Patna High Court
Mamta Devi @ Mamta vs The State Of Bihar And Ors on 1 April, 2024
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.318 of 2015
Arising Out of PS. Case No.-638 Year-2014 Thana- SASARAM NAGAR District- Rohtas
======================================================
Sanjay Ojha son of Dina Nath Ojha resident of village Bahera, Police station
Kargahar, District Rohtas at Sasaram.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 311 of 2015
Arising Out of PS. Case No.-638 Year-2014 Thana- SASARAM NAGAR District- Rohtas
======================================================
MAMTA DEVI @ MAMTA W/o Late Anil Ojha, Resident of Village -
Bahera, P.S. - Kargahar, District - Rohtas.
... ... Appellant/s
Versus
1. The State of Bihar
2. Ashwini Ojha @ Ashwini Kumar Ojha, Son of Dina Nath Ojha,
3. Gopal Ojha, S/o Late Bhuwaneshwar Ojha, Both are Resident of Village -
Bahera, P.S. - Kargahar, District - Rohtas.
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 318 of 2015)
For the Appellant : Mr. Ajay Kumar Thakur, Advocate
Mrs. Vaishnavi Singh, Advocate
Mr. Ritwik Thakur, Advocate
Ms. Kiran Kumari, Advocate
For the State : Mr. Sujit Kumar Singh, APP
For the Informant : Mr. Sheojee Mishra, Advocate
(In CRIMINAL APPEAL (DB) No. 311 of 2015)
For the Appellant : Mr. Sheojee Mishra, Advocate
For the State : Mr. Sujit Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 01-04-2024
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
2/24
Criminal Appeal (DB) No.318 of 2015 is filed under
Section 374(2) of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'the Code') against the judgment of
conviction dated 04.03.2015 and order of sentence dated
10.03.2015
, passed by learned 3rd Additional Sessions Judge,
Rohtas at Sasaram in S.T. Case No.852 of 2014, arising out of
Sasaram Town P.S. Case No.638/14 whereby the learned Trial
Court has convicted appellant Sanjay Ojha for the offence
punishable under Section 302 of the Indian Penal Code and has
sentenced him to undergo imprisonment for life and a fine of
Rs.10,000/- and in default of payment of fine, appellant Sanjay
Ojha has been sentenced to R.I. for one year. Appellant Sanjay
Ojha has further been convicted for the offence punishable under
Section 27 of the Arms Act and has been sentenced to suffer R.I.
for three years and a fine of Rs.1,000/- and in default of payment
of fine, appellant Sanjay Ojha has to undergo R.I. for three
months.
2. Criminal Appeal (DB) No.311 of 2015 is filed under
Section 372 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as 'the Code') against the judgment of acquittal dated
04.03.2015, passed by learned 3rd Additional Sessions Judge,
Rohtas at Sasaram in S.T. Case No.852 of 2014, arising out of
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
Sasaram Town P.S. Case No.638/14 whereby the learned Trial
Court has acquitted respondents, namely, Ashwini Ojha @
Ashwini Kumar Ojha and Gopal Ojha from the charges under
Sections 302/34 of the Indian Penal Code and Section 27 of the
Arms Act.
3. The factual matrix of the present case is as under:-
3.1 Fardbeyan of Mamta Devi came to be recorded on
19.07.2014 at 07:45 PM in the emergency ward of Sadar Hospital,
Sasaram wherein the informant has stated that on 19.07.2014 at
about 04:30 PM, quarrel took place between her husband, namely,
Anil Ojha, Ashwini Ojha and Gopal Ojha at village Bahera. It is
alleged that accused Ashwini Ojha called his brother Sanjay Ojha
from Sasaram who came there alongwith four unknown persons
armed with weapons. It is also alleged that her husband could not
go to Kargahar police station at that time and he proceeded for
Sasaram with his nephew Arun Dubey by motorcycle. The
informant came to know that her husband was being chased by
accused Sanjay Ojha, Ashwini Ojha, Gopal Ojha, Ashok Ojha and
four unknown persons. The brother of the informant, namely,
Santosh Kumar Pandey also proceeded behind them and at about
06:30 P.M. the informant was informed on phone that her husband
was surrounded by all the accused persons and appellant Sanjay
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
Ojha shot fire on the head of Anil Ojha, who sustained bullet
injury and died. The informant after getting information came to
Sadar Hospital, Sasaram alongwith her family members and found
her husband dead.
