Patna High Court
Jitendra Kumar @ Jitendra Choudhary @ ... vs The State Of Bihar on 22 January, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.435 of 2021
Arising Out of PS. Case No.-253 Year-2015 Thana- ARA NAGAR District- Bhojpur
==============================================
JITENDRA KUMAR @ JITENDRA CHOUDHARY @ MITHAI Son of Sri
Krishna Choudhary Resident of Mohalla- Aanand Nagar, Ara, P.S.- Ara
Town, District- Bhojpur.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
==============================================
with
CRIMINAL APPEAL (DB) No. 297 of 2021
Arising Out of PS. Case No.-253 Year-2015 Thana- ARA NAGAR District- Bhojpur
==============================================
MUNNA TIWARI SON OF UMA SHANKAR TIWARI RESIDENT OF
VILLAGE- BASAURI, P.S. SANDESH, DISTRICT- BHOJPUR, ARRAH
... ... Appellant/s
Versus
The State of Bihar BIHAR
... ... Respondent/s
==============================================
with
CRIMINAL APPEAL (DB) No. 412 of 2021
Arising Out of PS. Case No.-253 Year-2015 Thana- ARA NAGAR District- Bhojpur
==============================================
SANTOSH KUMAR RAI @ RAJU RAI S/o Prahlad Rai R/o Village-Bartiyar
P.S.- Sandesh, District- Bhojpur at Arrah.
... ... Appellant/s
Versus
The State of Bihar Bihar
... ... Respondent/s
==============================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 435 of 2021)
For the Appellant/s : Mr. Ajay Kumar Thakur
For the Respondent/s : Mr. Abhimanyu Sharma
(In CRIMINAL APPEAL (DB) No. 297 of 2021)
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
2/21
For the Appellant/s : Mr.Prateek Kumar
For the Respondent/s : Mr. Abhimanyu Sharma
(In CRIMINAL APPEAL (DB) No. 412 of 2021)
For the Appellant/s : Mr.Harsh Singh
For the Respondent/s : Mr.Abhimanyu Sharma
==============================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE NANI TAGIA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 22-01-2024
1. All the three appeals have been taken up
together and are being disposed of by this common
judgment.
2. We have heard Shri Ajay Kumar Thakur, the
learned Advocate for the appellant /Jitendra Kumar
@ Jitendra Choudhary @ Mithai in Cr. Appeal (DB)
No. 435/2021; Mr. Prateek Kumar, Advocate for
the appellant /Munna Tiwari in Cr. Appeal (DB) No.
297/2021; and Mr. Harsh Singh, Advocate for the
appellant/Santosh Kumar Rai @ Raju Rai. Mr.
Abhimanyu Sharma, the learned Additional Public
Prosecutor has appeared on behalf of the State in all
the three appeals.
3. The appellants have been convicted for the
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
3/21
offences under Section 302/34 of the Indian Penal
Code and Section 27(1) of the Arms Act by
judgment dated 23.02.2021 passed by the learned
Additional Sessions Judge -XI, Bhojpur at Ara in
Sessions Trial No. 304 of 2016 arising out of Ara
Town P.S. Case No. 253 of 2015. By order dated
03.03.2021
, they have been sentenced to undergo
imprisonment for life, to pay a fine of Rs. 10,000/-
for the offence under Section 302/34 IPC and
imprisonment for a term of five years along with a
fine of Rs. 10,000/- for the offence under Section
27(1) of the Arms Act. The sentences have been
ordered to run concurrently.
4. The brother of the informant (P3), namely,
Mukesh Yadav @ Vikki is said to have been shot
dead by the appellants.
5. It is the illustrious case where the un-
professionalism of the police and prevaricating as
well as mendacious depositions of the witnesses
have provided a slam dunk to the appellants.
