Patna High Court
Palan Jha vs The State Of Bihar on 19 October, 2023
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.223 of 1994
Arising Out of PS. Case No.-218 Year-1992 Thana- BAHERA District- Darbhanga
======================================================
1. Palan Jha, son of Late Krit Narayan Jha
2. Durganand Jha, son of Late Bilat Jha
3. Sita Ram Jha, son of Sri Tirpit Narayan Jha
All the appellants are residents of village - Antaur, P.S. - Bahera, Distt.-
Darbhanga.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 286 of 1994
Arising Out of PS. Case No.-218 Year-1992 Thana- BAHERA District- Darbhanga
======================================================
Arun Kumar Jha @ Arun Jha, S/o Late Krit Narayan Jha, R/o Village- Antaur,
P.S.- Bahera, Distt- Darbhanga.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 223 of 1994 and CRIMINAL APPEAL (DB) No.
286 of 1994)
For the Appellant/s : Mr. Sumeet Kumar Singh, Advocate
Mr. Kaushal Kumar Jha, Advocate
Mr. Rajiv Ranjan Kumar Pandey, Advocate
For the Respondent-State: Mr. Binod Bihari Singh, APP
For the Informant : Mr. Ajay Kumar Thakur, Advocate
Mr. Gajendra Kumar Jha, Advocate
Mr. Imteyaz Ahmad, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA)
Date : 19-10-2023
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
The present appeals have been filed by the appellants-
convicts under Section 374(2) of the Code of Criminal
Procedure, 1973 (hereinafter referred to as 'the Code')
challenging the impugned judgment of conviction dated
23.04.1994 and order of sentence dated 03.05.1994 passed by
learned Sessions Judge, Darbhanga in Sessions Trial No.84 of
1993 arising out of Bahera P.S. Case No. 218 of 1992, whereby
the concerned Trial Court has convicted and sentenced the
appellant, namely, Aurn Kumar Jha to undergo rigorous
imprisonment for life for the offence under Section 302 of the
Indian Penal Code (hereinafter referred to as 'I.P.C.'). The
concerned Trial Court has also convicted and sentenced the
appellants, namely, Palan Jha, Durganand Jha and Sitaram Jha
to undergo rigorous imprisonment for life for the offence under
Section 302/149 of the IPC. All the appellants have further been
convicted and sentenced to undergo rigorous imprisonment for
three months each for the offence under Section 324/149 of IPC
and appellant Durganand Jha has further been convicted and
sentenced to undergo rigorous imprisonment for six months for
the offence under Section 379 of the IPC. All the sentences of
the appellants have been directed to run concurrently.
2. The case of the prosecution, which is based on the
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
fardbeyan of the informant, Anil Kumar Jha (PW-7) is as
under:-
"On 08.09.1992 at about 12:15 PM, the
informant, namely, Anil Kumar Jha along with the
deceased was going to Darbhanga with a sum of
Rs.7,500/-, which was kept in his bag for purchasing
spare parts of tractor as well as for treatment of deceased
Anant Narain Jha and when they reached in front of the
house of the accused Tripit Narayan Jha, who belonged
to village-Antaur under P.S.-Bahera in the district of
Darbhanga, all the five accused persons were sitting
there, on seeing the informant and deceased, accused
Tripit Narain Jha ordered to kill them and thereupon, the
appellants, Arun Kumar Jha, Palan Jha and Sitaram Jha
armed with farsa, appellant Durganand Jha armed with
lathi and accused Tripit Narain Jha surrounded them and
thereafter the appellant Arun Kumar Jha gave a farsa
blow on the head of the deceased Anant Narain Jha as a
result of which, he sustained head injury and fell down
and when informant Anil Kumar Jha went to save him,
the appellant Sitaram Jha wielded a farsa blow on his
neck but, the informant save himself and it was hit to his
leg due to which he received cut injury. In the meantime,
his nephew, namely, Manoj Kumar Jha came for their
rescue, who was also assault by appellant Palan Jha by
farsa due to which he received cut injury in both wrist. It
has further been alleged that accused Tripit Narain Jha
snatched the bag from him containing Rs.7,500/- and
appellant Durganand Jha assaulted all of them by lathi
and also took away wrist watch from Anant Narain Jha.
In the meantime, prosecution witnesses arrived there and
chased the accused to save them. The motive for the
occurrence is said to be a dispute due to exchange of
lands between the parties."
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
3. After the occurrence, the informant/PW-7 and
injured/deceased Anant Narain Jha were taken to clinic of Dr.
R.K. Chaudhary (PW-2), at Benipur, who referred injured Anant
Narain Jha to Darbhanga Medical College & Hospital,
Laheriasarai. The injured Anant Narain Jha was taken to
DMCH, Laheriasarai in unconscious state and was admitted
there. On the same day, he was referred to PMCH, Patna where
the doctor declared him dead.
4. On the basis of the aforesaid fardbeyan given by
the first informant (PW-7), Bahera P.S. Case No.218 of 1992
dated 08.09.1992 was registered under Sections 147, 148, 149,
323, 307 and 379 of the Indian Penal Code against the
appellants. Later on, after the death of the deceased Anant
Narain Jha, Section 302 of the IPC was also added in the First
Information Report (for short 'F.I.R..'). The Investigating
Officer thereafter carried out the investigation and during the
course of investigation, recorded the statement of the witnesses
and also collected the documentary evidence, and after
completing investigation, filed the charge-sheet against all the
appellants before the concerned learned Magistrate Court.
5. After perusal of material available on record,
concerned learned jurisdictional Magistrate after compliance of
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
Section 207 of the Code, committed the case to the Court of
Session.
6. Learned trial court after perusal of records,
explained charges to appellants-accused, which they denied and
claimed for trial, whereafter trial of this case commenced before
learned trial court.
7. To substantiate its case, the prosecution before
learned Trial Court had examined fifteen witnesses as PW-1
Manoj Kumar Jha, who is son of deceased Anant Narain Jha,
PW-2 Dr. Raj Kishore Chaudhary, PW-3 Balendra Jha, PW-4
Ram Babu Jha, PW-5 Shiban Paswan, PW-6 Dr. Prem Chandra
Jha, PW-7 Anil Kumar Jha, PW-8 Dr. Umesh Chandra Isser,
PW-9 Sitapati Barhi, PW-10 Ram Udar Kuwar, PW-11
Bisheshwar Jha, who is Investigating Officer of the case, PW-
12 Raj Nath Singh, PW-13 Phani Kant Chaudhary, PW-14 Dr.
Akhauri Rabindra Kishore and PW-15 Ganga Prasad Jha.
8. The prosecution further relied upon following
exhibits/documents before the learned trial court as to
substantiate its case:-
Sl. No. Exhibits List of exhibits/documets
1. 1 Prescription of Dr. R. K.
Chaudhary, Benipur with
respect to Anant Narain Jha.
2. 2 & 2/1 Signature of Manoj Kumar Jha
and Fanikant Jha, on the
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
carbon copy of Inquest report.
3. 2/2 Signature of witness Anil
Kumar Jha on the fardbeyan.
4. 2/3 Signature of Fani Kant
Chaudhary on the fardbeyan of
Manoj Kumar Jha dated 9.9.92.
5. 3 Injury certificate of Anil
Kumar Jha
6. 3/1 Injury certificate of Manoj
Kumar Jha
7. 3/2 Endorsement of Injuries at
page 125 of the Injury Register
of PMCH regarding injuries of
Manoj Kumar Jha.
8. 3/3 Endorsement of Injuries at
page 124 continued to page
125 of the Injury Register of
P.M.C.H. regarding the injuries
of Manoj Kumar Jha.
9. 3/4 Endorsement of Injuries at
page 1078 in Injury Register of
D.M.C.H. regarding injury of
Anant Narain Jha.
10. 3/5 Endorsement of Injury at page
5 of the Injury Register.
11. 3/6 & 3/7 Endorsement on the fardbeyan.
12. 4 Prescription of Anant Narain
Jha granted by Dr. R.N. Jha.
13. 5 Bed Head Ticket of D.M.C.H.
regarding Anant Narain Jha.
14. 5/1 Endorsement with signature of
Dr. Anil Kumar Sinha on the
Bed Head Ticket.
15. 6 Carbon copy of O.D. Slip.
16. 6/1 Original O.D. Slip.
17. 7 Entry No.204 of the O.D. Slip.
18. 8 Fardbeyan.
19. 9 Formal F.I.R.
20. 10 Requisition for Injury Report.
21. 11 Sketch map of the place of
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
occurrence.
22. 12 Inquest Report.
23. 13 Postmortem report.
24. 14 Letter of Dr. Ram Krishna
Prasad Singh, I/c of the
Department of F.M.& T. Patna.
25. X Fardbeyan of Manoj Kumar
Jha dated 26.04.1993 recorded
at P.M.C.H.
26. X/1 Slip to carry the dead body
after postmortem.
27. A Signature of Anil Kumar Jha
on protest petition.
28. A/1 Signature of Diwakar Jha,
Advocate on the protest
petition.
29. A/2 Protest petition.
30. B Wakalatnama.
31. C Station Diary Entry No.213 of
8.9.92.
32. C/1 Station Diary Entry No.222 of
9.9.92.
33. C/2 Station Diary Entry No.394 of
16.9.92.
34. C/3 Station Diary Entry No.398.
35. D Survey map of village Antor
(Bahera P.S.)
9. The statement of the appellants-accused were
recorded under Section 313 of the Code after stating them
incriminating evidences/circumstances, which they denied and
shows their complete innocence.
10. Accused-appellants in favour of defence
examined one witness, namely, Sita Ram Jha as DW-1.
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
11. After conclusion of the trial, the Trial Court
passed the impugned judgment of conviction as observed
hereinabove. Against the impugned judgment and order, the
appellants have preferred these appeals, which were admitted
and now same is taken for final hearing.
12. Hence, this appeal.
13. It is submitted by learned counsel arguing on
behalf of the appellants-accused that with the evidences
available on record, it cannot be said that the prosecution has
established its case beyond reasonable doubt. While submitting
so, it has been pointed out that PW-1 Manoj Kumar Jha and
PW-7 Anil Kumar Jha, who were examined as injured eye-
witness, stated certain facts which appears as a material
contradiction regarding manner of occurrence, nature of injuries,
etc. It is submitted that even the trial court has not accepted PW-
1 Manoj Kumar Jha as a reliable injured eye witness though,
learned trial court has accepted PW-7 as injured eye-witness but,
same is also appearing non-convincing in view of his
contradictory deposition. It is submitted that rest of the eye-
witnesses are either projected eye-witnesses or chance witnesses
of the occurrence being relatives or out of acquaintance having
close proximity with informant and his family, who appears to
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
arrive on place of occurrence after the actual occurrence, where
informant-deceased namely, Anant Kumar Jha alleged to receive
fatal farsa blow on his head. It is also submitted that PW-7 was
examined by PW-2, namely, Dr. Raj Kishore Chaudhary at his
private clinic, where injury report also appears to be
manipulated. Learned counsel for the appellants also pointed out
that sanha (information) was recorded by the police on the basis
of O.D. slip, which is Exhibit-6 sent by PW-2 to the police
station but, same O.D. slip is nowhere mentioned the name of
deceased Anant Kumar Jha, the register was also not produced
before the police. It is also pointed out that the injury report of
PW-7 is also undated.
13.1. Learned counsel for the appellants-accused
further submitted that the motive of occurrence is also not
established in this case and furthermore, Investigating Officer
has failed to collect and send the blood-stained earth/soil and
bricks for chemical analysis to the Forensic Science Laboratory.
The Investigating Officer also failed to collect any weapons
like, lathi and farsa from the place of occurrence. There are
certain facts, which were stated by prosecution witnesses before
learned trial court first time by deviating or improving over their
earlier version as available through fardbeyan or statement as
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
recorded under Section 161 of the Code and, as such, the
deposition of such witnesses before the learned trial court can be
weighed with a doubt by importing contradictions of
Investigating Officers, where same appears found hit by Section
145 of the Indian Evidence Act. While travelling over the
argument, learned counsel for the appellants-accused submitted
that if material contradictions and compelling reasons exist,
even the depositions of injured eye-witness can also be
discarded and in support of his submission, he has relied upon
the judgment of Hon'ble the Supreme Court in the matter of
Balu Sudam Khalde & Anr. vs. State of Maharashtra
reported in AIR 2023 SC 1736. Learned counsel for the
appellants-accused also relied upon the judgment of Hon'ble the
Supreme Court in the matter of Lakshmi Singh and Ors. vs.