3.2 After registration of the formal FIR on the basis of
the aforesaid fardbeyan, the Investigating Agency started
investigation. During course of investigation, the Investigating
Officer recorded the statement of the witnesses, collected the
documentary evidence and thereafter filed charge-sheet against all
accused persons.
3.3 As the case was exclusive triable by court of
sessions, the learned Magistrate committed the same to the
concerned sessions court on 20.11.2014 where the same was
registered as S.T. Case No.852 of 2014.
3.4 During course of trial, the prosecution had examined
seven witnesses, namely, P.W.-1, Arun Kumar Dubey, P.W.-2,
Santosh Kumar Pandey, P.W.-3, Mamta Devi, P.W.-4, Birendra
Ojha, P.W.-5, Sunil Kumar Ojha @ Dharmendra Ojha, P.W.-6, Dr.
Sidheshwar Prasad Singh and P.W.-7, Om Prakash Singh.
Documentary evidence was also produced before the Trial Court.
Thereafter further statement of the accused under Section 313 of
the Code came to be recorded. After conclusion of the trial, the
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
Trial Court acquitted the accused, Ashwini Ojha and Gopal Ojha
whereas appellant Sanjay Ojha has been convicted for the
aforesaid offences as stated hereinabove.
3.5 Against the judgment of conviction and order of
sentence passed by the learned Trial Court, appellant, namely,
Sanjay Ojha has filed Criminal Appeal (DB) No.318 of 2015
whereas against the judgment of acquittal of two accused, namely,
Ashwini Ojha and Gopal Ojha, the informant has filed Criminal
Appeal (DB) No.311 of 2015.
4. Heard Mr. Ajay Kumar Thakur, learned counsel for
the appellant, Mr. Sujit Kumar Singh, learned APP for the State in
both the appeals as well as Mr. Sheojee Mishra, learned counsel
appearing on behalf of the informant.
5. Mr. Ajay Kumar Thakur, learned counsel appearing
on behalf of appellant-convict submits that there is delay of two
days in sending the copy of FIR to the court. It is pointed out from
the record that fardbeyan of P.W.-3, Mamta Devi came to be
recorded on 19.07.2014 however, the concerned Magistrate Court
received the copy of the FIR on 21.07.2014. It is further submitted
that P.W.-3, the informant has specifically admitted during cross-
examination that on paper the police took her signature. The said
paper was written and the same was not read over to her.
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
Thereafter she met the police after two days. At this stage, it is also
pointed out that P.W.-4, who is fardbeyan attesting witness, has
also stated that he went to Sadar Hospital, Sasaram and he cannot
say that when he reached in the hospital, the case was lodged or
not and on written paper he put his signature at about 08:30-09:00
P.M. at Sadar Hospital, Sasaram however, what was written was
not known to him. On the said paper, there was signature of
Mamta Devi (P.W.-3) from before. At the instance of police
personnel he put the signature. At this stage, it is also contended
that fardbeyan of P.W.-3 was recorded by Police Sub-Inspector,
Dinesh Paswan. However, the said witness has not been examined
by the prosecution. Thus, it is contended that the contents of the
FIR are not proved by the prosecution.
5.1. Learned Avocate Mr. Thakur would further submit
that it is surprising that though P.W.-1 and P.W.-2, who are
claiming to be eye witnesses to the occurrence in question, were
present in the hospital when the injured was taken to the hospital,
the statement was not recorded on the same day. It is submitted
that statement of aforesaid two witnesses under Section 161 of the
Code came to be recorded on 21.07.2014, i.e., after two days.
Learned counsel has referred the deposition of the aforesaid two
witnesses and thereafter contended that there are major
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
contradictions and discrepancies in the deposition. In fact, they are
not the eye witnesses but they can be called chance witnesses.
5.2. Mr. Thakur, learned counsel for the appellant-
convict further submits that as per the case of the prosecution, the
police arrived at the place of occurrence and took the deceased to
the hospital. However, the person, who had taken the injured
(deceased) to the hospital, has not been examined by the
prosecution and even the station diary entry was not produced
before the Court. It is further submitted that who has shown the
place of occurrence to the Investigating Officer is also not known.
