Manglesh Singh @ Jata Singh vs State Of Bihar
2022 Latest Caselaw 1024 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.358 of 1995
======================================================

Manglesh Singh @ Jata Singh, son of Late Ram Sewak Singh, resident of Village- Bilap, P.S.- Bihta, District- Patna.

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

... ... Respondent ====================================================== Appearance :

For the Appellant : Mr. Sudhanshu Kumar Lall, Advocate Mr. Dhananjay Kumar, Advocate For the State : Mr. Dilip Kumar Sinha, APP For the Informant : Mr. Manoj Kumar Singh, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)

Date : 09-02-2022

This appeal is directed against the judgment dated

27.09.1995 and the consequent order dated 28.09.1995 passed by

the learned Additional Sessions Judge Seventh, Patna in Sessions

Trial No. 742 of 1993 whereby and whereunder the appellant has

been convicted for the offences punishable under Section 302 of

the Indian Penal Code (for short 'IPC') and Section 27 of the Arms

Act and sentenced to undergo rigorous imprisonment for life under

Section 302 of the IPC and rigorous imprisonment for five years

under Section 27 of the Arms Act.

Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

2. On 07.05.1993 at 11:10 AM, one Dhirendra Kumar

(P.W.7) son of Ramadhar Sharma, resident of village Bilap, P.S.-

Bihta, District- Patna gave his oral statement (fardbeyan) at Bihta

Police Station before one Ram Pravesh Singh (P.W.9), an Assistant

Sub-Inspector of Police, Bihta Police Station alleging therein that

on the same day at 10:00 AM, he along with his father was

returning home after spading soil in the sugarcane field and as

soon as they reached near the house of the appellant, he saw

Awadhesh Singh and the appellant sitting there armed with gun

and pistol respectively. Seeing him and his father, Awadhesh Singh

hurled abuses. He ordered the appellant to kill his father Ramadhar

Sharma for the alleged cutting of ridge of the field. On the order of

Awadhesh Singh, the appellant fired from his pistol, which hit his

father in his back as a result of which he fell down and started

struggling for life. Immediately thereafter, Awadhesh Singh also

fired from his gun, which hit him on the left palm in between left

thumb and left index finger and bleeding started. He raised hulla

upon which the neighbours and other co-villagers rushed there and

saw the occurrence. He stated that his injured father was taken to

Dariyapur on a cot for treatment at Dariyapur Hospital and from

Dariyapur he was referred to the Referral Hospital, Bihta, where

the doctor declared his father dead after examining him. The dead Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

body of his father was taken to Bihta Police Station. He claimed

that Awadhesh Singh and the appellant resorted to firing with an

intention to kill his father as also to kill him.

3. On the basis of the aforesaid oral statement of the

informant Dhirendra Kumar, Bihta Police Station Case No. 81 of

1993 dated 07.05.1993 was registered under Sections 302 and

307/34 of the IPC and Section 27 of the Arms Act and

investigation was taken over by the ASI Ram Pravesh Singh

himself.

4. On completion of investigation, the police submitted

charge-sheet against the appellant and Awadhesh Singh under

Sections 302, 307/34 of the IPC and Section 27 of the Arms Act in

the court of A.C.J.M., Danapur.

5. The learned A.C.J.M., Danapur took cognizance of

the offences and after supplying the documents in compliance with

Section 207 of the Code of Criminal Procedure (for short

'Cr.P.C.'), committed the case to the court of Sessions vide order

dated 07.10.1993.

6. Later on, the learned Sessions Judge, Patna

transferred the case to the court of 7th Additional Sessions Judge,

Patna. The learned 7th Additional Sessions Judge explained the

charges under Section 302 of the IPC and Section 27 of the Arms Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

Act to the appellant Manglesh Singh and Sections 302/34 and 307

of the IPC as also Section 27 of the Arms Act to Awadhesh Singh.

Both of them denied the charges and claimed to be tried.

Accordingly, charges under the aforesaid provisions were framed

and the trial commenced.

7. During trial, the prosecution examined as many as

nine witnesses in order to prove the charges. Out of them, Raj Deo

Ram (P.W.1), Kundan Kumar (P.W.2) and Dhirendra Kumar

(P.W.7) claimed themselves to be the eye-witnesses to the incident

whereas Jitendra Kumar (P.W.3) and Yogendra Singh (P.W.4) are

hearsay witnesses. Dr. Basuki Nath Gupta (P.W.5) is the doctor,

who had held the post-mortem examination on the body of the

deceased, Ram Pravesh Singh (P.W.9) is the first Investigating

Officer (for short 'I.O.') and Asrar Ahmad (P.W.8) is the second

I.O. of the case.

8. Dhirendra Kumar (P.W.7) is the informant of the

case. He is the son of the deceased. In his examination-in-chief, he

has corroborated the allegations made in his oral statement on the

basis of which the first information report (for short 'FIR') was

instituted. He stated that at the place of occurrence, Kundan

Kumar (P.W.2), Raj Deo Ram (P.W.1), Anil Sharma (not

examined) and several other co-villagers were present and had Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

witnessed the incident. He further stated that Raj Deo Ram had

wrapped the wound of his father by means of gamchha and his

father was taken on a cot with the help of other witnesses to

Dariyapur from where he was taken to the Referral Hospital, Bihta

by jeep where the doctor declared his father dead after examining

him and then the dead body was taken to Bihta Police Station. His

statement was recorded by an A.S.I. of Police (P.W.9) and he and

his brother Jitendra Kumar (P.W.3) put their signature on it. He

further stated that the A.S.I. (P.W.9) had prepared the inquest

report of the deceased in presence of Raj Deo Ram (P.W.1) and

one Anil Sharma (not examined). He further disclosed that he had

filed a protest petition against the I.O. of the case in the court of

A.C.J.M., Danapur as he was not arresting the miscreant Awadhesh

Singh. It was one Akhilesh Singh, an advocate, who had drafted

the application, which was typed by one Dinesh Singh in his

presence and on that the said advocate had put his signature. He

had also executed vakalatnama in his favour on which the learned

advocate had put his signature. He produced the protest petition

before the court, which was marked as Exhibit-5. He also proved

the vakalatnama executed by him in favour of Akhilesh Singh,

which was marked as Exhibit-6. He identified Awadhesh Singh

and the appellant in the court.

Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

9. In cross-examination, P.W.7 stated that first of all he

went to the hospital and, thereafter, he visited the police station. In

the hospital, he had stayed for 15-20 minutes. The doctor had

examined his injury also, but at that time no treatment was

provided. Subsequently, when he returned from the police station,

the doctor provided him treatment and his wound was stitched. He

stated that when the body of the deceased was taken to the police

station, the I.O. had seen the blood stained ganchha. He stated that

Anil Sharma and Raj Deo Ram had told the I.O. that the injury on

the person of the deceased was caused by the appellant Manglesh

Singh. However, he immediately retracted and said that he does

not remember as to whether they had stated the name of the

assailant before the police or not. He admitted that when he

returned back, the I.O. had visited the place of occurrence, but no

used pellet or empty cartridge or wad was found. The I.O. had seen

that the grass was uprooted and earth and ashes were thrown at the

place of occurrence. Again, he retracted by saying that he does not

remember as to whether the I.O. had found mark of blood or not at

the place of occurrence. He admitted that he had not seen any

person removing the earth or throwing ashes at the place of

occurrence. He was not even told by anyone in this regard. He

admitted that the place of occurrence is not a lane used by general Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

people rather it was his private lane and the accused persons had

no concern with that place as their house is situated at some

distance from there. He denied the defence suggestion that he

himself had not witnessed the occurrence. He also denied the

defence suggestion that the dead body of the deceased was

recovered in the field and the same was brought one day after the

incident. He further stated that it is not true that he had not

sustained gunshot injury. He also denied the defence suggestion

that the place of occurrence, cause of occurrence and the manner

of occurrence were different. He stated that he had not taken the

I.O. to show that they had not cut the ridge of the field. He denied

the defence suggestion that the I.O. had inspected the place of

occurrence and found that neither the field was spaded nor the

ridge was damaged nor the field of the accused persons was

situated adjacent to the place of occurrence. He stated that he had

lodged a complaint against the I.O. before the Assistant

Superintendent of Police. He further stated that no blood was

found on his clothes. He denied the defence suggestion that on the

instigation of his agnate Chotan Singh he has falsely implicated

the accused Awadhesh Singh.

10. Raj Deo Ram (P.W.1) stated in his evidence that on

07.05.1993 at 10:00 AM he was removing pile of garbage in the Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

lane situated in the north of the house of Hari Nandan Singh. He

saw the deceased Ramadhar Sharma and his son Dhirendra Kumar

@ Chote coming after working in the field. At that time, the

appellant Manglesh Singh @ Jata Singh was armed with pistol and

the accused Awadhesh Singh was armed with gun. Awadhesh

Singh started abusing Ramadhar Sharma and ordered Manglesh

Singh to kill him. Thereupon, the appellant fired from his pistol at

Ramadhar Sharma. Though Ramadhar Sharma tried to run away,

he fell down on receiving the shot. When Dhirendra Kumar tried to

rescue his father, Awadhesh Singh fired at him causing injury on

his left palm in between left thumb and left index finger. He stated

that he along with Anil Sharma, Kundan Kumar and others reached

near the place of occurrence and saw Ramadhar Sharma lying

down and struggling for life. Thereafter, he tied the wounds on the

left side of the back of Ramadhar Sharma with his gamchha and

carried him on a cot to Dariyapur with the help of Anil Sharma,

Kundan Kumar and Dhirendra Kumar. He stated that from

Dariyapur, the injured Ramadhar Sharma was taken to the Referral

Hospital, Bihta by jeep where he was declared dead by the doctor,

whereafter, the dead body was taken to the police station where the

FIR was lodged. He stated that the injured Dhirendra Kumar was Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

also treated at the hospital. He identified both the accused persons

in the court.

11. In cross-examination, his attention was drawn

towards his previous statement made before the police during

investigation. He stated that he had told the I.O. that when

Ramadhar Sharma and Dhirendra Kumar were returning back after

working in their field, he saw the appellant Manglesh Singh and

the accused Awadhesh Singh armed with pistol and gun

respectively and they were abusing Ramadhar Sharma. He further

stated that he had stated before the police that Awadhesh Singh had

ordered Manglesh Singh to kill Ramadhar Sharma upon which the

appellant Manglesh Singh fired from his pistol which hit him

while he was trying to run away as a result of which he fell down.

He stated that he had also stated that when Dhirendra Kumar tried

to rescue his father, Awadhesh Singh fired from his gun causing

injury to him on his left palm in between left thumb and left index

finger. He admitted that he had not seen Ramadhar Sharma

keeping his spade at the door of Kundan Kumar. He stated that he

had not made such statement before the police. He further stated

that he had informed the police that it was the informant Dhirendra

Kumar, who told his father that the appellant had fired at him. He

further stated that he had made his statement before the police that Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

he along with Anil Sharma, Kundan Kumar and others had reached

at the place of occurrence and seen Ramadhar Sharma fallen down

on the ground struggling for life. At that time, Ramadhar Sharma

was wearing lungi and ganji, which were drenched with blood. He

stated that he had told the police that he had wrapped the wound

on the back of Ramadhar Sharma by means of gamchha as a result

of which gamchha was also drenched with blood. He denied to

have stated before the police that the gamchha was wrapped

around the abdomen of the deceased. He stated that immediately

after the occurrence 15-20 co-villagers had assembled and they

were told that it was the appellant Manglesh Singh and the accused

Awadhesh Singh, who had opened fire. He admitted that his

statement was recorded by the A.S.I. of Police. However, he

denied that he had not taken the name of the persons, who had

opened fire or that the victim tried to run away or that the

informant tried to rescue him.

