Safaur Rahman @ Arman @ Mohammad Safaur Rahman vs The State Of Bihar

(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Date : 25-08-2026

This appeal is listed under the heading ‘For Judgment’. At this stage, Mr. Ramakant Sharma, learned Senior counsel made a request to hear him. We have agreed to the same.

Heard learned Senior Counsel for the appellant, learned counsel for the informant and learned Additional Public Prosecutor for the State.

The present appeal has been preferred for setting aside the judgment of conviction dated 16.06.2023 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 20.06.2023 (hereinafter referred to as the ‘impugned order’) passed by learned 21^st Additional District and Sessions Judge, Motihari, East Champaran (hereinafter referred to as the ‘learned trial court’) in Sessions Trial No. 283 of 2022 (CIS No. 283/ 2022) arising out of Mehsi P.S. Case No. 211 of 2021. By the impugned judgment, the appellant has been convicted for the offences punishable under Section 302 of the Indian Penal Code (in short ‘IPC’) and Section 27 of the Arms Act. By the impugned order, he has been sentenced to undergo imprisonment for life with fine of Rs.1,50,000/- under Section 302 IPC and in case of default of payment of fine, he shall further undergo rigorous imprisonment for two years. He has also been sentenced to undergo rigorous imprisonment for five years with fine of Rs.50,000/- under Section 27 of the Arms Act and in case of default of payment of fine, he shall further undergo rigorous imprisonment for one year. Both the sentences are to run concurrently.

The prosecution story is based on the fardbeyan of the informant Sakilur Rahman (PW-6) recorded by S.I. Atul Raj of Mehsi P.S. on 31.08.2021 at 10:15 AM at Kasba Mehsi Sarai, Ward No.-14 beside the dead body of Ziyaur Rahman. The informant in his fardbeyan (Exhibit ‘5’) has stated that he had four sons, namely, Ziyaur Rahman (deceased), Safaur Rahman @ Arman (appellant), Sarik-ur Rahman and Taufik-ur Rahman. His elder son, namely, Ziyaur Rahman was living in Delhi and doing private job but about one and half years ago, he returned from Delhi and started living at home. The informant stated that he had poultry farm in Chapra which was being taken care of by Safaur Rahman @ Arman. The informant stated that his son Safaur Rahman was not taking proper care of the poultry farm and it was running in losses and there was huge loan. Thereafter, the informant handed over the poultry farm to his elder son Ziyaur Rahman who gave him profit out of the business. The informant got his sons, namely, Ziyaur Rahman and Safaur Rahman married in February, 2021. The informant alleged that Safaur Rahman used to quarrel over poultry farm.

It is further alleged that on 30.08.2021 in the morning, Safaur Rahman @ Arman returned from his sasural Sitamarhi and went inside his room. On 31.08.2021 at 08:00 AM, when the informant was in his room, he heard the sound of firing and he went upstairs and saw that Safaur Rahman @ Arman was having licensee double barrel gun in his hand and Ziyaur Rahman was lying on bed in the pool of blood. When Safaur Rahman saw the informant coming, he fired three shots on Ziyaur Rahman. Thereafter, the informant and other family members raised hulla and tried to apprehend him, he threw the gun and jumped beside the roof and fled away in south direction. When the informant went near his son Ziyaur Rahman, he was dead. Thereafter, the informant gave the information to the villagers and police. The licensee gun is in the name of the father of the informant Motiur Rahman and when Motiur Rahman had gone to lavatory, Safaur Rahman took the gun and cartridges and committed the murder of Ziyaur Rahman.

On the basis of the fardbeyan of the informant (PW-6), Mehsi P.S. Case No. 211 of 2021 dated 31.08.2021 was registered under Section 302 IPC and Section 27 of the Arms Act against the appellant.

After investigation, police submitted chargesheet bearing Chargesheet No. 273 of 2021 dated 30.11.2021 against the appellant under Section 302 IPC and Section 27 of the Arms Act.

Learned ACJM-VI, Motihari vide order dated 05.01.2022 took cognizance of the offence punishable under Section 302 IPC against the appellant and committed the records to the court of sessions.

After supply of police papers, charges were read over in Hindi and explained to the appellant to which he pleaded not guilty and claimed to be tried. Accordingly, vide order dated 25.03.2022, charges were framed against him under Section 302 IPC. Learned trial court, vide order dated 15.05.2023, on the request of learned APP framed charge under Section 27 of the Arms Act against the appellant which was not objected by the learned counsel for the defence.

