Abinash Sharma vs The State Of Bihar
2021 Latest Caselaw 1843 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                    CRIMINAL APPEAL (DB) No.820 of 2015
      Arising Out of PS. Case No.-33 Year-2006 Thana- KARPI District- Jehanabad
======================================================

Abinash Sharma Son of late Nawal Kishore Sharma Resident of Village Senari P.s Karpi (Bansi O.P) District Arwal.

                                                                    ... ... Appellant
                         Versus
The State of Bihar                         ... ... Respondent

====================================================== Appearance :

For the Appellant : Mr. Vikramdeo Singh, Advocate Mr. Paras Nath, Advocate For the Respondent-State: Mr. Satya Narayan Prasad, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH) Date : 05-04-2021

The appellant Abinash Sharma was tried by the

court of Additional Sessions Judge 1st, Jehanabad in Sessions

Trial No.165/2008/72/2014 arising out of Karpi P.S. Case No.33

of 2006 for the charges under Sections 147, 148, 379 and

302/149 of the Indian Penal Code and 27 of the Arms Act.

2. The trial court vide its judgment dated

25.08.2015 acquitted the appellant of the charges under Sections

379 of the Indian Penal Code and 27 of the Arms Act and held

him guilty of the charges under Sections 147, 148, 302/149 of

the Indian Penal Code.

3. After hearing the parties on the point of Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

sentence, the trial court vide its order dated 26.08.2015

sentenced the appellant to undergo rigorous imprisonment for

life and a fine of Rs.10,000/- and in default of payment of fine

to undergo imprisonment for a further period of one year for the

charges under Section 302/149 of the Indian Penal Code;

rigorous imprisonment for a period of two years for the charge

under Section 147 of the Indian Penal Code and rigorous

imprisonment for a period of three years for the charge

punishable under Section 148 of the Indian Penal Code.

However, all the sentences were directed to run concurrently.

4. Being aggrieved by the aforesaid judgment

of conviction and consequent order of sentence, the appellant

has preferred the instant appeal before this Court.

5. The first information report (FIR) of Karpi P.

S. Case No.33 of 2006 was registered on the basis of oral

statement of Shradha Devi, wife of Sri Niwas Sharma, resident

of village- Oar Bigha, P.S.- Karpi, District- Arwal, which was

recorded by the SI of Police of Karpi Police Station, namely, U.

K. Singh on 11.04.2006 at 7 a.m. at the dalan (a varanda with a

roof outside the wall of a house) of Baliram Sharma in village-

Oar Bigha, P.S.-Karpi, District- Arwal.

6. In her oral statement, Shradha Devi (P.W.1) Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

disclosed that during the last night at about 9 p.m., her younger

brother Putun Sharma came together with his friends Anil

Sharma and a resident of Goh whose name is not known to her.

They talked with her for sometime. Thereafter, they went on the

rooftop of the dalan of Baliram Sharma to sleep. At about 12

midnight, she heard the sound of gunshot and immediately

rushed towards the dalan of Baliram Sharma and saw Butan

Sharma, resident of Puran, Abinash Sharma, resident of Senari

and Sadhu Sharma, resident of Oar Bigha together with 6-7

unknown persons being variously armed with gun and rifle were

descending on a bamboo ladder from the rooftop of the dalan.

They went towards northern side opening fire. Thereafter, she

climbed up on the same bamboo ladder to reach the rooftop of

the dalan and saw that her brother and his two friends were shot

dead and all their belongings were taken away. She alleged that

Butan Sharma, Abinash Sharma, Sadhu Sharma and their 6-7

unknown accomplices had formed an unlawful assembly and

killed her brother and his two friends due to previous enmity

and took away their belongings.

7. The oral statement, reduced into writing by

U. K. Singh, SI of Police of Karpi Police Station was read over

and explained to Shradha Devi, who put her thumb impression Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

over it after finding the contents to be true. Her co-villager

Padum Narayan Sharma also put his signature as a witness to

the fardbeyan.