12. Kundan Kumar (P.W.2) is another eye-witness to

the incident. In his examination-in-chief, his statement is

consistent with the statement of P.W.1. He stated that on

07.05.1993 at 10:00 AM he had gone to the shop of Anil Sharma to

buy tea leaf and sugar when he heard hulla. He further stated that

the appellant Manglesh Singh and the accused Awadhesh Singh Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

were abusing Ramadhar Sharma and on the order of Awadhesh

Singh to kill Ramadhar Sharma saying that he had cut the ridge of

the field, the appellant Manglesh Singh opened fire causing injury

in the back below the left shoulder of Ramadhar Sharma. He

further stated in his evidence that accused Awadhesh Singh also

fired from his gun which hit on the left palm in between left thumb

and left index finger of Dhirendra Kumar.

13. In his cross-examination, he admitted that there was

land dispute between the accused Awadhesh Singh and the

deceased, but no case was filed in the court. According to him, the

disputed land is situated in the east direction of the house of the

accused Awadhesh Singh. He stated that the deceased had got his

field near the transformer in the west direction of his house. He has

given the boundary of the field, which was the place of occurrence

as follows:

North: Field of Kalash Deo Singh

South: Field of Deo Prasad Pathak

East: Field of Nar Singh

West: Field of Deen Bandhu Pathak.

His attention was also drawn towards his previous statement. He

stated that he had not made such statement before the police that

the deceased Ramadhar Sharma had taken his spade for spading Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

the sugarcane field and after working in the field, he was returning

together with his son Dhirendra Kumar. He stated that he had not

stated before the police that Ramadhar Sharma stopped at his door

for handing over the spade. He denied to have stated before the

police that when the deceased was returning the spade, Dhirendra

Kumar came running and said that the appellant had opened fire.

He further denied the defence suggestion that he had stated before

the police that when the informant Dhirendra Kumar and the

deceased Ramadhar Sharma moved ahead towards the place of

occurrence, he heard the sound of firing twice. He admitted that

the lungi and ganji of the deceased as well as the gamchha

wrapped around his wound were drenched with blood. However,

neither the empty cartridges nor the pellet nor wad was found at

the place of occurrence. He stated that blood had fallen on the

ground at the place of occurrence. He denied to have stated before

the police that he had tied the gamchha around the wound caused

in the abdomen of the deceased.

14. Jitendra Kumar (P.W.3) is the full brother of the

informant. He has stated in his evidence that the incident took

place at about 10:00 AM on 07.05.1993. About 20 minutes prior to

the incident, he had proceeded from his village to Bihta on a

bicycle. On the way, he saw his brother Dhirendra Kumar and his Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

father returning to their home. He Stated that as soon as he reached

near Bihta bridge, he saw a jeep in which his father was being

carried in an injured condition by his brother Dhirendra Kumar

and others. His brother was also injured. He also boarded the jeep

and proceeded to the hospital. He stated that he learnt from his

brother Dhirendra Kumar that when he along with his father was

returning home and when they reached near the house of the

appellant, he opened fire causing injury to his father, who

sustained injury in his back as a result of which he fell down on

the ground. Thereafter, Awadhesh Singh also opened fire causing

injury to the informant on his left palm in between his left thumb

and left index finger. He stated that the doctor declared his father

dead in the hospital and then he along with the informant took the

dead body to the police station where the statement of the

informant was recorded in his presence. He proved his signature

on the fardbeyan of the informant recorded by the police, which

was marked as Exhibit-1. He also proved the signature of his

brother on the fardbeyan, which was marked as Exhibit-1/1.

15. In cross-examination, he stated that he was examined

by the police at the place of occurrence. He claimed that he gave

the same statement before the police as stated before the court. He

denied to have stated before the police that he learnt that his father Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

and brother were returning from the field and while his father was

handing over the spade near the door of Kundan Kumar (P.W.2),

his brother had proceeded ahead and the appellant had opened fire.

He further denied to have stated before the police that his brother

had informed his father about firing and thereafter his father and

brother both proceeded ahead when a bullet hit his father and

another bullet hit his brother. He denied to have stated before the

police about the firing taking place thrice. He also denied to have

stated before the police that the bullet hit the abdomen of his father

or that his father was taken to hospital after tying the wound

around his abdomen with gamchha.

16. Yogendra Singh (P.W.4) was tendered for cross-

examination. In cross-examination, he stated that the deceased

was his father-in-law. His village is situated at a distance of 3 km

from village Bilap. He came on a bus to village Bilap on the date

of occurrence at about 01:30 PM and stayed there in the night.

17. Dr. Basuki Nath Gupta (P.W.5) was posted at Sub-

Divisional Hospital, Danapur. On 07.05.1993, he had conducted

post-mortem examination on the dead body of the deceased

Ramadhar Sharma. In his evidence he stated that the body of the

deceased was identified by the constable Govindji Dubey (not

examined) and Chowkidar Shree Paswan (not examined), which Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

was brought at 04:30 PM on 07.05.1993. The post-mortem

examination on the body of the deceased commenced at 05:00 PM.

He found the following ante-mortem injuries on external and

internal examination of the body of the deceased:

"(i) On external examination rigor mortis present in all four limbs, eyes open, mouth closed and found lacerated wounds 16 in numbers size 1/8" x 1/8" x chest cavity deep on the left side back of chest below scapula. Margins inverted, blackening present over all wounds. It was wound of entry.

(ii) On internal examination chest after opening blood and blood clots present in left chest cavity. 16 pellets received (extracted) from the left lung which were sealed in a vial and handed over to the police. Left lung lacerated, right lung pale. Heart- right side empty - left side empty, stomach about four ounces digested material; small gut-fluid plus gas - large gut-fickle matter plus gas; liver, spleen and both kidneys- all pale; Bladder full; brain matter-pale."

18. He opined that the cause of death was hemorrhage

and shock due to firearm injuries. According to him, time elapsed

since death was within 36 hours. He proved the writing and

signature on the post-mortem report, which was marked as

Exhibit-2. He stated that firearm was used from a close range. Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

19. In cross-examination, he admitted that rigor mortis

commences 3 to 6 hours after the death. He further admitted that it

takes 12 hours in developing rigor mortis over the entire body.

Thereafter, rigor mortis persists up to 12 hours. He admitted that

on the body of the deceased he found rigor mortis in the last stage.

