Md. Aftab @ Aftab Alam @ Md. Aftab Alam vs The State Of Bihar

The appellant Md. Aftab @ Aftab Alam @ Md. Aftab Alam stood trial for the offence of committing the murder of Subhash Singh by causing a firearm injury and he was convicted and sentenced to suffer rigorous imprisonment for life for the offence punishable under Section 302 of the I.P.C. and also to payment of fine of Rs.10,000/-, in default thereof, to undergo imprisonment for one year. He was further convicted and sentenced to suffer imprisonment for three years and to pay a fine of Rs.5,000/- and in default clause for committing offence under Section 27 of the Arms Act.

The instant criminal appeal challenges the said judgment of conviction and order of sentence passed by the learned Additional Sessions Judge, Fast Track, Court No.1, Supaul on 25.10.2018.

On 17.04.2017 at about 11:00 A.M., one Pankaj Kumar Singh was sitting in the furniture shop of his uncle Subhash Singh, since deceased, situated at Hatiya Road, Supaul. There were Carpenters and other persons were present in the shop alongwith its owner, namely, Subhash Singh. At that time, one Md. Aftab @ Aftab Alam @ Md. Aftab Alam came to the said shop and sat beside Subhash Singh. He then started to show some obscene pictures from his mobile phone to Subhash Singh. Subhash objected and scolded Aftab for keeping such objectionable pictures in his mobile phone. On being scolded Aftab left the shop of Subhash and went to his house, within few minutes he returned to the said shop with a firearm in his hand and fired at Subhash on his forehead from point blank range. Receiving such firearm injury, Subhash fell down on the ground, blood was deranging from his wound, the assailant left the shop and fled away. Hearing the sound of firing local people from the market gathered in front of the shop, with the help of local people Subhash was taken to District Hospital at Supaul for medical treatment. However, the medical officer declared him brought dead.

The informant further stated in his statement that his younger brother Niraj Kumar Singh, Sonu Kumar Singh, Salesman-Ram Bilas Sharma, Khattar Mandal and several other persons were present in the said furniture shop of Subhash Singh at the time of occurrence and they saw the incident.

On the basis of the said statement made by Pankaj Kumar Singh, Supaul P.S. Case No.211 of 2017 under Section 302 I.P.C and Section 27 of the Arms Act was registered against the appellant. Investigation was duly taken up and upon conclusion thereof police submitted charge-sheet under Section 302 I.P.C. and Section 27 of the Arms Act against the appellant before the learned Chief Judicial Magistrate, Supaul. He took cognizance of the offence and subsequently the case was committed to the Court of Sessions for trial and disposal. The case was registered in the Sessions Court at Sessions Trial No.149 of 2017. Subsequently, the said case was transferred to the Court of learned Additional Sessions Judge, Fast Track Court-I, Supaul for trial and disposal.

In order to bring home the charge against the appellant, prosecution examined 09 (nine) witnesses, amongst the said witnesses PW-1-Ram Bilas Sharma, PW-2 Khattar Mandal, PW-3 Sonu Kumar Singh, PW-4 Niraj Kumar Singh and PW-5 Pankaj Kumar Singh claimed to be the eye witnesses to the occurrence.

Let us now deal with the evidence on record adduced by the witnesses on behalf of the prosecution.

P.W.-1 Ram Bilas Sharma stated in his evidence that he worked as a salesman in the shop of Subhash Singh on 17.04.2017 at about 11:00 A.M., he was present in the shop at that time appellant came to the furniture shop of Subhash and sat by the side of Subhash Singh. The appellant showed some photographs to Subhash from his mobile phone. Subhash objected and scolded him, asking why he had stored such obscene photographs in his mobile phone. There was heated exchange of words between them and thereafter, Aftab left for his home, within few minutes he came back with a firearm in his hand and fired a gunshot aiming at Subhash Singh's head. He received gunshot injury on his forehead and fell down after being injured. Md. Aftab @ Aftab Alam @ Md. Aftab Alam immediately fled away towards Hatiya.

PW-1 also said that Pankaj Kumar Singh, Kiran Singh, Sonu Kumar Singh, Khattar Mandal and Sunil Gupta saw the incident. PW-1 and Pankaj Kumar Singh took the injured by the motorcycle to the emergency ward of district hospital, Supaul. The medical Officer declared him dead after preliminary examination. The witness also stated that the brother of Aftab threatened him with dire consequence, if he gave statement against Aftab to the police or in Court.