In course of trial, the prosecution examined as many as fifteen witnesses and got exhibited various documentary evidences. The description of the prosecution witnesses and the list of documents exhibited on behalf of prosecution are provided hereunder in a tabular form:-

Thereafter, the statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure (in short ‘CrPC’) in which he denied the allegations and pleaded innocence.

The defence has not adduced any oral evidence but exhibited two documents i.e. Chargesheet of Kundwa Chainpur P.S. Case No. 79 of 2014 as Exhibit ‘A’ and Deposition of Shekh Salauddin in Sessions Trial No. 1073 of 2017 as Exhibit ‘B’.

Learned trial court, after examining the oral as well as documentary evidences available on the record, found that the informant has taken false plea of alibi for the first time in his evidence to save his son (accused) and defence of scuffle of deceased with thieves also not found probable by the learned trial court because the occurrence had taken place at 8 AM in a house of a village surrounded by houses of other persons and postmortem report was showing that the deceased had sustained six gun shot injuries which are not possible in scuffle unless it is fired three times with both barrels.

Learned trial court found that the informant and his father produced the gun and cartridges used in occurrence before police and production-cum-seizure list (Ext. 7) was prepared and the informant and his father had put their signature thereon. Learned trial court found that the Dy.S.P.(Reserve) had found the seized gun in working condition (Ext. 3) and in inquest report (Ext. 4) gun shot injury was found on the person of the deceased which was supported by postmortem report (Ext. 9) and seven pellets were recovered from the dead body (Ext. M-2 to M-8).

Learned trial court further found from the FSL report (Ext. 11) that the empty cartridges were fired from the seized gun bearing no. 0100D/1,Y-1978 and it has come in evidence that the empty cartridges were produced by the informant and his father before the I.O. Accordingly, learned trial court came to the conclusion that the empty cartridges and the gun were used in killing of the deceased.

Learned trial court from Ext. 13 also found that ‘Sanha’ No. 537 dated 31.08.2021 shows that a full brother has killed his full brother in internal dispute in village kasba mehsi and the 'Sanha also falsifies the story of defence that in scuffle the deceased sustained injuries and died. Accordingly, learned trial court came to the conclusion that the accused Safaur Rahman has killed his brother Ziyaur Rahman by gun shots due to family dispute and the prosecution has fully proved its case against the appellant herein beyond all shadow of reasonable doubts for the offence under Section 302 IPC and Section 27 of the Arms Act and held him guilty.

Learned Senior counsel for the appellant submits that the findings and reasonings provided by the learned trial court in the impugned judgment are bad in law and contrary to the materials available on the record.

Learned Senior counsel submits that the learned trial court could not appreciate that none of the prosecution witnesses has supported the case. Several witnesses have been declared hostile and only on the circumstantial evidences of the prosecution witnesses, the learned trial court could not have convicted the appellant, as the chain of criminological events has not been established.

It is submitted that Sahzad Ahmad (PW-7), who is the father-in-law of the deceased, has deposed that the occurrence took place on 31.07.2021 at 8:00 AM and at that time, he was at his home, he got information regarding the occurrence at 11:00 AM and thereafter he went to the house of Shakilur Rahman but by that time the postmortem had already been conducted and on the same night at 11:00 PM, the dead body was buried also. It is submitted that not even a single independent witness of the village had come forward and deposed that they had seen the occurrence.

Mr. Ramakant Sharma, learned Senior counsel for the appellant, has given much emphasis on his submission that in this case, the inquest report was prepared at 9:40 AM itself but the fardbeyan of the informant has been recorded at 10:15 AM. It is his submission that there is a delay in recording of the fardbeyan and lodging of the First Information Report. According to him, the prosecution story was still in embryo at the time of preparation of the inquest report hence it would be doubtful.

Learned Senior counsel has relied upon the judgment of the Hon’ble Supreme Court in the case of Thanedar Singh vs. State of M.P. reported in (2002) 1 SCC 487 (paragraph ‘5.2’) and on a Division Bench judgment of this Court in the case of Chulhan Rai and Ors. vs State of Bihar reported in 2012 (2) BBCJ V-107. On the strength of these judgments, learned Senior counsel submits that where there is a delay in lodging of the FIR in a serious case of murder, the Hon’ble Supreme Court has taken note of the same and in appropriate cases, has given benefit to the accused under trial.

Learned Senior counsel has further submitted that the informant (PW-6) has not supported the prosecution case on the point of involvement of the accused but the prosecution has not declared him hostile.

