Wazul Miyan @ Anjul Miyan And Anr vs State Of Bihar
2021 Latest Caselaw 5565 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (DB) No.114 of 1994
======================================================

1. Wazul Miyan @ Anjul Miyan, son of S.K. Isha, resident of Village-Barahi Jagdish, P.S.-Purnaia, District-Sitamarhi

2. Dukhan Sahni, son of Lal Chand Sahni, resident of Village-Belwa, P.S.- Piprarih, District-Sitamarhi ... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Prasoon Sinha, Advocate For the Respondent/s : Mr.Dilip Kumar Sinha, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE A.M. BADAR And HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR)

Date : 01-12-2021

Heard Mr. Prasoon Sinha, learned counsel for

the appellants and Mr. Ajay Mishra, learned Additional

Public Prosecutor for the State.

2. The appellants in this appeal have

challenged the judgment of conviction and order of

sentence dated 3rd of February 1994 passed by the learned

2nd Additional Sessions Judge, Sitamarhi in connection with

Sessions Trial No. 229 of 1992/9 of 1993, arising out of

Sitamarhi P.S. Case No. 168 of 1992.

3. By the aforesaid judgment dated 3rd of

February, 1994, the appellants have been convicted for the Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

offences punishable under Section 302 read with section 34

of the Indian Penal Code and sentenced to undergo rigorous

imprisonment for life. The appellant no. 2 namely Dukhan

Sahni has further been convicted under Sections 307 of the

Indian Penal Code and Section 27 of the Arms Act and

sentenced to undergo rigorous imprisonment for 4 years for

the offence under Section 307 of the Indian Penal Code and

further sentenced to undergo rigorous imprisonment for two

years for the offence under Section 27 of the Arms Act. The

Trial Court, however directed that all the sentences shall run

concurrently.

4. The prosecution case is based on the

Fardbeyan of the informant, namely, Pramod Chandra Jha,

who alleged that on 07.06.1992, the deceased Mohan Singh,

a co-villager of the informant had requested the informant

to bring money from his brick kiln. On the same day, at

about 4:00 P.M, he brought a sum of Rs. 13,000/- from his

brick kiln and delivered it to him at Ranjit Medical Hall.

Thereafter, Mohan Singh went to pay the money to the coal

dealer and informant came back to his residence. The

further case of the prosecution is that on the same day again Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

at about 9:30 P.M. Mohan Singh along with the coal dealer

namely, Ghoghar Mishra @ Baba came at the residence of

the informant and talked for some time and thereafter

Ghoghar Mishra left the house of the informant. Mohan

Singh, thereafter asked the informant to accompany him up

to his residence. Accordingly, the informant started

accompanying Mohan Singh but as soon as they reached

near Kiran Chowk, Mohan Singh (deceased) asked the

informant to bring cigarette for him. Mohan Singh himself

kept standing near Suman's Betal Shop and the informant

went to bring the cigarette from the shop of Harni @ Netaji

situated by the side of Suman Betal Shop and asked the

shopkeeper to give him a cigarette. In the meantime, the

appellants along with other accused persons namely,

Raghunath Singh @ Raghunathia, Jagdish Singh, Dukhan

Sahni, Anjul Mian @ Wajul Mian and two unknown

persons came from the side of Singwahini market. The

accused Raghunath Singh asked Mohan Singh to settle

some accounts, upon which Mohan Singh asked him to

come at his house next morning for settling the account.

The accused, Jagdish Singh started abusing Mohan Singh Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

and said that they had to settle a number of accounts with

him. In the meantime, these appellants namely Dukhan

Singh and Anjul Miya caught hold Mohan Singh and the

accused Raghunath Singh & Jagdish Singh brought out his

pistol and opened fire in quick succession at Mohan Singh.

The informant rushed towards them, raising an alarm but by

that time Mohan Singh had fallen down after having been

injured by the gun shot. The informant tried to lift Mohan

Singh up in order to save him but he was caught by

Raghunath Singh, who asked Dukhan Sahni (appellant) to

kill him otherwise it would be proved dangerous for him in

future. The informant was fired at by the appellant Dukhan

Sahni but the shot got misfired and the informant, getting

benefit of the misfire, got himself released and fled towards

the hospital road. The accused again fired at the informant

from his back which did not hit him. The informant

managed to hide himself in the clinic of Dr. Nawal Kishore

where the compounder of that clinic as well as the

attendants of the patients saved the life of the informant.

