Mani Kant Singh @ Tunna Singh vs The State Of Bihar
2023 Latest Caselaw 3812 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (DB) No.210 of 2014
     Arising Out of PS. Case No.-126 Year-2011 Thana- BELSAND District- Sitamarhi
======================================================

Mani Kant Singh @ Tunna Singh S/O Ratneshwar Singh Resident Of Village- Madhkaul, P.S.- Belsand, District- Sitamarhi

... ... Appellant/s Versus

The State Of Bihar

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

For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate Ms. Vaishnavi Singh, Advocate Mr. Ritwik Thakur, Advocate Ms. Kiran Kumari, Advocate Mr. Tejendra Sinha, Advocate For the State : Mr. Binod Bihari Singh, Addl. P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI and HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

Date : 18-08-2023

The present appeal has been filed by the

appellant/convict under Section 374(2) of the Code of Criminal

Procedure, 1973 challenging the order of conviction dated 21st

January, 2014 and order of sentence dated 27th January, 2014

passed by learned 1st Additional Sessions Judge, Sitamarhi in S.Tr.

No. 168 of 2012/47 of 2013 arising out of Belsand P.S. Case No.

126 of 2011, whereby the concerned Trial Court has convicted the

present appellant for the offences punishable under Sections 302

read with Section 34 of I.P.C. and under Section 27 of the Arms Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

Act, 1959. The appellant has been sentenced to undergo

imprisonment for life and fine of Rs. 20,000/- in default of R.I. for

1 year for the offence under Section 302/34 and R.I. for 3 years

and fine of Rs. 5,000/- in default R.I. for 3 months for the offence

under Section 27 of the Arms Act, 1959. Both the sentences have

been ordered to run concurrently.

2. The prosecution case in brief is as under:-

"The prosecution case, in nut shell, is that on 01.12.2011 at 08.45 A.M., father of the informant namely Hari Shankar Prasad had gone to take betel. All of a sudden, four miscreants namely Upendra Singh, Sudistha Singh, Manikant Singh @ Tunna Singh and Nitish Singh variously armed with pistol came there and seeing his father, one miscreant Upendra Singh order to kill him on which miscreants fired upon his father by their pistols which hited on panjara, left side abdomen, left side arm and right thigh. His father received injuries and fell down. On halla, the miscreants tried to flee away by making firing from their pistol. Two other miscreants were also with them. It is also mentioned in the fardbeyan of the informant that the miscreants have previous enmity with his father due to previous Mukhiya election. The injured was taken to S.K.M.C.H. Muzaffarpur for treatment by the informant, his brother Suresh Gautam and other where he was declared dead by the doctor."

3. On the basis of the information given by the

complainant, F.I.R. bearing Case No. 126 of 2011 dated

01.12.2011 came to be registered with Belsand Police Station for

the alleged offences punishable under Section 302 read with

Section 34 of the I.P.C. and under Section 27 of the Arms Act,

1959.

Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

4. After registration of the F.I.R., the Investigating

Agency carried out the investigation and during course of the

investigation, the Investigating Officer recorded the statement of

the witnesses. Dead body of the deceased was sent for post

mortem and after the investigation was over, the Investigating

Officer filed the charge-sheet against the present appellant.

5. At this stage, it is pertinent to note that the F.I.R. came

to be registered against the two named accused and two unknown

persons. The present appellant was shown as accused No. 3 in the

F.I.R. As the other co-accused were not available for trial, the trial

of the present appellant was separated. During the course of the

trial, the prosecution had examined 14 witnesses and also

produced documentary evidence. Thereafter, further statement of

the appellant/accused came to be recorded under Section 313 of

the Code of Criminal Procedure, 1973 and after conclusion of the

trial, the Trial Court passed impugned order whereby the present

appellant/accused has been convicted, as observed hereinabove.

6. Heard Learned Advocate Mr. Ajay Kumar Thakur for

the appellant and Mr. Binod Bihari Singh, learned Additional

Public Prosecutor for the Respondent-State.

