Patna High Court
Sanjay Kumar Roy @ Sanjay Kumar vs The State Of Bihar on 12 January, 2024
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.319 of 2019
Arising Out of PS. Case No.-69 Year-2003 Thana- SONBERSHA RAJ District- Saharsa
======================================================
SHREE PRASAD RAY Son of Late Jattu Ray, Resident of Village suhat, P.S.-
Sour Bazar, District- Saharsa.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 339 of 2019
Arising Out of PS. Case No.-69 Year-2003 Thana- SONBERSHA RAJ District- Saharsa
======================================================
SANJAY KUMAR ROY @ SANJAY KUMAR S/o Late Ram Prasad Roy
Village- Suhath Bharna, P.S.- Sour Bazar, District- Saharsa
... ... Appellant/s
Versus
1. The State of Bihar
2. Roshan Roy S/o Sri Prasad Roy Village- Suhath Bharna, P.S.- Sour Bazar,
District- Saharsa
3. Satya Narayan Yadav @ Satto Yadav S/o Late Shukdev Yadav R/o village-
Suhath , P.S.- Sour Bazar, District- Saharsa
4. Yadunanadan Yadav S/o Premlal Yadav Village- Sirrahi, P.S.- Sour Bazar,
District- Saharsa
5. Dinesh Yadav S/o Nageshwar Yadav Village- Suhath, P.S.- Sour Bazar,
District- Saharsa
6. Amrendra Kumar Roy S/o Sri Prasad Roy Village- Suhath Bharna, P.S.-
Sour Bazar, District- Saharsa
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 340 of 2019
Arising Out of PS. Case No.-69 Year-2003 Thana- SONBERSHA RAJ District- Saharsa
======================================================
NARESH YADAV Son of Late Poli Yadav Resident of Village- Khajuraha,
P.S.- Sonbarsa, District- Saharsa.
... ... Appellant/s
Versus
THE STATE OF BIHAR
... ... Respondent/s
======================================================
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
2/40
with
CRIMINAL APPEAL (DB) No. 486 of 2019
Arising Out of PS. Case No.-69 Year-2003 Thana- SONBERSHA RAJ District- Saharsa
======================================================
SANJAY KUMAR ROY @ SANJAY KUMAR Son of Late Ram Prasad Roy
Resident of Village - Suhath Bharna, P.S.- Sour Bazar, Dist.- Saharsa.
... ... Appellant/s
Versus
1. The State of Bihar
2. Naresh Yadav Son of Tali Yadav Resident of Village - Khojraha, P.S.-
Sonbarsa Raj, Dist.- Saharsa.
3. Sanjay Yadav Son of Ganeshi Yadav Resident of Village - Gajipata, P.S.-
Sonbarsa Raj, Dist.- Saharsa.
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 495 of 2019
In
CRIMINAL APPEAL (SJ) No.1104 of 2019
Arising Out of PS. Case No.-69 Year-2003 Thana- SONBERSHA RAJ District- Saharsa
======================================================
SANJAY YADAV Son of Ganeshi Yadav Resident of Village - Gajepatta, P.S.-
Sonbersa, District - Saharsa
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 673 of 2019
In
CRIMINAL APPEAL (SJ) No.1295 of 2019
Arising Out of PS. Case No.-69 Year-2003 Thana- SONBERSHA RAJ District- Saharsa
======================================================
AMRENDRA KUMAR RAY Son of Sri Prasad Ray Resident of Village - Suhat,
P.S.- Sour Bazar, District- Saharsa
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 319 of 2019)
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
3/40
For the Appellant/s : Mr. Anshul, Adv
Ms. Sagarika, Adv
Ms. Aditya Pandey, Adv
Mr. Shyam Kishore, Adv
For the State : Ms. Shashi Bala Verma, APP
For the Informant : Mr. Hemendra Prasad Singh, Sr. Adv
((In CRIMINAL APPEAL (DB) No. 339 of 2019)
For the Appellant/s : Mr. Anshul, Adv
Ms. Sagarika, Adv
Ms. Aditya Pandey, Adv
Mr. Shyam Kishore, Adv
For the State : Ms. Shashi Bala Verma, APP
For the Informant : Mr. Hemendra Prasad Singh, Sr. Adv
((In CRIMINAL APPEAL (DB) No. 340 of 2019)
For the Appellant/s : Mr. Chandra Mohan Jha, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, APP
(In CRIMINAL APPEAL (DB) No. 486 of 2019)
For the Appellant/s : Mr. Baleshwar Kamat, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, APP
(In CRIMINAL APPEAL (DB) No. 495 of 2019)
For the Appellant/s : Mr.Viveka Nand Singh, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, APP
(In CRIMINAL APPEAL (DB) No. 673 of 2019)
For the Appellant/s : Mr. Anshul, Adv
Ms. Sagarika, Adv
Ms. Aditya Pandey, Adv
Mr. Shyam Kishore, Adv
For the State : Ms. Shashi Bala Verma, APP
For the Informant : Mr. Hemendra Prasad Singh, Sr. Adv
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH)
Date : 12-01-2024
Since all these appeals arise out of the same Sessions
Trial No. 67 of 2005/222 of 2005 (2047 of 2015), putting to
challenge two separate set of judgments of conviction and the
orders of sentences have been passed by the learned trial court
dated 17.01.2019/18.01.2019 and 08.02.2019/13.02.2019, they
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
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have been heard together and are being disposed of by the
present common judgment and order.
