Back
2017 Supreme(Pat) 1489
IN THE HIGH COURT OF JUDICATURE AT PATNA
Kishore Kumar Mandal, Sanjay Kumar, JJ.
Md. Shahabuddin - Appellant
Vs.
State of Bihar - Respondent
Criminal Appeal (DB) No. 73 of 2016
Decided On : 30-08-2017
Advocate Appeared:
For the Appellant : Surender Singh, Y.V. Giri, Ms. Fauzia Shakil
For the State : K.T.S. Tulsi, Kesav Mohan, Yogendra Prasad Sinha, D.K. Sinha, Mayanand Jha
Headnote:
CRIMINAL - Murder - Conspiracy - Evidence Act, 1872 - Section 10 - Indian Penal Code, 1860 - Sections 302, 364A, 120B - Appreciation of evidence - Conspiracy - Proof - Circumstantial evidence - Delay in lodging FIR and recording C.D. statement - Explanation - Admissibility of evidence - Section 33 of the Evidence Act, 1872 - Applicability - Murder of two brothers at the instance of appellant - Evidence of eye-witness - Corroboration - Motive - Political rivalry - Reign of terror unleashed by appellant - Interference with administration of justice - Constitution of special Court to try cases against appellant - Circumstances warranting - Evidence of solitary witness - Reliability - Minor flaws - Consideration - Cast iron alibi of appellant - Jail records not verified - Anarchic conduct of appellant - Burden of proof - Shifting - Conviction and sentence - Upheld.
Fact of the Case:
The informant's two sons, D1 and D2, were kidnapped from their shops. The informant lodged an FIR against the accused persons. The police, however, were tardy in the investigation. The family of the informant continued to reel under constant threat and fear which prompted the informant's husband to file a criminal writ petition in the Patna High Court for a direction on the State respondents to proceed with the investigation in a fair and transparent manner. The charge sheet was laid in 2009 under Sections 341, 323, 380, 436, 364 and 120B of the IPC. On commitment, the case came on the file of the learned trial Judge. In spite of material available on record for framing of charge under Sections 302, 201,120B of the IPC, the Court declined to frame those charges. The prosecution moved an application before the High Court wherein an order was passed on 18.04.2014 and only thereafter the Court added charges under Sections 302/201 read with Section 120B of the IPC on 01.05.2014 against all the accused(s) facing the trial. The Patna High Court at the initiative of the State Government, by diverse notifications issued in May, 2006 constituted special Court to try all pending cases against A1 in jail. The constitution of special Bench to try pending cases in jail was challenged by A1 before the Hon'ble Supreme Court of India. A Bench of the Supreme Court under order dated 25.3.2010 since reported in (2010)4 SCC 653 upheld those notifications.
Finding of the Court:
The Court found that the evidence of the solitary witness, PW-6, was cogent and reliable and found support from the other evidence on record. The Court also found that the appellants had hatched a conspiracy to kill the informant's two sons and that they had executed the conspiracy in a brutal manner. The Court further found that the appellants had unleashed a reign of terror in the district and that the police were afraid to take action against them. The Court held that the appellants were guilty of murder, kidnapping, and criminal conspiracy and sentenced them to life imprisonment.
Issues: 1. Whether the evidence of the solitary witness, PW-6, was sufficient to prove the guilt of the appellants beyond reasonable doubt? 2. Whether the appellants had hatched a conspiracy to kill the informant's two sons? 3. Whether the appellants had executed the conspiracy in a brutal manner? 4. Whether the appellants had unleashed a reign of terror in the district and that the police were afraid to take action against them?
Ratio Decidendi: 1. The Court held that the evidence of the solitary witness, PW-6, was cogent and reliable and found support from the other evidence on record. The Court also found that the appellants had hatched a conspiracy to kill the informant's two sons and that they had executed the conspiracy in a brutal manner. The Court further found that the appellants had unleashed a reign of terror in the district and that the police were afraid to take action against them. 2. The Court held that the appellants were guilty of murder, kidnapping, and criminal conspiracy and sentenced them to life imprisonment.
