Bhantu Rai @ Mantu Rai vs The State Of Bihar Through The ...
2023 Latest Caselaw 3996 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.589 of 2015
  Arising Out of PS. Case No.-195 Year-2012 Thana- RUNISAIDPUR District- Sitamarhi
======================================================

Bhantu Rai @ Mantu Rai, son of Sri Baleshwar Rai @ Baleshwar Prasad Rai, resident of Village-Batrauli, Police Station-Runni Saidpur, District- Sitamarhi Bihar.

... ... Appellant Versus

The State of Bihar through the Informant Nitesh Kumar ... ... Respondent ====================================================== Appearance :

For the Appellant : Mr. Vindya Keshari Kumar, Sr. Advocate Mr. Neeraj Kumar, Advocate For the State : Mr. Binod Bihari Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI and HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI) Date : 24-08-2023

The present appeal has been filed by the

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

Procedure, 1973 (hereinafter referred to as 'Code') against

judgment of conviction dated 24.03.2015 and order of sentence

dated 01.04.2015 rendered by learned Additional District &

Sessions Judge-1st, Sitamarhi in Sessions Trial No. 11 of 2013/2

of 2013, whereby the present appellant has been convicted for

the offences punishable under Sections 302, 148 and 120(B) of

the Indian Penal Code and under Section 27 of Arms Act,

arising out of Runni Saidpur PS Case No. 195 of 2012, in which

he has been sentenced to undergo R.I. for life and to pay a fine Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

of Rs. 25,000/- and in default of payment of fine, to further

suffer R.I. for 6 months for the offence punishable under Section

302 of IPC; to undergo R.I. for 2 years for the offence

punishable under Section 148 of IPC and to undergo R.I. for 5

years and to pay a fine of Rs. 10,000/- and in default of payment

of fine, to further suffer R.I. for 2 months for the offence

punishable under Section 27 of Arms Act. The sentences have

been ordered to run concurrently.

2. The case of the prosecution in a nutshell is as

under:-

The fardbeyan of one Nitesh Kumar was recorded by S.I.,

R.K. Singh of Ahiyapur police station, District-Muzaffarpur on

02.07.2012 at about 09:15 p.m. at SKMCH, Muzaffarpur

emergency ward, wherein the first informant had stated that his

father Kamta Rai went to Sirkhiria market for purchasing

vegetables on 02.07.2012 and when he was returning to his

house, one Kailash Rai and Ramanand Rai were also with him.

At about 04:00 p.m., one tempo was parked in the market near

the road which was going towards western side. It is alleged that

Chiranjivi Bhagat, his cousin brother, Mantu Rai and

Bindeshwar Bhagat while armed with pistols sneaked past the

said parked tempo and thereafter Chiranjivi Bhagat opened fire Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

and the bullet hit on the chest of the father of informant,

similarly, Mantu Rai also fired upon the father of informant and

the bullet hit on his left hand wrist, the cousin brother of the

Chiranjivi also fired from his pistol and the bullet hit on the left

thigh of the informant's father. Thereafter, Bindeshwar Bhagat

fired in air from his pistol. It is also alleged that Anil Singh,

Chandrika Rai and Shyam Rai were also planning to kill the

father of the first informant and they were giving threats to the

father of the informant that he will be killed with the help of

firearm. It is also stated that after the incident, all the accused

fled away from the place of occurrence on the southern side of

the market. It is the case of the prosecution that the incident in

question took place because of the land dispute which was going

on between Chiranjivi Bhagat, Shayam Rai and Kailash Mahto.

It is further stated that after the incident, the injured father of the

first informant was taken to SKMCH by tempo. However, when

they reached to the said hospital, the father of the informant

succumbed to the injuries and died.

3. On the basis of the aforesaid fardbeyan given by

the first informant, FIR was lodged on 03.07.2012 at about

11:30 a.m. for the offences punishable under Sections 302 read

with Section 34 of the IPC against all the named accused. The Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

Investigating Officer thereafter started the investigation and

during the course of investigation, recorded the statement of the

witness and collected the documentary evidence and after

investigation was over, filed the chargesheet against the present

appellant. The other accused were not available and, therefore,

they were shown as absconders, however, it is pertinent to note

that thereafter some of the accused were arrested and separate

charge-sheets were filed against the other co-accused persons.

