Allowed

Laddu Sah v. the State of Bihar

Patna HC28 Jan 2014CR. APP (DB)/15/2012

Case brief

AI extract

What is this about?

Eight-year appeal challenging life imprisonment for murder. High Court acquitted appellants finding prosecution witnesses unreliable; key pillion witness testified victim was shot from behind, contradicting claim that assailants stood before motorcycle. Conviction set aside on benefit of doubt.

What did the court decide?

Impugned convictions and sentences set aside; appellants held not guilty and acquitted.

Laddu Sah Vs the State of Bihar — Cheque Dishonour | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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(Against the judgment of conviction dated 20^th December, 2011 and sentence dated 22^nd December, 2011 passed by Shri Anand Singh, Additional Sessions Judge, F.T.C.-3, Khagaria in Sessions Trial Nos.220 of 2004, 221 of 2004 and 222 of 2004, arising out of Khagaria Rail P.S. Case No.54 of 2002)

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-------------Criminal Appeal (DB) No.15 of 2012 =================================================== Laddu Sah, S/o Late Dhanik Sah, resident of village- Bhadas North, P.S. Muffasil, District Khagaria .... Appellant Versus The State Of Bihar .... Respondent with

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Criminal Appeal (DB) No. 65 of 2012 =================================================== Ranjeet Singh S/o Ram Julum Prasad Singh @ Ram Gulam Prasad Singh, resident of Village- Bhadas North, P.S. Khagaria (Muffasil), District Khagaria .... .... Appellant

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Versus The State Of Bihar ... .... Respondent =================================================== Appearance : (In CR. APP (DB) No. 15 of 2012) For the Appellant/s : Mr. Akhileshwar Prasad Singh, Sr. Advocate Mrs. Anita Kumari Singh, Advocate For the State : Mr. Ashwani Kumar Sinha, Addl.P.P. Mr. S.C. Mishra, Addl. P.P. (In CR. APP (DB) No. 65 of 2012) For the Appellant/s : Mr. Suraj Narayan Prasad Sinha, Sr. Advocate For the State : Mr. Ashwani Kumar Sinha, Addl.P.P. Mr. S.C. Mishra, Addl. P.P.

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=================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI and

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HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH

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ORAL JUDGMENT

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(Per: HONOURABLE MR. JUSTICE I. A. ANSARI) Date: 28.01.2014

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I.A. Ansari,J Both the appeals have arisen out of

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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judgment, dated 20.12.2011, passed, in Sessions
Trial Nos. 220 of 2004, 221 of 2004 and 222 of
2004, arising out of Khagaria Rail P.S. Case
No. 54 of 2002, by learned Additional Sessions
Judge, F.T.C.-3, Khagaria, convicting the
present two appellants, namely, Laddu Sah and
Ranjeet Singh, under Section 302 read with
Section 34 of the Indian Penal Code and Section
27 of the Arms Act, 1959. Following their
conviction under Section 302 read with Section
34 of the Indian Penal Code, learned trial
Court has, vide impugned order, dated
22.12.2011, sentenced the appellants to undergo
imprisonment for life with fine of Rs. 5,000/-
each and, in default of payment of fine, suffer
Simple Imprisonment for two months and to
further suffer, for their conviction under
Section 27 of the Arms Act, 1959, rigorous
imprisonment for two years with fine of Rs.
1,000/- each and, in default of payment, suffer
Simple Imprisonment for one month, all the
sentences having been directed to run

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concurrently.

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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2. The case of the prosecution, as
unfolded at the trial, may, in brief, be
described as follows:

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(i) Indradeo Mahto @ Indradeo Sardar
(since deceased) was a Mukhiya (i.e. a head-man
of his village). On 06.10.2002, he was busy in
distributing, in the compound of a local
school, wheat, as flood relief. Since the
stock of wheat fell short of the requirement,
he left, at about 5 P.M., for the Block Office
to obtain more wheat for being distributed, as
a relief item, to the affected people of the
locality. While leaving the school, Indradeo
asked his elder brother, Kapildeo Mahto (P.W.
8) to wait.

