Ram Bihari Yadav vs The State Of Bihar
2021 Latest Caselaw 4150 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                     CRIMINAL APPEAL (DB) No.135 of 2015
          Arising Out of PS. Case No.-46 Year-2007 Thana- BARHARA District- Bhojpur
     ======================================================

Rajesh Yadav, Son of Late Sheo Shankar Yadav, Resident of Padaminia, P.S. - Krishnagarh Barahara, District - Bhojpur.

... ... Appellant/s Versus The State Of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 919 of 2014 Arising Out of PS. Case No.-46 Year-2007 Thana- BARHARA District- Bhojpur ======================================================

1. Dineshwar Yadav, Son of Late Raghubir Yadav

2. Suresh Yadav, Son of Late Awadhesh Yadav

3. Kamta Yadav, Son of Late Awadhesh Yadav

All resident of village -Padminia, P.S.-Barahra Krishnagarh, District - Bhojpur.

... ... Appellant/s Versus The State Of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 929 of 2014 Arising Out of PS. Case No.-46 Year-2007 Thana- BARHARA District- Bhojpur ====================================================== Ram Bihari Yadav, Son of Sri Jhuman Yadav, Resident of village - Padaminiya, P.S. Barahra Krishnagarh , District - Bhojpur

... ... Appellant/s Versus The State Of Bihar

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 938 of 2014 Arising Out of PS. Case No.-46 Year-2007 Thana- BARHARA District- Bhojpur ====================================================== Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

Raj Kumar Yadav, Son of Late Bir Bhajan Yadav, resident of Padaminia, P.S.- Krishnagarh Barahara District- Bhojpur

... ... Appellant/s Versus The State Of Bihar

... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 135 of 2015) For the Appellant/s : Mr. Vijay Kumar Sinha, Advocate Mr.Ajay Nandan Sahay, Advocate For the Respondent/s : Mr.Ajay Mishra, APP For the informant : Mr. Kumar Uday Singh, Advocate (In CRIMINAL APPEAL (DB) No. 919 of 2014) For the Appellant/s : Mr. Vindhya Keshari Kumar, Senior Advocate Mr.Ajay Nandan Sahay, Advocate For the Respondent/s : Mr. S.C.Mishra, APP For the informant : Mr. Kumar Uday Singh, Advocate (In CRIMINAL APPEAL (DB) No. 929 of 2014) For the Appellant/s : Mr.Ravindra Kumar For the Respondent/s : Mr.A.Sharma, APP For the informant : Mr. Kumar Uday Singh, Advocate (In CRIMINAL APPEAL (DB) No. 938 of 2014) For the Appellant/s : Mr. Vindhya Keshari Kumar, Senior Advocate Mr. Binod Kumar Yadav, Advocate For the Respondent/s : Mr.Maya Nand Jha, APP For the informant : Mr. Kumar Uday Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE ANIL KUMAR SINHA

JUDGMENT AND ORDER C.A.V.

(Per: HONOURABLE MR. JUSTICE ANIL KUMAR SINHA)

Date : 18-08-2021

Criminal Appeal (DB) No. 135 of 2015 has been filed on

behalf of the appellant Rajesh Yadav, Criminal Appeal (DB) No. 919 of

2014 has been filed on behalf of the appellants, namely, Dineshwar

Yadav, Suresh Yadav and Kamta Yadav, Criminal Appeal (DB) No. 929

of 2014 has been filed on behalf of the appellant Ram Bihari Yadav,

whereas Criminal Appeal (DB) No. 938 of 2014 has been preferred by Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

appellant Raj Kumar Yadav. The appellants, in all these four appeals,

were tried together, in Sessions Trial Nos. 460 of 2008, 462 of 2008

and 20 of 2012, arising out of Barhara (Krishnagarh) Police Station

Case No. 46 of 2007, and as such, all these four appeals have been

heard together and are being disposed of by this common judgment.

2. By the judgment, dated 19.11.2014, passed, in Sessions

Trial Nos. 460 of 2008, 462 of 2008 and 20 of 2012, by Sri Ram

Padarath, learned 2nd Additional Sessions Judge, Bhojpur, at Ara, all

the above named appellants stood convicted under Sections 147 and

302 read with Section 149 of the Indian Penal Code. Further

appellant, Rajesh Yadav, was also convicted under Section 27 of the

Arms Act. In consequence of their conviction under Section 302 read

with Section 149 of the Indian Penal Code, the appellants were, by

the order, dated 24.11.2014, sentenced to suffer rigorous

imprisonment for life and fine of Rs. 50,000/- each. In default of

payment of fine, the appellants were directed to further undergo

simple imprisonment for a period of six months. In consequence of

their conviction under Section 147 of the Indian Penal Code, the

appellants were, by the order, dated 24.11.2014, sentenced to suffer

simple imprisonment for a term of two years. In consequence of his

conviction under Section 27 of the Arms Act, the appellant, Rajesh

Yadav, was, by the order, dated 24.11.2014, sentenced to suffer

rigorous imprisonment for a term of three years and fine of Rs.

1000/-. In default of payment of fine, the appellant Rajesh Yadav was

directed to further undergo simple imprisonment for a period of two

months. The sentences were directed to run concurrently. Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

3. The case of the prosecution, as unfolded by the

informant, Pawan Kumar Singh (PW 6), in the fardbayan, recorded at

Sadar Hospital, Ara, on 08.03.2007, at about 11 PM by Sub Inspector

of Police Moti Choudhary, of Ara Town Police Station, in brief, is that

(i) about four days ago, Rajesh Yadav came to his house

and went away after having a talk with his father, Parshuram Singh

(deceased). It has further been stated by the informant that today

(on 08.03.2007), at about 07:45 PM, Rajesh Yadav and Raj Kumar

Yadav came to his house and sat in the veranda (dalan) of his house,

where his father was also sitting on a wooden cot (chowki) and was

taking his meal. Dineshwar Yadav, Kamta Yadav, Suresh Yadav, Ram

Bihari Yadav and 4-5 other persons were also sitting on the ground

outside the door of his house.

(ii) The informant further stated that at about 08:20 PM,

on the exhortation of Raj Kumar Yadav to kill the father of the

informant, Parshuram Singh, Rajesh Yadav took out a country-made

pistol from his waist and fired upon the father of the informant. The

bullet so fired by Rajesh Yadav hit the father of the informant on his

chest.

(iii) The informant (PW 6) claimed that his brother Sanjay

Singh (PW 1), Satyanarayan Singh (PW 3), Awadh Singh (not

examined), Satyendra Singh (PW 4), Dhananjay Singh (PW 2), Shiv

Ishwar Singh (not examined) and many other persons of his village

came and saw the accused persons fleeing towards north after

making firing.

Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

(iv) The informant further stated that while taking his

injured father to Sadar Hospital, Ara, his father died on the way to

the hospital.

(v) The reason behind this occurrence, as disclosed by the

informant, is the old land dispute.

4. On the basis of the said fardbeyan, a formal First

Information Report has been registered as Barhara (Krishnagarh)

Police Station Case No. 46 of 2007, under Sections 302/34 of the

Indian Penal Code read with Section 27 of the Arms Act, on

09.03.2007, against accused Rajesh Yadav, Raj Kumar Yadav,

Dineshwar Yadav, Kamta Yadav, Suresh Yadav, Ram Bihari Yadav and

4-5 other persons .

5. The inquest was held over the dead body of Parshuram

Singh, who was also subjected to post mortem examination, and, on

completion of investigation, charge sheets were submitted, under

Section 302/34 of the Indian Penal Code and Section 27 of the Arms

Act, against the appellants. Cognizance of the offence punishable

under Sections 302, 307, 324, 452 and 120B/34 of the Indian Penal

Code and Section 27 of the Arms Act was taken by learned Chief

Judicial Magistrate, Bhojpur, at Ara. In this case, three charge sheets

were submitted by the police. The first charge sheet, being Charge

sheet no. 73 of 2007, dated 05.06.2007, was submitted by the police

against Suresh Yadav, Ram Bihari Yadav and Manoj Yadav (not named

in the First Information Report), the second charge sheet, being

charge sheet no. 05 of 2008, dated 31.01.2008, was submitted by the

police against Kamta Yadav and Dineshwar Yadav; whereas the third Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

charge sheet, being supplementary charge sheet no. 35 of 2008,

dated 30.04.2008, was submitted by the police against Rajesh Yadav

and Raj Kumar Yadav. The case was committed to the Court of

Sessions by the orders passed by the learned Judicial Magistrate, 1st

Class, Ara, dated 01.09.2008, and by order of the learned Sessions

Judge, the case was transferred to different courts and finally to the

Court of learned 2nd Additional Sessions Judge, Bhojpur, at Ara, for

disposal.

6. At the trial, when charges, under Section 302 read with

Section 34 of the Indian Penal Code was framed on 27.09.2013

against all the above named appellants, they pleaded not guilty

thereto. Charge, under Section 27 of the Arms Act, was framed on

23.09.2013 against the accused-appellant, Rajesh Yadav, he pleaded

not guilty thereto and the appellants claimed to be tried.

7. In support of its case, prosecution examined altogether

08 (eight witnesses), namely, P.W. 1 Sanjay Singh, P.W. 2 Dhananjay

Singh, P.W. 3 Satyanarayan Singh, P.W. 4 Satyendra Singh, P.W. 5 Vijay

Bahadur Singh, P.W. 6 Pawan Kumar Singh, P.W. 7 Dr. Jitendra Kumar

and P.W. 8 Shaligram Singh. The accused were, then, examined under

Section 313 of the Code of Criminal Procedure, 1973, wherein the

accused denied that they had committed the offences, which were

alleged to have been committed by them, the case of the defence

being that of denial and false implication due to land dispute.

8. The defence has not examined any witness in support of

his case. However, the defence has produced and exhibited some

documents relating to the criminal cases against the deceased and Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

existence of a case under Section 145 of the Code of Criminal

Procedure, 1973.

9. Having, however, found the accused guilty of the

offences, convicted under Section 302 read with Section 34 of the

Indian Penal Code and Section 27of the Arms Act, learned trial Court

convicted them accordingly and passed sentences against them, as

mentioned above.

10. Aggrieved by their conviction and the sentences, which

has been passed against them, the accused have preferred these four

appeals.

11. We have heard Mr. Vijay Kumar Sinha, learned Counsel

appearing on behalf of the appellant Rajesh Yadav, Mr. Vindhya

Keshari Kumar, learned Senior Counsel for the appellants, namely,

Dineshwar Yadav, Suresh Yadav, Kamta Yadav and Raj Kumar Yadav

and Mr. Ravindra Kumar, learned Counsel for the appellant Ram

Bihari Yadav. We have heard Mr. Ajay Mishra, Mr. S. C. Mishra, Mr.

Abhimanyu Sharma and Mr. Mayanand Jha, learned Additional Public

Prosecutors, appearing on behalf of the State in the four appeals. We

have also heard Mr. Kumar Uday Singh, leaned Counsel for the

informant.

12. Mr. Vindhya Keshari Kumar, learned Senior Counsel

appearing on behalf of the appellants, Dineshwar Yadav, Suresh

Yadav and Kamta Yadav [Criminal Appeal (DB) No. 919 2014] and

appellant Raj Kumar Yadav [Criminal Appeal (DB) No. 938 of 2014],

after placing the entire evidence in his argument, has submitted that

PW 1 (Sanjay Singh) and PW 4 (Satyendra Singh) have not seen the Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

occurrence and are not eye-witnesses. Referring to the deposition of

PW 3 (Satyanarayan Singh) and PW 4 (Satyendra Singh), who claimed

themselves to be the eye-witnesses, learned Senior Counsel has

submitted that at the time of occurrence, they were standing on the

roofs of their respective houses, situated adjacent to the house of

the informant and they saw the entire occurrence in the light of the

lantern, but no lantern was seized by the Investigating Officer from

the place of occurrence. Learned Senior Counsel, referring to

paragraph 34 of the judgment, submits that the place of occurrence

has not been established by the prosecution inasmuch as no blood

stained earth and/or blood stained cloths of the deceased were

seized from the place of occurrence and exhibited by the

prosecution. Learned Senior Counsel, referring to paragraphs 10 and

12 of the deposition of PW 7 (Dr. Jitendra Kumar), has submitted that

upon dissection of the stomach, PW 7 has found the stomach empty

and that no food can be digested by a dead body, whereas the

prosecution witnesses, in their deposition, have stated that the

deceased was eating litti when appellant Rajesh Kumar Yadav had

fired upon him. In support of his submission, learned Senior Counsel

has placed reliance, in the case of Moti v. State of U.P. (AIR 2003 SC

1897), at paragraph 12, which reads as under:

"12. It is rather surprising that the High Court should find this part of the medical evidence as being of no consequence at all. The High Court referring to this part of the medical evidence has observed : "In our opinion the stomach contents are not very material to determine the time of incident." We are of the considered opinion this view of the High Court is wholly Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

erroneous. It may be possible to contend that contents of the stomach may not always be an indicator of the time of death. But in a case where stomach is empty and the prosecution evidence is that the murder had taken place shortly after the deceased has his last meal, to say that the contents of the stomach have no material bearing on the determination of the time, in our opinion, is not acceptable. In the instant case, time of death being a material factor to verify the presence of the eye- witnesses it was obligatory for the prosecution to have clarified the discrepancy between the medical evidence and the oral evidence. The prosecution having failed to do so, in our opinion, a serious doubt as to the time of incident and the presence of the eye-witnesses at the time of incident and their narration of the incident also becomes doubtful."