State of Bihar reported in (1976) 4 SCC 394, where it has been
held that omission as to send the blood-stained earth for forensic
examination by prosecution and also the non-recovery of
murder weapon are fatal for the case of the prosecution.
13.2. Learned counsel further submitted that if the
version of FIR as authored by PW-7 be taken into consideration
then, certainly, the injury which was to be found by taking
nature of weapon which alleged to be caused injury i.e. farsa,
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
which is a sharp-edged cut weapon, be not lacerated. It is
pointed out that all the prosecution witnesses improved their
version only after going through the postmortem report of the
deceased and, thereafter stated before the learned trial court that
the deceased received lacerated wound as he received injuries
by back of farsa, which is a blunt part. It is also pointed out by
learned counsel that the Investigating Officer of this case
recorded the fardbeyan of PW-7 at about 8:00 PM on the date of
occurrence in the clinic of PW-2 Dr. Raj Kishore Chaudhary
but, same was communicated to the concerned Magistrate only
on 10th. The Investigating Officer of this case has not even
visited the place of occurrence on same day, rather he visited on
09.09.1992 and, therefore, any tampered soil and grass as
claimed to be found on place of occurrence are not safe to be
relied upon in support of the occurrence. In support of his
submission as far delay of registration of F.I.R. is concerned, he
relied upon the judgment of Hon'ble the Supreme Court in the
case of Kailash Singh vs. The State of Punjab reported in AIR
1972 SC 2679. While concluding argument, learned counsel for
the appellants-accused submitted that by taking note of oral
evidences in totality as deposed by several eye-witnesses during
the trial, it appears that the witnesses have completely resiled
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
from their earlier statement for which, a proper attention was
drawn and was contradicted with official witnesses, as doctor
and the Investigating Officers and same is not safe to be relied
upon in view of Section 145 of the Indian Evidence Act. In
support of his submission, he has relied upon the judgment of
Hon'ble the Supreme Court as reported in the matter of State of
Rajasthan vs. Kartar Singh, reported as (1970) 2 SCC 61.
14. On the other hand, Mr. Sujit Kumar Singh,
learned APP appearing on behalf of the Respondent-State duly
assisted by Mr. Ajay Kumar Thakur, while appearing on behalf
of the informant submitted that there is no any apparent reason
to disbelieve PW-7 as an injured witness. It is submitted that the
contradictions which were pointed out by learned counsel
appearing on behalf of the appellants-accused are minor in
nature and, as such, same may not be taken into consideration in
view of the report of Hon'ble Supreme Court as relied upon by
learned counsel for the appellants itself i.e. Balu Sudam
Khalde (supra). It is also pointed out by learned counsel
appearing on behalf of the informant that the nature of injury
qua weapon as alleged to be caused injuries cannot be said a
major contradiction on the basis of which the entire prosecution
case be disbelieved, otherwise supported by injured witnesses
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
and several eye-witnesses of the occurrence. It is submitted that
the Investigating Officer of this case clearly deposed before the
court that he found tampering mark of mud and grass near to the
place of occurrence along with drop of red colour blood on the
kharanza road and also on grass, which suggest in favour of
occurrence. It is also submitted that merely on the ground of
relation, the deposition of an eye-witness cannot be discarded
until and unless it is not appearing that said related witnesses are
interested witness. While concluding argument, learned APP
submitted that the motive of the occurrence is clearly
established during the trial i.e. previous enmities out of land
dispute, which is also appearing from the fardbeyan authored by
PW-7, who is an injured eye-witness of the occurrence, whereas
it is submitted that it is a case of direct evidence and, therefore,
the motive is of least concern.
15. We have considered the submissions canvassed
by the learned counsel appearing for the parties. We have also
examined the entire evidence produced by the prosecution
before the Trial Court.
16. It would be apposite to discuss all evidences,
which are available on record as to re-appreciate the same,
which is necessary for just disposal of present appeal.
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
17. PW-1 is Manoj Kumar Jha, who is son of
deceased Anant Narain Jha, deposed in his examination-in-chief
that the occurrence took place seven and half months ago on
Tuesday at about 12:00 hours, while his father was going with
his uncle namely, Anil Kumar Jha (PW-7) to Darbhanga for
treatment. While he was returning after sending his father and
uncle for Darbhanga, heard alarm near the house of accused
Tripit Narain Jha. He rushed there immediately and found that
his father is lying over there unconscious. He found injury on
head of his father from where blood was oozing. His uncle was
also lying over there and his right leg was found bleeding due to
cut injury, when he was in process to lift his father, appellant-
accused, namely, Palan Jha assaulted on his neck with farsa
having intention to cause his death, which was stopped by him
by hand causing cut injury on his hand, thereafter, he was
assaulted by the appellant-accused, Durga Nand Jha. The
appellant Tripit Narain Jha also gave order to kill him
whereafter, appellant Palan Jha again gave farsa blow upon him
which hit to his shoulder. The said witness further deposed that
the appellants Arun Kumar Jha, Palan Jha were equipped by
farsa whereas appellant Durganand Jha was equipped with
lathi. Accused Tripit Narain Jha snatched black colour bag from
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
the hand of his uncle. When he raised alarm, thereafter,
Balendra Jha (PW-3), Ram Babu Jha (PW-4), Sitapati Barhi
(PW-9), Shiban Paswan (PW-5) and others arrived at the place
of occurrence, whereafter, accused-appellants fled away.
Thereafter, he brought his father and uncle to Benipur for their
treatment where private doctor advised him to shift his father for
DMCH, whereas his uncle received his treatment there only. On
said advice of doctor at Benipur, he rushed immediately to
DMCH at Darbhanga. He identified the letter of reference,
which was issued to him by Dr. R.K. Chaudhary (PW-2) at
Benipur referring his father to DMCH, which on his
identification was exhibited before the learned Trial Court as
Exhibit-1. It was also deposed that primary treatment of his
father was done at DMCH, Laheriasarai and on same day,
through ambulance, he was referred to Patna for better
treatment, where his father was declared brought dead. He
received his treatment at PMCH, Patna. No police officer was
turned up, as it was night and on the next day, at about 11:00
AM, police officer came there and recorded his statement,
which he identified before the court and was taken on record
with mark- 'X'. The said witness further deposed that after
recording his statement, inquest report of his deceased father
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
was prepared by Police Inspector, where he signed as a witness.
He also identified the signature of one Phani Kant Chaudhary,
who is his maternal uncle, which on his identification exhibited
before the court as Exhibit-2 and 2/1 respectively. After
preparing inquest, the dead body of his father was sent for
postmortem by police officer. He stated that occurrence took
place out of land dispute regarding a land having an area of 16
dhur, which was raised one and a half month prior to this
occurrence and till occurrence, it was continued. He identified
all accused persons before the learned trial court and stated that
they all are his co-villagers.
17.1. On cross-examination, it was deposed by him
that he reached Benipur between 3-3:15 PM, where he did not
ask anyone to report this occurrence to the police, as he was
busy with treatment of his father. It was stated by him that he
first time made his statement before the police regarding the
occurrence at Patna. It was deposed by him that at first instance,
he saw his father lying on the road, which goes towards Anatur
chowk from his house. He failed to disclose as to see any other
injuries upon his deceased father but, deposed regarding one
bleeding injury on his head. When he reached at spot, he found
blood oozing from injury as received by his father. Blood was
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
also spread over ground and on road also. He sent his father to
Benipur from place of occurrence itself by carrying him on
wooden cot and he went to his home as to arrange money and,
subsequently, reached Benipur after 45 minutes. He remained
for 30-35 minutes at the residence of doctor, where his father
was taken away. He deposed name of the doctor as Dr. R.K.
Chaudhary (PW-2). He did not show his injury to the said
doctor. He did not even show his injury to the doctor of DMCH,
Laheriasarai. He came to Darbhanga from Benipur by hired jeep
and reached there between 5-6 PM along with Pramod Kumar
Jha, Phani Kant Chaudhary and Ram Sharan Jha. It was stated
by him that he received injury on the same place where his
father was lying on the ground. It was further stated by him that
he was assaulted by two persons with farsa, which was having
depressed middle portion with raised ends fitted with wooden
stick (danda) of 2 ½ -3 human hands. He received only one cut
injury, which was bleeding and was not fell down on ground
during occurrence. He deposed to show his injury at Patna to Dr.
P.C. Jha, who was examined as PW-6. He was never admitted to
hospital and received treatment at emergency ward of PMCH,
Patna. It was deposed that the prescription regarding his injury
received at Patna was handed over to Sub Inspector of Police
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
but, it was not taken by him. It was deposed by him that during
the process of assault by farsa, he raised his both hands and it
was not stopped by his palm. He also received lathi injury. His
statement was recorded by local police on 12.09.1992. He also
stated that when he reached at place of occurrence, Anil Kumar
Jha (PW-7) was also lying on the road and his injury was also
bleeding. He failed to disclose the exact place of injury on leg of
Anil Kumar Jha. An attention was drawn regarding his
statement where he deposed that he stated before the police at
Patna and also at Baheri that accused-appellant Palan Jha
assaulted on his neck by farsa with intention to cause his death.
He deposed that his father was ill prior to one and half months
of this occurrence and he was operated for his throat and ear by
Dr. R.N. Jha. It was specifically stated by him that the land
dispute with accused person was continued prior to one and half
month of the present occurrence. It was also deposed by him
that in this connection no complaint was made to the S.D.O. or
any other officer. He denied the defence suggestion that no such
occurrence was took place and also that place of occurrence was
tampered by him, injury report was obtained and there was no
blood at place of occurrence.
18. PW-2 Dr. Raj Kishore Chaudhary has stated in
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
his examination-in-chief that in September, 1992, he was posted
as Medical Officer, State Dispensary, Bahera. He stated that on
08.09.1992 at 3.45 PM, he examined the injured Anil Kumar Jha
(PW-7) and found the following injuries on his person:-
"1. Blunt cut injury 2" x 1/4" x skin deep with more
depth in the centre and bleeing inside over anterior
aspect of right first metacarpal region up to the web
between 1st and 2nd toe."
2. Tenderness over face, back and left shoulder. No
specific injury."
18.1. He opined that Injury No.1 was caused by blunt
cutting instrument and was simple in nature and Injury No. 2
was caused due to hard and blunt substance and was also simple
in nature. He further opined that the age of injury was within
six hours. He further opined that the injury no.2 might be
caused by back portion of pharsa. It might not be caused by
lathi, but it may be caused by fists or by fall on hard surface.
He further stated that injury report is his pen and bears his
signature, which was marked as Exhibit-3. He further stated in
his examination-in-chief that on the same day, he examined
Anant Narain Jha (deceased) and referred him for D.M.C.H.,
Laherisarai, without noting his injuries. He further stated that at
the time of examination, the patient was unconcious and his
right pupil was dilated. He further stated that the letter of
reference is in my pen and bears his signature, which is already
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
exhibited as Exhibit-1. He further stated that I had examined
both the patients at Benipur.