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(ii) As Indradeo Mahto did not
return, his brother, Kapildeo Mahto (P.W. 8),
accompanied by Raja Mahto (P.W. 4), Ram Bahadur
Mahto (P.W. 3), Dharmendra Kumar (P.W. 10) and
4-5 other persons, came out of the school
looking for Indradeo Mahto. However, when they
reached behind Railway Reservation Office, at
Khagaria Railway Station, they saw Indradeo

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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Mahto coming on a motorcycle, which Indradeo
was driving, with Deodhar Singh (P.W. 5) as
pillion rider. Suddenly, three persons,
namely, Laddu Sah (appellant), Ranjeet Singh
(appellant), Binod Mahto @ Bauna Mahto (since
acquitted) appeared before the motorcycle. In
the meanwhile, accused Navin Tulsiyan appeared
there on foot, abused Indradeo Mahto and
ordered the said three persons, namely, Laddu
Sah, Ranjeet Singh and accused Binod Mahto @
Bauna Mahto (since acquitted) to kill Indradeo.
On being so exhorted, accused Laddu Sah and
Ranjeet Singh fired on Indradeo’s stomach.

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After Indradeo fell down, accused Bauna @ Binod
Mahto (since acquitted) fired from his pistol
on the temporal region of Indradeo killing him
on spot.

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(iii) Since the occurrence had taken
place close to the Reservation Office, at
Khagaria Railway Station, many people came
rushing there and so did the police. A
fardbeyan, describing the above occurrence, was
lodged, in writing, by Kapildeo (P.W. 8).

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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Based on this fardbeyan and treating the same
as First Information Report (hereinafter
referred to as ‘F.I.R.’), Khagaria Rail P.S.
Case No. 54 of 2002 was registered, under
Section 302 read with Section 34 of the Indian
Penal Code and Section 27 of the Arms Act,
1959, against four persons, namely, Navin
Tulsiyan, Laddu Sah, Ranjeet Singh and Bauna
Mahto @ Binod, who had been named in the First
Information Report.

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(iv) During investigation, police

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held inquest over the said dead body and
prepare inquest report. The said dead body was
also subjected to postmortem examination and,
on completion of investigation, a chargesheet
was laid, under Section 302 read with Section
34 of the Indian Penal Code and Section 27 of
the Arms Act, 1959, against accused Laddu Sah,
Ranjeet Singh, Binod Mahto @ Bauna Mahto and
Raja Ram Mahto.

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3. At the trial, when charges, under
Section 302 read with Section 34 of the Indian
Penal Code and Section 27 of the Arms Act,

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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1959, were framed, all the accused
aforementioned pleaded not guilty thereto.
4. In support of their case,

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prosecution examined altogether 12 witnesses.
All the accused aforementioned were, then,

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examined under Section 313(1)(b) Cr.P.C. and,

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in their examinations aforementioned, they
denied that they had committed the offences,
which were alleged to have been committed by
them, the case of defence being that of denial
and of the accused having been falsely
implicated due to dispute with the deceased and
his family. No evidence was adduced by the
defence.

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5. Having reached the conclusion
that accused Laddu Sah and Ranjeet Singh stood
proved guilty of the offences, which they had
been charged with, learned trial Court
convicted them accordingly and passed sentences
against them as has been mentioned above.
Learned trial Court, having also concluded that
the charges against the remaining accused,
namely, Binod Mahto @ Bauna and Raja Ram Mahto,

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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could not be proved beyond reasonable doubt,
acquitted them accordingly.

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6. Aggrieved by their conviction and
the sentences, which have been passed against
them, both the convicted persons, namely, Laddu
Sah and Ranjeet Singh, have preferred appeals.

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While the appeal, which has been preferred by
Laddu Sah, has given rise to Cr. Appeal (DB)
No. 15 of 2012, the appeal, which has been
preferred by the convict, Ranjeet Singh, has
given rise to Cr. Appeal (DB) No. 65 of 2012.

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7. We have heard Mr. Suraj Narayan
Prasad Sinha, learned Senior counsel, appearing
on behalf of the appellant, Ranjeet Singh, and

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Mr. Akhileshwar Prasad Singh, learned Senior

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counsel, appearing on behalf of the appellant,
Laddu Sah. We have also heard Mr. Ashwani
Kumar Sinha and Mr. S.C. Mishra, learned
Additional Public Prosecutors for the State.

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8. While considering the present

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appeal, it needs to be borne in mind that it is
not in dispute that it was P.W. 11 (the doctor)

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who had performed postmortem examination on

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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the dead body of Indradeo Mahto, on 07.10.2002,

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and found the following ante mortem injuries:

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(1)Lacerated wound over left
side of upper abdomen just below coasted
margin 1/3” x 1/3” incise with
blackening and charing present around
the wound. Margin inverted. That is
wound of entry.

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(2)Lacerated wound over
right side of back below scapula 1” x
1”. Margin inverted. Wound of exit.

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(3)Lacerated wound over
lateral side of chest in mid auxiliary
line 1/3” x 1/3” into cavity deep with
blackening and charing present around
the wound. Margin inverted. Wound of
entry.