13. Learned Senior Counsel further submits that the time

and manner of the death of the deceased was also not established by

the prosecution. Learned Senior Counsel has also submitted that PW

7 has not found any sign of blackening or charring near the bullet

injury; whereas as per the prosecution case, the bullet was fired by

the appellant Rajesh Yadav from a very short distance. Learned

Senior Counsel has further submitted that no overt act has been

attributed to the appellants, except appellant Rajesh Yadav, who is

alleged to have fired on the deceased and the appellant Raj Kumar

Yadav, who is said to have exhorted the appellant Rajesh Yadav to kill

the deceased and if no overt act was alleged against some persons of

the unlawful assembly, they are entitled to be acquitted. In support

of his contention, learned Senior Counsel has placed reliance on a

Division Bench decision of this Court, in the case of Pitambar Thakur Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

v. The State of Bihar, reported in 1999 (3) PLJR 412. The Division

Bench, in paragraphs 27 and 28, in the case of Pitambar Thakur

(supra), has held as follows:

"27. From the facts of the case it appears that the members of the prosecution party and the defence party came near Khanua Ghat. At that stage no one was armed. It cannot also be lostsight of that the members of the prosecution party were the supporters of the informant(P.W.2), who was a candidate for the post of Mukhiya. Similarly, the members of the defence party were the supporters of the rival candidate, namely, appellant Ram Singhasan Rai. After they reached Khanua Ghat and the members of the defence party armed themselves with the weapons supplied by ten or fifteen persons sitting near the bank of the river, they certainly constituted themselves into an unlawful assembly. The evidence on record is that by the time they reached Khanua Nala the member of the defence party had become agitated and were anxious to pick up a quarrel. Appellant Dhirendra Thakur, Ram Singhasan Rai, Anup Lal Rai (deceased), Ramswaroop Rai (deceased) and Nand Kishore Rai armed themselves with guns. The firing was resorted to in the first instance by appellant Dhirendra Thakur though the evidence is not consistent as to whether Ram Singhasan Rai or Ramswaroop Rai fired simultaneously with him. The members of the prosecution party were thereafter chased. The informant hid himself inside the house of Tildhari. After the house was set on fire and Tildhari wanted to escape, Ram Singhasan Rai fired at him causing him injuries. In course of the occurrence, there is clear evidence of P.Ws. 4, 11 and 17, that it was Nand Kishore Rai who fired at them causing gun shot injuries, Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

as found by the medical officer. We are, therefore, of the considered view that having armed themselves, and having commenced the assault with the use of guns, the five appelilants who were armed with guns did constitute themselves into an unlawful assembly, the object of which was to commit the murder of one or more members of the prosecution party who belonged to the rival group. This is reinforced by the fact that they were all carrying firearms and the same. There could be no other purpose behind their arming themselves with guns. Apart from the two appellants who are dead, there is clear allegation of overt act against the remaining three appellants. Dhirendra Thakur has been held guilty of the offence under section 302 of the Indian Penal Code and there appears to be no good reason to set aside his conviction, subject to the finding on his plea of alibi. Ram Singhasan Rai fired at the informant and has been found guilty of the offence under section 307 of the Indian Penal Code. His participation clearly established that he was acting in concert with other accused persons who were also armed with, guns. Similarly, appellant Nand Kishore Rai fired from his gun causing injuries to P.Ws 4, 11, 15 and 17. There is clear allegation of overt acts against them and the prosecution has successfully proved its case as against them.

28. A question then arises as to whether in the facts and circumstances of this case they should be convicted under section 302 read with section 149 of the Indian Penal Code, or under any other section. Out of the five appellants armed with guns the overt act alleged against Ramswaroop Rai (since deceased) has not been believed. As against Anup Lal Rai there was an allegation that he set fire to the house of Tildhari, Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

but the charge of arson against him has not been proved. Thus, out of five appellants armed with guns, as against two, namely, Anup Lal Rai and Ramswaroop Rai it has not been established that they participated by using their guns. The overt acts alleged against them have not been proved. Applying the principle as enunciated in Cr. Appeal No. 17 of 1985, it can be said with certainty that after arming themselves with guns appeVant Dhirendra Thakur, Ram Singhasn Rai ahd Nand Kishore Ral acted in concert and used their weapons. Even assuming that by reason of their not having used their weapons, it can be said that Anup Lal Rai and Ramswaroop Rai (both since deceased) did not share the common unlawful object of committing the murder of anyone, the remaining appellants can still be held guilty of the offence under section 302 of the Indian Penal Code read with section 34 of the Indian Penal Code. The appeal preferred by Anup Lal Rai and Ramswaroop Rai has abated. Appellants Ram Singhasan Rai and Nand Kishore Rai are, therefore, convicted of the offence under section 302 read with section 34 of the Indian Penal Code instead of section 302 read with section 149 of the Indian Penal Code. On the same reasoning appellant Dhirendra Thakur can also be held guilty of the offence under section 302 read with section 34 of the Indian Penal Code, apart from his conviction under section 302 of the Indian Penal Code. We shall presently consider the plea of alibi set up by Dhirendra Thakur in Cr. Appeal No. 77 of 1985. So far as Cr. Appeal No. 36 of 1985 is concerned, the appeals of Anup Lal Rai and Ramswaroop Rai, stand abated. Appellant Rajendra Rai and Bhola Rai said to be armed with bombs, are acquitted of the charge under section 302/149 of the Indian Penal Code but their conviction under section 147 of the Indian Penal Code Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

is upheld, and the sentence is reduced to the period already undergone by them. Appellant Ram Singhasan Rai and Nand Kishore Rai are convicted of the offence under section 302/34 of the Indian Penal Code instead of section 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. The conviction of appellant Ram Singhasan Rai under section 307 of the Indian Penal Code is upheld, but he is sentenced to undergo rigorous imprisonment for a term of seven years on this count. The conviction and sentence of Ram Singhasan Rai and Nand Kishore Rai under section 27 of the Arms Act is upheld. Cr Appeal No. 36 of 1985 is disposed of accordingly. "

14. Learned Senior Counsel has further submitted that the

deposition of PW 3, PW 4 and PW 5 are self-contradictory as well as

their testimonies have been contradicted by the Investigating Officer

(PW 8). Learned Senior Counsel, referring to deposition of PW 3,

submits that this witness, in paragraph 28, has stated that it is not

true that he has not stated before the police that he and his brother

(PW 4) were sitting on the roofs of their respective houses and were

talking to each other; whereas PW 8 (Investigating Officer), in

paragraph 23, has deposed that PW 3 had not stated before him that

he and his brother (PW 4) were sitting on the roofs of their

respective houses and were talking to each other. Learned Senior

Counsel has further submitted that PW 8 (Investigating Officer) has

also contradicted the statement of PW 4, made in paragraph 36 of

the deposition, that while he and his brother (PW 3) were sitting on

the roofs of their respective houses and were talking to each other,

they saw that Parshuram Singh was eating litti and chokha and the Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

informant was standing near the deceased and reached the place of

occurrence on witnessing the exhortation of appellant Raj Kumar.

