Lalbabu Singh vs The State Of Bihar

Heard Mr. Prashant Kumar, Advocate (Amicus Curiae), appointed by this Court on behalf of this appellant and Mr. Binod Bihari Singh, learned Additional Public Prosecutor of the State as also perused the trial court's record.

The present appeal has been preferred for setting aside the judgment of conviction dated 09.12.2022 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 14.12.2022 (hereinafter referred to as the ‘impugned order’) passed by the learned Additional Sessions Judge-V, East Champaran, Motihari (hereinafter referred to as the ‘learned trial court’) in Sessions Trial No. 106 of 2021, arising out of Chiraiya P.S. Case No. 421 of 2018. By the impugned judgment, the appellant has been convicted for the offences punishable under Sections 302 of the Indian Penal Code, 1860 (in short ‘IPC’) and 27 of the Arms Act. By the impugned order, the appellant has been sentenced to undergo imprisonment for life for the offence under Section 302 IPC and to pay a fine of Rs. 50,000/-. He has further been sentenced to undergo rigorous imprisonment for three years for the offence under Section 27 of the Arms Act. The learned trial court has directed that, upon realisation, the amount of fine shall be paid to the surviving members of the deceased’s family.

The prosecution case is based on the fardbeyan of informant Bhagwan Mahto (PW-5 / brother of deceased), recorded on 22.11.2018 at the Emergency Ward of S.K.M.C.H., Muzaffarpur, before the Officer-in-Charge of Ahiyapur Police Station. It is alleged that on 21.11.2018 at about 07:00 P.M., a conversation was taking place between the appellant Lalbabu Singh and the deceased Sonelal Mahto at his door regarding settling of accounts. During the course of the conversation, a heated exchange of words took place, whereupon Lalbabu Singh (appellant) dragged the deceased Sonelal Mahto to the temple to swear. When the informant reached near the house of Lalbabu Singh, co-accused Babu Saheb Singh started abusing, and the appellant Lalbabu Singh opened indiscriminate fire, one of which hit the deceased Sonelal Mahto in his abdomen. Upon hearing the commotion, the villagers assembled at the place of occurrence, whereupon the appellant Lalbabu Singh and co-accused Babu Saheb Singh allegedly opened fire and fled away. With the help of the villagers, the injured was taken to Dhaka Hospital for treatment and was thereafter referred to S.K.M.C.H., Muzaffarpur, where he succumbed to his injuries during the course of treatment.

On the basis of the aforesaid fardbeyan, Chiraiya P.S. Case No. 421 of 2018 was registered against the appellant Lalbabu Singh and co-accused Babu Saheb Singh for the offences punishable under Sections 302/34 of the IPC and Section 27 of the Arms Act. Upon completion of the investigation, the police submitted a charge-sheet dated 10.08.2020 bearing C.S. No. 59 of 2020 dated 10.08.2020 against the appellant Lalbabu Singh for offences punishable under Sections 302 of the IPC and 27 of the Arms Act and submitted a final form in respect of the co-accused Babu Saheb Singh.

The learned Additional Chief Judicial Magistrate, Sikarahna, took cognizance of the offences punishable under Section 302 IPC and Section 27 of the Arms Act against the appellant and committed the case to the Court of Sessions for trial. The case was thereafter transferred to the learned trial court for trial and disposal. Charges for the offences punishable under Section 302 IPC and Section 27 of the Arms Act were read over and explained to the appellant in Hindi which he denied and claimed to be tried. .

In course of trial, the prosecution examined as many as eight witnesses and got exhibited several documents. The lists of prosecution witnesses and the documents are given hereunder in tabular form:-

Defence has also examined three oral witnesses in support of his case, which is reproduced hereinbelow in tabular form for ready reference:-