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(4)Lacerated wound over
right side of chest back 3” below
scapula 1” x 1”. Margin inverted. Wound
of exit.

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(5)Lacerated wound by side
of left ear 1/3” x 1/3” into (sic)
cavity deep with blackening and charing.
Margin inverted. Wound of entry.

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(6)Lacerated wound on right
ear 1” x 1” with blood present in the
right ear and external (sic) canal
lacerated. Margin inverted. Wound of
exit.

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9. In the opinion of the doctor,

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the death was caused due to shock and

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hemorrhage on being shot by fire-arm.

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10. The findings of the doctor

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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(P.W. 11) and his opinion, with regard to
the cause of death, have not been in dispute
at the trial. This apart, we, too, do not
notice anything inherently incorrect or
improbable in the findings of the doctor or
in his opinion with regard to the cause of
death.

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11. Bearing in mind, therefore,

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that Indradeo Mahto had been put to death by
shooting him with the help of fire-arm, let
us proceed to consider the evidence of the
informant, Kapildeo Mahto (P.W.8). According
to the evidence of P.W.8, on 6.10.2002,
wheat, as a relief material, was distributed

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by his younger brother, Indradeo Sardar @
Mukhiya (since deceased) and the
distribution continued till about 5 P.M.,
but on realizing that the quantity of wheat,
made available, fell short of the
requirement, Indradeo left for the Block
Office asking P.W. 8 to wait for about half-
an-hour. When Indradeo did not return, the
informant (P.W. 8), accompanied by 5-6

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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others, started looking for his younger
brother, Indradeo, and, at that point of
time, they saw Indradeo coming, on
motorcycle, with Deodhar (P.W.5) sitting as

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a pillion rider.

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12. Describing the occurrence
further, P.W. 8 has deposed that while his
younger brother, Indradeo, was coming on a
motorcycle as mentioned above, three persons
appeared in front of Indradeo’s motorcycle,
and out of the said three persons, he
(P.W.8) could recognize accused Laddu Sah
and accused Ranjeet Singh, but could not
identify the third one. P.W. 8 has also
deposed that he, then, saw Navin Tulsiyan
(since acquitted) and Raja Mahto (since
acquitted) coming there and Navin Tulsiyan
(since acquitted) asking the said three
persons including accused Laddu Sah and
accused Ranjeet Singh to kill Indradeo and,
on being so exhorted, Laddu Sah opened fire
from a pistol and the bullet hit left side
of Indradeo’s abdomen. P.W. 8 has further

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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deposed that accused Ranjeet Singh, too,
fired and the bullet hit Indradeo’s abdomen.
13. What is, now, extremely
important to note is that in the fardbeyan,
which has come to be treated as the First
Information Report (Ext.1), the informant
(P.W. 8) had claimed that the three men, who
had appeared in front of the motorcycle,
were accused Laddu Sah, accused Ranjeet
Singh and accused Bauna (since acquitted).
What is equally important to note, in this
regard, is that P.W. 8 admits that the
contents of Ext.1 were read out and

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explained to him and, on being satisfied, he
had put his signature thereon.

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14. Explaining, however, the
reason for mentioning the name of accused
Bauna in the First Information Report, P.W.
8 has deposed that he had signed Ext.1 on
being asked by one Lutan, a co-villager, and
henchmen of accused Navin Tulsiyan (since
acquitted).

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15. It is, therefore, apparent

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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from the evidence of P.W. 8 himself that the
contents of the First Information Report
were known to P.W. 8 and the contents of
Ext.1 implicated accused Bauna as one of the
assailants, though accused Bauna, according
to the evidence of the informant (P.W.8) was

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even present at the place of occurrence. A
witness, who can go to the extent of
implicating a person, in a case of murder,
who had not, if the informant (P.W. 8) has
to be believed, participated in the
occurrence of shooting, could not have been
implicitly relied upon even with regard to
the other two accused, namely, accused Laddu
Sah and accused Ranjeet Singh.

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16. In fact, a person, such as,
P.W. 8, who, admittedly, implicates and
ropes in an innocent person, if accused
Bauna was innocent, ought to have been
treated as a witness, who is wholly unworthy
of trust and unsafe to place reliance upon.

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17. Bearing in mind the quality of
evidence of the informant (P.W.8), who has

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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projected himself to be an eye witness of
the occurrence, though it is impossible to
confidently hold, on the basis of his
discredited evidence, that he had witnessed
the occurrence, we turn to the evidence of

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P.W. 3, who, too, projected himself as an
eye witness, but his evidence, as the
impugned judgment reflects, has not been
found to be free from doubt.