The learned Advocate referred the deposition of P.W.-7, the
Investigating Officer and thereafter submitted that there are two
places of occurrence. The place where firing took place and the
deceased sustained gun shot injury is the first place of occurrence
whereas the place where the deceased fell down after running
away in order to save his life is the second place of occurrence.
The Investigating Officer has specifically stated that at the first
place of occurrence, blood was not found however, at the second
place of occurrence small traces of blood was found.
5.3. Learned counsel for the appellant-convict thereafter
contended that though it is the case of P.W.-1 that he was driving
the motorcycle and Anil Ojha was sitting as pillion rider and after
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
the firing took place, the motorcycle fell down but surprisingly
P.W.-1 did not sustain any injury in the said occurrence. Even the
conduct of P.W.-1 and P.W.2, who are claiming to be eye
witnesses, is also required to be scrutinized closely. It is also
submitted that though they are near relatives of the deceased, the
injured Anil Ojha was not taken to the hospital by the said two
persons and in fact police came at the place of occurrence on
getting information on phone made by third person. It is also
submitted that the independent witnesses, though present at the
place of occurrence, have not been examined by the prosecution.
Learned counsel, therefore, urged that the prosecution has failed to
prove the case against the appellant-convict beyond reasonable
doubt. The Trial Court has passed the judgment of conviction and
order of sentence against the appellant-convict and, therefore, the
said judgment of conviction and order of sentence are required to
be quashed and set aside.
5.4. It is lastly submitted that the learned Trial Court has
not committed any error while acquitting the two other co-accused,
namely, Ashwini Ojha @ Ashwini Kumar Ojha and Gopal Ojha by
not believing the story put forward by the prosecution. He,
therefore, urged that the appeal filed by the informant against the
judgment of acquittal may be dismissed.
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
6. On the other hand, the learned APP for the State as
well as learned counsel appearing for the informant have opposed
the conviction appeal filed by the convict. It is contended that
there is ample material in the form of evidence produced by the
prosecution before the Trial Court against the appellant-convict. It
is submitted that there are two eye witnesses to the occurrence in
question and they have supported the case of the prosecution.
Further, the medical evidence also supports the version given by
the two eye witnesses, therefore, the Trial Court has not committed
any error while convicting appellant Sanjay Ojha. However, it is
submitted that the Trial Court has wrongly discarded the version
given by the prosecution witnesses, who are the other two co-
accused, and thereby committed an error while passing the
judgment of acquittal in favour of other two co-accused, namely,
Ashwini Ojha @ Ashwini Kumar Ojha and Gopal Ojha.
7. We have considered the submissions canvassed by
learned counsel appearing for the parties, we have also perused the
materials placed on record, the evidence led by the prosecution
and the defence before the Trial Court. From the materials placed
on record, it transpires that the prosecution has examined seven
witnesses.
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
8. P.W.-1, Arun Kumar Dubey has stated in his
deposition that on 19.07.2014 at about 06:00 P.M., he was coming
with his maternal uncle by motorcycle and reached near breaker
situated towards north of over bridge where Gopal Ojha, Ashwini
Ojha, Sanjay Ojha and other 6-7 persons surrounded them.
Ashwini Ojha was armed with Katta and Gopal Ojha was armed
with gun. Sanjay Ojha shot fire on the temple of Anil Ojha.
Ashwini Ojha also shot fire which did not hit Anil Ojha. This
witness further deposed that his maternal uncle fell down.
Thereafter police and ambulance came there and brought Anil
Ojha to Sadar Hospital, Sasaram where the doctor declared him
dead. This witness further deposed that quarrel took place
between Ashwini Ojha, Gopal Ojha and others in the village.
8.1. P.W.-1 has stated in his cross-examination that his
village is about 60-65 K.M. away from the place of occurrence.
There was land dispute between his maternal uncle and accused
persons. There was quarrel between the parties on the day of
occurrence. This witness further stated in his cross-examination
that he did not see whether quarrel took place in the village or not.