The appeal has been opposed by learned Additional Public Prosecutor for the State as well as learned counsel for the informant. It is submitted that in this case, the place of occurrence is the first floor of the house of the informant (PW-6). The deceased was sleeping in the room where this appellant reached with the gun and inflicted as many as six gunshot injuries. In his fardbeyan, the informant has stated that on hearing the sound of firing, when he reached on the first floor of his house, he found his son (the appellant) present there with the licensee double-barrel gun of the house and the elder son of the informant, namely Ziaur Rahman, was in pool of blood on his bed. The informant has further stated that on seeing the arrival of the informant, the appellant fired thrice on Ziaur Rahman, whereafter the informant and other members of the family ran to catch hold of the appellant but he threw the gun and jumped from the roof towards the southern side and fled away. The informant informed the police and handed over the gun to the police.

It is submitted that in course of trial, most of the prosecution witnesses, who are the family members of the appellant, turned hostile. PW-1 has stated in his examination-in-chief that he was not aware of the occurrence and his statement was not recorded in police. The prosecution cross-examined him and suggested that his statement was recorded by police and he had stated that on 21.08.2021 at about 8 o’clock in the morning, he was in the house of Akhlaque where he heard the sound of firing in the house of Shakilur Rahman (the informant) then he went there and found that the eldest son of Shakilur Rahman was lying dead on his bed and there were firearm injuries on his body. This was informed to the police. This witness has further stated that he came to know that in the house of Ziaul Rahman, from the licensee gun, his brother Shafaul Rahman @ Arman had killed him by firing and had fled away after leaving the double-barrel gun. The double-barrel gun and khokha were produced before the police.

Md. Sahimuddin (PW-2), Md. Mumtaz (PW-3), Sarikul Rahman (PW-4) and Motiur Rahman (PW-5) have also turned hostile. They were suggested by the prosecution that they had gone in collusion with the accused and were suppressing the correct facts.

It is submitted that the informant (PW-6) has stated in his examination-in-chief that on 31.08.2021 at 8:00 AM, his son Ziaur Rahman was in his room, he used to wake up in the morning but on that day, when he did not wake up then family members went into his house and found that he was lying in pool of blood on his bed. This witness had also seen him, he had died. He has stated that in the meantime police came and recorded his fardbeyan and obtained his signature. On his identification, his signature has been marked Exhibit ‘1’. This witness has stated that police had prepared the inquest report and this witness had produced the licensee gun of his father Motiur Rahman, which was seized by police, PW-6 has identified his signature on the seizure list and his signature on the carbon copy of production-cum-seizure list, which has been marked Exhibit ‘2’.

It is submitted that in paragraph ‘2’ of his examination-in-chief, PW-6 has stated that he had not seen as to who killed his son and then he has stated that the licensee gun was thrown outside his house. Learned counsel submits that it is evident from the deposition of PW-6 that he had turned hostile on the point of identification of the accused. The learned Public Prosecutor did not confront him with his fardbeyan and this witness was not declared hostile. This only shows that even the Public Prosecutor had gone in collusion with the defence.

Learned counsel submits that despite the efforts of some of the prosecution witnesses to save the appellant, the testimony of other prosecution witnesses such as PW-7, PW-8, PW-9, PW-10, PW-11, PW-12, PW-13, PW-14 and PW-15 are such that they are clearly establishing the chain of events and in this regard, the evidence of the father-in-law of the deceased, namely Sahjad Ahmad (PW-7), the Dy. SP Reserve (PW-8) and the I.O. (PW-9) would be important to take note of. The I.O. (PW-9) has narrated how he reached the place of occurrence and recorded the fardbeyan of the informant, on which the informant put his signature. The I.O. has proved the fardbeyan (Exhibit ‘5’). It is submitted that the Dy.SP Reserve (PW-8) had examined the seized double-barrel gun (Material Exhibit ‘1’) and found the same active. Similarly, he had examined the seized 12-bore one cartridge and six khokha. He found that the cartridge was a live cartridge and if fired, it would be dangerous to life. He had marked the khokhas (C-1 to C-6) and put his short signature on all the material exhibits, whereafter he had sealed all those exhibits in the presence of the I.O. and submitted his report. The report submitted by PW-8 has been marked Exhibit ‘3’.

Learned counsel further points out that the evidence of the doctor (PW-10) would show that the deceased had suffered six firearm projectile wound of entry on various parts of his body. Bullets were removed after excision of the chest wall anteriorily and kept reserved for medico-legal examination in the FSL laboratory in a higher center. The bullets removed were handed over to the accompanying police. PW-10 has proved the postmortem report (Exhibit ‘9’). He had not found any wound of exit. The defence suggested that it may be a case of suicide but the doctor (PW-10) has clearly stated that a person committing suicide would not cause these kinds of injuries but these injuries may be caused in case of a scuffle and snatching.

