Yoganandan Kumar Yogesh vs The State Of Bihar
2023 Latest Caselaw 5295 Patna

           IN THE HIGH COURT OF JUDICATURE AT PATNA
                          CRIMINAL APPEAL (DB) No.754 of 2017
             Arising Out of PS. Case No.-68 Year-2012 Thana- JADIA District- Supaul
     ======================================================

Yoganandan Kumar Yogesh Son of Late Rajendra Yadav R/o vill - Navdihi, P.S. - Jadia, Distt. - Supaul

... ... Appellant/s Versus

1. The State of Bihar Bihar

2. Sunil Yadav @ Bablu Yadav Son of Umesh Prasad Yadav R/o vill -

Vidyanagar, P.S. - Jadia, Distt. - Supaul

3. Umesh Prasad Yadav @ Laddu Yadav Son of Late Laxmi Yadav R/o vill -

Vidyanagar, P.S. - Jadia, Distt. - Supaul

4. Anil Yadav Son of Umesh Prasad Yadav R/o vill - Vidyanagar, P.S. - Jadia, Distt. - Supaul

5. Arun Yadav Son of Umesh Prasad Yadav R/o vill - Vidyanagar, P.S. - Jadia, Distt. - Supaul

6. Ajay Jha @ Guddu Jha Son of Jawahar Jha R/o vill - Belapatti, P.S. -

Triveniganj, Distt. - Supaul

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

For the Appellant : Mr. Udit Narayan Singh, Adv.

Mr.Sanjeev Nikesh, Adv.

     For the State                 :   Mr. Dilip Kumar Sinha, APP
     For Respondents No. 2 to 6 :      Mr.Sanjay Singh, Sr. Adv.
                                       Mr. Rajesh Kumar Sinha, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY)

Date : 12-10-2023

1. Heard Mr. Udit Narayan Singh and

Mr. Sanjeev Nikesh, the learned advocates for the Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

appellant/informant who is aggrieved by the judgment of acquittal

of respondents no. 2 to 6, who have been represented here by Mr.

Sanjay Singh, the learned senior advocate as well as Mr. Rajesh

Kumar Sinha, the learned advocate. We have also heard Mr. Dilip

Kumar Sinha, the learned A.P.P. for the State.

2. By way of the present appeal, the appellant has

challenged the acquittal of respondents no. 2 to 6 by the learned

Additional Sessions Judge-1, Supaul vide judgment dated

03.05.2017 passed in Sessions Trial No. 23 of 2015 arising out of

Jadia P.S. Case No. 68 of 2012.

3. According to the written statement (Ext. 2) of the

informant (PW-18), the occurrence took place on 22.05.2012 for

which the written statement was given to S.H.O., Jadia, Supaul

and whereafter the FIR was registered.

4. The prosecution case, in brief, is that on 22.05.2012 at

about 01:00 AM, 8-9 criminals arrived all of a sudden at the gate

of the informant. It is said that the informant's father was found

sitting on a cot in the corridor of the dalan and the informant's

father is said to have been conversing with the informant's elder

brother (PW-17) in the light of the lantern. It is alleged that

miscreants surrounded them from all sides. It is alleged by the

informant that the accused persons, namely, Sunil Yadav @ Bablu Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

Yadav and Ajay Jha @ Guddu Jha caught both the hands of the

informant's father and thereafter Anil Yadav and Umesh Prasad

Yadav @ Laddu Yadav shot at the father of the informant. They

were exhorted by Arun Yadav. Consequently, the victim received

injuries on his right shoulder.

5. On the basis of written statement (Ext. 2) of the

informant (PW-18), Jadia P.S. Case No. 68 of 2012 dated

22.05.2012 was registered under Sections 302, 120(B), 34 of the

I.P.C. and Section 27 of the Arms Act.