He further admitted that on the basis of presence of rigor mortis he

had given the approximate time of death within 36 hours. He

admitted that in no case the death would have been caused within

12 hours. He further admitted that because of the injuries on the

person of the deceased profuse bleeding was possible.

20. Dr. Pradeep Kumar (P.W.6) is the doctor, who had

examined the injured informant. He stated in his evidence that on

07.05.1993 he was posted as Medical Officer Incharge at the

Referral Hospital, Bihta, Patna. On that day, Dhirendra Kumar

was sent to the Referral Hospital, Bihta for treatment. He

examined him at 12:05 PM on the same day and found the

following injuries:

"(1) 1" x 1/4" lacerated would over in between thumb and left index finger.

(2) 2" x 1" swelling on the left elbow posteriorly."

21. In cross examination he admitted that both the

injuries were simple in nature and caused by hard and blunt Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

substance. According to him, the injuries were caused

within six hours. He proved his signature on the injury

report, which was marked as Exhibit-3. He stated that pellet

is hard and blunt substance, but it would cause charring with

the injuries.

22. In his cross-examination, he stated that he had

examined firearm injuries on numerous occasions.

According to him, pellet causes cut or lacerated injury

besides charring whereas stone or brickbat causes swelling

or laceration or both depending upon force. He further

admitted that pellet will either pierce into the body or fall on

the ground. He admitted that both the injuries might have

been caused by different blows of the same hard and blunt

substance or two such substances. He further admitted that

injury no.2 might be possible due to fall and injury no.1

may have been caused by assault with lathi, rod or stone or

brick-bat. He admitted that an injury caused by firearm will

be lacerated with margins charred or blackened. In further

cross-examination, he admitted that injury nos. 1 and 2 were

not caused by firearm.

23. Ram Pravesh Singh (P.W.9) is the first I.O. of

the case. He stated in his evidence that on 07.05.1993 he Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

was posted as an A.S.I. at Bihta Police Station. On that day,

the informant came with the dead body of his father at the

police station. He recorded the fardbeyan of the informant

and lodged the FIR, which was marked as Exhibit-4 on

which Jitendra Kumar (P.W.3) had put his signature as a

witness. He stated that he prepared the inquest report and

proved the same, which was marked as Exhibit-7. He sent

the dead body of the deceased to the hospital with the

constable Govindji Dubey, recorded the subsequent

statement of the informant and handed over the charge of

investigation to Asrar Ahmad (P.W.8).

24. In cross-examination, he disclosed that the

informant had reached at the police station on 07.05.1993 at

11:10 AM. He had prepared the inquest report at 11:30 AM.

He found injuries in between the little finger and ring finger

of the informant. He stated that he had sent the dead body of

the deceased for post-mortem examination at 12:40 PM. He

left the police station for going to the place of occurrence at

01:00 PM and reached at the place of occurrence at 02:30

PM. He took the subsequent statement of the informant

between 02:30 PM and 04:00 PM. The Officer-in-Charge of

the Police Station Asrar Ahmad reached at the place of Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

occurrence at about 04:40 PM and he handed over the

charge of investigation to him. He admitted that the

informant had not stated before him that his father had gone

for spading the sugarcane field on the date of occurrence

rather he had said that he and his father were returning from

the sugarcane field. He admitted that he had stated before

the police that after the firing was made and he raised hulla,

Anil Sharma, Raj Deo Ram, Kundan Kumar and other co-

villagers reached at the place of occurrence. He further

admitted that Anil Sharma and Raj Deo Ram had not stated

before him at the time of preparation of the inquest report as

to who had opened fire and where the firing had taken place.

He admitted that till the time he was at the place of

occurrence, nobody had shown him the place where the

deceased was shot at and the place he had fallen on the

ground after receiving gunshot injury. He denied the defence

suggestion that the fardbeyan of the informant was

antedated and fabricated.

25. Asrar Ahmad (P.W.8) is the second I.O. of the

case. He has stated in his evidence that on 07.05.1993 at

11:10 AM the informant had reached at the police station

along with the dead body of his father. The oral statement of Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

the informant was recorded by the ASI (P.W.9), who took

investigation after registration of the FIR under Sections

302 and 307/34 of the Indian Penal Code and Section 27 of

the Arms Act. The said ASI (P.W.9) had also held the

inquest on the dead body of the deceased in presence of Anil

Sharma and Raj Deo Ram and prepared inquest report. He

further stated that on the order of the probationer A.S.P.-

cum-Officer-in-Charge, Bihta, he proceeded to the place of

occurrence and took charge of investigation from ASI Ram

Pravesh Singh (P.W.9) and inspected the place of

occurrence. According to him, at the time of inspection of

the place of occurrence, grass was found uprooted and fresh

soil was found thrown over it. He stated that he obtained the

injury report of the informant on 08.05.1993 and post-

mortem report of the deceased on 28.05.1993 and after

completing the investigation he submitted charge-sheet

against both the accused persons on 11.08.1993 under

Sections 302 and 307/34 of the IPC and Section 27 of the

Arms Act.

26. In cross-examination, he admitted that the

statement of the informant was not recorded in his presence.

At that time, he was participating in a crime meeting and he Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

took the charge of the case at 04:40 PM. He admitted that no

pellet, bullet or empty cartridge was found at the place of

occurrence. He admitted that blood- or blood-stained earth

was not found at the place of occurrence. He admitted that

he was not shown the place from where pile of garbage was

being removed and where the same was being thrown. He

admitted that he did not find the uprooted grass lying at the

place of occurrence and no mention in this regard has been

made during investigation in the case diary. He admitted

that there is no mention of the fresh soil thrown at the place

of occurrence in the case diary. He admitted that no member

of the family of the deceased produced blood stained

gamchha, gendra or clothes of the deceased before him. He

claimed that on 08.05.1993 he had gone near the sugarcane

field of the deceased and inquired from the persons of the

locality, and he came to know that no quarrel had taken

place near the sugarcane field nor the accused Awadhesh

Singh had any field adjacent to the said sugarcane field of

the deceased. He admitted that no witness had stated before

him the place from which firing was resorted to by the

accused persons.

Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

27. In further cross-examination, P.W.8 admitted

that there is no eye witness in the case except the informant.

He contradicted P.W.1 by stating in paragraphs 46 and 48 of

his cross-examination that P.W.1 had not stated before him

that the appellant had fired causing injury to Ramadhar

Sharma. He further contradicted P.W.1 by stating that he had

not even stated that when the informant along with his

father was returning home after spading soil in the

sugarcane field, he saw that accused Awadhesh Singh armed

with gun and appellant Manglesh Singh armed with pistol

hurled abuses and Awadhesh Singh ordered the appellant to

kill Ramadhar Sharma on which the appellant fired from his

pistol. He admitted that P.W.1 had not stated that when the

informant tried to rescue his father, Awadhesh Singh fired

from his gun which hit the informant in his left palm in

between left thumb and left index finger. He stated that

P.W.1 had stated before him that he had seen Ramadhar

Sharma keeping spade at the door of Kundan Kumar and at

that time he heard the sound of firing. He stated that

Dhirendra Kumar (P.W.7) had apprised his father that the

appellant had opened fire. He stated that Ramadhar Sharma

and Dhirendra Kumar were asked not to move further, but Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

they did not pay any heed and the moment they moved

ahead, he heard the sound of firing twice. He stated that

P.W.1 had stated that soon after the firing, he reached at the

place of occurrence and saw Ramadhar Sharma fallen on the

ground and bleeding from the injury on the hand of the

informant. He admitted that P.W.1 had not stated before him

that he together with Anil Sharma, Kundan Kumar and other

villagers reached at the place of occurrence and saw

Ramadhar Sharma fallen on the ground and struggling for

life as he had sustained gunshot injury in his back. He

admitted that P.W.1 had stated before him that he had

wrapped gamchha on the belly of Ramadhar Sharma. He

stated in para 48 and 49 of his cross-examination that P.W.2

had not made such statement as made by him in his

examination-in-chief before the court. He stated that P.W.2

had not disclosed before him that on the date of occurrence

at 10:00 AM he had gone to the shop of Anil Sharma to buy

tea leaf and sugar. He had disclosed that at that time he was

at his house and the deceased had taken his spade for

spading his sugarcane field and while he was returning from

the sugarcane field after spading his field, his son Dhirendra

Kumar was also with him. He disclosed that Dhirendra Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

Kumar proceeded ahead while the deceased had stopped at

his door for handing over the spade. He had further stated

that in the meantime, the informant Dhirendra Kumar

returned and told his father that the appellant had opened

fire. He admitted that P.W.2 had disclosed that when the

deceased and the informant proceeded towards the place of

occurrence, he heard the sound of firing twice and when he

reached at the place of occurrence, he saw the deceased

lying on the ground and the informant in an injured

condition. He stated that P.W.2 had not stated before him

that he heard hulla when he was going to the shop of Anil

Sharma for buying tea leaf and sugar. He admitted that

P.W.2 had also not stated before him that the appellant and

the accused Awadhesh Singh were abusing the deceased

Ramadhar Sharma. He had also not stated that Awadhesh

Singh ordered to kill Ramadhar Sharma because he had cut

the ridge of the field. He further admitted that P.W.2 had not

stated before him that Awadhesh Singh was having gun in

his hand and the appellant was armed with pistol at the

relevant time and on the order of Awadhesh Singh the

appellant opened fire causing injury to Ramadhar Sharma

on the back below his shoulder. He admitted that P.W.2 had Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

not even stated that Awadhesh Singh also opened fire from

his pistol causing injury to Dhirendra Kumar. He further

admitted that P.W.2 had not stated before him that he and

Raj Deo Ram wrapped gamchha around the wound

sustained by the deceased and took him to Dariyapur from

where he was taken to Bihta in a jeep. He stated that P.W.2

had stated before him that gamchha was wrapped around the

belly of the deceased and Ramadhar Sharma was taken to

hospital.

28. In his further cross-examination, he

contradicted P.W.3 by admitting that he had not disclosed in

his statement made before the police that his brother and

father were taken in a jeep. He had not even disclosed that

he came to know about the occurrence from his brother

Dhirendra Kumar (informant). He had not disclosed the time

when his brother and father were going towards their house

and when they reached near the house of the appellant

Mangalesh he fired from his pistol causing injury in the

back below the shoulder of his father as a result of which he

fell on the ground whereafter Awadhesh Singh also fired

causing injury to his brother. He stated that P.W.3 had stated

before him that he came to know that when his father and Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

brother were returning from the field and when they reached

at the door of Kundan Kumar his father stopped to hand

over the spade and his brother proceeded ahead and heard a

sound of firing. He stated that P.W.3 had stated that his

brother had informed his father regarding the said firing and

when both of them proceeded ahead, his father sustained

one gunshot injury and another gunshot injury was caused

upon his brother Dhirendra Kumar. He stated that P.W.3 had

stated before him that he came to know that three rounds of

firing were made on that day. He had disclosed that his

father had sustained injury in his abdomen and his wound

was wrapped with gamchha and he was taken to the

hospital.

29. After the closure of the prosecution evidence,

the circumstances appearing in the evidence against the

appellant and the accused Awadhesh Singh were brought to

their notice and their statement were recorded under Section

313 of the Cr.P.C. In their respective statements, they

pleaded their innocence and denied their involvement in any

manner in the alleged offence. The defence did not lead any

evidence to rebut the charges. Thus, arguments were heard

on behalf of the parties and vide impugned judgement the Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

appellant and the accused Awadhesh Singh were held guilty

and vide consequent order they were sentenced for the

offences under which they were charged. It would be

relevant to note here that the convict Awadhesh Singh

challenged the impugned judgement and order before this

Court by fling a separate appeal vide Criminal Appeal (DB)

No. 329 of 1995, which got abated due to his death during

the pendency of his appeal.

30. Mr. S.K. Lall, learned counsel for the appellant

submitted that from the evidence of P.W.1 and P.W.2 read

with the evidence of the I.O. it is apparent that they are not

the eye witnesses to the occurrence and they have developed

the story from stage to stage. He submitted that the I.O. has

contradicted P.W.1, P.W.2 and P.W.3 in material particular.

