Rakesh Kumar @ Chandan Mandal vs The State Of Bihar
2023 Latest Caselaw 3756 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                       CRIMINAL APPEAL (SJ) No.34 of 2023
        Arising Out of PS. Case No.-10 Year-2015 Thana- PIRI BAZAR District- Lakhisarai
     ======================================================

1. RAKESH KUMAR @ CHANDAN MANDAL Son of Late Aghori Mandal R/V- Abhaypur Kaswa, P.S- Piri Bazar, Dist- Lakhisarai

2. Fantush Mandal @ Nirbhay Mandal Son of Late Aghori Mandal R/V-

Abhaypur Kaswa, P.S- Piri Bazar, Dist- Lakhisarai

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

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

     For the Appellant/s     :        Mr.Rabi Bhushan, Adv.
                                      Ms.Rakhi Kumari, Adv.
     For the Respondent/s    :        Mr.Mukeshwar Dayal, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY CAV JUDGMENT Date : 17-08-2023

1. The present appeal has been directed against the

judgment of conviction dated 02.12.2022 and order of sentence

dated 03.12.2022 passed by learned Sessions Judge, Lakhisarai in

Sessions Trial No. 165 of 2015 corresponding to G.R. Case No.

305 of 2015 arising out of Piribazar P.S. Case No. 10 of 2015

whereby and whereunder the appellants have been convicted for

the offence punishable under Section 307 read with 34 of the I.P.C.

and have been sentenced to undergo rigorous imprisonment for ten

years each along with fine of rupees ten thousand (Rs. 10,000/-)

each for the said offence. In case of default in payment of fine,

they will further undergo rigorous imprisonment of one year each.

Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

2. According to written report of informant (PW-4), the

occurrence is of 24.02.2015 at near about 8:30 AM whereafter FIR

was registered by Ashutosh Kumar, S.H.O. of Piribazar.

3. The prosecution case, as stated by the informant, in

brief, is that on the fateful day i.e. 24.02.2015 at near about 8.30

AM, appellants and other reached at the gate of informant and they

are said to have threatened abusingly for settling the matter in

question otherwise appellants and other would kill. It is further

stated that when the abuse was protested by the informant's

mother, appellants and other keeping lathi, danda and khanti in

their hands assaulted upon the head of informant's mother due to

which she fell down. The informant came on running on hearing

the noise and saved his mother. It is said to have claimed by the

informant that threatening was made again and again for settling

the dispute in question otherwise all would be killed.

4. On the basis of written report of the informant,

Piribazar P.S. Case No. 10 of 2015 dated 24.02.2015 was

registered under Sections 341, 323, 325, 307/34 of the IPC.

Routine investigation followed. Statement of witnesses came to be

recorded and on the completion of investigation, charge sheet has

been submitted against the appellants under Sections 341, 323,

325, 307, 447, 504, 506, 34 of the IPC. and investigation kept Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

pending against those accused persons who were found

absconding. Thereafter, on 08.07.2015 the learned trial court took

cognizance against the appellants under the aforementioned

sections of IPC. On 24.07.2015 the case was committed to the

court of sessions after following due procedure. The learned trial

court was pleased to frame charges against the appellants under

Sections 307/34 and 325/34 of the IPC. Charges were read over

and explained to the appellants to which they pleaded not guilty

and claimed to be tried.

5. In order to bring home guilt of accused persons,

prosecution has examined altogether six witnesses. PW-1 Polo

Mandal, PW-2 Jaikant Mandal, PW-3 Poonam Kumari, PW-4

Rajiv Kumar (informant of the case), PW-5 Dr. Dhirendra Kumar,

and PW-6 Manoj Kumar Singh (I.O. of the case).

Prosecution has relied upon following documentary

evidence on record:-

Ext. 1- Signature of informant on written application. Ext. 2- Injury report of injured Ahilya Devi. Ext. 3- Charge sheet.

Ext. 3/1- Signature of O/c Piribazar on charge sheet.

Ext. 4- Signature of O/c of Piribazar P.S. Ashutosh Kumar on formal FIR.

6. Defence of the appellants as gathered from the line of

cross examination of prosecution witnesses as well as from the Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

statement under Section 313 of the Cr.P.C. is that of total denial.

However, they did not enter into defence.

7. After hearing the parties, the learned trial court was

pleased to convict the appellants and to sentence them as indicated

in the opening paragraph of the judgment.

