Patna High Court
Kapildeo Singh And Ors vs The State Of Bihar on 28 June, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.377 of 2018
Arising Out of PS. Case No.-90 Year-1993 Thana- BIBHUTIPUR District- Samastipur
======================================================
Tuntun Singh, Son of Ram Sewak Singh, Resident of Village - Sakh Mohan,
Police Station - Bibhutipur, District - Samastipur.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 342 of 2018
Arising Out of PS. Case No.-90 Year-1993 Thana- BIBHUTIPUR District- Samastipur
======================================================
1. Kapildeo Singh, Son of Late Deo Kishun Singh;
2. Umesh Singh, Son of Late Deo Kishun Singh;
3. Diwakar Singh, Son of Vino Singh;
4. Kamlesh Singh, Son of Vino Singh;
5. Raj Kumar Singh @ Raja Jee, Son of Vino Singh;
All are residents of Village - Sakh Mohan, P.S. - Bibhutipur, District -
Samastipur.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 383 of 2018
Arising Out of PS. Case No.-90 Year-1993 Thana- BIBHUTIPUR District- Samastipur
======================================================
Madan Singh, Son of Ram Sewak Singh, Resident of Village - Sakh Mohan,
Police Station - Bibhutipur, District - Samastipur.
... ... Appellant/s
Versus
The State of Bihar
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
2/32
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 377 of 2018)
For the Appellant/s : Mr. Ramakant Sharma, Sr. Adv.
Mr. Rabindra Kumar Priyadarshi
For the State : Mr. Abhimanyu Sharma, APP
(In CRIMINAL APPEAL (DB) No. 342 of 2018)
For the Appellant/s : Mr. Murari Narain Chaudhary, Adv.
For the State : Mr. Abhimanyu Sharma, APP
(In CRIMINAL APPEAL (DB) No. 383 of 2018)
For the Appellant/s : Mr. Ramakant Sharma, Sr. Adv.
Mr. Rabindra Kumar Priyadarshi
For the State : Mr. Abhimanyu Sharma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 28-06-2024
All the three appeals have been taken up
together and are being disposed off by this common
judgment.
2. Appellant/Tuntun Singh [Cr. Appeal (DB)
No. 377 of 2018] and appellants/Kapildeo Singh, Umesh
Singh, Diwakar Singh, Kamlesh Singh and Raj Kumar
Singh @ Raja Jee [Cr. Appeal (DB) No. 342 of 2018]
have been convicted for the offences under Sections 148
and 302/149 of the Indian Penal Code (in short the IPC)
and Section 27 of the Arms Act vide judgment dated
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
3/32
21.02.2018
passed by the learned Additional District
and Sessions Judge, Rosera, Samastipur in Sessions
Trial No. 69 of 1995, arising out of Bibhutipur P.S. Case
No. 90 of 1993. By order dated 24.02.2018, they have
been sentenced to undergo R.I. for two years for the
offence under Section 148 of the IPC; to undergo
imprisonment for life, to pay a fine of Rs. 20,000/- each
and in default of payment of fine, to further suffer R.I.
for six months for the offence under Section 302/149 of
the IPC and to undergo R.I. for four years, to pay a fine
of Rs. 5,000/- each and in default of payment of fine, to
further suffer R.I. for three months for the offence under
Section 27 of the Arms Act.
3. Appellant/Madan Singh [Cr. Appeal (DB)
No. 383 of 2018], whose case was separated, was also
convicted for the offences under Sections 148 and
302/149 of the IPC and Section 27 of the Arms Act vide
judgment dated 21.02.2018 passed by the learned
Additional District and Sessions Judge, Rosera,
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
Samastipur in Sessions Trial No. 69 A of 1995, arising
out of Bibhutipur P.S. Case No. 90 of 1993. By order
dated 24.02.2018, he has been sentenced to undergo
R.I. for two years for the offence under Section 148 of
the IPC; to undergo imprisonment for life, to pay a fine
of Rs. 20,000/- and in default of payment of fine, to
further suffer R.I. for six months for the offence under
Section 302/149 of the IPC and to undergo R.I. for four
years, to pay a fine of Rs. 5,000/- and in default of
payment of fine, to further suffer R.I. for three months.
4. All the sentences have been ordered to
run concurrently.
