Patna High Court
Nikesh Rai @ Piyush Raj And Anr vs The State Of Bihar on 19 May, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.117 of 2018
Arising Out of PS. Case No.-154 Year-2011 Thana- CHAPRA TOWN District- Saran
======================================================
1. Nikesh Rai @ Piyush Raj, S/o Laxman Rai, R/o Vill.- Ramgarha, P.S.-
Awtarnagar, District- Saran.
2. Shambhu Rai, S/o Late Ram Narain Rai, R/o Village- Narayanpur, P.S.-
Garkha, District- Saran.
... ... Appellant/s
Versus
The State of Bihar.
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 199 of 2018
Arising Out of PS. Case No.-154 Year-2011 Thana- CHAPRA TOWN District- Saran
======================================================
Avinash Rai, Son of Jamdar Rai, Resident of Village- Banwari Basant, Police
Station- Garkha, District- Saran.
... ... Appellant/s
Versus
The State of Bihar.
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 117 of 2018)
For the Appellant/s : Mr. Rajendra Narayan, Sr. Advocate
Mr. Satyendra Prasad, Advocate
Mr. Vikramdeo Singh, Advocate
Mr. Mukesh Kumar Singh, Advocate
For the Respondent/s : Mr. Binod Bihari Singh, APP
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
(In CRIMINAL APPEAL (DB) No. 199 of 2018)
For the Appellant/s : Mr. Rajendra Narayan, Sr. Advocate
Mr. Satyendra Prasad, Advocate
Mr. Vikramdeo Singh, Advocate
Mr. Mukesh Kumar Singh, Advocate
For the Respondent/s : Mr. Binod Bihari Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE A. M. BADAR
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA)
Date : 19.05.2023
Heard Mr. Rajendra Narayan, learned Senior
counsel appearing on behalf of the appellants and Mr. Binod
Bihari Singh, learned Additional Public Prosecutor appearing on
behalf of the State in both Criminal Appeal (DB) No. 117 of
2018 and Criminal Appeal (DB) No. 199 of 2018.
2. Both above mentioned appeals are preferred
challenging judgment of conviction dated 18.12.2017 and order
of sentence dated 22.12.2017, as passed in Sessions Trial No.
107 of 2012/4868 of 2014 (arising out of Chapra Town P.S.
Case No. 154 of 2011) passed by the learned Additional
Sessions Judge, 9th Saran at Chapra, where appellant no. 1,
Nikesh Rai @ Piyush Raj was convicted through Cr. Appeal
(DB) No. 117 of 2018 for the offences alleged under Section
302/34 read with Section 120B of the Indian Penal Code and
Section 27(1) of the Arms Act and sentenced to imprisonment
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
for life under Section 302/34 and 120B of the Indian Penal Code
with a fine of Rs. 50,000/- and also appellant no. 2 namely
Shambhu Rai for the offences alleged under Section 120B read
with Section 302 of the Indian Penal Code and sentenced to
imprisonment for life with a fine of Rs. 50,000/-. Further, to
convict appellant Avinash Rai in Cr. Appeal (DB) No. 199 of
2018 for the offence alleged under Sections 302/34 & 120B of
the Indian Penal Code and sentenced to undergo imprisonment
for life and fine of Rs. 50,000/-, and in case of default to pay
fine, further to undergo rigorous imprisonment of six months.
He was also convicted under Section 27(1) of the Arms Act and
sentenced to undergo rigorous imprisonment for three years
with fine of Rs. 5000/- and in failure of payment of fine, further
undergo for rigorous imprisonment of six months.
3. Both above criminal appeals heard together and
decided through this common judgment.
4. Factual matrix of this case as it springs from
written information of the informant, namely, Shashi Bhushan
Singh (PW-2) dated 20.07.2011 that his younger brother,
namely, Mani Bhushan Singh, proceed from his village "Jhaua
Basant" at about 1.00 PM to the house of his friend, namely,
Pappu Singh in connection to discuss business matter and
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
thereafter to visit Lucknow by train in evening, in meantime, he
received a call at about 3:30 PM from one Chandrashekhar
Singh, resident of Ghosh Colony, P.S. Muffasil, Chapra as to
come immediately to the house of Pappu Ji, where
indiscriminate firing was made, which is still continue, where 3-
4 persons received gun shot injuries. On said information,
informant (PW-2) went to the place of occurrence and found
that his brother Mani Bhushan Singh, his driver Dinesh Yadav,
Son of Bhikhari Rai, Resident of Banwari Basant, P.S. Garkha
and one Devendra Singh, Son of Late Sudama Singh, Resident
of Pipra Thana, Panapur, were found killed due to gun shot
injuries. He inquired about the occurrence from Pappu Singh,
where he came to know that 4-5 unknown accused persons
arrived there equipped with AK-47 rifles, carbine and revolver
and opened indiscriminate firing immediately after coming to
the room of first floor, where Mani Bhushan Singh, Dinesh
Yadav and Devendra Singh were killed. He raised suspicion
that the murder of his brother and others were done by Avinash
Rai, S/o Jamadar Rai (Appellant/convict), Resident of Banwari
Basant, Thana Garakha, Nikesh Rai @ Piyush Raj
(Appellant/convict), Son of Laxman Rai, Mahesh Rai, Son of
Laxman Rai, Both residents of Ramgarha, P.S. Autar Nagar,
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
Devendra Singh @ Puttu, resident of Banwar, P.S. Daudpur and
their associates. Reason for suspicion as explained that all these
accused persons were in inimical terms with informant and also
with his deceased brother Mani Bhushan Singh as one Sanjay
Singh their friend was killed some years back by one Rakesh
Rai, who is the brother of co-accused Mahesh Rai. It is further
stated that he was named in the murder case of one Mohan Rai,
who was Fufa (husband of his father's sister) of co-accused
Mahesh Rai. It is also stated that Rakesh Rai, Manoj Rai and
Manish Kumar were killed in police encounter where he was
suspected as police spy by accused persons. All these
occurrence collectively increased the threshold of inimical
terms, where he received threat of life. It is also stated that he
received information prior to this occurrence that Avinash Rai,
Mukesh Rai, Mahesh Rai and others were looted Rs. 20 lacs
somewhere in Pratap Garh in Uttar Pradesh, and in said case
STF Team also visited their village and furthermore, with same
looted money, one AK-47 was purchased. Prior to purchase of
AK 47, Carbine and revolver were already available with them.