From his cross-examination it is ascertained that at the time of occurrence he was present in the shop, other persons who were present in the shop were neither the owners of the said shop not the buyers. The witness did not know why they were present in the shop. It is also found from paragraph Nos.3 & 4 of the cross-examination of PW-1 that the locality is densely populated and there are other shops and establishments adjacent to the place of occurrence. It is also found from his evidence that on the North Eastern portion of the shop there is a counter and PW-1 was sitting on the South-Western side of the counter about 05 feet away, he used to work as a Carpenter in the shop. The appellant was initially present for about five minutes in the said shop, it is also stated by PW-1 that there was no verbal abuse between the appellant and the deceased before the occurrence. In his cross-examination, it was further taken that when Shubhash Singh was shot, he was sitting on a chair. The witness saw the incident from a distance of about 05 feet away, other people were also sitting. PW-1 stated in his cross-examination that he was also present when police recovered the offending weapon.

It is ascertained from the evidence of PW-2 Khattar Mandal that the incident took place about 07 years prior to the date of his adducing evidence at about 11:00 A.M. He was sitting in the furniture shop of Subhash Singh, in the said shop Subhash, Pankaj, Niraj, Sonu, Ram Bilas Sharma and Aftab were also sitting. Some other persons were also present in the said shop, whose names the witness did not recollect.

PW-2 also corroborated the fact that when Aftab showed some pictures from his mobile, Subhash scolded him asking why he had shown those pictures to him. Thereafter, Aftab became angry, went to his home and within a few minutes returned with a Revolver in his hand then he fired at Subhash Singh on his forehead from point blank range. Subhash fell down on the ground and Aftab fled away from the said shop, nobody tried to apprehend him after the incident. Pankaj and Ram Bilas Sharma took him to the hospital, during initial treatment the medical officer examined him and declared him dead. During cross-examination, the defence Counsel asked number of questions regarding the position of other persons who were sitting in the shop. In his cross-examination he stated that he went to Hatiya market to purchase some goods. He purchased some household articles and incense stick and few other items were left to be purchased. After marketing he went to the Shop of Subhash to take some rest. Subhash was sitting at a distance of about 5-7 feet from him, there was a table and some chairs around him. At the relevant point of time, the employees of Subhash were engaged in their respective works. The witness also stated in his cross-examination that immediately after receiving the gunshot injury, Subhash fell down from his chair and all people rushed towards same. After assaulting Subhash, the appellant fled away and nobody rushed to apprehend him.

P.W.-3 Sonu Kumar Singh narrated the same account of incident in his examination-in-chief. It is also stated by PW-3 that the police arrested Aftab Alam and on the basis of his statement made to the police, a pistol was recovered from a nearby pond. The witness could not say as to whether there were other customers besides the name to witnesses in the shop at the relevant point of time. He came to the shop at about 10:00 A.M. and left at about 11:00 A.M. after the shop owner received gunshot injury. In cross-examination, PW-3 stated that the witnesses neither chased to apprehend the appellant or went to his house to apprehend him because everybody was busy providing immediate medical treatment to the deceased. P.W.-3 further stated that at the relevant point of time he worked in Brajesh Auto Mobile Showroom situated at Pipra Road on his way to his place of work he occasionally sat in the shop of Subhash Singh.

PW-4 Niraj Kumar Singh also claimed that at the time of occurrence he was present at the shop, he corroborated the evidence of PW-1, PW-2 and PW-3 in his examination-in-chief. He was present in the hospital when police recorded Fardbeyan of the informant. He was also present at the time of inquest conducted by the police on the same day the accused was arrested and he made a statement before the police, on the basis of which the pistol was recovered from a Pokhar (Pond). The said pistol recovered by police was the offending weapon. In his cross-examination he stated that when he reached the shop of Subhash Singh he found Subhash, the appellant, Pankaj Singh, Sonu Singh, Khattar Mandal, Ram Bilas Singh and some other people were present in the said shop. Md. Aftab @ Aftab Alam @ Md. Aftab Alam was sitting beside Subhash towards the Northern portion of the shop, other persons were sitting at different places of the shop in a scattered manner. The witness was sitting at a distance of about 10-12 feet to the North of Subhash Singh. In paragraph No.4 of his cross-examination, PW-4 stated that Aftab left the shop within 2-4 minutes after his arrival and went to his house situated towards the Eastern side of the shop, he had left the shop quietly. Md. Aftab @ Aftab Alam @ Md. Aftab Alam again came to the shop within 2-4 minutes from the Northern direction at that time Subhash was sitting in his shop on the Eastern side facing towards West. Md. Aftab @ Aftab Alam @ Md. Aftab Alam came close to Subhash and fired at him from a distance of about two inches.