The learned trial court, upon consideration of the oral and documentary evidence adduced during the trial, observed that the testimonies of the prosecution witnesses, particularly the alleged eyewitnesses, fully supported and corroborated the prosecution case. The medical evidence, including the post-mortem report, was also found to be consistent with the prosecution version regarding the death of the deceased Sonelal Mahto due to firearm injuries. The learned trial court further held that the prosecution had established the motive, intention, manner, date, time and place of occurrence, as well as the appellant’s participation in the commission of the offence. Accordingly, holding that the prosecution had proved its case beyond reasonable doubt, the learned trial court convicted the appellant Lalbabu Singh for the offences punishable under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. By the order of sentence dated 14.12.2022, the appellant was sentenced to undergo imprisonment for life and to pay a fine of Rs. 50,000/- for the offence under Section 302 IPC, and to undergo rigorous imprisonment for three years for the offence under Section 27 of the Arms Act, with a direction that the sentences shall run concurrently and that the fine, upon realisation, be paid to the surviving members of the deceased’s family.

Learned counsel for the appellant submits that the impugned judgment of conviction and order of sentence passed by the learned trial court are contrary to the facts and evidence available on record and are unsustainable in the eyes of law. It is further submitted that the prosecution has failed to prove the charges against the appellant beyond all reasonable doubt, particularly with regard to the manner of occurrence, the place of occurrence and the appellant’s participation in the alleged crime. It is further submitted that the testimonies of the prosecution witnesses suffer from material contradictions and inconsistencies and do not duly corroborate the prosecution version. Despite the absence of reliable and conclusive evidence establishing the guilt of the appellant, the learned trial court has erroneously recorded the finding of conviction under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. Learned counsel further submits that the appellant has no criminal antecedent and has been in custody since 16.07.2020. Accordingly, it is prayed that the impugned judgment of conviction and order of sentence be set aside and the appellant be acquitted of the charges levelled against him.

Learned APP for the State submits that the impugned judgment of conviction and order of sentence passed by the learned trial court are based on a proper appreciation of the evidence available on record and warrant no interference by this Court. It is contended that the prosecution has examined eight witnesses in support of its case, whose testimonies, particularly those of the witnesses claiming to have witnessed the occurrence, support the prosecution version regarding the appellant having fired at the deceased Sonelal Mahto, causing a firearm injury to his abdomen, which ultimately resulted in his death. It is further submitted that the medical evidence, including the post-mortem report, corroborates the prosecution case regarding the cause of death. Learned A.P.P. accordingly submits that the prosecution has successfully established the guilt of the appellant beyond reasonable doubt and prays for dismissal of the appeal and affirmance of the impugned judgment of conviction and order of sentence.

On going through the materials available on the record, this Court finds that the prosecution case is based on the fardbeyan of Sri Bhagwan Mahto (PW-5), recorded by S.I. R.P. Roy of Ahiyapur in S.K.M.C.H. Emergency Ward, Muzaffarpur, on 22.11.2018 at 10:00 AM. In his fardbeyan, the informant (PW-5) has stated that on 21.11.2018 at about 7:00 PM, Lalbabu Singh who is his neighbour and co-villager, had been engaged in accounting work (hisaab-kitaab) with Sonelal Mahto (deceased) at the door of the informant. In course of such accounting, a quarrel broke out. Lalbabu Singh dragged the deceased towards the temple for swearing oath.

According to the informant as per his fardbeyan, as soon as the deceased reached in front of the house of Lalbabu Singh, (1) Babu Saheb Singh of village - Madhopur, P.S.- Piprahi, District- Sheohar, at present resident of Village- Masha, P.S.-Sikarganj, District- East Champaran, said in abusive word to shot at. On this order, Lalbabu Singh, son of Ram Suraj Singh, resident of – village Madhopur, P.S.- Piprahi, District- Sheohar, at present resident of Village- Masha, P.S.- Sikarganj, District- East Champaran, started indiscriminate firing by his pistol and, while attempting to save himself, Sonelal Mahto (deceased) sustained one shot into his stomach. As a result whereof, he became injured and fell down on the road. It is further stated in the fardbeyan that on hulla, people went towards the said place, by that time Babu Saheb Singh and Lalbabu Singh fled away during firing. With the help of the co-villagers, the deceased was taken to Dhaka Hospital from where he was taken to Motihari but finding the condition deteriorating, he was referred to S.K.M.C.H., Muzaffarpur where immediately after reaching he died.

