.05.2008 and order of sentence dated 22.05.2008 passed by the Additional Sessions Judge, FTC-V, Sheikhpura in Sessions Case No.685 of 1998/ Trial No. 17 of 2008 arising out of Sheikhpura (Mehus) P.S. Case No.210 of 1997 by which appellants of both the appeals have been convicted for the offences punishable under Sections 302/34 of the Indian Penal Code and the appellant, namely, Ranjeet Singh has further been convicted under Section 27 of the Arms Act and they have been sentenced to undergo rigorous imprisonment for life under Section 302/34 of the Indian Penal Code. The appellant, namely, Ranjeet Singh has further been sentenced to undergo rigorous imprisonment for three years under Section 27 (1) of the Arms Act. However, both the sentences were directed to run concurrently. The informant, namely, Santosh Kumar, gave his fardbeyan at the place of occurrence before the Officer-in- Patna High Court CR. APP (DB) No.130 of 2013 dt.29-05-2020 4/145 charge of Mehus Police Station on 29.08.1997 at about 7.45 A.M. stating therein that on the same day at about 7.15 A.M., when his cousin Dharmendra Kumar (since deceased) was preparing tobacco at ‘Shivala’ near his house, he was present there, in the meantime, the appellants, namely, Ranjeet Singh and Amir Singh, both were armed with rifle and Munna Singh armed with piece of brick, came there from east direction started using filthy words. The appellant Arun Singh armed with country made pistol after a while also came there. Thereafter, Dharmendra Singh asked them not to hurl abuses, upon which, the appellant Arun Singh gave order to shoot him, whereupon, the appellant Munna Singh threw bricks up on Dharmendra Singh and appellant Ranjeet Singh fired from his rifle. The deceased Dharmendra Singh in order to save himself tried to hide behind the electric pole, but the appellant Ranjeet Singh fired upon him which hit his right elbow. Thereafter, the appellant Amir Singh also resorted two round of firings from his rifle, out of which, one hit on his ‘Panjara”, as a result of which, he fell down on the ground and subsequently, he died. Thereafter, all the accused persons fled away towards eastern side. The cause of occurrence was that about three years ago on account of uprooting ‘Khesari’ crops, some altercation took Patna High Court CR. APP (DB) No.130 of 2013 dt.29-05-2020 5/145 place in between the deceased Dharmendra Singh and accused Munna Singh, besides that, about eight days earlier, on the occasion of auction of ‘Ahra’ in the village, the deceased Dharmendra Singh had shown his willingness to participate in the auction of ‘Ahra’, upon which, accused Amir Singh had challenged him to participate in the auction saying that he would not be allowed to take even singly scale of fish, thereafter, ill feeling increased and, due to this reason, all the accused persons killed the deceased. The occurrence was witnessed by father of informant Raja Ram Singh, brother Pankaj Singh, Gore Lal Singh and also Manoj Singh, who came after hearing ‘Hulla’ and witnessed the occurrence. The fardbeyan of informant was written down in presence of the witnesses Parsidh Narayan Singh and Ram Sevak Singh. On the basis of aforesaid fardbeyan, the FIR was registered under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms vide Sheikhpura (Mehus) P.S. Case No.210 of 1997. The police took up the investigation of the case. After investigation, the police submitted charge sheet against the appellants, namely, Amir Singh and Ranjit Singh and accordingly, cognizance was taken, thereafter, the case was committed to the court of sessions. In course of trial, rest two Patna High Court CR. APP (DB) No.130 of 2013 dt.29-05-2020 6/145 accused, namely, Arun Singh and Munna Singh were also summoned to face trial vide order dated 6.09.2000 under Section 319 of the Code of Criminal Procedure. Due to non- appearance of accused Amir Singh, the case against him was split up from the original Sessions Case No.685 