Learned Senior Counsel has further submitted that PW 1, PW 2, PW

3, PW 4, PW 5 and PW 6 are the most interested witnesses inasmuch

as there was previous enmity also among them and a case, under

Section 144/145 of the Code of Criminal Procedure, 1973, was

pending for the land. Learned Senior Counsel has submitted that

source of identification has not been brought on record by the

prosecution. Learned Senior Counsel has further submitted that the

deceased was having arm license and the father of PW 3 and PW 4

had also arm licence and nobody would dare to enter into the

premises of the deceased, who is well known to the appellants and,

thus, submission is that the place of occurrence is not established by

the prosecution on this count also. Learned Senior Counsel, referring

to paragraph 2 of the deposition of PW 1 (Sanjay Singh), has

submitted that this witness has identified Ram Bihari as Rajesh.

15. Mr. Vijay Kumar Sinha, learned Counsel appearing on

behalf of the appellant Rajesh Yadav [Criminal Appeal (DB) No. 135 of

2015], while adopting the submissions advanced by Mr. Vindhya

Keshari Kumar, learned Senior Counsel, has submitted that PW 1 has

failed to identify this appellant in the dock and, thus, the story

propounded by the prosecution is improbable because the deceased

was having criminal background and a number of cases were running

against him.

16. Mr. Rabindra Kumar, learned Counsel appearing on

behalf of the appellant Ram Bihari Yadav [Criminal Appeal (DB) No. Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

929 of 2014], while adopting the submission advanced by Mr.

Vindhya Keshari Kumar, has submitted that PW 6, in paragraph 12 of

his deposition, has clearly stated that the appellants, along with

others, had not come with the intention to kill his father. He further

submits that the materials seized by the Investigating Officer, i.e.

blood stained earth and apparels of the deceased, were neither sent

for examination nor produced before the Court for marking exhibit.

He further submits that non-examination of the independent

witnesses, like S.I. Moti Choudhary, who had drawn the formal First

Information Report and the driver of the jeep, who carried the

deceased to the Sadar Hospital, Ara, creates serious doubt on the

prosecution.

17. On the other hand, learned Additional Public

Prosecutors, have submitted that quantity of evidence is immaterial;

rather, the quality of evidence is important and PW 1, PW 3, PW 4 and

PW 6 have narrated the entire occurrence vividly and the prosecution

has been able to not only prove the manner of occurrence, place of

occurrence, time of occurrence but also proved the guilt of the

appellants beyond the shadow of all reasonable doubts.

18. Mr. Kumar Uday Singh, learned Counsel appearing on

behalf of the informant, while adopting the submissions advanced on

behalf of the State, in its totality, submits that the deposition of the

prosecution witnesses were consistent and on the basis of their

deposition the learned Trial Court has rightly convicted the

appellants. He further submitted that though the doctor (PW 7) did

not find any blackening and charring near the wound of the Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

deceased, but gun powder was found by the doctor (PW 7) all over

the chest.

19. After having minutely scrutinizing the evidence, both

oral and documentary, available on record and the arguments

advanced on behalf of the parties, I am, prima facie, of the opinion

that the prosecution has failed to establish its case beyond the

shadow of all reasonable doubts and the judgment of conviction,

dated 19.11.2014, and order of sentence, dated 24.11.2014, passed,

in Sessions Trial Nos. 460 of 2008, 462 of 2008 and 20 of 2012, arising

out of Barhara (Krishnagarh) Police Station Case No. 46 of 2007, are

not sustainable.

20. In order to give my conclusive finding, it is necessary to

analyze and discuss the evidence of prosecution witnesses.

21. In order to appreciate the evidence adduced by the

prosecution against the appellants, I would like to first take note of

the evidence of Dr. Jitendra Kumar (PW 7), who had conducted, on

09.03.2007, post mortem examination on Parshuram Singh's dead

body and found the following ante mortem injuries:

"External Examination: Average built, small hairs over scalp which was white, eyes closed, mouth closed, Rigor Mortis appeared in upper extremity (1) Lacerated Wound 1" x 1" x cavity deep in right 3rd inter coastal space lateral to sternum. Blood coming through wound, margin inverted, gund powder spread all over chest.

(2) Lacerated Wound 1/2" x 1/2" x cavity deep on right side of back just below right scapula. Blood coming through this wound.

Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

Wound (1) is wound of entry and wound no.

(2) is wound of exit.

On dissection-

Skull : Brain and meninges - pale, Chest:

chest cavity filled with blood, Right lung lacerated, Abdomen: Liver, spleen and kidney-Pale, Bladder : 50ML urine was present."

22. In the opinion of the doctor (PW 7), death was caused

due to haemorrhage and injuries of vital organs, resulting from the

injuries sustained on chest, the injuries have been caused by fire arm.

23. This witness has identified his hand-writing and

signature on the post mortem report of deceased Parshuram Singh,

which has been marked as Exhibit-2.

24. The finding of the doctor and his opinion with regard

to the cause of death of the said deceased and his opinion with

regard to the weapon used for causing the death of the deceased,

were not disputed either by the prosecution or by the defence and I

also do not notice anything improbable in the evidence given by the

doctor (PW 7). From the evidence of PW 7, it becomes clear that

Parshuram Singh's death was homicidal in nature.

25. Now the question which remains is as to whether the

appellants were the persons responsible for the death of the

deceased and, thus, they have committed the offences punishable

under Section 302 read with Section 34 of the Indian Penal Code and

Section 27 of the Arms Act?