6. The police, however, on investigation found the

occurrence true against the unknown and submitted the final form

against the accused persons/respondents no. 2 to 6, showing the

allegation against them to be false. The learned Chief Judicial

Magistrate, Supaul however differing with the police report took

cognizance under the aforesaid sections against the respondents

no. 2 to 6 on the basis of the materials available on record.

7. The learned Trial court was pleased to frame charges

under Sections 302/34 and 120(B) of the I.P.C. against all the

accused persons. Further, the Trial court framed charge under

Section 27 of the Arms Act against the accused Anil Yadav and

Umesh Prasad Yadav. The respondents had pleaded not guilty and

claimed to be tried.

Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

8. In order to bring home the guilt of the respondents no.

2 to 6, the prosecution examined altogether twenty witnesses. PW-

1 Kailu Yadav, PW-2 Raghunandan Yadav, PW-3 Mangan Mehta,

PW-4 Jai Prakash Ram, PW-5 Damodar Yadav, PW-6 Pramod

Yadav, PW-7 Dr. Sanjay Kumar Mishra, PW-8 Dr. Arun Kumar

Singh, PW-9 Dr. Mihir Kumar Verma, PW-10 Kumari Sulochna,

PW-11 Prakash Yadav, PW-12 Shankar Kumar, PW-13 Geeta

Devi, PW-14 Kumari Hema, PW-15 Shyam Sundar Yadav, PW-16

Hari Nandan Prasad, PW-17 Ram Nandan Yadav, PW-18

Yognandan Kumar Yogesh (informant), PW-19 Dr. Surendra Nath

Das and PW-20 Jitendra Sahni (I.O.).

Prosecution has relied upon following documentary evidence on record:-

Ext. 1- Postmortem report.

Ext. 1/1- PW-8 proved his signature on postmortem

report.

Ext. 1/2- PW-9 proved his signature on postmortem

report.

Ext. 2- Fardbeyan.

Ext. 3- Protest letter.

Ext. 4- Injury report proved by Dr. Surendra Nath Das

(PW-19).

Ext. 5- Final form.

Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

Defence has not examined any witness on its behalf but

some documents have been filed which have been marked as Ext.

A to J.

However, the defence of the respondents no. 2 to 6, as

gathered from the cross examination of prosecution witnesses as

well as from his statement under Section 313 of the Cr.P.C., is of

total denial of the charge.

9. The learned Trial court after examined the witnesses

on behalf of the prosecution, acquitted the respondents no. 2 to 6

of all the charges.

10. The learned Advocates for the appellant/informant

has submitted that the Trial court has not considered the statement

of informant and other eye witnesses of the case and has passed

the impugned judgment on the basis of planted witnesses produced

by the police as PWs. 1 and 2. PWs. 10 to 18 have fully supported

the case of the prosecution. PW-18, who is the informant of the

case and also an eye witness of the occurrence, has fully supported

the case of the prosecution but the learned Trial court disbelieved

the version of prosecution witnesses only on the ground that they

are not independent witnesses; rather they are relatives of the

deceased. The learned Trial court wrongly considered the

postmortem report and deposition of the doctors, which is grave Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

error in passing the impugned judgment. Lastly, they submitted

that in the light of aforesaid facts and circumstances of the case,

the impugned judgment is fit to be set aside.

11. On the contrary, the learned Advocates appearing for

the respondents no. 2 to 6 have submitted that PW-1 though has

been declared hostile but during the cross-examination, he has

admitted that at 8:00 to 8:30 PM, Amin Sahab @ Rajendra Yadav

was taken away by a vehicle and he slept in the room after taking

meal and on hearing hulla he found Amin Sahab dead and he did

not identify any of the assailants. PW-2 is also full fledged

prosecution witness. Though, he is not an eye witness of the

occurrence but he fully endorsed the statement of his brother (PW-

1) who is the watchman of informant. His statement is quite

consistent with his earlier version along with version of PW-1, as

stated in para -3 of his deposition. In this way, PWs. 1 and 2 have

specifically and clearly supported the earlier version in their

deposition and their version is quite intact. PWs. 3, 4 and 6 have

not seen the occurrence. The version of PWs. 17 and 18 are quite

inconsistent with the story of prosecution. There is no source of

light to identify any of the assailants. The earlier statement of PW-

17 is quite inconsistent with the deposition made in the court. The

statement of PW-18 is quite inconsistent with the deposition made Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