2. By the judgment of conviction dated 17.01.2019 and
the order of sentence dated 18.01.2019. The appellants Shree
Prasad Ray and Amrendra Kumar Ray have been convicted and
sentenced as under:-
Appellant Shree Prasad Ray in Criminal Appeal (DB)
No. 319 of 2019
Penal Sentence
Provision Imprisonment Fine (Rs.) In default
of fine
Section R.I. for life Rs. 15,000/- S.I. Six
302 of the months
IPC
Section R.I. for three Rs. 5000/- S.I. three
27(1) of years months
the Arms
Act
Appellant Amrendra Kumar Ray in Criminal Appeal
(DB) No. 673 of 2019
Penal Sentence
Provision Imprisonment Fine (Rs.) In default
of fine
Section R.I. for 10 years Rs. 10,000/- S.I. Six
307 of the months
IPC
Section R.I. for three Rs. 5000/- S.I. three
27(1) of years months
the Arms
Act
3. By the same judgment dated 17.01.2019 the trial
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
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court has acquitted some of the persons who were facing trial
with the aforesaid appellants, viz., Satyanarayan Yadav and
Raushan Kumar. In the aforesaid background, the appellants
Shree Prasad Ray and Amrendra Kumar Ray have preferred
Criminal Appeal (DB) No. 319 of 2019 and Criminal Appeal
(DB) No. 673 of 2019 under section 374(2) of the CrPC
assailing the judgment of conviction dated 17.01.2019 and the
order of sentence dated 18.01.2019 passed by learned Presiding
Officer, Fast Track Court, Saharsa. The informant of the case is
aggrieved by the acquittal of the abovenamed co-accused
Yadunandan Yadav, Dinesh Yadav, Satyanarayan Yadav and
Raushan Kumar and has preferred an appeal against acquittal
under Section 372 of the CrPC, giving rise to Criminal Appeal
(DB) No. 339 of 2019.
4. From the records, it transpires that after conclusion
of arguments at the trial, on the date of judgment, the appellants
Naresh Yadav of Criminal Appeal (DB) No. 340 of 2019 and
Sanjay Yadav of Criminal Appeal (DB) No. 495 of 2019, were
not present in the court and, therefore, no judgment was passed
against them on 17.01.2019. Subsequently, when they were
apprehended and produced before the trial court, a separate
judgment of conviction came to be delivered in their presence
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
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on 08.02.2019 and the order of sentence on 13.02.2019,
convicting them of the offences punishable under Section 307 of
the Indian Penal Code and Section 27 of the Arms Act and
sentencing them to imprisonment and fine in following terms:-
Appellant Naresh Yadav in Criminal Appeal (DB) No.
340 of 2019
Penal Sentence
Provision Imprisonment Fine (Rs.) In default
of fine
307 of the RI for five years Rs.10,000/- SI for six
IPC months
27 of the RI for three years Rs. 5,000/- SI for three
Arms Act months
Appellant Sanjay Yadav in Criminal Appeal (DB) No.
495 of 2019
Penal Sentence
Provision Imprisonment Fine (Rs.) In default
of fine
307 of the RI for five years Rs. 10,000/- SI for six
IPC months
27 of the RI for three years Rs. 5,000/- SI for three
Arms Act months
5. Criminal Appeal (DB) No. 486 of 2019 has been
filed by the informant of the case under Section 372 of the CrPC
assailing the judgment dated 08.02.2019 as according to him the
conviction recorded by the trial court is for a lesser offence
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
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Section 307 of the IPC instead of Section 302 of the IPC
thereof.
6. We have heard Mr. Anshul, learned counsel
appearing on behalf of the appellants in Cr. Appeal (DB) No.
319 of 2019 and Cr. Appeal (DB) No. 673 of 2019, Criminal
Appeal (DB) No. 340 of 2019 and Criminal Appeal (DB) No.
495 of 2019 for the appellants. Mr. Hemendra Prasad Singh,
learned Senior Counsel has assisted this Court on behalf of the
appellants in the appeal against acquittal. He has also appeared
on behalf of the informant to oppose the appeals against
conviction.
7. The son of the deceased, Sanjay Kumar Roy is the
informant whose fardbeyan recorded at 1:45pm at the place of
occurrence on 17.10.2003 is the basis for registration of
Sonbarsa Raj PS Case No. 69 of 2003 disclosing commission of
the offences punishable under Section 302 read with 34 of the
Indian Penal Code and Section 27 of the Arms Act. There were
altogether 9 persons, viz., Narad Yadav s/o of Late Jagdish
Yadav, Subhash Yadav s/o Satya Narayan Yadav, Krishna
Kumar Yadav s/o Satyanarayan Yadav, Dinesh Yadav s/o
Nageshwar Yadav, Satya Narayan Yadav s/o Late. Sukhdeo
Yadav, Amrendra Kumar Ray s/o Sree Prasad Ray, Raushan
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
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Kumar s/o Shree Prasad Ray, Sree Prasad Ray s/o Lat. Jathu
Ray and Yadunandan Yadav s/o Prem Lal Yadav who were
arraigned as accused in the FIR.
8. It can be easily inferred from the First Information
Report that Satya Narayan Yadav and his two sons namely,
Subhash Yadav and Krishna Kumar Yadav were named in the
FIR. Similarly, Sri Prasad Ray and his two sons, namely,
Amrendra Kumar Ray and Raushan Kumar were named. In
addition to these 6 persons, and 3 other persons as noted above
were named in the FIR. As can be seen from the First
Information Report, the occurrence is said to have taken place at
a kutcha village road, 8 kms away from the police station,
passing through an agricultural field. The informant alleged in
his fardbeyan that at about 11:30 am he had proceeded from his
house in village Suhath, Bharna for Lagma Chowk, and on his
way he met his father (the deceased) and his brother Raj Kumar
Ray (PW-15) who were also coming from the village on a
motorcycle. After some conversation, his father and brother
proceeded ahead on the motorcycle. Suddenly, in the
meanwhile, the criminals (persons named in the FIR) emerged
from the adjacent paddy and sugarcane field and all of them
started firing indiscriminately targeting the deceased and his
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
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brother. Out of fear the informant concealed himself in a safe
place and started witnessing the entire incident. He described in
his fardbeyan in detail as to which accused was carrying which
weapon. He alleged that Narad Yadav was carrying a "303
rifle". Amrendra Kumar and Krishna Kumar were also carrying
country made rifles. Dinesh Yadav was carrying lathi whereas
Sri Prasad Ray and Raushan Kumar were carrying "303 rifle",
Yadunandan Yadav was also carrying "303 rifle". Because of the
indiscriminate firing caused by them, the deceased and his son,
who was riding the motorcycle sustained firearm injuries. The
deceased and his son (injured) (PW-15) attempted to flee away
after leaving the motorcycle behind, but they were chased and
shot at by the accused persons. The accused persons, after
having committed the crime escaped from the place of
occurrence on motorcycle(s) and horse(s). Thereafter, when he
reached near the deceased and his brother, he noticed that his
father was dead and his body was lying in a pool of blood. In his
assessment, his father had sustained firearm injuries in his neck,
chest, ribcage and arm. The brother of the informant namely,
Raj Kumar Ray (PW-15) had also sustained injuries in his right
arm and on right side of the chest. He was also profusely
bleeding. An old animosity between the informant's uncle, Sri
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
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Prasad Ray (an appellant) in relation to a huge chunk of land
was the reason behind the occurrence. In his fardbeyan he
specifically mentioned that the occurrence had taken place at
12:30 pm. As has been noted at the outset, in relation to the
occurrence which had taken place, according to the informant at
12.30 am, the fardbeyan was recorded by the police at the place
of occurrence at 1:45pm. The Police Officer who had prepared
the inquest report found following marks of injuries on the
person of the deceased:-
"1. An injury on the right side of the neck.
