Patna High Court
Gupteshwar Sharma vs The State Of Bihar on 25 August, 2021
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.778 of 2015
Arising Out of PS. Case No.-38 Year-2010 Police Station- RAJPUR District- Rohtas
======================================================
Anil Tiwary, son of Dharmraj Tiwary, resident of Village- Suara, Police
Station- Baghaila, District- Rohtas at Sasaram.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 714 of 2015
Arising Out of PS. Case No.-38 Year-2010 Police Station- RAJPUR District- Rohtas
======================================================
Gupteshwar Sharma, son of Late Butai Sharma, resident of Village-
Chitbisao, P.S. Rajpur, District- Rohtas.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 778 of 2015)
For the Appellant : Mr. A. K. Thakur, Advocate
Mr. Raghunandan Kumar Singh, Advocate
For the Respondent-State: Dr. Mayanand Jha, APP
(In CRIMINAL APPEAL (DB) No. 714 of 2015)
For the Appellant : Mr. Vikram Deo Singh, Advocate
Mr. Sada Nand Roy, Advocate
For the Respondent-State: Mr. Mayanand Jha, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
and
HONOURABLE MR. JUSTICE ANIL KUMAR SINHA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)
Date: 25-08-2021
The appellants in these two appeals have
challenged the common judgment of conviction dated 8 th July,
2015 and the order of sentence dated 13th July, 2015 passed by
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
the learned 7th Additional Sessions Judge, Rohtas at Sasaram in
Sessions Trial No.384 of 2011.
2. By the aforesaid judgment dated 08th July, 2015,
the appellants have been convicted for the offences punishable
under Section 302/ 34 of the Indian Penal Code (for short 'IPC')
and section 27 of the Arms Act.
3. After hearing the convicts on the point of sentence,
vide consequential order dated 13th July 2015, the Trial Court
sentenced them to undergo rigorous imprisonment for life and a
fine of Rs.10,000/- each for the offence punishable under
Sections 302/34 of the IPC and in default of payment of fine, to
undergo imprisonment for an additional period of six months
and rigorous imprisonment for three years and to pay a fine of
Rs.1,000/- for the offence punishable under Section 27 of the
Arms Act and in default of payment of fine, to undergo
imprisonment for an additional period of one month. The trial
court directed that both the sentences shall run concurrently.
4. The Sessions Trial, in which the impugned
judgment and order were passed, relates to the First Information
Report (for short 'FIR') that had been registered at 7:45 a.m. on
1st April 2010 in Rajpur Police Station under Section 154 of the
Code of Criminal Procedure (for short 'CrPC') in respect of an
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
incident that had occurred at about 4:00 p.m. on 31st March
2010 at Chitbisao situated at a distance of 18 kilometres from
the police station.
5. The FIR, giving rise to the Sessions Trial, was
registered on the basis of the fardbeyan of one Ramnath Singh
Yadav, son of Ramayan Singh Yadav, which was recorded by
Chandra Narayan Jha, Station House Officer (for short 'SHO')
Rajpur Police Station on 31st March 2010 at 08:15 p.m.
6. In his fardbeyan, Ramnath Singh Yadav stated that
on 31st March 2010 at about 4:00 p.m., he along with his
brothers Umesh Singh Yadav (deceased), Rajesh Singh, Udit
Narayan, nephew Jitendra Singh and mother Gangotri Devi had
gone to the Ahar (canal) to bring the pump set machine. At that
place, Anil Tiwari was sitting on a chowki from before and, at
some distance, his co-villager Gupteshwar Sharma and
Sudarshan Sharma were also sitting. When he and his family
members went to the aforesaid place, Anil Tiwari started talking
to him. He along with others brought the pump set near the
Ahar and kept it at his residence. Thereafter, he again went to
the field for some work. In the meantime, Anil Tiwari came
armed with a gun and fired twice at his brother Umesh Singh
Yadav causing injury to him as a result of which, he fell and
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
succumbed. He ran away towards the place of occurrence, but in
the meantime, Sudarshan Sharma fired from his country-made
pistol, which fortunately did not hit anyone. Thereafter, Anil
Tiwari, Sudarshan Sharma and Gupteshwar Sharma ran away
towards village-Suara. He further stated that 3-4 days ago, his
deceased brother Umesh Singh Yadav was coming from the
south towards his house and when he reached near the house of
Janardan Pandey, Pramod Pandey and Janardan Pandey who
were standing there from before fired on him. His brother came
running to his house. However, he did not disclose the incident
to him nor did he file any written report in this regard. He stated
that Anil Tiwari, a resident of village-Suara, used to visit the
house of the accused persons quite frequently. He stated that a
few months ago a child of the village was kidnapped. His co-
villager Sudarshan Sharma was named accused in that case and
was arrested by the police. Sudarshan Sharma and his brother
always suspected that it was the deceased Umesh Singh Yadav,
who was responsible for the arrest. He alleged that it was the
motive for the killing of his brother Umesh Singh Yadav by the
accused persons.
7. On the basis of the aforesaid fardbeyan of Ramnath
Singh Yadav, Rajpur P.S. Case No.38 of 2010 was registered
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
under Sections 302/120B/34 of the IPC and 27 of the Arms Act
against five persons, namely, Anil Tiwari, Gupteshwar Sharma,
Sudarshan Sharma, Janardan Pandey and Pramod Pandey and
the investigation of the case was taken up by the SHO Chandra
Narayan Jha himself.
8. On completion of the investigation, the
Investigating Officer (for short 'I.O.') submitted charge-sheet
No.49 of 2010 dated 30th July 2010 in the court of Sub
Divisional Judicial Magistrate, Bikramganj under Sections
302/34 of the IPC and 27 of the Arms Act against the accused
Gupteshwar Sharma and Sudarshan Sharma and kept the
investigation open with regard to the other accused persons
named in the FIR
9. On receipt of the charge-sheet, after taking
cognizance of the offence, the learned Sub Divisional Judicial
Magistrate, Bikramganj complied with the requirements of
Section 207 of the CrPC and committed the case of the charge-
sheeted accused persons, namely, Gupteshwar Sharma and
Sudarshan Sharma to the Court of Sessions vide order dated 18 th
August 2011, which was numbered as Sessions Trial No.384 of
2011.
10. Subsequently, the I.O. submitted a supplementary
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
charge-sheet in the court of Sub Divisional Judicial Magistrate
finding the case to be true as against the FIR named accused
Anil Tiwari under Sections 302 read with 34 of the IPC and 27
of the Arms Act vide charge-sheet No.49 of 2011 dated 12 th
November 2011.
11. However, the two other FIR named accused
persons, namely, Janardan Pandey and Pramod Pandey were not
sent up for a trial, as their culpability in the offence was not
found true during the investigation.