18.2. During cross-examination, the said witness stated
that on that day he examined both patient at his residence. HIs
quarter at Benipur lies at a distance of 3 km from Bahera State
Dispensary. He further deposed that he had not examined the
patient in his private capacity. He further stated that he had not
mentioned about these patients in any Out Door Register of the
Dispensary. He further stated that he maintains the register of
the patients examined by him. He had not maintained details in
his register about the patient to whom he had referred to
D.M.C.H., Laheriasarai. He further stated that it is difficult for
him to say that on that day he had examined only these two
patients. He further stated that he had examined these two
patients. He stated that he did not remember that at what time
on that day, Sub Inspector of Police of Bahera Police Station
had come to his clinic. He had not shown that register on which
he had noted the reference of the aforesaid first injured to the
Sub Inspector of Police. He further stated that he had not
produced that register before any Police Officer. During cross-
examination, to the court question, said witness deposed that he
does not remember that on said date whether he had given any
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
certificate as Exhibit-3 to the Sub Inspector of Police. The
injury report does not bear date. He further deposed that he had
granted the certificate and given it to Sub Inspector of Police on
18.09.1992. He has further stated that the above deposition
which he had given is based on the injury report (Exhibit-3)
and he had not stated anything from his memory. He further
stated that he got printed letter pad in his name. He further
deposed that the reference letter through which he had referred
Anant Narain Jha is on his printed letter pad whereas injury
report granted to first injured is not on printed pad and it was
given on the back of the police requisition. He further stated
that he had written the injury report Exhibit-3 after copying it
from some other papers. He further deposed that injury no.1 on
the person of Anil Kumar Jha (PW-7) is not possible from a
dash (thes) of a peg fixed in the ground during the course of
walking, but, if an object having a sharp edged, falls from
above, then such injury might be possible. He had denied the
defence suggestion that it is not a fact that Anil Kumar Jha had
no injury and he had issued him false injury report. He further
denied the suggestion that Anil Kumar Jha was not admitted in
Bahera State Dispensary for this case. He further stated that he
had not mentioned the time of examination of Anant Narain Jha
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
in his reference letter to D.M.C.H. and he had not given any
first-aid. He further stated that he had given Efcorlin-one vial
I.V., which is a life saving drug. He deposed that he did nothing
for checking the bleeding as it was bandaged and did not open
the bandage. He further deposed that he had not taken the
signature of the patients on the aforesaid injury report or
reference letter. On re-examination, he stated that he had
brought injury register of Bahera State Dispensary from which
he had copied (Exhibit-3). He further deposed that when he
examined Anil Kumar Jha (PW-7) he had noted his injuries on
his register at page-5 which is in his pen and bears his signature
and on his identification, same was marked as Exhibit-4/5. He
further stated that he had issued carbon copy of OD slip to the
police. The carbon copy was prepared by him along with the
original in the same process, which is in his pen and bears his
signature and marked as Exhibit-6. On further cross-
examination, he had stated that he had not produced the register
before the police because this is his personal register. He further
deposed that the certificate on the first page of the register was
given by him on 2.1.1992. At this stage, a question was asked
by court as:-
Q. Whether there is any need to give certificate
regarding the pages in a personal register ?
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
Ans. I had given this certificate for my own satisfaction.
He further deposed that he was posted in Bahera State
Dispensary since December 1990 and there are three other
doctors in that hospital. The first entry in this register is of
22.05.1992. In the digit 2 of the date, 22.5.92 at the top of page
1, of 2.6.92 on the reverse side of page 1, at the bottom and of
20.7.92 at the bottom on the reverse side of page 3, there was
overwriting (by the court). He further deposed that there were
only 5 entries of 1992 commencing from 22.5.1992 to 8.9.1992,
the entries of 1993 started. He stated that it is not a fact that all
the 5 entries of 1992 appeared to have been written in the same
sitting by the same pen. He further deposed that in 1993, the
first entry was of 1st March 1993. Next two entries were of 30th
March 1993 and thereafter five entries were of 17.4.1993 and
the last entry in this register was of 28.5.1993. At this stage,
another question was asked by court to him as:-
Q. Is it not a fact that ink used in writing entries in 1993
are lighter than the ink used in writing entries in 1992?
Ans. I can not perceive it.
He further stated that it is not a fact that the register
was new and had been freshly prepared for this case. He further
deposed that it is not a fact that all the pages of this register
were straight and there were no twist on the edges. He further
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
stated that it is not a fact that this register had been prepared
intentionally for helping the prosecution. He further deposed
that he does not know whether other doctors posted in Bahera
State Dispensary also maintained personal register like this. He
stated that he had not mentioned the name of deceased Anant
Narain Jha in O.D. slip which was exhibited as Exhibit-6. He
further deposed that except two injured persons, one, which was
referred by him to D.M.C.H. and the other about whom he had
mentioned in the register that he had not examined any other
person.
19. PW-3 is Balendra Jha, who deposed in his
examination-in-chief that occurrence took place at about 12:15
AM on 08.09.1992 and the day was Tuesday. At that point of
time, he was going for betel shop. He was followed by deceased
Anant Narain Jha and Anil Kumar Jha (PW-7) and as they
reached near to the house of accused Tripit Narain Jha, he heard
alarm as 'Bachao Bachao' and found that accused Tripit Narain
Jha was giving order to other accused-appellants to kill,
whereafter, appellant Arun Kumar Jha assaulted the deceased
Anant Narain Jha by using farsa on his head. To save himself
from said assault, the deceased received injuries from the back
part of the farsa, he became unconscious and fell to the ground.
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
The blood was also started oozing. Anil Kumar Jha (PW-7)
came forward to save Anant Narain Jha but, he was given a
farsa blow by appellant Sitaram Jha, which hit on his leg. Both
of them were also assaulted by lathi by appellant-accused
Durganand Jha. The appellant Tripit Narain Jha snatched hand
bag from Anil Kumar Jha and accused-appellant Durganand Jha
snatched wrist watch. When Manoj Kumar Jha (PW-1) came
and was in process to lift his father by that moment, on the
order of accused Tripit Narain Jha, he was assaulted by
appellant-accused Palan Jha by farsa, which hit on his wrist. It
was deposed that appellant Palan Jha gave second blow of farsa
on Manoj Kumar Jha, which hit to his shoulder. He was also
assaulted by lathi by accused-appellant Durganand Jha. When
people gathered there, appellant-accused fled away from the
place of occurrence. It was deposed by him that Anant Narain
Jha and Anil Kumar Jha were taken to doctor at Benipur, where
he also accompanied. He identified accused-appellant before
the trial court.
19.1. On cross-examination, he deposed that he was
for two hours at Beniput but, failed to depose anyone out of 5-
10 persons, who accompanied him for Benipur. He came back
to his home after two hours. Subsequently, he stated that he
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
went to Motipur from Benipur and returned back to home on
next morning at about 6:00 AM and, thereafter, he met with
Police Inspector, who came to his home after two hours of his
arrival. He deposed that police Inspector (Daroga) visited place
of occurrence at about 9:00 AM. He failed to depose that he has
no knowledge as to when the informant Manoj Kumar Jha
(PW-1) returned from Benipur, but he found him at place of
occurrence at 9:00 AM. His statement along with the statement
of Ram Babu Jha (PW-4) were recorded at place of occurrence
at about 9:00 AM. He deposed on his own that his earlier
deposition that wrist watch was of Anil Kumar Jha is wrong
rather it was of deceased Anant Narain Jha, which was not
objected by learned advocate appearing on behalf of the
appellants-accused before the trial court. It was deposed by him
that when he reached, he found blood was spread over road. It
was spread on different places. It was in maximum radius
equivalent to one and half hand except that he did not find
blood-stains anywhere. He deposed to saw the farsa, which was
used as a weapon during the occurrence, which was depressed
in between width raised ends fitted with wooden stick. Anant
Narain Jha (deceased) received injury with back portion of the
farsa as a result of which, a ruptured injury developed causing
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
excessive bleeding, which stained his dhoti and kurta, which he
was wearing at that time. Mark of injury was only on head of
the deceased. It was deposed by him that blunt back portion of
farsa was having width equivalent to 4-5 fingers. He was
available at the place of occurrence along with 5-6 persons but
they were not interfered in occurrence as to save Anant Narain
Jha (deceased). Initially, it was deposed by him that when
Anant Narain Jha was assaulted, he was at a distance of three
lagga (one lagga is equivalent to 12 human hands) towards
south but, subsequently, he said that he was as close to 3-4 hand
in south direction when deceased was assaulted. It was stated
by him that when assault with farsa was made on Anant Narain
Jha (deceased), he did not moved his hand towards front and
not even tried to run away. The entire occurrence was for 2-3
minutes. An attention was drawn by defence where he deposed
that he stated before police when farsa blow was given to Anant
Narain Jha (deceased) by accused-appellant Arun Kumar Jha,
he moved his head down. While narrating the occurrence, he
deposed that injured Anil Kumar Jha received injury from front
side of farsa. The farsa was blown from southern direction. No
one has assaulted Anil Kumar Jha (PW-7) by farsa second
time. He deposed that in the meantime, Manoj Kumar Jha (PW-
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
1) came at the place of occurrence started to lift his father and
during the course of lifting, he received two farsa blow one by
front and another by back side of farsa. It was deposed by him
that accusedTripit Narain Jha snatched bag prior to assault of
Manoj Kumar Jha (PW-1). An attention was drawn by defence
counsel at this stage, where he denied to made any statement
before the police that bag was snatched from the hand of Anil
Kumar Jha when all three received injuries i.e. Anant Narain
Jha (deceased), Anil Kumar Jha (PW-7) and Manoj Kumar Jha
(PW-1). He denied the defence suggestion that no such
occurrence took place and deposed falsely. He also denied that
he was not an eye-witness of the occurrence.
20. PW-4 is Ram Babu Jha. He also stated in his
examination-in-chief that date of occurrence was Tuesday and
time was between 12-12:15 PM. He arrived at the place of
occurrence on alarm and found that Arun Kumar Jha, Sitaram
Jha, Palan Jha were equipped with farsa whereas Durganand
Jha was equipped with lathi and were surrounded Anant Narain
Jha and Anil Kumar Jha along with Tripit Narain Jha. He
deposed that on order of Tripit Narain Jha, Arun Kumar Jha
assaulted Anant Narain Jha by farsa on his head as a result of
which, his head ruptured and bleeding was started. When Anil
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
Kumar Jha went to save Anant Narain Jha, he was assaulted by
Sitaram Jha by farsa on his neck, which hit on his leg, as he
turned himself back. Tripit Narain Jha snatched black colour
bag from the hand of Anil Kumar Jha and Durganand Jha
snatched wrist watch from the hand of Anant Narain Jha
(deceased). Appellant-accused Durganand Jha also assaulted
Anil Kumar Jha and Anant Narain Jha by lathi. In the
meantime, Manoj Kumar Jha (PW-1) came there and the
moment he started to lift his father Anant Narain Jha, the
appellant-accused Palan Jha assaulted him with farsa. During
the process of assault, as he stand up, for said reason, injury
was caused on his hand. Another assault was caused by farsa by
appellant-accused Palan Jha which hit shoulder of Manoj
Kumar Jha. He also accompanied injured Anant Narain Jha (by
that time) and injured Anil Kumar Jha while they were carried
to Benipur and first of all they went to the house of Dr. R.K.
Chaudhary, where Dr. R.K. Chaudhary (PW-2) gave him an
injection immediately and referred him for DMCH, Laherisarai
and, thereafter, he treated Anil Kumar Jha. He identified all five
accused persons present before the trial court including the
appellants-accused. He deposed that Sitapati Barhi (PW-9) and
Siban Paswan (PW-5) are not the labourer of informant but,
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
they were also engaged by others. He denied the defence
suggestion that both these witnesses are the exclusive labour of
informant. He deposed that at first instance, he saw only 4-5
persons at the place of occurrence. He deposed that when he
reached at place of occurrence, he did not find Anant Narain
Jha in lying condition and before his arrival Siban Paswan
(PW-5) reached at place of occurrence. It was stated by him
that in first phase of occurrence, assaults were made and
thereafter snatching took place and subsequent thereafter,
Manoj Kumar Jha (PW-1) reached there. He deposed that when
he saw appellants-accused, he found they were surrounding
Anant Narain Jha, Anil Kumar Jha and in that condition, they
assaulted both of them. Anant Narain Jha after receiving injury
became unconscious and fell down on the ground. It was
deposed by him that Manoj Kumar Jha was assaulted by two
persons and was also assaulted by lathi while he was standing.
He claimed to see lathi assault given to Manoj Kumar Jha. It
was deposed by him that when farsa assault was made to Manoj
Kumar Jha, it was not stopped by raising his hands. On drawing
his statement, it was stated by him that he stated before the
Police Inspector that accused Tripit Narain Jha gave order to
kill. He denied the defence suggestion that he deposed falsely.
