Patna High Court
Sugriv Choubey vs The State Of Bihar on 18 May, 2022
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.338 of 2012
Arising Out of PS. Case No.-217 Year-2010 Thana- BHABHUA District- Kaimur (Bhabua)
======================================================
Sugriv Choubey S/O Fulan Choubey Resident Of Village- Godhan, Police
Station- Bhabhua, District- Kaimur at Bhabhua.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 144 of 2012
Arising Out of PS. Case No.-217 Year-2010 Thana- BHABHUA District- Kaimur (Bhabua)
======================================================
1. Fulan Chaubey S/O Late Nathuni Chaubey
2. Guptnath Chaubey S/O Late Nathuni Chaubey
3. Angad Chaubey S/O Fulan Chaubey
4. Bajrangi Chaubey S/O Fulan Chaubey, all R/O Vill Godhan, P.S.Bhabhua,
Distt-Kaimur At Bhabhua
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Vikram Deo Singh, with
Mr. Sada Nand Roy, Advocates
For the State : Mr. Abhimanyu Sharma, APP
For the informant : Mr. Kumar Sunil, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
and
HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA)
Date : 18-05-2022
Heard Mr. Vikram Deo Singh, learned counsel for
the appellants, Mr. Abhimanyu Sharma learned Addl. Public
Prosecutor appearing for the State being assisted by Mr. Kumar
Sunil, learned counsel for the informant.
Patna High Court CR. APP (DB) No.338 of 2012 dt.18-05-2022
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2. These appeals are directed against the judgment
of conviction dated 18.01.2012 and the order of sentence dated
24.01.2012, passed by Shri Harendra Nath Tiwary, Sessions
Judge, Kaimur at Bhabhua in Sessions Trial No. 311 of 2010,
whereby and whereunder the all appellants have been convicted
under sections 302/34 and section 341 of the Indian Penal Code
and have been sentenced to undergo rigorous imprisonment for
life with a fine of Rs. 15,000/- each and in default of payment of
fine they have been further directed to undergo rigorous
imprisonment for six months. The appellant, Sugriv Chaubey
has further been convicted under section 27 Arms Act and has
been sentenced to undergo rigorous imprisonment for five years
with a fine of Rs. 2,000/- and in case of default of payment of
fine he has been directed to undergo rigorous imprisonment for
three months. Both the sentences in respect of Sugriv Chaubey
has been directed to run concurrently.
3. These appeals were heard earlier and were
disposed of by this Court by the judgment of acquittal dated 10 th
April, 2019. The informant assailed the aforesaid judgment
before the Hon'ble Supreme Court in Cr. Appeal Nos. 10-11 of
2020 arising out of S.L.P. (Crl.) No. 5740-5741 of 2019 and the
Hon'ble Supreme Court by order dated 7 th January, 2020 set
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aside the aforesaid judgment of acquittal and remanded the
matter to this Court for disposal afresh.
4. Pursuant to the aforesaid order of remand of the
Hon'ble Supreme Court, these appeals have been heard afresh.
5. The prosecution case, in brief, is that P.W. 5
Sushil Kant Pandey gave his written statement before the
Officer-in-Charge, Bhabhua P.S. stating therein that on
22.05.2010 he alongwith his father had gone towards south of
his house for plucking vegetables and as soon as he reached
near the lane, all the accused persons namely, Sugriv Chaubey,
Angad Chaubey, Bajrangi Chaubey, Fulan Chaubey and
Guptnath Chaubey, all resident of village Gorhan at present
residing at Patel Chowk, Bhabhua as well as Disco Pandey, who
were standing there from before, and as soon as his father
reached at the aforesaid place, Bajrangi Chaubey instigated on
which Sugriv Chaubey having katta in his hand caused injury on
the head and in the temple of his father namely, Nathuni Pandey.
After receiving injury, his father fell down. Angad Chaubey is
said to have kicked the deceased from his foot and further
instigated to kill the informant. In the meantime, the informant
managed to escape and went inside the house. After hearing the
sound of firing the villagers came there and accused persons
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fled away. The motive of the occurrence is said to be dispute
regarding the deceased witnesses against the accused persons.
6. On the basis of the aforesaid written statement,
Bhabhua P.S. Case No. 217 of 2010, dated 22.05.2010, was
registered under section 341, 302, 506/34 of the Indian Penal
Code and Section 27 of the Arms Act.