12. Consequently, after complying with the
requirements of Section 207 of the CrPC, the case of the
accused Anil Tiwari was also committed to the Court of
Sessions for trial, vide order dated 18 th January 2012 passed by
the learned Sub Divisional Judicial Magistrate, Bikramganj,
which was numbered as Session Trial No.49 of 2012.
13. After hearing the parties, on the point of charge, the
Trial Court, vide order dated 18th January, 2012 passed in
Sessions Trial No.384 of 2011, framed charges under Sections
302/134 of the IPC and 27 of the Arms Act against the accused
Sudarshan Sharma and Gupteshwar Sharma to which they
pleaded not guilty and claimed to be tried.
14. Similarly, after hearing the parties, on the point of
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
charge, the Trial Court, vide order dated 2nd April 2012 passed in
Sessions Trial No.49 of 2012, framed charges under Sections
302/34 and 27 of the Arms Act against the accused Anil Tiwari
to which he pleaded not guilty and claimed to be tried.
15. Since, both the Sessions Trials arose out of the
same FIR, vide order dated 19th September 2012, the Trial Court
directed to amalgamate Sessions Trial No.49 of 2012 with
Sessions Trial No.384 of 2011. Thus, both the Sessions Trials
were clubbed together.
16. During the trial, the accused Sudarshan Sharma
absconded. In spite of his bail bonds being cancelled and the
processes being issued against him, he could not be produced
before the Court. Hence, he was declared a proclaimed offender
and his trial was split up and the Trial Court proceeded with the
trial of the accused Anil Tiwary and Gupteshwar Sharma.
17. The witnesses examined on behalf of the
prosecution during the trial in the present case can be classified
into four categories. The first category consists of those, who
claim to have witnessed the occurrence. They are Udit Singh
(P.W.1), brother of the informant and the deceased; Gangotri
Devi (P.W. 3), mother of the informant and the deceased; and,
Ram Nath Singh Yadav (P.W. 5), brother of the informant. The
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
second category is of the witnesses, who were earlier hearsay
and, in the court, became eyewitnesses. They are Jitendra Singh
(P.W. 2); Ramayan Singh (P.W. 4); and, Rajesh Singh (P.W. 7).
The third category is of a formal witness. It is Babu Nandan
Singh (P.W. 6), who falls in the third category. He has simply
proved his signature on the inquest report of the deceased
Umesh Singh Yadav. The fourth category is of the official
witnesses, who are Dr. Sidheshwar Prasad Singh (P.W. 8), who
held postmortem examination on the body of the deceased
Umesh Singh Yadav; Arun Kumar (P.W. 9), the second I.O.,
who submitted charge-sheet and Chandra Naarayan Jha
(P.W.10), who recorded the fardbeyan and investigated the case
first before (P.W.9) Arun Kumar took over the charge of the
investigation.
18. Apart from the oral testimony of the aforesaid ten
witnesses, the prosecution proved the following documents:-
I. Exhibit 1 The identification of signature by
Ramayan Singh (P.W.4) on the
carbon copy of inquest report of the
deceased Umesh Singh Yadav.
II. Exhibit 1/1 The identification of signature
made by Babunandan Singh on the
carbon copy of the inquest report of
the deceased Umesh Singh Yadav.
III. Exhibit 2 The identification of his signature
by the informant Ramnath Singh
(P.W. 5) on the fardbeyan.
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
IV. Exhibit 2/1 The identification of his signature
by the witness Ramayan Singh
(P.W. 4) on the fardbeyan.
V. Exhibit 2/2 The identification of his signature
by the witness Babunandan Singh
on the fardbeyan.
VI. Exhibit 2/3 Fardbeyan.
VII. Exhibit 2/4 Identification of signature of SHO
Rajpur.
VIII. Exhibit 2/5 Pagination made by the SHO
Rajpur over the fardbeyan.
IX. Exhibit 3 The post-mortem report of the
deceased Umesh Singh Yadav.
X. Exhibit 4 Inquest report of the deceased
Umesh Singh Yadav.
19. Ramnath Singh (P.W. 5) corroborated the
statement made by him in his fardbeyan in his examination-in-
chief. He stated that Umesh Singh Yadav went to attend the call
of nature towards Ahar and within five minutes, he heard hulla
of cutting Godi (ridge for stopping the flow of water) and when
he along with others proceeded towards Ahar, he saw the
occurrence. He stated that he saw Anil Tiwari firing two shots
causing injury to Umesh in the back of his waist and the back of
his neck. He further stated that after they fled away, he reached
the place of occurrence and found his brother lying dead. He
stated that he gave his fardbeyan to the police near Ahar, which
was read over and explained to him and finding the contents to
be true, he put his signature over it. He stated that his father and
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
his maternal uncle Babunandan Singh put their signature over
the fardbeyan. According to him, the motive for the occurrence
was that earlier a co-villager was abducted regarding which a
police case was instituted. In that case, the accused Sudarshan
Sharma was arrested. He and his brother suspected that it was
the deceased Umesh Singh Yadav, who was instrumental in
getting Sudarshan Sharma arrested. It was because of that
suspicion, they killed his brother Umesh Singh Yadav.
20. In cross-examination, he stated that in the
fardbeyan he had disclosed that about 3-4 days before the
incident, one Janardan Pandey and Pramod Pandey had opened
fire, but fortunately, the deceased did not sustain any injury. He
stated that the police were orally reported about the occurrence.
He admitted that deceased Umesh was sent to prison several
times and was also sent to Tihar Jail. He stated that Anil Tiwari
is a resident of village-Suara, which is situated at a distance of 2
kilometers from his village. He admitted his acquaintance with
the uncle of Anil Tiwari, namely, Munmun Tiwari. According to
him, Munmun Tiwari has relations in his village. He further
admitted that prior to the occurrence, the brother and sister-in-
law (Bhabhi) of Anil Tiwary were killed, but he expressed his
ignorance about Munmun Tiwari having been made accused in
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
that case. He stated that the place of occurrence is on the
western side of the village at a distance of 100 yards and the
house of Ramnath Sharma is the nearest one from there. He
further stated that even before the arrival of the police, they
shifted the dead body from the western side of the Ahar to the
eastern side with the aid of family members. He stated that he
had shown the place where the dead body was initially lying to
the police and told them that they had shifted the body from the
actual place where it was lying to the eastern side of the Ahar.