The trial against the said co-accused was also separately

conducted by the concerned trial Court.

4. The Investigating Officer filed the charge-sheet

as observed above against the appellant before the concerned

Magistrate Court. However, as the case was exclusively triable

by the Court of Sessions, the learned Magistrate committed the

same under Section 209 of the Code to the concerned Sessions

Court.

5. During the course of the trial, the prosecution

examined nine witnesses and produced the documentary

evidence including the inquest report and the postmortem note

of the deceased. Further statement of the appellant/accused

under Section 313 of the Code was also recorded and after

conclusion of the trial, the trial Court passed the impugned order Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

as observed herein-above. Against the order of conviction, the

appellant has preferred the present appeal, which was admitted

and today, the same was taken up for final hearing.

6. Heard learned Senior Counsel Mr. Vindya

Keshari Kumar assisted by learned Advocate Mr. Neeraj Kumar

for the appellant and Mr. Binod Bihari Singh, the learned APP

for the respondent-State.

7. Learned Advocate for the appellant submitted

that though the prosecution had examined six so called eye-

witnesses to the incident in question, PW-2, Ganga Rai, PW-5,

Ram Nandan Rai and PW-6, Ram Sakal Rai have not fully

supported the case of the prosecution and therefore they were

declared hostile. It is submitted that the prosecution has

therefore placed reliance upon the deposition given by three

witnesses namely, PW-1, Nitesh Kumar, PW-3, Kailash Rai and

PW-4, Bhagya Narayan Rai. Learned counsel has referred to the

deposition given by the aforesaid so-called eye-witnesses and

thereafter contended that though PW-1 is the first informant and

son of the deceased, he had for the first time narrated the story

while giving the deposition before the Court by projecting

himself as an eye-witness to the incident in question. It is

submitted that in the fardbeyan given by the informant or by Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

giving his further statement, the said witness did not disclose the

story which he had narrated before the Court for the first time

while giving his deposition and therefore there is material

improvement in the version given by the PW-1. It also

submitted that similarly PW-3 and PW-4 are near relatives of the

deceased and have not stated about the manner in which the

incident took place while giving statement before the police at

the time of investigation. However, for the first time, the said

witnesses have narrated different story before the Court while

giving their depositions. At this stage, learned counsel has

referred the deposition given by PW-7, Harish Chandra Thakur,

the Investigating Officer, who has carried out the investigation.

It is submitted that from the cross-examination of the said

witness, it is clear that all the aforesaid so-called eye-witnesses

have first time narrated different story before the Court while

giving their depositions and thereby there are major

contradictions in the deposition of the so-called eye-witnesses.

7.1. Learned counsel thereafter referred to the

deposition given by PW-8, Dr. Bipin Kumar, who has conducted

the postmortem of the deceased. Learned Advocate has also

referred to the postmortem report of the deceased and thereafter

submitted that as per the case of the prosecution and the so- Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

called eye-witnesses, the assailants came from the southern side

and opened fire from their firearms and thereby father of the

first informant sustained injuries. However, PW-8, Dr. Bipin

Kumar has specifically stated that from the injury it appears that

the firearms were used from the front side of the deceased. It is

further submitted that as per the case of the prosecution, firing

took place at a distance of about 7 - 9 feets, whereas the doctor

has specifically opined that the firearms were used from close

range, that is within 1 - 3 feet and the injuries on the body of the

deceased will cause profuse bleeding and this type of injury in

normal course, without any medical aid, will cause death within

a very short time. The said doctor has further stated that exit

wounds are at upper level in comparison to entry wounds.