After hearing the sound of firing, several persons of the

vicinity assembled over there and thereafter the informant Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

came out from the clinic and saw the accused persons,

fleeing towards the river Lakhan Dei. The informant and

Anil Kumar, brother-in-law of the deceased kept Mohan

Singh on a "Thela" and took him to Sitamarhi Hospital

where the doctor declared him dead.

5. The Fardbeyan of the informant was

recorded at Sitamarhi Sadar Hospital on 07.06.1992 by Shri

Praduban Singh, the then Sub-Inspector of Police, posted at

Sitamarhi police station and on the basis of the fardbeyan, a

formal F.I.R. being Sitamarhi P.S. Case No. 168 of 1992

was registered against the appellants and other accused

persons.

6. It has been mentioned by the informant in

the fardbeyan that the motive for the murder of Mohan

Singh a dispute between one Amrendra Mishra and the

accused Raghunath Singh with regard to the partnership in

which the Mohan Singh (deceased) had done panchayati

against the accused Raghunath Singh.

7. The Investigating Officer thereafter started

investigating the matter and after completion of the

investigation, charge-sheet has been submitted against the Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

F.I.R. named accused persons including the appellants.

8. On receipt of the charge-sheet, learned

Chief Judicial Magistrate, Sitamarhi took cognizance of the

offence, sent summons to the accused persons and after

complying with the statutory requirements of Section 207 of

the Cr.P.C, committed the case to the Court of Sessions for

trial.

9. The charges were framed against all the

accused persons for the offences punishable under Section

302 read with Sections 149, 148 and 307/34 of the Indian

Penal Code. Further charges against the appellants, namely,

Raghunath Singh, Dukhan Singh and Jagdish Singh have

also been charged for the offence punishable under Section

27 of the Arms Act. The charges were read over and

explained to the accused to which they pleaded not guilty

and preferred to face the trial.

10. During trial, altogether ten witnesses were

examined in order to prove the charges levelled against the

accused persons. Out of them P.W. 1, Anil Kumar singh is a

hearsay witness. Three witnesses have claimed themselves

to be the eye witnesses of the alleged occurrence. P.W. 2. Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

Rajeshwar Singh is a co-villager of the deceased. P.W. 5.,

Arjun Singh is the brother-in-law of the deceased and

P.W.6, Pramod Chandra Jha is the informant himself. P.W.

7, Krishna Nandan Prasad is the doctor, who conducted

postmortem of the dead body of the deceased and prepared

the postmortem report at 8:45 p.m. on 08.06.1992. P.W. 3 &

4 namely, Raju Kumar Singh & Sateyndra Singh are the

formal witnesses alleged to be the witnesses on the inquest

report. P.W. 8, Shri K.D. Ram is the Investigating Officer

and then Officer in-charge of Sitamarhi police Station. P.W.

9, Ramasis Roy is the Head Clerk in legal section of

Sitamarhi Collectorate and he has proved the sanction for

prosecution of the accused under the Arms Act and P.W. 10,

is the second Investigating Officer of the case.

11. The prosecution has also proved the

following documents during trial :-

          Sr.No. Exhibits                 Description
          1.        1 & 1/1               Signature of Raju Singh and
                                          Satyendar Singh on inquest report
          2.        2                     Inquest Report
          3.        3                     Fardbeyan
          4.        1/2                   Signature of informant on
                                          fardbeyan
          5.        4                     Post-mortem report

Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

6. 5 Seizure list

7. 6 Endorsement upon fardbeyan

8. 3/1 Formal F.I.R

9. 6 FSL (serologist report)

10. 8 Sanction order of the D.M.

11. 7/1 FSL report

12. On behalf of the defence, altogether 7

witnesses have been examined and some documentary

evidence have also been exhibited on behalf of the defence.

13. D.Ws. 1, 3, 5 and 6 are staffs of the Bihar

State Electricity Board Power Sub-station. They have been

examined to show that in the night of 07.06.1992, there

was no supply of electricity in Sitamarhi from 20.35 hours

till 2 p.m. of the next day. D.W. 2 is Dr. Mahesh Thakur,

Medical Officer of District Board Hospital, Saura. He has

deposed that Raghunath Singh was treated by him with

effect from 06.06.1992. He has stated that there was no

arrangement for endorse patients in his hospital but

arrangement for treatment of Raghunath Singh was made by

outside. He has proved Ext-A, the relevant entry in hospital

register. He has stated that Raghunath Singh was admitted

at 11 a.m. on 06.06.1992 and he was discharged on

09.06.1992 at 3 p.m. The O.D. slip is marked as Ext.-B. The Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

prescription granted by him is marked as Ext.-C and

certificate granted by him is marked as Ext.- D and

signature of the accused on the certificate is marked as Ext.-

E. D.W. 4 is a Sarpanch of village Sudama lying under P.S.

Malangawa (Nepal). He has come to say that accused

Jagdish Singh was in his village in connection with his

election work from 28.05.1992 to 10 p.m. of 07.06.1992.