7. The police took up the investigation of the case
and after investigation submitted charge sheet on 30.06.2010
against all the six accused persons showing Disco Pandey as
absconder. In this case cognizance was taken on 05.07.2010 and
the case was committed to the Court of Sessions on 29.07.2010.
8. Charges were framed in this case on 30.08.2010
against all the appellants to which the appellants pleaded not
guilty and claimed to be tried.
9. During trial, the prosecution has examined
altogether 7 witnesses. P.W. 1/ Namuna Tiwari, P.W.2/ Lal
Bachan Pathak, P.W. 3/ Rabindra Nath Pathak, P.W. 4/Ram
Nandan Ram, P.W. 5/ Sushil Kant Pandey (informant of the
case), P.W. 6/ Chandrachud Rai (Investigating Officer of the
case) and P.W. 7/ Dr. Anil Kumar.
10. In order to establish the charge, the prosecution
has proved the following documents as exhibits :-
Exhibit -1 Signature of Rabindra Nath Pandey on
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the Inquest Report
Exhibit -2 Written Petition
Exhibit -3 Signature of Sushil Kant Pandey on the
Inquest Report
Exhibit -4 Formal F.I.R.
Exhibit -5 Endorsement on the written petition
Exhibit -6 Inquest Report
Exhibit -7 Post Mortem Report
Exhibit -8 Certified copy of Sanha No. 675 dated
22.05.2010
Exhibit -9 Certified copy of Charge-sheet of
Bhabhua P.S. Case No.502 of 2009
11. All the appellants in their statement under
section 313 of the Code of Criminal Procedure have said that
they are innocent. Appellant, Angad Chaubey, in his statement
has further stated that on the alleged date and time of occurrence
he was in his sasural at village Rupawanpur, P.S. Ramgarh,
District- Kaimur and he was not present at the place of
occurrence. Appellant, Guptnath Chaubey, in his statement has
further stated that on the date of occurrence he had taken his
wife to B.H.U. for treatment of cancer. Appellant, Fulan
Chaubey, in his statement has further stated that on the alleged
date and time of occurrence he was not present at the place of
occurrence and he was worshiping in a temple at Kachahri
Campus.
12. The defence did not produce any witness for
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examination. However, as documentary evidence following
documents have been marked as exhibits :-
Exhibit -A Certified copy of the formal F.I.R. of
Bhabhua P.S. Case No. 502 of 2009
Exhibit -A/1 Certified copy of Complaint Case No. 126
of 2009
Exhibit- B Certified copy of Charge-sheet of Bhabhua
P.S. Case No. 502 of 2009
Exhibit - C Certified copy of Complaint Case No. 1424
of 2009
Exhibit - D Certified copy of Order dated 16.02.2010
of Complaint Case No. 1424 of 2009
Exhibit - E Certified copy of plaint of T.S. No. 23/09
Exhibit - F Certified copy of formal F.I.R. of Bhabhua
P.S. Case No. 45 of 2010
Exhibit - F/1 Certified copy of complaint Case No. 1447
of 2009
Exhibit - G Certified copy of charge-sheet of Bhabhua
P.S. Case No. 45 of 2010
Exhibit -H Certified copy of judgment of G.R. No.
1018 of 1995/ Trial No. 340 of 1996
Exhibit - I Certified copy of deposition of Guptnath
Chaubey in T.S. No. 173 of 1999
Exhibit - J Certified copy of deposition of Ram
Nandan Ram in T.S. No. 173 of 1999
Exhibit - K Certified copy of Complaint Case No.
1080 of 2004
13. Before reaching to any conclusion, it would be
necessary to firstly examine the evidence of prosecution
witnesses.
14. P.W.1/ Namuna Tiwari has stated in his
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evidence that it was 7.30 in the morning and he was at his home.
He saw Fulan Chaubey, Guptnath Chaubey, Bajrangi Chaubey,
Angad Chaubey and Sugriv Chaubey and one unknown person
were going and from the other side Nathuni Pandey (deceased)
and Shushil Kant Pandey (informant) were coming. In front of
the house of Lal Bachan Pathak, all the six accused persons took
Katta in their hand. Bajrangi Choubey said to kill both of them
on which Sugriv Choubey fired at Nathuni Choubey which hit
in the back of his head. Guptnath Choubey fired at the
informant, which did not hit him. Angad Choubey fired at the
witness, which also did not hit him.
