IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.500 of 2005 (Against the judgment of conviction dated 19.07.2005 and order of sentence dated 20.07.2005 passed by Shri Binoda Nand Jha “Vineet”, Additional Sessions Judge, Fast Track Court No. IV, Motihari in Sessions Trial No. 848 of 1992, G.R. 20 of 1991, arising out of Chakia Police Station Case No. 02 of 1991) =========================================================== 1. Lakhindra Sah, son of Shankar Sah, resident of village Banarjhula, Police Station Chakia, District East Champaran 2. Shiv Sharan Sah, son of Prayag Sah, resident of village Panditpur, Police Station Pipra Kothi, District East Champaran .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Purnendu Singh, Advocate Mr. Sanjay Kumar, Advocate For the Respondent/s : Mr. Ashwini Kumar Sinha, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA AND HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT (Per: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN) This appeal is directed against the judgment of conviction dated 19th July, 2005 and order of sentence dated 20th July, 2005 passed in Sessions Trial No. 848 of 2002 by the learned Additional Sessions Judge, Fast Track Court No. IV, Motihari by which the above named appellants have been sentenced to undergo rigorous imprisonment for life for the offences under Section 302/34 of the Patna High Court CR. APP (DB) No.500 of 2005 dt.12-09-2011 2 / 6 2 Indian Penal Code. The appellant no. 2, namely, Shiv Sharan Sah has further been convicted under Section 27 of the Arms Act, however, no separate sentence has been passed for the offences under Section 27 of the Arms Act. 2. The prosecution case, as per the fardbeyan instituted by Sita Ram Sah, PW 6 brother of the deceased Tejan Sah, is that on 06th January, 1991 in the mid night, Tejan Sah went outside his house to attend the call of nature. It is said that the informant PW 6 followed him outside and when he went outside, he saw Lakhindra Sah (appellant no. 1) and Shiv Sharan Sah (appellant no. 2) outside the house. Shiv Sharan Sah is said to have fired on Tejan Sah, resulting in his death. The motive of the occurrence is that on the same day earlier in the evening i.e. on 06th January, 1991, there was an altercation between Prithvinath Sah, Raghunath Lal and the deceased Tejan Sah. The occurrence took place later in the night. It is specifically stated that on hearing the sound of firing, Shiv Kali (PW 2), Lakshman Sah (PW 1), Shivjee Sah (PW 3) and other came to the place of occurrence. The informant alleges in the First Information Report that the occurrence took place in the mid night. 3. The fardbayan of the informant resulted in the registration of Chakia Police Station Case No. 02 of 1991 on 07.01.1991 under Section 302/34 of the Indian Penal Code. The Police after investigation submitted charge sheet. Accordingly, cognizance was taken on 03.10.1992 and the case was committed to the Court of Sessions, where the charges were framed and explained to the appellants to which they pleaded their innocence and claimed to be Patna High Court CR. APP (DB) No.500 of 2005 dt.12-09-2011 3 / 6 3 tried. 4. In this case, altogether seven witnesses have been examined. PW 1 is Lakshman Sah, PW 2 Shiv Kali is the mother of the deceased, PW 3 is Shivjee Sah, an eye-witness, PW 4 Geeta Devi is the wife of the deceased, PW 5 Binda Sah has been declared hostile, PW 6, Sita Ram Sah is the brother of the deceased and also the informant of this case and PW 7 is Dr. Maheshwar Kumar who has prepared postmortem report of the deceased Tejan Sah. PWs 1, 3,4 and 6 claim that they are the eye-witnesses to the occurrence. 5. Before dealing with the evidence of PW 6, the informant, it would be relevant to refer to the evidence of PW 2 Shiv Kali, the mother of the deceased and the evidence of PW 4 Geeta Devi, wife of the deceased. PW 2 has stated in her examination-in-chief that she was sleeping in front of the fire near the door of the house when she saw her son Tejan Sah (deceased) leaving the house. She followed him. She claims that it was a dark night. This witness also claims that she had seen these appellants roaming near the house of this witness since 6 PM and told PW 4 not to let her husband leave the house. According to this witness, one of the appellants had caught hold the deceased, whereas the other shot him. A suggestion was given to her as to whether she