D.W. 7 has been examined to show that informant namely

Promod Chandra Jha was a 'Sipahi' of Satyendra Vastralaya

whose duty was to collect dues from the customers.

                            14. Exts. F and F/1              are the writing of

         Jawahar Pd. Chowdhury                  and Bramdeo Mandal, switch

board operators in Dumra Power sub-station. According to

D.W. 5, there was no supply of electricity in Sitamarhi town

from 21.15 hours of 07.06.1992 till 9.15 hours of

08.06.1992. Ext.-G is an endorsement by D.W.-6 to the

effect that at 19.10 hours and 19.20 hours he tried to give

electric supply to Dumra feeder but it did not hold and only

Sitamarhi feeder was in operation.

15. We now proceed to discuss and legally

evaluate the prosecution evidence adduced in this case in Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

order to examine as to whether the alleged complicity of

the accused persons-appellants can be said to be proved by

acceptable and reliable legal evidences or not.

16. Learned Counsel appearing on behalf of

the appellants has argued that judgment of conviction and

order of sentence passed by the learned Trial Court is bad in

law as well as on fact, the court below has failed to consider

the evidence on record in its true perspective which vitiates

the finding completely.

17. The further contention of the learned

counsel for the appellants is that the learned court below has

committed gross error in disbelieving the evidences of the

employees of the Electricity Board. There is no reason for

the Court below to disbelieve the records of the Electricity

Board which are maintained by the public servants in the

official register of the board while performing their official

duties.

18. Per-contra, learned Additional P.P. on

behalf of the State argued that the prosecution has proved

the prosecution case beyond reasonable doubts with

consistent evidence adduced by the prosecution witnesses Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

and as such, the appeal of the appellants is fit to be

dismissed.

19. Firstly, it would be seen that whether the

death of deceased Mohan Singh is homicidal or not. From

perusal of the postmortem report as well as evidences of

P.W. 7, doctor, who conducted the post-mortem, it becomes

clear that the death of Mohan Singh is homicidal. Injuries

were of fire arms and were sufficient to cause death and the

death was caused due to shock and hemorrhage.

20. P.W. 1 Anil Kumar Singh is the hearsay

witness. He has deposed that on the alleged night of the

occurrence at about 10 p.m. he had gone to the residence of

Mohan Singh but he was not present at his residence. Then

in search of Mohan Singh, he reached Kiran Chowk through

Singvahini Market and in the electric light he saw that

Mohan Singh was laying in a pool of blood just west to

Kiran Chowk Golambar. Pramod Chandra Jha arrived there

and he told him that two minutes before the appellants

caught Mohan Singh, whereupon accused Raghunath Singh

and Jagdish Singh fired from their pistols in quick

succession on deceased Mohan Singh who fell on the Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

ground. The informant Pramod Chandra Jha was also

chased and fired but the bullet did not hit him. He further

stated that he and Pramod Chandra Jha put Mohan Singh

on a 'Thela' and took him to Sadar Hospital, Sitamarhi

where the doctor declared him dead. During cross-

examination, he admitted that he, Mohan Singh (deceased)

and his brother Sohan Singh and Arjun Singh (P.W.5) had

criminal antecedents. In para 5 of his cross-examination, he

admitted that Jamadar of Sitamarhi police station had

arrived near the dead body when they were preparing to

take the body to hospital and Pramod Chandra Jha (P.W.6)

got his statement recorded to that Jamadar about the manner

of occurrence and he also signed on that paper as a witness.

He further deposed that in the process of putting Mohan

Singh on 'Thela' blood stains were caused on his hand and

cloths. He went to hospital with body of Mohan Singh and

remained there for an hour and during that period the

informant, Arjun Singh, Gangadhar Jha, Awadhesh Singh

and Rajeshwar Singh were also present. It would be proper

to mention here that Gangadhar Jha and Awadhesh Singh

have not been produced by the prosecution as a witness Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

though they were charge sheeted witnesses and they were

given up.