2. Fire arm injury on the right side of the chest of the
deceased. Another fire arm injury on the chest of the
deceased.
3. An injury on the right side of the back.
4. An injury on the right side of the rib-cage.
5. An injury on the waist of the deceased."
9. All the injuries appeared to have been caused by the
firearm. Two persons namely, Ram Kumar Ray (PW-10) and
Ashoka Kumar Ray (PW-7) are said to have witnessed the
preparation of the inquest report at the place of occurrence. The
dead body of the deceased was sent for postmortem
examination. The Doctor (PW-3) found following antemortem
injuries on the body of the deceased.
"I. Firearm entry wound on right side of
neck just near the later end of right clavicle, size 1/2"
x 1/2" diameter, margin in rular and oval in shape,
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
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margin inverted black and charred. It was the wound
of of entry which passed obliquely damaging the
right lung, liver, and perforated the diaphragm and
exit wound on right side of back just 3" from the
spine. Size of exit wound about 3/A" x 3/A", margin
irregular, inverted and oval in shape.
II. Second fire arm injury wound on the
right side of chest joint about 1" lateral to midline of
sternum and about 1/2" below the right injury present
on anterior surface of chest. Size about 1/2" x 1/2"-
margin irregular and oval in shape, margin inverted
and black & charred. It passed obliquely and
posteriorly and passed through liver diaphragm and
exit right side of back joint 1" away from vertebral
spine on posterior surface of right eliac fossa. It also
performated the small intestine size of exit wound
about 1"x1" margin irregular, inverted and oval in
shape.
On internal examination- Ruptured plura
and right ling. Lacerated wound found. Liver-
lacerated wound in liver right side. Perforation of
diaphragm with tear margin found in two places.
Huge blood and clots were found in chest cavity.
In abdominal cavity perforation of blood
and food materials and faceal materials found."
10. The Police, submitted its first chargesheet against
the accused Krishna Kumar Yadav for the offence punishable
under Section 302 read with 34 and Section 27 of the Arms Act
while keeping the investigation pending against other accused
persons. The second chargesheet was submitted against co-
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
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accused Yadunandan Yadav for the offence punishable under
Section 302 read with 34 of the Indian Penal Code and Section
27 of the Arms Act. The third chargesheet was submitted against
the appellant Amrendra Kumar Ray for the offence punishable
under Sections 307, 302 and 120B read with 34 of the Indian
Penal Code and Section 27 of the Arms Act. Fourth chargesheet
was submitted against co-accused Satya Narayan Yadav and the
appellant Sanjay Yadav, who was not named in the FIR, for the
offence punishable under Section 302 read with 34 of the Indian
Penal Code. Yet another supplementary chargesheet was
submitted against co-accused Subhash Yadav, Dinesh Yadav,
Raushan Kumar, Sree Prasad Ray (Criminal Appeal (DB) No.
319 of 2019) and Narad Yadav. From the records, it transpire
that final chargesheet against the appellant Amrendra Kumar
Ray led to institution of Sessions Trial No. 67 of 2005. The
charge was framed against him on 22.09.2005 for commission
of the offence punishable under Section 302 read with Section
34 of the Indian Penal Code and Section 27(3) of the Arms Act.
As other accused persons had absconded, their trial stood
separated. Subsequently charges were framed against Satya
narayan Yadav @ Sattu Yadav, Yadu Nandan Yadav, Sri Prasad
Ray, Raushan Kumar, Sanjay Yadav, Dinesh Yadav and Naresh
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
13/40
Yadav on 03.05.2006 for the offences punishable under Sections
302, 307 read with 34 of the Indian Penal Code and Section 27
of the Arms Act. It further transpires that subsequently by an
order dated 03.07.2006 the Sessions Trial No. 67 of 2005 and
Sessions Trial No. 222 of 2005 were amalgamated. It is
worthwhile mentioning that co-accused Krishna Kumar Yadav
was charged of the offence punishable under Section 302/34 and
27 of the Arms Act in Sessions Trial No. 45 of 2004 which
resulted into his conviction and sentence by judgment and order
dated 30.08.2018/04.09.2018 which is subject matter of
challenge in Cr. Appeal (DB) No. 1255 of 2018 before this
Court. Since co-accused Narad Yadav absconded during the
course of trial, his trial was directed to be separated by the trial
court. It has been stated at the bar that he died during the
pendency of the trial. It further transpires from the record that
the trial as against accused Naresh Yadav and Sanjay Yadav
were separated as they had absented themselves before the
judgment of the trial court could be delivered on 17.01.2019.
After the impugned judgment dated 17.01.2019 was delivered
by the trial court, the appellants Naresh Yadav and Sanjay Yadav
were apprehended and a separate judgment of conviction and
the order of sentence dated 18.02.2019 and 13.02.2019 was
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
14/40
passed against them in the same Sessions Trial No. 67/05/
222/05 which are under challenge in Cr. Appeal (DB) No. 340
of 2019 and Cr. Appeal (DB) No. 495 of 2019. It is also
pertinent to mention here that the trial against Subhash Yadav
had to be separated and trial against him was registered as
67/05/222/05
(S). He has been convicted by a judgment dated
18.03.2019 and sentenced to imprisonment and fine vide order
dated 28.03.2019 which are under challenge in Cr. Appeal (DB)
No. 522 of 2019.