Learned counsel has further submitted that Chawkidar 4/5 Jitendra Kumar Yadav had produced all the material exhibits and proved it in the trial court. Similarly, the same witness has come as PW-13 to prove the original sanha (Exhibit ‘13’). With reference to all these materials available on the record, learned counsel submits that there would be no iota of doubt that the appellant is the assailant of the deceased and the prosecution has been able to prove his guilt beyond all reasonable doubts.

We have heard learned counsel for the parties and learned Additional Public Prosecutor for the State as also perused the trial court’s records. On going through the material evidences on the record, we find that the I.O. (PW-9) has proved the fardbeyan of Shakilur Rahman (PW-6) recorded on 31.08.2021 at 10:15 AM at Kasba Mehsi Sarai in Ward No. 14 beside the dead body of Ziaur Rahman. In his examination-in-chief, the informant (PW-6) has admitted his signature on the fardbeyan. He has stated that while he was weeping after the death of his son, police came and recorded his fardbeyan on which his signature was obtained. It is, therefore, evident that in his examination-in-chief, PW-6 has clearly stated that police had recorded his fardbeyan. There is no allegation that police had not recorded his fardbeyan or had obtained his signature on any blank sheet of paper. In his cross-examination, this witness has taken a U-turn and has stated that there is a village politics and groupism on account of Panchayat election in the village and it is those people who got written the case in which his son’s name was given. Then he has stated that because his mental condition was not well, so he could not know what was written in the fardbeyan. In his cross-examination, he has come forward with a statement that wherever Darogaji asked him to put his signature, he put his signature thereon.

This Court finds while appreciating the evidence of the informant (PW-6) that during the trial, he has been trying to save his son who was facing trial. So far as the place of occurrence is concerned, PW-6 confirms that it is the room in which the deceased was found lying in pool of blood. The same place of occurrence is stated by the I.O. (PW-9). PW-9 had reached the place of occurrence after getting a message on his official mobile on 31.08.2021 at 8:05 AM that in personal enmity, a brother had killed his own brother. He had recorded Sanha No. 537 dated 31.08.2021 (Ext. 13) and proceeded for verification and necessary action together with the S.H.O. and the armed force to the house of the informant. The original Sanha has been brought on record through the Chowkidar (PW-13). We have perused Exhibit-13 and found that the statement of PW-9 in this regard is correct. The I.O. has given the description of the place of occurrence. The house is a double-story building and on the first floor of the house, towards the northern side, was a room in which on the bed, the deceased was lying. He had hole injuries on his back which were bleeding. The I.O. has stated that he inquired about the occurrence from the family people and found that the deceased was Ziaur Rahman who had been murdered by his own younger brother, Shafaur Rahman @ Arman by a licensee double-barrel gun and he had fled away after leaving the gun. This witness prepared the inquest report. He proved the carbon copy of the inquest report (Exhibit ‘4’) and sent the dead body for postmortem to Sadar Hospital, Motihari.

PW-9 has stated that he had recorded the fardbeyan of the informant and read over the same to him, on which after finding the same correct, he had put his signature. PW-9 has proved the fardbeyan (Exhibit ‘5’) and the endorsement made thereon in the margin portion by the S.H.O. Sunil Kumar Singh in his handwriting and the signature, which has been marked Exhibit ‘5/1’. The In-charge S.H.O. had prepared the formal FIR in his own pen and signature, which has been marked Exhibit ‘6’.

PW-9 had prepared the production-cum-seizure list in presence of Shakilur Rahman (informant) and his father Motiur Rahman, who had put their signatures. PW-9 has identified their signatures on the production-cum-seizure list. The seizure list has been marked Exhibit ‘7’. He has stated that Shakilur Rahman and Motiur Rahman had produced the live 12-bore cartridge and one double-barrel gun (butt No. 102200D/1Y78, Barrel No. 719708). On unloading the same, from the left barrel, one live 12-bore cartridge was taken out. He had prepared another seizure list on which the informant and his father had put their signatures. This has been marked Exhibit ‘7/1’.

On perusal of the original Sanha, the fardbeyan of the informant and the deposition of the I.O. (PW-9), this Court finds that immediately after the occurrence, the same was reported to police over mobile, a Sanha was recorded in the police station, police proceeded to the place of occurrence, where the immediate circumstances present at the place of occurrence has been narrated by the I.O. (PW-9). The licensee gun, six khokhas and one 12-bore live cartridge were also produced, which were seized by the I.O. (PW-9). The place of occurrence is admitted. It is a room inside the double-story building of the informant and it is not the case of the informant that there was any access in the room of the deceased from outside. Thus, anyone who would enter into the room of the deceased would only enter through the house of the informant and will have to go upstairs to the room of the deceased.