He stated that from the time of occurrence till the arrival of the
police, all the family members remained present and no one
went to his house. He further stated that none of the family
members went to the police station. According to him, at about
8:00 p.m., the statement of all the family members was recorded
by the I.O. He further stated that after three days of the
occurrence, the police came to his village. He explained that the
accused Anil Tiwari had fired shots from a distance of about 3-4
yards. The first firing made by him caused injury in the waist of
the deceased Umesh and the second firing made by him caused
injury in the back of his neck. He stated that from the place of
occurrence, neither empty cartridges nor any other incriminating
article were seized by the I.O. He further stated that even before
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
the police could arrive at the place of occurrence, several
villagers had come at the place of occurrence, but he could not
disclose their name. He denied the defence suggestion that the
occurrence did not take place in the manner described by him.
He denied that the deceased Umesh was a veteran criminal and
was killed by some unknown criminals at a different place. He
also denied the defence suggestion that the case has been
instituted at the instance of one Munmun Tiwari, who is on
inimical terms with the accused Anil Tiwari.
21. Udit Singh (P.W. 1) corroborated the prosecution
case as narrated in the fardbeyan of the informant in his
examination-in-chief. In cross-examination, he has stated that
when he went to the place of occurrence, he found the deceased
lying on the ground inside the pind of the Ahar. He stated that
the deceased Umesh Singh Yadav was his own uncle and the
place of occurrence is at a distance of 1 kilometre from his
village. He stated that he and others went to the place of
occurrence and saw the dead body in the pind of Ahar. He could
not recall in which position the body of the deceased was lying.
He saw the accused Anil Tiwari fleeing away after killing the
deceased from the place of occurrence. He admitted that there
was no pre-existing enmity between his family and the accused
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
Gupteshwar Sharma and Sudarshan Sharma. He admitted that in
the field, the farmers usually come to keep watch over their
field. He explained the boundary of the place of occurrence. He
stated that in the north and south from the place of occurrence,
there is Ahar and in the east and west, the field of farmers
exists. He admitted that the deceased Umesh Singh Yadav was
accused in cases of kidnapping, dacoity and murder. He further
admitted that the aunt and the nephew of the accused Anil
Tiwari were killed after the occurrence. He stated that he does
not know as to whether Munmun Tiwari has been made accused
in the case of murder of the aunt and the nephew of the accused
Anil Tiwari. He denied the defence suggestion that he is
deliberately suppressing the real facts. He expressed his
ignorance about the fact that the deceased was a friend of the
aforesaid Munmun Tiwari. He stated that blood had fallen on
the ground at the place of occurrence and some blood had also
got mixed in water collected in the Ahar. He stated that part of
the body of the deceased was outside the water and part of the
body was inside the water collected in the Ahar. He stated that
the police reached the place of occurrence on the information
given by someone at about 5:00-5:30 p.m. He admitted that he
did not put signature on any paper. According to him, the police
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
took the body to the police station and his father and brother had
accompanied the police. After the postmortem examination was
held, they had returned to the village. He denied the defence
suggestion that the deceased Umesh was killed by unknown
criminals in a gang war and the accused persons have been
implicated falsely at the instance of the aforesaid Munmun
Tiwari. He also denied the defence suggestion that the dead
body was not found lying near the place of occurrence.
22. Gangotri Devi (P.W. 3) also corroborated the
prosecution case as narrated in the fardbeyan of the informant in
her examination-in-chief. In cross-examination, she admitted
that the deceased Umesh was sent to jail earlier. However, she
could not tell in which case he was sent to jail. She also
admitted that the deceased Umesh was earlier sent to jail in
Delhi. She stated that the police recorded her statement a day
after the incident. She stated that near the water collected in the
Ahar, Umesh had sustained firearm injury and blood had spread
in and around the place of occurrence. She stated that Umesh
had gone to attend the call of nature towards Ahar and
immediately thereafter, she heard the sound of firing. She stated
that she had disclosed to the police that the accused Anil Tiwari
had resorted to two rounds of firing, which caused injuries in the
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
neck and waist of the deceased Umesh. According to her, at the
time of firing, Umesh was at a distance of 1-2 meters from the
assailant Anil Tiwari. She stated that she had fallen on the body
of the deceased and started crying as a result of this, her saree
was drenched with blood. According to her, there were no
bloodstains on the clothes of any other person. She stated that at
the time of occurrence, no other villager was present at the place
of occurrence.
23. Jitendra Singh (P.W. 2) is the nephew of the
deceased. He also corroborated the prosecution case as narrated
in the fardbeyan of the informant in his examination-in-chief. In
cross-examination, he stated that the place of occurrence was at
a distance of 1 kilometer from his house. He and others went to
the place of occurrence and saw the dead body in the Ahar. He
admitted that the height of pind of Ahar is about 10 feet from
the ground level. He stated that the place of occurrence is at a
distance of 80 feet from his land. He further stated that in his
presence the police had arrived at the place of occurrence. Till
the arrival of the police, the dead body of the deceased Umesh
Singh Yadav was not shifted from the place where it was lying.
He stated that he was the first person from whom the I.O. made
inquiry, but he did not take his signature on his fardbeyan. The
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
informant Ramnath Singh gave his statement at the police
station, but he had not gone to the police station. He admitted
that in his presence, no document was prepared at the place of
occurrence. He also admitted that there was no pre-existing
enmity between his family and the family of Sudarshan Sharma
and Gupteshwar Sharma. His attention was drawn towards his
previous statement. However, he denied that he had stated
before the police that he had not witnessed the occurrence
himself and had learnt about it from others. He stated that in his
previous statement made before the police, he had stated that he
had gone to the place of occurrence along with his family
members to bring the pump set machine from the Ahar. He
stated that the police had arrived at the place of occurrence after
sunset, but at that time it was not dark. The police continued at
the place of occurrence for about half an hour and on the next
day, the police arrived at his residence at about 3:00-4:00 p.m.
and recorded the statement of his family members. He admitted
that several cases were pending against his deceased uncle and
he had also gone to jail several times. He denied the defence
suggestion that the offence as alleged had not taken place and he
had deposed falsely before the court. He also denied the defence
suggestion that he did not witness the occurrence and had
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
deposed before the court at the instance of Munmun Tiwari.
24. Ramayan Singh (P.W. 4), father of the deceased as
well as the informant, is an attesting witness to the FIR. He too
corroborated the prosecution case as narrated in the FIR in his
examination-in-chief. He proved his signature on the carbon
copy of the inquest report, which was marked as Exhibit 1. He
also proved his signature on the fardbeyan, which was marked
as Exhibit 2/1. He has not stated that the fardbeyan was
recorded either at Ahar or in the village. He has simply stated
that the inquest report was prepared in his presence, on which,
he put his signature and the police had recorded his statement.