7. Learned counsel for the appellant has referred to the

depositions given by PW-1 to PW-6 and, thereafter, contended that Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

the aforesaid prosecution witnesses are natural witnesses and their

presence at the place of incident was natural. The said witnesses

have not given the name of the present appellant as an assailant. In

spite of that, the Trial Court has convicted the present appellant. It

is pointed out from the record that PW-1 to PW-6 were not

declared hostile by the prosecution and, therefore, their deposition

is binding to the prosecution. In support of the said contention,

learned counsel has placed reliance upon the recent decision

rendered by the Hon'ble Supreme Court in the case of Virendra

Vs. State of Madhya Pradesh reported in AIR 2022 SC 3373.

Learned counsel has particularly placed reliance upon Para 7 of the

said decision. At this stage, the learned counsel has also relied

upon the decision rendered by the Hon'ble Supreme Court in the

case of Raja Ram Vs. State of Rajasthan reported in 2005 (5)

SCC 272 and the decision rendered in the case of Bahal Singh Vs.

State of Haryana reported in AIR 1976 SCC 2032. Learned

counsel has also placed reliance upon Assoo Vs. State of Madhya

Pradesh reported in 2011 (14) SCC 448 and the decision rendered

in the case of Javed Masood and Anr. Vs. State of Rajasthan

reported in AIR 2010 SC 979.

8. Learned advocate for the appellant, thereafter,

referred to the deposition given by PW-7 to PW-9. After referring Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

to the deposition of the said witnesses, it is mainly contended that

all the aforesaid witnesses are chance witnesses and their presence

at the place of occurrence is unnatural. Even otherwise, there are

major contradictions and omissions in the depositions given by the

said witnesses and, therefore, the Trial Court has committed an

error while placing reliance upon the said witnesses.

9. Learned advocated for the appellant thereafter submits

that PW-10 i.e. Suresh Gautam who is the son of the deceased and

brother of the original first informant as well as PW-11 namely,

Ganesh Gautam who is also the son of the deceased and the

original first informant, though are not eye-witnesses to the

incident in question, but have been projected as eye-witnesses by

the prosecution. Learned counsel referred to the deposition of the

said witnesses and also referred to the depositions given by PW-

13, Basudeo Prasad Yadav, Investigating Officer and thereafter

submitted that the Investigating Officer had not prepared the

sketch/map of the place of occurrence. It is also pointed out that,

as per the deposition given by the prosecution witnesses, the first

informant was residing in the flat on ground floor and, therefore, it

was difficult for the first informant and his brother i.e. Suresh

Gautam to witness the incident in question from their house. Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

10. Learned advocate Mr. Ajay Kumar Thakur for the

appellant would, thereafter, submit that as per the case of the

prosecution and deposition given by PW-13, Investigating Officer,

the concerned Police Officer reached at the place of incident at

08:45 a.m. immediately when the incident in question took place

and the said officer even chased the assailants. However, though

the said Police Officer was present at the place of occurrence from

08:45 a.m., the F.I.R. came to be registered at 06:00 p.m. During

the said period, nobody had disclosed the name of the assailants,

including the present appellant, to the Investigating Officer.

11. Learned counsel, at this stage, also submitted that

though the so called eye-witness, PW-10 Suresh Gautam, son of

the deceased, was present at the place of occurrence and, as per his

deposition, his deceased father had taken out piece of paper and

sketch pen and, thereafter, written the name of the assailants,

including the present appellant in the said piece of paper.

Surprisingly, the said fact was not disclosed by him to the original

first informant i.e. Ganesh Gautam. In the F.I.R. filed by PW-11

Ganesh Gautam, he had not referred to the so called chit written by

his deceased father, wherein, the names of the assailants are

disclosed. It is further submitted that the said chit allegedly written

by the deceased was handed over to the Investigating Officer after Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

a period of 21 days and, therefore, it can be said that the said

document is a concocted document.

12. Learned counsel, therefore, urged that though the

prosecution has failed to prove the case against the appellant

beyond reasonable doubt, the Trial Court has passed an order of

conviction against the appellant. Learned advocate, therefore,

urged that the impugned order be quashed and set aside and the

present appeal be allowed.

13. On the other hand, Learned APP has vehemently

opposed this appeal. Learned APP would mainly submit that PW-

7, PW-8 and PW-9 are the eye-witnesses to the incident in

question. They have specifically named the present appellant and

the said witnesses who identified him. It is further submitted that

PW-10 and PW-11, who are the sons of deceased, are also eye-

witnesses to the incident in question and the first informant PW-11

had specifically given the name of the appellant in the F.I.R. itself.