26. Coming to rest of the witnesses (seven in number)

examined on behalf of the prosecution,. PW 6, Pawan Kumar Singh Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

(an eye-witness to the entire occurrence), the informant of this case

and son of the deceased, in his evidence, has deposed that the

occurrence took place on 08.03.02007 at about 08:20 pm, when he

was at his home with his father (deceased) at the veranda (dalaan)

and Rajesh Yadav and Raj Kumar Yadav came and sat near his father;

whereas Kamta Yadav, Suresh Yadav, Ram Bihari, Dineshwar Yadav,

Manoj Yadav were standing below the stairs and they were holding

arms. This witness has further deposed that when Rajesh Yadav and

Raj Kumar Yadav were talking to his father, he told his father to take

food and I gave him food and was standing there and when his father

had not eaten one litti completely, Raj Kumar Yadav told to shot him,

in the mean time, Rajesh Yadav took out a country-made pistol from

his waist and shot at the chest of his father and after firing all the

accused persons fled away towards north. This witness further

deposed that on hearing the sound of firing, first of all Sanjay Bhaiya

(PW 1) came and then Satyendra Singh (PW 4), Satya Narayan Singh

(PW 3), Dhananjay Singh (PW 2) and many other persons came and on

receiving the bullet injury, his father fell beside the chowki and this

witness, along with his brother, Sanjay Singh (PW 1) had tied an

Indian towel (gamachi) to stop the blood which was oozing out, but a

lot of blood had already come out. This witness has further deposed

that someone had brought a jeep from the baraat and this witness

along with others took the deceased to Sadar Hospital and when

they crossed Saraiya, someone told that now your father is no more.

This witness has further deposed that his fardbayan was recorded at

the Sadar Hospital by the Daroga ji of Town Police Station, which was Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

read over to him and finding the same correct, he put his signature

on his fardbayan, which has been marked as Annexure-1/1. This

witness has disclosed in his examination-in-chief that the reason

behind the occurrence is that the land of the informant is at diar

where the accused persons used to commit robbery.

27. In his cross-examination, this witness (PW 6), in

paragraph 6, has deposed that the accused person had not come to

meet his father before and again said that they had come 4-5 days

ago and in paragraph 7, this witness (PW 6) has denied any land

dispute with the accused persons. This witness (PW 6) has further

deposed in paragraph 11, that the generator light was on in the

house of his neighbour Tiwary ji, in whose house marriage ceremony

was going on. This witness (PW 6) has further deposed that accused

persons had not come with the intention to kill his father, though the

accused were armed with guns, no one asked him the reason for

carrying arms with them. This witness (PW 6) has claimed that he was

all along with his father and heard the talk between his father and

accused persons and according to him, the talk was about

compromise of land dispute. This witness (PW 6) has further deposed

that when Rajesh Yadav fired at his father, his father fell down and he

raised alarm and his brother (PW 1), who was inside the house, came

running near his father and Pws 2, 3 and 4, along with more than

hundreds of persons from north of the house of the informant and

from the shamiyana (pandal) also reached there, but nobody tried to

catch hold of the accused persons while they were fleeing away. This

witness (PW 6) has further deposed that he did not get any blood Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

stain in his body; whereas the hand of his brother (PW 1) got some

blood stained while they were covering the wound of their father

with the Indian towel. This witness has denied that there is any

licensed arm in his house and his neighbours, who are witnesses in

this case, have kept their arms in Ara, though they were present in

their houses at the village (place of occurrence) and also admitted

that he is an accused in the murder of Rameshwar Yadav of the

village of the accused persons. This witness was not aware about the

information being given to the Police Station either while going to

the Sadar Hospital, Ara, or while returning from the hospital with the

dead body of his father. This witness (PW 6) has further shown his

ignorance about the criminal antecedent of his father, though he has

admitted that his father had gone to jail in the murder of Babaru

Dome.

28. PW 1, Sanjay Singh, son of the deceased (claimed to be

an eye-witness to the occurrence), has deposed that the occurrence

took place on 08.03.02007 at about 08:20 pm, in the evening, when

he was at his home and his father (deceased) was at the veranda

(dalaan) of his house and then Rajesh Yadav and Raj Kumar Yadav

came and started talking to his father while his father was eating litti

sitting on the chowki. This witness (PW 1) has further deposed that

Raj Kumar Yadav told to shot him, and Rajesh Yadav took out a

country-made pistol from his waist and shot at the left side of the

chest of his father. This witness (PW 1) has further deposed that

Dineshwar Yadav, Kamta Yadav, Suresh Yadav, Ram Bihari Yadav and

Manoj Yadav were also present at the door (duar) of his house, Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

having armed with guns. This witness (PW 1) has also deposed that

while the accused persons were fleeing, the villagers chased them,

but they succeeded in fleeing away towards north and then east. This

witness (PW 1) has further deposed that he took the deceased to

Sadar Hospital and when they crossed Saraiya bazaar, his father was

dead. This witness (PW 1) has disclosed the reason behind the

occurrence to be the land dispute. This witness (PW 1) has identified

accused Ram Bihari as Rajesh in the dock.

29. In the cross examination, this witness (PW 1) has

deposed that his father was not accused in any criminal case

(paragraph 5), he had shown ignorance about the involvement or

custody of his father in connection with the murder case of Bagharia

Dome (paragraph 6) and has also denied the existence of any case

with the accused persons (paragraph 7). In paragraph 8 of his

deposition, this witness (PW 1) has deposed that the dalaan was

surrounded by all sides and he came out of this house after hearing

hulla covered he did not hear the sound of firing. In paragraph 8, this

witness (PW 1), in one breath has deposed that he could not say

whether any orchestra was there in the marriage ceremony of family

members of his close door neighbour, Tarak Tiwary and on the other

breath, he has deposed that orchestra had come in the baraat of

Tarak Tiwary and sound of mike was coming. This witness (PW 1), in

paragraph 10, has deposed that while they were crossing

Krishnagarh Police Station, his father was alive and in paragraph 11,

this witness has deposed that no one had gone to the Police Station

to inform about the occurrence. This witness (PW 1), in paragraph 16, Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

has deposed that his father had eaten only one litti and there was

only one chowki in the dallan and his father was sitting on the chowki

towards north and there was no room available for anyone to sit in

front of his father and if anyone had to sit, he could sit behind his

father and in paragraph 17, this witness (PW 1) has further deposed

that bullet was fired from a distance of 4-5 steps and neither he nor

his brother (PW 6) had raised alarm after bullet was fired (Paragraph

18). This witness (PW 1) has denied the suggestion of the defence

that he was not present at the place of occurrence, and someone

from the baraat had killed his father due to dozens of enmity and this

witness has shown his ignorance about the pending case of land with

the accused persons.

30. PW 2, Dhananjay Singh, nephew of the deceased has

deposed that the occurrence took place on 08.03.02007 at about

08:30 pm, in the evening, when he was coming from Tribhuwani

village and he heard the sound of firing and when he reached at his

dalan, he saw the accused persons, armed with guns, fleeing way

towards north and then east. This witness has further deposed that

when he reached the place of occurrence, Pawan (PW 6) told him that

Rajesh Yadav shot his father by means of a country-made pistol at

the exhortation of Raj Kumar Yadav and he saw the deceased under

the chowki in injured condition and he, along with others, took the

deceased to Ara for treatment where the doctor declared him dead.