of 1998 wherein only three accused persons were tried, resulted into conviction of all three accused persons. The case against Amir Singh was registered as Sessions Trial No.273 of 2000 and, due to non-appearance of accused Amir Singh, he was declared absconder vide order dated 30.05.2005. Later on, the accused Amir Singh had surrendered in Sessions Trial No. 91 of 2011 on 27.07.2011 and, thereafter, on information by the police, production warrant was issued. The accused Amir Singh was produced on 15.12.2011 and he was taken into custody. Thereafter, he was charged for the offences under Section 302 of the Indian Penal Code and Section 27 (1) of the Arms Act, to which, he pleaded not guilty. Thereafter, trial started against him. The defence of the accused is complete denial of the prosecution case as well as false implication due to enmity. From the trend of cross-examination, it appears that the defence has taken the specific plea that the instant case has been lodged Patna High Court CR. APP (DB) No.130 of 2013 dt.29-05-2020 7/145 at the instance of Raja Ram Singh with ulterior motive. During trial of Sessions Case No.685 of 1998/Trial No. 17 of 2008, the prosecution has examined altogether thirteen witnesses in support of its case. P.W. 1 is Raja Ram Singh, P.W. 2 is Pankaj Kumar, P.W. 3 is Ram Ballabh Sharma, P.W. 4 is Bijay Kumar, P.W. 5 is Arvind Kumar, P.W. 6 is Mritunjay Kumar Singh, P.W. 7 is Manoj Singh, P.W. 8 is Gorelal Singh, P.W. 9 is Santosh Kumar Singh, P.W. 10 is Karyanand Singh, P.W. 11 is Sheelam Devi, P.W. 12 is Surendra Rai and P.W. 13 is Dr. Krishna Mohan Purvey. During trial of Sessions Trial No. 273 of 2000/11 of 2013, the prosecution has examined altogether nine witnesses in support of its case. P.W. 1 is Ram Ballabh Sharma, P.W. 2 is Gorelal Singh, P.W. 3 is Manoj Kumar, P.W. 4 is Raja Ram Singh, P.W. 5 is Sheelam Devi, P.W. 6 is Pankaj Kumar, P.W. 7 is Santosh Kumar, P.W. 8 is Dr. Krishna Mohan Purvey and P.W. 9 is Surendra Rai. The defence has also examined two witnesses, namely, Bipin Kumar (D.W.1) and Krishna Murari Jha (D.W. 2) in support of defence taken by them. Following documents have been exhibited in Sessions Case No.685 of 1998 :- (i) Exhibit-1 :- Signature of Pankaj Patna High Court CR. APP (DB) No.130 of 2013 dt.29-05-2020 8/145 Singh on statement under Section 164 Cr. P.C. (ii) Exhibit-2 :- Signature of Manoj Singh on the statement under Section 164 Cr.P.C. (iii) Exhibit-3 :- Signature of Gorelal Singh on the statement under Section 164 Cr.P.C. (iv) Exhibit-4 :- Signature of informant Santosh Singh and Prashid Nath Singh identified by S.I. Surendra Rai. (v) Exhibit-5 :-Signature on Post mortem examination report identified by Dr. K.M. Purbey. Following documents have been exhibited in Sessions Case No.273 of 2000 :- (i) Exhibit-1 :- Post Mortem report of Dharmendra Singh. (ii) Exhibit-2 :- Signature of Santosh Kumar on the fardbeyan. (iii) Exhibit-2/A :- Signature of Prashidhya Narayan Singh on the fardbeyan. (iv) Exhibit-3 :- Signature and writing of S.I. Surendra Rai on the fardbeyan. The trial court after hearing the parties and considering the evidence on record came to the conclusion that the prosecution has been able to prove the charges against the Patna High Court CR. APP (DB) No.130 of 2013 dt.29-05-2020 9/145 respective appellants and, as such, the judgment of conviction and order of sentence have been passed, as stated above. Now this Court is required to reappraise the prosecution evidence to see as to whether the prosecution has been able to substantiate its case beyond the shadow of all reasonable doubts or not? It appears from the records that in Sessions Case No.685 of 1998/ Trial No. 17 of 2008, out of thirteen witnesses, P.Ws. 3, 4, 5, 6, 7, 8 and 10 have been declared hostile as they have not supported the prosecution case in course of trial, whereas in Sessions Trial No. 273 of 2000/ 11 of 2013, out of nine witnesses, P.W. 1 and P.W.3 have completely