It is further submitted that the deceased himself

has written the name of the assailants on the piece of paper

and the said document is produced by the prosecution

during course of trial before the Trial Court. It is further

submitted that merely because PW-1 to PW-6 did not

specifically deposed against the appellant, the case of the Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

prosecution cannot be discarded when there are other eye

witnesses who have fully supported the case of the

prosecution. Learned APP, therefore, urged that no error is

committed by the Trial Court while passing the impugned

order of conviction against the appellant and, therefore, this

Court may not entertain the present appeal.

14. We have considered the submissions canvassed by

the learned counsel appearing for the parties. We have also perused

the deposition given by the witnesses and the documentary

evidence produced before the Trial Court. At the outset, it is

pertinent to note that the alleged incident took place at about 08:45

a.m. on 01.12.2011 near the betel shop of PW-1 Mangal Sahni.

Though there are alleged eye-witnesses to the incident in question,

the F.I.R. came to be registered at 06:00 p.m. on 01.12.2011. Thus,

there was a gross delay in lodging the F.I.R. The first informant

has stated in the F.I.R. that on 01.12.2011 at 08:45 a.m., his father

had gone to betel shop and he reached near the said shop situated

near Vakalatkhana Gate. Suddenly all the accused named in the

F.I.R. came at the place of occurrence and accused Upendra Singh

asked the other accused to kill the father of the first informant.

Thereafter, all the four accused opened fire and in the said firing,

the father of the first informant sustained injuries. The first Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

informant has also stated that the incident had taken place because

of the election of Mukhiya. He had further stated in the F.I.R. that

his injured father was taken by him and his brother Suresh Gautam

for necessary treatment to S.K.M.C.H, Muzaffarpur and during the

course of treatment, the concerned Doctor declared him dead.

15. PW-1, Mangal Sahni, who is the owner of betel

shop, has stated in his examination-in-chief that when he was at

his shop on the date of incident at 09:30 a.m, Harishankar Prasad

(deceased) came to his shop and sat on the bench after eating betel

leaf. At that time, four persons came on two different motorcycles

and the person who was sitting as pillion rider on second

motorcycle opened firing on Harishankar Prasad. The said witness

had specifically stated that the assailant had put on a helmet and he

did not identify the assailant.

16. PW-2, Shambhu Kumar was coming to his medical

shop. At that time, he heard the sound of firing and he had seen

that Harishankar Prasad sustained injuries. However, he did not

identify the assailant. The said witness has specifically stated that

the appellant/accused was not present at the place of occurrence.

17. PW-3, Raushan Kumar, who was working in the

Dispensary of Doctor, had deposed that at about 09:00 to 09:30 in

the morning at the betel shop of Mangal Sahni, persons came on Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

two different motorcycles and opened fire and in the said incident

Harishankar Prasad Mukhiya died. The said witness also identified

the signature on the Seizure List (Exhibit-1). The concerned Police

Officer prepared the panchnama of the place of incident and

collected the blood stained soil and six empty cartridges. However,

the said witness specifically stated that he knows the appellant

Tunna Singh who is present in the Court. However, he had not

identified the assailants of Harishankar Prasad Mukhiya.

18. PW-4, Harishchandra Sahni was having grocery

store at the place of occurrence. The said witness had deposed that

total four persons came at the place of occurrence on two different

motorcycles. Harishankar Prasad Mukhiya was sitting on the bench

near the betel shop and the person who was sitting as pillion rider

on the second motorcycle opened fire in which the bullet hit

Mukhiyaji. The said witness further stated that he knows accused

Tunna Singh, who is a resident of Belsand. However, he was not

the assailant.

19. PW-5, Ashok Thakur is the owner of a box shop. The

said person also heard the sound of firing which took place near

shop of Mangal Sahni and the assailants opened fire in which

Harishankar Prasad Mukhiya sustained injury. The said witness Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

had also not identified the assailants. The said witness is not aware

as to who were the assailants.

20. PW-6, Rajesh Kumar Rakesh is the witness to the

panchnama (Exhibit 1/1). By way of the said panchnama, the

concerned Police Officer collected the empty cartridges and blood

stained soil from the place of occurrence.