Informant further stated that prior to 2-3 days of this occurrence,
he and his deceased brother, namely, Mani Bhushan Singh
received threat to life but they took it in very casual manner as
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
they were in habit to receive such threat but now he is claiming
to be sure that his brother Mani Bhushan, Devendra Singh and
Dinesh Yadav were killed in very planned manner by Avinash
Rai (appellant), son of Jamadar Rai, resident of Banwari Basant,
Thana Garkha, Nikesh Rai @ Piyush Raj (appellant) and
Mahesh Rai, Both Son of Laxman Rai, Resident of Ram Garha,
P.S. Autar Nagar, Devendra Singh @ Puttu Singh, Son of
unknown, resident of Banwar, P.S. Daudpur and their associates.
5. On the basis of aforesaid written information
Chapra Town P.S. Case No. 154 dated 20.07.2011 was lodged
under Section 302/120B/34 read with 27(3) of Arms Act against
four named accused persons, namely, Avinash Rai, son of
Jamadar Rai, Nikesh Rai @ Piyush Raj and Mahesh Rai, Both
Sons of Laxman Rai, Devendra Singh @ Puttu Singh, Son of
unknown and unknown co-accused persons (number not
specified), whereafter investigation, police submitted charge
sheet against Nikesh Rai @ Piyush Raj, Avinash Rai and
Shambhu Rai (All appellants/convicts). Whereafter, taking note
of materials available on record, Learned Jurisdictional Judicial
Magistrate took cognizance against appellants convicts under
Sections 302/34, 120B of the Indian Penal Code and 27 (3) of
the Arms Act, 1959. Accordingly, charges were framed against
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
appellants/convicts, where appellants/convicts pleaded "Not
Guilty" and claimed their trial.
6. After the trial, appellants/convicts were
convicted under Sections 302, 120B of the Indian Penal Code
and also against 27 (3) of the Arms act and accordingly
sentenced for life imprisonment alongwith fine.
7. Hence, the present appeals.
8. To established its case before the learned Trial
Court, prosecutions altogether examined total of 12 witnesses,
namely, Manjit Kumar Singh, (PW-1), Shashi Bhushan Singh,
(PW-2), Sharvan Singh @ Sharvan Rai, (PW-3), Suresh Rai,
(PW- 4), Dr. Rameshwar Prasad, (PW- 5), Dr. Shailendra
Kumar Singh, (PW-6), Dr. Krishan Mohan Dubey, (PW- 7),
Nandu Sharma, (PW-8), Arun Kumar Tiwari, (PW- 9), Anuj
Kumar Singh, (PW- 10), Jaleshwar Kumar Rai, (PW-11) and
Ghanshyam Choudhary, (PW-12).
9. The prosecution also exhibited following
documents during the trial to substantiate its case which are as:-
Exhibit-1- Signature of informant on fardbeyan.
Exhibit-2- Signature of Shravan Kumar on Inquest
Report.
Exhibit-2/1- Signature of Suresh Rai on inquest
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
report.
Exhibit-3-Signature of Dr. Rameshwar Prasad on
P.M. report of Mani Bhushan Singh.
Exhibit-3/1-Signature of Dr. Rameshwar Prasad on
P.M. report of Dinesh Rai.
Exhibit-3/2- Signature of Dr. Rameshwar Prasad on
P.M. report of Devendra Singh.
Exhibit-3/3- Signature of Dr. Shailendra Singh on
P.M. report of Dinesh Rai.
Exhibit-3/4- Signature of Dr. Shailendra Singh of
P.M. report of Mani Bhushan Singh.
Exhibit-3/5- Signature of Dr. Shailendra Singh on
P.M. report of Devendra Singh.
Exhibit-3/6- Post Mortem Report of Dinesh Rai.
Exhibit-3/7- Post Mortem Report of Mani Bhushan
Singh.
Exhibit-3/8- Post Mortem Report of Devendra
Singh.
Exhibit-4- Writing and signature of A.K. Tiwary on
fardbeyan.
Exhibit-4/1- Endorsement on fardbeyan.
Exhibit-4/2- Formal FIR.
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
Exhibit-5- Carbon copy of inquest report of Mani
Bhushan Singh.
Exhibit-5/2- Carbon copy of inquest report of
Dinesh Rai.
Exhibit-5/3- Signature of Anuj Singh upon inquest
report of Mani Bhushan Singh.
Exhibit-5/4- Signature of Anuj Singh on inquest
report of Devendra Singh.
Exhibit-6- Site Map.
Exhibit-7- Seizure list of empty cartridges.
Exhibit-8- Signature of Jaleshwar Kumar Rai upon
the seizure of Mobile of appellant no. 1.
Exhibit-8/1- Signature of Jaleshwar Rai upon the
seizure of mobile and Sim of convict Avinash Rai.
The prosecution also exhibited following materials
during the trial to substantiate its case which are as:-
Exhibit- I to XLI- Empty cartridges proved as
material exhibit.
Exhibit- XLII to LII- Mobiles, Sim, I card of
Election Commission of India, Cash and other
papers.
10. After closure of the prosecution evidence, the
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
statement of appellants/convicts were recorded under Section
313 of the Code of Criminal Procedure, where they claimed
complete innocence by denying all incriminating circumstances
explained to them by showing their complete innocence and
false implication.
ARGUMENTS ON BEHALF OF LEARNED COUNSEL
APPEARING ON BEHALF OF APPELLANTS/CONVICT.
11. It is submitted by Mr. Rajendra Narayan,
learned Senior counsel while appearing on behalf of appellants
that with the available evidence it cannot be said that
prosecution established its case against appellants/convicts
beyond all reasonable doubts during the trial as to convict them.
It is submitted that apparently, informant is not the eye witness
of the occurrence and the basis of entire narrations as set out in
FIR is the hearsay version as received from Pappu Singh. It is
submitted that as per narration of FIR Chandrashekhar Singh,
resident of Ghose Colony, P.S. Muffasil, Chapra would be the
informant of this case, who narrated the occurrence to informant
over telephone. It is also submitted that only eye witness of this
occurrence, who is PW-1, namely, Manjit Kumar Singh
examined separately in both trial i.e. Session Trial No. 107/12
which amalgamated later on with Session Trial No. 107A/12. It
is submitted that there is a material contradictions in his
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
deposition as regard to manner of occurrence. It is also
submitted that the name of appellant/convict Shambhu Singh
first time surfaced during examination of PW- 2, who is none
but the informant and who failed to named him in FIR. It is
submitted that there is no evidence either direct or
circumstantial which may established the version of PW-2 that
appellant/convict Shambhu Singh was the Spy of main co-
accused persons. It is also submitted that place of occurrence is
also appearing disputed in terms of deposition of PW-9, namely,
Arun Kumar Tiwari, who is the investigating officer of this case.