This witness has also disclosed the reason behind the occurrence to

be the land dispute for which case has been instituted. Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

31. In the cross examination, this witness (PW 2) has

deposed, in paragraph 6, that he was an accused in Sessions Trial No.

51 of 2012, relating to murder or Rameshwar Yadav and in

paragraphs 7 and 8, he has deposed that he was not aware as to

whether the deceased was accused in the cases relating to murder,

dacoity, attempt to murder etc and he denied that there were eight

cases pending against the deceased in Barhara Police Station and one

case at Ara Nawada Police Station. This witness (PW 2) further

deposed that he had heard the voice of only one firing and saw the

accused persons fleeing from a distance of 10-15 steps. This witness

(PW 2), in paragraph 15, has deposed that he heard the sound of

firing from a distance of 50-60 steps and he heard the sound of firing

from south-east direction. This witness has claimed, in paragraph 18

(sic. 8), that he was the first person to reach the place of occurrence

and after him hundreds of people came there, but he has shown his

ignorance to the fact as to whether anyone tried to chase the

accused persons or not. This witness (PW 2), in paragraph 13, has

deposed that though he was present with the informant (PW 6) on

the way to the hospital and also in the hospital, but he did not know

at what time, the fardbayan of Pawan (PW 6) was recorded. This

witness (PW 2) has denied the suggestion of the defence of the false

implication.

32. PW 3, Satya Narayan Singh (claimed to be an eye-

witness to the occurrence), has deposed that the occurrence took

place on 08.03.02007 at about 08:30 pm, in the evening, when he was

at the roof of his home, which is situated towards north-east to the Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

door of the deceased, and he (PW 3), along with his brother (PW 4)

were talking to each other from the roofs of their respective houses

and he saw a lantern burning at the door of deceased. This witness

(PW 3) further deposed that Rajesh Yadav and Raj Kumar Yadav came

and started talking to the deceased who was sitting on the chowki

and Kamta Yadav, Suresh Yadav, Ram Bihri Yadav, Dineshwar Yadav,

Manoj Yadav were standing, armed with guns, outside the dalan, at

that time the deceased was eating. This witness (PW 3) has further

deposed that in course of talking, Raj Kumar Yadav told Rajesh Yadav

shot the deceased, on which Rajesh Yadav took out a country-made

pistol from his waist and shot at the chest of the deceased. This

witness (PW 3) has further deposed that Pawan (PW 6) , son of the

deceased, was standing beside his father, and this witness, along

with the informant raised alarm, and then the accused persons

succeeded in fleeing away towards east and then north. This witness

has further deposed that when he reached the dalan, PW 6, PW 1 and

PW 2 were at the place of occurrence and the deceased had fallen on

the earth under the chowki and blood was oozing out of his chest

and they took the deceased to Sadar Hospital, but the deceased died

on the way and doctor declared him dead in the hospital.

33. In the cross examination, this witness (PW 3) has

deposed, in paragraphs 6 and 7, that he had neither seen before any

armed person at the door of the deceased nor had asked from the

persons carrying arms as to where they were going. This witness (PW

3), in paragraph 3, has deposed that he and PW 4 were sitting on the

roof in front of each other and the dalan of the deceased was not Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

visible from the roof of this witness (PW 3) and further he (PW 3) and

PW 4 did not see on the roof of any other house. This witness (PW 3),

in paragraph 4, has deposed that the generator lights were on and he

had seen the persons coming to the dalan of the deceased from

north. This witness, in paragraph 5, has deposed that three persons

were carrying arms and Rajesh Yadav and Raj Kumar Yadav were

empty handed and rest of the accused were 25-30 yards behind

Rajesh Yadav and Raj Kumar Yadav. This witness, in paragraph 8, has

deposed that there was no case pending of 144/145 of the Code of

Criminal Procedure between the deceased and his sons and the

accused persons and in paragraph 9, this witness (PW 3) has admitted

dispute of land of the deceased with the accused persons and also

admitted, in paragraph 10, about the involvement of the deceased in

a murder case. This witness, in paragraph 17, has deposed that within

ten minutes of the accused persons reaching the place of occurrence,

he heard the sound of firing and was sure that the firing was made in

the dalan of the deceased. This witness, in paragraph 18, has

deposed that he and PW 4 reached the place of occurrence raising

hulla and PW 1 and PW 6 were also making hulla and within five

minutes, hundreds of people reached there. This witness, in

paragraph 20, has claimed to have seen the bullet hitting the chest of

the deceased. This witness, in paragraph 27, has denied the

suggestion of the defence of false deposition. This witness (PW 3), in

paragraph 30, has deposed that when he reached the dalan, PW 6,

PW 1 and PW 2 were present there from before and after hulla,

Satyendra (PW 4), , Vijay Singh, Awadh Singh, and many other persons Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

of the village came. In paragraphs 31 and 32, this witness has

disclosed the criminal antecedent of the deceased. This witness, in

paragraph 36, has denied that he is a party to the case of 144/145 of

the Code of Criminal Procedure and has also expressed his ignorance

about the accused persons being the party to that case. This witness,

in paragraph 38, has deposed that the accused persons were talking

to the deceased by standing in front of the deceased. Further, in

paragraph 40, this witness (PW 3) has admitted that nobody had

informed the police and they directly went to Sadar Hospital. This

witness, in paragraph 42, has denied the suggestion of the defence

of false deposition.

34. Closely on the heels of PW 3, Satyendra Singh (PW 4)

has deposed in his examination-in-chief. In Cross-examination, this

witness (PW 4), in paragraph 3, has deposed that his house is situated

south to the house of PW 3 and the main exit gate of his house is

towards east and there is a small gate towards west. This witness, in

paragraph 5, has deposed that the shamiyan for the marriage

ceremony in the house of Tarak Tiwary was fixed towards south of his

house (which is south to the place of occurrence) and he was not able

to see the Shamiyana, but was able to see the roof of the house of

the deceased. This witness, in paragraph 6, has deposed that he and

PW 3 is accused in the murder of Rameshwar Yadav. This witness, in

paragraph 7, has deposed that while talking to his brother (PW 3),

their faces were either towards east or west. This witness has

deposed that accused were not used to come to the house of the

deceased. This witness, in paragraph 11, has shown his ignorance Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

about the case between the deceased and the accused persons

regarding land and in paragraph 12, he deposed that he, his brother

(PW 3) along with 50 persons were first party and the accused side

were the second party in the case of 145 of the Code of Criminal

Procedure, but this witness has denied that due to that case, the

accused persons used to visit the deceased. This witness, in

paragraph 19, claimed to have seen litti and chokha in the plate of

the deceased and further, in paragraph 20, he deposed that the faces

of Rajesh and Raj Kumar were towards east; whereas the face of the

deceased was towards north. This witness, in paragraph 25, has

deposed that he had seen the occurrence. This witness, in paragraph

35, has confirmed that the deceased was eating litti and chokha at

the time of occurrence and has further denied the suggestion of the

defence about false implication.