denied to have any knowledge about the alleged occurrence and they have stated that the police had never recorded their statement during investigation of the case. P.W. 2 has been declared hostile as he has not supported his statement recorded under Section 161 Cr.P.C. and has stated that fact stated by him to the police during investigation of the case was not in his memory. It will be in the interest of justice that we will discuss the evidence of those witnesses who have been examined in both the sessions trials side by side to understand and examine their statements with respect to the submission of improvement Patna High Court CR. APP (DB) No.130 of 2013 dt.29-05-2020 10/145 made by the witnesses at the subsequent stage of the trial as in Sessions Trial No.273 of 2000 and Sessions Trial No.685 of 1998, following are the common witnesses : (I) P.W. 1 Raja Ram Singh in Sessions Trial No. 685 of 1998 is P.W. 4 in Sessions Trial No. 273 of 2000. (II) P.W. 2 Pankaj Kumar in Sessions Trial No. 685 of 1998 is P.W. 6 in Sessions Trial No. 273 of 2000. (III) P.W. 3 Ram Ballabh Sharma in Sessions Trial No. 685 of 1998 is P.W. 1 in Sessions Trial No. 273 of 2000, who has been declared hostile in both the sessions trials. (IV) P.W. 4 Bijay Kumar in Sessions Trial No. 685 of 1998 has been declared hostile and he has not been examined in Sessions Trial No. 273 of 2000. (V) P.W. 5 Arvind Kumar in Sessions Trial No. 685 of 1998 has been declared hostile and he has not been examined in Sessions Trial No. 273 of 2000. (VI) P.W. 6 Mritunjay Kumar Singh in Sessions Trial No. 685 of 1998 has been declared hostile and he has not been examined in Sessions Trial No. 273 of 2000. (VII) P.W. 7 Manoj Singh in Sessions Trial No. 685 of 1998 is P.W. 3 in Sessions Trial No. 273 of 2000, who has been declared hostile in both the sessions trials. (VIII) P.W. 8 Gorelal Singh in Sessions Trial No. 685 of 1998 is P.W. 2 in Patna High Court CR. APP (DB) No.130 of 2013 dt.29-05-2020 11/145 Sessions Trial No. 273 of 2000, who has been declared hostile in both the sessions trials. (IX) P.W. 9 Santosh Kumar Singh in Sessions Trial No. 685 of 1998 is P.W. 7 in Sessions Trial No. 273 of 2000. (X) P.W. 10 Karyanand Singh in Sessions Trial No. 685 of 1998 has not been examined in Sessions Trial No. 273 of 2000, who has been declared hostile. (XI) P.W. 11 Sheelam Devi in Sessions Trial No. 685 of 1998 is P.W. 5 in Sessions Trial No. 273 of 2000. (XII) P.W. 12 Surendra Rai in Sessions Trial No. 685 of 1998 is P.W. 9 in Sessions Trial No. 273 of 2000, who has investigated the case. (XIII) P.W. 8 Dr. Krishna Mohan Purvey in Sessions Trial No. 685 of 1998 is P.W. 8 in Sessions Trial No. 273 of 2000, who conducted the post mortem examination on the dead body of the deceased. Now let us examine the evidence of both sets of common witnesses side by side to understand the different facets of point that has been raised in the present appeals. P.W.1, Raja Ram Singh, in Sessions Trial No. 685 of 1998, has stated that on 29.08.1997 at about 7.15 A.M. while he was going to open his shop, near Shivala heard ‘Hulla’. He went there on running where he saw that Amir Singh, Ranjit Singh, Munna Singh, Manoj Kumar were present. Arun Singh was Patna High Court CR. APP (DB) No.130 of 2013 dt.29-05-2020 12/145 carrying pistol and using filthy language against Dharmendra. Amir Singh and Ranjit were carrying the rifle and Munna Singh was holding piece of brick. Manoj Kumar was also there. The accused persons were engaged in discussion with victim Dharmendra. Arun Singh exhorted to kill the victim, whereupon Ranjit Singh fired from his licencee rifle, which hit the elbow of the victim. Amir Singh fired two rounds, one firing missed and other firing hit the left side of abdomen, whereupon Dharmendra had fallen down and ultimately, he died. Thereafter, the accused persons fled away towards east. The cause of incident was in connection with uprooting ‘Khesari’ and also hot discussion