We have noticed that in this case, the occurrence took place at about 7:00 PM and according to the informant, as per his fardbeyan statement, there was an indiscriminate firing by Lalbabu Singh (the appellant) but the Investigating Officer (PW-6), who visited the place of occurrence, had not found any fired cartridge (khokha) at the place of occurrence. He has stated about the place of occurrence giving the boundary as North and South – P.C.C. Road, East- brick-khaprail house of Devraj Sah facing north, in West- there is a hand pump and one palm tree whereafter there is house of Raj Kumar. I.O. (PW-6) has stated that he had prepared the map of the place of occurrence and had recorded the statement of the informant, Pawan Devi (PW-4), Rani Kumari (PW-1), Duryodhan Mahto(PW-3) and Kismati Devi (PW-2).

We have further noticed that in this case immediately after the occurrence, the injured was taken to Dhaka Hospital, from where he was referred to Motihari and thereafter he was sent to S.K.M.C.H., Muzaffarpur, where he was declared dead. However, the fardbeyan was recorded only on the next day, i.e. on 22.11.2018 at 10:00 AM. Thus, there is an inordinate delay of about 15 hours in recording of the fardbeyan. No plausible reason has been given to explain the inordinate delay by the informant (PW-5).

We have found from the evidences available on the record that while Rani Kumari (PW-1) claims that she was present with her father at about 7 PM when the occurrence took place and quarrel had taken place, in her examination-in-chief, she has stated that her father was caught hold of by his collar and was taken to the Hanuman temple for swearing oath, whereafter her father was returning home then near the house of Devraj Sah, Lalbabu Singh fired at him, which hit at his navel. In course of her cross-examination, she has stated that the bullet was fired in front of the Darwaja of the Devraj Sah. Darwaja of Devraj Sah is towards the western side. However, we find from the evidence of the I.O. (PW-6) that according to him, the brick-khaprail house of Devraj Sah is situated east to the place of occurrence and it is facing north. We find that regarding the place of occurrence, different prosecution witnesses have stated differently. Kismati Devi (PW-2) has stated that, when after swearing oath, both were returning, then the moment they reached near the house of Kuwar Mahto, on the road, Lalbabu Singh fired at her devar. Thus, this witness has stated about the firing having taken place on the road near the house of Kuwar Mahto. The I.O. (PW-6) has not stated about Kuwar Mahto in the vicinity of the place of occurrence.

It is evident from the deposition of Duryodhan Mahto (PW-3) that he happened to be the brother of the deceased. He also says about the quarrel which had taken place and then the deceased was taken to Hanuman temple. In his cross-examination this witness has stated that the occurrence took place near the palm tree in front of the house of Kuwar Mahto. This witness has stated that at the time of quarrel, during accounting and till the deceased was taken to the temple by Lalbabu Singh, Lalbabu Singh was not holding any arms. This witness had not gone to the temple, he was also not aware about the accounting that took place between the deceased and the appellant. In paragraph ‘3’ he has stated that he had lifted his brother after he suffered firing. In his cross-examination he has stated that at the time of occurrence, no one was there near him. After hulla, first of all Pawan Devi reached, whereafter this witness and then his family members reached there. He has stated that within one minute after the occurrence he had reached and by the time he reached there, Lalbabu Singh had fled away after firing. He had not made any effort to catch hold of the accused. He has stated that at the time of lodging of the case he was not there. Who lodged the case was not known to him. This witness was suggested by the defence that he was in his house at the time of occurrence and had reached the place of occurrence only after hearing the hulla. He has stated that at the time of occurrence, he had gone to take his meal to his house and after some time he heard hulla that Lalbabu Singh had shot at his younger brother. This witness has also stated that he was not there at the time of postmortem and at the time of preparation of the inquest report.