21. P.W. 2, Rajeshwar Singh, who claims to

be the eye witness of the occurrence has stated that the

occurrence took place between 9.30 and 10 p.m. on a

Sunday night. He, Janardan Jha and Awadhesh Singh had

taken their meal at Ashoka Hotel and had arrived to take

betel at the shop of Haruni. He saw the occurrence and

identified the accused persons in the electric light of electric

pole. Accused Raghunath Singh asked from Mohan Singh

about the accounts upon which Mohan Singh asked him to

come to his residence next day and then Jagdish Singh

using abusive language stated that they had to settle several

accounts from him and then accused, Dukhan Sahni and

Wajul Mian caught Mohan Singh and Raghunath Singh and

Jagdish Singh fired at Mohan Singh (deceased) with

Nalkatua in quick succession as a result of which Mohan

Singh fell down and Promod Jha rushed towards him and

wanted to lift Mohan Singh but Raghunath Singh caught

Pramod Chandra Jha and stated that he should also be killed

otherwise he will prove dangerous and Dukhan Sahni Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

brought out a Nalkatua and fired at Pramod Jha but it was

misfired and then Pramod Jha managed to get him free and

fled towards north and then accused chased him firing. He

further stated that Pramod Jha and Anil Singh put Mohan

Singh on a 'Thela' and went to hospital. But later on, he

heard that Mohan Singh expired. These witnesses admitted

vide paragraph -5 in his cross examination, he as well as

Gangadhar Jha, the informant (P.W. 6) and deceased are

residents of same village Chiraiya. He further admitted that

he was also accused along with the deceased and informant

in Purnahia P.S. Case No. 13/83 under Section 27 of the

Arms Act. He was also accused in a case under Section 395

of the Indian Penal Code along with the accused persons. In

his cross examination vide paragraphs No. 7, 8 & 9, the

defence tried to show that this witness had no need to go to

Ashoka Hotel for taking meal as so many hotels are there

near Mahsaul Chowk as well as east to Mehsaul Chowk

which would have been nearer to the house of this witness.

22. It is strongly argued on behalf of the

appellants that this witness is not trustworthy as he has

changed his version in Court from what he stated before the Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

Investigating Officer. He stated in his evidence that accused

Raghunath Singh and Jagdish Singh fired in quick

succession, but from the evidence of P.W. 8, Investigating

Officer in paragraph-18, he (P.W.2) deposed before the

Investigating Officer that accused Raghunath Singh fired

towards the right side of head of Mohan Singh from a very

close range and who fell on the ground, then accused

Jagdish Singh put his small arm just near the neck of

Mohan Singh and fired.

23. P.W. 5, Arjun Singh, claims to be the eye

witness and brother-in-law of Mohan Singh (deceased). He

deposed that on 07.06.1992 between 9.30 to 9.45 p.m. he

was at the residence of Mohan Singh. An electric bulb was

lightening on a pole, at that time four accused persons and

two unknown persons, who had put gamcha around their

mouth arrived there and enquired from him and his sister

about Mohan Singh. They told that Mohan Singh must be in

market and then those persons went towards town through

Singwahini market. He got suspicious and followed them

and reached near Praveen store then he saw that accused

persons went near his brother-in-law Mohan Singh. He Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

further deposed about the manner of occurrence in similar

way as stated by P.W. 2. He has stated that he along with

Pramod Jha and Anil Singh took Mohan Singh to Hospital

where Mohan Singh was declared dead. He deposed about

his involvement in Sitamarhi P.S. Case No. 66 of 1988, in

which, he, Mohan Singh & Anil Kumar Singh (P.W. 1) were

accused.

24. The contention raised by the learned

counsel for the appellants is that if P.W. 5 was present at the

place of occurrence, there was no reason that he should not

have been cited as a witness in the fardbeyan. When F.I.R.

was written, no statement of this witness was recorded by

the Investigating Officer (vide para 14 of P.W.8). This

witness, vide paragraph No.8 has not stated that he has seen

the occurrence. This witness have not signed as a witness

upon the fardbeyan. Vide paragraph-18 of P.W. 8, this

witness has stated to the Investigating Officer that the firing

by Raghunath Singh was made from point blank range at

the head of Mohan Singh and then Mohan Singh fell down

and immediately Jagdish Singh fired at his neck from point

blank range.

Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

25. P.W. 6, Pramod Chandra Jha, informant of

this case claims to be the eye witness of the occurrence. He

alleged to be the star witness of the case. He deposed about

the time, place and manner of occurrence, as mentioned in

fardbeyan (Ext- 3). In para 21, P.W. 8 has stated that the

informant Pramod Chandra Jha had stated before him that

Raghunath Singh and Jagdish Singh fired at Mohan Singh

from point blank range and had not stated that they fired in

quick succession.

26. P.W. 7, is the doctor, who found following

ante-mortam injuries on the body of the deceased :-

"(I) There was an oval wound size 1' on the left side of neck with inverted margin with greasing base and smoke. The wound had bleeding clots. This was wound of entrance.

(ii) There was irregular margin everted wound on the right side of skull with fracture of right temporal frontal and parietal bones in pieces, the brain matter was in torn condition & blood clots were seen. This was wound of exit - size 3'.

(iii) The left upper inciser teeth was fractured, broken at the level of gum. On opening the skull, the brain matter was found torn from left base to right upper temporal region which was full of blood clots, the right temporal frontal and parietal bones were fractured in multiple pieces; the occipital bone was also fractured on the left side. On opening Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

the neck the big vessels of left side was found torn & muscles were lacerated and neck was full of blood clots. The trachea & oesophagus was also torn and blood clots were present.

27. According, to the doctor, injury no. (I)

found near the neck was wound of entry and injury no. (ii)

found on the right side of skull was wound of exit.

According to him these injuries were of fire arm and were

sufficient to cause death and the death was caused due to

shock and haemorrhage.

28. P.W. 8 is the Investigating Officer of the

case, who proceeded for the place of occurrence at 11.30

p.m. at about 11.40 p.m. He again took the statement of

informant at the place of occurrence. He also examined

Rajeshwar Singh, Gangadhar Jha, Awadhesh Singh and Anil

Kumar. According to him, S.I. Balbhadra Singh prepared

seizure list on his instruction and he signed the seizure list.

The seizure list is signed by witnesses Raj Kumar Prasad

and Mahendra Raut, who has a hotel near P.O. who have not

been examined in this case. Balbhadra Singh, S.I. of police

has also not been examined. The seizure list is marked as

Ext .5. In cross- examination in paragraph -11, he has stated

that he has not noted in the diary about the source of Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

information on which S.I. Praduman Singh went to Sadar

Hospital and recorded fardbeyan. He further stated that he

did not examine the 'Thelawala' on whose 'thela' Mohan

Singh (deceased) was taken to hospital. He also did not

examine any person of Randhir Meidical Hall.

29. We have gone through the entire

evidences available on record which has been adduced on

behalf of the prosecution as well as defence side. On behalf

of the appellants, it is argued that ocular evidence of

witnesses was not consistent with the injury found on the

person of the deceased. In the fardbeyan as well as evidence

during trial, the prosecution story is that Mohan Singh was

given two shots by fire arms. All the eye witnesses

including the hearsay witness P.W. 1 had deposed before the

Investigating Officer that firstly, the revolver was fixed by

one accused on the head of the deceased and it was fired

and then deceased fell down and thereafter, another

accused fixed his revolver on the neck of Mohan Singh

and fired. But during trial, the witnesses have denied their

earlier statements made before the Investigating Officer and

all of them stated that firing were made in quick succession Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

by two accused persons. The Medical Officer P.W. 7 has

stated that the injury was found on the body of the deceased

on the neck where the injury of entrance and injury found

on the head was the injury of exit. It was a case of solitary

shot. It clearly falsifies the story of the witnesses and proves

that none of the witnesses had seen the occurrence. In a case

cited in 1980 Cri. L.J, Page 1298, it is observed by the

Hon'ble Apex Court vide paragraph -13, the version of

prosecution witnesses with regard to the vital fact was

inherently improbable and intrinsically incredible. It could

not be accepted in preference to the evidence of the medical

expert.

30. It is argued on behalf of the appellants

that on behalf of the defence as many as 7 D.Ws have been

examined and some documents have also been filed. D.W.s

1, 3, 5 and 6 are staffs of Bihar State Electricity Board

Power sub-station. They have been examined to show that

in the night of 07.06.1992, there was no supply of

electricity in Sitamarhi Town from 20.35 hours till 2 p.m.

of the next day. Ext.s F and F/1 are writings of Jawahar Pd.

Chowdhary and Brahmhdeo Mandal , Switch Board Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

Operators in Dumra Power sub-station. According to D.W.

5, there was no supply of electricity in Stamarhi town from

21.15 hours of 7.6.1992 till 9.15 hours of 8.6.1992.