It is submitted that save and except PW-1, namely, Manjit
Kumar Singh, no one is the eye witness of the occurrence.
While concluding arguments, it is submitted that the deposition
of said eye witness, namely, Manjit Kumar Singh (PW-1) having
several contradictions and on this score his version as eye
witness appearing doubtful and just appears to secure
conviction. It is further submitted that PW-9, who immediately
visit place of occurrence failed to find PW-1 thereof and this
fact get its strength as his statement was recorded at his village
and as such it can be safely gathered that PW-1 was roped in
this case as an eye witness in planned manner only to secure
conviction.
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
12. It is further submitted by learned counsel
appearing on behalf of appellants that PW-2, namely, Shashi
Bhushan Singh, who is the informant of this case is a hearsay
witness and as such, foundation of this case is based upon the
hearsay input as provided by PW-1, claiming to be an eye-
witness of the occurrence. It is submitted that hearsay evidence
does not put any responsibility, as witness, giving any such
statement as held in the matter of Kalyan Kumar Gogoi Vs.
Ashutosh Agnihotri, (2011) 2 SCC 532. It is also submitted that
there is no prima facie evidence affording a reasonable ground
to believe that appellant/convict Shambhu Rai was member of a
conspiracy. From deposition either of PW-1 or any witnesses
deposed before the learned trial court or circumstances thereto
nothing appears that anything said, done or written by him after
the intention was formed by any of the co-accused persons
including appellant/convict. The only evidence available against
the appellant/convict Shambhu Rai is that he worked as a liner
aiding main co-accused persons. In support of submission,
learned counsel relied upon the report of Saju Vs. State of
Kerala as reported in AIR 2001 SC 175.
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
ARGUMENTS ON BEHALF OF LEARNED APP
13. Learned APP while arguing matter on behalf of
the State submitted that it is the settled principle of law that
number of witness is not required to established criminal case
beyond any reasonable doubt, rather if a single witness is
imposing such confidence that none else accused committed
crime, the conviction can be secured. It is pointed out that it is
settled principle of law that minor contradictions cannot be
taken into consideration. It is submitted that PW-1 is the eye
witness of the occurrence and nothing surfaced in his cross-
examination, which may create a doubt on his version. It
submitted that occurrence is a brutal day light murder of three
persons, in which prohibited Arms were used. It is also pointed
out that the deposition of PW-1, namely, Manjit Kumar Singh is
in full corroboration with depositions of Dr. Rameshwar Prasad
(PW-5), Dr. Shailendra Kumar Singh (PW-6) and Dr. Krishan
Mohar Dubey (PW-7), who were conducted postmortem and
found that the death was caused due to gun-shot injuries. It is
also submitted that more than 40 empty cartridges were
recovered from place of occurrence, suggesting thereof
indiscriminate firing as deposed by PW-1 during the course of
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
occurrence. This fact also appears corroborated from seizure list
(Exhibit-4) which suggest recovery of 40 empty cartridges and
one live cartridge as also supported by PW-4. Learned APP
further pointed out that from the deposition of PW-9, who is the
I.O. of this case, it appears that total of 20 bullets marks were
noticed upon wall of the room in which firing was made, which
also support the version of prosecution as regard to
indiscriminate firing, at place of occurrence causing death of
three persons.
14. Learned APP relied upon the reports of
Hon'ble Supreme Court in the matter of State of M.P. V.
Ramesh (2011) 4 SCC 786 and also in the matter of Mekala
Sivaiah Vs. State of Andhra Pradesh reported as AIR 2022 SC
3378. It is relevant to reproduce the para-22 of the judgment:-
"22. The contentions raised by the appellant
are on the weaker side in relation to
testimonies of prosecution witnesses as it
has been contended that PW-1 to PW-4 are
the supporters of Telugu Desam Party and
their evidence were contradictory with
respect to the nature of injuries inflicted
upon the deceased, place of occurrence etc.
The testimony of a witness in a criminal
trial cannot be discarded merely because of
minor contradictions or omission as
observed by this Court in Narayan
Chetanram Chaudhary and Anr. V. State of
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
Maharashtra, wherein while considering
the issue of contradictions in the testimony,
while appreciating the evidence in a
criminal trial, it was held that only
contradictions in material particulars and
not minor contradictions can be a ground to
discredit the testimony of the witnesses. In
paragraph 42 of the judgment, it has been
held as under:-
"42. Only such omissions which amount
to contradiction in material
particulars can be used to discredit
the testimony of the witness. The
omission in the police statement by
itself would not necessarily render
the testimony of witness unreliable.
When the version given by the witness
in the Court is different in material
particulars from that disclosed in his
earlier statements, the case of the
prosecution becomes doubtful and not
otherwise. Minor contradictions are
bound to appear in the statements of
truthful witnesses as memory
sometimes plays false and the sense
of observation differ from person to
person. The omissions in the earlier
statement if found to be of trivial
details, as in the present case, the
same would not cause any dent in the
testimony of PW2. Even if there is
contradiction of statement of witness
on any material point, that is no
ground to reject the whole of the
testimony of such witness."
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
CONCLUSION:-
15. We perused evidence and materials available
on record carefully and also heard learned Counsel appearing on
behalf of appellants/convicts and learned APP appearing on
behalf of the State.
16. It would be appropriate to discuss the
deposition of PW-1, namely, Manjit Kumar Singh, who is the
only eye witnesses of this occurrence, examined during trial.
This witness examined twice. Firstly in trial no. 107/12 and
secondly, after amalgamation with the trial of other co-accused
persons in Session Trial No. 107A/12. This witness examined in
Session Trial 107/12 on 07.11.2014 where he deposed that
occurrence is of 20.07.2011 at about 3:15 PM, by that time he
was in the house of one Uma Shankar Singh, MP (Member of
Parliament) situated at Rajendra Sarovar where Pappu Singh,
Chandra Shekhar Singh, Devendra Singh and 1-2 unknown
persons were also present. It is stated that while he was sitting
there, Pappu Singh went to collect his cloth, whereas driver
Dinesh Rai went down with an excuse to return shortly but
came back just after 2-3 minutes by shouting that Avinash Rai,
Nikesh Rai @ Piyush Raj (Both Appellants/convicts), Mahesh
Rai and Ajay @ Raja are coming with "Chhapan" and as he
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
came up to room, said co-accused persons also arrived there
immediately by following him and opened indiscriminate firing
targeting Mani Bhushan Singh, Devendra Singh. It is deposed
by him that Nikesh Rai (appellant/convict) was equipped with
AK-47. Avinash Rai (appellant/convict) equipped with Carbine,
Mahesh Rai equipped with Pistol, Raja equipped with Pistol and
all of them opened indiscriminate firing where bullet hit to Mani
Bhushan Singh and Devendra Singh, causing their death. It is
also deposed that driver Dinesh Rai was also standing behind
the door and as he move to hold the appellants/convicts, they
also killed him. It is deposed that at the time of occurrence he
was in the same room but keep him hide under wooden cot
(Chawki) from appellants/convicts. He deposed that the cause of
occurrence was previous enmity as informant, namely, Shashi
Bhushan Rai (PW-2) suspected to authored the murder of
brother of appellant/convict Nikesh Rai.