P.W.-5 Pankaj Kumar Singh is the informant, he gave a detailed account of the occurrence to the recording officer in the hospital. The statement was read over and explained to him and thereafter, he put his signature on the said Fardbeyan. Witness Kamlesh Singh also signed on the said Fardbeyan, the fardbeyan was marked Exhibit-I during trial of the case. The witness also stated that on the basis of the confession of Aftab the police recovered a pistol used in the murder from a pond beside Gandhi Maidan. The said fire arm was seized in presence of P.W.-5 and the seizure list was marked Exhibit-2 during trial of the case.

The learned defence Counsel made similar cross-examination to PW-5 as that of others, especially it was taken that at the time of occurrence the places where the eye witnesses were sitting. It also appears from his cross-examination that one or two persons tried to catch Aftab while he was fleeing, but failed. P.W.5 did not rush to catch Aftab because he wanted to make arrangement for immediate medical treatment of the victim. In his cross-examination, he corroborated that the offending weapon, a pistol was recovered in his presence at about 11:30 P.M. on the same night on the basis of the statement made by Aftab. He put his signature on the said seizure list as a witness.

An altogether new defence was attempted to be set up on behalf of the appellant suggesting P.W.5, inter-alia, that his uncle had taken a loan of Rs.1.5/- lacs from Aftab. Out of the said amount, a sum of Rs.45,000/- was taken by the deceased from the accused by cheque and the said amount remained outstanding till the date of death of Subhash.

P.W.-6 Dr. Ajay Kumar Bharti conducted post-mortem over the dead-body of deceased Subhash Singh at 01:20 P.M.. During post-mortem examination he was found multiple fractures of the skull, on dissection he found fracture of both parietal and temporal bones with collection of blood in cerebral hemisphere and celeblum. An X-ray of the skull was taken and an exhausted bullet was located on the right aspect of oxipital region in cranial cavity embedded in the substance of cerebellar region.

During cross-examination, PW-6 admitted that there was sign of burning or tattoing mark smoke and gun powder around the wound. He also opined that if the fire arm is used from the close range such type of injury marks would be visible around the place of injury.

P.W.-7 Dr. Nirmal Kumar Choudhary in his presence post-mortem was done by PW-6. The post-mortem report was marked as Exhibit-5 and the signature of P.W.7 was marked as Exhibit-4.

P.W.8-Dr. Miher Kumar Verma was also present while conducting post-mortem report of Subhash Singh. His signature on the post-mortem report was marked as Exhibit-3.

P.W.9-Rajeshwar Singh was the S.H.O. of Supaul police station, he recorded the Fardbeyan of P.W.-5 and registered Supaul P.S. Case No.211 of 2017. Prior to this, he received information over mobile phone that a person had died after sustaining bullet injury on his head and he was taken to Supaul Hospital. He recorded the same in the G.D. Book and proceeded to Sadar Hospital, Supaul. He examined the dead-body of Subhash Singh and prepared the inquest report over the said dead-body. During investigation he arrested the accused and recorded his statement in police custody. In his statement he stated to police that he would lead the police party to the place where he concealed the fire arm on being led by the accused a country made fire arm was recovered from a pond at Gandhi Maidan. The police seized the said fire arm and on completion of investigation, he submitted the charge-sheet.

Learned Advocate for the appellant while assailing the impugned judgment has made two-fold submissions.

Firstly, he submits that the Investigating Officer failed to seize the mobile phone of the appellant in which he allegedly uploaded obscene pictures and showed it to deceased Subhash Singh. According to the learned Advocate for the appellant that showing obscene pictures to Subhash by the appellant and the objection raised by the deceased therein was allegedly the reason for causing murder of Subhash. Since, the mobile phone of the appellant was not seized and the prosecution failed to prove as to whether there were any obscene pictures therein, the genesis of the prosecution case falls flat.

