Umesh Singh vs State Of Bihar

2. The brief facts in relation to the prosecution case are stated hereunder to appreciate the rival legal contentions that are urged on behalf of the parties with a view to find out as to whether this Court is required to interfere with the concurrent finding of fact recorded in affirming the conviction and sentence imposed against the appellant.

3. The deceased Shailendra Kumar was murdered on 16.07.1996 at about 3.30 p.m. by the appellant Umesh Singh and other persons, namely, Awadhesh Singh, Sudhir Singh, Jaddu Singh, Nawal Singh, Binda Singh @ Bindeshwari Singh by shooting him with a revolver and rifle with a criminal intention for unlawful purpose in furtherance of common intention along with other accused and to have in their possession of fire arms with an intention to use it for an unlawful purpose to commit murder of Shailendra Kumar along with accused nos.5 & 6 and another accused Moti Singh who is dead. They were charged under Section 302 read with Section 34, IPC. The case of the prosecution is that the deceased along with his cousin brother Arvind Kumar- PW2 were going to Tungi for catching a bus for Kothar on 16.7.96 at about 3.30 p.m. When they proceeded at a distance ahead of Tungi High School near Latawar Payeen, the accused persons named above surrounded them. The deceased accused Moti Singh is alleged to have exhorted his other associates to shoot the deceased Shailendra Kumar upon which the appellant herein took out a country made revolver and pumped its bullets in the temple of the deceased and accused no.2 who was having a rifle in his hand fired in the abdomen of the deceased. Accused no.4 also shot a fire causing injury in the leg of the deceased while accused no.3 also fired from his rifle. Accused no.5 was also having a rifle and he threw the dead body of the deceased in the Payeen. It is also the case of the prosecution that during the course of the occurrence of the incident the informant PW2 Arvind Kumar was kept over-powered by the deceased accused Moti Singh and Jaddu Singh and after accomplishing the target, they left. Further, the witnesses whose names were found in the fardbeyan claimed to have seen the occurrence of the incident. The fardbeyan was recorded by ASI RS Singh at about 7.00 p.m. on the same date at Tungi High School hostel, Latawar Payeen and the inquest report of the dead body was also prepared at the place of occurrence itself at 7.10 p.m. Seizure list of certain incriminating items including empty fired cartridges which were recovered from the spot was also prepared. Formal FIR was recorded and investigation was taken up by the police. On concluding the investigation, the police submitted the charge sheet before the learned Chief Judicial Magistrate on the basis of which cognizance was taken by him and the case was committed to the Court of Sessions. The learned Sessions Judge on his turn transferred the case to the file of Second Additional Sessions Judge, Nawadah and the charges were framed for the offence under Section 302 read with Section 34, IPC and Section 27 of the Arms Act. The accused pleaded not guilty. The case went for trial and the prosecution has examined the witnesses PW1 to PW9 and two witnesses were examined in support of the defence. The learned Additional Sessions Judge on appraisal of the evidence and record passed the judgment dated 04.04.1998 imposing the conviction and sentence against the accused persons under Section 302 read with Section 34, IPC and under Section 27 of the Arms Act and awarded sentence of imprisonment for life under Section 302 read with Section 34, IPC. The sentence awarded regarding the conviction under different heads of charges ordered were to run concurrently. The conviction and sentence passed by the Additional Sessions Judge was challenged by the accused in the appeals referred to supra before the High Court of Patna. The High Court after hearing all the accused/appellants passed the common judgment affirming the conviction and sentence in relation to the present appellant and set aside the conviction and sentence in so far as Awadhesh Singh, Jaddu Singh and Nawal Singh who were held to be not found guilty of the charges under Section 302 read with section 34, IPC, i.e. in the appeal nos.241/98 and 247/98. However, as far as the present appellant and others are concerned, the judgment passed by the learned Additional Sessions Judge was affirmed. During pendency of the appeals the accused by name, Moti Singh died and his appeal got abated.

4. The appellant has questioned the correctness of the findings recorded in the impugned judgment by the High Court in affirming the conviction and sentence awarded against him along with others. Mr. Amarendra Sharan, learned senior counsel appearing for the appellant contends that the High Court has failed to notice the discrepancies in the evidence of the prosecution witnesses, it could have disbelieved the same but it has affirmed the conviction and sentence on this appellant. Further, even according to its own findings there were no eye-witnesses to the occurrence of the incident as the PWs arrived at the scene of occurrence 15-20 minutes after the incident and the informant who was present at the spot has given different version in the evidence and the FIR regarding the role of the appellant. The statement of PW2 Arvind Kumar who is the cousin brother of the deceased is the basis on which the FIR was registered and the Investigation of the case was made by the Investigating Officer. The PW2 was present at the time of occurrence and on the basis of his statement, the accused persons have been falsely implicated in treating his statement as FIR, the same is belated FIR which is not admissible in law and also hit by Section 162, Cr.P.C. In support of this contention he has placed reliance upon the judgment of this Court in State of A.P. v. Punati Ramulu.[1] The relevant paragraphs read as under:

“21. … The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the ‘credit’ of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.”

17. In view of the concurrent findings by the High Court as well as the learned Additional Sessions Judge and an order of conviction and sentence imposed against the appellant herein is on the basis of legal evidence on record and on proper appreciation of the same. Therefore, the same is not erroneous in law as the finding is supported with valid and cogent reasons. For the foregoing reasons the impugned judgment and order cannot be interfered with by this Court. Hence, the appeal is devoid of merit and accordingly it is dismissed.