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
21. PW-5 is Siban Paswan, who deposed that
occurrence took place between 12-12:15 PM on Tuesday. On
the day and time of occurrence, while he was returning after
cutting wooden log for fuels (jalawan) and reached near to the
house of accused Tripit Narain Jha, heard public alarm (hulla)
and found that appellants-accused Arun Kumar Jha, Sitaram
Jha, Palan Jha (all equipped with farsa), Durganand Jha
equipped with lathi and Tripit Narain Jha having empty hand
were surrounding Anant Narain Jha (deceased) and Anil Kumar
Jha (PW-7). It was stated by him that on the order of accused
Tripit Narain Jha to kill them, Arun Kumar Jha assaulted Anant
Narain Jha with farsa, which hit his head. The head of Anant
Narain Jha ruptured and he fell down. While Anil Kumar Jha
was started to lift Anant Narain Jha, accused-appellant, Sitaram
Jha assaulted him with farsa, which hit his leg. Durganand Jha
also assaulted with lathi to Anant Narain Jha on his head and
assaulted Anil Kumar Jha on his face, back, eyes etc. He further
deposed that Tripit Narain Jha snatched bag from the hand of
Anil Kumar Jha and Durganand Jha snatched wrist watch from
the hand of Anant Narain Jha (deceased). No one came to save
them. Soon thereafter, Sitapati Barhi, Ram Babu Jha, Ram Udar
Kunwar, Balendra Jha etc. witnesses came there resultantly,
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
accused-appellants run away. Later on, Harshit Jha, Lalit Jha,
Hari Das, Hari Sahni came there from village and after lifting
Anant Narain Jha taken him Benipur on wooden cot. Blood was
oozing from his wound. At this point of his examination-in-
chief, a court question was asked to him.
Q. Whether any person received injury beside Anant
Narain Jha and Anil Kumar Jha?
Ans. On raising this question, the learned defence
counsel has raised objection that by asking such
questions it would amount to give a suggestion that
whether any person came forward to save Anil Kumar
Jha and Anant Narain Jha after his specific deposition
that no one came to save them.
This submission was accepted by the learned trial court
and thereafter, this witness exempted to reply aforesaid court
question. This witness has identified all the appellants-accused
present before the court.
21.1. On cross-examination, it was stated by him that
on the day of occurrence, he was working as a labour for one
Jogendra Jha. He is not regular employee of Jogendra Jha and
work for him, whenever he engaged. It was also stated by him
that before giving his statement to the police, he stated about
the occurrence to Ramphal Sahni and Ram Sahni. He stated that
he did not make any statement before Sub Inspector (Daroga
Ji) that he heard hulla (public alarm) in front of outhouse
(darwaja) of accused Tripit Narain Jha. He stated that the chain
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
of wrist watch was white in colour and out of snatching, no
scratch wound appears on wrist. He denied the defence
suggestion that his residential plot was given by Baikunth Jha,
who is the grand father of Anil Kumar Jha (PW-7). He denied
the defence suggestion that no such occurrence took place as he
deposed. He also denied the defence suggestion that no blood
was spread over the place of occurrence.
22. PW-6 is Dr. Prem Chandra Jha, who was posted as
Suregon on Duty in Indira Gandhi Central Casualty of PMCH,
Patna in the surgery wing as on that day, at 11:15 PM, he had
examined injured Manoj Kumar Jha and found the following
injury on his person:-
"A cut with lacerated margin 1 ½" x 1/2" x 1/8" over
right forearm 2" over right wrist joint on dorsal
aspect."
The doctor has opined that the injury was simple in
nature and was caused by lathi or hard blunt substance. The age
of the injury was more than six hours. He further opined that
the said injury could not be caused by a farsa with blunt edge.
He identified the injured Manoj Kumar Jha (PW-1) before trial
court. He had identified the injury report which he had issued
on requisition by the police on 05.02.1993. He stated that he put
his signature with his own pen and identified his signature on it
and on his identification, the trial court has exhibited the same
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
as Exhibit-3/1. He deposed that when he examined the injured,
he noted the injuries in O.P.D. register (Out Door Patient
Register) and on the direction of court, he brought the said
register in the court. He further deposed that he noted the injury
of aforesaid injured at page 125 of the register. It was deposed
by him that the portion at page 125 has been written by him
under his signature, which was exhibited before the court as
Exhibit-3/2. It was deposed by him that the upper portion of
page 125 and the bottom portion of page no. 124 with respect to
the aforesaid injured have been written by House Surgeon Dr.
Arun Kumar Singh and he identified his hand-writing and
signature on the register, which was exhibited by Exhibit-3/3.
It was deposed by him that the portion written by House
Surgeon was seen by him before examining the injured and
found that he had originally written that injury was due to fall,
but, he struck it and correct it by writing the words 'alleged
assault' and put his initial there. He further stated that he did not
put date and time below his initial, which he put there. He
further stated that he did not exactly remember as to after how
many hours of the examination of the patient by Dr. Arun
Kumar Singh, he wrote the portion, which was marked as
Exhibit-3/2. He further stated that he has not mentioned the
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
time when he wrote that portion. He further stated that the
injury was only skin deep and superficial in nature. He denied
the defence suggestion that Manoj Kumar Jha had no injury and
he had given incorrect report about him.
23. PW-7 Anil Kumar Jha, who is the informant of
this case stated in his examination-in-chief that the deceased
Anant Narain Jha was his cousin brother, who was murdered on
08.09.2012 in an occurrence, which took place between 12-
12:15 AM, while he along with his deceased cousin brother
were going to Darbhanga. He was accompanied with his
deceased brother, as he has also to purchase the motor spare
parts for the tractor. He identified prescription of Dr. R.N. Jha,
which was in his hand-writing and on his identification, it was
exhibited as Exhibit-4. It was stated that while they were
reached near to the house of accused Tripit Narain Jha, who
was sitting in his out-house along with other appellant/accused
ordered to kill them and, on his said order, the appellants-
accused Arun Kumar Jha, Palan Jha and Sitaram Jha who were
equipped with farsa in their hands, appellant-accused
Durganand Jha who was equipped with lathi and co-accused
Tripit Narain Jha (empty hand) came near to them. Thereafter,
the appellant-accused Arun Kumar Jha gave a farsa blow on
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
deceased, which hit his right side of the head by its back
portion, the deceased on that point of time became unconscious
and fell down and as he went to save him, the appellant-accused
Sitaram Jha gave a farsa blow on his neck, which in process of
saving, hit his right leg. In the meantime, the appellant-accused
Durganand Jha also came and assaulted both of them with lathi.
It was deposed by him that he had a bag containing Rs. 7,500/-,
which was snatched by co-accused Tripit Narain Jha. The
appellant-accused Durganand Jha snatched wrist watch form
the hand of deceased. Soon thereafter, the son of deceased,
namely, Manoj Kumar Jha (PW-1) came over there and while
he was started to lift his father, the appellant-accused Palan Jha
gave a farsa blow to him, which was stopped by him using his
hand resultantly, he received cut injury. The appellant-accused
Durganand Jha also assaulted Manoj Kumar Jha with lathi. It
was deposed that during the course of occurrence, Balendra Jha,
Rambabu Jha, Ram Udar Kunwar, Siwan Paswan, Sitapati
Barhi came over there, who are co-villagers. When they were
protested the occurrence, appellants-accused run away. After
leaving place of occurrence by appellants-accused, he along
with his cousin brother Anant Narain Jha were brought to
Benipur, where he was treated and Anant Narain Jha was
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
referred to D.M.C.H. His statement was recorded there by
Police Inspector (Daroga Ji), which was read over to him and
thereafter, he signed his fardbeyan, which he identified before
the learned trial court and on his identification, same was
exhibited as Exhibit-2/2. It was deposed that his injuries were
also seen by Police Inspector. He deposed regarding cause of
occurrence, as dispute regarding 16 dhurs of land which
exchanged with accused-appellant under oral agreement before
40 years ago, where accused Tripit Narain Jha without returning
their share of land asked him to return his exchanged share.
This dispute was also the subject of panchayati, which was held
before two days of the occurrence. He identified all the
appellants-accused before the trial court and stated that he
shown the place of occurrence to the Police Inspector on the
next date of occurrence.
23.1. During cross-examination, he stated about the
disputed land of 16 dhurs with all its description and
boundaries but, failed to depose that he has any knowledge as
to which appellants-accused said land was given. On attention,
he stated before the learned trial court that he made this
statement in FIR and in his re-statement that the land of his
share was withheld by co-accused Tripit Narain Jha and he was
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
demanding his own exchanged piece of land. It was stated that
panchayati was done and was not documented. It was stated by
him that Exhibit-4 i.e. prescription of Dr. R.N. Jha was not
shown to Sub Inspector (Daroga Ji). He denied the defence
suggestion that he obtained prescription of Dr. R.N. Jha later
on. He stated that he gave information through his fardbeyan
that accused Tripit Narain Jha was sitting at his out-house
(darwaja) along with accused persons and same fact was also
stated before the police in his re-examination during the course
of investigation. It was stated that all three farsa were of same
type where iron part was of about 1-1 ½ bitta. By giving
description of said farsa, he stated further that it was depressed
in between with raised ends having fitted wooden stick which
was of 2-3 hand. It was stated that when Arun Kumar Jha
hurled farsa on Anant Narain Jha, at that point of time, his face
was towards south and Arun Kumar Jha was at a distance of 3-4
hands. There were no any obstacles between them. It was stated
that farsa was hurled by using both hands by taking it first up
and thereafter to down. It was stated that farsa blow turned
before causing injury on head and as such, injury was caused by
blunt and back portion of farsa (fasat) as a result of which, the
head of Anant Narain Jha was ruptured and it was not caused
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
cut injury. It was stated that when Anant Narain Jha was
assaulted, he was standing near to him at a distance of 1-1 ½
hand and when he came to save him, he was also assaulted by
appellant-accused Sitaram Jha. He failed to depose that whether
farsa hit straightway to the head of Anant Narain Jha or in any
manner. It is stated that when he bent down to lift him farsa
was also hurled upon him by appellant-accused Sitaram Jha but,
he turned himself to save and as a result, he received injury on
his right leg. He also fell to ground and in that condition he was
assaulted by lathi. He received three lathi blows. It was stated
that the lathi blow was also given on the head of deceased
straightway. A question was asked by the court at this stage.
Q. Whether any blood was oozed out of lathi blow
from the head injury?
And. The blood was already oozing.
It was also stated by him that Manoj Kumar Jha (PW-
1) was also assaulted. He received farsa blow while he was
standing. He did not fell to the ground out of farsa blow. He
received cut injury out of farsa blow and also 2-3 lathi blow. At
this stage, a farsa was produced before the court by defence
counsel showing to this witness as to whether that farsa was
same or different, where it was stated that the farsa used for
assault was of same design but ends of those farsas were more
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
raised and the back part was also having more width. Those
farsas were also of more in length. The farsa produced by
defence was exhibited by Exhibit-A/1 before the trial court. It
was stated by him that the back part of farsa which was used
during the occurrence is of width of four fingers whereas the
farsa which produced before the court having width of two
fingers only raised portion was also more by one finger. On
drawing attention, he stated that he made a statement in his
fardbeyan that farsa, which was hurled by Arun Kumar Jha on
deceased turned and caused injury on right side of his head by
its blunt part. He denied the defence suggestion that he made a
statement in his fardbeyan that appellant-accused Arun Kumar
Jha with intention to cause death of his cousin brother Anant
Narain Jha came near to him and waived 'samadhan farsa' on
his head. He also stated that he made statement in fardbeyan
and re-statement also that farsa hit on right side of the
deceased. He denied the defence suggestion to file any protest
petition before Inspector of Police, Benipur and denied to
engage any advocate naming Divakar Jha but, he identified his
signature on an application shown to him, which was exhibited
as 'A' having signature of Sri Divakar Jha, advocate also, which
was exhibited as Exhibit-A/1. On court's question, he stated
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
that he studied upto class-X. He stated to file his vakalatnama
on same day, which was mentioned over application, which on
his admission, was exhibited as Exhibit-B, where he mentioned
that appellant-accused Durganand Jha assaulted by how many
lathis to deceased and his son Manoj Kumar Jha (PW-1). He
failed to recall whether he mentioned in said protest that
deceased Anant Narain Jha was referred to D.M.C.H. as he
received serious injuries without giving any treatment. He
denied the suggestion as no such occurrence took place and also
nature of injuries, which were disputed by learned defence
counsel. He also denied the suggestion that snatching of Rs.