On his cross-examination, he deposed that he is not
the relative of informant i.e. (PW-2) and their home are far apart
having distance of about 4-5 KM. It is also stated by him that on
the date of occurrence, he was accompanied with deceased Mani
Bhushan Singh as to drop him at Chapra while he was going to
Banaras. It is submitted that sister of informant (PW-2) and
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
deceased namely, Mani Bhushan Singh is the residents of
Prabhu Nath Nagar. He first dropped her at her residence and
thereafter came to place of occurrence. It is stated that at the
place of occurrence, a board of coaching class was there at the
ground floor. He failed to give details about the nearby temple
and house of Uma Shankar Singh, MP (Member of Parliament)
but stated that one temple is located to West of his house hardly
away 25 steps. It is also stated by him that one stair was outside
and one stair was inside, going up to the roof of the house. He
denied to have any bodyguard and arms on the date of
occurrence with him. In para 11 of his cross-examination, he
deposed that when accused came at place of occurrence, he hide
himself under wooden cot i.e. "Chowki". He gave his statement
to the police stating thereof that Dinesh Rai (deceased) tried to
close the door but in meantime appellants/convicts alongwith
other co-accused persons came there and he could not close the
door. He also deposed that he was not assaulted during the
course of occurrence and not even tried to hold
appellants/convicts. He also stated that he is not reported this
occurrence to police but after 5 minutes of the occurrence police
arrived there and he narrated the entire occurrence to the police
which was recorded by the police, where his signature was also
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
obtained. It was also stated by him that police brought him to
Town P.S. where he was detained for about two and half hours
and by that time Senior police officers were also came to police
station. He denied the suggestion that as police was suspicious
about his involvement in the occurrence therefore he was
detained in police station. It was stated by him that police
dropped him to his house under security cover. He stated that he
was in jail in connection with Arms case, where he found sitting
with informant of this case but he stated that police seized his
licensed rifle as he was in habit to have his rifle. He failed to
depose about the exact number of accused persons and denied
the suggestions as deceased were criminals and due to previous
enmities appellants/convicts were named with present
occurrence. Shifting to deposition of PW-1 which was recorded
in Session Trial No. 107A/12, where he also supported the
occurrence of 20.07.2011, which took place at about 3:15 PM
almost with same narration as he deposed in his examination-in-
chief, as PW-1 in Session Trial No. 107/12, as discussed above.
On cross-examination, he deposed that he arrived
on place of occurrence at about 3:00 PM. It was stated by him
that police taken him away from place of occurrence by
providing security. He also stated that police seized empty
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
cartridges and Pappu Singh (one of the co-accused) remained
there till presence of police on spot. He also stated that seizure
list was prepared which was duly signed by Pappu Singh. He
also stated that his first statement was recorded as Town P.S.
Case Number alongwith Shashi Bhushan Singh (PW-2). He also
stated that his statement was recorded as Town Police Station
after 5-6 days of occurrence. He denied to have any previous
enmities prior to this occurrence with appellants/convicts. He
also stated that in connection of murder of his brother Sanjeet
Singh, Mahesh Rai and Mangal Rai were arrested and same
Mahesh Rai is the accused in the present case. It is stated that
Nikesh Rai (appellant/convict) is the brother of said Mahesh
Rai. It was categorically stated by him in Para-11 that Dinesh
Rai went down to stairs alone and came up by shouting that
appellants/convicts alongwith other co-accused persons are
coming but by same time appellants/convicts and other co-
accused persons came there and opened indiscriminate firing. It
was stated that out of fear he hide himself under wooden cot i.e.
"Chowki", which was in the corner of the room. It was stated
that out of fear this fact was not stated to police by him. In Para-
12 he further categorically stated that he was witnessing entire
occurrence by hiding himself in the corner of room and also
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
stated that the appellants/convicts along with other co-accused
entered into room from eastern side. It is also stated by him in
Para-15 that after occurrence, accused persons/appellants
convicts run away and when police arrived at place of
occurrence, no person was available thereof. It is stated by him
that police took his statement on spot first time, but he is not
sure to sign that statement. It was also stated by him that a
television set was also in said room and he cannot say whether
any bullet hit that television set. He failed to state that how
much firing can be made from AK-56 and AK-47. He denied to
suggestion as advanced by learned counsel appearing on behalf
of appellants/convicts before the trial court that he was not
present at the place of occurrence. He denied to state that he is a
man having criminal image and as accused Mahesh Singh is
involved in the murder of his brother, he is deposing falsely in
present case.
17. PW- 2 is the informant of this case, namely,
Shashi Bhushan Singh, who also deposed in his examination-in-
chief that occurrence is of about 3:15 PM, which took place on
20.07.2011 and by that time he was in Civil Court, Chapra,
where he was informed by one Chandrashekhar Singh over
telephone to come immediately, as firing was opened at the
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
residence of Pappu Singh where Mani Bhushan Singh, Dinesh
Rai (Driver), and Devendra Singh were killed. It is deposed that
on this information, he went to the residence of Pappu Singh.
After arriving at the place of occurrence, he found that police
was already there, where he was informed by Manjit Singh
(PW-1) that Dinesh Singh came up by shouting that Nikesh Rai,
Avinash Rai (Both Appellants/convicts), Mahesh Rai, Devendra
Singh @ Puttu are coming up with AK- 47rifle. Dinesh Rai
came up (first floor of the house), where accused persons
including appellants/convicts after following him also came up
and opened indiscriminate firing. It was also informed to him by
said Manjit (PW-1) that they were equipped with AK-47,
Carbine and pistol. He also deposed that he asked to PW-1 that
why they were came here (about deceased), where it was said
that Pappu Singh called him in connection with business matter,
where a train ticket was already booked for Lucknow. Pappu
Singh also called PW-1 Manjit at place of occurrence. It was
deposed that Pappu Singh told Mani Bhushan (deceased brother
of informant) that not to come here with weapons. He deposed
that Shambhu Singh, appellant/convict of Criminal Appeal (DB)
No. 199 of 2018, act as a liner, providing secret information to
co-accused persons including appellants/convicts. He also
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
deposed that he was in inimical term with Mahesh Rai and
Nikesh Rai ( Both appellants/convicts) and for said old enmities
occurrence took place. It was also deposed by him that his
statement was recorded at place of occurrence itself, which he
signed. This witness identified his signature on written
information which on his identification exhibited as Exhibit-1
before the Court. It was also deposed by him that police came to
his house after taking his statement. He identified all accused
persons present in the dock.
