Bikramadita Singh vs State Of Bihar

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 721 OF 2004

BIKRAMADITYA SINGH .. APPELLANT(S)

vs.

STATE OF BIHAR .. RESPONDENT(S)

O R D E R

1. This appeal arises from an order dated 26th August,

2003, passed by the High Court of Judicature at Patna in

Criminal Appeal No. 477 of 1999, where by the conviction of

the appellant under Section 302/34 of the Indian Penal Code

and sentence of imprisonment for life passed by the Third

Additional Sessions Judge, Patna in Sessions Trial No. 549

of 1996 by order dated 4th October, 1999, has been upheld.

2. The prosecution commenced on the basis of a report

given by informant Ramjee Singh (P.W. 4) before the Sub

Inspector of Police on 9th August, 1985 at 9:15p.m. in

Vikram Government Hospital, Patna. According to the First

Information Report, four years prior to the occurrence, the

informant had purchased a house from one Ramanand Mistri

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which was adjacent to the house of accused Bali Ram Singh.

The prosecution has alleged that the said accused Bali Ram

Singh had demolished the wall of the purchased house and on

9th August, 1995, he had gone to the Rani Talab Police

Station to lodge the report. While the informant was

returning from the police station along with his brother

Ashok Singh (deceased) and reached in front of the house of

said Bali Ram Singh all the accused including the appellant

herein surrounded the deceased and the present appellant is

alleged to have exhorted to shoot them dead whereupon

accused Bali Ram Singh fired from his pistol causing

injury to the deceased Ashok Singh. Hearing the sound of

shots, according to the prosecution, witnesses Kedar Singh

(P.W. 1) and Lal Bahadur Singh (P.W. 3) came there and

seeing them all the accused persons fled away from the

place of occurrence. The injured Ashok Singh was brought

on a cot to Vikram Government Hospital and was declared

dead.

3. The police after usual investigation submitted the

charge sheet and the appellant was charged for commission

of the offence under Section 302/34 of the Indian Penal

Code and Section 27 of the Arms Act. The appellant denied

to have committed the offence, and claimed to be tried.

Prosecution in order to bring home the charge altogether

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examined six witnesses out of which P.W. 1 - Kedar Singh,

P.W. 2 - Shivendra Singh and P.W. 3 - Lal Bahadur Singh

claimed to be the eye witnesses to the occurrence. P.W. 5

Dr. Pramod Kumar Jha held the post mortem examination on

the dead body of the deceased.

4. In the examination under section 313 of the Code of

Criminal Procedure, the appellant besides pleading false

implication has also pleaded alibi asserting that at the

time of occurrence he was on duty as a night guard in the

Commercial Taxes Office at Barh and in order to prove the

same examined four witnesses.

5. The trial court on appraisal of the evidence came to

the conclusion that the prosecution has been able to prove

its case beyond all reasonable doubt and, accordingly, held

the appelalnt guilty under Section 302/34 of the Indian

Penal Code and Section 27 of the Arms Act. Besides, the

appellant, two other persons namely, Bali Ram Singh and Ram

Anuj Singh were also held guilty under Section 302/34 of

the Indian Penal Code.

6. Aggrieved by their conviction and sentence all the

aforesaid accused persons preferred separate appeals. All

the appeals were taken up for consideration by the High

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Court together and by common judgment dated 26th August,

2003, the appeal preferred by Ram Anuj Singh was allowed

and he was acquitted of all the charges. However, the

appeal preferred by the appellant herein was partly allowed

and while maintaining his conviction and sentence under

Section 302/34 of the Indian Penal Code, his conviction

under Section 27 of the Arms Act set aside.

7. It is against the conviction and sentence under

Section 302/34 of the Indian Penal Code that the appellant

has preferred this appeal by leave of the Court.

8. We have heard Mr. P.S. Mishra, the learned Senior

Counsel for the appellant and Mr. Chandan Kumar, the

learned counsel for the State of Bihar.

9. It has been contended by Mr. Mishra that the role

attributed to the appellant is that of an order giver which

is not fit to be believed. He points out that according to

the prosecution this appellant was armed with a country

made weapon but has not used the same. He submits that it

is unbelievable that an accused armed with a weapon would

have refrained from using the said weapon. Accordingly, he

submits that the appellant cannot be held guilty of offence

under Section 302 of the Indian Penal Code with the aid of

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5 Section 34 thereof. In support of his submission, he has

placed reliance on a judgment of this Court in the case of

Parshuram Singh v. State of Bihar (2002) 8 SCC 16 and our

attention has been drawn to paragraph 6 of the judgment

which reads as follows:

"The role attributed to A-4 Parshruam Singh is that he had a pistol with him and he threatened the other persons who reached the scene. Here also, if A-4 Parshruam Singh had the common intention to murder the deceased, it is highly improbable that he would have refrained from using an inherently lethal weapon like the pistol which was in his possession. He would have threatened others from coming into the fray perhaps as a measure adopted by himt o save them from receiving injuries."

10. Mr. Chandan Kumar, learned counsel for the State,

however, submits that the appellant having played a vital

role, the High Court rightly upheld his conviction.

11. Having appreciated the rival submissions, we find

substance in the submission of Mr. Mishra. The only role

attributed to the appellant is that he exhorted the accused

persons to kill the deceased. It has come in the evidence

of the eye witnesses that this appellant was armed with

country made weapon but its use by him has been

disbelieved and his conviction under Section 27 of the Arms

Act has been set side. According to the prosecution, the

appellant was armed with a country made weapon.

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Prosecution has been unable to prove that the said

appellant has used the same. In our opinion, it is highly

improbable that the appellant would have refrained himself

from using the lethal weapon which was in his possession.

We are of the opinion that the prosecution has not been

able to prove beyond all reasonable doubt the role

attributed to the appellant and he is entitled to be given

the benefit thereof.

12. In the result, we allow the appeal, set aside the

judgment and order of conviction and sentence of the

appellant. He is on bail. His bail-bonds stand

discharged.

.......................J. (HARJIT SINGH BEDI)

.......................J. (CHANDRAMAULI KR. PRASAD) New Delhi, October 06, 2010.