8. Thereafter, U. K. Singh, SI of Police

forwarded the fardbeyan to the Officer-in-charge of Karpi Police

Station for instituting a case. Accordingly, Karpi P.S. Case

No.33 of 2006 dated 11.04.2006 was registered at 10 a.m. under

Sections 147, 148, 149, 379 and 302 of the Indian Penal Code

and Section 27 of the Arms Act against Butan Sharma, Abinash

Sharma, Sadhu Sharma and 6-7 unknown miscreants by the

Officer-in-charge of Karpi Police Station and investigation was

handed over to one Rameshwar Ram, SI of Police.

9. Immediately after institution of the FIR on

11.04.2006 itself, the investigating officer sent the bodies of the

three deceased to the Sadar Hospital, Jehanabad for autopsy.

10. P.W. 11, Dr. Akhauri Vijay Kumar conducted

the autopsy on the bodies of the deceased. He has proved the

post mortem reports of Anil Sharma, Putun Sharma and an

unknown person which were marked as Ext. 3, 3/1 and 3/2

respectively during trial.

11. The police submitted charge sheet against

the accused-appellant on 16.04.2007 after completing Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

investigation against him. However, the investigation was kept

open against the remaining two named accused persons and 6-7

unknown miscreants.

12. On receipt of the police report submitted

under Section 173(2) of the Code of Criminal Procedure, the

Jurisdictional Magistrate took cognizance of the offences

punishable under Sections 147, 148, 149, 302 and 379 of the

Indian Penal Code and Section 27 of the Arms Act and

summoned the accused-appellant.

13. After complying with the statutory

requirements prescribed under Section 207 of the Code of

Criminal Procedure, the case was committed to the court of

sessions for trial.

14. On 22.05.2008, the trial court explained the

charges to the appellant under Sections 379, 147, 148, 302/149

of the Indian Penal Code and 27 of the Arms Act. The appellant

denied the charges and claimed to be tried. Accordingly, the trial

commenced.

15. The prosecution examined, in all, 11

witnesses in support of its case. Out of the 11 witnesses

examined during trial, P.W. 3 Suresh Sharma, P.W. 4 Krishna

Murari Sharma, P.W. 7 Brijdeo Sharma, P.W. 8 Nawal Kishore Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

Singh and P.W. 9 Birendra Kumar Sharma were declared hostile

by the trial court at the request of the prosecution.

16. P.Ws. 3, 4, 7, 8 and 9 have stated in their

depositions that they knew nothing about the incident. They

have stated that their statements were never recorded by the

police. They further contended that they are not witness to the

occurrence of the offence. They were cross-examined by the

prosecution. However, their cross-examination is of no help to

the prosecution case.

17. P.W. 2, Chandra Bhushan Sharma and P.W.

10, Akhilesh Kumar are formal witnesses. P.W. 2, Chandra

Bhushan Sharma was an advocate clerk. He has proved the

fardbeyan of the informant recorded by U. K. Singh, which was

marked as Ext.1. In cross-examination, he admitted that the

fardbeyan was not recorded in his presence. He also admitted

that he has no personal knowledge about the fardbeyan. He

further admitted that he does not know either the present place

of posting of U. K. Singh or his present position in the police

department.

18. P.W. 10, Akhilesh Kumar, another advocate

clerk has identified the formal FIR drawn in the writing of Sri

Janardan Dubey, the then Officer-in-charge of Karpi Police Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

Station, which was marked as Ext. 2 during trial. In cross-

examination, he too admits that the fardbeyan was not recorded

in his presence.

19. It is reiterated that P.W. 11 Dr. Akhauri Vijay

Kumar had conducted the post mortem examination on the

bodies of deceased Anil Sharma, Shadhu Sharma and an

unknown person on 11.04.2006 between 01.30 and 02.00 p.m.

In his deposition, he has stated that on 11.04.2006, he was

posted at Sadar Hospital, Jehanabad. On that day, he conducted

the post mortem examination on the bodies of the three

deceased, which were brought by constable Parmanand Yadav

and Chaukidar Naresh Yadav. He found the following ante

mortem injuries on the person of Anil Sharma :-

(1) Lacerated wound ½" x ½" x

abdominal cavity deep with blackening on left

side of abdominal margin inverted- entry

wound.