25. In cross-examination, he admitted that at the time
of occurrence, he was at his house and his maternal grand-son
Jitendra (P.W. 2) informed him about the occurrence. Thereafter,
he went to the place of occurrence. He admitted that the police
brought the dead body to the police station where the documents
were prepared. He also admitted that the deceased Umesh Singh
Yadav was sent to jail earlier. He further admitted that the
deceased was also sent to jail in Delhi. He denied the defence
suggestion that the deceased Umesh was killed by some
unknown criminals and at the instance of Pramod, Janardan and
Munmum Tiwari, a false case has been instituted. He further
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
admitted that from his house, the Ahar is situated at a long
distance.
26. Rajesh Kumar (P.W. 7), the brother of the
informant as well as the deceased, has corroborated the contents
of the fardbeyan of the informant in his examination-in-chief. In
cross-examination, he stated that his statement was recorded by
the police on 31st March. He stated that he, Ramnath, Udit
Narayan and Jitendra had shifted the dead body to a distance of
10 feet from the place where it was lying. He admitted that
blood had fallen on their clothes also, but it was not shown to
the police. He denied the defence suggestion that he had not
stated before the police that he had witnessed the occurrence.
He admitted regarding the criminal antecedent of the deceased
and the fact that he was sent to jail several times. However, he
denied that the deceased was a veteran criminal and was killed
in a different manner by some unknown criminals in gang war.
He further denied that the accused persons have been implicated
at the instance of the enemies of the accused Anil Tiwari.
27. Babu Nandan Singh (P.W. 6), maternal uncle of
the informant, is a formal witness. He has proved his signature
on the carbon copy of the inquest report of the deceased Umesh
Singh, which was marked as Exhibit 1/1. In cross-examination,
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
he stated that his village-Chakanwa is situated at a distance of
16-17 kilometres from the place of occurrence. He had gone to
the place of occurrence after hearing about the incident. He
admitted that he did not read the contents of the document on
which he had put his signature. He further admitted that though
he had gone to the police station along with the body of the
deceased, he did not put his signature on any other paper. He
also admitted that the incident did not take place in his presence.
28. Dr. Sidheshwar Prasad Singh (P.W. 8) is the
doctor, who conducted the postmortem examination on the body
of the deceased on 1st April 2010. He stated in his deposition
that at the relevant time, he was posted as Medical Officer at
Sadar Hospital, Saran. He found the following antemortem
injuries on the body of the deceased: -
"(i) abrasion 2"x1" over right forearm;
(ii) lacerated wound 1/2" in diameter,
inverted margin, blackening of skin around
the wound, back of abdominal region left
side at 4th lumbar vertebra level; and
(iii) lacerated wound 1" in diameter, inverted
margin, blackening of skin around the
wound, cavity deep, left scapular region."
29. He stated that the time elapsed since death was
within 12-24 hours and the cause of death was hemorrhage and
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
shock due to the above-mentioned injuries. According to him,
the injury Nos. 2 and 3 were caused by a firearm.
30. In cross-examination, he admitted that abrasion can
be caused only by hard and blunt substances. He further
admitted that he did not find injury on the head or on the neck of
the deceased. He admitted that blackening injury can be caused
when firing would be made from a distance of one meter. He
stated that both the injuries were found on the backside. He
further admitted that he conducted a postmortem examination at
9:30 a.m. and the inquest report was before him at that time. He
admitted that no case number was mentioned on the inquest
report. He admitted that the P.S. Case number was not
mentioned in his postmortem examination report.
31. Chandra Narayan Jha (P.W. 10) stated in his
examination-in-chief that on 31st March 2010 he was posted as
SHO of Rajpur Police Station. He took over the investigation of
Rajpur P.S. Case No.38 of 2010 on the same day. He recorded
the fardbeyan of the informant near the Ahar at village-
Chitbisao. He identified his writing and signature on the
fardbeyan, which were marked as Exhibit 2/3 and 2/4. He also
identified the pagination made by him over the fardbeyan,
which was marked as Exhibit 2/5. He stated that after taking
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
over the investigation of the case, he recorded the further
statement of the informant Ramnath Singh Yadav, inspected the
place of occurrence, which is situated adjacent to the village-
Chitbisao near Ahar. He stated that he did not prepare the
inquest report because of the darkness in the night. He prepared
the inquest report at 6:00 a.m. on 1 st April 2010. He identified
his writing and signature on the carbon copy of the inquest
report of the deceased, which was marked as Exhibit 4. He took
the signature of the witnesses on the inquest report and sent the
body of the deceased for postmortem examination and,
subsequently, obtained the postmortem report. He stated that he
recorded the statement of Udit Singh, Rajesh Singh, Jitendra
Singh, Gangotri Devi, Ram Narain Singh, Haribansh Pandey,
Jagdish Rai, Baliram Mishra, Sapan Singh, Surendra Singh,
Jokhan Sharma, Pintu Singh and Murari Singh during the
investigation. He handed over the charge of the investigation as
he had superannuated on attaining the age of retirement.
32. In cross-examination, he admitted that he had
received information about the occurrence at the police station,
but he did not register any sanha in this regard. He further
admitted that he did not mention anywhere about the receipt of
the information at the police station. He recorded the fardbeyan
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
at about 8:15 p.m. at village-Chitbisao. He did not record the
time when the subsequent statement of the informant was
recorded. He admitted that he did not inspect the place of
occurrence due to darkness in the night. He further admitted that
he did not mention the time when he inspected the place of
occurrence in the case diary. He did not mention the boundary
of the place of occurrence during the investigation of the case in
his diary. He also admitted that he has not mentioned in the case
diary where the body of the deceased was found lying. He
contradicted Rajesh Singh (P.W. 7) by accepting that he did not
disclose before him that he had seen the killing of the deceased.
He admitted that the deceased was a man having criminal
antecedent. He was made accused in cases relating to murder,
loot, assault etc. He contradicted Jitendra Singh (P.W. 2) by
admitting that he did not disclose during the investigation that
he had witnessed the occurrence. He had not disclosed before
him that he had gone together with his family members towards
Ahar to bring a pump set machine. He further admitted that in
his previous statement he had not narrated the incident as
narrated in the fardbeyan. He had not narrated that the accused
Surendra Sharma was apprehended by the police in connection
with the kidnapping of a boy of the village and the accused
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
persons suspected that it was deceased at whose instance the
police had arrested him. He had also not stated that the accused
Anil Tiwari fired two shots causing injuries to Umesh in his
neck and waist. He further stated that he stayed at the place of
occurrence along with the police party for the whole night. He
stated that the body of the deceased was lying at a distance of 5
feet from where the water got collected. He denied the defence
suggestion that he did not inspect the place of occurrence and
the deceased was killed in a different manner. He also denied
the defence suggestion that he falsely instituted the police case
in collusion with the members of the prosecution party.