Learned counsel therefore submitted that the version given by

the doctor clearly indicates that the aforesaid 3 prosecution

witnesses are though not eye-witnesses, they are projected as

eye-witnesses to the occurrence. In spite of that, the Trial Court

has passed the impugned order of conviction. It is also

contended that as per the case of the prosecution, the injured-

father of the informant was taken to his house, first from the

market and after 10 -15 minutes, he was taken in the tempo and

thereafter in the ambulance to the concerned hospital and when Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

they reached to the hospital, the injured succumbed to the

injuries and died in the hospital. Learned Advocate referred to

the relevant portion of the deposition of the witnesses and

thereafter contended that the incident took place at 04:00 p.m.

and the injured was brought to the hospital at about 07:00 p.m.,

i.e., after three hours and thereafter he died. Thus, it is

impossible to believe that the injured remained alive for three

hours after sustaining the injuries as narrated by the doctor. It is

therefore urged that the present appeal be allowed and thereby

impugned order of conviction be quashed and set aside.

8. On the other hand, learned APP appearing for the

State has opposed this appeal. Learned APP would mainly

submit that three eye-witnesses have fully supported the case of

the prosecution and deposed before the Court the manner in

which the incident had occurred. It is further submitted that the

medical evidence also corroborates the version given by the

eyewitnesses and therefore merely because there is some lacuna

on the part of the investigation while conducting the

investigation, the benefit of the same cannot be given to the

appellant/convict/accused.

8.1. Learned APP thereafter submitted that the

prosecution has also proved the motive on the part of the Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

accused in committing the alleged crime and, therefore, when

the prosecution has proved the case against the

appellant/accused beyond reasonable doubt, this Court may not

interfere with the order of conviction passed by the Trial Court.

9. We have considered the submissions canvassed

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

examined the entire evidence produced by the prosecution

before the Trial Court.

10. PW-1, Nitesh Kumar is the first informant, who

had given the first fardbeyan at about 09:15 p.m. on 02.07.2012

at SKMCH before the S.I., R.K. Singh of Ahiyapur Police

Station, District-Muzaffarpur. PW-1, who is son of the deceased,

Kamta Rai, stated in the examination-in-chief that one Raman

Rai came to his house on 02.07.2012 at about 03:30 p.m. and

thereafter his father went on motorcycle with the said person,

meanwhile he along with his mother Sumitra Devi were sitting

in the room. At that time, he heard that one Chandrika Rai who

was talking on phone and said that "Madhumakkhi udtao humhu

aa gaele Raman ke saath motorcycle se Sirkhiria bazaar gaela

hu", immediately within 5 minutes thereafter Chandrika Rai,

Krishnakant Kesari and Anil Singh left their house on

motorcycle and went to Sirkhiria market. The said witness Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

therefore was apprehending that something untoward incident

will happen and therefore he along with his cousin Munna had

also gone to the market. He saw that his father, Raman Rai and

Kailash Rai were buying vegetables. He, therefore, informed his

father about the telephone talk of Chandrika Rai. His father took

the same seriously and asked that he should now go to his house

by saying that whenever he is leaving his house, Chandrika Rai,

Shyam Rai and Krishna Kant Kesari are giving the same

information to Chiranjivi Bhagat. His father and Raman Rai sat

on the motorcycle at about 04:00 p.m. He noticed that one

tempo was parked in the market on the road going towards

western side. Suddenly, Chiranjivi Bhagat, Bindeshwar Bhagat,

Arun Bhagat, Mantu Rai and Rakesh Kumar sneaked past the

said tempo carrying pistols and opened fire and in the said

incident, his father sustained injuries and fell down. The said

witness further stated that his father sustained three gunshot

injuries. It is also stated that the bullet, which was fired from the

pistol of Mantu Rai, hit on the left wrist of his injured father, the

bullet which was fired from the pistol of Chiranjivi Bhagat hit

on the left side of abdomen, whereas the bullet which was fired

from the pistol of Arun Bhagat hit on the thigh. The other two

persons, namely, Bindeshwar Bhagat and Rakesh Kumar also Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

fired on two dogs and one dog died. Thereafter, the injured

father was taken by him with the help of one Kailash Rai on the

motorcycle to his house and thereafter in tempo, his father was

shifted to SKMCH, Muzaffarpur. During the transit, he also

informed his relative on phone and, therefore, his relative

brought ambulance and his father was taken to the aforesaid

hospital in ambulance.