21. PW-7, Daroga Sahni, has stated in examination-in-

chief that on the date of occurrence, he had gone to Belsand

market for the purpose of purchasing fertilizer. He had seen that

Mukhiyaji was sitting on the bench near betel shop. At that time,

on two different motorcycles, six persons came at the spot. The

said witness had also given the name of the four assailants

including the appellant. He further stated that after Mukhiyaji

sustained injuries, all the assailants fled away from the spot on the

motorcycle and, thereafter, injured Mukhiyaji was taken to Belsand

Hospital. Elder son of Mukhiyaji went to call the Doctor. At that

time, Mukhiyaji had taken out the piece of paper and written

something on it. However, the said witness has further stated that

he is uneducated and, therefore, he did not know what is written by

the Mukhiyaji. He has further stated that the said piece of paper

was given by Mukhiyaji to his younger son and, thereafter,

Mukhiyaji was taken to Muzaffarpur. Thereafter, he came to know Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

that Mukhiyaji died. During cross-examination, the said witness

had specifically stated that he is not having any agricultural land

and he has been doing labour work. His village falls within

Rupauli Panchayat and the deceased was Mukhiya of the said

Panchayat. He was having relation with Mukhiyaji (deceased).

The said witness in his cross-examination had specifically stated

that when he reached to the place of occurrence near Mukhiyaji,

Mukhiyaji fell down on the ground. At that time, except him,

nobody else was present. He further stated that Mukhiyaji was in

an unconscious position. He has further specifically deposed that

after he reached at the place of occurrence, both the sons of the

deceased came there and the said witness informed the sons of the

deceased about how the incident took place. He has also stated that

the piece of paper which was given by the deceased to his son was

handed over to the Police after 10-11 days. At that time, the said

witness was also present.

22. PW-8, Satyendra Sahni is a witness who has claimed

that he was present at the shop of photocopier. He has deposed that

Harishankar Prasad Mukhiyaji came to the betel shop of Mangal

Sahni and, thereafter, he sat on the bench near the betel shop. At

that time, persons came on three different motorcycles and the said

persons started firing on Mukhiyaji in which he sustained injury. Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

The said witness also gave name of the four assailants, including

the present appellant. During cross-examination, the said witness

has specifically stated that immediately after the incident had

taken place, he reached near the said place. However, at that time

except him, nobody was present. He reached at the place of

incident after 6-7 minutes. At that time, Mukhiyaji was

unconscious. After he reached to the place of occurrence, son of

Mukhiyaji came at the said place.

23. PW-9, Prabhu Sahni had stated in examination-in-

chief that he had gone to the medical shop for purchasing

medicine. At that time, he had seen that four persons came at the

place of occurrence on two different motorcycles. He had given

name of the present appellant and three others as the person who

had opened fire and, after the incident took place, son of

Mukhiyaji and other persons came at the said place. Thereafter,

injured was taken to the hospital. The said witness in cross-

examination stated that when he reached near Mukhiyaji, he was

telling something and, thereafter, he was taken to the Hospital.

24. PW-10, Suresh Gautam is the son of the deceased

and brother of the first informant. The said witness has stated in

his examination-in-chief that at the time of the incident on

01.12.2011, he was residing in the house of one Sharmaji as a Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

tenant. His father had gone to betel shop of Mangal Sahni and

when he heard the noise of firing, he saw that the assailants were

firing on his father. The said witness has also given the name of

the assailants. The said witness had specifically stated that his

injured father was initially taken to Hospital at Belsand and when

his brother went to call the Doctor, his father took out a piece of

paper and wrote names of the four persons. Thereafter, Doctor

came and informed that the injured be taken to S.K.M.C.H.,

Muzaffarpur. Thereafter, his father was taken to the said hospital

where his father was declared dead. The said witness has also

stated about the motive on the part of the accused to commit the

crime i.e. the election of Mukhiya. However, the said witness

during cross-examination had specifically admitted that the

appellant/accused Tunna Singh was not having any enmity with

his father. He had further stated that the primary treatment was

given to his father in Belsand Hospital and that his father was

semi-conscious when he had written on the piece of paper. The

said witness did not inform to his brother that his father had

written the name of the assailants on the piece of paper. Even

when the first information was given before the Police, the said

aspect was not disclosed by him.

Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

25. PW-11, Ganesh Gautam, is the son of the deceased

and the first informant. He has stated in his examination-in-chief

that incident took place at 08:45 A.M. on 01.12.2011. His father

had gone to the betel shop of Mangal Sahni. At that time, four

assailants came at the place of occurrence and when Upendra

Singh asked the other assailants to kill his father, all the four

persons took out the pistol and opened fire in which his father

sustained injury on various part of his body. Thereafter, his father

was taken initially to the Government Hospital at Belsand. The

concerned Doctor referred him to S.K.M.C.H., Muzaffarpur and

when they reached the Hospital at Muzaffarpur, his father was

declared dead. When he returned from Muzaffarpur, his brother

informed him that his father had written name of the assailants on

a piece of paper and the said piece of paper was also shown to

him. However during cross-examination, the said witness had

stated that they were residing on the ground floor of three-storeyed

building. He has also admitted that there were a number of

constructed houses in between his house and the shop of Mangal

Sahni.

26. PW-12, Dr. Bipin Kumar was working in the

Hospital at Muzaffarpur. The said witness had performed the post Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

mortem of the deceased. The said witness has specifically narrated

about the injury sustained by the deceased as under:-

"Dead body was identified by 05/03 chawkidar Sukhdeo Ram.

Dead body was of obsessive and rigor mortis was present in upper

limbs following ante mortem injury:-

1. One oval wound over left lower part of chest 1"x1/2"x cavity

deep with surrounded blackening and inverted margin entry wound of the fire

arm.

2. One oval wound over left side of middle of back of chest 11/2 x

1/2" with everted margin exit wound of fire arm. Injury No.-1 and 2 were

continuous with each other projectile in its cover fracture the ribs and

lacerated the lower part of lungs, chest cavity was filled with blood.

3. One oval wound over left part of abdomen one inch below and

four inch lateral to umbilicus with surrounded blackening and inverted margin

1" x ½" x cavity deep entry wound.

4. One oval wound over right lower part of abdomen.

Two inch above right illiac crest - 2" x 1" with everted margin

exit wound.

Injury Nos.-3 & 4 were continuous with each other and projectile

in its common pierces with intestine at various point and medial side through

wound No.-4. Abdominal cavity was filled with blood.

5. One oval wound 1 ½ x ½" over left upper arm over outer

surface 3" above elbow joint with surrounded blackening with everted margin

entry wound.

6. One oval wound 2" x ¾" over medial side of left arm. Six inch

above elbow joint with everted margin.

Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

Opinion:- The deceased died due to hemorrhage and shock, as a

result of above mentioned injuries caused by fire arm, may be by pistol.

These injuries are sufficient for death in ordinary course of nature.

Time elapsed since death within 2 to 12 hrs. from the time of

examination."

27. PW-13, Basudeo Prasad Yadav was working as S.I.

in Belsand Police Station on the date of incident. The said witness

has stated in examination-in-chief that the F.I.R. was registered on

01.12.2011 at 06:00 p.m. He had prepared Inquest Report and sent

the dead body of the deceased for post mortem. He has further

prepared the Seizure List and collected empty cartridges and blood

stained soil from the place of occurrence. The said witness has

specifically stated that on 22.12.2011, Suresh Gautam, son of

Harishankar Prasad produced the piece of paper on which the

deceased had written name of the assailants in his own

handwriting. The said document was produced at Exhibit-7. The

said witness has also stated in cross-examination that the Belsand

Police Station is situated 200 to 250 yards from the place of

occurrence. He has further stated that information with regard to

the incident of firing was received in the Police Station at 08:45

a.m. and he immediately reached to the spot and examined the

place. He also chased the assailant and, thereafter, prepared the

panchnama of the place of incident. However, he has specifically Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

stated that he did not prepare maps/sketch of the place of

occurrence. He has further specifically admitted that before the

F.I.R. was registered at 06:00 p.m. on 01.12.2011, nobody had

given the name of the assailants. He has further admitted that the

piece of paper allegedly written by the deceased was given on

12.11.2011. However, he did not send the said letter to F.S.L. for

necessary opinion. He also did not send the empty cartridges and

blood-stained soil for analysis to the F.S.L.

28. PW-14, Raj Kishor Prasad Singh was working at

Ahiyapur Police Station. He has recorded the information given by

Ganesh Gautam in the Emergency Ward of S.K.M.C.H.,

Muzaffarpur. The fardbeyan is in his handwriting.