(2) Lacerated wound 1" x 3/4" x

chest cavity deep on right side of lateral chest,

margin inverted- exit wound.

(3) Lacerated wound ¼" x ¼" x

abdominal cavity deep on right side of upper Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

abdomen, anterior aspect, margin inverted-

entry wound.

(4) Lacerated wound ¼" x ¼" x

abdominal cavity deep with blackening on

anterior aspect of abdomen near ambiliens

with blackening- entry wound.

(5) Lacerated wound 2" x 1 ¼" x

chest cavity deep on back of chest near

midline, margin inverted- exit wound.

20. According to him, the injury nos. 1 and 2

communicated to each other and injury nos. 3 and 4

communicated with injury no.5.

21. He found the following ante mortem injuries

on the person of Putun Sharma :-

(1) Lacerated wound 1/4" x 1/4" x deep on right

cheek with charring, margin inverted- wound of entry.

(2) Lacerated wound 4" x 5" x cranial cavity

deep on left side of skull, margin inverted- wound

of exit.

(3) Lacerated wound 1/4" x 1/4" x deep on right

shoulder, margin inverted- wound of entry.

(4) Lacerated wound 4" x 2 1/2" x bone deep on Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

right axilla, margin inverted- wound of exit.

(5) Lacerated wound 1/2" x 1/4" x chest cavity

deep on left side of mid axillary line, margin

inverted- wound of entry.

(6) Lacerated wound 2"x 2 1/2" x chest cavity

deep on right side of chest in axilla, margin

inverted- wound of exit.

(7) Lacerated wound 1" x 1/2" x chest cavity

deep on left side of lower chest, margin inverted-

wound of exit.

(8) Lacerated wound 1/4" x 1/4" x chest cavity

deep, 1" above right nipple, margin inverted,

wound of entry.

22. According to P.W. 11, injury nos. 1 and 2, 3

and 4, 5 and 6 and 7 and 8 communicated to each other.

23. He found following ante mortem injuries on

the person of an unknown male aged about 30 years :-

(1) Lacerated wound 1/4" x 1/4"x bone deep on

left shoulder with charring, margin inverted-

wound of entry.

(2) Lacerated wound 2" x 2 1/2" x bone deep on

medial aspect of left upper arm, margin inverted-

Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

wound of exit.

(3) Lacerated wound 1/4" x 1/4" x chest cavity

deep on right axilla with inverted margin- wound of

entry.

(4) Lacerated wound 2" x 3" x chest cavity deep

on left axilla with inverted margin- wound of exit.

24. According to P.W. 11, the injury nos. 1 and 2

and 3 and 4 on the person of the unknown male communicated

with each other.

25. He stated that the cause of death of all the

three deceased was haemorrhage and shock due to above

injuries caused by firearm. According to him, in all three cases

time elapsed since death was within 24 hours.

26. In cross-examination, he stated that he

cannot say whether the dead bodies were handed over to their

relatives. He admitted that it was the constable and the

chaukidar who had brought the dead bodies.

27. P.W. 6 Bala Nand Sharma is a hearsay

witness. He stated in his deposition that the incident took place

about 6-7 years ago at 11.30 p.m. He had heard that three

persons were killed on the rooftop of the dalan of Baliram

Sharma. He has further stated that he does not know the Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

whereabouts of the persons killed and the name of the

perpetrators of the crime. His evidence is of no help to the

prosecution.

28. P.W. 1 Shradha Devi is the informant of the

case. While deposing before the court, she stated that the

incident took place at about 9-10 p.m. two and a half years ago.

At that time, she was on the rooftop of her house. Her brother

Putun Sharma had come together with Toofan Sharma and Anil

Sharma. She requested them to take tea, but they declined and

went on the rooftop of the dalan of Baliram to sleep. After few

hours, she heard the sound of firing. She woke up and saw

Abinash, Butan and Sadhu fired one round each at her brother

Putun Sharma. She further stated that she herself and her son

witnessed the entire incident. She has stated that Anil Sharma

was shot dead by Kaushal and Toofan was shot dead by Kamla.