In his cross-examination, this witness accepted that
he is in litigating terms with the accused persons. He further
stated that total three firings were made.
15. P.W. 2/ Lal Bachan Pathak has stated in his
evidence that it was about 8 month ago at about 7-7.30 in the
morning. He saw Fulan Chaubey, Guptnath Chaubey, Bajrangi
Chaubey, Angad Chaubey and Sugriv Chaubey and one
unknown person were going. They all were armed with Katta.
At the same time from the other side Nathuni Pandey
(deceased) was coming. Bajrangi Choubey shouted to kill
them. On that Sugriv Choubey fired at Nathuni Choubey which
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hit in the back of his head. After getting injured Nathuni
Pandey fell down. His son Shushil Kant Pandey was 50 ft.
away from the deceased. Fulan Choubey shouted to kill him
also on which Guptnath Choubey fired at the informant which
did not hit him. The informant ran away. On seeing this, this
witness started shouting, on which Bajrangi Choubey fired on
him but the same did not hit him and he ran away to his home.
Thereafter all the accused persons ran away from the place of
occurrence.
In cross examination this witness stated that about
10-12 gun shots were fired.
16. P.W. 3/ Rabindra Nath Pandey has stated in his
evidence that the occurrence is of about 8 months about at 7.30
in the morning. He was washing his mouth at the Handpump.
He heard the sound of Bajrangi Chaubey of "ekjks ekjks" then he
saw that Fulan Choubey, Guptnath Choubey, Angad Choubey,
Bajrangi Choubey, Sugriv Choubey and Disco Pandey had
surrounded Nathuni Chaubey. They all had Katta in their hands.
On instigation of Bajrangi Choubey, Sugriv Choubey fired at
Nathuni Pandey which hit in the back side of his head. He fell
down there. Sushil Kant Pandey son of Nathuni Pandey who
was present there asked the accused persons as to why they are
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killing his father and started shouting. On which, on the
instigation of Fulan Choubey, Guptnath Choubey fired at Sushil
Kant Pandey, which did not hit him and he ran away. This
witness further stated that when he shouted, Disco Pandey fired
at him, but the same did not hit him. Thereafter all the accused
persons ran away towards south while firing.
In his cross examination, this witness stated that
about 5-7 gun shots were fired.
This witness has proved his signature on the
Inquest Report (Exhibit-1)
17. P.W. 4/ Ram Nandan Ram, has stated in his
evidence that the occurrence is of 22.05.2010. It was in the
morning at 7.30 when he was giving food to his cattle, he saw
that Fulan Choubey, Guptnath Choubey, Bajrangi Choubey,
Angad Choubey, Sugriv Choubey and one unknown person
were going towards north from south and from south to north
Nathuni Pandey and his son Sushil Kant Pandey were coming.
When Nathuni Pandey reached in front of the door of Lal
Bachan then all the accused persons surrounded him. They all
had katta in their hands. On the instigation of Bajrangi
Choubey, Sugriv Choubey fired on Nathuni Pandey which hit
him in the back of his head and he fell down. When this
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witness raised hulla, Angad Choubey fired at him which did not
hit him and hide himself in a cattle-shed. After 2-3 minutes
when he came out, he saw that Nathuni Pandey had died and
there was blood on the floor.
In cross examination, this witness stated that he
heard sound of 5-7 firing.
18. P.W. 5/ Shushil Kant Pandey, who is informant
of the case, has stated in his evidence that the occurrence is of
22.05.2010 at 7.30 in the morning. He and his father were
going to the field for plucking vegetables. This witness was
moving behind his father by about 50-60 feet. When his father
reached in front of the house of Lal Bhachan Pathak, then all
the accused, Sugriv Choubey, Angad Choubey, Bajrangi
Choubey, Guptnath Choubey, Fulan Choubey and Disco
Pandey surrounded his father. They all were armed with Katta.
On instigation of Bajrangi Choubey to kill his father, Sugriv
Choubey fired on him which hit in the back side of his head.
He fell down. He alongwith other witness shouted, on which on
the instigation of Fulan Choubey, Guptnath Pandey fired on
this witness which did not hit him. He ran away towards his
house. While fleeing away he heard sound of 3-4 firings. When
he alongwith other villagers reached to the place of occurrence,
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he saw that his father had died and blood was oozing out of his
head and had spread on the floor.