7,500/- and wrist watch were not taken place He denied
suggestion that deceased received injury at dalan (outhouse) of
one Ram Saran Jha (which was under construction) out of
falling of bricks on his head and taking advantage of situation,
the present case was lodged against the appellants-accused.
24. PW-8 is Dr. Umesh Chandra Isser, who has stated
in his examination-in-chief that on 8th September, 1992, he was
posted as Assistant Professor in the Department of Surgery in
D.M.C.H., Laheriasarai. On that day at 5:00 PM, he had
examined one Anant Narain Jha and found the following
injuries on his person:-
"The patient was unconscious with a lacerated
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
wound 2 ½" x 1/2" x Bone deep over right side of
scalp. The age of injury was within six hours.
Advised X-ray of skull."
The said witness further stated that he has produced the
Injury Register of Surgical (Emergency) Ward of D.M.C.H. He
further deposed that the said entry was made in his pen and
bears his signature and on identification, same was exhibited as
Exhibit-3/4. He further deposed that the patient was admitted
in D.M.C.H. in the unit of Professor P.S. Sahay. He further
stated that the entries and writing below the line of Bed Head
Ticket of aforesaid Anant Narain Jha, were made in his pen and
bears his signature, which was marked as Exhibit-5. The said
witness further stated that the endorsement on the Bed Head
Ticket for referring the patient to Neuro Surgery Department of
P.M.C.H. Patna is in pen of Dr. Anil Kumar Sinha, which was
marked as Exhibit-5/1.
24.1. During cross-examination, the said witness has
stated that he was not examined by any Officer in this case. He
further stated that he cannot say whether this injury register and
Bed Head Ticket were ever produced by any police officer in
connection with this case. He further stated that page no. 1078
of the register contains entry in his pen and does not bear the
signature or initial of any person except him. He further stated
that whenever such patient comes, he first goes to Emergency
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
Ward, where necessary entries were made in the Admission
Register. He further deposed that this patient came in
Emergency Ward at 5:00 PM, where he was examined by him,
as he was on duty. He further deposed that he is not sure
whether the entry in the Admission Register of Emergency
Ward relating to the admission of this patient was made by him
or by Assistant Casualty Officer on duty. He further deposed
that injuries are not noted in the Admission Register. The
entries (Exhibit-3/4) relating to Anant Narain Jha are noted on
the last page of the injury register. He also deposed that after
the aforesaid entry, no other entry was made in this register. The
said witness stated that just below the writing 'P.S.K. Sahay
Unit' Anant was first written and then it was struck down in the
same process and Anant Narain Jha was written over there. The
said cutting does not bear his signature. He further deposed that
the size of injury was subsequently written by him in the short
space available after the word 'lacerated' and before the word
'over'. The said witness further deposed that in the other
entries at page nos. 1075, 1076 and 1077 dimension of the
injuries of the patient was not mentioned. He volunteers to say
that because injuries on page 1075 and 1077 are regarding burn
injuries and in such cases of burn injuries dimension of the
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
injuries were not noted, only the percentage of burned surface is
noted whereas in page no. 1077, the bruise was on the whole
lower back and due to that dimension of bruise injury was
noted. He further deposed that in the bed head ticket, name of
the patient has been written after some correction. He further
stated that he cannot say as to whether the X-ray of the patient
was done on that day or not. He further deposed that in the
endorsement marked as Exhibit-5/1, he has written that on
request, referred to Neuro Surgery P.M.C.H. He further said that
he cannot say as to who has written on the back side of Bed
Head Ticket, which was marked as Exhibit-5. He denied the
defence suggestion that the size of injury in entries, which was
marked as Exhibit-3/4 has been inserted subsequently after
receipt of the postmortem report. He further denied the defence
suggestion that the said entry is antedated.
25. PW-9 is Sitapati Barhi, who deposed before the
court that the occurrence took place on Tuesday between 12:00
- 12:30 PM. At that time, he was coming from Motipur and as
he reached near to the house of Balendra, he saw Anant Narain
Jha (deceased) and Anil Kumar Jha (PW-7) were going
together and as they reached near to outhouse (dalan) of Tripit
Narain Jha, they were surrounded from both sides by Tripit
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
Narain Jha, Arun Kumar Jha, Sita Ram Jha, Palan Jha and
Durga Nand Jha. On order of Tripit Narain Jha to kill them,
appellant -accused Arun Kumar Jha assaulted Anant Narain Jha
with farsa, who hit him on his head by its back portion. He fell
down and became unconscious. Anil Kumar Jha bent down to
lift Anant Narain Jha and at that very moment, appellant-
accused Sitaram Jha assaulted him by his farsa on his neck but
in course of saving himself, farsa became turned, which
resultantly, hit on his leg. Durga Nand Jha assaulted by lathi to
Anil Kumar Jha and Anant Narain Jha, Durganand Jha also
snatched wrist watch from the hand of Anant Narain Jha
(deceased) and Tripit Narain Jha snatched a bag from the hand
of Anil Kumar Jha. To save them, when Manoj Kumar Jha
(PW-1) came there and bent down to hold his father, Palan Jha
waived farsa blow on him, but as Manoj Kumar Jha, became
stand, as a result farsa hit on his wrist. When second assault
caused by Palan Jha by farsa to Manoj Kumar Jha, same was
hit on his shoulder. Durganand Jha also assaulted Anant Kumar
Jha by lathi. After assaulting them, accused persons ran away.
He identified all the accused appellants present before the court.
25.1. On cross-examination, he stated before the court
that he was not engaged by anyone on the date of occurrence
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
rather he was engaged by Sarpanch Shyam Bihari on the date
of occurrence, where he was continuously working from last 2-
3 days. He left the place where he was working between 11:00 -
11:30 PM, at first instance, he stated to saw seven persons at the
place of occurrence who were fighting, out of them, five were
appellants-accused and two were Anant Narain Jha (deceased)
and Anil Kumar Jha (PW-7). He saw the actual occurrence of
assault. They were surrounding the deceased and injured PW-7
for five minutes and at that point of time, there was no
conversation between them, neither there any alarm was raised.
It was stated that alarm was raised after starting of actual
assault. His statement was recorded by Police Inspector
(Daroga Ji) after 10-12 days of the occurrence. An attention
was drawn to him that he did not stated before police as when
he was coming he saw appellants-accused were assaulting
Anant Narain Jha, Anil Kumar Jha and Manoj Kumar Jha by
lathi and farsa but, deposed that he stated before Police that
while he was coming from Motipur and reached near to the
house of Balendra, he saw Anant Narain Jha and Anil Kumar
Jha were going together. He also deposed to state before police
that accused Tripit Narain Jha ordered to kill. It was deposed by
him that when farsa was hurled by appellant-accused Anil
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
Kumar Jha by using both hands taking it first upward, before
actual assault. It was stated that during the course of occurrence
farsa became turned. He also deposed to see the blood at the
place of occurrence. It was also deposed by him that while Arun
Kumar Jha holding Anant Narain Jha at that time, appellant-
accused Sitaram Jha hurled farsa on him. He also hurled farsa
by using both hands. Anil Kumar Jha (PW-7) received injuries
from sharp-edged of the farsa causing cut injury. It was also
deposed by him that Manoj Kumar Jha (PW-1) was assaulted
twice by farsa (fasat) where one injury was caused by sharp-
edged and second injury was caused by its back part. He
corrected himself that as he deposed above to hold Anant
Narain Jha by Arun Kumar Jha was typed inadvertently out of
typing mistake, rather it was Anil Kumar Jha who hold Anant
Narain Jha and same be read accordingly. It was stated further
that Durganand Jha after assaulting by lathi snatched a bag. He
stated that he generally works in two shifts i.e. from 8:00
-12:00 AM and thereafter from 2:00 - 6:00 PM. He denied to
depose falsely.
26. PW-10 is Ram Udar Kunwar. He also deposed in
his examination-in-chief that occurrence was of Tuesday, which
took place between 12:00-12:15 PM. By that time, he was on
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
his shop, which is in his house itself. He deposed that he heard
that accused Tripit Narain Jha ordered to kill while Anil Kumar
Jha having black bag in his hand were coming from north-south
direction along with Anant Narain Jha (deceased). He deposed
that when both of them came near to the outhouse (dalan) of
Tripit Narain Jha, five persons namely, Arun Kumar Jha,
Sitaram Jha all equipped with farsa, accused-appellant
Duraganand Jha equipped with lathi and Tripit Narain Jha
empty hand surrounded them, where on order of Tripit Narain
Jha, Arun Kumar Jha hurled farsa on Anant Narain Jha
(deceased) which hit on his right side of his head, resultantly
his head was ruptured. Blood was started oozing and Anant
Narain Jha fell down. Anil Kumar Jha (PW-7) while was lifting
Anant Narain Jha (deceased), Accused-appellant Sitaram Jha
assaulted him with farsa on his neck, which became turned and
hit to his right leg. When both of them were lying on the
ground, accused-appellant Durganand Jha assaulted with lathi
to both Anant Narain Jha and Anil Kumar Jha. He also deposed
that Tripit Narain Jha snatched a black bag from the hand of
Anil Kumar Jha and Durganand Jha snatched a wrist watch
from the hand of Anant Narain Jha (deceased). It was also
deposed by him that by that time, Manoj Kumar Jha (PW-1)
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
came from northern direction and made an attempt to save his
father and uncle. By that time, appellant-accused Palan Jha
assaulted with farsa on his neck but as he bent down and
stopped farsa by his hand resultantly he received cut injury on
his right wrist. Palan Jha also hurled farsa on him second time,
which hit by its back part to Manoj Kumar Jha, thereafter,
Durganand Jha assaulted Anant Narain Jha (deceased) by lathi
after which accused-appellant Durganand Jha gave 2-3 lathi
blows on Anant Narain Jha (deceased). It was stated by him
that he and Balendra Jha (PW-3) came together at the place of
occurrence from his shop. It was also deposed by him that from
northern side three persons namely, Rambabu Jha (PW-4),
Shiban Paswan (PW-5) and Sitapati Barhi (PW-9) along with
other co-villagers came at the place of occurrence. He stated
specifically that 40-45 persons were gathered there. Appellants-
accused fled away after assaulting and thereafter Anant Narain
Jha was brought first on Chowk on wooden cot where one
Shyam Jha running a medicine shop put bandage on the head of
Anant Narain Jha (the then injured) from where he was taken to
doctor at Benipur. Both Anant Narain Jha and Anil Kumar Jha
were taken to doctor. It was also deposed by him that
occurrence took place out of land dispute which were
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
exchanged earlier between them. He identified all the four
accused persons before the court and claimed to be identified
appellant-accused Durganand Jha also who on that day was
represented through his lawyer.
26.1. On cross-examination, a question was put to him
by court, which he fairly replied in cross-examination that it
was Manoj Kumar Jha who was given 2-3 lathi blow by
Durganand Jha. He stated that the disputed land of 16 dhoors is
just in eastern side of his courtyard adjacent to which a pond is
there for which there is a dispute with Mahendra Sahani. He
denied that in the said dispute accused Tripit Narain Jha helped
him. It was stated by him that he and Anil Kumar Jha (PW-7)
shown the place of occurrence to the police. He failed to
depose, whether any police officer came to village on the date
of occurrence as he slept by that time. It was stated by him that
the occurrence of physical assault with regard to Anant Kumar
Jha and Anil Kumar Jha (PW-7) were continued for 2-4
minutes and after 1-1½ minute, Manoj Kumar Jha (PW-1)
came over there. It was also stated that occurrence took place
for 3-4 minutes. He along with others not made any attempt to
save the deceased and others. He saw the mark of injury on the
body of all three injured after the occurrence. He saw three
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
injuries upon Manoj Kumar Jha (PW-1) where he found one
injury on his arm except that, he did not see any ruptured
injuries upon body of Manoj Kumar Jha. He also deposed to see
one swollen injury on right side of Manoj Kumar Jha. An
attention was drawn at this stage to this witness that he stated
before police that Palan Jha assaulted on neck of Manoj Kumar
Jha by farsa and also stated that Durganand Jha gave 2-3 lathi
blows to Manoj Kumar Jha (PW-1). It was stated by him that he
saw two injuries on Anil Kumar Jha (PW-7) out of which, from
one injury, blood was oozing, whereas another wound was non-
bleeding. He failed to depose that whether blood was oozing
from cut injury on leg of Anil Kumar Jha. He never discussed
about injuries with injured Anil Kumar Jha. He stated to see
only one injury on the head of Anant Narain Jha (deceased). He
denied the defence suggestion that no such occurrence was
taken place. He also denied the suggestion that there was no
physical injury upon Manoj Kumar Jha (PW-1) and Anil
Kumar Jha (PW-7). He denied the suggestion that he deposed
falsely.