11. It is also worthwhile mentioning that since
Sonbarsa Raj PS Case No. 69 of 2003 gave rise to different
trials and consequent criminal appeals preferred by the convicts
and the informant, all such criminal were listed alongside for
hearing.
12. In the aforesaid background all these appeals
arising out of the same sessions appeals arising out of the same
sessions trial have been heard side by side.
13. We have mentioned in detail the accusation against
these appellants, and other co-accused persons as made in the
fardbeyan of the informant and the circumstance in which these
appeals have been heard together. At the trial the appellants
Shree Prasad Ray, Naresh yadav, Sanjay Yadav and Amrendra
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
Kumar Ray were charged of commission of the offences
punishable under sections 302/34 and 307/34 of the IPC and
Section 27 of the Arms Act.
14. They denied the charges and claimed to be tried.
The prosecution examined altogether 18 witnesses to prove the
charges against them including the informant (PW-4), the
injured witness (PW-15), who claimed at the trial to be an eye
witness. Indra Dev Ray (PW-1) claimed to have reached the
place of occurrence and had seen the accused persons fleeing
away, according to his deposition. The doctor, who had
conducted the postmortem examination of the deceased,
deposed as PW-3 and the doctor who had treated the injured
witness as PW-14. The Investigation Officer deposed as PW-5.
The inquest report was proved by PW-17, Another son of the
deceased Santosh Kumar Ray deposed as PW-16. PW Nos. 6, 7,
8, 9, 11 and 12 did not support the prosecution's case and
accordingly they came to be declared hostile at the instance of
the prosecution. Ajit Ray (PW-13) also did not support the case
of the prosecution, though not declared hostile.
15. In addition to the oral evidence of the
prosecution's witnesses, the prosecution brought on record at
the trial following documentary evidence to substantiate the
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
charges against these appellants.
Sl. Description Exhibit
No. Number
1. P.M report Exhibit-1
2. Fardbeyan Exhibit-2
3. Discharge Slip Exhibit-3
4. Signature and writing of Inspector Exhibit-4
Ajay Kumar on Post mortem report
5. Signature and writing of Ajay Kumar Exhibit-5
on challan of the dead body
6. Details of station diary of 17.10.2003 Exhibit-6
7. Objection petition Exhibit-7
8. Three prescriptions in the name of Dr. Exhibit-8 to
Gopal Sharan Singh of Satyam 8/2
Hospital, Saharsa
9. Prescription of Dr. Pramod Kumar Exhibit-8/3
Agarwal, Katihar
10. Prescription of Dr. S.P. Singh, Purnea Exhibit-8/4
11. Certified copy of judgment of S.T. Exhibit-9
10. Memo no. 453 dated 24.12.2014 of Exhibit-10
S.P. Saharsa
16. After closure of the prosecution's evidence, the
appellants were questioned under Section 313 of the CrPC so as
to give them an opportunity to explain the incriminating
circumstances emerging against them based on the evidence
adduced by the prosecution at the trial. It has been pointed out
by learned counsel for the appellants that identical questions
were put to all the persons facing trial under Section 313 of the
CrPC. The identical set of questions which were put to all the
appellants are being reproduced herein below for the benefit of
quick reference :-
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
iz0%& xokgks dk C;ku lquk gS \
m0%& th gk¡A
iz0%& xokgks dk dguk gS fd vki vU; vfHk;qDrksa ls feydj
fn0&17-10-03 dks xzke ucVksfy;k Fkkuk lksuc'kkZ jkt ftyk lgjlk
fLFkr vxus;L= ls yS"k gksdj ,d mn~ns"; ls izsfjr gksdj jke
izlkn jk; ij xksyh Qk;j fd;s] ftlls jkeizlkn jk; ?kVuk
LFky ij gh ej x;sA
m0%& th ughaA
iz0%& xokgks dk ;g Hkh dguk gS fd fn0&17-10-03 dks gh vki
vU; vfHk;qDrksa ls fey dj ,d mn~ns"; ls izsfjr gksdj vXus;L=
ls jkt dqekj jk; ij tku ekjus ds fu;r ls Qk;j fd;s ftls og
t[eh gks x;kA
m0%& th ughA
iz0%&xokgks dk ;g Hkh dguk gS fd vki rFkk vU; vfHk;qDrksa }kjk
jktdqekj jk; ij vXus;L= ls Qk;j fd;k tks xksyh jktdqekj jk;
dks yxh rFkk og xksyh yxus ds dkj.k fodykax gks x;s gSA
m0%& th ughA
iz0%& lQkbZ esa dqN dguk gS \
m0%& funksZ'k gw¡A
17. Thereafter the defence got examined two defence
witnesses, namely, Sajan Yadav (DW-1) and Gajendra Yadav
(DW-2). A plea of alibi was taken for the accused Yadunandan
Yadav through the evidence of DW-1. Through DW-2, the
defence attempted to make out a case that the informant was not
present at the place of occurrence and at the time of occurrence
as he was somewhere else. The trial court after having
appreciated the evidence adduced at the trial has recorded
conviction of the appellants Sree Prasad Ray, Amrendra Kumar
Ray, Naresh Yadav and Sanjay Yadav and has sentenced them to
imprisonment and fine as has been noted hereinabove. We have
already noted that the trial court has acquitted Raushan Ray,
Satya Narayan Yadav and Dinesh Yadav. The informant has
preferred Criminal Appeal (DB) No. 339 of 2019 challenging
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
their acquittal. The informant is also aggrieved by the
conviction of Amrendra Kumar Ray, appellants in Cr. Appeal
No. 673 of 2019 for the offence punishable under Section 307 of
the Indian Penal Code instead of Section 302 thereof.
