Sudistha Singh @ Sudishtha Singh vs The State Of Bihar
2023 Latest Caselaw 4068 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL APPEAL (DB) No.567 of 2016
     Arising Out of PS. Case No.-126 Year-2011 Thana- BELSAND District- Sitamarhi
======================================================

Sudistha Singh @ Sudishtha Singh Son Of Upendra Singh Resident Of Village - Sauli, P.S. Belsand, District - Sheohar.

... ... Appellant/s Versus The State Of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s      :        Mr. Prince Kumar Mishra, Amicus Curiae
For the State            :        Mr. Dilip Kumar Sinha, APP
For the Informant        :        Mr. Sheo Kumar Prasad, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI and HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

Date : 28-08-2023

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

30.03.2016 and order of sentence dated 07.04.2016 passed by

learned 1st Additional Sessions Judge, Sitamarhi in S.Tr. No. 188

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(1) of the Arms Act, 1959. The

appellant has been sentenced to undergo imprisonment for life as

also fine of Rs. 20,000/- and in default whereof the appellant has

to undergo R.I. for further 6 months. The appellant has further Patna High Court CR. APP (DB) No.567 of 2016 dt.28-08-2023

been sentenced for three years and fine of Rs. 10,000/- for the

offence under Section 27(1) of the Arms Act and in default

whereof, the appellant has to undergo further R.I. for 6 months. All

the sentences with regard to the appellant will run concurrently.

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

"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 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(1) of the Arms Act, 1959.

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 Patna High Court CR. APP (DB) No.567 of 2016 dt.28-08-2023

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. 2 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 8 witnesses and also produced

documentary evidence. Defence has also examined 6 witnesses.

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. As the learned counsel for the appellant was not

present, we requested Learned Advocate Mr. Prince Kumar Mishra

to assist us and the said Advocate is appointed as Amicus Curiae.

We have heard learned Amicus Curiae for the appellant, learned

APP Mr. Dilip Kumar Sinha for the Respondent-State and Mr.

Sheo Kumar Prasad for the Informant.

7. Learned Amicus Curiae for the appellant, thereafter,

referred to the deposition given by PW-1 to PW-3. After referring Patna High Court CR. APP (DB) No.567 of 2016 dt.28-08-2023

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.

8. Learned Amicus Curiae for the appellant thereafter

submits that PW-4 i.e. Suresh Gautam who is the son of the

deceased and brother of the original first informant as well as PW-

5 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-8,

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.567 of 2016 dt.28-08-2023

9. Learned Amicus Curiae for the appellant would,

thereafter, submit that as per the case of the prosecution and

deposition given by PW-8, 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.

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

though the so called eye-witness, PW-4 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-5

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.567 of 2016 dt.28-08-2023

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

document is a concocted document.

11. 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.

12. On the other hand, Learned APP has vehemently

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

1, PW-2 and PW-3 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-4 and PW-5, who are the sons of deceased, are also eye-

witnesses to the incident in question and the first informant PW-5

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.

13. We have considered the submissions canvassed by

the learned counsel appearing for the parties. We have also perused Patna High Court CR. APP (DB) No.567 of 2016 dt.28-08-2023

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-6 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

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.

14. PW-6, 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 Patna High Court CR. APP (DB) No.567 of 2016 dt.28-08-2023

(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. It is pertinent to note that PW-6 has

not fully supported the case of the prosecution despite that he was

not declared hostile.

15. PW-1, 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 Patna High Court CR. APP (DB) No.567 of 2016 dt.28-08-2023

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

Mukhiyaji was taken to Muzaffarpur. Thereafter, he came to know

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, however, he was

semiconscious. At that time, except him, nobody else was present.

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 15-16 days. At that time, the said witness was also

present.

16. PW-2, 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 Patna High Court CR. APP (DB) No.567 of 2016 dt.28-08-2023

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

persons started firing on Mukhiyaji in which he sustained injury.

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.

17. PW-3, 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.

18. PW-4, Suresh Gautam is the son of the deceased and

brother of the first informant. The said witness has stated in his Patna High Court CR. APP (DB) No.567 of 2016 dt.28-08-2023

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 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.567 of 2016 dt.28-08-2023

19. PW-5, 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.

20. PW-7, Dr. Bipin Kumar was working in the Hospital

at Muzaffarpur. The said witness had performed the post mortem Patna High Court CR. APP (DB) No.567 of 2016 dt.28-08-2023

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.567 of 2016 dt.28-08-2023

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."

21. PW-8, 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.567 of 2016 dt.28-08-2023

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.

22. At this stage, it is pertinent to note that PW-6 Mangal

Sahni is a natural witness who was present at the place of

occurrence in natural course. He was the owner of the betel shop.

The said witness has not identified the assailant and he was not

declared hostile by the prosecution.