29. From the deposition of the aforesaid prosecution

witnesses, it can be said that PW-1 to PW-6 are natural witnesses

who were present at the place of occurrence in natural course. PW-

1, as observed hereinabove, was the owner of the betel shop,

whereas PW-2 was the owner of medicine shop. PW-4 is the owner

of grocery shop, whereas PW-5 is the owner of box shop. All the

shops are situated near the betel shop of PW-1 Mangal Sahni. If

the depositions of all these witnesses are carefully examined, it is

revealed that none of these witnesses had stated that the present

appellant/accused was present at the place of occurrence. At this Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

stage, it is pertinent to note that all these witnesses are prosecution

witnesses and the said witnesses are not declared hostile by the

prosecution.

30. At this stage, the decision rendered by the Hon'ble

Supreme Court in the case of Virendra (supra) is required to be

considered. In Paragraph-7 of the said decision, the Hon'ble

Supreme Court has observed as under:-

"Both the courts shifted the burden on the defence. The evidence rendered by the prosecution witnesses was rejected, either as that of indifferent witnesses or as irrelevant evidence. We may note that these are all prosecution witnesses who were not treated as hostile. No attempt whatsoever was made either to treat them as hostile or to re-examine them except that of PW10. Not even a suggestion was put to them on the presence of PW15. In such a scenario, the statement made by the prosecution witnesses in favour of the accused would certainly inure to his benefit. Our view is fortified by the decision of this Court in Raja Ram v. State of Rajasthan, (2005) 5 SCC 272 : (AIROnline 2000 SC 474):"

31. In the case of Javed Masood and Anr. (supra), the

Hon'ble Supreme Court has observed that if the witness is not

declared hostile by the prosecution, his evidence is binding on

prosecution.

32. In the case of Assoo (supra), the Hon'ble Supreme

Court has made the similar observation.

33. Keeping in view the aforesaid decisions rendered by

the Hon'ble Supreme Court, if the facts of the present case are Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

examined, it can be said that the deposition of PW-1 to PW-6 is

required to be considered by this Court, wherein, they have

specifically stated that the appellant was not present at the place of

incident and he was not the assailant.

34. So far as the deposition given by PW-7 to PW-9 is

concerned, it is pertinent to note that the said witnesses are

residents of one village namely, Oilpur. All these witnesses have

stated that they had gone near the place of occurrence for different

purposes. All the said witnesses have stated that the deceased was

sitting on the bench near the betel shop of Mangal Sahni.

However, the first informant namely, Ganesh Gautam, has stated in

the F.I.R., which was lodged at 06:00 p.m. after more than 9 hours,

that when his father reached near betel shop situated near

Vakalatkhana Gate, four accused named in the F.I.R. came at the

said place. Thus, there is major contradiction in the deposition

given by the prosecution witnesses. It is further required to be

noted that PW-8 has stated that the assailants came on three

different motorcycles, whereas PW-7, Daroga Sahni had stated that

six persons came on two different motorcycles whereas PW-9

deposed that four persons came on two different motorcycles at the

place of occurrence. If the deposition given by the aforesaid

witnesses is carefully examined, it is revealed that PW-7 had Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

specifically stated that first of all he reached near Mukhiyaji when

he fell down on the ground. At that time, except him nobody else

was present and the Mukhiyaji was unconscious, whereas PW-8,

Satyendra Sahni, has stated in his cross-examination that when he

reached at the place of occurrence where Mukhiyaji fell down on

the ground, except him nobody else was present and after

sometime, two sons of the deceased and other persons came at the

place of occurrence. It is further required to be noted that PW-7

had specifically stated that in his presence, Mukhiyaji took out a

piece of paper and he had written something on the said piece of

paper and, thereafter, it was given to his son. However, he did not

disclose the said aspect to the Police when his statement was

recorded. The said piece of paper was produced by PW-10 Suresh

Gautam after a period of 21 days before the Investigating Officer.

The said aspect is specifically admitted by the Investigating

Officer, PW-13 Basudeo Prasad Yadav. The Investigating Officer

further admitted that he had not sent the said piece of paper for

necessary examination to F.S.L. He had also not sent the soil with

blood stains collected from the place of occurrence and empty

cartridges for necessary analysis to the F.S.L. Thus, we are of the

view that PW-7 to PW-9 are chance witnesses.

Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

35. Learned counsel for the appellant has further placed

reliance upon the decision rendered by the Supreme Court in the

case of Bahal Singh Vs. State of Haryana reported in AIR 1976

SC 2032. In Paragraph-10 of the said decision, the Hon'ble

Supreme Court has observed as under:-

"As to the presence of P.W.s 4 and 5 at the time and place of occurrence the trial Court entertained grave doubts. If by coincidence or chance a person happens to be at the place of occurrence at the time it is taking place, he is called a chance witness. And if such a person happens to be a relative or friend of the victim or inimically disposed towards the accused then his being a chance witness is viewed with suspicion. Such a piece of evidence is not necessarily incredible or unbelievable but does require cautious and close scrutiny. In the instant case, P.W.s 4 & 5 were agnatic relations of the deceased-one of them a close one. The reason given by them for being at the place of occurrence did not appear to be true to the trial Court. There was not any compelling or sufficient reason for the High Court to differ from the evaluation of the evidence of the two chance witnesses. It may well be as remarked by the High Court that the respondent was also their collateral but they appeared to be partisan witnesses on the side of the prosecution and hence their testimony was viewed with suspicion by the trial Judge."

Thus, evidence of chance witnesses does require cautious and close scrutiny.

Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

36. It is also relevant to note that the PW-13,

Investigating Officer has specifically admitted that the Police

Station is situated at a distance of 200 to 250 yards from the place

of occurrence and when the information was received at 08:45

a.m. about the incident of firing, he immediately reached to the

spot and chased the assailant. He has also prepared a Seizure List

and empty cartridges and soil with blood stain was collected.

However, the said witness in Paragraph-21 of the cross-

examination has specifically admitted that till 06:00 p.m. when the

F.I.R. was lodged, nobody had disclosed the name of the

assailants.

37. From the evidence produced by the prosecution, it is

further revealed that Investigating Officer has not prepared the

map/sketch of the place of incident and he has not enquired about

the distance between the house of the first informant and the place

of occurrence i.e. shop of Mangal Sahni. A number of houses are

situated between the house of the informant and the place of

occurrence and, therefore, the story put forward by the prosecution

that the first informant and his brother are the eye-witnesses

cannot be believed. Further, if the son of the deceased got the

piece of paper written by the deceased himself, wherein the names

of the assailants were written immediately after the incident took Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

place, why had he not informed about the said piece of paper and

the name of assailants to his brother namely, Ganesh Gautam, who

is the first informant. The said chit was not given to the first

informant and not to the Investigating Officer. Therefore, there is

no reference about the said piece of paper in the F.I.R. lodged by

the first informant Ganesh Gautam. Further, as per PW-8,

Mukhiyaji became unconscious on the spot, hence it is not possible

that he had written the names of assailant on the piece of paper.

Further, the PW-10, Ganesh Gautam specifically

admitted in Para-33 of his cross-examination that the present

appellant Mani Kant Singh @ Tunna Singh was not having any

enmity with his father. Further, the prosecution has failed to

produce the papers of the Belsand Hospital where primary

treatment was given to the deceased as per the case of one of the

prosecution witnesses.

38. Thus, we have re-appreciated the entire evidence

produced by the prosecution before the concerned Trial Court and

we are of the view that the prosecution has failed to prove the case

against the appellant/accused beyond reasonable doubt. Thus, the

Trial Court has committed an error while passing the impugned

order of conviction against the appellant/accused and, therefore,

the said order is required to be set aside.

Patna High Court CR. APP (DB) No.210 of 2014 dt.18-08-2023

39. The impugned judgment of conviction dated 21st

January, 2014 and order of sentence dated 27th January, 2014

passed by learned Additional Sessions Judge-I, Sitamarhi in S.Tr.

No.168 of 2012/47 of 2013 arising out of Belsand P.S. Case

No.126 of 2011 is set aside. The appellant, namely, Mani Kant

Singh @ Tunna Singh is acquitted of the charges levelled against

him by the learned trial court. He is directed to be released

forthwith, if not required in any other case.

40. The appeal stands allowed.

(Vipul M. Pancholi, J)

(Chandra Shekhar Jha, J)

Sachin/-

AFR/NAFR
CAV DATE
Uploading Date                24.08.2023
Transmission Date             24.08.2023