8. Heard Mr. Rabi Bhushan, learned counsel appearing

for the appellants at sufficient length of time. Following

submissions have been made on behalf of learned counsel for the

appellants:-

Learned counsel for the appellants has submitted that

from the perusal of FIR, it is evident that there is no specific

allegation of assault against any person and FIR is totally silent

upon the said point. He has further submitted that from the perusal

of FIR, the place of occurrence is gate of informant and weapon

used by the appellants and other is lathi, danda and khanti and

there are four assailants and from the initial version of prosecution

story informant himself has stated that after being injured the

informant's mother fell down and on hearing noise he came on

running at the place of occurrence. This version of informant is

quite evident that informant is not an eye witness of the alleged

occurrence. Learned counsel has further submitted that the

informant has himself stated that his mother sustained injury upon Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

her head but she has not been produced before the court and her

evidence has not been recorded by the investigating officer by

stating that she was not in a conscious position to give her

evidence. He has further submitted that even from the version of

investigating officer it is evident that he failed to comply his

incumbent statutory duty as he has clearly stated during cross

examination that he visited several occasions on place of

occurrence but same was not recorded in the case diary and again

he stated that victim went to her daughter's house so he could not

met victim. He has further submitted that investigation of

investigating officer suffers from imperfection regarding his

statutory duty which is the mandate of law. He has further

submitted that the investigating officer has not recorded the

statement of the persons who were resident of the place of

occurrence and he is unable to make clear cut statement as to

whether Nawal Pandey, Polu Mandal and Jaikant Mandal are

resident of place of occurrence. On the point of place of

occurrence, the statement of investigating officer and statement of

(PW-4) is quite inconsistent. The informant (PW-4) has stated

during cross examination that in north side of place of occurrence,

there is our parti land and in west side, there is vacant land. The

investigating officer (PW-6) has stated that in the north side of Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

place of occurrence, there is house of Goli Mandal and in west

side of place of occurrence, there is house of informant. In both

sides of place of occurrence the statement of investigating officer

(PW-6) and informant (PW-4) are quite inconsistent and

contradictory to each other on the point of boundary of place of

occurrence (P.O.). He has further submitted that the prosecution

has specifically failed to prove the place of occurrence in the

present case which makes the prosecution case doubtful. On the

point of weapon, statement of PW-1 is quite inconsistent with the

initial version of prosecution story as PW-1 stated that all have

assaulted the informant's mother by means of paina whereas in

initial story of prosecution it is stated that all have assaulted the

informant's mother by means of lathi, danda and khanti. Learned

counsel for the appellants has further submitted that even if whole

prosecution story is found to be true, then also, on the available

facts and evidence of the case, no offence is made out under

Section 307 read with 34 of the IPC against the appellants.

Learned counsel has further submitted that apart from that, even

the story of prosecution is doubtful as none of the prosecution

witness can be relied upon because they are not eye witness of the

alleged occurrence as revealed from initial version of story of

prosecution. Neither informant is victim nor the victim has been Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

produced before the court nor any prosecution witness disclosed

the name of other prosecution witness who was present at the

place of occurrence.

9. Mr. Mukeshwar Dayal, learned Additional Public

Prosecutor appearing for the State has submitted that from perusal

of the FIR itself, it is clear that appellants and other came at the

door of informant and started abusing and they pressurized the

informant's mother to withdraw the case and when informant's

mother forbade to abuse, they assaulted the informant's mother by

means of lathi, danda and khanti. He has further submitted that

PW-4 who is informant and eye witness of the case has stated that

all have assaulted by means of khanti as a result of which victim

sustained injury on her head. He has further submitted that PW-1

has also stated that appellants and other assaulted upon the head of

the victim by means of paina. PW-3 has also stated that appellants

and other assaulted upon the head of the victim by means of

khanti. PW-5 Dr. Dhirendra Kumar who has examined the victim

has also supported the story of prosecution as he has found injury

upon the head of the victim. Learned A.P.P. has further submitted

that the investigating officer has identified the place of occurrence.

In this way, all the prosecution witnesses have supported the story

of the prosecution. He has further submitted that there is motive Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

behind the occurrence which has also been proved that the

appellants and other were pressurizing the informant's mother for

withdrawal of the case and the said matter has become origin point

of dispute. He has further submitted that all the appellants have

acted in a manner that they have shared common intention to

commit the occurrence. In this way, judgment of conviction and

order of sentence is based on the sound principle of law and hence,

the impugned judgment does not require any interference.