He was on the door. Quarrel took place at about 03:00 P.M. at a
distance of 200-250 yards from the house of his maternal uncle
and none has sustained any injury. This witness further stated in
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
his cross-examination that he cannot say whether any case was
lodged or not with regard to the quarrel. He was driving the
motorcycle and he does not have the licence. The deceased
sustained bullet injury at the distance of 2-4 steps where the over
bridge starts. Gorakshini market is situated before the over bridge.
This witness further stated in his cross-examination that he did not
shout. He did not pay attention whether people gathered there or
not. The police reached there after half an hour. No family member
of his maternal uncle was present there. The police did not
inquired from me rather the police inquired from Santosh. Santosh
told about the incident. He did not pay attention whether the police
prepared paper or not. The police picked up his maternal uncle in
their presence. No paper was prepared in the hospital before him.
This witness was present in the hospital till 12 O' clock in the
night. The police did not inquire him on the day of occurrence.
The police inquired from him on 21 at the house of his maternal
uncle situated in Mahdiganj.
9. P.W.-2, Santosh Kumar Pandey has deposed in his
examination-in-chief that the occurrence took place on 19.07.2014.
At about 03:30 P.M. he was at his brother-in-law's place situated in
village Bahera. At 03:30 P.M., this witness and Arun Dubey were
present at the door of Anil Ojha. Then scuffle took place between
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
Anil Ojha and Ashwini Ojha. Thereafter Anil Ojha came to home
and Ashwini Ojha alongwith Gopal Ojha also came behind him.
This witness further deposed in his examination-in-chief that
Ashwini Ojha called Sanjay Ojha from mobile. Sanjay Ojha came
to village Bahera alongwith 2-4 other persons and threatened.
Thereafter this witness sent Arun Dubey and Anil Ojha from
Bahera to Sasaram. Sanjay Ojha said that he would kill his sister's
husband. This witness further deposed that he informed Anil Ojha
immediately by phone and he also went behind Anil Ojha. Arun
Dubey and Anil Ojha were sitting on a motorcycle and he was also
on a bike behind them. P.W.-2 further deposed that they reached
near Gorakshini breaker. Thereafter 6-7 persons surrounded Arun
Dubey and Anil Ojha. This witness recognized three of them,
namely, Sanjay Ojha armed with Katta, Gopal Ojha armed with
licensee gun and Ashwini armed with Katta. Sanjay Ojha shot fire
on the temple of Anil Ojha. Ashwini Ojha also shot fire. Arun
Dubey also ran away behind Anil. Thereafter police came. P.W.-2
also deposed in his examination-in-chief that he called his sister
and two brothers of Anil telephonically. Police came after 10-15
minutes. There was blood on the ground where Anil fell down. The
police inquired him and called ambulance and they brought Anil
Ojha to Sadar Hospital, Sasaram where the doctor declared him
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
dead. Thereafter the wife of the deceased came to the hospital
where police took her statement. It is further deposed that a dispute
is going on between them.
9.1. P.W.-2 has stated in his examination-in-chief that
both the parties are agnates. On the day of occurrence, scuffle took
place at about 03:00-03:30 P.M. with his brother-in-law. Nobody
sustained any injury. The family member of his brother-in-law,
namely, Sunil Ojha was ill and he was being treated in Banaras.
Sunil, Birendra and his wife were in Banaras. His sister was in the
village. When the threat was being given, no witness was present
there. This witness further stated in his examination-in-chief that
he called his brother-in-law at 5 o'clock that he is under threat. He
proceeded from Bahera at 05:00-05:15 P.M. He stopped in Agrer.
Police station is situated 100-150 yards away from the place where
he stopped in Agrer. This witness also travelled by a motorcycle
and he could not remember the number of the motorcycle. The
motorcycle belonged to his brother-in-law. It is further stated by
P.W.-2 in his examination-in-chief that he reached Agrer at about
05:45 P.M. He heard two rounds of firing. He did not left his
motorcycle after hearing the sound of firing. The shopkeepers did
not come out from the shop rather they closed their shop. Anil
Ojha sustained bullet injury in the sitting position. His nephew
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
Arun was driving the motorcycle. He told the administration that
he had seen the incident. No one other than him told the
administration about the incident. The administration did not make
any inquiry from the neighbours on that day. The police only asked
whether there was anyone with the deceased or not, then he replied
that he was there. This witness put his signature in the hospital. He
put his signature at about 09:00-10:00 P.M. He did not read the
content. This witness further stated in his examination-in-chief that
he gave his statement to the police on 21.07.2014 in his house
situated at Mahdiganj. He had not discussed about the incident
with anyone in Mahdiganj. He met with his relatives and family
members during his stay at Mahdiganj. This witness further stated
in his examination-in-chief that he had stated before the police that
there were 4-5 unknown persons at the time of incident armed with
rifle and country made pistol. He had not told about the
appearance and age of those unknown persons.