in the court and he has improved his earlier version of deposition

that on barking of dogs he awoke. Keeping in view the infirmities

and inconsistencies in the deposition of PWs. 17 and 18, they are

not eye witness of the occurrence. Even motive as alleged in the

initial version of story of prosecution has not been proved by the

PWs. 17 and 18. The I.O. (PW-20) has not found any motive in

committing the said occurrence. In this way, the prosecution has

failed to prove the case and the I.O. has also found the accusation

false against the respondents no. 2 to 6 and the learned Trial court

has rightly passed the impugned judgment acquitting the

respondents no. 2 to 6 and there is no reason to interfere with the

impugned judgment.

12. It is worth to say that deceased Rajendra Yadav has

also been known as Amin Saheb.

13. It is necessary to discuss and screened out the

prosecution witnesses one by one.

14. PW-1 Kailu Yadav during examination-in-chief has

stated that he did not see the occurrence and he has been declared

hostile. In para 3 of his deposition he has stated that at 8:00 to 8:30

PM Rajendra Yadav (deceased) was taken away on a vehicle and

on the sound of firing the witnesses awoke and saw Rajendra

Yadav who was lying dead on a cot. On the basis of record, it is Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

found that PW-1 is an employee of informant (PW-18) and he has

been assigned duty to watch the house. Naturally he is inclined to

speak for his employer and there is no reason to speak against the

employer who is informant of the case. Apart from that, the

statement of PW-1 is consistent with the statement of PW-20 (I.O.)

as well as PW-2. The I.O. (PW-20) has clearly stated that

Raghunandan Yadav (PW-2) has stated that at about 1:00 AM in

night some one has fired pellet and he went to the house of

informant (PW-18) and found Rajendra Yadav lying dead on

verandah and PW-1 has pointed out that on the day of the

occurrence at 8:00 PM Rajendra Yadav (deceased) was taken on

vehicle. On hearing the sound of firing he saw the deceased was

lying dead on cot and he has not seen as to who has killed the

deceased. The statement of PW-1 at the relevant time that neither

he has seen the occurrence nor did see the accused persons at the

place of occurrence and the said version of PW-1 was quite

consistent with the statement of PW-20 (I.O.) as well as PW-2.

15. PW-2 Raghunandan Yadav is brother of PW-1. He

has specifically stated that his brother/PW-1 resides with the

deceased and he reveals that deceased had been suffering from

illness three to four months ago from the occurrence and he was

taken away by the vehicle. On the point of taking away the Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

deceased by a vehicle, the statement of both witnesses are quite

consistent and there is no reason to disbelieve the statement of

PW-1 as PW-1, being an employee, has to serve the interest of

informant as he has duty to watch the house and he cannot detach

himself from the family affairs of the informant (PW-18). The

statement of PW-1 cannot be discarded as the prosecution has not

re-examined the statement of PW-1 which has been stated in para

3 of his cross-examination and his evidence is quite intact on the

point that deceased has been taken on vehicle at 8:00 to 8:30 PM.

PWs-1 and 2 have clearly stated that they have not seen the

occurrence and they came at the place of occurrence on hearing

the sound of firing.

16. PW-3 Mangan Mehta has stated that he has not seen

the occurrence and he found the dead body of Rajendra Yadav. He

has not made any significant statement that as to who has killed

the deceased. In this way, he has not supported the story of

prosecution.

17. PW-4 Jai Prakash Ram has stated that he has also not

seen the occurrence. He has stated that accused

persons/respondents no. 2 to 6 have been falsely implicated in the

present case on account of enmity.

Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

18. PW-5 Damodar Yadav has stated that he knew both

sides. He has pointed out that Rajendra Yadav has been died on

account of pellet injury. He has stated that there is enmity between

both the sides and most striking statement made by this witness is

that he went to the place of occurrence and made a query as to who

has killed the father of informant, it is pointed out by the informant

that he cannot identify the assailant. In this way, his statement is

crystal clear that he has not supported the case of the prosecution

rather he has stated that even the informant is not in a position to

identify the assailant.

19. PW-6 Pramod Yadav has also not seen the

occurrence. His evidence is neither trustworthy nor convincing.

20. PW-7 Dr. Sanjay Kumar Mishra, PW-8 Dr. Arun

Kumar Singh and PW-9 Dr. Mihir Kumar Verma conducted

postmortem examination of deceased on 22.05.2012 at 7:30 A.M.

and found following injuries:-

Description of firearm injury:-

Wound of entry (No.1)- Size 1/2" x 1/2", shape- circular

with irregular margin communicating with interior. Site- skin

overlying medial angle of right scapula. Tattooing and charring

around the wound seen with presence of blood.

Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

Wound of entry (No.2)- Size 1" x 1/3", shape- oval and

elongated, margins- irregular and inverted with presence of blood.

Site-Just behind tip of right shoulder joint.

The cause of death is attributed to CR failure resulting

from both cardiogenic and neurogenic shock, stemming from the

injuries due to a close firearm-discharge.

The time elapsed since the occurrence of death was

within 24 hours. Notably, rigor mortis was observed solely in the

lower limbs only.

The said postmortem report is marked as Ext.-1. PW-8

proved his signature on postmortem report which is marked as

Ext.1/1. PW-9 proved his signature on postmortem report which is

marked as Ext.-1/2.

21. PW-10 Kumari Sulochna has projected herself to be

an eye witness of the alleged occurrence during examination-in-

chief as she has stated that accused person/respondent, namely,

Anil Yadav and Umesh Prasad Yadav @ Laddu Yadav made firing

towards Rajendra Yadav who sustained injury from the said firing.

She has stated that she saw accused person/respondent, namely,

Sunil Yadav @ Bablu Yadav and Arun Yadav who had caught

Rajendra Yadav (deceased). During cross-examination, she claims

that she was sleeping and at 1:00 AM she heard the sound of firing Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

of two pellets and on the sound of said firing, she went to the gate.

She has further stated that she reached at the gate after firing as

mentioned in para-9 of her cross-examination. When the

credibility of this witness is tested, it is found that if she reaches at

the gate after firing, then how she claims that she has seen as to

who has made firing first towards the deceased and who has made

firing afterwards. She admitted at para 16 that her father-in-law

disclosed to her the name of all the accused persons and said name

has been stated by her in the court. In this way, her evidence is

neither trustworthy nor convincing in the light of statement as

deposed by her in the court.

22. PW-11 Prakash Yadav is not an eye witness of the

occurrence rather he is a factual witness who narrates that he saw

Amin Yadav who sustained pellet injury on his shoulder and he

was taken to Triveniganj hospital and he did not ask from the

family members of the deceased as to who made firing. He has not

in any way supported the case of the prosecution.

23. PW-12 Shankar Kumar is son of Ram Nandan Yadav

(PW-17) and grandson of the deceased who projected himself as

an eye witness of the alleged occurrence and during examination-

in-chief he has stated that he has seen the occurrence and Anil

Yadav and Umesh Prasad Yadav @ Laddu Yadav made firing Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