during auction for the fisheries relating to water channel. Ranjit Singh was carrying his licencee rifle and other rifle was of Nawal Kishore Singh. He has identified the accused persons. Accused Ranjit was in dock. In his cross-examination, he has stated genealogical table of his family. Dharmendra was his nephew. He has stated that he has four brothers. Suresh Singh, Santosh Singh and Devendra Singh are his brothers. Santosh Singh, who is the informant in the present case, is his son. The deceased Dharmendra was son of Surendra Singh. Sheelam Devi is the wife of Santosh. Sujit Kumar is the brother of deceased, Patna High Court CR. APP (DB) No.130 of 2013 dt.29-05-2020 13/145 Dharmendra, who lives in the village. Sheelam Devi is one side of ‘Aangan and Dharmendra and Sujit are in another side. The house of this witness was hardly 200 yards in between the, house of Brijnandan Singh and Kanti Devi falls. Shivala is hardly 150 yards from the house of Dharmendra towards east and southern side and his house is hardly 350 yards from the Shivala and near Shivala, Dalan of the accused persons is there where he opened the poultry farm. Shivala is at present deserted, there is no idol for last 20 years. The idol of the Shivala had been kept in Devi Asthan. Earlier the land where the poultry farm has been opened was a part of Shivala. The house of the accused person is hardly 200-250 yards east from Shivala. Near Shivala, the house of Hardev Narayan is existing, whereas house of Damodar Upadhaya is adjacent to Shivala. The house of Prahlad Singh is just south of Chandra Prabha. The two houses were there within the radius of 100 yards of Shivala. Within 200 yards of radius, house of Navin Upadhaya and Shiv Shankar Singh were existing. The village is densely populated having several houses. His shop is 700-800 yards from his house. There are two ways to go to the shop, the short cut is through ‘Bhith’ as it is 50 yards less and his shop is hardly 700- 800 yards from his house. He has denied the suggestion that Patna High Court CR. APP (DB) No.130 of 2013 dt.29-05-2020 14/145 from the side of Shivala, the distance of the shop is one kilometer, whereas through ‘Bhith’ is hardly 200 yards. Dharmendra and his brother Sujit were married. There is no dues of any money against Dharmendra and Sujit nor he has ever made any claim. He has stated that he has not seen the licence nor he does not know the bore of the rifle. He has denied the suggestion that rifle of Ranjit Singh had been deposited in Biharsharif on 20.02.1996. In his further cross-examination, he has said that Dharmendra was carrying three criminal cases, one litigation was with Munna Singh, another was with Damodar Singh and third one was connected with the college. The case related to the college, this witness and his two brothers were the accused whose number was 614 and though he is remembering the name of parties but not the case number. It is not a fact that Dharmendra was in the gang of Chutkul Pandey. He was not remembering as to whether Dharmendra was an accused in Sheikhpura (Mehus) 291/94 and 149/95. He was not remembering the alleged date of occurrence relating to Munna Singh in which he is not a witness. He has not remembered as to whether the occurrence was of the year 1994, both sides had lodged the case against each other. The case lodged by Patna High Court CR. APP (DB) No.130 of 2013 dt.29-05-2020 15/145 Dharmendra in which final form was submitted by the police. With respect to the case lodged by Munna Singh was still going on. Amir Singh was the Mukhiya of the Panchayat, not a Sarpanch nor a Panch. Beating of drum was organized on the direction of the Mukhiya. He has stated that he has not seen the document of the Panchayat. Rest portion is not relevant as he was not remembering who was the person beating drum. Dharmendra had said that he would participate in the auction. The police station is hardly 600 yards from Shivala. After the incident, his