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2007 Supreme(Pat) 134
PATNA HIGH COURT
Chandramauli Kumar Prasad and Jayanandan Singh JJ.
Gabbar Singh Alias Rajesh Sahani And Ramadhar Sahani
Versus
State Of Bihar
Criminal Appeal No. 161 of 2002 ;
Decided On : JANUARY 17, 2007
Headnote:Indian Penal Code, 1860-Section 302/34 and Section 27 of Arms Act, 1959-Murder-Gun shot injury-Genesis of the occurrence is quarrel between deceased and accused appellant on account of monetary dispute-If 1he case of the prosecution is found to be proved on the basis of evidence on record, the motive takes a back seat-Merely the motive of the offence being trivial one shall not create any doubt to the case of the prosecution-Evidence of interested witnesses cannot be discarded only on the ground of relationship-All the eye witnesses have clearly stated that the occurrence had taken place near the betel shop-Further the inquest report shows the presence of dead body near the betel shop Doctor found gun shot injury on the person of deceased-Medical evidence is in confirmity with the evidence of eye witnesses-During investigation none of these witnesses have stated that appellant No.2 bad caught hold the deceased-In view of material omission in regard to the role attributed to appellant No 2, he is given benefit of doubt-Appeal is partly allowed-Conviction and sentence of appellant No. 1 is maintained-Conviction and sentence of appellant No. 2 is set aside.. (Para 41)
(2004)11 SCC 253, (2004)7 SCC 422, AIR 1994 SC 1539 AIR 1971 SC 2119-Referred to.
Criminal Trial-Plea of alibi-An accused can be acquitted on the plea of alibi only when it is proved with absolute certainty and further it is established that the presence of the accused at the place of occurrence is a physical impossibility and onus to prove both lies on the accused. (Para 10)
Chandramauli Kr.Prasad , J.
1. The two appellants, father and son, were put on trial for commission of offence u/s. 302/34 of the Indian Penal Code, 1860 . Appellant No. 1 Gabbar Singh was further charged for committing the offence u/s. 27 of the Arms Act. Eleventh Additional Sessions Judge, Saran at Chapra by judgment dated 8th of February, 2002 passed in Sessions Trial No. 237 of 2000 held both the appellants guilty of offence u/s. 302/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. Appellant No. 1 was further found guilty of offence u/s. 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years. Sentences awarded to appellant Gabbar Singh were directed to run concurrently.
2. Aggrieved by the judgment of conviction and sentence appellants have preferred this appeal.
3. Prosecution story, according to fardbeyan given by P.W.5 Nagendra Singh, before the Sub Inspector of the Police of Nayagaon police station on 3.7.1998 at 9.30 p.m., is that while he and his son deceased Rakesh Kumar Singh were standing near the betel shop of Shivji Bhagat at village Rasulpur at Chapra Sonepur Road, appellant No. 2 Ramadhar Sahni came and caught hold of his son and appellant No. 1 Gabbar Singh took out the pistol from his waist and shot at his son Rakesh Kumar Singh on the left jaw. Sustaining the injury, according to the First Information Report, his son fell down and died. The genesis of the occurrence, according to the First Information Report, is the quarrel between his son and appellant Gabbar Singh. Informant had further stated that pacifying them, he left alongwith his son. Informant in the First Information Report named Devendra Singh (P.W.3), Satish Kumar Singh (P.W.4) and Ramagya Singh (not examined) as eye witnesses to the occurrence.
4. On the basis of the aforesaid information Nayagaon P.S. case No. 34 of 1998 was registered u/s. 302/34 of the Indian Penal Code and the formal First Information Report was drawn at 11.30 P.M. on the same day i.e. 3.7.1998.
5. Police after investigation submitted charge sheet against both the appellants and they were ultimately committed to the Court of Sessions to face trial, where they were charged for committing the murder of Rakesh Kumar Singh in furtherance of their common intention, punishable u/s. 302/34 of the Indian Penal Code. Appellant Gabbar Singh was also charged for possessing unlicensed fire arm for illegal purpose of committing murder of Rakesh Kumar Singh, punishable under Sec. 27 of the Arms Act.
6. Prosecution in order to bring home the charge altogether examined seven witnesses out of which P.W.1 Ram Jeewan Singh, P.W.2 Prakash Singh, P.W.3 Devendra Singh, P.W.4 Satish Kumar Singh and P.W.5 Nagendra Singh claim to be eye witnesses to the occurrence. P.W.6 Dr. Sanat Kumar Singh is a Medical Officer, who had conducted the post mortem examination on the dead body of the deceased Rakesh Kumar Singh. P.W.7 Damodar Prasad Singh is the Investigating Officer of the case, who during the course of investigation, took the statement of the witnesses, prepared the inquest report and submitted charge sheet against the appellants.
7. The defence of the appellants is denial simplicitor and false implication. Appellant No. 2 Ramadhar Sahani has also pleaded alibi. Four witnesses have been examined on behalf of the appellants. Out of whom D.W.1 Jangu Mahto, D.W.2 Ashok Kumar Sahney and D.W.4 Baleshwar Sahani are on the point of alibi of appellant Ramadhar Sahani. D.W.3 Sheoji Bhagat has been examined to deny the entire case of the prosecution.
8. The trial Court on appreciation of evidence found the evidence of P.W.3 Devendra Prasad Singh, P.W.4 Satish Kumar Singh and P.W.5 Nagendra Singh to be reliable and their evidence being corroborated by the evidence of the doctor and the Investigating Officer convicted and sentenced the appellants as above.
9. P.W.1 Ramjeewan Singh, claims to be an eye witness to the occurrence. Accordin