causing gun shot injury on the shoulder of deceased/Rajendra

Yadav. He explained the participation of other accused/respondent,

namely, Sunil Yadav @ Bablu Yadav, Ajay Jha @ Guddu Jha and

Arun Yadav. During cross-examination he has denied the

suggestion that he has not identified the accused person. On the

said point, the I.O. (PW-20) has clearly stated in para 6 of his

deposition that neither Kailu Yadav (PW-1) nor Geeta Devi (PW-

13) nor Shankar Kumar (PW-12) nor Mangan Mehta (PW-3) has

stated as to who has committed the occurrence. It is necessary to

test the credibility of the said witness who has projected himself as

an eye witness of the occurrence but he has not given statement

before the I.O. that he has identified any of the accused person for

committing the said occurrence. The I.O. (PW-20) has already

stated that PW-12 has not identified any of the accused persons but

during course of adducing evidence he has projected himself as an

eye witness of the occurrence. During cross-examination attention

has already been drawn by the defence on the said point. In this

way, his evidence is not trustworthy in the light of given facts and

circumstances of the case and he is not eye witness of the

occurrence.

24. PW-13 Geeta Devi has stated that she identified the

accused person during the course of fleeing away. During cross Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

examination she has stated that she has not seen the occurrence of

firing. During cross examination, she has denied the suggestion

that she has not identified the accused person. On the said point,

the I.O. (PW-20) has clearly stated in para 6 of his deposition that

PW-13 (Geeta Devi) has not stated as to who has committed the

occurrence.

25. PW-14 Kumari Hema has projected herself to be an

eye witness of the occurrence. She has stated about participation of

all the accused persons/respondents no. 2 to 6 in the alleged

occurrence. During cross-examination, she has stated that she saw

the occurrence from a distance of 6 to 7 hands through a whole.

From perusal of evidence of PW-14 that during the night how she

has seen the occurrence through a whole where the I.O. (PW-20)

has clearly stated that none of the witnesses has stated about the

glow of light. Prudently and pragmatically, it is very difficult to

find visibility to see the occurrence at night through a particular

whole. In this way, her evidence is neither trustworthy nor

convincing in the light of given facts and circumstances of the

case.

26. PW-15 Shyam Sundar Yadav is not an eye witness of

the occurrence as he heard regarding the said occurrence from his Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

sister/Sunaina Devi on phone. His evidence is neither trustworthy

nor convincing.

27. PW-16 Hari Nandan Prasad is Pharmacist of Primary

Health Centre, Triveniganj who gave first aid to Rajendra Prasad

(deceased) and referred him to Supaul Hospital.

28. PW-17 Ram Nandan Yadav is the elder son of

deceased. He narrates the story of prosecution that he identifies

five accused persons in glow of lantern out of eight-nine in

number at about 1:00 A.M. in night on the date of occurrence. He

was talking with his father, and his two sons, namely, Shankar

Kumar (PW-12) and Amit (not examined) were present there. His

father was being forced to lay upon cot. He has specifically and

categorically supported the initial version of prosecution story. He

has further stated that PW-18 was being chased and he escaped in

the field of maize and he came after five minutes at the gate.

During cross-examination, he stated that he hid himself under the

cot at the time of alleged occurrence. He has admitted that lantern

was being showed to the police and there was no any source of

light except lantern. PW-17 has stated during cross-examination at

para 11 that he has not stated before the police that he was sleeping

with his son. It is necessary to testify the credibility of said witness

in the light of given facts which was deposed during deposition. Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

PW-20 (I.O.) has stated in para 10 of his deposition that

Ramnandan Yadav (PW-17) was not talking to his father rather he

was sleeping with his son in his room. The most striking fact

deposed by PW-20 (I.O.) that neither lantern nor torch was

produced in which identification was made. Two cots were not

found at the place of occurrence. The statement of PW-17 is quite

inconsistent with the statement of PW-20 (I.O.) on the point of

availability of lantern that is source of identification at the place of

occurrence. From perusal of evidence adduced by PW-17, it is

crystal clear that while he hid under the cot, his father was forced

to lie down on the cot and was shot at a point blank range almost

touching the cot. Prudently, there cannot be supposition that

person under the cot can see the occurrence which has taken place

outside the cot during night. PW-20 (I.O.) completely negates the

version that he was talking to his father at 1:00 A.M. as the earlier

version of PW-17 is that he was along with his son in his room.