5. In Sessions Trial No. 69 of 1995, five
witnesses were examined on behalf of the prosecution,
namely, Shakuntala Devi (wife of the deceased/P.W. 1),
Raghuvansh Singh (P.W. 2), Satish Prasad Singh
(informant/P.W. 3)), Dr. Arvind Kumar (P.W. 4) and
Shankar Prasad Singh (P.W. 5).
6. In Sessions Trial No. 69 A of 1995, four
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
witnesses have been examined on behalf of the
prosecution, out of whom three are common, namely,
Raghuvansh Singh (P.W. 1), Satish Prasad Singh
(informant/P.W. 2) and Dr. Arvind Kumar (P.W. 3), who
had conducted the post-mortem examination on the
deceased. Apart from these three, one other witness,
namely, Nasresh Kumar (P.W. 4) has been examined in
the afore-noted Sessions Trial.
7. After going through the deposition of the
witnesses in both the Sessions Trials, referred to above,
it appears that practically on all aspects, all the
witnesses have made similar deposition before the Trial
Court.
8. For the sake of convenience and clarity,
we would be referring to the deposition of the witnesses
of Sessions Trial No. 69 of 1995, referred to above.
9. We have heard Mr. Ramakant Sharma,
the learned Senior Advocate for the appellants/Tuntun
Singh in Cr. Appeal (DB) No. 377 of 2018 and Madan
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
Singh in Cr. Appeal (DB) No. 383 of 2018. Mr. Murari
Narain Chaudhary, the learned Advocate has appeared
for the five appellants, namely, Kapildeo Singh, Umesh
Singh, Diwakar Singh, Kamlesh Singh and Raj Kumar
Singh @ Raja Jee in Cr. Appeal (DB) No. 342 of 2018.
10. The State, in the all the appeals, has
been represented by Mr. Abhimanyu Sharma, the
learned Additional Public Prosecutor.
11. One Gunanand Singh, a CPM leader is
said to have been killed in the night intervening between
11th - 12nd of August, 1993. The FIR was lodged by
Satish Prasad Singh (P.W. 3) before the Officer-in-
Charge of Bibhutipur Police Station on 12.08.1993 at
about 02:45 in the morning at the house of the
deceased. He has alleged that at about 10 O'clock in the
night intervening between 11th - 12th of August, 1993,
he along with Raghuvansh Singh (P.W. 2) and Ram Udit
Singh (not examined) were sitting with the
deceased/Gunanand Singh near a well belonging to the
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
deceased. After some time, the deceased got up and
tethered his cow to another peg. In the meantime, the
miscreants including the appellants, out of whom nine
have been named and four to five unnamed, came. All
of them were armed with pistols, knives and daggers. No
sooner had they arrived at the place of occurrence, they
dragged the deceased across the road and attacked him
by knives and also fired at him. After the deceased died,
the accused persons fled away and also fired to cover
their exit. The cause of occurrence as stated in the FIR
is old enmity. The informant, thereafter, claims to have
lifted the dead-body of the deceased and was almost
sure that he had died. Still the dead-body was brought
to Narhan Hospital, where the Doctor declared the
deceased to be dead. The occurrence was witnessed by
Ram Balak Singh, Gopi Singh, Arvind Singh and other
villagers, none of whom have been examined in both the
Trials.
12. On the basis of the afore-noted
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
fardbeyan statement of P.W. 3, a case vide Bibhutipur
P.S. Case No. 90 of 1993, dated 12.08.1993, was
registered for investigation under Sections 147, 148,
149 and 302 of the IPC and Section 27 of the Arms Act.
13. The police, after investigation,
submitted charge-sheet against ten accused persons who
were put on Trial in Sessions Trial No. 69 of 1995.
14. The Trial Court, after having examined
five witnesses, referred to above, on behalf of the
prosecution, convicted appellants/Tuntun Singh, Kapildeo
Singh, Umesh Singh, Diwakar Singh, Kamlesh Singh and
Raj Kumar Singh, but acquitted four of the persons who
were put on Trial, viz., Pankaj, Shankar, Ramesh and
Ranjay.
15. We have already noted that
appellant/Madan Singh [Cr. Appeal (DB) No. 383 of
2018] was tried separately vide Sessions Trial No. 69 A
of 1995 where the Trial Court has examined four
witnesses on behalf of the prosecution. He too was
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
convicted for the afore-noted offences.