27. PW-11 is Bisheshwar Jha, who is Investigating
Officer of this case and was posted as A.S.I. in Bahera Police
Station. He received information on 08.09.1992 from Dr. R.K.
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
Chaudhary, who was posted as doctor in Bahera Hospital, from
whom he received one O.D. Slip, where he was directed to visit
the clinic of Dr. R.K. Chaudhary of Bahera Hospital. Said O.D.
slip was numbered as 204 dated 08.09.1992 where time was
mentioned as 5:15 PM. It is entered in station diary by Police
Constable Yugal Prasad having no.244, which on his
identification exhibited before the learned Trial Court as
Exhibit No.-7. He also identified the O.D. slip of Dr. R.K.
Chaudhary, which was identified as Exhibit No.-6/1. He
reached to the clinic of Dr. R.K. Chaudhary at 6:15 and made an
attempt to record the statement of Anil Kumar Jha (PW-7) but,
he was found injured and was not in a position to give his
statement, therefore, he waited for sometime and, thereafter,
recorded his statement at 8:00 PM. After recording of statement
of Anil Kumar Jha (PW-7), it was read over to him, which as
found correct signed before him. The said written
information/fardbeyan was recorded in presence of two
witnesses namely, Chandra Mohan Chaudhary and Yashoda
Nand Jha. These two witnesses put their signature before him.
He identified written information/fardbeyan before learned trial
court, which was exhibited as Exhibit No.-8. After recording
fardbeyan, he forwarded the same to the SHO, Bahera Police
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
Station but, could not sent it, as at that time, no Choukidar was
available and as fardbeyan disclosed cognizable offence,
therefore, he assumed charge himself. Endorsement of said
effect was made by him, which was exhibited before trial court
as Exhibit Nos.-3/6 and 3/7. On the basis of said written
information/fardbeyan, a formal FIR was drawn, which was
bearing signature of SHO namely, Md. Yasin, which on his
identification was exhibited as Exhibit No.9. He recorded the re-
statement of informant and found injury upon him. Requisition
regarding said injury was sent by him, which was exhibited as
Exhibit No.-10. He visited the place of occurrence on same date
at 10:45 PM. The witnesses were searched but, he did not find
anyone, being odd night hour. On 09.09.1992 at 5:30 he visited
the clinic of Dr. R.K. Chaudhary again and, thereafter, he visited
the place of occurrence with informant (PW-7). He reached to
the place of occurrence at 6:30 AM. At that time, the informant
(PW-7) and Ramawtar Kunwar were present there. He
described place of occurrence as bricks-made road in front of
house of accused Tripit Narain Jha which was going towards
south. The road which was found as place of occurrence having
width of seven hand and it was in regular use of public. He
found mud and grass besides place of occurrence and found
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
grass and mud were tampered. He also found small droplet of
red colour on nearby bricks, which appears like blood. Small
droplets of blood were also available on grass near to the place
of occurrence. He found place of occurrence in very
disturbed/tampered conditions but, did not find any clotting of
blood there. He found blood-stained upto Antaur Chowk starting
from place of occurrence. It was deposed by him that as place of
occurrence was disturbed/tampered, therefore, blood sample
could not be collected. He stated to draw sketch of place of
occurrence, which was exhibited before learned trial court and
exhibited as Exhibit No.-11. He recorded the statement of
witnesses, namely, Ram Udar Kunwar (PW-10), Balendra Jha
(PW-3) and Ram Babu Jha (PW-4). He searched appellants-
accused but, did not find them. He also could not searched
weapons of crime in question. He came back to thana from
village-Antaur at 10:30 AM. He visited on same day to village-
Antaur at 8:30 PM and searched appellants-accused in village
and also in nearby village but, could not find them as they were
absconded. On same very day, i.e. on 12.09.1992 during course
of investigation at 10:00 AM he came to know that Anant
Narain Jha died at PMCH and his dead body arrived. He
recorded statement of son of deceased namely, Manoj Kumar
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
Jha (PW-1) and made an application before the court of learned
SDJM, Benipur to add Section-302 of the IPC in FIR. He also
received injury report of injured Anil Kumar Jha (PW-7) and
inquest report of deceased Anant Narain Jha. He also recorded
the statement of Sitaparti Barhi (PW-9) and Siban Paswan (PW-
5) on 18.09.1992. He handed over the charge of further
investigation to the SHO as per his direction. It was deposed by
him that SHO has not made any investigation in this case and he
only submitted charge-sheet.
27.1. On cross-examination, it was stated by him that he
investigated this case from 08.09.1992 to 18.09.1992 and by
that date he did not received postmortem report of Anant Narain
Jha (deceased). He opened case diary at the clinic of Dr. R.K.
Chaudhary on the date of occurrence i.e. on 08.09.1992 at about
5:15 PM. It was stated that he wrote para-1 and 2 of case diary
at station itself and thereafter he proceeded towards clinic at
about 5:25 PM, which was in his residence. He reached at clinic
of doctor at 6:15 PM and met with doctor but he did not ask for
any injury report. It was not even given by doctor. When he
went to clinic, he found Anil Kumar Jha (PW-7) was there and
that time he did not mentioned his injury in case diary. He
remained in clinic till 9:15 PM and forwarded fardbeyan to SHO
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
Bahera. He mentioned this fact in case diary in Para-7. He
recorded re-statement of informant in Para-8. He proceeded for
village-Antaur from clinic at about 9:15 PM along with
fardbeyan and diary. It was stated by him that after recording the
fardbeyan and restatement, he came to know where is the place
of occurrence and who are the witnesses. He met with some
person in Antaur village and also visited the house of informant.
It was stated that he did not investigate this case on 10.09.1992
and 11.09.1992 at 10:00 AM. He recorded the statement of
Manoj Kumar Jha (PW-1) on 12.09.1992 at 10:00 AM. He
stated that he did not collect samples of blood from brick-plate
and from grass near to the place of occurrence. He did not find
any blood-stained clothes. He also did not inspected the
documents related with disputed property. He stated that he had
not mentioned in diary that Manoj Kumar Jha (PW-1) shown
him any prescription, which was not taken by him. He also
stated that during course of investigation, it was not stated
before him by Manoj Kumar Jha (PW-1) that appellant-accused
Palan Jha assaulted him with farsa on his head having intention
to cause death. He also not stated to him about dispute regarding
16 dhur of land, rather it was stated by him that Manoj Kumar
Jha (PW-1) stated during course of investigation that when all
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
three became injured, accused Tirpit Narain Jha snatched a
black bag from the hand of Anil Kumar Jha and, thereafter,
Durganand Jha assaulted with lathi to Anil Kumar Jha (PW-7),
Manoj Kumar Jha (self) and Anant Narain Jha (deceased). He
deposed that witness Ram Babu Jha (PW-4) stated before him
during investigation that hulla (public alarm) came from the
directions where house of accused Tripit Narain Jha was
situated and he also heard to said Tripit Narain Jha to give order
as to kill. It was stated by him that witness Siban Pawan (PW-5)
not stated before him during course of investigation that accused
Tripit Narain Jha was given order to kill and also not stated that
Arun Kumar Jha assaulted Anant Narain Jha with farsa which
hit his head. He also stated that this witness has also not stated
during investigation before him that Anil Kumar Jha (PW-7) has
received physical injury, when he was in process to lift Anant
Narain Jha (deceased) and also not stated that appellant-accused
Durganand Jha assaulted Anant Narain Jha with lathi, which hit
on his head and assaulted Anil Kumar Jha, which hit on his eye,
face and on back. It was also stated by him that witness
Rambabu Jha never stated before him during course of
investigation that hulla was coming from the side of house of
Tripit Narain Jha and also that Tripit Narain Jha given order to
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
kill. It was also stated by him that informant Anil Kumar Jha
(PW-7) has not stated before him during investigation that a
panchayati was held before two days of this occurrence and also
not stated in his restatement that accused Tripit Narain Jha was
sitting along with other co-accused persons on his darwaja (out-
courtyard). It was stated by him that this witness has not stated
before him in his restatement that farsa hit on right side of
Anant Narain Jha (deceased) and was also not stated that co-
villagers were arrived at the place of occurrence during the
course of scuffle. It was also stated by him that Sitapati Barhi
(PW-9) not stated before him that he saw occurrence when he
reached near to the house of Balendra (PW-3). It was also stated
by him that Ram Udar Kuwar (PW-10) not stated before him
during investigation as to assault on the neck of Manoj Kumar
Jha by appellant-accused Palan Jha hurling farsa and also not
stated that he bent down during assault. It was also not stated by
him that appellant Durganand Jha gave 2-3 lathi blow to Manoj
Kumar Jha (PW-1). It was stated specifically that Dr. Raj
Kishore Chaudhary (PW-2) had not shown him his injury
register. He denied that he recorded wrong statement of
witnesses in his diary during investigation as to support the case
of informant (PW-7).
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
28. PW-12 Raj Nath Singh, who is A.S.I. and was
posted at Pirbahore Police Station, Patna on 09.09.1992, who
recorded the fardbeyan of Manoj Kumar Jha (PW-1), on same
day, at about 11:00 AM in Patna Medical College and Hospital,
Patna and thereafter also prepared the inquest report of deceased
Anant Narain Jha, which was prepared in three copies by carbon
processing. It was deposed by him that said inquest report was
witnessed by Manoj Kumar Jha (PW-1) and Phanikant
Chaudhary, where both put their signature before him which he
identified before the trial court and same after identification
exhibited as Exhibit Nos. 2 and 2/1. He also identified the
inquest report which was exhibited as Exhibit No.-12.
28.1. On cross-examination, it was stated by him that he
found injury in right side of head of the deceased and mentioned
about said injury in inquest report as per statement of witnesses.
At this stage, a court question was asked that whether these two
witnesses stated about reason of death, where he replied that the
reason stated by these two witnesses were mentioned in Column
No.8 of inquest report. It was also stated by him that he did not
prepare any supplementary case diary. These facts are
mentioned in station diary of Pirbahore Police Station, Patna. It
was stated by him that basis of his deposition is fardbeyan of
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
PW-1 and inquest report of the deceased. It was stated by him
that Manoj Kumar Jha (PW-1) stated in his fardbeyan that he
taken his father and uncle along with persons accompanied with
him to Benipur Hospital for treatment. It was stated by this
witness that Manoj Kumar Jha (PW-1) not stated before him
that appellant-accused Palan Jha assaulted on his neck by farsa
having intention to cause his death. He also stated that PW-1 did
not state anything regarding the dispute of 16 dhur land. It was
specifically stated by him that Manoj Kumar Jha (PW-1) had
not shown him any injury and neither he prepared his injury
report. It was also stated that he did not send him to doctor for
examination.