33. Arun Kumar (P.W. 9) stated in his examination-
in-chief that on 17.06.2010, he took over the charge of the
investigation of Rajpur P.S. Case No.38 of 2010. He stated that
since the statements of witnesses were already recorded by the
P.W. 10 earlier, he submitted a charge sheet before the court
finding sufficient material in the case diary against the accused
persons. In cross-examination, he admitted that in the case diary,
there is no mention of the place of occurrence.
34. After the closure of the prosecution case, in order
to enable the accused persons to explain the circumstances
appearing against them, the Trial Court recorded their
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
statements under Section 313 of the CrPC in which they denied
the charges and pleaded their innocence.
35. After the recording of the statements of the accused
persons under Section 313 CrPC, on behalf of the defence, one
Rama Choudhary was examined as D.W.1. In his examination-
in-chief, he deposed that on 31st March 2010 he was present at
the Ahar of Chitbisao village for fishing. The settlement for
fishing in the Ahar was made in his favour. His occupation is
fishing for the last 20-25 years. He has a Marai near the Ahar in
which he was living for the last 4-5 days and used to cook his
meal there. He was present at that place since morning. He
stated that no occurrence as alleged had taken place and no
person was killed on 31st March 2010 near the Ahar.
36. In cross-examination, he stated that his village is
situated at a distance of one mile from the village-Chitbisao. He
admitted that he cannot produce any certificate in proof of
fishing done by him on 31st March 2010. He denied the
suggestion that he has falsely deposed before the court in
collusion with the accused persons.
37. After analyzing the evidence on record and
arguments advanced on behalf of the parties, the Trial Court
found the prosecution case true beyond reasonable doubt against
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
both the accused facing trial. Accordingly, they were convicted
and sentenced in the manner indicated above.
38. Assailing the impugned judgment of conviction
and order of sentence, Mr. Ajay Kumar Thakur, learned
advocate for the appellant in Criminal Appeal (DB) No.778 of
2015 submitted that the Trial Court failed to appreciate the
evidence on record. He submitted that the prosecution had failed
to bring home the charges levelled against appellants. He
submitted that from the evidence, it would be evident that a
large number of persons were present at the place of occurrence,
but not even a single independent person, except the family
members, came forward to support the case of the prosecution
even as a hearsay witness. He submitted that from the evidence
of the I.O., it would be evident that he recorded statements of
several independent witnesses, but none of them was made a
charge sheet witness. Since the prosecution failed to examine
the independent witnesses, the Trial Court ought to have drawn
adverse inference against it. He argued that all the prosecution
witnesses examined in the case are interested and related
witnesses. They all are partisan witnesses. Hence, their evidence
should have been discarded. According to him, there was no
occasion for the witnesses examined on behalf of the
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
prosecution to be present at the place of occurrence, but only
because they are family members they came forward to support
the case of the prosecution. He argued next that the prosecution
has failed to prove the place of occurrence, as there was no
objective finding of the place of occurrence by the I.O. during
the investigation. He urged that the manner of occurrence as
alleged by the prosecution appears to be palpably false. He
submitted that the postmortem examination report is also not in
alignment with the case of the prosecution. He strenuously
urged that the prosecution case becomes doubtful, as the I.O.
has suppressed the earliest version. It is not known whether the
inquest report was prepared at the place of occurrence or at the
police station. Lastly, he contended that the witnesses examined
on behalf of the prosecution are wholly untrustworthy.
39. While adopting the aforesaid arguments made by
Mr. Ajay Kumar Thakur, learned advocate for the appellant Anil
Tiwari in Criminal Appeal (DB) No.778 of 2015, Mr. Vikram
Deo Singh, learned advocate for the appellant Gupteshwar
Sharma in Criminal Appeal (DB) No.714 of 2015 added that the
Trial Court ought to have taken into consideration the fardbeyan
of the informant in which he has stated that the accused Anil
Tiwari was sitting along with a gun and it was he who is said to
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
have fired upon the brother of the informant Umesh Singh
Yadav, who died on the spot. He contended that it is not the case
of the prosecution that the accused Gupteshwar Sharma was
sitting with the accused Anil Tiwari rather the case of the
prosecution is that he along with one Sudarshan Sharma was
sitting at another place. Hence, it cannot be said that the accused
Gupteshwar Sharma was sharing a common intention. He
contended that, according to the FIR, after the accused Anil
Tiwari opened fire, the accused Sudarshan Sharma is said to
have fired, which did not hit anyone. He submitted that the
witnesses examined during the trial have categorically stated
that neither the empty cartridges nor any other material were
seized from the place of occurrence, which clearly shows that
the story of firing resorted to by the accused Sudarshan Sharma
is nothing but an afterthought. He contended that the witnesses
examined on behalf of the prosecution have been contradicted in
material particular by the I.O. of the case. He urged that though
the witnesses examined on behalf of the prosecution stated that
blood had fallen on their clothes, neither the I.O. seized those
clothes nor they were produced as material exhibits during the
trial, which creates doubt on the veracity of the prosecution
case.
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
40. On the other hand, Dr. Mayanand Jha, learned
Additional Public Prosecutor for the State submitted that the
impugned judgment of conviction and order of sentence needs
no interference by this Court. He contended that the Trial Court
has passed the judgment under appeal after properly
appreciating the evidence on record. According to him, there is a
consistency of evidence. Also, there is no perversity in the
judgment under challenge. He highlighted that there are six
eyewitnesses to the occurrence of the murder and participation
of these two appellants in the offence. He contended that P.W. 5
has fully corroborated the earliest version during his
examination in the trial. He was cross-examined at length by the
defence, but nothing substantial could be extracted. According
to him, he withstood the test of trial. He explained the manner
and motive of occurrence and attributed specific roles played by
each of the accused. He categorically stated that the appellant
Anil Tiwari fired two shots from his gun, which caused fatal
injuries on the body of the deceased. He also stated that the
accused Sudarshan Sharma fired shots from his country-made
pistol. He contended that the evidence of P.W. 5 has been
corroborated in material particular by P.Ws. 1, 2, 3, 4 and 7,
who have deposed as eyewitnesses during the trial. He
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
contended that P.W. 10, who was the SHO of Rajpur Police
Station at the relevant time and the first I.O. of the case has
proved the FIR. He has established the place of occurrence. He
recovered the body of the deceased from the Ahar and stated
that the accumulated water in the Ahar was 5 feet away from
where the body of the deceased was recovered. He argued that
the ocular evidence of the witnesses is corroborated by medical
evidence. The doctor (P.W. 8), who conducted the postmortem
examination on the body of the deceased Umesh Singh Yadav,
found two firearm injuries in the back of the abdominal region
and left scapular region. He also found blackening of the skin,
which proves that the firing was made from a close range. He
argued next that the defence produced only one witness in
support of its case, but even that witness was not trustworthy.