She further stated that her house and Baliram's house are

adjacent to each other. She contended that due to injuries caused

by firearm, all the injured, namely, Putun Sharma, Anil Sharma

and Toofan Sharma died on the spot. She contended that the

police had arrived at 4 a.m. and she had made her statement

before the police, which was reduced into writing and was

explained to her and finding the contents to be true, she had put Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

her thumb impression over it. She contended that a similar

statement was made before the police at the time of institution

of the FIR. She has stated that her two sons and her daughter-in-

law were present in the house at the relevant time when the

incident of murder had taken place.

29. In cross-examination, she admits that she had

stated before the police that the incident had taken place

between 9-10 p.m. She admitted that Baliram lives at Jehanabad

and no one lives in his house. She also admitted that the house

and the dalan of Baliram remain locked. She further admitted

that her house is at a distance of two bamboo lengths

(approximately 24 feets) from the dalan of Baliram and there

exists a lane between her house and the dalan of Baliram. She

further admitted that prior to her arrival at the rooftop of the

dalan of Baliram, six others had already reached there. Out of

whom she named Birendra Sharma, Mushund Sharma and

Chhotu Sharma. She admitted that out of aforesaid three

persons, she does not have cordial relation with Chhotu Sharma.

She stated that village Senari is about a mile away from her

village. She admitted that extremists had killed 37 villagers of

Senari. She also admitted that the extremists oftenly visit her

village too. She stated that she cannot say in how many cases Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

her brother Putun Sharma was made accused and was

absconding. She contended that Abinash, Butan and Sadhu

fired one round each at her brother Putun Sharma.

30. Another material witness examined on behalf

of the prosecution is P.W. 5, Sri Niwas Sharma, husband of the

informant Shradha Devi. In his deposition, he has stated that the

entire incident took place about four years ago at 12 midnight.

At that time, he was at his residence. On hearing sound of

gunshot, he woke up and saw a crowd. He saw Abinash Sharma,

Kaushal Sharma, Sadhu Sharma, Kamal Kant Sharma and Butan

Sharma causing gun shot injuries to Putun Sharma, Anil Sharma

and Toofan Sharma as a result of which they died.

31. In cross examination, he stated that he gave

his statement before the police on the next day of the incident at

about 9-10 in the morning. He stated that Kaveri Dham is in

South India. However, he denied that at the relevant time, he

was not at his residence and had gone to Kaveri Dham and he

came to know about the incident after he returned from Kaveri

Dham. He stated that he does not know in how many cases his

brother-in-law Putun Sharma had been made accused. However,

he admits that on the date of occurrence itself, one Ambuj

Sharma of village-Puran had been killed. He feigned his Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

ignorance that his brother-in-law Putun Sharma was made

accused in the murder case of Ambuj Sharma. He stated that he

does not know that his brother-in-law Putun Sharma was hiding

himself at his residence after committing murder of Ambuj

Sharma on the relevant date and the well wishers of Ambuj

Sharma had killed him in retaliation. It is pertinent to note that

P.W. 5 Sri Niwas Sharma has admitted in para-13 of the cross-

examination that he had not visited the place of occurrence.

32. After examination of the aforesaid witnesses,

the prosecution case was closed. Thereafter, for the purposes of

enabling the accused personally to explain any circumstances

appearing in evidence against him, the trial court examined him

under Section 313 of the Code of Criminal Procedure.

33. The defence did not lead any evidence

during trial. Hence, the defence case was also closed and the

matter was fixed for arguments.

34. The trial court, after hearing the parties and

appraising the evidences adduced by the prosecution came to

the conclusion that the prosecution had been able to prove the

charges framed under Sections 147, 148 and 302/149 of the

Indian Penal Code against the appellant. The trial court rejected

the contention urged on behalf of the appellant that the Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

witnesses examined during trial had failed to prove the case

beyond reasonable doubt against the appellant. It also rejected

the contention urged on behalf of the defence that the post

mortem report was not in alignment with the ocular testimony of

the witnesses. The trial court relied on the deposition of P.Ws. 1

and 5 and consequently sentenced the appellant in the manner as

stated above vide impugned judgment dated 25.08.2015.