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
6. The informant/Lokesh Yadav (PW3) has lodged
the First Information Report, which has been
recorded by Satyendra Kumar Shahi (PW5), the
I.O. of the case at 9.26 hours on 05.06.2015,
alleging that on the same day at about 2.30 P.M. in
the day, there was a brawl in the salon of one
Dhananjay Pandit where appellant / Jitendra Kumar
@ Jitendra Kumar Choudhary @ Mithai and one
Munna Sonar (an absconder) had fought with afore-
noted Dhananjay Pandit and his elder brother. After
about an hour, appellant /Jitendra Kumar @ Jitendra
Kumar Choudhary @ Mithai, aforesaid Munna Sonar
and three others again came to the salon of
Dhananjay Pandit and started pelting stones. Some
of the stones hit the shutter of the mobile shop of
PW3, which was being run under the name and style
of 'Mobile Museum'. Two of the employees of PW3,
namely, Vikash Kumar Gupta and Satish Kumar
objected, which led to an altercation with them as
well. Vikash Kumar Gupta thereafter telephoned the
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
deceased (Mukesh Yadav @ Vikki) and narrated
about the occurrence to him. The deceased along
with PW3 and a cousin of the deceased, namely,
Sunny reached the mobile shop and interceded with
the miscreants. The issue was pacified. Later, as
the allegation in the F.I.R. goes, at about 5.45 P.M.,
about 5 -6 persons from different locality came near
the shop of the deceased; talked amongst
themselves and thereafter scarpered. At about 6.00
P.M. again, appellant / Jitendra Kumar @ Jitendra
Kumar Choudhary @ Mithai, Munnar Sonar (an
absconder ) and three others came at the mobile
shop of the informant and Jitendra Kumar @
Jitendra Kumar Choudhary @ Mithai and Munna
Sonar started firing indiscriminately. To save
himself, PW3 hid himself behind the desk. The
deceased was standing outside his shop along with
Vikash Kumar Gupta. In the shop, Satish Kumar and
Vinay Kumar were also present. The informant has
further alleged that the appellant / Jitendra Kumar
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
@ Jitendra Kumar Choudhary @ Mithai approached
near the deceased and fired from his weapon from a
close range. Thereafter, all the miscreants ran away.
The victim was taken to local hospital at Ara, from
where he was referred to PMCH for better treatment.
While on the way to PMCH, the deceased succumbed
to the injuries.
7. On the basis of the afore-noted fardbeyan
statement, a case vide Ara Town P.S. Case No.
253/2015 was registered on 05.06.2015 for
investigation for the offences under Sections 302/34
of the Indian Penal Code and Section 27 of the Arms
Act.
8. Be it noted that Vikash Kumar Gupta, Sunny,
Dhananjay Pandit and his elder brother with whom
the miscreants had fought earlier, Satish Kumar and
Vinay Kumar were never examined at the Trial.
9. It is also relevant to note here that the F.I.R.
was signed by Jitendra Yadav, one of the uncles of
the deceased, about whom PW3 has said nothing in
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
the F.I.R. The other signatory to the F.I.R. is Vikash
Kumar Gupta, an employee of the deceased, who at
the time of occurrence was standing close to the
deceased and who too has not been examined at the
trial.
10. These facts have been mentioned only to
demonstrate that the persons who could have really
unravelled and decrypted the story, have been
chosen to be left behind; the reason remaining
unknown to us.
11. The deceased had died of two gunshots. He
had been injured in his head. The dead body was
subjected to postmortem examination on the same
day at 9.25 P.M., which fact is discerned from the
deposition of Md. Moibul Haque Ansari, the doctor
who had conducted the postmortem examination.
The post-mortem chart (Ext. 2/1), however, does
not state as to when the dead body was brought to
the morgue for postmortem examination and at what
time, the postmortem examination began. It appears
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
from the timeline suggested by the prosecution that
the recording of the F.I.R and the post-mortem
examination was almost contemporaneous.
12. A reference, therefore, was taken by the
learned Advocates that not without any reason, the
inquest report was never brought on record.
13. According to the deposition of Investigator
(PW5), the inquest was performed at around 8.40
P.M. i.e. before the lodging of the First Information
Report. Since the inquest report is not on record and
we were desirous of looking at the timelines, we
looked at it from the police papers and it was
apparent that necessary details in the inquest report
were not furnished, namely, the persons who had
killed the deceased and the registration of the F.I.R.
prior to starting the inquest proceedings.
14. Equally important would be the omission of the
prosecution to bring on record, the first information
which was received by the Investigator at the police
station regarding the occurrence. It was much prior
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
to the recording of the F.I.R. That information, if
revealed during the trial, would surely have given
some certitude to the accusation against the
appellants. Apart from this, we have also noticed
that the police arrived at the P.O., which is the
mobile shop of the deceased, but the I.O. did not
consider it necessary to record in the police papers
about the presence of any blood or of fixing the
place where the murder had taken place i.e. whether
the deceased was shot at outside his shop or inside
the shop. However, contemporaneous with the
inquest report, there is a seizure list (Ext. 4), which
depicts that two empty/used cartridges were
recovered from the place of occurrence. All these
facts have been noted by us and stated here for the
reason that there appears to be some doubt about
the timelines and, therefore, the suggested names of
the appellants.
15. To test it further, we have carefully examined
the deposition of the informant / Lokesh Kumar
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
Yadav (PW3), who according to the F.I.R, is a
witness to the occurrence. The statement of PW3
that he sat down in order to avoid being hit by the
firing, makes his story a bit doubtful with respect to
his identifying the deceased having been shot from a
close range by appellant / Jitendra Kumar @ Jitendra
Kumar Choudhary @ Mithai.