His presence at the place of occurrence was doubtful. He tried to
make out a case that no killing had taken place on the alleged
date at the place of occurrence, but his evidence is outweighed
by the evidence of the prosecution witnesses and the recovery of
the dead body from the place of occurrence.
41. I have given my anxious consideration to the rival
submissions and have carefully perused the evidence on record.
42. Learned advocates for the appellants have
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
submitted that all the material prosecution witnesses are the
close relatives of the deceased Umesh Singh Yadav being his
brothers, nephew, maternal uncle, mother and father and they
are highly interested and partisan witnesses and, therefore, their
evidence should be discarded. It is true that all the non-official
witnesses examined on behalf of the prosecution are related to
the deceased. However, the law in this regard is well settled.
The evidence of a related witness cannot be discarded merely on
the ground that he is either partisan or related or interested, if
otherwise the same is found to be believable and trustworthy.
All that is required is to analyze the evidence of such a witness
with greater care and caution. Hence, the submission made on
behalf of the appellants that their evidence should be discarded
cannot be accepted as correct.
43. The next submission of the learned advocates for
the appellants is that it would be evident from the evidence of
the witnesses that a large number of persons were present in
their field at the time of occurrence, but not even a single
independent witness except the family members came forward
to support the case. In this regard also, the law is well settled
that non-examination of independent witnesses is not fatal to the
case of the prosecution when other witnesses are found to be
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
trustworthy and reliable.
44. In Dharampal Singh vs. State of Punjab reported
in (2010) 9 SCC 608 and Baldev Singh vs. State of Haryana
reported in (2015) 17 SCC 554, the Supreme Court has held that
merely because independent witnesses were not examined, it is
no ground to reject the case of the prosecution.
45. Another argument advanced on behalf of the
appellants is that certain independent witnesses whose
statements were recorded under Section 161(3) of the CrPC by
the I.O. were deliberately not examined during the trial in order
to suppress the real facts of the case. It is true that the I.O. has
stated in his evidence that he had recorded statements of several
witnesses during the investigation, who has not been examined
during the trial. However, their non-examination could not be
held fatal to the case of the prosecution. It is the credibility of
the testimony of the witness examined by the prosecution which
has to be appreciated by the court. If their evidence appears to
be truthful, creditworthy and acceptable, the mere fact that some
other witnesses, whose statements were recorded under Section
161(3) of the CrPC have not been examined, will not adversely
affect the case of the prosecution. Hence, it would be
appropriate to appreciate the evidence of the witnesses
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
examined during the trial and to ascertain as to whether they
have been able to prove the guilt of the appellants beyond a
reasonable doubt.
46. It has been argued on behalf of the appellants that
the earliest version has been suppressed by the prosecution. In
order to appreciate the aforesaid submission, when I scrutinize
the evidence of the prosecution witness, I find that the I.O. has
deposed that he received information at the police station, but
the same was not noted down in the case diary. He further
deposed that he did not make any entry into the station diary in
this regard. He has not given any explanation for not recording
the information received by him either in the station diary or in
the case diary. There is no clarity as to who informed the police
first regarding the incident.
47. Moreover, P.W. 2 deposed before the court that first
of all, the I.O. made inquiry from him regarding the incident
when he reached the place of occurrence, but he did not take his
signature on his fardbeyan. He further deposed that the
fardbeyan of the informant Ramnath Singh (P.W. 5) was
recorded at the police station. He also deposed that in his
presence, the police did not do any paperwork at the place of
occurrence.
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
48. If the evidence of P.W. 2 is to be believed, even
after the police reached the place of occurrence, it was he, who
gave his fardbeyan first and the fardbeyan of P.W. 5 was
recorded later on in the police station. However, there is no
explanation as to why the signature of P.W. 2 was not taken by
the I.O. on his fardbeyan.
49. When I look at the fardbeyan of P.W. 5 on the basis
of which the FIR has been registered, it would give an
impression that the same was recorded by the I.O. at 8:15 p.m.
on 31st March 2010 at village-Chitbisao. P.W. 5 has stated his
testimony that from the time of occurrence till the arrival of the
police, he and his family members remained present at the place
of occurrence. According to him, the police recorded his
statement at about 7:00 p.m. He clarified further that the police
arrived at the place of occurrence nearly two and a half hours
after the incident, which would mean that the police had arrived
at the place of occurrence at about 6:30 p.m., as the incident had
taken place at about 4:00 p.m. on 31 st March, 2010. None of the
witnesses examined during the trial has stated that the police
went to village-chitbisao on the date of occurrence. The I.O.
himself stated in his deposition that after his arrival at the place
of occurrence, he remained present at the place of occurrence
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
for the whole night.
50. Thus, there is no clarity on the point as to whether
the fardbeyan of the informant was recorded at the place of
occurrence near the Ahar, which is situated at some distance
from the village-Chitbisao or at village-Chitbisao or at the
Rajpur Police Station.
51. Be that as it may, at least this much is clear from
the deposition of witnesses that the initial report made to the
police regarding the incident on the basis of which, the I.O.
proceeded to the place of occurrence along with the police party
has been suppressed. Similarly, the initial statement made by
P.W. 2 to the I.O. has also been suppressed by the prosecution.
52. Another important aspect of the matter is that the
FIR was not registered promptly. There is evidence that the
police had arrived at the place of occurrence after receiving the
report about the incident within 1 ½ -2 ½ hours. The place of
occurrence is 18 kilometers from the police station. Even if I
presume that the fardbeyan was recorded at 8:15 p.m., there is
no reason as to why the I.O. could not have come back to the
police station in the night and instituted the FIR promptly. The
formal FIR makes it clear that it was registered at 7:45 a.m. on
the next day, i.e., on 1st April 2010. There is no explanation for
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
the delayed institution of the FIR. It is settled law that a prompt
FIR lends credence to the prosecution version and prevents the
possibility of a coloured version being put by the informant.
53. In Thulia Kali vs. The State of Tamil Nadu
reported in (1972) 3 SCC 393, the Supreme Court observed that
"FIR in a criminal case is an extremely vital and valuable piece
of evidence for the purpose of corroborating the oral evidence
adduced at the trial". The Court further observed that "delay in
lodging the FIR often results in embellishment as it might be
creation of afterthought. On account of delay, the FIR not only
gets bereft of the advantage of spontaneity but danger creeps in
of the introduction of coloured version exaggerated account or
concocted story. As a result of deliberation and consultation".