18. Mr. Anshul, learned counsel appearing in all these
appeals against conviction has firstly submitted that it is
manifest from the First Information Report that the fardbeyan of
the informant was recorded by the SHO at 1:45 pm on
17.10.2003. Time of occurrence according to the informant was
12:30 pm. The distance of the police station from the place of
occurrence as noted in the formal FIR was 8 kms. The
prosecution's case, is silent about the initial version of the
occurrence learning which the police had reached the place of
occurrence. He submits that suppression of the first version of
the incident by the prosecution based on which the police had
reached the place of occurrence raises serious suspicion about
the veracity of the prosecution's case as disclosed in the
fardbeyan. He has secondly submitted that it is evident from the
formal FIR that it was registered on 17.10.2003 at 6:00pm and
was received in the Court on 20.08.2003. Belated transmission
of FIR to the Magistrate mandate of Section 157 of the CrPC to
transmit the FIR to the Magistrate forthwith under Section
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
157(1) of the Cr.P.C, gives enough scope of manipulation for
false implication of the accused persons in the background of
the existing animosity as alleged in the FIR itself.
19. He had further argued that the prosecution has
miserably failed to prove the place of occurrence inasmuch as
no blood-stained soil has been proved to have been found at the
place of occurrence. Further, neither the blood-stained clothes of
the deceased nor that of the injured witness (PW-15) was seized,
let alone bringing the same before the trial court in support of
the prosecution's case. He has further, argued that according to
the evidence of the witnesses the injured Raj Kumar Ray (PW-
15) was taken first to Government hospital from where he was
taken to Dr. Gopal Saran Singh (PW-14) for better treatment. He
contends that there is no evidence to the effect that PW-15 was
ever taken to a Government hospital. He has further submitted
that according to the prosecution's case the deceased and the
injured witness had attempted to flee from the place of
occurrence after leaving the motorcycle behind when they were
ambushed. Neither the said motorcycle nor the bicycle which
the informant was riding was found near the place of
occurrence. The failure on the part of the prosecution to prove
the presence of the motorcycle and the bicycle at the place of
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
occurrence is fatal to the prosecution's case, he contends. He has
further argued that there are material inconsistencies in the
evidence of PW-4, the inquest report and the postmortem report
on the point of number of firearm injuries which the deceased
had sustained in the occurrence. Whereas PW-4 specifically
deposed at the trial in his cross-examination that the deceased
had sustained six firearm injuries, the postmortem report
indicates two firearm injuries only, i.e., "two entry wounds"
and corresponding two exit wounds. The inquest report on the
other hand suggests that the police officer had found three entry
wounds on the chest and arm of the deceased. He contends that
the manner of occurrence as set out by the prosecution at the
trial is completely demolished if these evidences are conjointly
read. He has also argued, referring to the postmortem
examination that the locations of entry wounds and the exit
wounds suggest that the deceased had sustained firearm injuries
caused by shots made from higher altitude. He submits that the
postmortem report further indicates that both the wounds of
entries displayed charring which could not have been possible,
if the shots were fired from distance of 10-15 feets as asserted
by the prosecution. He has also argued that the evidence of the
prosecution's witnesses are self-contradictory as some of them
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
deposed at the trial that the accused persons had come on
motorcycle whereas some deposed that they were riding horses.
He has also argued, furthermore, that though, according to the
prosecution's case there was paddy and sugarcane field where
the appellant and other accused persons were hiding and had
ambushed the deceased, it is evident, however, from the
evidence of the I.O. that no trampling of the plants was found in
the field, though he had noticed sugarcane and harvested paddy
plants.
20. Ms. Shasi Bala Verma, learned Additional Public
Prosecutor appearing on behalf of the State has submitted that in
this case PW-15 is certainly an eye-witness who himself had
sustained firearm injury caused by the accused persons. He
being the most competent witness, his evidence cannot be
discarded on the ground of minor discrepancies in the evidence
of other witnesses and failure on the part of the I.O. to seize the
blood-stained clothes of the deceased. She has submitted that
there is no reason why the informant and the injured witness
would falsely implicate the co-accused persons and thereby let
the real miscreants go scot-free. She has argued that the
informant in the present case is an eye-witness and has fully
supported the prosecution's case at the trial. The fact that PW-15
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
had sustained firearm injury on the date of occurrence in the
said occurrence is also corroborated by the evidence of Dr.
Gopal Sharan Singh (PW-14) who had treated him. She further
submits that the finding of conviction suffers from no legal
infirmity requiring this Court's interference. She has also argued
that the evidence of PW-14 further proves that PW-15 (the
injured witness) was referred to him by the Sadar Hospital,
Saharsa which goes to suggest that he was taken to Sadar
Hospital, Saharsa first for treatment. The contention that PW-15
was not taken to a Government hospital for treatment after the
occurrence has no merit. She has also submitted that the finding
of conviction should not be interfered with by doubting the
prosecution's case solely on the ground of delay in transmission
of the FIR to the Magistrate.
21. Mr. Hemendra Prasad Singh, learned Senior counsel
appearing on behalf of the informant has drawn this Court's
attention to the formal FIR to argue that it was promptly
transmitted to the Court as required under Section 157(1) of the
CrPC and the ordersheet dated 18.10.2003 of the court of
learned Chief Judicial Magistrate indicates that the same was
received in the court on the same day. In such circumstance,
there is no delay in transmission of the FIR by the police to the
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
court nor in receiving of the same, he contends. He has argued
that in this case, the charges against the appellants stood fully
proved of commission of offence punishable under Section 302
read with 34 of the IPC and Section 27 of the Arms Act based
on the evidence of two eye-witnesses, one of whom is an injured
witness who had sustained firearm injuries in the occurrence. He
has submitted that it is true that there has been failure on the
part of the I.O. in recovering the incriminating materials from
the place of occurrence but such failure cannot be a basis for
giving the convicts, a benefit of doubt. Addressing the points of
inconsistencies and contradictions in the oral evidence of the
witnesses and the postmortem report he submits that it is settled
principle of law that an oral evidence should prevail over the
expert's opinion. He contends that there is no reason to doubt
the testimonies of the eye-witnesses. He has also argued that the
prosecution's case cannot be doubted merely on the ground that
the prosecution failed to prove the foremost information which
the police had received whereupon they had reached the place of
occurrence, where the fardbeyan of the informant was recorded.