35. It was argued on behalf of the appellant that

the court below had fallen in error while placing reliance upon

the deposition of P.W. 1, Shradha Devi and P.W. 5, Sri Niwas

Sharma. It was contended that in the instant case, the

investigating officer of the case was not examined. His non-

examination has seriously prejudiced the case of the defence. It

was also argued that several important witnesses have been

withheld by the prosecution. The prosecution not only failed to

examine the investigating officer but it also withheld SI U.K.

Singh, who had recorded the fardbeyan of Shradha Devi and

Janardan Dubey, the Officer-in-charge of Karpi Police Station,

who had drawn the formal FIR. He contended that the

deposition of P.W. 1, Shradha Devi makes it abundantly clear

that on the date of occurrence, P.W. 5, Sri Niwas Sharma was

not in the village. He contended that the trial court grossly erred Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

in convicting the appellant by ignoring the admission of P.W. 5

that on the date of occurrence, he had not visited the place of

occurrence. He further contended that the deposition of P.W. 1,

Shradha Devi could not have been relied upon by the

prosecution for arriving at a conclusion of guilt. Her deposition

is full of exaggeration, embellishment, contradiction and

improvement. It was also argued that the two eye witnesses are

related to the deceased Putun Sharma, who admittedly had

inimical relation with the accused persons. Hence, their

evidence needs a more closer scrutiny.

36. On the other hand, Mr. Satya Narayan

Prasad, learned Additional Public Prosecutor for the State

submitted that the trial court has rightly held the appellant guilty

in view of unimpeachable testimonies of P.Ws. 1 and 5, which

were duly corroborated by the medical evidence. He contended

that both P.Ws. 1 and 5 are truthful witnesses and they have

narrated the vivid detail of the incident. He further contended

that they were eye witnesses to the incident. Merely because

they were related to the deceased Putun Sharma, their evidence

cannot be disbelieved.

37. We have heard the learned counsel for the

parties and carefully perused the record.

Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

38. Since P.Ws. 3, 4, 7, 8 and 9 were declared

hostile by the trial court at the request of the prosecution and, on

a careful scrutiny of their cross-examination, we find that

prosecution could not take out anything from them in its favour.

Similarly, P.Ws. 2 and 10 are formal witnesses. They are

advocate clerks, who have proved Ext.1 and Ext. 2 during trial.

They are neither authors the documents nor their owner nor their

custodian nor are they privy the contents thereof. The advocate

clerks cannot be treated as competent witnesses under such

circumstance. They cannot be substitute for the police officer

who recorded the fardbeyan or the officer-in-charge of the

police station who drew the formal FIR. The evidence given by

them or obtained through them is not admissible.

39. We further find that the evidence of P.W. 6,

a hearsay witness, is also of no help to the prosecution case, as

he has deposed that he neither knew the whereabouts of the

persons killed nor the name of perpetrators of the crime.

40. The doctor, who conducted the post mortem

examination on the bodies of the three deceased is P.W.11.

41. Thus, the finding of guilt of the appellant

recorded by the trial court is based on the testimony of two

witnesses, namely, P.W. 1 Shradha Devi and P.W. 5, Sri Niwas Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

Sharma.

42. As a general rule, it is not the number, the

quantity but quality that is material. The time honoured

principle is that evidence has to be weighed and not counted.

There is no legal impediment in convicting a person on the sole

testimony of a single witness. The test is whether the evidence

has a ring of truth, is cogent, credible and trustworthy or

otherwise.

43. In the light of settled principles, we proceed

to examine the testimonies of P.W. 1 Shradha Devi and P.W. 5

Sri Niwas Sharma.

44. P.W. 5 is neither a witness to the FIR lodged

by his wife (P.W.1) nor his wife has uttered a word about his

presence in her fardbeyan. While deposing before the Court

also, she has not uttered a word about the presence of P.W. 5 in

the house or in the village on the date on which her brother

Putun Sharma and two others were killed. On the contrary, she

has stated in her evidence that at the time of occurrence, her two

sons and their spouses were present in the house. She has stated

that she herself and her son had witnessed the occurrence.