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18. According to P.W.3’s evidence,
on the date of the occurrence, i.e. on
6.10.2002, at about 7 P.M., Indradeo had
gone to Block Office to fetch more wheat and
he saw Indradeo returning, on a motorcycle,
with Deodhar (P.W.5) sitting on the pillon
of the motorcycle, which was being driven by
Indradeo. It is the evidence of P.W. 3 that
when Indradeo was proceeding on his
motorcycle, accused Navin Tulsiyan (since
acquitted) and Raja Mahto came and from the
western direction, three more persons came
and, amongst the three persons, who so came,
accused Laddu Sah and accused Ranjeet Singh

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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were present and, on being asked by accused
Navin Tulsiyan (since acquitted) accused
Laddu Sah and, thereafter accused Ranjeet
Singh fired from their respective fire-arms
on Indradeo and ran away.

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19. It is the clear evidence of

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P.W. 3 that he could not identify the third
man, who had accompanied accused Laddu Sah
and accused Ranjeet Singh.

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20. What is pertinent to note,
while considering the evidence of P.W. 3, is

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that in his cross-examination, he has
deposed that he had heard four rounds of
bullet being fired, when he reached the
compound of Reservation Office and saw
Mukhiya i.e. Indradeo falling.

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21. Apart from the fact that the

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learned trial Court has, on the basis of the
evidence so given by P.W. 3, held that P.W.
3 could not have been said to be an eye
witness to the occurrence of firing so far
as his claim that accused Laddu Sah and
accused Ranjeet Singh had fired from their

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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fire-arms, what is curious to note is that
the informant (P.W. 8), who has claimed to
be an eye witness, did not give any
indication that he had seen P.W. 3 at or
near the place of occurrence either at the
time of the occurrence or soon thereafter.
Similarly, P.W. 3, too, has claimed to be an
eye witness or, at least, a witness, who
claims to have seen the assailants and also
had heard bullets being fired, does not
claim, in his evidence, that he had seen the
informant at or near the place of occurrence
either at the time, when the occurrence took
place, or soon thereafter. Far from this,
the evidence of P.W. 3 is that he did not
see any known person at the place of
occurrence meaning thereby that even P.W. 8
was not present at the place of occurrence.

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22. Both the witnesses, namely,
P.W. 3 and P.W. 8, thus, exclude the

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presence of each other from the place of
occurrence, though both of them claim to be
eye witnesses to the occurrence. This apart,

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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P.W. 3, according to the evidence on record,
is a close relative of the said deceased and
he (P.W. 3), had disputes with accused Laddu
Sah, accused Ranjeet Singh and Navin

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Tulsiyan (since acquitted).

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23. More importantly, P.W.

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claims that when police came to the place of
occurrence, he (P.W. 3) was present there;
but neither P.W. 3 informed the police about
the occurrence and who the assailants were
not was his statement recorded by the police
soon after the occurrence. It is equally
important to note that according to P.W. 3,
he proceeded in search of the said deceased
along with Kapildeo (P.W. 1), but P.W. 8
does not say that P.W. 3 was present with
him (P.W. 8), when the occurrence had taken
place.

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24. Coupled with the above, the
evidence of P.W. 3 is to the effect that
accused Laddu Sah had fired on the ear pit;
whereas the First Information Report alleges
that it was accused Bauna (since acquitted),

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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who had fired on the temporal region of the
said deceased.

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25. Situated thus, it is crystal
clear that the evidence of P.W. 3 could not
have been relied upon by the learned trial
Court to hold that P.W. 3 had witnessed the
occurrence or that the present appellants
were the assailants.

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26. Similarly, so far as P.W. 2 is
concerned, he has also claimed to have seen
Mukhiya being shot by accused Laddu Sah and
accused Ranjeet Singh on being asked by
accused Navin Tulsiyan (since acquitted).

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27. It is, however, important to

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note that P.W. 2 has deposed, in the cross-
examination, that he cannot say if accused
Bauna was present at the place of

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occurrence. P.W. 2 is a close relative of
the said deceased; yet his statement was not
recorded on the night of the occurrence or

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soon thereafter. It is the evidence of P.W.
2 that he heard a sound of firing, when he
was behind the reservation office. In such

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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circumstances, he cannot be treated to be an
eye witness.

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28. Even P.W. 2 did not report to

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the police, when the police arrived at the

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place of occurrence, about how the

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occurrence had taken place. Interestingly
enough, P.W. 2 admits that he did not give

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any information about the occurrence to the

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family members of Mukhiya and he also
deposes that he sent information, on the
following day, to the house of Mukhiya.