10.1. During cross-examination, the said witness

has stated that his house is situated two kilometers away from

the Sirkhiria market. The said witness has specifically admitted

during cross-examination that the accused started firing from

their pistol from the southern side and that too from the distance

of five steps (around 7 - 9 feets). When the bullet hit his father

who was in a sitting position on the motorcycle along with one

Raman Rai, who was his pillion rider. He has also stated that the

motorcycle was shown to the Investigating Officer. However,

the said Investigating Officer did not seize the said motorcycle.

Raman Rai was not injured in the said firing. Though, the

number of persons, who were gathered there at the time of

occurrence, nobody got injured in the said incident. The said

witness further admitted that his father was initially taken to his

house at about 04:30 p.m. However, he did not call the doctor Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

from the village nor any doctor was called at the market. They

stayed in their house for about 10 minutes and thereafter his

father was taken in the tempo. He further stated that for the first

time his statement was recorded at about 09:15 p.m. on

02.07.2012. He has stated correct aspect in the said fardbeyan.

Thereafter, his another statement was recorded on 03.07.2012 at

about 05:00 p.m. The defence has also pointed out about the

contradictions in the deposition of the said witness. These

witnesses have also stated that they reached at SKMCH at about

07:00 p.m. and after reaching to the said hospital, he informed

to S.P. and Runni Saidpur police station from his mobile. In the

said information, he did not give name of any of the assailants

and he had simply stated that his father sustained firearm

injuries.

11. PW-3, Kailash Rai has stated in his

examination-in-chief that on the date of the incident, at about

4:15 p.m. to purchase the vegetables in Sirkhiria market. At that

time, he met Kamta Rai and Raman Rai. Both the aforesaid

persons were also purchasing the vegetables. At that time, the

son of Kamta Rai i.e. Nitesh Rai and cousin brother of Nitesh

both came to the said place and informed Kamta Rai that after

he left the house, Chandrika Rai informed on telephone to Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

Chiranjivi that 'bazar me madhumakhi urtau hamhu bazar

awahi'. The said witness, therefore, told Kamta Rai that he

should leave market immediately. Thereafter, Kamta started his

motorcycle and sat on the said motorcycle along with Raman

Rai. When the motorcycle was started, it was noticed that one

tempo was parked in the southern side of the motorcycle at

about five feet. Chiranjivi Bhagat, Arun Bhagat, Mantu Rai,

Bindeshwar Bhagat and Rakesh Rai sneaked past the said tempo

and started firing and in the said incident, Kamta Rai sustained

injuries. Raman Rai was pillion rider jumped from the said

motorcycle and fled away. At that time, Shyam Rai, Chandrika

Rai, Krishnakant Kesari and Anil Singh were informing

Chiranjivi about Kamta Rai. The said witness further stated that

one dog had also gone along with Kamta Rai in the market and

one bullet also hit the said dog and the said dog died. Thereafter,

the injured Kamta Rai was taken to his house on the motorcycle

by the said witness along with Nitesh and thereafter, he was

taken to Muzaffarpur Medical College in tempo. In transit,

ambulance came and the injured was shifted to the said hospital

in the said ambulance. The reason for the said incident is

described by the said witness that there was a land dispute

between Chiranjivi and Kamta Rai and there was also dispute Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

with regard to road between Chandrika and Kamta Rai.

11.1. During cross-examination, the said witness

stated that at the time of occurrence, Nitesh was also standing at

a distance of 5-7 steps and the assailants did not fire on Nitesh

or his cousin brother nor on Raman. The said witness further

stated that they did not inform the police about the incident. The

said witness further stated that he stayed at the house of Kamta

Rai for 5-10 minutes and, thereafter, the injured was shifted to

Muzaffarpur Medical College. He further deposed that when the

police came to Medical College, he did not give his statement to

the police. His statement was recorded by the police on the next

day at 5:00 p.m. His further statement was also recorded by the

police.

12. PW-4, Bhagya Narayan Rai had stated in his

examination-in-chief that on the date of incident at about 4:00

p.m., he had gone to purchase 'gamchcha' in Sirkhiria market.