10. I have perused the impugned judgment, order of trial

court and trial court records. I have given my thoughtful

consideration to the rival contention made on behalf of the parties

as noted above.

11. It is necessary to evaluate, analyze and screen out the

evidences of witnesses adduced before the trial court in the light of

the offence punishable under Section 307 read with 34 of the IPC.

12. PW-1 Polo Mandal though he is claiming to be eye

witness of the alleged occurrence but he is eye witness by chance

as when he went to call mason, he found that victim Ahilya Devi

was concertedly assaulted by the appellants and other by means of

paina as a result of which victim sustained injury on head. PW-1

has deposed that weapon used by the appellants are only paina

which is totally inconsistent with the story of prosecution and he Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

also deposed that occurrence took place in courtyard of the victim

and FIR reveals that occurrence took place at the gate of the

informant which is quite contradictory and inconsistent to each

other.

13. PW-2 Jaikant Mandal is not eye witness of the

alleged occurrence rather he is hearsay witness.

14. PW-3 Poonam Kumari is the wife of informant (PW-

4). This witness has stated that appellants and others used khanti

for assaulting the victim which is totally inconsistent with the

statement of PW-1 Polo Mandal. This witness has stated that the

occurrence took place inside the house i.e. courtyard. On the point

of place of occurrence, her statement is quite contradictory with

the initial version of story of prosecution. Her statement is quite

contradictory with her own statement in which she has stated that

on hearing noise she came outside the house and occurrence took

place inside the house. She has stated that she cannot tell who hit

with lathi and how many times and she cannot tell who hit with

khanti and how many times.

15. PW-4 Rajiv Kumar is informant of the case. This

witness, in his initial version of FIR, states that when abusing was

protested, the appellants and other are said to have assaulted his

mother by means of lathi, danda and khanti but during course of Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

trial he has stated that on refusal of her mother to withdraw the

case, the appellants and other assaulted the informant's mother by

means of khanti and he has specifically developed the story of

prosecution that the occurrence took place in his presence which

did not find place in the initial version of story of prosecution. In

this way, his version is totally contradictory regarding origin of the

alleged occurrence, manner of occurrence and place of occurrence.

In this way, his evidence does not inspire confidence and his

evidence cannot be relied upon.

16. PW-5 Dr. Dhirendra Kumar who has examined the

victim and found following injuries on her person:-

(i) Lacerated wound measuring 5" x 1/4" x bone deep on left side of head.

(ii) Complaint of pain in chest left side.

(iii) Abrasion 2" x 1" and pain in waist left side.

(iv) Abrasion 2 1/2" x 3/4" in back right scapular area.

(v) Complaint of bodyache and pain in left eye.

Cause of injury-By blunt and hard substances.

Time of injury-within 06 hours.

M.I.-Til on chest near right claride.

From perusal of the injury report, it is evident that all the

injuries are simple in nature caused by hard and blunt substance

except injury no. 1 which is lacerated wound measuring 5" x 1/4"

x bone deep on left side of head. Other injuries are either abrasion

or complain of pain or bodyache. The injury report also does not

corroborate the manner of occurrence, as same is evident from Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

initial version of story of prosecution. Moreover, the contention of

learned counsel for the appellants finds force that determinative

facts to decide nature of offence are intention or knowledge to

commit the crime and in the instant case, facts and circumstances

speak for themselves that appellants had no such intention or

requisite knowledge as alleged in the initial version of the story of

prosecution and even if whole prosecution story is found to be

correct in given facts and circumstances of the case, then also, no

offence under Section 307 read with 34 of the IPC is made out

against the present appellants keeping in view the nature of injury

as opined by the doctor (PW-5).

17. In the present appeal, from perusal of initial version

of FIR, it is crystal clear that even the informant is not eye witness

of the alleged occurrence as he arrived at the place of occurrence

after hearing noise and he is not victim of the present case. The

victim, who is mother of the informant, sustained injury but she

has not been produced before the court for adducing evidence.

18. In the matter of Habeeb Mohammad vs. State of

Hyderabad reported in AIR 1954 SC 51, the Hon'ble Supreme

Court has held that the witness whose evidence is essential to the

"unfolding of the narrative" should be examined. The Hon'ble

Supreme Court at para 14 of the said judgment held that it is true Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

that all the witnesses of the prosecution need not be called but it is

important to notice that the witness whose evidence is essential to

the "unfolding of the narrative" should be called. This solitary

principle in criminal trials has been stressed by this Court in the

case of Habeeb Mohammad v. the State of Hyderabad for eliciting

the truth.