16. The major thrust of the argument of
the appellants is that though P.Ws. 2 and 3, viz.,
Raghuvansh Singh and Satish Prasad Singh have
claimed to be the eye-witnesses to the occurrence, but
their deposition would clearly reveal that they have not
come up with the correct version of the occurrence.
17. The other limb of argument is that in a
case of this kind, non-examination of the I.O. has
caused serious prejudice to the case of the appellants
and, therefore, they are required to be the given benefit
of doubt and acquitted ultimately.
18. The last of the argument is that there
was no source of light when the occurrence had taken
place and, therefore, it was well-nigh impossible for
anybody to have identified the assailants out of many of
the accused persons who had come with the sole
purpose of killing the deceased. No family member of
the deceased or the neighbours of the deceased have
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
been examined at the Trial except for the wife of the
deceased, who has been examined as P.W. 1 in Sessions
Trial No. 69 of 1995.
19. As opposed to the afore-noted
contentions, Mr. Abhimanyu Sharma, the learned APP
has submitted that the witnesses have categorically
stated about appellant/Tuntun Singh having fired at the
deceased and the others assaulting the deceased by
means of knives and daggers. There was political rivalry
and it is not very unlikely that persons of the opposite
camp of Communist Party having differences with the
deceased, gathered together and consummated the
offence. Had it not been so and if it had been a case of
general law and order or that the accused persons had
come with any other intention, the other persons, viz.,
Raghuvansh and Satish, who were at the P.O., unarmed,
would not have left unscathed.
20. It has been admitted on behalf of the
prosecution that the I.O. has not been examined but if
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
the deposition of the witnesses are examined in detail,
no prejudice would be seen to have been caused to
them. Though it is a case of the year 1993, but a
popular political leader was killed shortly after the
meeting of the party members had been convened and
which meeting was over before the occurrence.
21. Mr. Sharma, therefore, submits that
the conviction is justified. The Trial Court was conscious
enough to look at the accusation in detail and on finding
that there was no evidence forthcoming with respect to
the complicity of four of the accused persons put on Trial
in Sessions Trial No. 69 of 1995, they were acquitted of
the charges.
22. As noted above, we have referred to
the deposition of witnesses in Sessions Trial No. 69 of
1995. The wife of the deceased/Shakuntala Devi (P.W.
1) has confirmed that the occurrence took place in the
night of 11th of August, 1993. At that time, a meeting
of the political party was being held in her house on the
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
roof-top. The meeting got over by about 10:00 P.M.
Thereafter, her husband (deceased) went to feed the
cows tied near the well. At that time, Satish,
Raghuvansh and Ram Udit Singh were also present
there. When she heard some commotion, she came to
the roof-top. However, immediately thereafter she heard
the garbled voice of somebody. She then came out of
her house with a torch in her hand and found her
husband lying on the ground injured. When she reached
near her husband, she became unconscious. She did not
see anything else thereafter. However, she has claimed
that the deceased was killed because of political rivalry.
She did not identify anyone of the appellants present in
the dock. She has also stated that the meeting at her
house had started at about 08:30 P.M. and continued till
10:00 P.M., which was attended by about 40 to 45
workers. The deceased had four brothers, but her
household was separate in mess and business. She has
taken the name of her neighbours, viz., Siyaram Singh,
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
Ram Jatan Singh, Arvind Singh, etc.
23. On being questioned, she has again
confirmed that it was a dark night when the murder had
taken place. It was the day when Janmashtami festival
was being celebrated in a nearby temple. She had seen
her husband lying on the ground by the side of a road.
Around the dead-body was all agricultural field. Her
house is situated to the west of the agricultural field.
When she had seen the dead-body of her husband, there
was no person present there.
24. Raghuvansh Singh (P.W. 2) has stated
on similar lines that when he along with Satish and the
deceased was sitting near the well and the deceased had
come back after tying one of the cows to a peg, the
appellants arrived in a large number; dragged the
deceased to a distance and killed him. He has
specifically stated that appellant/Tuntun Singh, carrying
a pistol in his hand, fired at the deceased. Rest others,
who were carrying daggers, hit the deceased and caused
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
several injuries on him. He too was of the view that the
murder had been committed because of political rivalry.