Keeping in view the aforesaid background of inconsistencies and

infirmities in the statement of PW-17, his statement is neither

convincing nor trustworthy to base the conviction of respondent

nos. 2 to 6.

29. PW-18 Yognandan Kumar Yogesh is the son of

deceased/Rajendra Yadav and he gave the written report in his Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

writing and put signature upon the said application, which stands

marked as Ext.-2. He has also reiterated the initial story of

prosecution. During the course of deposition, he has improved the

initial version of story of prosecution that he heard barking of dogs

and then, he proceeded for urinal and his elder brother PW-17 and

PW-12 (nephew) was present at the place of occurrence prior to

the occurrence. His statement is quite inconsistent with the

statement of PW-20 (I.O.) that neither lantern nor torch was

produced and no identification was done in the light of said article.

The informant did not produce the torch and he did not point out

regarding the place of urinal. PW-17 has clearly stated before the

I.O. that he was sleeping with his son and he was not talking with

his father, as same was deposed by PW-20 (I.O.) in his deposition.

The deposition of PW-18 is quite inconsistent with the statement

of PW-20 (I.O.). In the background of aforesaid facts and

circumstances of the case, he cannot be called as an eye witness of

alleged occurrence and his version is neither convincing nor

trustworthy.

30. PW-19 Dr. Surendra Nath Das examined one

Rajendra Yadav on 22.05.2012 who came for treatment at about

02:00 AM and he referred the injured to Sadar Hospital on the

same day. He prepared injury report which bears his signature and Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

said injury report has been marked as Ext. 4. During cross

examination, he stated that he did not mention that for which

injury the injured was referred to Supaul.

31. PW-20 Jitendra Sahani is I.O. of the case. He got the

charge of investigation of the present case on 22.05.2012 which is

on the basis of written report. He recorded the re-statement of the

informant (PW-18). He inspected the place of occurrence and

identified the P.O. During the course of investigation, inquest

report was prepared and he recorded the statement of other

witnesses. He prepared production cum seizure list of khokha and

he obtained CDR and postmortem report and seized khokha was

sent to F.S.L., Patna for examination. He found the accusation

false against the accused persons and submitted final form which

bears his writing and signature and same stands marked as Ext. 5.

During the course of investigation, he recorded the statement of

Kailu Yadav (PW-1) who did not identify any of the accused

persons. The most striking feature of deposition of PW-20 is that

neither lantern nor torch was produced in which identification was

being pointed out. He did not find any lantern in hanging condition

on the place of occurrence. He did not find two cots on the P.O.

The informant neither did produce any torch nor did he point out

regarding urinal at any place. The I.O. has stated that informant Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

(PW-18) did not point out from which distance and at which place

the assailants are being identified. During the course of immediate

investigation, neither Kailu Yadav (PW-1) nor Geeta Devi (PW-13)

nor Amit (not examined) nor Shankar Kumar (PW-12) nor

Mangan Mehta (PW-3) disclosed the name of the assailants. The

I.O. (PW-20) has specifically stated that PW-17 (elder brother of

the informant) did not state that he was making conversation with

his father rather he was sleeping with his son in his room. In para

11 of his deposition, the I.O. has stated that PW-2 (Raghunandan

Yadav disclosed that at 1:00 AM there was noise that some one

fired. PW-20 has clearly pointed out that Kailu Yadav (PW-1) was

present at the place of occurrence who is the brother of PW-2 and

PW-1 pointed out in earlier statement recorded by the I.O. (PW-

20) that at 8:00 PM deceased/Rajendra Yadav @ Amin Sahab was

taken on vehicle by Yogesh, Shyam Sundar and other and

thereafter he slept after taking meal and it is not known as to when

all returned. On raising hulla, he saw that Amin Sahab was found

dead. PW-20 has stated that PW-4 (Jai Prakash Ram) did not

disclose as to who has killed. In para 21 the I.O. (PW-20) has

stated that on the basis of investigation he found the accusation

false against the accused persons.

Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

32. From perusal of statement of PW-20 (I.O.), it is clear

that none of the prosecution witnesses has clearly seen the

occurrence through naked eye. The statement recorded by the I.O.

during the course of investigation clarifies that source of

identification was not produced even though the occurrence took

place in the dead silence of night. The statement of PW-17 and

PW-18 (informant) are quite inconsistent and full of infirmities

regarding the accusation against the respondents no. 2 to 6. From

the deposition of all the prosecution witnesses, it is crystal clear

that none of the prosecution witnesses was present at the place of

occurrence. PW-17 has already clarified when her statement was

recorded by the I.O. that he was at his room with his son and he

was not making conversation with his father. The I.O. has clarified

that previously PW-17 has not stated during the course of

investigation before the I.O. that he was making conversation with

his father rather he was sleeping with his son in his room. In this

way, the statement of PW-17 is quite inconsistent with the earlier

statement recorded by the I.O. Source of identification i.e. neither

lantern nor torch was produced to the I.O. The I.O. prominently

visited the P.O. immediately and he did not find any source of

identification at the P.O. There is no reason to disbelieve the

version of I.O. as he recorded the statement of all the prosecution Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

witnesses and he identified the P.O. and during course of

investigation found that accusation against the respondents no. 2 to

6 are false.

33. Now, it is necessary to shed light on the deposition

of PW-1. His statement is quite consistent with the earlier

statement recorded by the I.O. and his statement favours the

defence/respondents no. 2 to 6. PW-2 who is the brother of PW-1

has corroborated the version of PW-1 and the deposition of PWs. 1

and 2 are quite natural being a brother sharing same information

before the I.O. and the Court and there is no reason to discard the

statements of said witnesses.

34. It is necessary to quote here the relevant judgment

passed by the Hon'ble Supreme Court in the case of Veerendra Vs.

State of M.P., reported in AIR 2022 SC 3379 wherein it has been

held that if the prosecution witnesses are supporting defence

version, same will be binding on the prosecution.

35. In such a scenario, the statement made by the

prosecution witnesses in favour of the accused would certainly

inure to the benefit of accused persons and same view is reiterated

by the decision of Raja Ram Vs. The State of Rajasthan reported

in (2005) 5 SCC, 272.

Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

36. In the present case, PW-1 even though has been

declared hostile, his evidence in para 3 is quite consistent with the

previous statement recorded by the I.O. (PW-20) and his statement

is also quite consistent with the statement of PW-2 who is brother

of PW-1 but PW-2 has not been declared hostile and he is full

fledged prosecution witness. PW-1 has not been re-examined by

the prosecution which is stated in para 3 of his cross-examination.

37. It has been held in catena of judgments that

prosecution witnesses cannot be discarded as they are merely

interested witness or they are related to each other, unless their

evidence is full of infirmities, discrepancies, anomalies and above

all major contradictions uprooting the base of prosecution story.

38. In this context, the explanation of the Trial court

rejecting the evidence of interested witness does not sound good.

The reasoning of the Trial court while discarding the witnesses on

the basis of related witness is not fully explained and does not

have sound reasoning.

39. We have gone through the evidence of prosecution

witnesses and it is found that none of the prosecution witnesses are

eye witness and their evidence is full of infirmities and

discrepancies. Their evidence is neither trustworthy nor Patna High Court CR. APP (DB) No.754 of 2017 dt.12-10-2023

convincing in the background of the facts and circumstances, as

already discussed in the foregoing paragraphs.

40. Thus, we do not find any reason to interfere with the

judgment of acquittal of the respondents no. 2 to 6.

41. The appeal, thus, stands dismissed.

                                                (Alok Kumar Pandey, J)


                                                 (Ashutosh Kumar, J)


shahzad/-amit
AFR/NAFR                NAFR
CAV DATE                N.A.
Uploading Date          18.10.2023
Transmission Date       18.10.2023