35. PW 5, Vijay Bahadur Singh, has deposed in his

examination-in-chief that he reached the place of occurrence after

hearing the sound of firing and saw 6-7 persons fleeing and it was

PW 6 who disclosed him that on the exhortation of Raj Kumar, Rajesh

Yadav had fired from country-made pistol and Kamta Yadav, Suresh

Yadav, Dineshwar Yadav, Ram Bihari Yadav were fleeing resorting to

firing and someone brought a jeep from the baraat and they took the

deceased to the hospital and when they reached Saraiya, the

deceased died and at the hospital, the doctor declared him dead. This

witness has put his signature of the inquest report and also on the

First Information Report.

Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

36. This witness (PW 5), in his cross-examination, has

deposed that he reached the place of occurrence after hearing the

sound of firing and before him, there were 10-15 persons present at

the place of occurrence and he saw a cloth tied on the wound of the

deceased and the deceased was in the fallen condition. In paragraphs

11 and 12, this witness has disclosed that he is an accused in the case

of murder of Nirmal Yadav and Raj Kumar is a witness in that case.

This witness, in paragraph 13, has deposed that he, along with

others, was first party in the case of 144/145 of the Code of Criminal

Procedure. However, this witness has denied the suggestion of the

defence that he was falsely deposing in this case due to the fact that

Raj Kumar was a witness in the case of murder of Nirmal Yadav. This

witness, in paragraph 27, has accepted that he is closely related to

the deceased and in paragraph 28, he disclosed that the deceased

was having arm license for his security and PW 3 and PW 4 had also

arm licence. This witness, in paragraph 29, has denied the suggestion

of the defence about false implication.

37. PW 8, Saligram Singh, was the Officer-in-Charge of

Krishnagarh Police Station, on 08.03.2007, i.e. the date of occurrence.

In his deposition, this witness has claimed to have identified the hand

writings of the S.I. of Police Moti Choudhary, on the fardbayan of the

informant (PW 6), formal First Information Report in the hand writing

of the Officer-in-Charge of Barhara Police Station and inquest report

in the hand writing of S.I., Town Police Station, Ara. This witness has

described the area of the place of occurrence in paragraph 4 and in

paragraph 6, this witness has deposed that he had seized, in Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

presence of witnesses, the blood-stained earth, blood-stained

gamacha and pillet.

38. This witness (PW 8), in his cross-examination, has

deposed that though he had seized the blood-stained earth, blood-

stained gamcha and pellet of bullet and prepared a seizure list, but

he had not mentioned the name of the witnesses before whom the

seizure list was prepared and the seizure list has also not been

annexed in the case diary. This witness has further deposed that he

had not mentioned as to what happened of the seizure list so

prepared by him and has further admitted that he had not sent the

seized materials for examination. This witness, in paragraph 23, has

deposed that Satya Narayan Singh (PW 3) had not stated before him

that he and PW 4 were talking to each other on the roofs of their

respective houses. In paragraph 24, this witness has deposed that

Satyendra Singh (PW 4) had not stated before him that fire was shot,

he heard hulla and Pawan (PW 6) as well as Sanjay (PW 1) were crying

and the informant (PW 6) disclosed him that Rajesh Yadav had fired

on the chest of the deceased. In paragraph 25, this witness has

deposed that Vijay Bahadur Singh (PW 5) had not stated before him

that he (PW 5) had seen 6-7 persons fleeing towards north of the

house of the deceased and the deceased as still alive when he was

fallen under the chowki and a jeep was brought from the baraat and

the deceased was carried in the jeep and while they cross village

Saraiya, the deceased died. This witness, while describing the place

of occurrence, has deposed that there were two chowkis in the dalan

of the deceased.

Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

39. After carefully scrutinizing the evidence, both oral and

documentary, adduced on behalf of the parties and after having

heard learned Counsel for the parties, I have come to the conclusive

finding that the prosecution has miserably failed to prove the

charges levelled against the appellants, beyond all reasonable doubt.

Not only this, the oral evidence adduced on behalf of the prosecution

is not corroborating with the medical evidence inasmuch as the

witnesses have consistently deposed that the deceased had eaten

litti and this theory is being disbelieved by the medical evidence

where the doctor (PW 7) has found, while conducting post mortem

examination on the dead body of deceased Parhuram Singh, the

stomach empty.

40. PW 6 (Pawan kumar Singh), in his evidence, has

deposed that there was only one chowki in the dalan; whereas the

Investigating Officer has found two chowkis at the place of

occurrence. PW 6, in his entire deposition, has not disclosed as to

how he identified the accused persons, though he deposed that he

had visited the village of the accused persons for only 1-2 times and

that too, two-three years prior to the date of occurrence. This

witness (PW 6) has deposed that his injured father was carried to the

jeep by PW 1, PW 3 and PW 4, but none of these witnesses (PW 1, PW

3 and PW 4) have deposed so. This witness has deposed that

generator light was on in the house of Tiwary ji, which is just north to

the dalan of this witness. This witness, at no point of time, during the

entire evidence, has deposed that any person had even tried to catch

the accused persons while they were fleeing despite the fact that Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

just north to the house of the deceased, there was a shamiyan fixed

for the marriage ceremony of the members of Tarak Tiwary and more

than hundreds of people were present there. It is also unbelievable

that when there were more than 10 persons in the jeep, including the

deceased, going to Ara Sadar Hospital and were crossing from the

Police Station, nobody had bothered to inform the police about the

occurrence. This witness (PW 6) has deposed that except Rajesh

Yadav and Raj Kumar Yadav, all other accused persons were standing

near the stairs, which was just close to the dalan; PW 3 has deposed

that other accused persons were standing 25-30 yards away from the

dalan. It is also unbelievable that when the accused persons, armed

with gun and pistol, reached to the house of the deceased, neither

the deceased nor the informant (PW 6) raised any suspicion; rather

this witness (PW 6), in paragraph 12 of his deposition, has stated that

the accused persons had not come with the intention to kill his father

nor he deposed that hot talks had taken place between the accused

persons and the deceased. It is also unbelievable that though this

witness, along with his brother (PW 1) had tied a gamacha around the

chest of the deceased, he did not get any blood stain on any part of

his body, though blood was oozing out of the wound of the

deceased. This witness (PW 6) had, in his entire deposition, had not

stated that he raised any alarm when Rajesh Yadav shot this father.