At that time, he heard the sound of firing. When he saw, Kamta

Rai along with Raman Rai were sitting on the motorcycle and at

that time, Bindeshwar Bhagat, Chiranjivi Bhagat, Arun Bhagat,

Bhantu Rai @ Mantu Rai and Rakesh Kumar came at the said

place carrying pistols in their hands and started firing. In the

said incident, Kamta Rai sustained injuries on his left wrist, Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

thigh and abdomen.

12.1. During cross-examination, the said witness

stated that the deceased Kamta Rai was his step-brother. After

the firing was over, he reached at the place of occurrence. When

he reached at the place of occurrence, he had seen that Kamta

Rai was lying in injured condition. The said witness resides next

to the house of Kamta Rai. His statement was recorded by the

police on the next day at about 4-5 p.m.

13. PW-2, Ganga Rai, PW-5, Rama Nand Rai and

PW-6, Ram Sakal Rai have not fully supported the case of the

prosecution and, therefore, they were declared hostile.

14. PW-7, Harish Chandra Thakur, who had carried

out the investigation, has stated in his examination-in-chief that

on 02.07.2012, he was working as S.H.O. (Station House

Officer) of Runni Saidpur Police Station. At that time, he

received the information at about 17:00 hours (5:00 p.m.) that

one person is shot dead in Sirkhiria Market. He, therefore,

entered the said information in the station diary and, thereafter,

proceeded to the place of occurrence. When he reached in the

village-Sirkhiria, the persons, who were present at the said place

informed him that one Kamta Rai, son of late Tejnarayan Rai of

village-Sirkhiria is shot dead by the assailants and for treatment, Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

the said person is taken to SKMCH, Muzaffarpur. He, therefore,

sent one person to the said hospital and the said witness

remained at the place of occurrence. On the next day, i.e.

03.07.2012, one person came from SKMCH, Muzaffarpur with

fardbeyan and, therefore, the same was registered as FIR with

the concerned police station. Thereafter, he has taken over the

investigation. He further deposed that he had inspected the place

of occurrence. When he reached at the place of occurrence, he

also found the bloodstains at the place of occurrence. However,

he did not collect the same. Thereafter, he had recorded the

statement of the witnesses, collected postmortem report and

after investigation, he filed the charge-sheet against Mantu Rai.

14.1. During cross-examination, he had stated that

in case diary he had not written station diary number. He

reached at Sirkhiria village in jeep within one hour. At the place

of occurrence, the persons, who have gathered, informed him

that Kamta Rai had sustained injuries in the firing made by the

assailants and he has mentioned about the same in the case

diary. He remained at the place of occurrence during entire night

and he received fardbeyan at 9:00-9:30 a.m. on the next day.

Thereafter, he has carried out inspection of place of occurrence

at about 15:30 hours (3:30 p.m.) and subsequently recorded the Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

statement of the witnesses. In the cross-examination, the said

witness has specifically stated that witness Nitesh had not stated

in his statement recorded by the police about the manner in

which the incident took place, which he had stated before the

court in his deposition. Similarly, the said Investigating Officer

has further stated that witness, Kailash Rai has also not stated in

his statement recorded by the police about the manner in which

the incident took place, which now he has deposed before the

court. Similarly, in the cross-examination, witness Bhagya

Narayan Rai has also not stated in his statement recorded on

03.07.2012, which now, he has deposed before the court. The

Investigating Officer further admitted that he had not collected

the blood from the place of occurrence nor he had found the

bullet or empty cartridges or the pellets. The said witness has

also stated that the motorcycle on which Kamta Rai was sitting

was not seized by him nor anybody had produced the said

motorcycle before him.

15. PW-8, Dr. Bipin Kumar is a witness, who had

conducted the postmortem on the dead body of the deceased

Kamta Rai. The said doctor has found following injuries:-

"(i) One oval wound 1" x ½" x cavity deep over left upper part of abdomen 2"

lateral and 5" below to the left nipple Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

margins were inverted and surrounded by blackening - entry wound of fire arms.

(ii) One oval wound 11/2" x 1" over left middle of back of chest with everted margins - exit wound.

On Dissection:

Injury No. 1 and 2 were continuous to each other the projectile in its course pierced the liver, left lung fractured the posterior rib and finally made exit through wound no. 2. Both cavity filled with blood.