45. According to the fardbeyan of the P.W.1, on

the fateful night at about 9 p.m., her younger brother Putun Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

Sharma came together with his two friends, namely, Anil

Sharma and a resident of Goh, whose name was not known to

her. They talked with her for sometime and, thereafter, they

went to the rooftop of the dalan of Baliram Sharma. It is

important to note here that her fardbeyan was recorded on

11.04.2006 at 7 a.m. whereas the occurrence is alleged to have

taken place in the midnight. Even till the time of recording her

fardbeyan, i.e. 07 hours after the time of incident, she was not

knowing the name of one of the friends of her younger brother,

who had visited her house and was killed in the incident.

46. According to the deposition of the doctor,

who conducted the post mortem examination, the bodies of the

three deceased were brought to Sadar Hospital, Jehanabad by

the constable Parmanand Yadav and the chaukidar Naresh

Yadav. The post mortem reports have been marked as Ext. 3, 3/1

and 3/2 respectively during trial. The post mortem examination

on the bodies was conducted between 1.30 p.m. and 2 p.m. on

11.04.2006. The doctor has noted the name of the two deceased

Putun Sharma and Anil Sharma in the designated column of

their respective post mortem reports, but in the third post

mortem report, in the column meant for noting the name of the

deceased and his parentage, it has been noted as "unknown 30 Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

years male". This clearly goes to show that till that time, neither

the police nor the family members nor anyone else had

disclosed the name of the third deceased.

47. Having discussed the aforesaid aspect, when

we closely look to the deposition of P.W. 5, Sri Niwash Sharma,

we find that he claims himself to be an eye witness to the

occurrence. Had P.W. 5 been present in the village and seen the

occurrence and was knowing the name of the deceased, as

disclosed by him in his deposition, he must have disclosed the

name of the third deceased to his wife, who is the informant of

the case or to the police or to the doctor who conducted the post

mortem examination.

48. It does not stand to reason that if he was

present in the house and had witnessed the killing of three

deceased and was knowing the name of the third deceased as to

why his wife stated in her fardbeyan that she did not know the

name of friend of her brother accompanying him, who was a

resident of Goh, specially when her fardbeyan was recorded

after 07 hours of the incident and, in the meantime, she had

enough time to inquire from her husband the name of the third

deceased.

49. Further, in her fardbeyan, the informant Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

disclosed the name of Butun Sharma, Abinash Sharma and

Sadhu Sharam and 6-7 unknown armed miscreants to have

committed the offence, but P.W. 5 claiming himself to be an eye

witness deposed before the court that apart from the aforesaid

three named accused Kaushal Sharma and Kamal Kant Sharma

also shot Anil Sharma and Toofan Sharma dead. Had he been

present in the village and seen the occurrence, he would have

certainly disclosed the name of Kaushal Sharma and Kamal

Kant Sharma to his wife as offenders and she would not have

spared them from being added as FIR named accused persons.

50. We have noticed that P.W. 5 has admitted in

his cross-examination that he had not visited the place of

occurrence himself. If he had not visited the place of

occurrence, one fails to understand as to how he could be an eye

witness and narrate, who killed the three deceased. It is an

admitted position that the deceased Putun Sharma was the

brother-in-law of P.W. 5 and he and his two friends had been

murdered on the fateful night on which they had visited his

house. In such a situation, the normal conduct would be to

immediately rush to the place of occurrence. His admission that

he had not gone to the place of occurrence himself is not a

normal human conduct consistent with the ordinary course of Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

human nature making his deposition extremely doubtful and

highly unsafe.

51. There is another reason for not placing

reliance on the deposition of P.W. 5 Sri Niwas Sharma. He was

specifically questioned by the defence that on the relevant date

of incident, he was at Kaveri Dham. Though, he has denied the

said contention of the defence, the aforesaid aspect of not being

present in the village, on the date of occurrence and having gone

to Kaveri Dham could have been verified from the investigating

officer, in case he would have been examined as a witness

during trial. His non-examination by the prosecution and that

too without giving any reason for the same has, thus, seriously

prejudiced the case of the defence.