31. It is argued on behalf of the appellants

that learned lower court has committed an error in not

relying the evidence in respect of disconnecting of the

power supply at the time of occurrence which are well

proved by the defence side. It is further argued that the

prosecution has failed to prove the alleged motive for the

murder of Mohan Singh. It is submitted that when motive is

asserted, it is to be proved. The alleged motive in this case

is a dispute between one Amrendra Mishra and accused

Raghunath Singh for a partnership in which deceased,

Mohan Singh had done Panchayti against Raghunath Singh.

P.W. 6, the informant, in paragraph -16 has admitted that he

did not mention the date, time and place of so-called

panchayti in the first information report and no ocular or

document evidence has been adduced to corroborate the

panchayti, that no memorandum of panchayti was

produced. It was therefore submitted that the prosecution is

failed to establish the alleged motive.

Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

32. The further contention of the appellants is

that the prosecution has also failed to prove the place of

occurrence. P.W. 7, doctor has stated that the left upper

incise tooth of the deceased was found fractured and broken

at the level of gum but no trace of broken teeth was found

on the alleged place of occurrence. The doctor, P.W. 7

further stated that at the exit point of injury no. II bone of 3"

diameter was found missing but no such bone was found on

the alleged place of occurrence. P.W. 6 in paragraph - 18

has admitted that at the time of alleged occurrence deceased

Mohan Singh was wearing a leather chappal but on the

alleged place of occurrence or in the inquest report, there is

no mention that any chappal was found. The Investigating

Officer (P.W. 8) in paragraph - 16 in his evidence has

admitted that he did not find any broken teeth or bone of

scalp or any chapal at the alleged place of occurrence. For

want of any explanation and for the absence of these

articles, the alleged place of occurrence become doubtful.

Further contention on behalf of the appellants is that the

seizure of blood from the alleged place of occurrence was

highly suspicious because the seizure list witness, Raj Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

Kumar Prasad and Mahendra Raut have not turned up to

prove the seizure. They have not come to say that the

seizure list was prepared by S.I. Balbhadra Singh & P.W. 8,

the investigating Officer in paragraph - 14 has admitted that

there was no mention in the case diary that he directed

Balbhadra singh to prepare seizure of the blood. The seizure

list (ext. -5) does not bear the signature of Balbhadra Singh.

P.W. 8 in paragraph -18 has admitted that there was no

mention in the case diary that blood stains was kept in

malkhana of the police station.

33. Having considered the above

submissions made on behalf of the parties, it is clear that

prosecution has failed to prove its case beyond reasonable

doubt in respect of place of occurrence, manner of

occurrence and explanation of the injuries sustained by the

person of the deceased. Motive has not proved as asserted

by the prosecution. Learned lower court had committed

wrong in respect of not relying the non-supply of

electricity at the time of occurrence as prosecution

witnesses has seen the occurrence in the light of electricity.

34. In this case, it is admitted fact that Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

prosecution witnesses and accused persons have inimical

terms with each other and the accused persons fired at the

deceased before the presence of the informant, Pramod

Chandra Jha, who also has inimical terms with the accused

persons. It is candid that accused persons were on inimical

terms from before with the informant, deceased and their

companions, We find no possibility that he (informant)

could have been allowed by the accused persons to escape

unscathed from the place of occurrence for becoming the

star witness of the prosecution case.

35. All the prosecution witnesses i.e. P.Ws. 2,

5 & 6, who claims to be eye witnesses are interested

witnesses and related to each other. After scrutinizing their

evidence with care and caution, we find that they suffered

from infirmities. There is no consistency in the evidence of

the prosecution witnesses with respect to place, time and

manner of occurrence.

36. In that view of the matter and for the

reasons aforesaid, the judgement of conviction and order of

sentence dated 3rd of February 1994 passed by the learned

2nd Additional Sessions Judge in connection with Sessions Patna High Court CR. APP (DB) No.114 of 1994 dt.01-12-2021

Trial No. 229 of 1992/9 of 1993 arising out of Sitamarhi

P.S. Case No. 168 of 1992 is set aside.

37. The appeal is allowed. The appellants are

acquitted of all the charges.

38. Since the appellants have been released

on bail, they are therefore, discharge from the liabilities of

their bail bonds.

(Sunil Kumar Panwar, J)

A.M. Badar, J

( A. M. Badar, J) Jagdish/-

AFR/NAFR
CAV DATE                24/11/2021
Uploading Date          02/12/2021
Transmission Date