He further contended that the death would not have been

caused as disclosed in the FIR and in the evidence adduced

by the prosecution witnesses during trial as the doctor

(P.W.5) admitted in his evidence that in no case death would

have been caused within 12 hours of the post-mortem

examination. He submitted that the medical evidence totally

rules out the possibility of the death of the deceased at the

time when the incident is said to have taken place rather the Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

death of the deceased was caused in a different manner

much prior to the incident as alleged, but due to enmity a

false and concocted case was instituted.

31. Mr. Lall, learned counsel for the appellant

argued that though the case of the prosecution is that the

injury caused on the person of the informant was by firearm,

the doctor (P.W.6), who examined him, completely ruled out

the possibility of the injury having been caused by the

firearm. He admitted that the injuries caused to the

informant were due to fall and assault with hard and blunt

substance like lathi, rod, stone or brickbat. He urged that the

trial court did not take into consideration the contradictions

in the evidence of P.W.1, P.W.2, P.W.3 and P.W.7 taken from

P.W.8 and P.W.9. He contended that the independent

witnesses have been withheld by the prosecution and the

prosecution has examined only family members and highly

interested witnesses. The witness of inquest, namely, Anil

Sharma was not examined. It has come in the evidence of

the witnesses that there were other villagers, who were

present and saw the occurrence, but none of them were

examined. He contended that Govindji Dubey, the police

constable and the Chowkidar Shree Paswan, who brought Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

the body of the deceased to the Sub-Divisional Hospital and

identified the corpse were not examined. He contended that

Dhirendra Kumar (P.W.7), who is the first informant of the

case and P.W.3, are sons of the deceased. They are highly

interested witnesses. Similarly, Raj Deo Ram (P.W.1) is the

ploughman of the deceased. He is also highly interested

witness. He contended that P.W.1 is also interested witness

as his uncle Chotan Singh had enmity with the accused

Awadhesh Singh.

32. On the other hand, Mr. Dilip Kumar Sinha,

learned counsel for the State being assisted by Mr. Manoj

Kumar Singh, learned counsel for the informant submitted

that in the present case the trial court has considered the

evidence adduced during trial and arrived at a right

conclusion. There are three eye witnesses, who supported

the case of the prosecution. The informant (P.W.7) in his

testimony corroborated the initial version on the basis of

which the FIR was registered. The evidence of Raj Deo

Ram (P.W.1) and Kundan Kumar (P.W.2) is also consistent.

He submitted that right from the beginning the prosecution

evidence is consistent about the name of the accused

persons, the weapons used in the offence, the place of Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

occurrence and the manner of occurrence. He submitted that

motive was also present in this case. In his deposition, P.W.2

stated that there was land dispute between the accused

Awadhesh Singh and the deceased and on the date of

occurrence at about 10:00 AM the accused Awadhesh Singh

started abusing the deceased on the ground that he had cut

down the ridge of his field. Because of this dispute he killed

Ramadhar Sharma. He contended that the medical evidence

also supports the prosecution case. As per Dr. Basuki Nath

Gupta (P.W.6), lacerated wound was found on the body of

the deceased which was cause due to firearm injury. He also

stated that firearm was used from close range and

blackening was present over the wound. He submitted that

so far as the medical evidence regarding rigor mortis is

concerned, the opinion of the doctor cannot be the decisive

factor to determine the time of death. According to him,

rigor mortis depends upon variety of factors. Time of on-set

of rigor mortis varies in different cases. It also depends on

the climatic condition. He submitted that one cannot

estimate the time of death only on the basis of rigor mortis.

He urged that the medical evidence of the doctor cannot

determine the fate of a criminal case. According to him the Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

law is well settled that if there is any discrepancy, it is the

ocular evidence which is to be preferred over the medical

evidence of the doctor. He submitted that in the present case

since the eye witnesses have given consistent account of the

occurrence, the trial court has rightly not given much weight

to the medical evidence. He contended that non-examination

of the witness to the inquest, namely, Anil Sharma or any

other witness has not caused any prejudice to the defence.

He contended that the witnesses examined in this case are

all natural witnesses, who had seen the occurrence and they

cannot be termed to be interested witnesses even if two of

them are related to the deceased and the other one happens

to be ploughman.

33. I have cosidered the rival submissions advanced

on behalf of the parties and carefully perused the evidence

on record.

34. As already noticed, in the FIR, the date and

time of occurrence of the offence was 10:00 AM on

07.05.1993. On the same day, after 7 hours, the post-mortem

examination on the body of the deceased Ramadhar Sharma

was conducted. The doctor (P.W.5), who conducted post-

mortem examination, stated in his examination-in-chief that Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

on external examination rigor mortis was found present in

all four limbs of the deceased. In cross-examination, he

admitted that rigor mortis commences 3 to 6 hours after the

death and take 12 hours in developing over the entire body.

Thereafter, it persists up to 12 hours. He also admitted that

in the present case he found rigor mortis in last stage.

Hence, according to him, in no case, the death would have

been caused within 12 hours. Learned counsel for the State,

however, disputed the finding of the medical expert. He

contended that rigor mortis cannot be the decisive factor to

determine the time of death, which depends upon variety of

factor.

35. In view of the rival submissions made at the

bar, I have consulted Modi's Medical Jurisprudence and

Toxicology, which would be useful to refer the opinion of

the author in Modi's Medical Jurisprudence and Toxicology,

24th edition at page 343, which reads as under:

"...Owing to the setting in of rigor mortis, all the muscles of the body become stiff, hard, opaque and contracted, but they do not alter the position of body or limb. A joint rendered stiff and rigid after death, if flexed forcibly by mechanical violence, will remain supple and flaccid, but will not return to its original position Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

after the force is withdrawn; whereas a joint contracted during life in cases of hysteria or catalepsy will return to the same condition after the force is taken away.

Rigor mortis first appears in the involuntary muscles, and then in the voluntary muscles. In the heart it appears, as a rule, within an hour after death, and may be mistaken for hypertrophy, and its relaxation or dilatation, atrophy or degeneration. The left chambers are affected more than the right. Post-mortem delivery may occur owing to the contraction of the uterine muscular fibres.