This court finds that according to PW-3, the wife of the deceased, Pawan Devi (PW-4) was the first among those who reached at the place of occurrence. This witness does not say about the presence of Rani Kumari (PW-1). In this regard, when we look into the evidence of the informant (PW-5), it is evident that he is also not an eyewitness. The informant has stated about the presence of blood at the place of occurrence, but he has further stated that police had not collected the blood-stained earth. He has stated that he had not told anyone that Lalbabu Singh had fled away after firing because he had proceeded to taking away his brother to hospital. This witness has nowhere stated that in his presence the occurrence had taken place. In paragraph ‘1’ itself he has stated that at the time of occurrence, he was in his house. The I.O. (PW-6) has stated that Rani Kumari (PW-1) had stated before him that after hearing the sound of firing her mother and the neighbor reached there. She had stated that Lalbabu Singh came with a small gun and shot at. Duryodhan Mahto had stated before him that at the time of occurrence, he was in his house and Kismati Devi, who is the bhabhi of the deceased, has stated that after hearing the sound of firing she had gone to the place of occurrence. Pawan Devi had told the I.O. (PW-6) that she had not seen anyone else except Lalbabu Singh at the place of occurrence. The I.O. has further stated that this witness told him that at the time of occurrence, she was in her house.

On conjoint reading of the entire evidence, this court finds that the prosecution witnesses are not eyewitnesses to the occurrence. The deposition of the prosecution witnesses such as PW-1, PW-2, PW-3, PW-4 and PW-5 cannot be put in the category of a wholly reliable witness, as they are not eyewitness to the occurrence, and in their deposition they are not consistent to that extent where it may be said that they have withstood the tests of the cross-examination. We have further found that during their statements under Section 161 Cr. P.C. before the I.O., they had stated about their presence in the house, and it was Pawan Devi who had reached at first instance to the place of occurrence. Even regarding the place of occurrence, the prosecution witnesses are not consistent.

We have further noticed that during statement under Section 313 Cr. P.C., all the incriminating materials, such as that the accused had gone to his house and from there he had brought a small gun from which he had fired on the deceased, was not brought to the notice of the accused-appellant. The statement of the prosecution witnesses that there was a quarrel on account of accounting and that the accused took the victim/deceased to the Hanuman temple for swearing oath by dragging him has not been brought to the notice of the accused. It was not brought to the notice of the accused that while returning from temple, in front of his house he fired on the victim/deceased. Further, it was not brought to his notice that PW-1, PW-2, PW-3, PW-4 & P.W.-5 had seen him firing upon the victim/deceased. The I.O. had not collected any evidence at the place of occurrence. The bullet which was recovered from the body of the deceased was not sent to the FSL. There was no independent witness from the vicinity of the place of occurrence.

On the other hand, we find that the defence has also brought three witnesses who have orderly supported the defence, and they have stated that Lalbabu Singh was normally living in his parental village, Masha is his maternal grandfather's place, in his house, and in his maternal grandfather's place there is no one. He has landed property in his maternal grandfather’s village and a lot of people have usurped his land in the village.

Defence witnesses have also suggested that the family members of the deceased have also a land dispute with the accused-appellant, and they have further stated that the deceased was member of naxalite organization and there was hulla that naxalite had killed him.

Having regard to the entire materials placed before us, we are of the considered opinion that the delay in lodging of the FIR coupled with the lacunae in the evidences of the prosecution witnesses pointed out by the defence, the prosecution cannot be said to have proved the guilt of the accused beyond all reasonable doubts.

In result, we set aside the impugned judgment dated 09.12.2022 and the order of sentence dated 14.12.2022 passed by learned Additional Sessions Judge-V, East Champaran, Motihari in Sessions Trial No. 106 of 2021, arising out of Chiraiya P.S. Case No. 421 of 2018. The accused-appellant is acquitted of all the charges, giving him benefit of doubt. The appellant is said to be in jail, he shall be released forthwith, if not wanted in any other case.

This appeal stands allowed.

Mr. Prashant Kumar, learned amicus curiae, has very ably assisted this Court. The Patna High Court Legal Services Committee shall pay sum of Rs. 25,000/- (Rupees Twenty Five Thousand only) to the learned Advocate for rendering his service. Such payment shall be made within one month from today.

Let a copy of this judgment together with the records of Trial Court be sent down to the learned Trial Court.