On cross-examination, he stated that Pappu Singh
was doing business of property dealing with his deceased
brother (Mani Bhushan Singh) and he arrived at place of
occurrence at about 4:15 PM. He also stated that before his
arrival no statement of any person was recorded by police
regarding occurrence. It was deposed by him that he met with
Manjit (PW-1) at place of occurrence and his statement was not
recorded by police before his arrival. It was stated that he asked
from Manjit that whether he stated anything about the
occurrence to any one, where he denied. His re-statement was
recorded by police at his village. It is stated by him that when he
arrived at place of occurrence Pappu Singh was not there. He
deposed that by the time he was leaving the place of occurrence
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
Pappu Singh came there. He further deposed in his cross-
examination that he did not mention in his written information
that whatever he stated before the police, that basis of his
information was input provided by Pappu Singh. He also denied
to state about the presence of Manjit Singh (PW-1) at the place
of occurrence in his statement, whereas he denied the suggestion
that he stated before the police in his re-statement that he was
told by Manjit (PW-1) that Pappu Singh told him over phone to
go together for Lucknow. He deposed specifically that Manjit
(PW-1) was also called by Pappu. He also stated that he
mentioned in his written information and re-statement that he
was informed by Manjit (PW-1) that Pappu Singh told him not
to come with weapons. He also stated that he named Devendra
Singh @ Puttu as one of the accused in this case. He denied the
suggestion that Manjit (PW-1) was not available on the place of
occurrence and denied that nothing was said to him by PW-1
regarding occurrence. He denied the suggestion that as no one
was to support the occurrence, he planted Manjit (PW-1) as eye-
witness of the occurrence. He also denied to depose falsely.
On further cross-examination on behalf of rest of
co-accused persons including appellants/convicts, he denied
while replying the suggestion of learned counsel of accused
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
appellants that he was told by Pappu Singh that firing was made
by 4-5 unknown persons by using AK-47, Carbine and revolver,
causing death of three persons. He further deposed that police
recorded his statement at 3:55 PM. It is stated by him that he is
an accused of Masrakh P.S. Case No. 129/12, which was lodged
for Arms Act. He also stated that he was implicated falsely
thereof. He also stated that he was falsely implicated in Awtar
P.S. Case No. 60/13, also. He stated that he know one Mohan
Rai but denied to know Raj Kumar Rai. He also stated that he
was falsely implicated in Awtar Nagar P.S. Case No. 69/2005,
which was lodged in connection with kidnapping of said Mohan
Rai and Raj Kumar Rai. He denied to depose falsely out of
previous enmities.
18. PW-3 Sharvan Singh @ Sharvan Rai, who is
not the eye-witness of the occurrence and he came to know
about the occurrence through television news. He is the nephew
of deceased Dinesh Rai. He received the dead body of deceased
Dinesh Rai and also signed on inquest report, what he identified
during the trial and was exhibited as Exhibit No -2. It is stated
by him that his statement was not recorded by police.
On cross-examination, it was stated by him that
police got his signature after giving him dead body.
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
19. PW-4 is Suresh Rai, who is the witness of
inquest report of deceased Dinesh Rai, and he identified said
inquest report before the Court during the trial and on so his
signature was exhibited as Exhibit No.- 3.
On cross-examination, it was stated by him that
signature was taken by doctor.
20. PW-5 is Dr. Rameshwar Prasad who deposed
that on 20.07.2011, he was posted as Medical Officer at Sadar
Hospital, Chapra. Postmortem of deceased Mani Bhushan Singh
was conducted by Dr. K.M. Dubey (PW-7) in his presence. He
was one of the member of medical board and he identified his
signature, which is marked as Exhibit. 2.
Similarly he also identified his signature on the
postmortem report of deceased Dinesh Rai, conducted by Dr.
K.M. Dubey (PW-7) which on his identification marked as
Exhibit-2/A.
Finally, he also identified his signature on the
postmortem report of third deceased, namely, Devendra Singh,
which was conducted by Dr. K.M. Dubey (PW-7) which on his
identification marked as Exhibit-2/B.
He deposed in cross-examination that postmortem
was conducted by Dr. K.M. Dubey (PW-7) and he was simply a
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
member of medical board.
21. PW-6 is Dr. Shailendra Kumar Singh. On
20.07.2011, he was posted as medical officer at Sadar Hospital,
Chapra, and was also one of the member of medical team,
which conducted postmortem upon three deceased namely,
Dinesh Rai, Mani Bhushan Singh and Devendra Singh. It is
deposed that postmortem was conducted by Dr. Krishna Mohan
Dubey (PW-7). He identified his signature on all three
postmortem reports, which on his identification was marked as
Exhibit- 2/C, 2/D and 2/E respectively.
On cross-examination it was deposed that Medical
board was constituted at the instance of Deputy Superintendent,
Chapra but that letter is not with him.
22. P.W-7 is Dr. Krishna Mohan Dubey, on
20.07.2011 he was posted at Sadar Hospital Chapra as Medical
Officer. On that day he held the P.M. examination of the dead
body of Dinesh Rai aged 30 Yrs. S/o Bhikhari Rai, Vill.
Bishambarpur, P.O. Chinatamanganj, P.S. Garakha Distt.- Saran
at 9.30 P.M. and found following Antemortem and postmortem
findings:-
1. External injuries
A. Lacerated punctured wound of 2" diameter with
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
charge margin Over lateral wall of left side of neck. Cavity deep
in neck (that was entry wound).
B. Lacerated punctured wound of about 4" diameter
around the right eye ball and temporal area of skull (Exit
wound).
Both the above injuries were communicating to
each other. Right eye ball was absent.
C. Lacerated punctured wound 1/4" diameter with
charged margin and other lacerated punctured wound 1/2"
diameter in the same plane and in the same right arm 1 st was
entry wound and 2nd was exit would communicating to each
other.