29. PW-13 is Phanikant Chaudhary, who deposed in his
examination-in-chief that Anant Narain Jha (deceased) was his
brother-in-law and on the date of occurrence i.e. on 08.09.1992,
he was at his home where he received information regarding
occurrence somewhere between 1:30-2:00 PM, through one Ras
Bihari Chaudhary and, thereafter, he came to village-Antaur and
from there he came to Benipur somewhere between 3:30-4:00
PM. It was deposed by him that he saw his brother-in-law when
he was proceeding for DMCH. He also accompanied him. He
was admitted in hospital in unconscious condition, where his
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
treatment was started by Dr. Anil Kumar Singh and, from there,
he was referred to PMCH, Patna. He reached Patna along with
others somewhere between 10:30-11:00 PM. The doctor on
seeing his brother-in-law at Patna Medical College and Hospital
(PMCH), Patna, declared him dead. It was deposed that Manoj
(PW-1) was also treated there. The police came somewhere
between 10:30-11:00 AM on 09.09.1992 and recorded the
fardbeyan of Manoj Kumar Jha. He identified his signature over
there, which was exhibited before court as Exhibit No.2/3. The
Police Inspector after examining the dead body, prepared report
under carbon processing where he also identified his signature,
which on his identification, exhibited as Exhibit No. 2/1. It was
deposed that postmortem was conducted thereafter and dead
body was handed over to him. He identified the said paper
before the court, which for the purpose of identification marked
as 'F/1'.
29.1. On cross-examination, it was stated by him
that letter, as above, which was marked as F/1 was received by
them somewhere between1:00-2:00 PM on 09.09.1992 and on
same very day, they came to village-Antaur, somewhere
between 8:00-9:00 PM, where his last rites was performed in
night, somewhere between 9:00-10:00 PM. It was stated by him
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
that police never recorded his statement in connection with
present occurrence during the course of investigation. He also
stated that Manoj Kumar Jha (PW-1) also came along with him
from Patna to village-Antaur and he performed the last rites of
his father Anant Narain Jha (deceased). He denied the
suggestion that Manoj Kumar Jha (PW-1) did not received any
injury and he was not medically examined on 09.09.1992.
30. PW-14 is Dr. Akhauri Rabindra Kishore was stated
in his examination-in-chief that he was not acquainted with Dr.
Vijai Kumar, who was Professor and Head of the Department of
Forensic Medicine of P.M.C.H. Patna and identified his
handwriting. He further deposed that the postmortem report is
in his hand-writing and bears his signature and on identification
before learned trial court, the same was exhibited as Exhibit-
13. He further deposed that Dr. Vijai Kumar died recently.
30.1. During cross-examination, the said witness has
deposed that he usually conduct postmortem examination in
D.M.C.H. He further deposed that Injury No.1 as mentioned in
the postmortem report (Exhibit-13) may be possible if a brick
falls on the head from some height. In case of depressed
fracture, depression on the surface would be of same size and
shape as that of the weapon. To the court question, he has stated
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
that the shape of the depression has not been mentioned in the
postmortem report. He further stated that general injuries are
described separately, as cut injuries, lacerated wound etc.
31. PW-15 Ganga Prasad Jha is messenger of learned
District Judge, who carried the letter of learned District Judged
along with the letter of Public Prosecutor to the Principal of
PMCH, Patna, who send him to Forensic Medicine Department,
where the doctor Ram Krishna Prasad Singh give him a letter,
which he identified before the court and was exhibited as
Exhibit No.14. On cross-examination, he denied to have any
personal knowledge regarding contents of the letter.
32. The appellants-accused examined one witness
Sitaram Jha in their defence, who examined before the learned
court as DW-1, who stated in his examination-in-chief that on
08.09.1992, he was at the house of one Gunanand Jha, where he
heard hulla (public alarm), raised somewhere between 2-2:30
PM and on said hulla, he came near to the house of Anant
Narain Jha (deceased) and saw that Anant Narain Jha was lying
to ground unconscious and was surrounded by the people. He
came to know from one Lobhi Mishar and Jagdish Jha that one
brick plate fell down on the head of Anant Narain Jha from the
house of Ram Narain Jha, where construction work was under
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
progress and he received injury. By that time, Anil Kumar Jha
(PW-7) and Manoj Kumar Jha (PW-1) were also there and they
were in process to carry Anant Narain Jha for Bahera Hospital
on tractor.
32.1. On cross-examination, it was stated by him that
his son-in-law is of Antaur village and he visited to him on
08.09.1992 and therefore, he was in Antaur village. It was
stated that he did not saw falling of brick plate on the head of
Anant Narain Jha (deceased). He stated that he remains for ten
minutes at the house of Anant Narain Jha. It was stated that he
was called by accused Tripit Narain Jha as a witness. It was
denied by him that he deposed falsely as he is the relative of
accused Tripit Narain Jha and also denied that he did not visited
Antaur village on 08.09.1992.
33. It would be appropriate to reproduce para 26 of the
legal report as reported in matter of Balu Sudam Khalde
(supra) where Hon'ble Supreme Court laid down a guideline
regarding appreciation of oral evidence and also with regard to
the evidence of injured eye witness, same are as under:
"26. When the evidence of an injured eye-witness is
to be appreciated, the under-noted legal principles
enunciated by the Courts are required to be kept in
mind:
(a) The presence of an injured eye-witness at the time
and place of the occurrence cannot be doubted unless
there are material contradictions in his deposition.
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
(b) Unless, it is otherwise established by the evidence,
it must be believed that an injured witness would not
allow the real culprits to escape and falsely implicate
the accused.
(c) The evidence of injured witness has greater
evidentiary value and unless compelling reasons
exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be
doubted on account of some embellishment in natural
conduct or minor contradictions.
(e) If there be any exaggeration or immaterial
embellishments in the evidence of an injured witness,
then such contradiction, exaggeration or
embellishment should be discarded from the evidence
of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version
must be taken into consideration and discrepancies
which normally creep due to loss of memory with
passage of time should be discarded."
34. The crux of para 26(a) (b) and (c) as mentioned
above suggest that until and unless there are no compelling
reasons injured eye witness cannot be disbelieved, as it appears
greater evidentiary value for the reason that injured witness
could not allow the real culprits to escape by falsely implicating
innocent persons. It was also held there that presence of injured
eye witness at the time and place of occurrence cannot be
doubted unless contrary material contradiction surfaced.
35. By importing aforesaid legal ratio to the facts of
the present case, it appears that PW-1 namely, Manoj Kumar
Jha, who claimed to be an eye witness of the occurrence, it
appears from his deposition that when he arrived at the place of
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
occurrence he found his father Anant Narain Jha (deceased)
lying over the ground. Meaning thereby, he came at the place of
occurrence after actual physical assault was caused to him. The
learned trial court also disbelieved him as an eye witness of the
occurrence for the reason that the injury which were explained
by him as received during the course of occurrence were not
supported by medical evidences. It may be the position but, the
fact which is apparent from his deposition is that he came on
place of occurrence immediately after the actual physical
assault caused to deceased and saw appellants-accused
equipped with farsa and lathi.
36. It is made clear that only two weapons alleged to
be used during occurrence i.e. farsa and lathi as per version of
different eye-witnesses including injured eye-witness. It was
deposed by PW-1 Manoj Kumar Jha that the iron part of farsa
as used by appellant-accused Arun Kumar Jha was fitted with a
wooden stick having length of 2½ - 3 hand, which appears in
corroboration with the deposition of PW-7, who also stated
during trial that farsa of appellant-accused Arun Kumar Jha was
fitted by wooden stick having length of 2½ - 3 hands. PW-7,
who is informant and injured witness of this case, who present
with the deceased from very inception of the occurrence stated
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
that when assault was made by appellant-accused Arun Kumar
Jha with farsa on Anant Narain Jha, he was at a distance of 3-4
hands. Thus, by projecting the seen of occurrence, it appears
doubtful as to how a farsa having length of 2½ - 3 hands
caused assault on a person who was standing at a distance of 3-
4 hands. This aspect cannot be ignored and to be taken as a
material contradiction, which makes assault improbable by any
stretch of imagination. We note this fact as a material
contradiction, out of deposition of both injured eye-witnesses
itself i.e. PW-1 & PW-7.
37. From the deposition of PW-1, Manoj Kumar Jha, it
further appears that PW-3, PW-4, PW-5 and PW-9 came to the
place of occurrence only when he raised alarm, while he was
assaulted by appellant-accused Palan Jha by farsa. If this
version of PW-1 Manoj Kumar Jha, be taken into consideration
then certainly these four witnesses of the occurrence came at
place of occurrence, subsequent to arrival of PW-1 namely,
Manoj Kumar Jha, who himself came at the place of occurrence
after actual physical assault to deceased. Therefore, the
deposition of aforesaid witnesses regarding actual fatal physical
assault which was caused to Anant Narain Jha (deceased) is not
appearing convincing on its face.
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
38. PW-3 is Balendra Jha, who is appearing to be a
chance witness as at the time and day of occurrence, he was
going to one betel shop. He is relative of informant. It was
deposed by him in his examination-in-chief itself that while he
was going to betel shop, Anant Narain Jha (deceased) and Anil
Kumar Jha (PW-7) was coming behind him and he heard alarm
of "bachao-bachao" and when he turned, he heard that accused
Tripit Narain Jha is giving order to kill. If this part of deposition
be taken into consideration, it is also not appearing convincing
on its face as other eye witnesses stated before the court that
after giving order by Tripit Narain Jha as to kill only thereafter
appellants-accused surrounded deceased and PW-7, and
thereafter actual physical assault was made. Therefore, alarm as
to save first stated by him before order to kill is not convincing.
39. It further appears from the deposition of PW-10
Ram Udar Kunwar that he came at the place of occurrence
along with Balendra Jha i.e. PW-3. Therefore, the statement of
PW-10 regarding manner of assault which was caused to
deceased Anant Narain Jha and Anil Kumar Jha (PW-7) and
also Manoj Kumar Jha (PW-1) appears doubtful. Interestingly,
in para 17 of his cross-examination, he stated that entire
occurrence of physical assault was continued for 3-4 minutes
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
where Anant Narain Jha and Anil Kumar Jha received injuries
and after one and half minute thereafter, PW-1 Manoj Kumar
Jha came to place of occurrence where PW-1 Manoj Kumar Jha
stated that PW-3 came only after raising his alarm. Therefore,
narration as regard to physical assault stated by him in his
examination-in-chief itself cannot be believed in view of his
doubtful presence at place of occurrence.
40. PW-1 who is the son of the deceased stated before
the trial court that he received 4-5 injuries during the course of
occurrence, where two assaults were caused by appellant-
accused Palan Jha by farsa, where first assault was hit on his
wrist and second was on his shoulder. He was not examined at
Benipur neither at D.M.C.H., Darbhanga, rather he was
examined at Patna Medical College and Hospital, Patna by Dr.
Prem Chand Jha (PW-6), where only one single injury was
found as cut with laceration having margin 1½" x 1/2" x 1/8"
over right forearm 2" over right wrist joint on dorsal aspect,
which was found simple in nature. It is subsequently stated by
PW-6, who examined PW-1 that this type of injury cannot be
caused by blunt edge of farsa rather same is caused by lathi or
any hard blunt like substance. The report also appeared
manipulated where initially it was written that same was caused
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
due to fall but subsequently it was corrected as 'alleged
assault'. But said correction was not made under any initial and
same was also without any date and time.
41. PW-12, is Rajnath Singh, who is the Police Officer
prepared inquest report of the deceased at Patna Medical
College and Hospital, Patna stated before the court that no
injury was shown to him by Manoj Kumar Jha (PW-1) at Patna.
It was also stated by him that PW-1 was not sent to doctor by
him. If version of PW-1 be taken into consideration then,
certainly his medical prescription was not given to police
officer during course of investigation. In view of the aforesaid
fact and disputed injury report, his version was not accepted by
learned trial court itself as injured eye-witness.
42. Now coming to second injured eye witness, who is
PW-7, namely, Anil Kumar Jha, who examined by PW-2 Dr.
Raj Kishore Choudhary at his private clinic. Exhibit-3 which is
injury report does not appears to bear any date on which it was
granted. The certificate was not even given to investigating
officer of this case.
43. From entire deposition of PW-7, it is nowhere
appears that he was admitted or visited even Bahera State
Dispensary at any point of time, but, during trial a register of
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
Bahera State Dispensary was produced in support of injury
report of PW-7. It was admitted by PW-2 that said register was
never produced before police and also that same is his personal
register, but stated that he was posted in Bahera State
Dispensary. The outdoor slip of PW-7 found at page 5 of
register produced by PW-2, Dr. Raj Kishore Choudhary, which
was exhibited before the court as Exhibit-3 and was copied
from the original register. Thus, issuing an injury report on the
basis of outdoor (O.D.) slip of a government hospital, where
PW-7 never visited for his treatment, forced us to look his
injury report with tinted glass.