19. In the present case, from perusal of initial version of

story of prosecution neither informant is victim nor eye witness of

the alleged occurrence as discussed in foregoing paragraphs and

victim is the star witness whose presence at the place of

occurrence cannot be doubted and whose evidence is essential to

the unfolding of the narrative but she has not been produced before

the court by the prosecution with the reason best known to

prosecution. In this way, the appellants have been deprived of

opportunity to cross-examine her which is fatal to the prosecution.

20. Apart from that, PW-1 who is claiming to be eye

witness of the alleged occurrence but his evidence suffers from

several infirmities, contradictions and inconsistencies. From

perusal of FIR, it is crystal clear that none of the prosecution

witness is found at the place of occurrence except informant (PW-

4) who came after hearing hulla. On the point of manner of

occurrence, this witness stated that the weapon of offence is paina Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

but in the initial version of story of prosecution the weapon of

offence is lathi, danda and khanti. The place of occurrence as

pointed out by PW-1 is the courtyard of Ahilya Devi (victim) but

in initial version of story of prosecution, gate is the place of

occurrence which is totally inconsistent on the point of place of

occurrence and the boundary of place of occurrence as pointed out

by the PW-1 is totally inconsistent with the boundary pointed out

by the I.O. and other prosecution witnesses. In this way, version of

PW-1 is quite inconsistent on the point of place of occurrence,

manner of occurrence and boundary of place of occurrence and he

is very inconsistent in his statement that he stayed at the place of

occurrence one minute or ten seconds. Keeping in view all the

statements as deposed during adducing the evidence before the

court, his presence at the place of occurrence is very doubtful and

his evidence does not inspire confidence and he cannot be relied

upon as eye witness to the alleged occurrence.

21. PW-2 is not eye witness of the alleged occurrence.

He is hearsay witness. His evidence cannot be relied upon with

regard to the story of prosecution.

22. PW-3 has stated that the appellants and other

concertedly assaulted by means of khanti which is totally

inconsistent with the story of prosecution. She has stated that on Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

hearing hulla, she went outside the house and she further stated

that the occurrence took place inside the house i.e. courtyard

which is totally inconsistent with the initial version of story of

prosecution. She cannot tell who hit lathi and how many times.

She cannot tell who hit khanti and how many times. Her statement

is self contradictory as when the occurrence took place inside the

house and she came outside on hearing hulla. Her statement is

quite contradictory on the point of manner of occurrence and place

of occurrence and her presence at the place of occurrence is very

much doubtful. The evidence adduced by the said witness is full of

infirmities and contradictions regarding the place of occurrence

and manner of occurrence and hence, her statement cannot be

relied upon.

23. PW-5 Dr. Dhirendra Kumar has found following

injuries on the person of the injured:-

(i) Lacerated wound measuring 5" x 1/4" x bone deep on left side of head.

(ii) Complaint of pain in chest left side.

(iii) Abrasion 2" x 1" and pain in waist left side.

(iv) Abrasion 2 1/2" x 3/4" in back right scapular area.

(v) Complain of bodyache and pain in left eye.

Cause of injury-By blunt and hard substances.

Time of injury-within 06 hours.

M.I.-Til on chest near right claride.

From the injury report as opined by the doctor all the

injuries are simple in nature and caused by hard and blunt Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

substance. Except injury no. 1, other injuries are either complain

of pain or abrasion and the prosecution story as narrated by the

informant himself that four persons including the appellants

concertedly assaulted by means of lathi, danda and khanti. Even

injury report does not corroborate the story of prosecution and it is

admitted by the doctor that such injuries could also be caused by

falling on any hard substance. Learned counsel for the appellants

has submitted that suggestion has been made from the defence side

that victim sustained injury on account of falling.

24. PW-6 is investigating officer. His statement is full of

infirmities as he failed to comply the statutory duty because he

has himself stated that he visited the place of occurrence several

times but same was not recorded in the case diary. At one place he

has stated that victim was unable to speak so he has not recorded

her statement and another place he has stated that victim went to

her daughter's house so he could not met the victim. This witness

has also not recorded the statement of residents of place of

occurrence. He has stated regarding the boundary of place of

occurrence which is totally inconsistent with the boundary as

pointed out by the PW-4 (informant). In this way, his statutory

duty is full of infirmities and his statement cannot be relied upon. Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

25. Main issue arising in this appeal for consideration is

whether conviction of the appellants under Section 307 read with

34 of the I.P.C. is sustainable ?