Final Decision: The Court dismissed the appeals and upheld the impugned judgment of conviction and order of sentence passed against the appellants.
Kishore Kumar Mandal, J.
All the appellants of these appeals were held guilty under Sections 364A, of the IPC. They (except appellant Md. Shahabuddin) were also held guilty under Section 323 of the I.P.C. Appellant of Cr. Appeal No. (DB) No. 73 of 2016 was also found guilty under Sections 302, 201 read with Section 120B of the IPC. The judgment of conviction and order of sentence were passed by the learned Additional Sessions Judge IV-cum-Special Judge (Jail Court) in Sessions Trial No. 158 of 2010. Appellant of Cr. Appeal (DB) No. 73 of 2016, Cr. Appeal (DB)No. 112 of 2016, Cr. Appeal (DB) No. 63 of 2016 and Cr. Appeal (DB) No. 95 of 2016 shall hereinafter referred as A1, A2, A3 and A4 respectively.
2. 16th of August 2004 proved a horrific day for the informant (PW1) and her family. Her husband PW-4 on that day was not present in the town. PW-4 had two shops in the township of Siwan. One shop was at Mohalla-Churrahatti whereas another general store was located near the bus stand. She was then living at the Yadav market on rent. Informant's one son Satish @ Sonu (hereinafter referred as D1) was at the Churrahatti Kirana shop whereas her another son Girish Kumar @ Nikku (hereinafter referred as D2) was at the bus stand general store. At about 01 pm her servant Vishal (CW-1) who was at the churrahatti shop came running and informed her that her son Satish @ Sonu was attacked, assaulted and kidnapped by unknown accused persons. At about the same time her another servant Barrister Yadav (PW3) who was at bus stand shop came and narrated that her shop at bus stand was also attacked and ransacked. The unknown accused persons grievously assaulted her son and kidnapped him. Later, it revealed to her that the shop at the bus stand was looted and torched. On the basis of whatever information gathered, she lodged the Fardbeyan (Ext.1) on 16.08.2004 at 7 P.M against accused(s) Nagendra Tiwari and Madan Sharma and some unknown accused persons. Her statement was recorded when the police visited her residence in the evening and, accordingly, Siwan (Muffasil) P.S. Case No. 131 of 2004 under Sections 341, 323, 380, 435, 364 and 34 of the IPC was registered. It may be noted that the police had earlier in the afternoon of the same day had registered Siwan (Muffasil) P.S. case no. 130 of 2004 (Ext. B-1) under Section 307 of the IPC against her another son Rajiv Roshan (PW6) on the statement of co-accused Madan Sharma for having caused injury to him and two others by throwing acid on them.
3. It all started with an ordinary civil dispute. PW-4 had purchased the land with shops at the bus stand for his business and residential purposes. Co-accused Nagendra Tiwari was running his business in one of the shops. He was not vacating the shop. Chandrakeshwar Prasad (PW-4) got himself impleaded as the plaintiff in an ongoing eviction suit for evicting Nagendra Tiwary from the shop. During the pendency of the suit, co-accused Nagendra Tiwari with an oblique motive transferred portion of the subject land to accused(s) Madan Sharma and Chhotey Lal Sharma and also surreptitiously inducted them into the shop. PW-4, however, claimed continued title and possession over the land inasmuch as he had started construction of his residential cum business premises on the purchased land/plot which apparently aggravated the situation. The informant (PW1), in her Fardbeyan in a meek voice has also alleged that she tried to lodge the case but the officers at the police station had refused to register the case. The police, it appears, first registered a case against PW 6 under Section 307 of the IPC and thereafter in the evening recorded the Fardbeyan (Ext1) of the informant (PW1). Even after registering the FIR the police was tardy in the investigation. The family of PW-1 continued to reel under constant threat and fear which prompted PW-4 to file a criminal Writ Petition in the Patna High Court for a direction on the State respondents to proceed with the investigati