D. Lacerated wound within burn muscle and
charged skin 4" x skin deep and 3" over the right thigh.
On dissection
Brain was lacerated and brain material was coming
out, through left Temporal bone. Temporal bone was fractured.
All the Visceras were pale and intact. X ray skull
bone showing fracture of right temporal bones.
As per X ray report cause of death was haemorrhage
and shock, caused most probably by fire arm.
Time elapse since death from six to eight hours.
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
He deposed that postmortem report is in his writing
and bears his signature which on identification marked as 2/F.
2. On the same day he held postmortem
examination over the dead body of Mani Bhushan Singh S/o
Gunjeshwar Singh aged about 40 Yrs. vill. - Ghuwa Basant P.S.
Autar Nagar, Distt. - Saran at 9.45 P.M. and found the following
injuries.
External injuries:
A. Lacerated punctured wound over the back of
skull with charged margin with burn muscle. It was cavity deep
of brain (entry wound).
B. Lacerated punctured wound over right frontal
area, coming outside through it (exit wound), both the above
injuries were communicating to each other.
C. Two lacerated punctured wound over right lateral
chest ball 2" apart and 1/2" diameter each cavity deep to chest.
On dissection
Brain was lacerated with brain material coming out
through the exit wound. Right lung was lacerated, chest cavity
was filled with blood. Right lobe of liver was lacerated, right 3 rd
& 4th ribs were fractured with pieces of bones inside the lungs,
small piece of metalic body was found in liver 1/2" long 1/6"
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
diameter, are other pointed metalic body found in right scapular
head, which was preserved, other viscers were pale and intact.
As per postmortem examination and X-ray chest
and other X-ray, cause of death was opined as haemmorrhage
and shock caused by fire arms.
Time, elapse since death 6 to 8 hours.
He deposed that postmortem report is written by
him and bears his signature, which on identification was marked
as Exhibit. 2/G.
3. On the same day he held the P.M. examination
over the dead body of Devendra Singh S/o Late Sudama Singh
aged 45 Yrs. of Vill. - Pipara, P.S. -Panapur, Distt.-Saran at 10
P.M. and found following ante-mortem & postmortem findings
over his dead body.
External Examination
A). Lacerated punctured wound over the left flank
3" above the left illiac crest with charged margin and blackening
around the wound cavity deep to abdomen (Entry wound).
B. Lacerated punctured wound over the right flank
1" diameter and 4" above the right illiac crest with momentun
protruding through wound. Both the above wound bears
communicating to each other.
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
(Ext. wound)
C. Lacerated punctured on the left calf. 1/4"
diameter with charges margin and blackening around the
wound.
On dissection
Small intestine was lacerated and punctured at
multiple feacl side. Material and blood was filled in abdominal
cavity. Liver was lacerated other visceras were pale and intact.
Left Tibia and tibula were fractured. Three small metal pieces
were found at fracture site which were preserved.
He opined cause of death as haemorrhage and shock
probability due to fire arm injuries.
Time elapse since death till postmortem was 6 to 8
Hrs. He deposed that postmortem report is in his pen and bears
his signature which on his identification was marked as Exhibit.
2/H.
23. PW-8 is Nandu Sharma, who is one of the
Investigating Officer of this case, who deposed in his
examination-in-chief that he took charge of investigation of this
case on 30.07.2011 and after taking charge of investigation
recorded re-statement of informant (PW-2). He also deposed
that accused persons were arrested by him and he also recorded
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
their confessional statement. He also deposed to obtain
postmortem report and recorded the statement of witnesses
Arun Srivastava, Munna Sharma, Raj Kishore Pandey, Chhotan
Prasad during the course of investigation and submitted charge
sheet accordingly after completion of investigation.
On cross-examination it was deposed by him that he
never accompanied the Investigating Officer of this case prior to
03.07.2011 but he stated in Para-34 of the case diary that he
went to Dahiyawana Tola alongwith Ex. I.O. of this case to
arrest Ghanshyam Singh @ Pappu Singh and arrested him. He
also stated that he never issued notice to Shashi Bhushan Singh
(PW-2) for appearance at police station. It is stated that PW-2
appears at police station on the next day he assumed charge. It is
stated by him that PW-2 told before him that Manjit (PW-1) was
not present at place of occurrence, when he arrived there. It is
also stated by him that during investigation it was stated by PW-
2 that he came to know about the occurrence on the next day
from his cousin brother Mritunjay Singh. He also stated that
PW-2 disclosed that Puttu Singh was not involved in said
occurrence. It is also stated that he (PW-2) came to know about
the occurrence from Manjit Singh (PW-1) after occurrence. He
denied suggestion that his investigation is faulty.
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
On cross-examination, he stated that Manjit (PW-1) never
made such statement that Pappu Singh called him to
accompanied for Lucknow. He also not stated that PW-1 stated
during investigation that he was asked by Pappu Singh not to
come with arms/weapons.
24. PW-9 is Arun Kumar Tiwari, who is also
Investigating Officer of this case. He deposed in his
examination-in-chief that on the date of occurrence i.e. on
20.07.2011 he was posted as SHO of Town Police Station. He
recorded statement of Shashi Bhushan Singh (PW-2) and on the
basis of which Town P.S. Case No. 154/2011 was registered. He
identified his hand writing and signature on fardbeyan, which on
his identification exhibited as Exhibit-4. He also identified his
endorsement thereof, which was in his hand writing with
signature, which on his identification exhibited before the trial
court as Exhibit- 4/1 and his signature over the formal FIR, was
also exhibited as Exhibit No. 4/2. It is deposed by him that he
himself assumed charge for investigation of this case. He
identified signature of Shri Sanjay Kumar, Sub Inspector over
inquest report of all three deceased, which on his identification
exhibited as Exhibit No. 5, 5/1 and 5/3 respectively.
On cross-examination, it was deposed by him that
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
he recorded the statement of witnesses during investigation. He
described place of occurrence which is the first floor of the
building, where northern part was occupied by one Uma
Shankar Singh, MP (Member of Parliament) and southern part
was of Pappu Singh. He stated that in flat of Pappu Singh, there
was two rooms, facing eastern side, which open in Verandah.