He has submitted that charring in the entry wound is possible if
the injury is caused by a firearm from a distance of 10-15 feet,
as can been seen from the evidence of the Doctor himself. He
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
contends that on the said ground also the finding of conviction
does not require interference. Pressing his appeals the proviso to
Section 372 of the CrPC filed by the informant Sanjay Kumar
Ray in Criminal Appeal (DB) No. 339 of 2019 and Criminal
Appeal (DB) No. 486 of 2019 has submitted that there being
consistent evidence of the eye-witnesses including respondents
no. 2-6 of participation of all the accused persons in commission
of offence with an intention to kill the deceased and PW-15, the
trial court has wrongly acquitted the said respondents of the
charge of commission of offence punishable under Section 302
of the IPC and convicted respondent No. 6 for the charge
punishable under Section 307 of the IPC instead of Section 302
thereof. He has submitted that each of the accused persons had,
with a common intention to kill the deceased and PW-15,
resorted to discriminate firing so much so that they were chased
by them and shot at. He submits that the acquittal is wholly
unjustified and this Court should reverse the finding of acquittal
as against Respondents No. 2-5 and hold them guilty of the
charges framed against them and modify the conviction of
Respondent No. 6 from Section 307 of the IPC to Section 302
read with Section 34 of the IPC. Learned counsel for the
informant has argued that the failure on the part of the I.O. to
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
carry out proper investigation may not be a ground for this
Court to interfere with the findings of conviction.
22. We have perused the impugned judgment and order
of the trial court and the lower court's records and we have
given our thoughtful consideration to the rival submissions
advanced on behalf of the parties as noted above.
23. As has been noted above, it has been argued on
behalf of the appellants, challenging the judgment of conviction
that there had been delay in transmission of the FIR. We have
perused the original records and we find that the FIR was
registered at 6:00 pm on 17.10.2003 and was available in the
court on 18.10.2003. We do not find any substance in the said
submission which is accordingly rejected.
24. The second point which has been urged on behalf of
the appellants is that it is evident from the records that the police
had reached the place of occurrence nearly 1 hour 15 minutes
after the time of occurrence, as according to the informant (PW-
4), the occurrence had taken place at 12:30 pm. The nature of
information received by the police whereupon police has
reached the place of occurrence has not been disclosed. The I.O.
(PW-5) deposed at the trial that at about 1:05 pm he had learnt
about the rumor of an occurrence of murder near village Lagma
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
Navtolia. After entering a Sanha, for verification of the said
information he proceeded towards the village with police force
and reached there at about 1:45 pm and recorded the fardbeyan
of the informant. On careful perusal of the records, we find
substance in the submissions advanced on behalf of the
appellants that except the vague deposition of the informant that
he had learnt through rumors about the occurrence, the nature of
the information which was first received by him has not been
disclosed rather suppressed.
25. Further, the I.O. deposed that he had found a
motorcycle at the place of occurrence but without preparing any
seizure memo he had handed over the same to the informant. He
had not found the bicycle at the place of occurrence which
according to the informant, he was riding at the time of
occurrence and he had left bicycle and bag full of rice and
lentils at the place of occurrence itself, which the informant was
carrying. A suggestion was made by the defence while cross-
examining the I.O. about the criminal antecedent of the
deceased as to whether he was convicted of any case of offence
under Section 302 of the IPC or not. No investigation was done
by the I.O. on the point of the criminal antecedent of the
deceased. He admitted in his cross-examination that he had not
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
seized the blood-stained clothes of the deceased nor had found
any spent cartridge at the place of occurrence. He also agreed to
the suggestion that he had not mentioned in the case diary as to
who had informed him about the occurrence.
26. The description of the place of occurrence,
according to the informant was a village road adjacent to which
there was an agricultural field having sugarcane crops. The
informant was on a bicycle with the bags of rice and lentils
when the deceased and PW-15 were ambushed. The FIR gives
vivid description of the accused persons with their parentage
and as to which of the arm each of them were carrying when
they had attacked the deceased and PW-15. It is the definite
evidence of the appellant that an indiscriminate firing was made
by the accused persons on the deceased and the injured (PW-15)
and that they were profusely bleeding. The police had reached,
according to the prosecution's case, hardly one hour after the
occurrence. It is also the evidence of the informant and the
injured witness that the deceased and the injured witness were
profusely bleeding. After having committed the crime,
according to the prosecution's case, the accused persons had
escaped from the place of occurrence on motorcycle/horses.
This being the scene of the occurrence, in the Court's opinion it
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
was incumbent upon the prosecution to have proved the place of
occurrence with cogent evidence. It is conspicuous from the
evidence led at the trial that there was no blood mark found at
the place of occurrence. The motorcycle which the deceased and
the injured witness were riding and was left by them in order to
escape the assault would have been an important piece of
evidence to prove their presence at the place of occurrence. The
motorcycle was not seized and according to the IO, without any
inquiry or investigation the same was handed over to the
informant himself. According to the prosecution's case, the
informant was riding a bicycle which also was lying at the place
of occurrence. The police did not find bicycle present at the
place of occurrence. The evidence that 9 accused persons were
hiding in a sugarcane field and after commission of the crime all
of them escaped on motorcycle/horses would have certainly left
some mark/evidence in the nature of trampled plants, scattered
soil, etc. It is evident from the deposition of the I.O. that no such
evidence was found by him at the place of occurrence. The I.O.
deposed at the trial that he had done a minute inspection of the
place of occurrence but no pellets or firearm was recovered
because of the harvested paddy crop in the field. The
explanation to justify failure on the part of the IO/police to
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
recover spent cartridges at the place of occurrence on the ground
that it could not be done because of presence of paddy crops in
the field could have been accepted and the place of occurrence
could not have been doubted on that ground alone, had the
prosecution was able to prove the other important aspects in
relation to the place of occurrence, as noted above.