In the case of Virendra Vs. State of Madhya Pradesh

reported in AIR 2022 SC 3373, the Hon'ble Supreme Court in

Para-7 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 Patna High Court CR. APP (DB) No.567 of 2016 dt.28-08-2023

decision of this Court in Raja Ram v. State of Rajasthan, (2005) 5 SCC 272 : (AIROnline 2000 SC 474):"

23. Thus, keeping in view the aforesaid decision

rendered by the Hon'ble Supreme Court, the deposition

given by PW-6 is examined and it can be said that the

appellant was not present at the place of incident and he

was not the assailant.

24. So far as the deposition given by PW-1 to

PW-3 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-2 has stated that the

assailants came on three different motorcycles, whereas

PW-1, Daroga Sahni had stated that six persons came on Patna High Court CR. APP (DB) No.567 of 2016 dt.28-08-2023

two different motorcycles whereas PW-3 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-1

had 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-2, 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-1 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-4 Suresh Gautam after a period

of 21 days before the Investigating Officer. The said aspect

is specifically admitted by the Investigating Officer, PW-8

Basudeo Prasad Yadav. The Investigating Officer further Patna High Court CR. APP (DB) No.567 of 2016 dt.28-08-2023

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-1 to PW-3 are chance

witnesses.

25. 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 Patna High Court CR. APP (DB) No.567 of 2016 dt.28-08-2023

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.

26. It is also relevant to note that the PW-8,

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 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.

27. At this stage, it is pertinent that DW-1 Gopal

Sah, DW-2 Rama Shankar Singh, DW-3 Priyesh Kumar,

DW-4 Harishchandra Sahni, DW-5 Raushan Kumar and

DW-6 Ashok Thakur have been examined as defence

witnesses. It is also pertinent to note that so far as DW-4 to Patna High Court CR. APP (DB) No.567 of 2016 dt.28-08-2023

DW-6 are concerned, the statement of the said witnesses

were recorded by the Police under Section 161 of the Code

of Criminal Procedure, 1973. Further, the aforesaid three

persons were also examined as prosecution witnesses in the

trial conducted against co-accused Manikant Singh @

Tunnu Singh. However, surprisingly, in the present case, the

prosecution has dropped the said witnesses and, therefore,

the defence has examined these three witnesses as defence

witnesses. If the deposition of the aforesaid defence

witnesses are examined, it is revealed that it is a specific

case of the appellant/accused that he was not present at the

place of occurrence when the incident took place and none

of the aforesaid witnesses have said that the appellant was

one of the assailants.

28. 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 Patna High Court CR. APP (DB) No.567 of 2016 dt.28-08-2023

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 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-3, Mukhiyaji

became unconscious on the spot, hence it is not possible

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

paper.

29. At this stage, it is pertinent to note that the

trial against the co-accused Manikant Singh @ Tunnu Singh

was separately conducted in the year 2014 and the

concerned Trial Court convicted the said co-accused vide

order dated 21.01.2014 and sentenced him vide order dated

27.01.2014 in STR No.168 of 2012/47 of 2013. It is also

relevant to note that similar type of allegations were

levelled against the said co-accused by the prosecution. The Patna High Court CR. APP (DB) No.567 of 2016 dt.28-08-2023

said accused filed separate Criminal Appeal (DB) No. 210

of 2014 before this Court. This Court has, after considering

the evidence produced by the prosecution before the Trial

Court, passed an order on 18.08.2023 whereby the said co-

accused has been acquitted. Learned Amicus Curiae has

pointed out the aforesaid aspect and also produced the copy

of the said order for the perusal of this Court. We have also

considered the reasoning recorded by this Court in the order

dated 18.08.2023 while acquitting the co-accused Manikant

Singh @ Tunnu Singh.

30. 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.

31. The impugned judgment of conviction dated

30.03.2016 and order of sentence dated 07.04.2016 passed by

learned 1st Additional Sessions Judge, Sitamarhi in S.Tr. No. 188

of 2013 arising out of Belsand P.S. Case No. 126 of 2011 is set

aside. The appellant, namely, Sudistha Singh @ Sudishtha Singh is Patna High Court CR. APP (DB) No.567 of 2016 dt.28-08-2023

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.

32. The appeal stands allowed.

33. Before parting with the appeal, I record my

appreciation for the able assistance rendered by Mr. Prince Kumar

Mishra, learned Amicus Curiae.

34. The Patna High Court, Legal Services Committee is,

hereby, directed to pay ₹ 5,000 (Rupees Five Thousand) to Mr.

Prince Kumar Mishra, learned Amicus Curiae in Criminal Appeal

(DB) No. 567 of 2016 as consolidated fee for the services rendered

by him.

(Vipul M. Pancholi, J)

(Chandra Shekhar Jha, J) Sachin/-

AFR/NAFR
CAV DATE
Uploading Date                01.09.2023
Transmission Date             01.09.2023