54. However, in Ramdas and others vs. State of
Maharashtra reported in AIR 2007 SC 155, the Supreme Court
observed that "the fact that report was not belated is a relevant
fact of which the court must take note. This fact has to be
considered in the light of other facts and circumstances of the
case, and in a given case the court may be satisfied that the
delay in lodging the report has been sufficiently explained. In
the light of the defence of the delay, the court has to consider
whether the delay in lodging the report adversely affects the
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
case of the prosecution. That is a matter of appreciation of
evidence".
55. Further, in State of Punjab vs. Ramdev Singh
reported in (2004) 1 SCC 421, the Supreme Court held that "the
delay in lodging the FIR cannot be used as a ritualistic formula
for doubting the prosecution case and discarding the same
solely on the ground of delay in lodging the first information
report. Delay has the effect of putting the Court in its guard to
search if any explanation has been offered for the delay, and if
offered, whether it is satisfactory or not. If the prosecution fails
to satisfactorily explain the delay and there is possibility of
embellishment in prosecution version on account of such delay,
the same would be fatal to the prosecution. However, if the
delay is explained to the satisfaction of the Court, the same
cannot by itself be a ground for disbelieving and discarding the
entire prosecution version".
56. Keeping the aforestated ratio laid down by the
Supreme Court in mind, when I carefully examine the record, I
find that though the fardbeyan was recorded at 8:15 p.m. on 31st
March 2010, the FIR was registered at 7:45 a.m. on 1 st April
2010 and the inquest report (Exhibit-4) was prepared on 1 st April
2010 at 6:00 a.m. by the I.O.
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
57. Admittedly, the FIR was registered after the
preparation of the inquest report. The preparation of the inquest
report and sending the body of the deceased to the hospital for
postmortem examination were certainly acts of the police during
the investigation of the cognizable case. Normally, the
investigation starts after the institution of the FIR. However, in
the present case, before instituting the FIR, inquiries were made
from other witnesses, an inquest report was prepared and the
body of the deceased was sent for postmortem examination. If
the I.O. prepared the inquest at 6:00 a.m. at the place of
occurrence and reached at the police station at 7:45 a.m. on 1 st
April 2010 and instituted the FIR, the distance from the place of
occurrence to the police station was covered by him within two
hours. If that was the case, the I.O. should have either come
back to the police station after recording the fardbeyan and
registered the FIR in the night itself or if he thought that he was
required to be present at the place of occurrence in the night, he
ought to have sent the fardbeyan to the police station through
some constable, who was accompanying him for institution of
the FIR. Having not done so, the FIR becomes a suspicious
document.
58. The investigation of a cognizable offence begins
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
when the Officer-in-charge of the police station registers an FIR.
A prompt despatch of a copy of FIR under the mandatory
provision of Section 157 of the CrPC to the Court further
ensures that there is no manipulation or interpolation in the FIR.
The requirement of sending the FIR to the Court of Magistrate
is an external check on the working of the police agency.
59. In the instant case, the formal FIR was sent to the
court of Sub-divisional Judicial Magistrate, Bikramganj two
days after its registration, i.e., on 3rd April 2010. There is no
explanation for the delay of two days caused in transmitting the
FIR to the Court of Magistrate.
60. The second external check equally important is the
sending of the copy of FIR along with the dead body and its
reference in the inquest report.
61. In the case in hand, when I look at the evidence of
P.W. 8, Dr. Sidheshwar Prasad Singh, who had conducted the
postmortem examination on the body of the deceased Umesh
Singh Yadav, I find that he has admitted in cross-examination
that when he had conducted the postmortem examination at 9:35
a.m. on 1st April, 2010 though, the inquest report was before
him, no case number was mentioned on that, which would mean
that till the time, the body of the deceased was sent for
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
postmortem examination by the I.O., the FIR was not registered.
The postmortem report (Exhibit-3) would also suggest that the
details of the FIR are not reflected on it. The absence of the
details of the FIR is indicative of the fact that the FIR came to
be recorded later on after due deliberations and consultations.
62. I would now consider whether the place of
occurrence where the deceased was allegedly shot has been
established. As per the FIR, the informant along with the
deceased, his mother P.W. 3, his brothers P.W. 1 and P.W. 7 and
nephew P.W. 2 had gone to take back pump set at Ahar and they
started plucking Tori and, on hulla, they proceeded towards the
place of occurrence. In the meantime, the appellant Anil Tiwari
fired twice causing injury to his brother as a result of which, he
died. Thereafter, the accused Sudarshan Sharma also fired from
his country-made pistol, but fortunately, it did not hit anyone.
The prosecution witnesses examined during the trial have stated
that blood had fallen on the ground at the place of occurrence,
but neither the soil from the place of occurrence was seized by
the I.O. nor the same was sent to the Forensic Science
Laboratory. If the incident had taken place near the Ahar at
village-Chitbisao, some traces of the incident would certainly
have been found at the place of occurrence. The prosecution has
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
offered no explanation as to why the blood-stained soil was not
seized from the place of occurrence.
63. Further, I find from the evidence of the I.O. that he
has admitted in cross-examination that he did not inspect the
place of occurrence in the night. He also admitted that there is
no mention of inspection of the place of occurrence in the case
diary. He further admitted that he did not record in the case
diary regarding the place from where the body of the deceased
was recovered. It has come in evidence of P.Ws. 3, 5 and 7 that
the body of the deceased was brought from western side of the
Ahar to the eastern side with the help of family members and
the clothes of the informant and others were bloodstained. It has
also come in his evidence that both the places were shown to the
I.O. and it was disclosed to him that the body was shifted from
one place to another, but not even a single drop of blood was
found either at the place where the body was lying or at the
place where the body was carried. There should have been a
trail of blood in between both the places, i.e., where the
occurrence took place and where the dead body was shifted.
64. The blood-stained clothes of P.Ws. 3, 5 and 7 were
neither seized by the I.O. nor sent to the Forensic Science
Laboratory.
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
65. Similarly, it has also come in the evidence of P.W. 2
that mark of firing was found at two places on the clothes worn
by the deceased. Surprisingly, the clothes of the deceased were
also not seized by the I.O. nor was it sent to the Forensic
Science Laboratory. If the clothes of P.Ws. 3, 5 and 7 would
have been seized and sent to the Forensic Science Laboratory
and the blood group of the deceased would have been
ascertained at least link between the blood found on the seized
clothes and the blood of the deceased could have been
established and the same would have been given credence to
their oral testimony that they were present at the place of
occurrence as also that the occurrence took place in the manner
disclosed by them. At the same time, if the blood-stained soil
would have been seized and produced before the court as a
material exhibit together with other incriminating articles, the
same would have given credence to the prosecution case
regarding the place of occurrence and the manner of occurrence.