Informant has proved the Fardbeyan (Exhibit-2)
and also proved his signature on the Inquest Report (Exhibit-3).
This witness also stated that the lane on which his
father was killed goes from North to South and after about 300
feet North from the house of Harvansh Pathak, it turns towards
East and his house is at about 100 feet from the turning.
He also stated that Ramdular Singh had filed case
against him in which he had gone Jail and he lodged case
against Surendra Mishra in which he had gone Jail.
19. P.W.6/ Chandrachud Rai, who is Investigating
Officer of this case, has stated in his evidence that on
22.05.2010 he was posted as Sub Inspector in Bhabhua police
station. On that day, he got the written statement of the
informant Shushil Kant Pandey on basis of which Bhabhua P.S.
Case No. 217 of 2019 was registered and formal F.I.R. was
lodged. This witness has proved the Formal F.I.R. (Exhibit-4).
This witness has also proved the endorsement (Exhibit-5) on
the written statement.
This witness also stated that he himself took
charge of investigation of the case. He received information
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about the occurrence, lodged Sanha No. 675 dated 22.05.2010
and proceed to the place of occurrence for verification where
informant gave his written statement.
This witness also proved the Inquest Report
(Exhibit-6). He also proved the place of occurrence, which
according to him is a village lane near the house of Lal Bachan
Pathak.
In his cross examination this witness has stated that
Namuna Tiwary did not gave statement that Bajrangi Choubey
shouted to kill both of them. On this, when Nathuni Pandey
tried to escape, Sugriv Choubey fired at him which hit in the
back of his head. After this, Sushil Kant Pandey who was
behind Nathuni Pandey started shouting and this witness also
started shouting. On which, on the instigation of Fulan
Choubey, Guptnath Choubey fired at Sushil Kant Pandey which
did not hit him and he ran away to his house.
Witness Lal Bachan Pathak had not given evidence
that on seeing this he started shouting on which Bajrangi
Choubey fired at him which did not hit him and he ran away to
his house. All the accused had Katta in their hands.
Witness Rabindra Nath Pandey had not given
evidence that on instigation of Bajrangi Choubey, Sugriv
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Choubey fired at Nathuni Pandey from his back and Sushil
Kant Pandey asked the accused persons as to why they are
killing and started shouting, on which on the instigation of
Fulan Choubey, Guptnath Choubey fired at Sushil Kant
Pandey. This witness also shouted on which Disco Pandey fired
at him but he hide himself as a result of which the same did not
hit him.
Witness Ramnandan Ram had not given evidence
that when he shouted Angad Choubey fired upon him which
did not hit him and he hide himself in a Cattle-shed. After 2-3
minutes, when he came out and went near Nathuni Pandey, he
saw that Nathuni Pandey had died and there was blood on the
floor.
Informant Sushil Kant Pandey had not stated that at
the time of fleeing away he had heard the sound of 3-4 firings
and he ran away to his house. On his hulla, 5-7 villagers came
at his house. He alongwith the villagers again went to the place
of occurrence.
(All the witnesses in their evidence have given
statement to this effect)
This witness has also stated that in Sanha No. 675
no one is named. He did not find any blood at the place of
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occurrence. He also did not find any Khokha or Chharra at the
place of occurrence. He did not prepare any map of the place of
occurrence. He did not investigate on the point that there is
some land dispute between the informant and the accused
persons. He stated that he cannot say whether Lal Bachan
Pathak's house is adjacent to the house of Harvansh Pathak.
20. P.W. 7/ Dr. Anil Kumar, has stated in his
evidence that on 22.05.2010 he was posted as Medical Officer
at Sadar Hospital, Bhabhua and on that day at 11 AM in the
morning he conducted the post-mortem on the deadbody of
deceased Nathuni Pandey and found the following injuries :-
"On External Examination :- (i)Lacerated wound half inch in
diameter scalp cavity deep over lower portion of occipital
region, margin of the wound is inverted and surrounding area
is charred. This injury is wound of entrance.
(ii) Lacerated wound 1 ½" in diameter scalp cavity deep over
left side of forehead, margin of the wound is everted, This
injury is wound of exit.