10. P.W.-3, Mamta Devi is the informant of the case.
This witness deposed in her examination-in-chief that the incident
took place on 19.07.2014. She was at home in village Bahera. Her
husband came running inside the house at 03:00-03:30 P.M.
Ashwini Ojha and Gopal Ojha also came behind her husband and
went inside their house. Their house is situated 10-15 steps away
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
from her house. She went at the door of her house and saw Gopal
Ojha carrying double barrel gun and Ashwini Ojha carrying Katta.
She closed the door of her house. When she was at the roof of her
house, her brother Santosh Pandey and nephew Arun Dubey were
also present in the house. Ashwini Ojha called Sanjay Ojha.
Thereafter Sanjay Ojha alongwith 4-5 unknown persons came and
threatened to kill her husband. Sanjay Ojha told her brother that
your brother-in-law would be killed.
10.1. P.W.-3, Mamta Devi stated in her cross-
examination that it took time to reach Sasaram from Bahera. She
reached Sasaram at about 08:00 P.M. It is further stated that she
became unconscious five minutes after reaching hospital and
remained unconscious till 9 O'clock. She met with the police ten
minutes after regaining consciousness. The police got her signature
on a paper. Police did not read that paper. This witness further
stated in her examination-in-chief that she has not read that paper
till date. Thereafter she met with the police after two days. It is
further stated that she did not see the place where her husband fell
down. It is not the case that she had not informed the police that
her husband had come running at 03:30 P.M.
11. P.W.-4, Birendra Ojha has deposed in his
examination-in-chief that the occurrence took place on 19.07.2014.
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
He was getting Sunil Ojha and Dharmendra Ojha treated at B.H.U.
in Banaras. At about 03:45 P.M., Santosh Pandey called him by
phone that scuffle took place between Anil Ojha, Ashwini Ojha
and Gopal Ojha. This witness reached Sasaram hospital at about
07:45-08:00 P.M. He met with Mamta, Santosh Pandey and Arun
Dubey there. The police took statement of this witness on 21st at
the residence situated in Mohaddiganj.
11.1. P.W.-4 has stated in his examination-in-chief that
he met 4-5 people of the neighbourhood in Mohaddiganj. He could
not tell their name. This witness has put his signature on a written
document at about 08:30-09:00 P.M. He did not read what was
written in the document. Mamta's signature was already there on
the paper. The policemen got him to sign the application. This
witness talked to Santosh Pandey at about 08:15 P.M. in the
hospital. It is further stated by this witness in his cross-
examination that he could not tell whether the inquest had been
prepared till the time of talk or not. He did not pay heed whether
the document was made or not. At the time of giving statement to
the police, they were disturbed and could not remember what
statement has been given.
12. P.W.-5, Sunil Kumar Ojha @ Dharmendra Ojha has
stated in his examination-in-chief that the occurrence took place
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
on 19.07.2014 and he was getting himself treated in B.H.U.,
Banaras. His brother and his sister-in-law were with him. Santosh
Pandey gave him information through mobile at about 03:45-04:00
P.M. that quarrel took place between Anil Ojha (deceased),
Ashwini Ojha and Gopal Ojha. Thereafter Gopal Ojha and
Ashwini Ojha came at his door and threatened to kill Anil Ojha.
This witness further deposed that thereafter they called Sanjay
Ojha. Sanjay Ojha came after one hour with 4-5 unknown persons.
After getting information, this witness sent his brother Birendra
Ojha. Thereafter at about 06:00-06.30 in the evening, he got
information that Sanjay Ojha shot fire on the temple of Anil Ojha
and Anil Ojha died. This witness further deposed that he became
unconscious after getting the information.
12.1. P.W.-5, Sunil Kumar Ojha @ Dharmendra Ojha
has stated in his cross-examination that he was admitted in B.H.U.