Like P.W. 1, he has also admitted that it was a dark
night, but festival of Janmashtami was being celebrated
in a nearby Thakurbari. The reason for the presence of
P.W. 2 at the P.O. was that he had fought his brother
and was upset, so he wanted to spend time with the
deceased. When he had gone to the P.O., the deceased
was busy in the meeting. He could meet him only after
half an hour. Till such time, he and Satish and some
others, whom he did not name in his deposition, sat near
the well. After the meeting, all the workers, who had
attended such conclave, left. Only two of them
remained behind, namely, Ramnath Mahto and Birendra
Singh. They also left after sometime. He had no idea
whether at the time of the occurrence, the brothers of
the deceased or their family members were present in
their houses. He identified appellant/Madan Singh
because Madan Singh hailed from same village and his
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
house is situated only about one and half kilometers
away from the house of the deceased. He has but
categorically denied the suggestion that he and Satish
are also members of the CPM and belonged to the
opposite faction of the deceased.
25. During cross-examination, it was
elicited from P.W. 2 that he along with Satish and the
deceased were made accused in the case of murder of
one Ram Uday Singh and Ram Uday Singh is the cousin
of appellant/Madan Singh. Thereafter, his deposition is
almost similar to P.W. 1, viz., that the deceased was
taken to Narhan Hospital, where the Doctor declared him
dead. The dead-body was then brought back to the
Thakurbari. The police arrived late in the night when the
FIR was registered on the statement of Satish Prasad
Singh. The dead-body was taken by the police for post-
mortem, whereafter the deceased was cremated near
river Gandak. The suggestion to P.W. 2 that he, Satish
and others had killed the deceased on the instigation of
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
the local MLA and had filed a false case, was denied by
him.
26. Satish Prasad Singh (informant/P.W. 3)
claims to be present at the time of the occurrence. He
had also accompanied Raghuvansh and others to Narhan
Hospital, where the deceased was declared dead. The
dead-body was brought to Village-Sakh Mohan and kept
at the Thakurbari. He had given his fardbeyan
statement at about 02:45 A.M. in the morning on
12.08.1993. When firing was being resorted to, he was
at a distance of fifteen to twenty feet. Nobody from the
crowd tried to harm him or any one else. On seeing the
occurrence, he shouted which attracted approximately
hundred persons at the time of occurrence. It was at
that time that the wife of the deceased also came out of
her house.
27. What is noticeable in the statement of
P.W. 3 is that he has confirmed that he did not talk
about the occurrence to any one who had assembled at
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
the P.O. immediately after the deceased had died. The
other noticeable feature in his deposition is that he had
not informed the police. He had no idea as to who had
given information to the Police Station for the police
party to arrive in the village late in the night of
11.08.1993. The dead-body was not brought back
home after the post-mortem, but was burnt near river
Gandak.
28. The post-mortem examination of the
deceased was done on 12.08.1993 by Dr. Arvind Kumar
Singh (P.W. 4). He had found nine injuries on the
person of the deceased, out of which, seven were incised
wounds and one was an abrasion. One wound of entry of
gun-shot was also found on the front chest of the
deceased. The sternum was fractured and there was
laceration of the pericardium and right ventricle. A bullet
was recovered from the chest cavity, which was seized
and handed-over to the constable. Blood clots were
found in the left thoracic cavity. The time of death was
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
assessed at 24 hours from the post-mortem
examination. In the opinion of the Doctor, one injury
was by gun-shot, whereas the other injuries were sharp
penetrating substance. He also found one injury to have
been caused by hard and blunt substance. The death, in
his opinion, was caused by shock and hemorrhage due to
the afore-noted injuries. He, however, had not seen any
charring or blackening at the wound of entry. Rigor
mortis had started developing.
29. Shankar Prasad Singh (P.W. 5) in
Sessions Trial No. 69 of 1995 is only a formal witness.
Nasresh Kumar (P.W. 4) in Sessions Trial No. 69A of
1995 is also a formal witness and is of no help to assess
the charge against the appellants.
30. From a conspectus of the deposition of
these witnesses, few facts emerge very clearly.
31. Many persons had come to kill the
deceased. The deceased was an important political figure
and an active member of CPI/CPM. In the night of the
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
occurrence, there was a meeting convened of the
workers of the party. The meeting was held on the roof-
top of the house of the deceased. The meeting was over
by around 10:00 P.M. Shortly, thereafter, the shooting
incident took place. Where had the accused persons
come from was not known. Nine of them were identified
by the informant/P.W. 3. Four to five accused persons
could not be identified. There was no attempt on the
part of the witnesses, who were present there, to chase
the miscreants. Nobody else except the deceased was
targeted.