Out of these two rooms, the room of southern side was exact
place of occurrence. It is stated that he found the dead body of
Devendra Singh near to door of western wall of said room. The
second dead body was also lying nearby and it was of deceased
Mani Bhushan Singh and third dead body was in corner of north
east wall which was of Dinesh Rai. All these dead body were
found in pool of blood. He also found a wooden cot i.e. Chowki
inside room in southern side. He also found one revolving chair
in turn down position near to dead body of Mani Bhushan
Singh. He also stated to found 10 (ten) bullet marks on western
wall and door of said room, 05 (five) bullet marks on southern
wall of said room, (05) five bullet marks on northern wall of
said room and also found 40 empty cartridges on the Verandah
of said room with one misfired bullet. He also prepared the map
of place of occurrence during the course of investigation. It is
also stated that inquest report of all three persons were prepared
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
in presence of Sub Inspector Sanjay Kumar and Shri Charan
Ram, which on his identification exhibited before trial court,
where inquest report of deceased Mani Bhushan Singh was
exhibited as Exhibit No. 5. Inquest report of deceased Devendra
Singh was exhibited as Exhibit No. 5/1 and inquest report of
Dinesh Rai was exhibited as Exhibit No. 5/2 respectively. He
also stated to seize empty cartridges and misfired bullet and on
his direction, SI Sanjay Kumar prepared its seizure list. After
preparing inquest report, the dead bodies were sent for
postmortem. It is stated that he recorded statement of Rajesh
Singh at place of occurrence, who supported fardbeyan in
totality. He also stated to record statement of Manjit Singh (PW-
1) on 21.07.2011 in his village Baikunthpur. He also stated to
record statement of witnesses Chandrashekhar Singh and
Mritunjay Singh, who supported the occurrence, as eye witness.
It is stated that after obtaining necessary permission on
30.07.2011, he arrested accused Raju Singh. It is stated further
that on 30.07.2011 he hand over the charge of investigation to
station In-Charge, Nandu Sharma (PW-8). He also identified the
signature of Sanjay Kumar, SI on seizure list which was
exhibited before trial court as Exhibit No. 7.
On cross-examination, it was stated by him that
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
S.P., Saran was informed over his mobile at about 3.30 PM on
20.07.2011 regarding occurrence. Time was recorded as 3.33
PM. It was stated that he arrived place of occurrence at about
3.55 PM and recorded fardbeyan at about 5.00 PM. It is stated
that all papers were prepared after 5.00 PM. He stated that he
did not mention anything in diary that what investigation was
done by him between 3.55 PM to 5.00 PM. It is stated that he
proceeded for police station from place of occurrence to lodge
FIR, where time was mentioned as 5.00 PM. It is also stated by
him that inquest report of Devendra Singh was prepared at about
5.00. It is also stated that it came to his knowledge while noting
fardbeyan that beside deceased Mritunjay Singh, Manjit Kumar
Singh (PW-1) and Chandrashekhar Singh were present at the
place of occurrence. It is also stated that these three persons
were not found there and on the same night at about 10.45 PM a
direction was received from S.P., Saran to record statement of
these three persons, accordingly he visited the village of
Mritunjay Singh but he was not found available at home and
recorded statement of Manjit Kumar Singh (PW-1) after going
to his residence. His statement was recorded on 21.07.2011 at
about 1.45 AM. He also recorded the statement of
Chandrashekhar Singh. He denied suggestion to implicate
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
accused persons including appellants/convicts in collusion with
informant (PW-2).
On his cross examination on behalf of co-accused
Pappu Singh he stated that informant/PW-2 nothing stated
against Pappu Singh while recording his fardbeyan. Pappu
Singh was also not named during recording his re-statement. It
is also stated by him that Ghanshyam Singh @ Pappu Singh is a
seizure list witness and his statement was also recorded during
course of investigation. It is also stated by him that Manjit Singh
(PW-1) also not stated anything against Pappu Singh. He also
stated that Mritunjay Singh and Chandrashekhar Singh also not
stated anything against Pappu Singh. He also stated during his
cross examination that Shashi Bhushan Singh (PW-2) in his re-
statement never made statement that Manjit (PW-1) told him
that Pappu Singh called him to go together for Lucknow. It is
also stated by him that he came to know from Pappu Singh
about the occurrence and gave his statement as he was informed
by Pappu Singh. He also stated that informant (PW-2) never
made any such statement that Manjit Singh (PW-1) was
available at place of occurrence. It is stated by him that
informant (PW-2) stated before him in his re-statement that he
was informed over telephone by Chandrashekhar Singh at about
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
3.40 PM on the date of occurrence that some miscreants opened
fire in the house of Pappu Singh where Mani Bhushan Singh,
Devendra Singh and Dinesh Singh were killed. He also stated
that it was not disclosed by him that he came to know from
Pappu Singh that firing was made from AK-47 and Carbine.
25. PW-10 is Anuj Kumar Singh, who is the
witness of inquest report, and identified his signature on the
inquest report of deceased Mani Bhushan Singh which exhibited
on his identification as Exhibit No. 5/3. He also identified
signature on inquest report of deceased Devendra Singh which
exhibited as Exhibit No. 5/4 before the trial court.
On cross examination, he failed to depose about the
contents of both exhibits. It is also deposed by him that inquest
report was not prepared before him and he signed said report as
asked by Daroga Ji (police).
26. PW-11 is also not the eye witness of the
occurrence. He is a seizure list witness of seized mobiles, which
was seized from Nikesh Rai (appellant/convict). He identified
his signature over seizure, which on his identification exhibited
as Exhibit No. 8. He also identified seizure list of mobile phone
of Avinash Rai (appellant/convict) where he identified his
signature, which on his identification exhibited as Exhibit No.
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
8/1.
On cross-examination, he stated that at the time of
preparing seizure list he was posted in Town P.S. Chapra in
2011. It is also stated by him that seizure list was prepared in
premises of police station. It is also stated that when he signed
the seizure list, the signature of Brij Mohan Rai was also
available as a witness, over seizure list.
27. PW-12, is also a seizure list witness, who
produced the seized empty cartridges before the learned trial
court after opening the sealed box. There were 33 empty
cartridges of 7.62 bore, 7 cartridges of 9 mm bore, one live
cartridges of 7.62 bore, Total 41, which were exhibited before
the Court as material exhibit starting from I to XLI. He also
produced before the Court one micromax mobile, one spice
mobile, one zen mobile, one Max mobile, 13 SIM of different
companies, driving licence of one Mukesh Kumar, ATM card of
SBI in name of Jamadar Rai. Identity card issued by Election
Commission of India in favour of Mukesh Kumar, one small
phone diary having name of different persons including phone
numbers, four piece of papers having different phone numbers
which were exhibited before the Court as material exhibits
starting from XLII to LII.