On dissection :- Skull, occipital and frontal bone fractured
into pieces, brain and meninges lacerated, wounds No. 1 and
2 are communicating to each other, skull cavity contained
dark blood and clot, Chest body cage intact, all thoresic
visceras intact and pale, heart- little blood present in right
chamber. Abdomen : Stomach empty, small intestine
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contained fluid and Gas, large intestine contained fistal
matter and gas, liver, spleen and both kidneys intact and pale,
urinary bladder contained about 30 ml of urine."
In the opinion of the doctor the cause of death is
due to hemorrhage and shock as a result of above mentioned
injuries cause by firearm which is ante-mortem in nature and
fatal also and the death has been occurred within 6 hours due to
the injuries caused by fire arms.
This witness has proved the Post-mortem Report
(Exhibit-7).
21. Sri Vikramdeo Singh, learned counsel
appearing for the appellants submitted that the evidence given
by all the witnesses produced on behalf of the prosecution are
false, unbelievable and shows unnatural conduct. Their
statements are contradictory and they have been improved. As a
matter of fact, none of the witness is eye witness to the alleged
occurrence, but due to previous enmity all the accused persons
have been named later on after thought.
22. Sri Ajay Mishra, learned Addl. Public
Prosecutor appearing for the State opposes the prayer of the
appellants. He submitted that all the evidences given by the
witnesses are believable and the post-mortem report
corroborates the same.
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23. Mr. Kumar Sunil, learned counsel appearing
for the informant agrees with the submissions made by the
learned counsel for the State and adopts the same. He,
however, in addition, has submitted that all the witnesses are
consistent on the point that accused Sugriv Choubey fired on
Nathuni Pandey on his back.
24. Having heard the submissions advanced on
behalf of the parties and the materials available on record
specially the evidences adduced by the witnesses, this Court
finds that there are contradictions in the evidence of the
witnesses and the same are not believable. As per the first
information report only Sugriv Choubey fired at the deceased
and shouted to kill the informant and on hearing the same the
informant went inside his house, but in the evidence he said
that Guptnath Choubey fired on him. In the F.I.R. he does not
say about presence of any other witness, but as per evidence
many persons were present there and accused persons fired
on all the witnesses present there. Some witnesses say about
3-4 round of firing, some witnesses say about 5-7 round of
firing and some witnesses say about 10-12 round of firing
although the police did not find any Khokha or Chharra from
the place of occurrence. It is alleged in the first information
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report that accused persons fired at all the witnesses, but
none of them sustained any injury. Not only this, in order to
show complicity of all the accused persons, different accused
persons have been shown to have fired at different witnesses.
25. It is general behaviour that when any body
sees an injured person then he tries to provide him first aid or
takes him to hospital, but in the present case the informant,
who is son of the deceased, did not even try to touch his
injured father whereas according to him and as per other
witnesses also the deceased was shot dead in their presence.
It is also relevant to note that the Investigating Officer did
not find any blood at the place of occurrence. The place of
occurrence is in the North-Southern lane in front of the house
of Lal Bachan Pathak from where after 300 feet the lane
turns towards East and the house of the informant situates
about 100 feet away from the turning. According to
informant, on firing he ran away and went inside his house,
in such circumstances, his statement giving fine details of the
occurrence appears to be unnatural. Further, there is a shop
of Gaffar Mian in the neighbourhood of witness Lal Bachan
Pathak and Namuna Tiwari, but the witnesses are not aware
as to what kind of shop it is, which again is quite unnatural.
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Witness Ramnandan Ram says that he does not remember
whether he had given evidence in any civil case from the
side of Nathuni Pandey, whereas Exhibit- J shows that he
was a witness. From the evidence of the Investigation Officer
it is clear that all the witnesses have given evidence
improving their statement. Defence has asked questions on
such variation in the statements from all the witnesses as also
the Investigating Officer. None of the accused is named in
Sanha No. 675 dated 22.05.2010 (Exhibit-8). All the
witnesses as also the Investigating Officer are silent on the
point as to when and in whose presence the Fardbeyan was
recorded. It has specifically come in the first information
report that the deceased had given evidence against the
accused persons due to which he was killed, but the
Investigation Officer has not investigated the case on this
point. The informant accepts that he was lodged in jail and
beside this case he has also lodged other cases. Witnesses
also accept that the parties are on litigating terms from
before. Documentary evidences adduced on behalf of the
defence also supports this fact.