He was discharged on 19.07.2014 at 12 O'clock in the night. He
did not give any information regarding his illness to his
department. He did not hand over the mobile to the police on
which he received information. He did not tell the police that by
which mobile he got information. At the time of quarrel in Bahera
village, only Anil Ojha and his wife were present. This witness
further stated in his cross-examination that he went to the hospital
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
on 20.07.2014 at about 08:30-09:00 A.M. None of the family
members was present there. Birendra Ojha, Santosh Pandey, Arun
Dubey, Manoj Mishra and Ravi Mishra went to the hospital. The
dead body was received by Birendra Ojha. He did not go to the
place of occurrence with the police. The place of occurrence is
about 1-1.5 K.M. from his house situated at Mohadiganj. The
police did not go to village Bahera in his presence. This witness
further stated in his cross-examination that he did not tell the
police that he arrived Sasaram Sadar Hospital at 03:00 A.M. after
getting information. He told the police that 4-5 persons surrounded
the deceased and Sanjay Ojha shot fire.
13. P.W.-6, Dr. Sidheshwar Prasad Singh had conducted
the post-mortem on the dead body of the deceased and found
following injuries:
(i) Rigor mortis absent in upper limb & lower limb.
Lacerated wound 1/2" diameter inverted margin cavity
deep blackening around wound right parietal region, wound of
entry.
(ii) Lacerated wound 1-1/2" diameter inverted margin
cavity deep left temporal region (wrongly written as right region
due to slip of pen) behind ear, wound of exit.
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
(iii) Also found fracture of right parietal bone, fracture
of left temporal region.
Cause of death- Haemorrhage & shock due to above
mentioned injuries caused by firearm.
14. P.W.-7, Om Prakash Singh, who is the Investigating
Officer of this case, has deposed in his examination-in-chief that
the fardbeyan is in the handwriting and signature of S.I. Dinesh
Paswan. He left for investigation at 05:00 A.M. on 20.07.2014.
The inquest report is in the handwriting and signature of Dinesh
Paswan. It is further deposed that there are two places of
occurrence of the present incident, first, where the deceased was
killed and second, where the deceased was found dead. The first
place of occurrence is situated on Gorakshini-Ara-Sasaram main
road near a breaker whereas the second place of occurrence is a
road which goes towards Sasaram Station. A faint mark of blood
was found on the spot. It is further deposed by this witness in his
examination-in-chief that during investigation, he recorded the
statements of Arun Kumar Dubey, Santosh Kumar Bhanu,
Birendra Ojha, Sunil Ojha @ Dharmendra Ojha, informant Mamta
Devi, Rameshwar Ojha, Gangotri Devi and Ravi Kumar. The CDR
of mobile number of Gopal Ojha 9766990316 from 15.07.2014 to
22.07.2014 is mentioned in para 79 of the case diary. It is further
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
deposed that he perused the CDR by which it was found that
conversation has taken place on the day of incident with mobile
numbers 8521735892, 9504428360 and 8651877989. Mobile
number of Sanjay Ojha is mentioned in para-91. The location of
mobile number 8494097293, whose CDR from 16.07.2014 to
25.07.2014 has been received, is Jammu & Kashmir.
14.1. In the cross-examination, it is mentioned in para 4
of the case diary that, on 19.07.2014 at 07:00 o'clock, he received
telephonic information that someone has been killed in
Gorakshini. This witness further deposed that he did not record the
statement of residents those who lived near the first place of
occurrence, as they were not ready to give their statement. It is
mentioned in para 15 of the case diary that none of the witnesses
turned up for recording their respective statement. This witness
further deposed that he did not find any trace of blood at the first
place of occurrence. He did not seize anything from the second
place of occurrence and he found small traces of blood there. This
witness further stated in his cross-examination that accused
Ashwini Ojha and Gopal Ojha on the day of occurrence at 05:30
P.M. appeared at Kargahar police station and registered Case
No.180/14. After that, they were sent to Kargahar hospital from
where the doctor referred them to Sasaram. Ashok Ojha is in
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
C.R.P.F. in Jammu & Kashmir, hence, he has been falsely
implicated in the case. This witness further stated that he did not
register the fardbeyan. He did not prepare the inquest report. The
statement of Arun Kumar is in para 31. Arun Kumar Dubey in his
statement had not stated that Sanjay Ojha came and shot at the
right temple. He had not also said that the shot fired by Ashwini
Ojha did not hit. Witness Santosh Pandey in his statement in para
32 had not stated that Ashwini Ojha and Gopal Ojha went abusing
at the door and thereafter they went to their house and came with
gun and Katta, threatened to kill and after that Ashwini Ojha called
Sanjay Ojha by mobile and after one hour, Sanjay Ojha came and
threatened to kill.
