Criminal Appeal (DB) Nos. 778, 825, 859, 865, 871, 874, 878, 898 and 899 of 2009. Case: Rajan Tiwari Vs The State of Bihar. High Court of Patna (India)

Case NumberCriminal Appeal (DB) Nos. 778, 825, 859, 865, 871, 874, 878, 898 and 899 of 2009
CounselFor Appellant: Surendra Singh, Akhileshwar Prasad Singh, K.P. Singh, Senior Advocates, Dr. Abhishek Priyadarshi, Ajay Kumar Thakur, Sunil Kumar, Ram Binay Singh, Jyotsana Kumari, Raj Kumar, Mithilesh Kumar Rai, Md. Sufiyan, Advocates and For Respondents: Sidharth Luthra, ASG, Sr. Advocate, Bipin Kumar Sinha, Standing Counsel, Supriya Juneja, ...
JudgesI. A. Ansari and V. N. Sinha, JJ.
IssueArms Act, 1959 - Section 27; Code of Criminal Procedure, 1973 (CrPC) - Sections 161, 164, 173(8), 311, 313, 36, 391, 437(A); Indian Evidence Act, 1872 - Sections 154, 32, 32(1), 6; Indian Penal Code 1860, (IPC) - Sections 120B, 201, 212, 302, 307, 333, 34, 353, 355, 379
Judgement DateJuly 24, 2014
CourtHigh Court of Patna (India)

Judgment:

V. N. Sinha, J.

  1. These nine appeals have been preferred against the judgment dated 12.08.2009, passed by Additional Sessions Judge-III, Patna, in Sessions Trial No. 613 of 2002, arising out of Gardanibagh (Shastri Nagar) P.S. Case No. 336/98, whereunder the nine accused, put on trial, have been convicted for different offences. Accused No. 1, Suraj Bhan Singh @ Suraj Singh @ Suraja, Appellant in Cr. Appeal (D.B.) No. 825 of 2009 has been convicted for the offence punishable under Section 302/34 read with Section 120B of the Penal Code and sentenced to suffer imprisonment for life as also to pay a fine of Rs. 20,000/- (Twenty Thousand). Accused No. 2, Mukesh Singh, Appellant in Cr. Appeal (D.B.) No. 899 of 2009 has been convicted for the offence punishable under Sections 302/34, 307/34, 333/34, 355/34, 379/34 of the Penal Code and Section 27 of the Arms Act and sentenced to suffer imprisonment for life, Rigorous Imprisonment for seven years with further direction to pay fine of Rs. 20,000/- (Twenty Thousand) each under Sections 302/34, 307/34 of the Penal Code. For conviction under Section 333/34 he has been further directed to suffer Rigorous Imprisonment for five years with direction to pay fine of Rs. 20,000/- (Twenty Thousand), for conviction under Section 355/34, 379/34 of the Penal Code and Section 27 of the Arms Act he has further been directed to suffer Rigorous Imprisonment for 2, 1, 1 year respectively. Accused Nos. 3, 4, 5, 6, 8 and 9 Lallan Singh, Mantu Tiwari, Captain Sunil Singh, Ram Niranjan Choudhary, Vijay Kumar Shukla @ Munna Shukla and Rajan Tiwari, Appellant in Cr. Appeal (D.B.) No. 859 of 2009, 865 of 2009, 898 of 2009, 871 of 2009, 874 of 2009 and 878 of 2009 have been convicted for the offence punishable under Section 302/34 read with Sections 120B, 307/34, 333/34, 355/34 and 379/34 of the Penal Code and Section 27 of the Arms Act and directed to suffer imprisonment for life under Section 302/34 read with Section 120B of the Penal Code with further direction to pay fine of Rs. 20,000/- (Twenty Thousand), under Section 307/34 of the Penal Code they have been directed to suffer Rigorous Imprisonment for seven years with further direction to pay fine of Rs. 20,000/- (Twenty Thousand), under Section 333/34 of the Penal Code they have been directed to suffer Rigorous Imprisonment for five years with further direction to pay fine of Rs. 20,000/- (Twenty Thousand) each, under Section 355/34, 379/34 of the Penal Code and Section 27 of the Arms Act they have been directed to suffer Rigorous Imprisonment for 2, 1, 1 year respectively. The sentences imposed on the accused persons have been directed to run concurrently without imposing any default sentence for non-payment of fine. Accused No. 7 Shashi Kumar Rai, Appellant in Cr. Appeal (D.B.) No. 778 of 2009 has been held guilty for the offence punishable under Section 212 of the Penal Code and directed to undergo Rigorous Imprisonment for two years with further direction to pay fine of Rs. 10,000/-(Ten thousand) with default sentence of Rigorous Imprisonment for six months in the event fine is not paid.

