Crl.A. No 721 of 2004 1

     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

Crl.A. No 721 of 2004 3

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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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.