26. In view of the discussions made above, this
Court is of the opinion that the evidence on record do not
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support the findings arrived at by the trial court. This Court
is of the opinion that the prosecution has miserably failed to
bring home the charges levelled against the appellants.
27. For the reasons, recorded hereinabove, both
the appeals are allowed. The impugned judgment of
conviction dated 18.01.2012 and the order of sentence dated
24.01.2012, passed by Shri Harendra Nath Tiwary, Sessions
Judge, Kaimur at Bhabhua in Sessions Trial No. 311 of 2010
are, hereby, set aside.
28. The appellants are acquitted of the charges
levelled against them. They shall be released from the jail
forthwith, if not wanted in any other case.
( Arvind Srivastava, J)
Ashwani Kumar Singh, J.
I have had the privilege of reading the judgment of
my esteemed brother Arvind Srivastava, J. He has dealt with the
factual background and the contentions advanced on behalf of
the parties. Reasons have also been set out in the judgment of
my esteemed brother. There is no need to repeat them. I agree
with the conclusion arrived at and the operative part of the
judgment.
Patna High Court CR. APP (DB) No.338 of 2012 dt.18-05-2022
2. However, I wish to add few more reasons for
allowing the appeal and setting aside the impugned judgment of
conviction and order of sentence.
3. According to the written report submitted by P.W.5
Sushil Kant Pandey, his father was killed on 22.05.2010 at 7.30
A.M. In the formal First Information Report (for short 'FIR') at
para-3, it is mentioned that the written report was received in the
police station on 22.05.2010 at 11 A.M. Immediately after
receiving the written report Bhabhua P.S. Case No.217 of 2010
was registered. The formal FIR has been proved by P.W.6
Chandrachud Rai and has been marked as Exhibit-4. The
distance of the police station from the place of occurrence as per
column 5 of the formal FIR (Exhibit-4) is four kilometre.
4. P.W.6 Chandrachud Rai admitted in his testimony
that he had received information at the police station that one
person has been shot dead in village- Gorhan pursuant to which
he registered Station Diary Entry No.675 dated 22.05.2010 and
proceeded to the place of occurrence for verification of the
information.
5. The said station diary entry has been brought on
record and marked as Exhibit-8. A perusal of the Exhibit-8
would demonstrate that the information relating to the murder of
Patna High Court CR. APP (DB) No.338 of 2012 dt.18-05-2022
one person in village- Gorhan was received by P.W.6 at 8.30
A.M. on 22.05.2010 in the police station.
6. P.W.6 Chandrachud Rai admitted in his testimony
that the informant Sushil Kant Pandey had given him written
report at the place of occurrence itself. He further admitted that
the inquest report of the deceased Nathuni Pandey was prepared
at the place of occurrence on which the informant Sushil Kant
Pandey and P.W.3 Rabindra Nath Pandey had put their signature
in the capacity of witnesses to the inquest. The inquest report of
the deceased Nathuni Pandey has been proved by the informant
and marked as Exhibit-6.
7. On perusal of the inquest report (Exhibit-6) it
would be evident that it was prepared in the village- Gorhan on
Kachcha road in front of the house of P.W.2 Lal Bachan Pathak
at 9.30 A.M. on 20.05.2010. In the inquest report, cause of death
is mentioned as gun shot injury. There is no mention of name of
any person involved in the offence in the inquest report. It
would be pertinent to note here that P.W.6 Chandrachud Rai had
himself took up the investigation of the case.
8. I further find from the testimony of P.W.7 Dr. Anil
Kumar that he had conducted the postmortem examination on
the body of the deceased Nathuni Pandey on 22.05.2010 at 11
Patna High Court CR. APP (DB) No.338 of 2012 dt.18-05-2022
A.M. at Sadar Hospital Bhabhua. He has proved the postmortem
report, which has been marked by the Trial Court as Exhibit-7.
9. On perusal of the postmortem examination report
(Exhibit-7), it would be evident that the body of the deceased
Nathuni Pandey was received at the Bhabhua Sadar Hospital at
10.30 A.M. on 22.05.2010. The doctor who conducted the
postmortem examination had personally seen the body of the
deceased at 10.45 A.M. on 22.05.2010. He commenced the
postmortem examination at 11 A.M. Exhibit-7 would further
demonstrate that it was Dafadar No.10 Haribansh Pandey, who
was accompanying the corpus and he had identified the
deceased.