This Court has further found from the evidence of the Dy. S.P. Reserve (PW-8) that he had examined the double-barrel gun, six khokhas and one live cartridge which were seized by the I.O. He has proved Exhibit ‘A’ and Exhibit ‘B’. PW-8 had marked the six khokhas as ‘C-1’ to ‘C-6’, he found the gun in active condition. The material exhibits such as the gun, the khokhas and the live cartridge were produced in course of trial through the Chowkidar (PW-12). They have been marked material exhibits.

We have further noticed that the doctor (PW-10) who conducted the postmortem on the dead body of the deceased and PW-11 have deposed on similar line. The following antemortem injuries were found on the person of the deceased:-

One important exhibit in this case is the FSL report and the result of examination noted by the FSL are as under:-

This Court finds that few days after the occurrence, the informant had filed a protest petition before the learned Magistrate. The same has been brought on record and marked Exhibit ‘14’. On perusal of Exhibit ‘14’, it appears that the informant had once again reiterated his case as disclosed in his fardbeyan. He raised a grievance that the local police was not taking any action and they were not recording the statement of the informant and the witnesses, therefore, he apprehended that police was trying to change the course of investigation. This Court, therefore, finds that the stand of the informant (PW-6) that he was not aware of the occurrence and that he could not identify the assailant, are only an afterthought. The protest petition has been signed by the informant and the same was attested by the Advocate. In this regard, the evidence of Umesh Mishra (PW-14), who is the Advocate Clerk of Sri Ravi Ranjan, Advocate, would be important to take note of. He has stated that the protest petition was typed by one Mukesh Kumar, which was read over by the Advocate to the informant who after hearing the same, put his signature thereon. In his cross-examination, this witness has, though, stated that he had not worked with Ravi Ranjan, Advocate but the defence has not denied that the informant had put his signature on the protest petition. From the pattern of cross-examination of the defence, it is found that the defence has not questioned the fact that the fardbeyan was recorded on the basis of the statement of the informant (PW-6).

This Court has considered the plea of the learned Senior counsel appearing on behalf of the appellant as regards the delay in recording of the fardbeyan. We are of the considered opinion that, in this case in fact this Court cannot take a view that there was any delay in recording of the fardbeyan for the reason that the prosecution had at the first instance brought on record the sanha (Exhibit ‘4’). The I.O. (PW-9) immediately reached the place of occurrence and in presence of the informant and his father, the inquest report was prepared at 9:40 Hrs. The I.O. also prepared the production-cum-seizure list (Exhibit ‘7’) at 10:00 AM. The fardbeyan was recorded at 10:15 Hrs. The chain of circumstances placed on the record under which the fardbeyan was recorded at 10:15 AM would not give rise to any doubt as regards the prosecution case on the ground of delay.

The judgment of the Hon’ble Supreme Court and that of this Court on which reliance has been placed by the learned Senior counsel for the appellant have been rendered in a completely different fact situation. We have noticed from the factual aspects stated in paragraph ‘5.2’ of the judgment in the case of Thanedar Singh (supra). Similarly, we have noticed that in the case of Chulhan Rai (supra), this Court found it difficult to accept that the fardbeyan in question on the basis of which First Information Report was recorded was the actual first prosecution version in terms of Section 154 of the CrPC. The fact situation being different in those cases, the proposition of law advanced by learned Senior counsel for the appellant would not come to the rescue of the appellant in the present case.

In the aforesaid background of the facts emerging from the evidences available on the record, this Court is of the considered opinion that only because PW-1 to PW-5 have not supported the prosecution case and they have been declared hostile, the prosecution case would not fail. It is proved that the double-barrel gun was owned by Motiur Rahman (PW-5), who is the father of the informant. He had himself produced the gun by which murder was committed. He had himself, along with the informant, produced the loaded double-barrel gun, license of the gun, five empty cartridges before the police and signed on the production-cum-seizure list. The learned trial court has rightly recorded these facts in the impugned judgment.

We have gone through the judgment of the learned trial court. In our considered opinion, the learned trial court has rightly appreciated the evidences available on the record. As regards the principles governing appreciation of evidences, the Hon’ble Supreme Court has in the case of Shahaja @ Shahajan Ismail Mohd. Shaikh vs. State of Maharashtra reported in (2023) 12 SCC 558 observed in paragraphs ‘29’ and ‘30' as under:-

We find no error in appreciation of the evidence on the record. Hence, no case for interference with the impugned judgment and order is made out.

This appeal is dismissed.

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