41. PW 1 (Sanjay Singh), brother of the informant (PW 6)

and son of the deceased, has failed to identify the accused Ram

Bihari and he identified Ram Bihari as Rajesh. This witness, in his

deposition, has denied the existence of any criminal case against his Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

father, though from going through the evidence adduced on behalf

of the prosecution, it is crystal clear that the deceased was accused

in many criminal cases. This witness, in paragraph8, has deposed that

he reached the place of occurrence after hearing hulla and he had

not heard the sound of firing, though, the informant (PW 6) had

never deposed that he raised hulla. This witness has further deposed

that there was no space in front of the chowki on which the deceased

was sitting and if anyone has to sit, he would have to sit behind the

chowki, which is contrary to the case of the prosecution inasmuch as

it is the consistent case of the prosecution that Rajesh and Raj Kumar

were sitting in front of the deceased. This witness has deposed, at

paragraph 18, that after firing, neither he nor his brother (PW 6) had

raised alarm, which is also against the natural behavior of any person.

This witness, in paragraph 22, had deposed that he had shown the

blood stained earth and blood stained gamacha of his deceased

father to the Investigating Officer; however this witness had not

deposed that the Investigating Officer had ever collected the same;

whereas the Investigating Officer, in paragraph 6, had deposed that

he collected the blood stained earth, blood stained gamacha and

pillet from the place of occurrence. This witness has also denied the

existence of any case of 144/145 of the Code of Criminal Procedure,

with him and the accused persons; whereas from the exhibited

documents adduced by the defence, it is clear that a case, under

Section 145 of the Code of Criminal Procedure, 1973 is pending

between the parties.

Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

42. PW 2 (Dhananjay Singh) has deposed that he heard the

sound of firing from a distance of 50-60 yards and the sound of firing

came from south east. It is unbelievable that when PW 1, who was

inside the house at the time of occurrence, did not hear the sound of

firing then how this witness (PW 2) had heard sound of firing from a

distance of 50-60 yards away from the place of occurrence and that

too, when generators were on just north to the place of occurrence.

43. PW 3 (Satya Narayan Singh) and PW 4 (Satyendra Singh)

have claimed in their deposition that they reached the place of

occurrence on hearing hulla, though it is discussed above that neither

the informant nor his brother had raised hulla. These two witnesses

have deposed that they saw Rajesh firing at the deceased from the

roof of their houses, which is also not believable as according to

them, the dalan was covered and only open space was towards north

of the dalan and the deceased and Rajesh were inside the dalan. PW

3, in paragraph 6, has deposed that before the date of occurrence, he

had not seen any armed person at the door of the deceased and on

the date of occurrence also, while seeing a number of persons

holding arms, he did not bother to come down and enquire about the

presence of armed persons. PW 4 , in paragraph 7, has deposed that

while talking to his brother (PW 3), their faces were either towards

east or west and the dalan was west to their roofs. PW 4, in

paragraph 20, has deposed that the faces of Rajesh and Raj Kumar

were towards east; whereas the face of the deceased was towards

north, which is also contrary to the case of the prosecution. Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

44. It is also not clear from the deposition of the

Investigating Officer (PW 8) as to how he identified the hand-writings

of the police officials of the Ara Town Police Station, who had

recorded the fardbayan of Pawan Kumar Singh (PW 6) and prepared

inquest report when he was not in a position to depose the name of

the police officer who had prepared inquest report.

45. From the evidence discussed above, it is evident that

the eye-witnesses were not consistent in their deposition and there

are inherent contradictions in their statements and the Investigating

Officer (PW 8) has also contradicted the witnesses on material

particulars and further as per the medical evidence, no food was

found in the stomach of the deceased and the doctor (PW 7) has

opined that a dead person cannot digest any food; whereas the

specific case of the prosecution is that the deceased was having his

last meal and had eaten litti, and the stomach of the deceased was

found empty by the doctor (PW 7), I find favour with the argument

advanced by learned Senior Counsel and the case relied upon by him

on this point, in the case of Moti (supra) and accordingly, I hold that

the prosecution has failed to prove the time of occurrence beyond all

reasonable doubt.

46. From the consistent case of the prosecution, it is

apparent that the bullet was fired by appellant Rajesh Yadav from a

short distance of about 4-5 steps, but the medical evidence does not

support this version of the prosecution inasmuch as no blackening

and charring was found near the would of the deceased, which is

bound to occur in case of firing from a close range. Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

47. The prosecution has also failed to clarify the

discrepancy between the medical evidence and the oral evidence and

there is serious doubt as to the time of the occurrence and manner

of the occurrence.

48. Apart from the above, there is inconsistency in the

deposition of the prosecution witnesses, who claimed to be the eye-

witnesses of the occurrence and their evidence has also been belied

by the medical evidence on material factor and further the

prosecution has failed to have clarified the discrepancy between the

statement of the eye-witnesses, in my opinion, I doubt the presence

of the eye-witnesses at the time of the occurrence and their

narration to the incident becomes doubtful.

49. In the backdrop of what have been discussed and

pointed out above, I am firmly of the view that the prosecution has

failed, in the present case, to bring home the charges against the

appellants beyond reasonable doubt and that the appellants were

entitled to be given benefit of doubt.

50. In the result, these appeals are allowed. The impugned

conviction of the appellants and the sentences passed against them

by the judgment and order, under appeal, stand, accordingly, set

aside. All the appellants are held not guilty of the offences, which

they were charged with, and they are acquitted of the same under

benefit of doubt.

51. The appellants namely, Dineshwar Yadav, Suresh Yadav

and Kamta Yadav [Criminal Appeal (DB) No. 919 of 2014], appellant

Ram Bihari Yadav [Criminal Appeal (DB) No. 929 of 2014] and Patna High Court CR. APP (DB) No.135 of 2015 dt.18-08-2021

appellant Raj Kumar Yadav [Criminal Appeal (DB) No. 938 of 2014] are

on bail. Accordingly, they are discharged from the liabilities of their

bail bonds furnished earlier in this case before the learned Trial

Court.

52. Since appellant Rajesh Yadav [Criminal Appeal (DB) No.

135 of 2015] is in jail custody, he is directed to be set at liberty

forthwith unless he is required to be detained in connection with any

other case.

                                                                          ( Anil Kumar Sinha, J.)


Ashwani Kumar Singh, J.:              I agree.

                                                                   (Ashwani Kumar Singh, J.)

Prabhakar Anand/-

AFR/NAFR                          AFR
CAV DATE                       14-07-2021
Uploading Date                 18-08-2021
Transmission Date              18-08-2021