3. One oval wound 1" x 1/2" x muscle deep over left fore-arm. With inverted margins and surrounding blackening 5"

above right joint. - Entry wound.

4. One oval wound 11/2" x 1" over posterior part of left fore- arms 6" above left wrist joint with everted margins. -

Exit wound.

5. One oval wound ¾" x ½" x muscles deep over lateral interior part of left thigh, with inverted margin and surrounding blackening entry wound.

6. One oval wound 1" x ¼" x 1" over posterior part of left thigh with everted margins. - Exit wound".

The said witness further stated that the deceased

died due to haemorrhage and shock as a result of the aforesaid

injuries and the injuries were caused by firearms like, rifle, gun Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

and pistol or any firearms.

15.1. During cross-examination, the said witness

has specifically stated that only three firearm injuries were

found and the other three were the exit wounds of those injuries.

He had further stated that looking to the injuries, it can be said

that firing took place from very close range i.e. within 1-3 feet.

He also stated that from the injuries, it appears that firearm was

used from front side of the deceased and the injuries on the body

of the deceased will cause profuse bleeding. This type of injury,

in normal course, without any medical aid, will cause death

within very short time. Lastly, the said witness had stated that

exit wounds are at upper level in comparison to entry wounds.

16. PW-9, Ramchandar Singh was working at

Ahiyapur Police Station. The said witness recorded fardbeyan of

Nitesh, son of the deceased in emergency ward of SKMCH,

Muzaffarpur on 02.07.2012 at 9:15 p.m. He has recorded the

said fardbeyan in his own handwriting.

17. From the aforesaid evidence led by the

prosecution before the Trial Court, it can be said that PW-1,

PW-3 and PW-4 are projected as eye-witnesses by the

prosecution. However, PW-2 Ganga Rai, PW-5 Rama Nand Rai

and PW-6 Ram Sakal Rai have not supported the case of the Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

prosecution and they were declared hostile. Thus, the deposition

given by the so-called eye-witnesses are required to be

examined minutely.

18. It is pertinent to note that PW-1 Nitesh

Kumar is son of the deceased, whereas PW-3 Kailash Rai is near

relative of the deceased. Similarly, PW-4 Bhagya Narayan Rai is

also near relative of the deceased. Thus, all the three witnesses,

who have supported the case of the prosecution are interested

and related witnesses and, therefore, as observed hereinabove,

that their deposition are required to be examined minutely.

19. If the deposition of PW-1 is read along with

the fardbeyan given by the said witness before the police, it is

revealed that, for the first time, the said witness has narrated

story before the court that when his father left the house and

gone to the market, he was present in the house with his mother

and after his father left the house, he heard the conversation

made by Chandrika Rai on telephone and, thereafter, he left his

house with his cousin brother Munna. They went to the market

and informed Kamta Rai i.e. father of Nitesh about the

telephone talk made between Chandrika Rai and another. The

said aspect is also not disclosed by the said witness when his

further statement was recorded by the police during Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

investigation. The Investigating Officer (PW-7), Harish Chandra

Thakur also confirmed the same during his cross-examination.

19.1. Similarly, PW-3 Kailash Rai, PW-4 Bhagya

Narayan Rai have also stated certain aspects for the first time

before the court. The Investigating Officer also confirms the

same in his cross-examination.

20. Thus, from the aforesaid, it is clear that the

aforesaid witnesses have improved their version and stated new

story for the first time before the court. The defence has also

able to prove the major contradictions in the deposition of the

said witnesses. Thus, it can be said that there is an improvement

and contradiction in the deposition of the prosecution witnesses,

who are claimed to be eye-witnesses

21. From the deposition of so-called eye-

witnesses, it is further revealed that as per the version of the said

eye-witnesses, firing took place from the left side of the

motorcycle on which Kamta Rai was sitting with Raman Rai

and the said firing took place from distance of 7-9 feet.

However, if the deposition given by PW-8, Dr. Bipin Kumar and

postmortem report are examined, it is revealed that as per the

said witness, the injuries sustained by the deceased, it can be

said that firearms were used from close range i.e. within 1-3 feet Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

and the firearms were used from the front side of the deceased.