In the voluntary muscles, rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the abdomen and lower extremities. Last to be affected, are the small muscles of the fingers and toes. It passes off in the same sequence. Time of onset- This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop. In India, it usually commences in one to two hours after death.

Duration- In temperate regions, rigor mortis usually lasts for two to three days. In northern Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

India, the usual duration of rigor mortis is 24 to 48 hours in winter and 18 to 36 hours in summer. According to the investigations of Mackenzie, in Calcutta, the average duration is nineteen hours and twelve minutes, the shortest period being three hours, and the longest forty hours. In Colombo, the average duration is 12 to 18 hours. When rigor mortis sets in early, it passes off quickly and vice versa. In general, rigor mortis sets in one to two hours after death, is well developed from head to foot in about twelve hours. Whether rigor is in the developing phase, established phase, or maintained phase is decided by associated findings like marbling, right lower abdominal discoloration, tense or taut state of the abdomen, disappearance of rigor on face and eye muscles...."

(emphasis added)

36. It has rightly been submitted by Mr. Dilip

Kumar Sinha, learned counsel for the State that the presence

of rigor mortis by itself cannot be decisive of the time of

death. However, I find it difficult to believe that rigor mortis

would be found in all four limbs, which would mean all

over the body within 7 hours of the death. It is true that on

the basis of presence of rigor mortis all over the body of the

deceased, no opinion can be given with mathematical Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

precision regarding time of death. However, probability of

the death being beyond 7 hours of the commencement of the

autopsy on the body of the deceased cannot be ruled out. At

this stage, it is relevant to mention that the court is

conscious of the judicial pronouncements that in case of

discrepancy between the medical evidence and ocular

evidence subject to test of reliability, it is the latter, which is

to prevail. However, I must record at this stage that the

finding of the doctor, who conducted the post-mortem

examination over the body of the deceased, has not been

challenged by the prosecution in any manner at any stage.

37. Adverting to the ocular evidence on record, it is

doubtful that the alleged eye witnesses had seen the

occurrence. They all have been contradicted by the I.O. in

material particular. From the evidence of Raj Deo Ram

(P.W.1) and Kundan Kumar (P.W.2) read with the evidence

of the I.O., it would be evident that they are not the eye

witnesses to the occurrence. P.W.1 was contradicted by the

second I.O. Asrar Ahmad (P.W.8) in para 46 and 47 of his

deposition by saying that P.W.1 had not stated before him

that the appellant fired causing injury to the deceased. He

further stated that he had not even stated that when the Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

informant along with his father was returning home after

spading the soil in the sugarcane field, he saw that the

accused Awadhesh Singh armed with gun and the appellant

Manglesh Singh armed with pistol hurled abuses. He further

contradicted him by saying that he had not stated that the

accused Awadhesh Singh ordered the appellant to kill

Ramadhar Sharma upon which the appellant fired from his

pistol. He also contradicted him by saying that he had not

stated that when the informant tried to rescue his father, the

accused Awadhesh Singh fired from his gun which hit him

between his left thumb and left index finger. The I.O.

(P.W.8) stated in his deposition that P.W.1 had stated before

him that he had seen Ramadhar Sharma keeping his spade at

the door of Kundan Kumar. At that time, he heard the sound

of firing upon which the informant told his father that the

appellant had opened fire. The I.O. (P.W.8) stated that P.W.1

had stated before him that as soon as Ramadhar Sharma and

Dhirendra Kumar moved ahead, he heard the sound of firing

twice. On hearing the sound ,when he reached towards the

place of occurrence, he saw that Ramadhar Sharma had

fallen on the ground and there was bleeding from the injury

sustained by Dhirendra Kumar. The I.O. (P.W.8) further Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

contradicted P.W.1 by admitting that he had not stated that

he had wrapped gamchha around the wound sustained by

Ramadhar Sharma in his back below his shoulder. He had

stated before him that he had wrapped gamchha on the belly

of Ramadhar Sharma. The aforesaid contradictions would

suggest that P.W.1 did not witness the occurrence himself.

Though, he did not claim to be the eye witness before the

I.O., he developed the case during trial and supported the

prosecution case as narrated by the informant. I also find

that on all the points on which contradiction was taken from

the I.O., the attention of P.W.1 was drawn while he was

being cross-examined during trial.

38. Similarly, Kundan Kumar (P.W.3) has been

contradicted in material particular by the I.O. (P.W.8) of the

case in para 48 to 50 of his deposition by stating that P.W.2

had not made the statement as narrated by him in his

examination-in-chief before the court. He had not stated that

on the date of occurrence at 10:00 AM he had gone to the

shop of Anil Sharma to buy tea leaf and sugar rather he had

stated that at that time he was at his house. He stated that

P.W.2 had stated before him that the deceased Ramadhar

Sharma had taken his spade and had gone to his sugarcane Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

field for spading and when he was returning, his son

Dhirendra Kumar was together with him. He stopped at his

door and handed over the spade. While he was handing over

the spade, the informant Dhirendra Kumar came running

and told that the appellant had opened fire and when the

informant and his father proceeded ahead towards the place

of occurrence, he heard the sound of firing twice. On

hearing the sound of firing, he rushed to the place of

occurrence and found Ramadhar Sharma fallen on the

ground struggling for his life. The informant had sustained

bleeding injury on his hand. The I.O. further contradicted

P.W.2 by stating in his deposition that he had not stated

before him that when he was going to the shop of Anil

Sharma, he heard hulla. He had not stated that the appellant

and the accused Awadhesh Singh were abusing Ramadhar

Sharma. He had also not stated before him that accused

Awadhesh Singh order to kill Ramadhar Sharma as he had

cut down the ridge of his field or that Awadhesh Singh was

having gun in his hand and the appellant was having pistol

in his hand or that on the order of Awadhesh Singh, the

appellant fired causing injury to Ramadhar Sharma in his

back behind his shoulder or that Awadhesh Singh fired from Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

his gun causing injury in between left thumb and left index

finger of the informant or that the appellant and Awadhesh

Singh were seen running away from the place of occurrence

or that Raj Deo Ram (P.W.1) and Anil Sharma (not

examined) had witnessed the occurrence. The I.O. further

contradicted P.W.2 by stating that P.W.2 had stated before

him that he wrapped gamchha on the belly of Ramadhar

Sharma and took him to hospital. Thus, it would be evident

from the evidence of the I.O. that neither P.W.1 nor P.W.2

had witnessed the occurrence. They had developed the

prosecution case during trial.