44. Now, in the background of above-said doubtful
injury report, it would be apposite to look other part of oral
evidence of PW-7, who examined before the learned trial court
as an injured eye witness and claimed to be accompanied
deceased Anant Narain Jha all along occurrence from very
inception. It was stated by PW-7 in his fardbeyan that assault
was caused by appellant-accused Arun Kumar Jha by
"samadhan farsa" on the head of Anant Narain Jha (deceased)
and if it is so, then certainly, his injury was to be sharp cut
injury by all probabilities but same was found lacerated on his
post-mortem report. As per case of prosecution, only lacerated
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
injury was found on the right side of head of deceased Anant
Narain Jha. PW-7 also stated that PW-1 Manoj Kumar Jha also
assaulted by appellant-accused Palan Jha on two occasions by
farsa but the injury report of PW-1 is not supporting his
version. Therefore, on these two material aspects his oral
evidence is also appearing contradictory qua nature of weapon
and injury report.
45. PW-11, who is Investigating Officer of this case
stated before the learned court that he met with the
informant/PW-7 in the clinic of PW-2 Dr. Raj Kishore
Choudhary at Benipur and found him in injured condition but,
did not make any requisition for injury. He did not even entered
the injury of PW-7 on 08.09.1992, the date on which fardbeyan
was recorded. It was stated by him that requisition for medical
injury of PW-7 was only given after recording his re-statement.
The injury report of PW-7 which is Exhibit-3 given by PW-2 is
undated and was not given to the police during the course of
investigation. These aspect also forced us to look injury report
of PW-7/informant of this case with convincing doubt.
46. Through, deposition, PW-1, PW-3, PW-5 and PW-
7 stated that bloodstains were present over bricks and also on
grass near to place of occurrence, even PW-11 the Investigating
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
Officer of this case who had visited the place of occurrence
after recording statement of informant/PW-7 at about 9:00 PM
on the date of occurrence and found blood spots over bricks and
grass. He also found blood droplets upto Antaur chowk starting
from place of occurrence but admittedly, he did not collected
any sample. He stated specifically before the learned trial court
that he did not made any attempt to seize weapons of crime.
These two aspects cannot be overlooked, as same appears
important to establish guilt of any accused persons in any
criminal case.
47. It would be apposite, at this stage, to reproduce
para 16 and 17 of the report as reported in the matter of
Lakshmi Singh (supra) where it has been held that omission by
prosecution as to send bloodstained soil and also non-recovery
of weapons appears fatal to the prosecution case. The relevant
paras are reproducing hereinbelow for better understanding of
case.
"14. To add to this another important circumstance is
the omission on the part of the prosecution to send the
bloodstained earth found at the place of occurrence for
chemical examination which could have fixed the situs
of the assault. In almost all criminal cases, the
bloodstained earth found from the place of occurrence
is invariably sent to the Chemical Examiner and his
report along with the earth is produced in the court, and
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
yet this is one exceptional case where this procedure
was departed from for reasons best known to the
prosecution. This also, therefore, shows that the
defence version may be true. It is well settled that it is
not necessary for the defence to prove its case with the
same rigour as the prosecution is required to prove its
case, and it is sufficient if the defence succeeds in
throwing a reasonable doubt on the prosecution case
which is sufficient to enable the court to reject the
prosecution version.
15. There is yet another important circumstance which
completely falsifies the evidence of the eyewitnesses.
All the eyewitnesses have consistently deposed that
after the deceased Chulhai Singh was assaulted by
Lakshmi Singh and fell down, the appellants Chhathu
Singh and Ramprasad Sah assaulted him with lathis.
Yet the medical evidence of Dr Ramadhar Singh shows
that there was only one solitary injury on the person of
the deceased Chulhai Singh and that was on the
abdomen. No other injury of any kind was found by the
doctor on any part of the body of Chulhai Singh. The
absence of lathi injuries on the person of Chulhai Singh
completely falsifies the evidence of the eyewitnesses on
a most material point. Mr U.P. Singh appearing for the
State tried to explain away this important lacuna on the
ground that the inquest report shows that there were
some sort of injuries on the back of the body of the
deceased Chulhai Singh which may have disappeared
by the time the doctor examined the deceased Chulhai
Singh. We are, however, unable to agree with this
somewhat farfetched explanation. It was for the
prosecution to corroborate the evidence of the
eyewitnesses through expert evidence of the doctor, and
if no lathi injuries were found it was affirmatively for
the prosecution to give reasons for the same. No
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
question was, however, put to the doctor in re-
examination that if the deceased had received lathi
blows the injuries could have disappeared, by the time
the doctor examined the deceased. Moreover, the
inquest report also does not show any particular
physical injury on the person of Chulhai Singh but
merely mentions a swollen injury on the back which
may be due to the fact that the deceased Chulhai Singh
fell down after receiving the bhala blow. The Sub-
Inspector was not an expert on the subject and his
observation in the inquest report is absolutely valueless.
Thus in short, so far as the deceased Chulhai Singh is
concerned, the ocular evidence is totally inconsistent
with the medical evidence with respect to the assault by
Chhathu Singh and Ramprasad Sah. If this matter is
false, there is no guarantee that the other assault
deposed to by the eyewitnesses was also not false.
16. Similarly so far as deceased Brahmdeo is
concerned, the evidence of the witnesses shows that he
had received 4 to 5 lathi blows at the hands of his
assailants, but the medical evidence of Dr Jaiswal
shows that he had one lacerated wound on the scalp, a
swelling and three scratches. In view of the ocular
evidence we should have expected many more lathi
injuries on the person of the deceased Brahmdeo rather
than just one swelling and a few scratches, apart from
the lacerated wound. Thus this is also a very important
suspicious circumstance which negatives the truth of
the prosecution case.
17. Finally we might stress, even at the risk of
repetition, that the genesis and the origin of the present
occurrence appears to be shrouded in deep mystery.
The dramatic manner in which the assault is said to
have started and the appearance of the accused led by
Jagdhari Singh without any rhyme or reason and their
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
assault on persons against whom they had neither any
concern or animus introduces an element of inherent
improbability in the case. According to the prosecution
the main cause of the assault was the refusal of the
deceased Chulhai Singh to demolish the marwa which
was constructed on the occasion of the marriage of
Jaiwanti a daughter of the son of Chulhai Singh. There
is no evidence to show that there was bad blood
between Ramsagar Singh and Dasrath Singh on the one
hand and their cousins Chulhai Singh and Ram Asrey
on the other. On the other hand the evidence shows that
even after the partition both the groups of the family
were living in different portions of the same house, the
courtyard being common. PW 6 Dasain Singh clearly
admits that at the time of fixing the marwa he had no
quarrel with Dasrath Singh or Ramsagar Singh i.e.
about 3 days before the occurrence. If the relations
between the parties were so cordial only 3 days before
the occurrence, we fail to see how Dasrath Singh and
Ramsagar Singh made a complete somersault and
picked up a quarrel over the demolishing of a marwa
when they knew full well, as PW 1 would have us
believe, that it was customary that the marwa remained
in its original position until a period of 1 1/4 months
had elapsed. After all Dasrath Singh and Ramsagar
Singh also belonged to the same family and were bound
to respect the family custom. It is difficult to believe
that even if Dasrath Singh and Ramsagar Singh would
raise any objection, they would do so on the day on
which chauthari ceremony of the marriage of Jaiwant
was held. It also surpasses our comprehension that even
if a petty objection was raised, it would culminate in
the murder of two close relations by the accused
Dasrath Singh and Ramsagar Singh with the aid of the
other appellants. So far as the five appellants, namely,
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
Jagdhari Singh, Jagdish Singh, Lakshmi Singh,
Ramprasad Sah and Chhathu Singh are concerned, they
had neither any animus against the prosecution party
nor any friendship with the accused Dasrath Singh and
Ramsagar Singh and it is impossible to believe that
these five persons would join hands with Dasrath Singh
and Ramsagar Singh in the nefarious plan to kill two
persons sons without any provocation, without any
earthly reason and without any pertinent occasion. On
the other hand the preponderance of probabilities seems
to indicate that these five appellants had been falsely
implicated by PWs 1 to 4 who were their sworn
enemies and who must have made it a condition
precedent for supporting the evidence of PW 6, if the
five appellants are also brought in. In this view of the
matter, the prosecution case itself becomes wholly
improbable. Furthermore, if PWs 1 to 4 and 6 could go
to the extent of falsely implicating the five appellants
headed by Jagdhari Singh without their having
participated in the occurrence, then the entire fabric of
the prosecuticae would collapse, and the fundamental
part of the prosecution case would have to be
disbelieved. It was, however, contended by the State
that there was no reason to disbelieve the evidence with
respect to Dasrath Singh and Ramsagar Singh, even if
the other five appellants be acquitted. Where all the
witnesses enter into a conspiracy to implicate five
innocent persons in a murder case, then the backbone
of the prosecution is broken, and it would be difficult
for the court to rely on such evidence to convict a
single accused, particularly when the prosecution does
not give any explanation for the grievous and other
serious injuries on the person of Dasrath Singh. This is
a case where it is not possible to disengage the truth
from falsehood, to sift the grain from the chaff. The
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
truth and falsehood are so inextricably mixed together
that it is difficult to separate them. Indeed if one tries to
do so, it will amount to reconstructing a new case for
the prosecution which cannot be done in a criminal
case.
48. PW-4 also appears to arrive at place of occurrence
on alarm of PW-1 Manoj Kumar Jha. It was stated by him
before learned trial court that Anant Narain Jha (deceased) and
Anil Kumar Jha (informant/PW-7) are his relative. It appears
from his deposition that when he saw appellant-accused persons
surrounded Anant Narain Jha (deceased) and Anil Kumar Jha
(informant/PW-7), and in same condition they were assaulted
Anil Kumar Jha and Anant Narain Jha and if it is so, a natural
question arises that how he saw actual physical assault caused
to all three injured, which were explained in details through his
examination-in-chief. PW-9 is also appearing chance witness
who stated to be an eye witness of the occurrence from very
inception, but, did not explain anything about assault given by
accused-appellant Palan Jha to Manoj Kumar Jha (PW-1) and
therefore, his presence is appearing doubtful and he appears to
be a projected eye-witness of the occurrence. PW-9 also
appears to arrive at the place of occurrence on alarm of PW-1,
Manoj Kumar Jha, who himself arrived on the place of
occurrence after actual assault. He failed to stated that PW-1
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
made any effort to save him from the assault of farsa as waived
by appellant-accused Palan Jha, rather he stated that as PW-1
stand, during occurrence, he received injury on his wrist, which
appears contradictory to the version as narrated by
informant/PW-7. Admittedly, assault caused to Anant Narain
Jha (deceased) and Anil Kumar Jha (informant) were also made
prior to arrival of Manoj Kumar Jha (PW-1). Therefore, any
descriptive statement regarding assault caused to deceased and
PW-7 by this witness is also not appearing convincing.
49. In view of above discussions, it appears that it
cannot be said that the prosecution established its case beyond
all reasonable doubt against above-named appellants-accused.
50. Accordingly, both appeals stand allowed.
51. The impugned judgment of conviction dated
23.04.1994 and order of sentence dated 03.05.1994 passed by
learned Sessions Judge, Darbhanga in Sessions Trial No.84 of
1993 arising out of Bahera P.S. Case No. 218 of 1992 is
quashed and set-aside.
52. The appellants named above are acquitted of the
charges leveled against them. Since all the appellants named-
above are on bail, they are discharged from the liabilities of
their bail bonds, sureties are also stands discharged from their
Patna High Court CR. APP (DB) No.223 of 1994 dt.19-10-2023
liabilities.
53. Office is directed to send back the Lower Court
Records, along with copy of judgment.
(Vipul M. Pancholi, J.)
(Chandra Shekhar Jha, J.)
Sanjeet/-
AFR/NAFR NAFR
CAV DATE 27-09-2023
Uploading Date 19-10-2023
Transmission Date 19-10-2023