27. It is relevant to notice at this juncture, the evidence
of the Investigating Officer (PW-5) on the point of the presence
of the injured eye witness at the place of occurrence, when he
had reached there. In his cross-examination the I.O. initially
deposed that PW-15 (the injured witness) was lying in an
injured condition at the place of occurrence. He specifically
deposed that PW-15 was lying in the paddy field which he had
mentioned in the case diary. On further examination, he testified
that he did not remember as to how far the injured (PW-15) was
lying from the dead body of the deceased which was not
mentioned in the case diary. In the same breath, contradicting
his evidence, he deposed that he had not seen PW-15 at the
place of occurrence because he was already taken by the persons
for treatment from there. The statement of the injured was
recorded by him seven days after the date of occurrence in the
clinic of Dr. Gopal Sharan Singh at Saharsa. It is clear from his
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
deposition that he could not collect any evidence of PW-15
having been taken to Sadar Hospital whereafter he was referred
to the clinic of Dr. Gopal Sharan Singh (PW-14). He had not
recorded the statement of Dr. Gopal Sharan Singh. Apparently,
thus, going by the evidence of Investigating officer, PW-14
deposed at the trial for the first time. We are of the opinion, thus,
that the I.O. fumbled in his deposition on the point of the
presence or otherwise of the injured at the place of occurrence
where he had reached in response to the certain rumors
regarding the occurrence of a murder.
28. Further we find merit in the submission advanced on
behalf of the convicts that the postmortem report does not
corroborate the manner of occurrence as set out by the
informant in his fardbeyan and the prosecution at the trial during
the course of investigation. It has been the consistent case of the
prosecution that all the persons named in the F.I.R. has resorted
to indiscriminate firing targeting the deceased and PW-15 when
they were going on a motorcycle. The informant (PW-4) in para
17 during his cross-examination specifically deposed that six
bullets had hit the deceased and two, to the injured witness (PW-
15). He reiterated that he was witnessing the entire occurrence
by hiding himself behind a tree. Similarly, PW-15, consistent
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
with the evidence of the informant deposed that the miscreants
were firing from a distance of 10 to 15 feet. Six bullets had hit
the deceased. In his evidence, he described as to which shot
fired by whom had hit the deceased and PW-15. According to
him the fire shot by Subhash Yadav hit the deceased in the right
side of the neck and the second one in his chest. Two shots were
fired by Kishan Kumar, first of which hit the deceased in his
chest and the second on his back. The appellant Shree Prasad
Ray had fired two shots, one of which had hit the rib cage of the
deceased and the other hit the waist of the deceased. Appellant
Amrendra Kumar Ray shot at PW-15 one of which hit him in his
right arm and the other in his chest. He also deposed that he
regained consciousness two days after the occurrence while
under treatment in the clinic of PW-14. We have noted
hereinabove the antemortem injuries sustained by the deceased
as per the postmortem report. It is evident from the postmortem
report (Exhibit-1) and the evidence of the doctor who had
conducted the postmortem examination that the deceased had
sustained two fire arm injuries and accordingly, two entry
wounds and two exit wounds were found to have been caused
by fire arm. On close scrutiny of evidence of PW-15, it can be
easily inferred that he is not wholly reliable. This is also for the
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
reason that in his evidence, he gave a vivid description of a
respective shots made by the accused persons and, the shots
made by which accused had shot which part of the body of the
deceased and PW-15 himself, which appears to be highly
improbable in normal circumstances. It is noteworthy that there
are two witnesses namely PW-2 (the informant) and the injured
witness PW-15 who claimed to have seen the occurrence. Their
consistent evidence to the effect that the deceased had received
six gun shots injuries is not corroborated by the medical
evidence rather the same stands falsified by the same.
29. There is yet another aspect of the matter which has
been argued on behalf of the convicts. It has been argued that
whereas the witnesses have deposed that the fires were shot
from a distance of 10 to 15 feet, the entry wounds have been
found to be 'black' and 'chard' which would have been possible
only if the shots were fired from a close range. This is an
additional reason why the manner of occurrence as set out by
the prosecution becomes doubtful. The postmortem report
(Exhibit-1) is not only inconsistent with the oral evidence of eye
witnesses rather the same contradicts the evidence of the said
eye witnesses. We are, thus, of the view that this aspect coupled
with the fact that the first wound of entry of the deceased was
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
found to have passed obliquely, in the postmortem examination,
entering into the right side of neck near the lateral end of right
cervical, damaging right lung, liver and perforating the
diaphragm and the exit wound being on the right side of the
back from the spine, gives an impression that the shots leading
to injury caused to the deceased were fired from above, contrary
to the prosecution's case that the shots were fired from the
agricultural field and with the deceased on the same plain.
Similar is the situation in case of second fire arm injury, the
entry wound being on the right side of the chest and which
passed obliquely coming out of the right side of the back, just
one inch away from the vertebral spine. The antemortem
injuries sustained by the deceased appears to have been caused
by firing from a very close range. We are of the view, thus, that
it would be unsafe for this court to wholly rely on the evidence
of PWs 4 and 15 who have claimed to be eye witnesses. PW-1 is
not an eye witness to the occurrence. According to him, he had
reached the place of occurrence soon after the shots were fired
and had seen the persons named in the F.I.R. including the
convicts, fleeing from the place of occurrence. He is apparently
a chance witness. We find contradictions in the evidence of the
witnesses on the point of the accused persons fleeing from the
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
place of occurrence after committing the offence. It may be
noted that in the F.I.R. the informant asserted that the accused
persons fled away on motorcycle(s) and horse(s). In his
deposition, at the trial, PW- 4 testified that after committing the
offence the miscreants fled away on motorcycle. In his cross-
examination, he deposed that all the accused persons had fled
away on one motorcycle. Further, three accused persons had
escaped on one motorcycle. It is noteworthy that it is the
prosecution's case that there were altogether nine persons who
had committed the offence and had opened indiscriminate firing.
The informant in his cross-examination, however, deposed that
three persons had fled away on a motorcycle. There is no
reference to the accused persons fleeing away from the place of
occurrence after committing the offence, riding horses.