16. We say so also for the reason that though the
deceased was hit twice but there was no exit wound
and there were no burning or any soot over the
wound. The entire skull was lacerated. The firing
had begun by the miscreants from outside. If PW3
and several others, who have been named above,
held on to the banister for saving themselves, it
appears to be rather unusual that the deceased
would have stood outside the shop and be a sitting-
duck or cannon fodder to the miscreants. Apart
from this, we have also found the deposition of PW3
to be full of gaping holes and yawning gaps which
are not explicable and, therefore, not without
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
scintilla of doubt.
17. In his deposition before the Trial Court, PW3,
of his own, alleged that appellant/ Jitendra Kumar @
Jitendra Kumar Choudhary @ Mithai, Munna Sonar
(an absconder) and appellants/Munna Tiwary and
Santosh Kumar Rai @ Raju Rai had fought with
Dhananjay Pandit and his brother at about 2.30 P.M
in the day of the occurrence.
18. P.W. 3 was never a witness to the afore-noted
dust-up as the real fight had begun an hour later
when the stone pelting by the miscreants also hit the
shutter of the shop of the deceased. It was at that
point of time that Vikash Kumar Gupta, one of the
signatories to the FIR, informed the deceased about
the occurrence. It was only then that the deceased,
accompanied by P.W. 3 and others, came to the
shop and brought about an armistice with the
miscreants.
19. Therefore, the opening accusation of P.W. 3
about the appellants fighting with Dhananjay Pandit
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
or his brother in his salon is something which P.W. 3
cannot have vouched for. In his later part of the
examination-in-chief, he has stated that the
miscreants had came on two vehicles, one of which
was used by appellants/Jitendra Yadav @ Mithai and
Munna Sonar, whereas the other by the two other
appellants. Firing, according to P.W. 3, was resorted
to by appellant / Jitendra Yadav @ Mithai and
aforesaid Munna Sonar (an absconder). The specific
assault on the deceased was made by appellant/
Jitendra Yadav @ Mithai.
20. As noted above, it appears to be rather
doubtful that P.W. 3 was present there at the P.O.
The reason for us to doubt his presence as also his
having witnessed the occurrence is not only because
of the gaps in his version but also because of Ranjit
Kumar and Jitendra Yadav, P.Ws. 1 and 2
respectively of having deposed before the Trial Court
that the informant (P.W. 3) had not gone to the
hospital along with the deceased. This assumes
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
significance as P.W. 3 was present in the house
when Ranjeet Kumar, the maternal-uncle of the
deceased, had come to the house on the asking of
his sister, at about 06:30, when he had learnt that
his nephew had been killed. It was only later that he
learnt about the assailants. If P.W. 3 knew about
the assailants, there was no reason why their names
were not referred to in the inquest proceedings or in
their statements before the police or for that matter
the names of the two other appellants, namely,
Munna Tiwary and Santosh Kumar Rai @ Raju Rai in
the FIR.
21. The fardbeyan was recorded at 9:26 PM.
22. We do not reject the claim of P.W. 3 only on
account of the absence of the names of appellants/
Munna Tiwary and Santosh Kumar Rai @ Raju Rai in
the fardbeyan but on an overall assessment of the
evidence, which casts a serious doubt on the
truthfulness of the prosecution version.
23. The inquest report was a document which
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
would have cleared the cob-webs with respect to the
timing of the occurrence and the names of the
assailants, if P.W. 3 had actually seen the
occurrence.
24. Vikash Kumar Gupta, Sunny and two others,
who were stated to be there at the P.O. had not
been examined at the Trial. In that event, only P.W.
3 and Jitendra Yadav, an uncle of the deceased and
about whom there is no reference in the fardbeyan,
are the available so-called eye-witnesses of the
occurrence.
25. Jitendra Yadav claims to be standing in front of
the shop when the firing took place as he was
getting his mobile telephone repaired. How did he
escape from being hurt? What did he do to save his
own nephew ?
26. All these facts have remained under wraps.
Even otherwise, he claims to have gone to the local
hospital at Ara, where first aid treatment was given
to the deceased, while still alive, for about fifteen
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
minutes; whereafter he was referred to P.M.C.H. for
better treatment. He had accompanied the deceased
from the Sadar Hospital to P.M.C.H. and back to
Sadar Hospital mid-way, when the deceased had
died. He has named three of the persons (none of
whom have been examined at the Trial) to be along
with him while taking the deceased to the hospital.
Till such time, there was no whisper of the names of
the assailants. Even the Investigator claims to have
gone to the hospital and stayed there for whole time.
This was obviously before 09:26 P.M. when the
fardbeyan was recorded.
27. We are not hinting at any delay in recording of
the fardbeyan, but only highlighting the
circumstances where late in the night, fardbeyan was
recorded with one appellant being named and two
others as unknown. Had P.W. 3, or for that matter
P.W. 2, been witnesses to the occurrence, this would
not have been the case.