26. To constitute an offence under Section 307 of the

IPC, the following ingredients of the offence must be present;

(a. An intention or knowledge relating to commission of

murder and

(b. Doing of an act towards it.

For the purpose of Section 307 IPC, what is the material

is the intention or knowledge, and not the consequence of the

actual act done for the purpose of carrying out the intention. The

Section clearly contemplates an act which is done with the

intention of causing death but which fails to bring intended

consequence on account of initiation on account of intervening

circumstances. The intention or knowledge of the cause must be

such as a necessary to constitute a murder. In absence of intention

or knowledge which is a necessary ingredient of Section 307 IPC,

there can be no offence of attempt to murder.

27. Considering the aforementioned facts and

circumstances, the following judicial decisions are pertinent to

cite:-

Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

In Takdir Samsuddin Sheikh v. State of Gujarat and

another reported in AIR 2012 SC 37, the Hon'ble Supreme Court

observed at para 10(ii) as follows:-

"10 (ii). This Court has consistently held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence."

In Brahm Swaroop and another v. State of U.P.,

reported in AIR 2011 SC 280, the Hon'ble Supreme Court at para

22 of the judgment held as follows:

"22. Where a witness to the occurrence has himself been injured in the incident, the testimony of such Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness."

In Ranjit Singh and others v. State of Madhya

Pradesh, reported in AIR 2011 SC 255, the Hon'ble Supreme

Court at para 17 of the judgment held as follows:-

"17. Under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction."

In Mano Dutt and another v. State of Uttar Pradesh,

reported in (2012) 4 SCC 79, the Hon'ble Supreme Court at para

30 of the judgment observed as follows:-

"30... Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain, protect the real culprit."

In State of U.P. v. Kishan Chand and others reported in

(2004) 7 SCC 629, a similar view has been reiterated observing

that the testimony of a stamped witness has its own relevance and

efficacy. The fact that the witness sustained injuries at the time Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

and place of occurrence lends support to his testimony that he was

present during the occurrence.

28. In the present case, the factual witnesses and their

version are full of infirmities and contradictions though they are

claiming to be eye witness of the alleged occurrence but from

perusal of initial version of story of prosecution it is quite evident

that the informant makes his presence after hearing hulla. In this

way, informant (PW-4) is not eye witness of the alleged

occurrence and from the initial version of story of prosecution

none of the prosecution witness is found at the place of occurrence

except the informant (PW-4) whose presence is also doubted at the

place of occurrence. It is necessary to quote a relevant judgment of

Hon'ble Supreme Court reported in (2010) 13 SCC 657 (Sunil

Kumar Shambhudayal Gupta and others vs. State of Maharashtra)

wherein the Hon'ble Supreme Court has observed as follows:-

"The discrepancies in the evidence of eye witnesses, if found to be not minor in nature maybe a ground for disbelieving and discrediting that evidence. In such circumstances witnesses may not inspire confidence if the evidence is found to be in conflict and contradiction with the other evidences and the statement already recorded. In such a case, it cannot be held that the prosecution proved its case beyond reasonable doubt."

Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

29. In this respect, it is necessary to refer a judgment

dated 03.03.2023 passed by Hon'ble Patna High Court in Cr.

Appeal (DB) No. 745 of 2015 wherein it has been observed as

follows:-

"In criminal law, the onus on the prosecution is to prove each allegation by cogent and reliable evidences. The degree of onus in criminal cases is not only to the extent of mere preponderance of probabilities, rather, the degree of standard required to be met is that of 'beyond all reasonable doubts."

In the case of State of U.P. vs. Krishna Gopal and Anr.

reported in 1988 AIR 2154, it has been observed that:-

"A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt."

30. In the light of discussion made above with regard to

the judgments as cited in foregoing paragraphs, the present case

and evidence can easily be tested upon the touch stone of settled

legal proposition.