52. While saying so, we are conscious of the fact

that the non-examination of the investigating officer would not

be fatal in every case. It depends on the facts and circumstances

of each case.

53. In the instant case, since the non-

examination of the investigating officer has caused prejudice to

such an extent that it deprived the defence an opportunity to test

the veracity of the prosecution case, we are of the opinion that

the same would prove fatal to the prosecution case. Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

54. The facts, discussed, hereinabove, make the

presence of so-called eye witness P.W. 5 in the village or in his

house on the date of occurrence extremely doubtful and highly

improbable. Since there are several doubtful aspects in the

conduct of P.W. 5 couple with the prejudice caused to the

defence due to non-examination of the investigating officer, it

would be totally unsafe to accept his evidence for the purpose of

arriving at a conclusion of guilt.

55. Now, we shall look at the deposition of the

informant Shardha Devi.

56. If we closely appreciate her evidence, we

find that in the first information report, she has stated that the

incident had taken place at about 12 midnight, but in her

deposition she has stated that the incident took place in the night

in between 9-10 p.m. on 10.04.2006. We further notice that in

the fardbeyan, she has stated that her brother Putun Sharma

along with two friends had come to her house at about 9-10 p.m.

and after talking with her for sometime, they went to the rooftop

of dalan of Baliram Sharma to sleep and at about 12 midnight,

she heard the sound of gunshot and immediately rushed from

her house towards the dalan of Baliram Sharma. She saw Butan

Sharma, Abinash Sharma, Sadhu Sharma and 6-7 unknown Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

persons being variously armed descending from the rooftop of

the dalan on a bamboo ladder and they went towards the

northern side opening fire, but while deposing before the court,

she completely changed her version and stated that the rooftop

of her house and the rooftop of the house of Baliram Sharma are

adjacent to each other. She stated that she herself and her son

witnessed the entire incident. She saw Abinash Sharma, Butan

Sharma and Sadhu Sharma firing one round each at her brother

Putun Sharma as a result of which he died. She further stated in

her deposition that Anil Sharma was shot dead by Kaushal and

Toofan was shot dead by Kamla. Thus, in the fardbeyan, she is

not an eye witness to the murder of the three deceased, but in

her deposition, she becomes an eye witness to the entire

incident.

57. There is yet another reason to doubt her

version as narrated in her deposition. In cross-examination, she

admitted that the dalan of Baliram Sharma is at a distance of

two bamboo length from her house and in between her house

and the dalan of Baliram Sharma, there is a lane. The aforesaid

admission made by Shradha Devi in cross-examination

completely belies her deposition that the rooftop of her house is

adjacent to the rooftop of Baliram Sharma's dalan. Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

58. We further notice that P.W. 1 has stated in

her deposition that on the date of occurrence the police had

arrived at the place of occurrence at 4 a.m. and had recorded her

fardbeyan. However, the fardbeyan exhibited before the court

would show that it was recorded at 7 a.m. on 11.04.2006. It is

not known what happened to the fardbeyan recorded by the

police at 4 a.m. This aspect of the mater could have been

clarified by SI U. K. Singh, who had reduced the fardbeyan in

writing, or by SI Rameshwar Ram, who investigated the case, or

by Janardan Dubey, the Officer-in-charge of Karpi Police

Station, who drew the formal FIR and handed over the

investigation to the investigating officer. Their non-examination,

without offering any explanation in this regard by the

prosecution leaves the court guessing not only about the

fardbeyan recorded at 4 a.m. on 11.04.2006, but also about the

manner of occurrence and place of occurrence.