It is further revealed that the injuries on the body of the

deceased can cause profuse bleeding and if the medical aid is

not given, looking to the injuries, in normal course, death will

cause within very short time. It is also revealed that exit wounds

are at upper level in comparison to entry wounds.

21.1. Thus, from the medical evidence produced

by the prosecution, it can be said that the medical evidence does

not corroborate the version given by the ocular witnesses.

22. At this stage, it is also pertinent to note that

as per the case of the eye-witnesses, the injured Kamta Rai was

taken on the motorcycle by two prosecution witnesses to his

house where they stayed for 10-15 minutes. Thereafter, the

injured was taken to the Medical College, Muzaffarpur initially

in tempo and, thereafter, in ambulance. The injured succumbed

to the injuries when he reached to the hospital at about 7:00 p.m.

Thus, from the evidence produced by the prosecution, it can be

said that injured Kamta Rai died after three hours from the time

of occurrence. At this stage, it is to be recalled that as per the

case of the first informant, incident took place at 4:00 p.m. and

he succumbed to the injuries at 7:00 p.m. Once again, at this

stage, if the deposition given by the doctor (P.W.8) is once again Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

examined, it is clear that looking to the injury sustained by the

deceased that there would be profused bleeding and the death, in

normal course, would occur within very short time, if medical

aid is not given. In the present case, it is revealed that the

medical aid was not given to the injured during these three

hours.

23. It would further emerged from the record that

the Investigating Officer (PW-7) had stated that he got the

information about the incident on telephone and, therefore, the

said aspect was recorded in the station diary and, thereafter, he

reached at the place of incident around 6:00 p.m. He remained

there during entire night. When he reached to the place of

occurrence, from the people gathered, he came to know about

the name of the injured and the manner in which the incident

took place. The said aspect he had mentioned in his case diary.

However, it is pertinent to note that nobody had disclosed the

name of present appellant or the other assailants. Thus, the

Investigating Officer was aware about the commission of the

cognizable offence committed by unknown persons in which

one person sustained injury by firearms. The name of injured

was also disclosed to him. In spite of that, the said information

was not considered as first information report. Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

24. It further transpires that PW-7, Harish

Chandra Thakur, the Investigating Officer of the case though

noticed certain blood stains at the place of occurrence, he did

not collect the blood-stained soil for the purpose of necessary

analysis. The said witness also admitted during cross-

examination that he did not find any empty cartridges, bullet or

pellet at the place of occurrence.

25. Thus, the prosecution has tried to contend that

because of the land dispute, an enmity between Chiranjivi and

Kamta Rai and because of the dispute with regard to the road

between Chandrika Rai and Kamta Rai (deceased), the accused

have killed Kamta Rai. However, the prosecution has failed to

prove the same by leading cogent evidence. Even otherwise,

when the version given by so-called eye-witnesses is not

required to be believed in view of the medical evidence and

other circumstances discussed hereinabove, the aforesaid aspect

is not very relevant. Even otherwise also, when there is enmity

between the parties, there are chances of false implication.

26. In view of the aforesaid discussions, we are

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

against the appellant beyond reasonable doubt and, therefore,

the learned Trial Court has committed grave error while passing Patna High Court CR. APP (DB) No.589 of 2015 dt.24-08-2023

the impugned judgment and order.

27. The appeal is allowed. The impugned

judgment of conviction dated 24.03.2015 and the order of

sentence dated 01.04.2015 passed by the learned Adhoc

Additional District and Sessions Judge-1st, Sitamarhi in Sessions

Trial No. 11 of 2013/ 2 of 2013 arising out of Runnisaidpur P.S.

Case No. 195 of 2012 is set aside.

28. The appellant, namely, Bhantu Rai @ Mantu

Rai is acquitted of the charges levelled against him. Since he is

in jail, he is directed to be set at liberty forthwith, if his

appearance is not required in any other case.

29. The amount of fine paid by the appellant be

returned to him.

(Vipul M. Pancholi, J.)

(Chandra Shekhar Jha, J.)

Sanjeet/-

Shahnawaz/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          30-08-2023
Transmission Date       30-08-2023