28. From the scenario which appears from a
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
conspectus of the entire materials against the
appellants, it appears that few of the persons had
fought at 02:30 P.M. with Dhananjay Pandit and his
brother. An hour later, they have come back for
some kind of reprisal. It was at that time that Vikash
Kumar Gupta, one of the employees of P.W. 3,
informed the deceased about the occurrence. The
issue was resolved. The miscreants had gone away.
There was no recrimination from the side of the
deceased or the informant.
29. What would have possibly enraged the
appellants?
30. Thereafter, five to six persons again
congregated near the salon of Dhananjay Pandit.
They have not been identified by any one of the
witnesses. They talked amongst themselves and then
scooted away. It is then that appellant/JitendraYadav
@ Mithai and Munna (an absconder) and the two
other appellants arrived at the scene and the
accused persons started firing indiscriminately.
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
31. This, therefore, reflects that perhaps
appellant/Jitendra and others may have been spotted
by P.W. 3 or perhaps P.W. 2 but only at 02:30 P.M.
and thereafter, when they had come again. Later,
there could be somebody else in the group who had
resorted to firing or at least there is no certainty that
the appellants were part of the marauding crowd.
32. The learned Advocates for the appellants have
submitted that the failure of the prosecution to
produce necessary documents at the Trial, about
which affirmation has been made by the witnesses,
leaves much space for speculation. Additionally, it
gives rise to an adverse inference that had it been
produced, it would have disproved the case of the
prosecution (refer to Sheikh Meheboob @ Hetak
and others v. State of Maharashtra; 2005 (10)
SCC 387).
33. The prosecution story though appears to be
based on an eye-witnesses account but the
deposition of that witness raises serious doubts and
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
leaves too many questions and too many
unexplained circumstances, which have induced a
reasonable doubt in our minds as to the prosecution
having discharged the onerous burden of proving the
guilt to the hilt.
34. It has further been submitted that the FIR in a
criminal case and particularly in a murder case is
very vital and valuable piece of evidence for the
purposes of appreciation of evidence laid at the Trial.
The object of insistence on prompt lodging of the
FIR is to obtain the earliest information regarding
the circumstance in which the crime was committed,
including the names of the actual culprits and the
roles played by them, the weapons, if any used, as
also the names of the eye-witnesses, if any. Delay in
lodging the FIR often results in embellishments
which is more often than not, a creature of an
afterthought. On account of delay, the FIR not only
gets bereft of the advantage of the spontaneity.
Danger also creeps in regarding the introduction of a
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
colored version or an exaggerated story.
35. With a view to determine whether the FIR was
lodged at the time when it is alleged to have been
recorded, the Courts normally look for certain
external checks and once such check would be the
inquest report and the recording of statements of
witnesses, who had perhaps seen the occurrence
(refer to Meharaj Singh v. State of U.P.; 1994
(5) SCC 188).
36. Similar caution has been sounded by the
Hon'ble Supreme Court in Ramesh Baburao
Devaskar and Ors. v. State of Maharashtra;
2007 (13) SCC 501 that if the external checks to
the correctness to the prosecution version result in
failed validation, it ought to catch the attention of
the Courts appreciating the evidence (also refer to
State of Rajasthan v. Teja Singh; 2001 (3) SCC
147).
37. Thus, to tie the strings together, the learned
advocates for the appellants have submitted that
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
the absence of the name of appellants/Munna Tiwary
and Santosh Kumar Rai @ Raju Rai in the fardbeyan
of P.W. 3, who is an eye-witness to the occurrence;
non-production of inquest report; the post-mortem
report being not in-concord with the ocular testimony
of shooting from a close range; and the Investigator
completely denying having been told the
circumstances, namely, of miscreants having come
on two motorcycles the prosecution case falters at
the seams.
38. We have also examined the reasons adduced
by the learned Trial Court for accepting the so-called
eye-witness account of P.Ws. 2 and 3 and have
found that perhaps the Trial Court wrongly ignored a
number of reasonable doubts and even though, it
could not enter into the dark space which had
eclipsed the truth, it recorded conviction of the
appellants and saddled them with sentence.
39. We have no option but to give benefit of doubt
to the appellants.
Patna High Court CR. APP (DB) No.435 of 2021 dt.22-01-2024
40. The judgment and order of conviction is thus
set aside.
41. The appellants are acquitted of the charges.
42. All the appeals are allowed.
43. Since all the appellants are in jail. They are
directed to be released forthwith, unless their
detention is required in any other case.
44. Let a copy of this judgment be dispatched to
the Superintendent of the concerned Jail forthwith
for compliance and record.
45. The records of this case be returned to the
Trial Court forthwith.
46. Interlocutory application/s, if any, also stand
disposed off accordingly.
(Ashutosh Kumar, J)
( Nani Tagia, J)
sunilkumar/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 23.01.2024
Transmission Date 23.01.2024