31. In the present case, prudently and pragmatically

informant, who put the initial version of story into motion, has

narrated that appellants and other concertedly assaulted the

informant's mother and the reason behind the occurrence is

withdrawal of the case and origin point of occurrence is that when Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

abusing of the appellants and other was protested, the same

resulted into assaulting upon the informant's mother and the initial

version of prosecution story clearly reveals that on hulla, the

informant makes his presence. In this way, PW-4 (informant) was

not present at the place of occurrence and presence of other

prosecution witnesses like PW-1 and PW-3 was very much

doubtful as same is evident from FIR as well as deposition of

prosecution witnesses, though, they are factual witness and

individually, they are claiming to be eye witness of the occurrence.

In the initial version of story of prosecution, it has been

specifically mentioned that origin point of occurrence took place

when abuse was protested, same resulted into assaulting of the

informant's mother. This specific assertion of said fact has not

been whispered in the deposition of informant (PW-4) which

makes dent in the story of prosecution even regarding origin point

of occurrence. The initial version of story of prosecution reveals

that PW-4 has not stated that either PW-1 or PW-3 was present at

the place of occurrence. From initial version of story of

prosecution itself, the presence of PW-1, PW-3 and PW-4 was very

much doubtful and from the deposition of PW-1, it is clear that he

has not whispered that either PW-3 or PW-4 was present at the

place of occurrence. From deposition of PW-3 it is clear that it was Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

never whispered that PW-1 and PW-4 were present at the place of

occurrence and from deposition of PW-4 it is clear that it was

never whispered that either PW-1 or PW-3 was present at the place

of occurrence. In the present case, the star witness is the

informant's mother whose presence at the place of occurrence

cannot be doubted and she has not been examined. In this way, the

presence of any of the prosecution witness at the place of

occurrence is very much doubtful and it is very settled principle of

law that benefit of doubt goes always in favour of the accused. In

that situation, prosecution has failed to prove its case beyond

reasonable doubt even though the victim/informant's mother

sustained injury and the doctor has already suggested that said

injuries can be caused by falling on any hard substance and

suggestion was also given by the defence side that she sustained

injury on account of falling, though, the suggestion has been

denied by the prosecution witness. In that situation, in the said

facts and evidence of the case, prosecution has miserably failed to

prove its case beyond reasonable doubt. Apart from that, the

statement of factual witnesses i.e. PW-1, PW-3 and PW-4, though,

they are claiming to be eye witness, their evidence are full of

infirmities and contradictions on the point of place of occurrence,

manner of occurrence and boundary of place of occurrence. Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

32. Keeping in view all the discussions made above in

foregoing paragraphs, it is quite evident that the trial court has not

appreciated the evidence of prosecution witnesses and material

available on record as to whether in given facts and circumstances

of the present case, the offence under Section 307 read with 34 of

the IPC is made out against the present appellants wherein the

victim has not been examined and none of the prosecution witness

has stated the presence of other witnesses at the place of

occurrence. Apart from that, there are several discrepancies,

infirmities and contradictions in the statement of factual witnesses

like PW-1, PW-3 and PW-4 regarding the manner of occurrence,

place of occurrence and boundary of place of occurrence and it is

settled law that prosecution has to prove its case beyond

reasonable doubt and said settled principle is missing from the

material available on record and the contention of learned counsel

for the appellants finds force as from all these aspects, I find that

factual witnesses like PW-1, PW-3 and PW-4 cannot be relied as

eye witness to the alleged occurrence.

33. On all counts from the analysis of evidence adduced

during trial, it is crystal clear that the prosecution has failed to

prove its case beyond reasonable doubt and benefit of doubt goes

in favour of the appellants.

Patna High Court CR. APP (SJ) No.34 of 2023 dt.17.08.2023

34. In the result, in my view, prosecution case suffers

from several infirmities, as noticed above, and it was not a fit case

where conviction could have been recorded. The learned trial court

fell in error of law as well as appreciation of facts of the case in

view of settled criminal jurisprudence. Hence, impugned judgment

of conviction and order of sentence are hereby set aside and this

appeal stands allowed. The appellants are in custody. Let them be

released forthwith, if they are not warranted in any other case.

35. The interlocutory application, if any, also stands

disposed of.

36. Let a copy of this judgment be transmitted to the

Superintendent of the concerned jail for compliance and for

record.

37. The records of this case be also returned to the

concerned trial court forthwith.

(Alok Kumar Pandey, J)

shahzad/-

AFR/NAFR                AFR
CAV DATE                08.08.2023
Uploading Date          17.08.2023
Transmission Date       17.08.2023