15. We have re-appreciated the entire evidence led by
the prosecution as well as the defence before the Trial Court. It
would emerge from the record that there is delay of two days in
sending the copy of FIR to the court. It is pointed out from the
record that fardbeyan of P.W.-3, Mamta Devi came to be recorded
on 19.07.2014 however, the concerned Magistrate Court received
the copy of the FIR on 21.07.2014. It would also emerge that
fardbeyan of P.W.-3 was recorded by Police Sub-Inspector, Dinesh
Paswan. However, the said witness has not been examined by the
prosecution. It is surprising that though P.W.-1 and P.W.-2, who are
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
claiming to be eye witnesses to the occurrence in question, were
present in the hospital when the injured was taken to the hospital,
their statement was not recorded on the same day rather the
statement of aforesaid two witnesses under Section 161 of the
Code came to be recorded on 21.07.2014, i.e., after two days.
What further appears from the record is that as per the case of the
prosecution, the police arrived at the place of occurrence and took
the deceased to the hospital however, the person, who had taken
the injured (deceased) to the hospital, has not been examined by
the prosecution and even the station diary entry was not produced
before the Court. It would further reveal from the deposition of
P.W.-7, the Investigating Officer that there are two places of
occurrence. The place where firing took place and the deceased
sustained gun shot injury is the first place of occurrence whereas
the place where the deceased fell down after running away in order
to save his life is the second place of occurrence. The Investigating
Officer has specifically stated that at the first place of occurrence,
blood was not found however, at the second place of occurrence
small traces of blood was found. It is the case of P.W.-1 that he
was driving the motorcycle and Anil Ojha was sitting as pillion
rider and after the firing took place, the motorcycle fell down but
surprisingly P.W.-1 did not sustain any injury in the said
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
occurrence. It would further emerge from perusal of the record that
P.W.-1 and P.W.-2 are near relatives of the deceased but the injured
Anil Ojha was not taken to the hospital by the said two persons
and in fact police came at the place of occurrence on getting
information on phone made by third person. The independent
witnesses, though present at the place of occurrence, have not been
examined by the prosecution.
16. We also found major contradictions and
discrepancies in the deposition of the prosecution witnesses and
we are of the view that the so called eye witnesses are in fact
chance witnesses and their presence at the place of occurrence was
doubtful.
17. In the facts and circumstances of the present case,
we are of the view that the prosecution has failed to prove the case
against the appellants beyond reasonable doubt, despite which the
Trial Court has recorded the order of conviction. Hence, the
impugned judgment is required to be set aside. We are also of the
view that the learned Trial Court has not committed any error
while acquitting the two other co-accused, namely, Ashwini Ojha
@ Ashwini Kumar Ojha and Gopal Ojha by not believing the story
put forward by the prosecution.
Patna High Court CR. APP (DB) No.318 of 2015 dt.01-04-2024
18. Accordingly, the impugned judgment of conviction
dated 04.03.2015 and order of sentence dated 10.03.2015 passed
by learned 3rd Additional Sessions Judge, Rohtas at Sasaram in
connection with S.T. Case No.852 of 2014, arising out of Sasaram
Town P.S. Case No. 638/14 are quashed and set aside. The
appellant, namely, Sanjay Ojha is acquitted of the charges levelled
against him by the learned trial court. Since the appellant, named
above, is in jail, he is directed to be released forthwith, if his
presence is not required in any other case.
19. In the result, Criminal Appeal (DB) No.318 of 2015
is allowed and Criminal Appeal (DB) No.311 of 2015 is dismissed.
(Vipul M. Pancholi, J.)
(Sunil Dutta Mishra, J.)
Sanjay/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 04.04.2024
Transmission Date 04.04.2024