had made the statement before the Investigating Officer, to which she claims that she did. In the similar way, PW 4 has also deposed that she was sitting with her husband in front of the fire near the door of the house when her husband went outside to attend the call of nature. In the cross-examination, this witness has specifically stated that she had seen these appellants Patna High Court CR. APP (DB) No.500 of 2005 dt.12-09-2011 4 / 6 4 running away from the place of occurrence after having shot her husband. In the cross-examination, she has contradicted the statement made in the examination-in-chief, by stating that she was sleeping in the room inside her house when her husband went out to attend the call of nature. According to this witness, the occurrence has taken place due to land dispute. 6. The next witness is PW 3 who is the witness to the inquest report. According to this witness, it was a dark night when the occurrence took place. In fact, it would appear on perusal of the evidence of PW 2 and PW 3 that they were not the eye-witnesses to the actual occurrence. At most, it may be said that they saw the miscreants running away from the place of occurrence. It may be noted here that the informant has not stated a word about the presence of the mother and the wife of the deceased at the place of occurrence after the deceased was shot. 7. Lastly, this Court will consider the evidence of PW 6, the informant. PW 6, in his examination-in-chief, has given a go-bye to the case made out in the First Information Report to the extent that he gives up the claim of being an eye-witness to the actual shooting. He has come out with a case that he heard the sound of firing and went outside and saw the appellants running away from the place of occurrence. In his cross-examination, this witness has stated that he went to the Police Station to give his statement, whereas Exhibnit-3, the fardbayan, indicates that the Investigating Officer has come to the door of the informant and statement was recorded at 08:15 AM in the next morning. Patna High Court CR. APP (DB) No.500 of 2005 dt.12-09-2011 5 / 6 5 8. This Court finds that there are several contradictions with respect to the evidence that has come on the record in the manner in which the occurrence has taken place, foremost of which is the fact that the occurrence took place in the mid night in the month of January, 1991, and both, the wife and the mother of the deceased have stated that it was a dark night, contrary to the evidence of the informant, PW 6, who claims that it was a moon-lit night. It is also accepted that none of the witnesses including the informant, PW 6, has seen the occurrence taking place. Therefore, this Court finds it difficult to rely on the evidence of PW 6. There must be at least consistency, in the manner of the occurrence and the source of light by which the prosecution witnesses could have identified the accused persons. The motive too has not been proved by the prosecution. The enmity is between Prithvi Nath Sah, Raghunath Lal and the deceased Tejan Sah. The role of these two appellant and one other who died during the pendency of this appeal is not explained by the prosecution. They have not been able to establish the connection between the appellants Prithvi Nath Sah and Raghunath Lal with whom there was an altercation earlier in the evening which supposedly is the cause of the murder of Tejan Sah. There must be some corroboration with respect to the evidence of PW 6 for this Court to conclude that the appellants were the persons responsible for the death of Tejan Sah beyond all reasonable doubts. 9. In view of the above discussions, we are of the view that the prosecution has not been able to prove the charges leveled against the appellants beyond the shadow of all reasonable doubts. Patna High Court CR. APP (DB) No.500 of 2005 dt.12-09-2011 6 / 6 6 Accordingly, the judgment of conviction and order of sentence is set aside and this appeal is allowed. The appellant no. 2, namely, Shiv Sharan Sah is reported to be in custody, is directed to be released forthwith if not required in any other case. The appellant no. 1, namely, Lakhindra Sah is on bail. He is discharged from the liabilities of the bail bonds furnished earlier in this case. ( Sheema Ali Khan, J. ) Shyam Kishore Sharma, J. :- I agree ( Shyam Kishore Sharma, J. ) Patna High Court Dated the 12th September, 2011 NAFR/Prabhakar Anand