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
On cross-examination, it is stated by him that none
of the papers was containing signature of police personnel. It is
also stated by him that the sealed bag containing materials
exhibit is not bearing signature of police officer. It is also stated
that the writing on sealed bag, which is in sketch pen, was not
signed by any police officer. He also stated that on said bag
name of M/s Sudarshan Jewellers was also written. He stated
that none of cartridges were containing specific paper, having
specific mark. He also stated that he cannot read out the name of
person as mentioned in election I-card in want of spectacles. He
also stated that mobile number is not written on any of the
seized mobile and also that none of the mobile was sealed. He
denied the suggestion that seizure list is forged and was
prepared only for prosecution purpose.
28. The main contention of argument as advanced
by the learned counsel appearing on behalf of the appellants is
that the version of PW-1, namely, Manjit Kumar Singh, who is
only eye-witness of the occurrence cannot believed for several
contradictions. It appears as per the deposition of PW-8, who is
Nandu Sharma as deposed in para-6 of his cross-examination
that informant PW-2, namely, Shashi Bhushan Singh stated
before him that when he visited the place of occurrence, PW-1
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
was not available there and he came to know about the
occurrence from Manjit (PW-1) on the next date of occurrence.
It also appears from deposition of PW-9, namely, Arun Kumar
Tiwari, who is second investigating officer of this case as
deposed in para-9 that deposition of Manjit Singh was recorded
on 21.07.2011 at his village, namely, Baikunthpur. It appears
from para-8 of his deposition that he recorded the deposition of
one Rajesh Singh at the place of occurrence, who supported the
narration of written information. From para 14 of his deposition,
it appears that PW-1 told him that he came to his house
immediately after the occurrence by motorcycle and his
statement was recorded on 21.07.2011 at 1.45 AM at his
residence. PW-9 specifically deposed that beside Manjit Singh
(PW-1), Chandrashekhar Singh and Mritunjay were eye-witness
of this occurrence. PW-9 found wooden cot i.e. Chowki on place
of occurrence, where PW-1 keep him hide from
appellants/convicts during course of occurrence and same
appears corroborated with deposition of PW-1, also. Having
these backgrounds of contradictions, on critical analysis of the
depositions of PW-1 (only eye witness), PW-2 (informant) qua
PW 8 and PW-9 who are the Investigating Officers of this case
in totality as discussed above, it appears that nature of
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
contradictions of their statements are minor in nature and is not
of such a nature which can convinced us to disbelieve the
substantial deposition of PW-1, as an eye-witness of the
occurrence by negating his presence.
29. From the deposition of PW-1, it appears that the
person who appeared in room (exact place of occurrence) where
deceased were present are appellants/convicts Nikesh Rai @
Piyush Raj and appellant/convict Avinash Rai, who fired
indiscriminately causing death of brother of informant, namely,
Mani Bhushan Singh, Devendra Singh and Dinesh Yadav.
Nothing appears from his deposition that the appellant/convict
Shambhu Rai was present there or there is anything like which
may connect him with this occurrence as one of the conspirator
or a person having common intention. He not even named
appellant/convict during his entire deposition. It appears that
name of appellant/convict, namely, Shambhu Rai appears first
time in deposition of informant (PW-2), who is not the eye-
witness of the occurrence and he named this appellant/convict
on the basis of suspicion as arises out of previous
litigations/enmities, where it was deposed that the
appellant/convict worked as a liner but nothing surfaced either
from his deposition or from the evidences available on record,
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
which may support his version as regard to involvement of
appellant/convict Shambhu Rai in present occurrence. From the
autopsy report of all three deceased persons as appearing from
depositions of PW-5, PW-6 and PW-7 who are doctors that
death was caused out of gun shot injuries. Investigating Officers
PW- 8 and PW-9 found several marks of firing on the walls of
the room and also collected about 40 empty cartridges
alongwith one misfired cartridge from place of occurrence,
which support the version of indiscriminate firing, as it was
made by appellant/convict. Nothing surfaced from the cross-
examination of PW-1, namely, Manjit Kumar Singh which may
create a doubt on his version as deposed before the trial court
regarding occurrence, being eye-witness.
30. In the fact stated above, it can be safely said that
ocular evidence of PW-1 is corroborated by medical evidence
and also with the seizure list. The testimony of PW-1, who is the
eye-witness cannot be disbelieved merely because certain
insignificant, normal or natural contradictions have appeared
into his testimony. Deceased were attacked by
appellants/convicts Nikesh Rai @ Piyush Raj and Avinash Rai
in broad daylight where the motive behind attack is clear as
there was previous enmity between accused/appellant/convict
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
qua informant (PW-2).
31. In view of the above mentioned facts and
circumstances, we are convinced that there is no reason to
interfere in the findings of conviction and order of sentence qua
appellant Nikesh Rai @ Piyush Raj of Criminal Appeal (DB)
No. 117 of 2018 and Avinash Rai of Criminal Appeal (DB) No.
199 of 2018.
32. Hence, appeals of appellant Nikesh Rai @
Piyush Raj of Criminal Appeal (DB) No. 117 of 2018 and
Avinash Rai of Criminal Appeal (DB) No. 199 of 2018 are
dismissed herewith by confirming their conviction and order of
sentence as held by learned Trial Court through order and
judgment dated 18.12.2017 and sentence dated 22.12.2017
passed by the learned Additional Sessions Judge IX, Saran at
Chapra in Session Trial No. 107 of 2012/4868 of 2014 (arising
out of Chhapra Town P.S. Case No. 154 of 2011.
33. In view of the facts as discussed above, it
appears that prosecution failed to established any common
intention or conspiracy on the part of appellant/convict, namely
Shambhu Rai from evidences available on record to established
his guilt beyond reasonable doubts.
34. Accordingly, the appeal of appellant, namely,
Patna High Court CR. APP (DB) No.117 of 2018 dt.19.05.2023
Shambhu Rai stands allowed.
35. The impugned order and judgment dated
18.12.2017 and sentence dated 22.12.2017 passed by the learned
Additional Sessions Judge IX, Saran at Chapra in Session Trial
No. 107 of 2012/4868 of 2014 (arising out of Chhapra Town
P.S. Case No. 154 of 2011 are set aside, qua appellant/convict
Shambhu Rai, who accordingly acquitted of the charges levelled
against him. He is directed to be set at liberty forthwith unless
his detention is required in any other case.
36. Fine if any paid by appellant/convict
Shambhu Rai be returned to him immediately.
(A. M. Badar, J.)
(Chandra Shekhar Jha, J.)
veena/-
AFR/NAFR AFR
CAV DATE 17.04.2023
Uploading Date 19.05.2023
Transmission Date 19.05.2023