59. We further find from the deposition of the

informant Shardha Devi that in her fardbeyan she had named

three accused only, namely, Abinash Sharma, Butan Sharma and

Sadhu Sharma, but in her deposition, she has made material

improvement by adding the name of Kaushal and Kamala, who,

according to her, had shot dead Anil Sharma and Toofan Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

Sharma. She did not utter a word that Kaushal and Kamala

repeatedly fired, but the post mortem examination report would

show that deceased Anil Sharma had at least three wounds of

entry and deceased Toofan Sharma had sustained at least two

wounds of entry. As per FIR, she is not a witness to the murder

but, while deposing before the court, she stated that the accused

Abinash, Butan and Sadhu fired one round each at her brother

Putun Sharma, as a result of which he died, but the doctor, who

conducted the post mortem examination found 4 wounds of

entry on the person of Putun Sharma. If only 3 shots were fired

at Putun Sharma, there could not have been 4 wounds of entry.

60. The oral testimony of the informant is not in

alignment with the medical evidence. Major discrepancies and

improvements made in her evidence while deposing before the

court goes to the root of the matter and ushers in incongruities.

Her deposition does not inspire confidence.

61. Moreover, the informant is the elder sister of

the deceased Putun Sharma. In her fardbeyan itself, she has

disclosed that Putun Sharma had strained relations with accused

named in the FIR. She was confronted with the question that her

brother was a criminal having many cases pending against him.

Her husband was also confronted with a similar question. He Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

was also confronted with the question that on the fateful day,

one Ambuj Sharma of village-Puran was killed in which the

deceased Putun Sharma was made an accused and he was hiding

in his house when in retaliation he was killed by supporters of

Ambuj Sharma. The informant and her husband have not

negated such questions put to them during trial. They have

simply expressed their ignorance about the criminal activities of

the deceased Putun Sharma. The defence would have clarified

these aspects from the investigating officer. For the reasons best

known to it, the prosecution did not examine the investigating

officer. On the facts and in the circumstances of the case where

the conduct of the two star witnesses for the prosecution is

unnatural and there are other attending circumstances, which

make their presence at the place of occurrence doubtful, we are

of the opinion that the non-examination of the investigating

officer has seriously prejudice the case of the defence as it was

only the investigating officer, who was in a position to explain

the whole sequel of events. We are also of the opinion that in

absence of examination of the investigating officer during trial

neither the place of occurrence nor the manner of occurrence

has been established.

62. We have noticed that as per the prosecution Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

case, the miscreants committed the offence and left the place of

occurrence. It is not the case of the prosecution case that after

committing the offence, the miscreants remained present at the

place of occurrence even for a moment. P.Ws. 1 and 5 claim

themselves to be witness of the occurrence. They were closely

related to one of the deceased. They made no effort to shift the

three injured to any doctor or hospital. They also made no effort

to call any doctor in order to ascertain as to whether the injured

were alive or not after miscreants had left the place of

occurrence. It is highly unnatural that the two close relatives of

one of the three deceased made no effort to save their life.

63. While appreciating the evidence of witnesses

related to the deceased having strained relationship with the

accused, the Court is required to carefully scrutinize it and

examine their testimony with caution.

64. On this principle, when we scrutinize the

evidence of the informant P.W.1 and P.W. 5, we find that there

are major discrepancies, significant embellishments, material

improvements and inconsistencies in their evidence while

deposing before the Court which do affect the core of the

prosecution case. They create serious doubt about their

credibility as a witness.

Patna High Court CR. APP (DB) No.820 of 2015 dt.05-04-2021

65. In view of the foregoing discussions, we are

not able to appreciate the reason given by the trial court for

convicting the appellant for the alleged offences. On the

contrary, we are of the considered view that the prosecution has

failed to establish the guilt of the appellant beyond reasonable

doubt by adducing cogent and trustworthy evidence.

66. Since the prosecution has failed to prove the

guilt of the accused-appellant beyond reasonable doubt, we set

aside the impugned judgment of conviction dated 25.08.2015

and order of sentence dated 26.08.2015 passed by the learned

Additional Sessions Judge-1st, Jehanabad in Sessions Trial

No.165/2008/72/2014 arising out of Karpi P.S. Case No.33 of

2006.

67. The appeal stands allowed.

68. The appellant, who is in custody, is

acquitted. He is directed to be released forthwith unless required

in any other case.

(Ashwani Kumar Singh, J)

( Arvind Srivastava, J) kanchan/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          05.04.2021
Transmission Date       05.04.2021