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29. What is wholly impossible to
ignore is that according to the evidence of
P.W. 2, he did not go to the house of the
deceased; rather, he went to his own house
and, on the following day, sent information
to the house of the deceased. When P.W. 2
was a close relative of the said deceased

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and when the presence of P.W. 2, at the
place of occurrence, is not acknowledged

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either by P.W. 8 or by P.W. 3 and when P.W.
2 did not even go to the house of the
deceased nor was his statement recorded by

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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the police soon after the occurrence, he
cannot be relied upon.

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30. The above discussion of the
evidence on record bring us to the evidence
of P.W. 5 (Devdhar), who was, admittedly,
the pillion rider, on the motorcycle, when
Indradeo was shot. The evidence of P.W. 5
is to the effect that while he was coming on
the motorcycle, which was being driven by
the said deceased, somebody fired from
behind, which hit him (P.W. 5) in his
trouser and also hit the said deceased, who
fell down from the motorcycle and that he
(P.W. 5), too, fell down and ran aay to save
his life.

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31. It is the clear evidence of
P.W. 5 that he did not see any bullets being
fired meaning thereby that no one appeared
before the motorcycle, which was being
driven by the said deceased, and no one
stood before the motorcycle and fired at
Indradeo and/or that it was accused Navin
Tulsiyan (since acquitted), who had exhorted

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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others to shoot at the said deceased.

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32. The whole evidence of P.W. 5
has gone unchallenged by the prosecution. In
such a situation, he, being admittedly,
present on the motorcycle, his evidence
cannot be discarded and if his evidence is

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believed, which we see no reason to
disbelieve, Indradeo had been shot at from
behind, while he was proceeding on the
motorcycle with Devdhar (P.W.5) as pillion
rider. The description of the occurrence, so
given by P.W. 5 bellies the evidence of not
only P.W. 8 but also P.W. 2 and P.W. 3 who
have claimed that three men appeared before
Indradeo’s motorcycle and on being exhorted
by Navin Tulsiyan (since acquitted), the
said three men fired at Indradeo meaning
thereby that Indradeo was shot from front
side; whereas Indradeo was shot, according
to P.W. 5, from behind.

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33. So far as P.Ws 1, 4, 6, 7 and
10 are concerned, they have not supported
the case of the prosecution. In fact, P.W. 4

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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has deposed that he went to the house of
P.Ws 2 and 3 to inform them about the
occurrence. This shows that P.Ws 2 and 3
were not present at the place of occurrence,
when the occurrence had taken place.

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34. Coming to the evidence of P.W.
9, widow of the said deceased, we notice
that she had, admittedly, not witnessed the
occurrence. What is, however, of immense
importance to note, in her evidence, is that
according to her, accused Bauna was a driver
at the time of occurrence and he was not
involved in the murder of her husband. It is

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also the evidence of P.W. 9 that accused
Bauna has been falsely implicated in the
case inasmuch as Bauna was present at her
house, when a rickshaw pullar shouted that
Indradeo had been murdered. Curiously
enough, P.W. 9 has deposed that she
specifically asked Kapildeo (P.W. 8) as to
why Bauna had been implicated and P.W. 8 had
told her that he (P.W. 8) had mentioned the
name of assailants on the basis of what he

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Patna High Court CR. APP (DB) No.15 of 2012 dt.28-01-2014

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had heard. This is yet another circumstance,
which goes to show that P.W. 8 was not an
eye witness, and P.W. 3, who claims, at one
stage, to have accompanied P.W. 8, can also
not be regarded as an eye witness.

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35. Further-more, it is the clear

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evidence of P.W. 9 that on the protest being
raised by her, P.W. 8 made an application,

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in the Court, stating therein that Bauna
Mahto was innocent.

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36. Because of what has been

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discussed and pointed out above, it clearly
emerges that there was not credible,

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clinching and reliable evidence on record,
adduced by the prosecution, which could have
been made foundation for convicting the two
accused-appellants. At any rate, in the face

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of evidence on record, which was nothing,
but an admixture of half-truth and untruth,

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the two accused-appellants ought to have

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been accorded, at least, benefit of doubt.

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37. In the result and for the

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forgoing reasons, we allow the appeals. The

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impugned conviction of the accusedappellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside. Both the accused-appellants are held not guilty of the offences, which they stand convicted of, and they are hereby acquitted of the same under benefit of doubt. 38. Let both the accusedappellants be set at liberty forthwith unless they are required to be detained in case of any other case. 39. Send back the Lower Court Records. (I. A. Ansari, J.)

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(Samarendra Pratap Singh, J.) Md.Jamaluddin Khan, AFR

Laddu Sah v. the State of Bihar

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Laddu Sah v. the State of Bihar

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