son Santosh had informed the police with respect to the occurrence, whereafter 20-25 minutes, the Officer-in-charge came and on the date of occurrence his evidence was not taken by the police, but he had given his statement before the police on next date, further said that he had not given the statement to the Dy.S.P. and he denied the suggestion that before Dy.S.P. he had made statement that he had reached to the place of occurrence after the occurrence was complete. The firing was made from the distance of 5-6 yards hardly. Amir Singh made firing from 8 yards. No one had made firing from the close range and from the place of occurrence, empty bullet was not found nor brass side of the bullet was found. He was hardly 15- 16 yards away from Dharmendra. The accused persons Patna High Court CR. APP (DB) No.130 of 2013 dt.29-05-2020 16/145 surrounded Dharmendra. He does not know on which direction respective accused persons were there. They surrounded the victim within the radius of 4-5 yards and no one has caught the leg of the victim. The people of village were hardly 15-16 yards away and he has denied the suggestion that no such occurrence had taken place and he also denied that he was director of the case and also denied that the victim was a criminal and the person named in the FIR has wrongly been dragged in the present case. P.W.4 Raja Ram Singh in Sessions Trial No. 273 of 2000 has stated that the occurrence took place on 29.08.1997 at about 7.15 and it was Friday. He was going to his shop from his house. When he reached to Shiwala, he saw Dharmendra Singh and Amir Singh and Ranjit Singh armed with rifle and Munna Singh was holding the piece of brick and all were abusing Dharmendra. Dharmendra asked them not to abuse, by that time, Arun Singh armed with pistol came and exhorted to kill him, whereupon, Ranjit Singh pointed his rifle towards Dharmendra. Dharmendra tried to save but he made firing, first did not hit him and second hit the right hand elbow and just thereafter, Amir Singh resorted firing which caused the injury to the (abdominal party) lower part of chest (Panjara), as a result of Patna High Court CR. APP (DB) No.130 of 2013 dt.29-05-2020 17/145 which, Dharmendra fell down, whereupon Arun Singh stated to flee saying that he had died, whereafter, all accused persons fled away. Thereafter, persons present rushed to Dharmendra, by that time, Dharmendra died. On alarm, several persons came where Pankaj, Santosh and Manoj were present from before. Rifle was licencee. The cause of occurrence was uprooting the Khesari which resulted in scuffle added the allegation of auction for fisheries in which Amir Singh had a dispute with Dharmendra. He identified Amir Singh, who was present in the court. In his cross-examination, he has stated that when this case was instituted, he engaged his lawyer and got his 164 Cr.P.C. statement recorded along with his sons and relative. He was not remembering whether the police had got the statement recorded. He has said that it is not a fact that the police after investigation did not find the case to be false, whereafter said that Munna Singh and Amir Singh were not sent up to face trial, but later on, the court has issued summon as prima facie the case was found true, further stated that earlier also he has deposed in the court with respect to the present case and it was the second time, he deposed. He said that it might be possible on earlier occasion, he had stated that there was hue and cry in the Shivala, whereupon he had rushed to reach there. In the present Patna High Court CR. APP (DB) No.130 of 2013 dt.29-05-2020 18/145 matter, wife of the deceased, brother, sister, father and mother are not the witnesses, later on, his son filed a petition in the court for issuing summon to Arun Singh and Munna Singh. Pankaj Kumar is the son of this witness. The occurrence took place at a distance of about 150 yards from the house of Dharmendra on northern direction near the Siwala.