Secondly, the learned Advocate for the appellant submits that according to the prosecution case during investigation, the accused made a statement to the I.O. leading to recovery of a fire arm. The relevant part of the alleged statement of the appellant is admissible in evidence under Section 27 of the Indian Evidence Act. However, the prosecution did not take any step for bringing the relevant portion of the alleged statement of the accused in evidence in compliance of Section 27 of the Arms Act.

It is also submitted by him that the fire arm which was recovered during investigation was not examined by any Arms Expert to opine as to whether it was in working condition or not. Secondly, if the said fire arm was capable to fire the bullet which was recovered from the head of the deceased. In the absence of such evidence, the appellant was entitled to get benefit of doubt in the instant appeal.

Learned A.P.P. for the State on the other hand, has supported the case of the prosecution.

Having heard the learned Counsels for the parties and on careful perusal of the entire evidence on record, we are of the view that the learned Trial Judge was wrong in holding the appellant guilty under Section 27 of the Arms Act. Let us assign the reasons, first and foremost the Investigating Officer did not obtain the requisite sanction order for prosecution under Section 27 of the Arms Act as envisaged in Section 39 of the Arms Act. It is clearly stated in Section 39 of the Arms Act, as hereunder:-

Therefore, no prosecution can be lodged without the sanction order issued by the District Magistrate of the district for prosecution against the accused.

This is not the sole case in any of the cases under the Arms Act the Investigating Officers do not obtain sanction order from the District Magistrate of the District. Even, the seized firearm is not sent to the Arms Expert for assessing its workability, in the absence of the above-noted two pieces of evidence, no Court can pass an order of conviction under the Arms Act.

In the instant appeal, we are of the considered view that our observation should be sent to the Director General of Police, Bihar, Patna instructing him to direct the Superintendents of Police of all the Districts of Bihar and all the police stations to obtain the order of sanction for prosecution under Section 39 of the Arms Act and the expert report as to the workability of the fire arm before filing the charge-sheet under the Arms Act, henceforth.

In the absence of the above evidence, the appellant cannot be convicted and sentenced to suffer imprisonment under Section 27 of the Arms Act. He is accordingly, entitled to be acquitted of the charge under Section 27 of the Arms Act.

Let us now consider as to whether the Trial Court was justified in holding the appellant guilty of the offence under Section 302 of the I.P.C. and convicting and sentencing him accordingly. It is not in dispute that deceased Subhash Singh died receiving gunshot injury on his head from point blank range. The post-mortem report suggests multiple fractures of the skull and accumulation of blood in cerebral hemisphere and celeblum. An X-ray of the skull was taken and an exhausted bullet was located on the right aspect of oxipital region in cranial cavity embedded in the substance of cerebellar region.

During cross-examination PW-6 stated that he found burning and tattoring around the wound of entry. This clearly suggest that the deceased was shot dead from a very close distance. The X-Ray report of the skull of the deceased reveals existence of a bullet stuck inside the brain.

P.W.-1 to P.W.-5 claimed themselves to be the eye-witnesses. They all the narrated the same account of incident regarding the involvement of Md. Aftab @ Aftab Alam @ Md. Aftab Alam in committing murder of Subhash Singh. Thus, it is found that P.W.-1 to P.W.-5 so the accused firing at the deceased from a point blank range on his head. Secondly, the Medical Officer found gunshot injury on the head of the deceased. Thirdly, the X-Ray report of the skull of the deceased corroborates bullet injury as the bullet was stuck inside his brain.

Under the facts and circumstances, absence of firearm or failure on the part of Investigating Officer to prove the statement leading to the discovery of a fact, i.e. the firearm or failure of the prosecution to get the seized fire arm examined by an expert and submit his report are of little importance sofaras it relates to the charge under Section 302 of the I.P.C..

For the reasons stated above, we find that the learned Trial Judge rightly convicted and sentenced the appellant for committing the offence under Section 302 of the I.P.C.

The judgment passed by the learned Trial Judge insofar as it relates to the order of conviction and sentence under Section 302 of the I.P.C. is affirmed. The instant criminal appeal is partly dismissed in respect of the order of conviction and sentence under Section 302 of the I.P.C.

This Court records an order of acquittal of the charge under Section 27 of the Arms Act.

Accordingly, the instant criminal appeal is disposed of.

The lower court records be sent to the concerned Trial Court immediately, preferably within a fortnight.

Rana Vikram Singh, J.: I agree.