39. The only other eye witness is P.W.7. He is the

informant of the case and an injured witness. I am conscious

of the fact that the evidence of an injured witness is entitled

to a greater weight and the testimony of such a witness is

considered to be reliable. In the present case, the informant

has alleged that he sustained injury in between his left

thumb and left index finger due to firing caused by the

accused Awadhesh Singh. I have already noticed the

deposition of Dr. Pradeep Kumar (P.W.6), who was posted

as Medical Officer In charge at Referral Hospital on

07.05.1993 and had treated the informant. He had found Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

lacerated wound 1" x ¼" in between thumb and left index

finger and swelling 2" x 1" over left elbow posteriorly on

the person of the informant. According to him, the first

injury might have been caused by some hard and blunt

substance like lathi, rod, stone or brickbat or two such

substances whereas injury no.2 might be possible due to

fall. In cross-examination, he categorically admitted that the

injuries found on the person of the informant were not

caused by firearm. He admitted that the injury caused by

firearm will be lacerated with margins charred or

blackening. In this connection, I may also point out the

distinction between the objective finding of the doctor and

his opinion based on such objective finding. Where the

doctor finds lacerated wound on the person of an injured

and opines that the same has been caused by hard and blunt

substance, it would be open to the court to take a different

view on the basis of reliable ocular evidence and hold that

the wound in question was caused by firearm and not by

hard and blunt substance. In other words, so far as the

opinion of the doctor is concerned, it may be possible in an

appropriate case to take a different view, but it is not

possible to say that the objective finding is not correct Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

unless it is challenged on the basis of some reliable

evidence.

40. When a pointed question was asked from the

State by the Court as to on what basis the Court would

ignore the finding of the doctor that the injuries caused to

the informant were caused by firearm, he had no plausible

answer to offer. In this regard, I must say that the aforesaid

finding of the doctor has not been challenged by the

prosecution at any stage.

41. It would be pertinent to note here that though

the prosecution has alleged that the deceased and the

informant both sustained injuries at the same time, the

doctor, who examined the injured informant, stated the time

of injuries on his person within six hours whereas the

doctor, who conducted the post-mortem examination on the

body of the deceased, opined that in no case death would

have been caused within 12 hours as on external

examination rigor mortis was found present in all four limbs

of the deceased. The difference of at least six hours in the

injuries caused on the person of the informant and the

deceased creates serious doubt on the veracity of the

prosecution case.

Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

42. In the background of the discussions made

above, when I examine the motive for the occurrence

alleged by the informant, I find that the allegation put forth

by the prosecution is that the appellant and accused

Awadhesh Singh had abused the deceased for cutting down

the ridge of the field, but as per P.W.2, the deceased had got

his field near transformer in the west direction of his house.

He has given boundary of the field as North: Field of Kalash

Deo Singh, South: Field of Deo Prasad Pathak, East: Field

of Narsingh and West: Field of Deen Bandhu Pathak. Thus,

the accused Awadhesh Singh had no adjacent field. So, there

is a ring of doubt in the motive alleged by the prosecution

for committing the offence.

43. So far as the place of occurrence is concerned,

it is an admitted position that no empty cartridge, spent

pellet or wad was found from the alleged place of

occurrence. The I.O. (P.W.9) has stated in his deposition that

he had reached at the place of occurrence at 02:30 PM on

the date of occurrence itself. He handed over the

investigation of the case to the I.O. (P.W.8) on the same day

at 04:40 PM. He admitted that till the time he was at the

place of occurrence, nobody had shown him the place where Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

the incident had taken place and the place where the victim

Ramadhar Sharma had fallen on the ground. Similarly, the

I.O. (P.W.8) admitted in his cross-examination that when he

visited the alleged place of occurrence, no empty cartridge

or spent pellet or wad was found. He admitted that he did

not find blood or mark of blood at the place of occurrence.

Though he stated that at the place of occurrence grass was

uprooted and earth was thrown, he admitted that it has not

been mentioned in the case diary during investigation that

grass was uprooted or fresh soil was thrown at the place of

occurrence. I, therefore, find that there is no positive

evidence that the incident had taken place at the place of

occurrence as alleged by the prosecution.

44. In so far as the evidence relating to lungi and

ganji of the deceased and the gamchha by which P.W.1 and

P.W.2 had allegedly wrapped the wound of the deceased are

concerned, it has come in evidence that they were drenched

with blood but neither the lungi nor the ganji nor the

gamchha was seized or produced before the court. None of

the I.Os. has stated a word in this regard in their evidence.

45. Thus, it would not be off the record to say that

the deceased might have been killed by some unknown Patna High Court CR. APP (DB) No.358 of 1995 dt.09-02-2022

people at a different place in a different manner much before

10:00 AM on 07.05.1993 as alleged by the prosecution and

taking advantage of the situation, the prosecution implicated

the appellant and the accused Awadhesh Singh in the crime

due to the admitted dispute between the parties.

46. In the facts and circumstances of the case, in

my opinion, the appellant is entitled to the benefit of doubt.

47. In the result, the appeal is allowed. The

conviction and sentence awarded to the appellant vide

impugned judgment dated 27.09.1995 and the consequent

order dated 28.09.1995 are set aside. Since the appellant is

on bail, he is discharged from the liability of his bail bonds.

                                                 (Ashwani Kumar Singh, J)

Rajeev Ranjan Prasad,J.:                I agree.



                                                   ( Rajeev Ranjan Prasad, J)


Pradeep/-

  AFR/NAFR                         NAFR
  CAV DATE                      02-12-2021
  Uploading Date                09-02-2022
  Transmission Date             09-02-2022