10. During cross-examination, P.W. 6 admitted in para-
26 that in the formal FIR in Column No.3 (b), it is mentioned
that the written report was received on 22.05.2010 at 11 A.M. at
the police station. He further admitted in para-34 of his cross-
examination that he has not written the time of receipt of the
written statement of the informant in the case-diary.
11. Thus, the sequence of events narrated above would
make it clear that the alleged murder took place at 7.30 A.M. on
22.05.2010. An information in this regard was received by P.W.6
Chandrachud Rai at the Bhabhua Police Station at 8.15 A.M. on
Patna High Court CR. APP (DB) No.338 of 2012 dt.18-05-2022
22.05.2010 pursuant to which he registered station diary entry
and proceeded to the place of occurrence. The distance between
the police station and the place of occurrence was only four
kilometre. After reaching at the place of occurrence, he received
a written report from the informant Sushil Kant Pandey.
Thereafter, he prepared the inquest report of the deceased at
9.30 A.M. on 22.05.2010. After preparing the inquest report, he
sent the body of the deceased to Bhabhua Sadar Hospital along
with Dafadar No.10 Haribansh Pandey. The body of the
deceased reached at the Bhabua Sadar Hospital at 10.30 A.M.
The doctor conducting the postmortem examination examined
the body at 10.45 A.M. on 22.05.2010 and he commenced the
postmortem examination at 11 A.M. on 22.05.2010.
12. The sequence of events narrated above make it
manifest that much before the institution of the FIR, the
Investigating Officer had inspected the place of occurrence,
prepared the inquest report, examined the informant, received a
written report from him and sent the body of the deceased to the
Sadar Hospital for postmortem examination. Though the
Investigating Officer claims that he received written report from
the informant at the place of occurrence, the entries made in the
formal FIR would suggest that the formal FIR was received at
Patna High Court CR. APP (DB) No.338 of 2012 dt.18-05-2022
the police station at 11 A.M. on 22.05.2010. The Investigating
Officer also admitted in his cross-examination in para-26 that
according to Column 3 of the written report relating to the
offence was received at the police station on 22.05.2010 at 11
A.M.
13. Thus, the question would arise that if the written
report of the informant was received at the place of occurrence
itself as to why it was mentioned in the formal FIR that it was
received at the police station at 11 A.M. Further, the next
question which would arise is that if the written report of the
informant was received at the police station what happened to
the written report handed over to the Investigating Officer at the
place of occurrence. This mystery ought to have been clarified
by the Investigating Officer himself. However, no plausible
explanation has been given by him which would make the FIR a
suspicious document.
14. In case, the informant was knowing the name of the
accused persons who had committed the offence, he would have
certainly disclosed it to the Investigating Officer at the first
instance when the police had visited the place of occurrence.
However, in the inquest report prepared at 9.30 A.M. on
22.05.2010 by the Investigating Officer, the name of any of the
Patna High Court CR. APP (DB) No.338 of 2012 dt.18-05-2022
miscreants who had participated in the commission of the crime
has not been mentioned.
15. Furthermore, the prosecution has also failed to
prove the place of occurrence. As per the written report, on
22.05.2010, the informant along with his father was going
towards south of his house for plucking vegetables. When he
reached near the land, he saw all the accused persons standing
from before. As soon as his father reached at the aforesaid place,
Bajrangi Chaubey instigated on which Sugriv Chaubey having
katta in his hand caused injury in the head and in the temple of
his father Nathuni Pandey. After receiving injury, his father fell
down and died. It is the case of the prosecution that after the
deceased was shot, he died at the spot. The Investigating Officer
reached at the place of occurrence shortly after the incident took
place. He inspected the place of occurrence, the witnesses
examined during trial on behalf of the prosecution have stated
that since the deceased was shot in his head, blood was oozing.
16. Thus there must have been a fair amount of blood
split at the place of occurrence. However, the Investigating
Officer admitted in cross-examination that though he has
discussed about the place of occurrence in the case diary, there
is no mention of finding blood.