66. The non-seizure of the blood-stained soil or any
other incriminating material from the place of occurrence as
also the deposition of the I.O. leads to an irresistible conclusion
that the prosecution has failed to establish the place of
occurrence and the manner of occurrence in the present case.
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
67. In regard to the medical evidence and the ocular
testimony of the witnesses examined during the trial, it would
be evident that in the FIR the informant has simply stated that
the appellant Anil Tiwari armed with a gun came and fired twice
at his brother Umesh Singh Yadav causing injury to him as a
result of which, he fell down and succumbed, but during the
trial, the witnesses improved their version by stating that the
appellant Anil Tiwari fired twice causing injury in the waist and
neck of the deceased. However, P.W. 8, Dr. Sidheshwar Prasad
Singh, who conducted the postmortem examination, has
categorically stated that he did not find any firearm injury on the
neck of the deceased. According to him, the injuries caused
were on the backside of the abdominal region, left side at 4 th
lumbar vertebra level and on the left scapular region. However,
the informant did not state in the FIR that the firing resorted to
by the appellant Anil Tiwari was from the back of the deceased.
Thus, I am of the opinion that the medical evidence is certainly
not in alignment with the initial version of the prosecution.
68. While testing the truthfulness in the testimony of
witnesses, I find that the I.O. (P.W. 10) stated in his deposition
that after arriving at the place of occurrence on 31 st March 2010,
he remained present at the place of occurrence throughout the
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
night and prepared the inquest report in the morning, but
Jitendra Singh (P.W. 2) stated in his deposition that the I.O. left
the place of occurrence after staying there for about half an hour
and on the next day, he arrived at his residence at about 3-4 p.m.
and recorded the statements of his family members.
69. From the deposition of witnesses, it further appears
that they have contradicted each other in a material particular on
vital issues. The informant (P.W. 5) deposed before the court
that even before the arrival of the police, he had shifted the body
of the deceased Umesh Singh Yadav from the western side of
the Ahar to the eastern side with the aid of family members.
Similarly, Rajesh Kumar (P.W. 7) stated in his testimony that on
31st March 2010, he, Ramnath, Udit Narayan and Jitendra had
shifted the dead body to a distance of 10 feet from the place it
was lying, but his nephew Jitendra Singh (P.W. 2) stated in his
testimony before the court that till the arrival of the police, the
body of the deceased Umesh Singh Yadav was not shifted from
the place where it was lying.
70. Further, the informant has stated in his deposition
that from the time of occurrence till the arrival of the police all
the family members remained present at the place of occurrence
and no one went to his house or to the police station, but his
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
mother (P.W. 3) stated in her deposition that the police did not
come to the place of occurrence in her presence. She further
stated that she came back to her village from the place of
occurrence at about 6:00 p.m. and her statement was recorded
by the police a day after the incident.
71. It would be pertinent to note here that P.W. 5 stated
in his deposition that statements of all the family members were
recorded by the I.O. at about 8:00 p.m. on the date of occurrence
at the place of occurrence itself. He further stated that three days
after the occurrence, the police came to his village. His brother
P.W. 7 also stated that his statement was recorded by the I.O. on
31st March, 2010, but P.Ws. 2 and 3 stated in their deposition
that the police recorded their statement a day after the
occurrence. Even, the I.O. admitted in his deposition that he
recorded the statement of witnesses after the institution of the
FIR.
72. Apart from the above contradictions in the
statement of witnesses, I further find that P.W. 1 stated in his
deposition that the police reached the place of occurrence at 5-
5:30 p.m. on the date of occurrence on the information given by
someone. Similarly, P.W. 2 stated that on the date of occurrence
though, the police arrived at the place of occurrence after sunset,
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
the sky did not get dark, but the I.O. stated in his deposition that
after arriving at the place of occurrence on 31 st March 2010, he
did not prepare the inquest report because of the darkness in the
night and the inquest report was prepared on the next day at
6:00 a.m.
73. I further find that the I.O. (P.W. 10) has
contradicted P.W. 2 in material particular by admitting that he
had not stated in his previous statement under Section 161(3) of
the CrPC that along with the family members, he had gone to
take pump set from Ahar and saw the appellant Anil Tiwari
firing shots at the deceased with a gun causing injuries on his
neck and waist as a result of which, he died. Similarly, Rajesh
Kumar (P.W. 7) has claimed to be an eyewitness to the
occurrence. He has also been contradicted by the I.O. (P.W. 10),
who has admitted that he did not say in his previous statement
made before him that he saw the deceased being killed or that
the appellant Anil Tiwari fired two shots causing injuries on the
neck and waist of the deceased.
74. Apparently, the prosecution witnesses have
contradicted each other on vital points. They have also been
contradicted by the I.O. Their evidence is not trustworthy.
75. To conclude, I am of the opinion that the
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
prosecution has suppressed the earliest version; the delay caused
in instituting the FIR has not been explained; the investigation
was tainted; the place of occurrence has not been established;
the witnesses examined during the trial made material
improvements; they contradicted each other on vital points; they
have also been contradicted by the I.O., and the medical
evidence does not corroborate the ocular testimony of the
witnesses.
76. In view of all these discrepancies in the prosecution
case, I am of the opinion that the finding recorded by the Trial
Court holding the appellants guilty of the offences charged with,
is erroneous and unsustainable. The Trial Court did not advert to
the inherent improbabilities in the prosecution evidence
discussed above and failed to appreciate the evidence on record
in the right perspective.
77. Having regard to the infirmities pointed out in the
foregoing paragraps, the finding of guilt recorded against the
appellants by the Trial Court, which is manifestly erroneous and
unreasonable, cannot be sustained.
78. Accordingly, the impugned judgment of conviction
dated 8th July, 2015 and the order of sentence dated 13 th July,
2015 passed by the learned 7th Additional Sessions Judge,
Patna High Court CR. APP (DB) No.778 of 2015 dt.25-08-2021
Rohtas at Sasaram in Sessions Trial No.384 of 2011 arising out
of Rajpur P.S. Case No.38 of 2010 are, hereby, set aside.
79. The appellants are acquitted of the charges levelled
against them. The appellant Gupteshwar Sharma, who is on bail,
is discharged from the liabilities of the bail bonds. The appellant
Anil Tiwari, who is in custody, is directed to be released
forthwith, if not required in any other case.
80. The appeals are allowed.
(Ashwani Kumar Singh, J.)
Anil Kumar Sinha, J. : I agree.
(Anil Kumar Sinha, J.)
sanjeet/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 26.08.2021
Transmission Date 26.08.2021