30. The evidence of PW-1 that he had seen the accused
persons fleeing away from the place of occurrence becomes
doubtful. We are thus of the view that the manner of occurrence
as mentioned in the First Information Report and subsequently,
disclosed by the witnesses at the trial cannot be said to have
been conclusively proved beyond doubt. It emerges from the
materials on record, which in fact is not in dispute that the
deceased and the appellant Shree Prasad Ray are full brothers.
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
He and his two sons appellant Amrendra Kumar Ray were
named in the F.I.R. Satyanarayan Yadav and his two sons were
also named in the F.I.R. The property dispute between the
family of the deceased is not much in controversy. The way the
allegations were made in the F.I.R. describing in detail the
specific manner of occurrence, attributing fire of shots by
different weapons by the accused persons, there appears to be a
chance of their implication in the wake of such dispute.
31. The last but not the least, we notice from the records
that there has been no proper compliance of the statutory
provision under Section 313 of the CrPC while questioning the
accused persons after closure of the prosecution's evidence.
Section 313(1)(b) of the CrPC mandates that in a trial after the
witnesses for the prosecution had been examined and before the
accused to called on for defence, to question the accused facing
trial generally on the case for the purposes of enabling the
accused personally to explain any circumstance appearing in the
evidence against him. The significance of the said provision has
been addressed by the courts on umpteen number of occasions.
In case of Sharad Birdhi Chand Sarda vs State Of
Maharashtra reported in (1984) 4 SCC 116 the Supreme Court
has laid down in unequivocal terms that Section 313 lays down
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
that in every enquiry or trial for the purpose of enabling the
accused person to explain any circumstance appearing in the
evidence against him the court may at any stage, without
previously warning the accused, put such questions to him as
the court considers necessary and shall, after the witnesses for
the prosecution have been examined and before he is called for
his defence, question him generally on the case. The
incriminating circumstances in respect of which an accused is
not examined cannot be used against him, the Supreme Court
has ruled.
32. The view taken by the Supreme Court in Sharad
Birdhi Chand Sarda (supra) have been consistently followed in
subsequent decisions.
33. In case of State of UP Vs. Md. Iqram and Anr.
(AIR 2011 SC) the Supreme Court has held the requirement
under Section 313 of the Cr.P.C. to be mandatory in nature
which casts an imperative duty on court and confers a
corresponding right on the accused. In this case also the
Supreme court has held that the circumstances not put to an
accused in his examination under Section 313 of the CrPC
cannot be used against him. In the case of Naval Kishore Singh
Vs. State of Bihar reported in (2004) 7 SCC 502 the Supreme
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
Court has disproved the practices of putting the entire evidence
against the accused in a single question and giving an
opportunity in that manner to explain the circumstances for the
reason that the accused may not be in a position to give a
reasonable and satisfactory intelligent explanation.
34. In the present case, we have noted the nature of
common questions which were put to all the accused persons
including the convicts who are here before us in the present set
of appeals. All of them were informed by the trial court that
according to the witnesses, they, with other accused persons
equipped with fire arms, with a common intention had
indiscriminately fired upon the deceased whereafter he died.
Further, another common question was put to all the accused
persons that on the said date of occurrence, he with other
accused persons with a common intention had resorted to
indiscriminate firing on Rajkumar Ray (PW-15) because of
which he sustained injuries. Thirdly, the injury caused by the
accused persons with the fire arms used by them, Rajkumar Ray
(PW-15) became handicapped. It is manifest on reading of all
the questions put to the accused persons under Section 313 of
the CrPC that the same were vague. All the incriminating
circumstances which have been taken into account by the trial
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
court for holding the appellants guilty, were not explained to
them so as to elicit their proper explanations to such questions.
The examination under Section 313 of the CrPC was done by
the trial court apparently in a slip shot manner which cannot be
approved.
35. In the background of the discussions as noted above,
we are of the considered opinion that -
(i) The prosecution failed to prove the place of
occurrence for its failure to prove the presence of blood stains,
the motorcycle of the deceased and the cycle of the informant
and articles which he was carrying, which according to the
prosecution's case were lying at the place of occurrence.
(ii) There is no explanation coming forth as to why the
blood stained clothes of the deceased and the injured (PW-15)
were not recovered.
(iii)The ocular evidence is not corroborated by
postmortem report rather it contradicts the oral evidence of the
prosecution witnesses. PWs 4 and 15 who have claimed to be
the eye witnesses to the occurrence do not appear to be wholly
reliable witnesses on whose evidence, it would not be safe to
uphold the finding of conviction.
(iv) No used cartridges were recovered from the place
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
of occurrence. It is the specific case of the prosecution that there
had been indiscriminate firing and the police had reached the
place of occurrence nearly 1:15 hours after the time of
occurrence.
(v) There has not been proper compliance of the
requirement under Section 313 of the Cr.P.C.
36. For the reasons noted above we are of the view that
the impugned judgement of the trial court to the extent it relates
to recording finding of conviction of the appellants cannot be
sustained. The appellants deserve to be acquitted by giving them
benefit of doubt in the facts and circumstances as noted above.
37. Resultantly, Criminal Appeal (DB) No. 319 of
2019, Criminal Appeal (DB) No. 673 of 2019, Criminal Appeal
(DB) No. 340 of 2019 and Criminal Appeal (DB) No. 495 of
2019 are allowed.
38. Consequently, the criminal appeals filed by the
informant under the proviso to section 374 of the CrPC i.e.
Criminal Appeal (DB) No. 339 of 2019 and Criminal Appeal
(DB) No. 486 of 2019 are hereby dismissed.
39. Since, the appellant Shree Prasad Ray of Criminal
Appeal (DB) No. 319 of 2019, appellant Amrendra Kumar Ray
of Criminal Appeal (DB) No. 673 of 2019, Naresh Yadav of
Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024
Criminal Appeal (DB) No. 340 of 2019 and Sanjay Yadav of
Criminal Appeal (DB) No. 495 of 2019 are on bail, they are
discharged from the liability of their bail bonds and sureties, if
any.
(Chakradhari Sharan Singh, J)
(G. Anupama Chakravarthy, J)
ranjan/rajesh/
aditi/suraj/amit-
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