Patna High Court CR. APP (DB) No.338 of 2012 dt.18-05-2022
17. Hence, there is a considerable doubt about the
occurrence having taken place at the place of occurrence, as
disclosed by the prosecution because no blood could be found at
the place of murder. At least, there is no evidence to show that
there was any blood at the place of occurrence.
18. Another, circumstance which goes against the
prosecution is that the Investigating Officer has admitted in
cross-examination that at the site neither empties of cartridges
fired from katta nor pellet was recovered. Absence of blood,
empties of cartridges, khokha or pellet at the site when the
Investigating Officer promptly reached at the site and started
investigation when the accused persons had disappeared after
the incident raises serious doubt about the place where the
murder of the deceased Nathuni Pandey had taken place. This is
not the case of the prosecution that the accused persons had
cleaned the area or somebody had removed the empties. In a
case of this nature where the information reached at the police
station regarding the occurrence within an hour and the
Investigating Officer promptly reached at the site as the distance
was only 4 kilometre I find no reason why the empties of
cartridges and blood were not recovered from the place of
occurrence.
Patna High Court CR. APP (DB) No.338 of 2012 dt.18-05-2022
19. I further find from the evidence led before the court
that attention of P.W.1 to P.W.5 in respect of their previous
statements made before the police was drawn by the defence.
The Investigating Officer contradicted P.W.1 Namuna Tiwari by
admitting in cross-examination that he had not stated to him that
Bajrangi Chaubey instigated to attack and in the meantime when
Nathuni Pandey tried to run away Sugriv Chaubey fired from
his katta which hit the back of head of Nathuni Pandey. He
further contradicted P.W.1 by admitting that he had not stated
before him that thereafter, Sunil Kant Pandey who was behind
Nathuni Pandey started shouting and Gupta Nath Chaubey fired
from his katta upon instigation by Fulan Chaubey but the bullet
did not hit Sushil Kant Pandey. He further contradicted P.W.1 by
admitting that he had not stated that Angad Chaubey fired from
his katta on him when he started shouting but the bullet did not
hit him and he ran into his house.
20. Similarly, the Investigating Officer contradicted
P.W.2 Lal Bachan Pathak by admitting that he had not stated to
him that he also started shouting whereafter Bajrangi Chaubey
fired on him from his katta but the bullet did not hit him and he
ran into his house. He further contradicted him by admitting that
he had not stated before him that all the accused persons were
Patna High Court CR. APP (DB) No.338 of 2012 dt.18-05-2022
armed with katta.
21. The Investigating Officer contradicted P.W.3
Rabindra Nath Pathak by admitting that he had not stated before
him that Sugriv Chaubey fired on Nathuni Pandey due to
instigation of Bajrangi Chabey which hit the back of head of
Nathuni Pandey. He further contradicted him by admitting that
he had not stated that Sushil Kant Pandey asked the accused
persons as to why they are assaulting and he shouted whereafter
Guptnath Chaubey fired on him upon instigation of Fulan
Chaubey. He had not stated that when he shouted Disco Pandey
fired on him upon instigation of Fulan Chaubey but the bullet
did not hit him as he concealed himself.
22. The Investigating Officer also contradicted P.W.4
Ram Nandan Ram by admitting that he had not stated before
him that when he shouted then Angad Chaubey fired on him but
the bullet did not him and he concealed himself in a cowshed.
He had also not stated before him that he came out from the
cowshed after 2-3 minutes and went near Nathuni Pandey and
saw that Nathuni Pandey had already died and was bleeding.
23. The Investigating Officer contradicted P.W.5 Sushil
Kant Pandey by admitting in cross-examination that he had not
stated in his supplementary statement that he heard sound of 3-4
Patna High Court CR. APP (DB) No.338 of 2012 dt.18-05-2022
round of firing while running away. He also not stated that 5-7
villagers came to his house after hearing his shouting.
24. In view of the aforestated material contradictions in
the testimonies of the eye witnesses with their previous
statements made before the Investigating Officer during
investigation, a serious doubt is created on their presence at the
place of occurrence when the incident took place.
25. Having noticed the aforestated additional reasons,
I reiterate my agreement with the judgment of my esteemed
brother Arvind Srivastava, J.
(Ashwani Kumar Singh, J)
Manish/Kanchan
AFR/NAFR NAFR
CAV DATE 09.03.2022
Uploading Date 18.05.2022
Transmission Date 18.05.2022