  2. Prosecution case, as set out in the fardbeyan of Amrendu Kumar Sinha (P.W. 10) (Exhibit-50), recorded by S.S.P. Yadav, Inspector-cum-Officer-in-Charge, Shastri Nagar Police Station, on 13.06.1998, at 21 hours is that informant, son of late Rishideo Narayan Prasad, resident of Bhawanipur Jirat, P.S. Chhitauni, District-East Champaran, recorded his statement before the Inspector-cum-Officer-in-Charge, Shastri Nagar Police Station in I.G.I.M.S. campus, Sheikhpura, Patna on 13.06.1998, around 9:00 P.M. that he had come from home to the I.G.I.M.S. campus, Patna, on 13.06.1998, around 6:30 P.M., to meet the M.L.A. of his area Sri Brij Bihari Prasad, who was admitted in the ward for treatment. At the time of his arrival, M/S. Arbind Singh (P.W. 13), Onkar Singh (not examined), Ram Nandan Singh (P.W. 12), Mahanth Ashwani Das (P.W. 25), Paras Nath Choudhary (P.W. 1) and 2-4 others were also present to meet the M.L.A. While the informant and other visitors were talking to the M.L.A., M.L.A. asked the visitors that they should accompany him outside the ward room for a stroll. Informant followed the M.L.A. from behind, while conversation about the affairs of the area was on, Informant, M.L.A. and others reached the open space meant for car parking in the I.G.I.M.S. campus around 8:15 P.M. covering a distance of 100-150 metres. Informant, M.L.A. and other visitors taking stroll were also accompanied by the bodyguard of the M.L.A., Sri Lakshmeshwar Sah armed with carbine, 2-3 sepoy, commando, armed with rifle. Armed bodyguard, sepoy(s), commandoes were all moving along with the M.L.A., either few steps ahead or behind, for providing security cover to the M.L.A. Meanwhile, one Sumo vehicle bearing Registration No. BR 1P-1818, followed by another white Ambassador car, number whereof could not be seen, as it stopped little behind at some distance, came from the southern main gate Bailey road side and stopped near the M.L.A. 20 steps ahead of him. Occupants of the two vehicles alighted therefrom, came near the M.L.A. From amongst the occupants of the two vehicles, informant identified (1). Bhupendra Nath Dubey (since deceased), (2). Accused No. 4 Mantu Tiwari, (3). Accused No. 8 Munna Shukla, (4). Sri Prakash Shukla (5). Accused No. 9 Rajan Tiwari, (6). Satish Pandey. Informant, however, could not identify 3-4 miscreants occupying the two vehicles, who could have been identified by others present along with the informant. Bhupendra Nath Dubey was armed with pistol, Mantu Tiwari was armed with stain-gun. All others were armed with pistol. All of a sudden, the miscreants came near the M.L.A. and his bodyguard. Bhupendra Nath Dubey identified the M.L.A. Brij Bihari Prasad and abusively exhorted others to shoot him and himself fired shot from his pistol on the M.L.A. Mantu Tiwari also shot the M.L.A. from his stain-gun. Sri Prakash Shukla also shot at the M.L.A. from his pistol. Other accused persons, namely, Satish Pandey, Munna Shukla and Rajan Tiwari shot the bodyguard of the M.L.A. Sri Lakshmeshwar Sah. The M.L.A. and his bodyguard, having suffered fire-arm injury, fell down and collapsed. Even after the fall of the two, the miscreants continued with their indiscriminate firing on the two. Bhupendra Nath Dubey proclaimed that the M.L.A., his bodyguard have been killed, raised slogan in the name of Bajrangbali, took the stain-gun of the bodyguard, boarded the Ambassador car and moved in the southern direction. It has been claimed in the First Information Report that at the time of occurrence there was sufficient light, tube-lights were lit outside the hospital building in which the informant saw the assailants and recognized the miscreants. After departure of the miscreants, informant and others came near the two injured and found them dead lying in a pool of blood. Information about the occurrence was given by the informant and others to the staff of the hospital. The hospital staff informed the Police Station, after arrival of the police party, informant recorded his statement. In the fardbeyan it is also stated that along with the informant and others Rabindra Bhagat (P.W. 14) was also present, suffered bullet injury on his left arm. In the fardbeyan it is also claimed that the incident has been committed by the accused persons after hatching conspiracy due to previous enmity. It is also stated in the fardbeyan that at the time of occurrence there was stampede in the I.G.I.M.S. campus and many of the attendants, present in the campus, ran away, leaving behind their shoe, sleepers. In the last paragraph of the fardbeyan, informant has claimed that the accused persons named in the fardbeyan along with others, having hatched conspiracy in a pre-planned manner, committed the murder of M.L.A. Sri Brij Bihari Prasad and his bodyguard Sri Lakshmeshwar Sah by shooting them down, after the death of bodyguard, his carbine was also snatched. In the fardbeyan informant has also claimed that besides him others have also seen the incident and they may tell their version of the occurrence to the Investigating Officer. It also appears from the fardbeyan that its contents were read by the informant as also read over to him and having found the statement to be correct, informant put his signature over the fardbeyan at two places i.e. in the right hand margin of Page 2 and bottom of Page 4. Inspector-cum-Officer-in-Charge, Shastri Nagar Police Station having recorded the fardbeyan of the informant, returned to Shastri Nagar Police Station, forwarded the fardbeyan to the Officer-in-Charge, Gardanibagh Police Station to register First Information Report for the offences under Sections 302/307/34/120B/379 of the Penal Code and Section 27 of the Arms Act with further endorsement that he (Inspector-cum-Officer-in-Charge, Shastri Nagar Police Station) will investigate the case. In the light of the aforesaid endorsement of Inspector-cum-Officer-in-Charge of Shastri Nagar Police Station, over the fardbeyan of the informant (Exhibit-50), Gardanibagh (Shastri Nagar) P.S. Case No. 336/98 dated 14.06.1998 (Exhibit-51) was registered on 14.06.1998 at 00:15 hrs. i.e. 12:15 A.M. for the offences under Sections 302/307/34/120B/379 of the Penal Code and Section 27 of the Arms Act with further endorsement that the investigation of the said case has already been taken over by Inspector-cum-Officer-in-Charge, Shastri Nagar Police Station, Sri S.S.P. Yadav. First Information Report of the case, however, reached the Chief Judicial Magistrate, Patna on 15.06.1998, as would appear from his endorsement on the margin of the fardbeyan (Exhibit-50).

  3. Inspector-cum-Officer-in-Charge, Shastri Nagar Police Station, Sri S.S.P. Yadav continued with the investigation of the case until 14.07.1998 when he handed over investigation of the said case to Dy.S.P., Secretariat, Sri Shashi...

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