32. According to the accusation, the
deceased was dragged across the road and then shot at
and also assaulted by knives and daggers. All this was
happening across the road but near the house of the
deceased.
33. With these set of facts, it appears to be
rather strange to us that none of the neighbours of the
deceased who had been named by Shakuntala Devi
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
(P.W. 1) and even the brothers of the deceased, whose
house are situated nearby, ever came forward. They did
not even come to the witness-stand to speak about the
occurrence which had taken place in the night.
34. We have referred to the deposition of
Shakuntala Devi (P.W. 1), who saw the dead-body lying
across the road, amidst agricultural field, when nobody
was present there. She became unconscious thereafter
and did not witness any other subsequent events.
35. Whether there was enmity of the party
workers with the deceased or some outsiders were hired
to kill him, remains unknown. It could have been
discovered provided the investigator would have been
examined.
36. The suggestions given to the witnesses
that they, perhaps, were of the opposite camp of the
deceased was though denied by them, but the same
could not be confirmed because of non-examination of
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
the I.O.
37. Where was the deceased killed?
38. If P.W. 1 is to be believed, the dead-
body was found somewhere in the field by the side of
the road. If Raghuvansh Singh and Satish are to be
believed, then the deceased was dragged from near the
well across the road and shot at. All this would have
taken time. The accused persons fled under the cover of
firing.
39. P.W. 3/informant claims to have shouted
for help. People numbering hundreds assembled there.
All this information is rendered doubtful if Shakuntala
Devi is to be believed. It also appears to be doubtful that
with so many people having come to kill the deceased,
no attempt was made to target P.Ws. 2 and 3, who were
in close vicinity and, perhaps, associates of the
deceased.
40. We have our lingering doubt about this
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
also for the reason that the occurrence of shooting and
killing the deceased took place around 10:00 P.M. The
dead-body was taken to Narhan Hospital, the timing of
which is not known. The Police Station is nearby.
Whether police learnt about the occurrence of its own
through rumour or somebody from the village had
provided such information for the police to arrive has
remained unknown. The Trial Court could have known
these facts only if the investigator would have been
examined.
41. These facts would have assumed
relevance with respect to the timing of the occurrence
and correctness of the version of P.Ws. 2 and 3 that
they were all along present when the occurrence had
taken place and had witnessed the actual part of the
assault.
42. There is yet another aspect of the matter
which leaves us in some confusion and doubt whether
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
P.Ws. 2 and 3 were making correct statement before the
Trial Court.
43. A political leader was killed. This would
have been otherwise a banner headline. The Communist
party has committed cadre. No person from the cadre
came forward to depose. Assuming that none of them
had stayed back after the meeting, there were others
who had stayed back and might have witnessed the
incident. The informant/P.W. 3 and P.W. 2 have named
many persons who were present at the time of
occurrence. Everything, therefore, remains shrouded in
mystery, particularly for non-examination of the I.O.
44. We are conscious of the fact that law
does not say that prosecution must examine all the eye-
witnesses, but in the present case when even the
evidence of the two eye-witnesses, viz., P.Ws. 2 and 3 is
not found to be worthy of acceptance, non-examination
of independent persons has become fatal for the
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
prosecution.
45. In the present set of circumstance, non-
examination of the I.O. has created a material lacuna in
the efforts of the prosecution to nail the appellants. This
has created reasonable doubt in the prosecution version.
46. Who would disagree that investigation is
a systemic and organized process for gathering
information, collecting evidence and uncovering the truth
or establishing the circumstances surrounding a specific
event or situation. It involves diligent examination,
analysis, evaluation of available resources etc.
47. One of the most important aspects in a
criminal trial is to know as to when and how the
occurrence had taken place. The crime scene
management evidence is rendered completely nugatory
if the investigator is not examined.
48. In the present case, we have doubts
about the prosecution version being correct for the
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
following reasons, viz., (a) FIR being recorded by an
outsider at 02:45 A.M. in the morning of 12.08.1993;
(b) none of the persons present there except P.Ws. 2
and 3 having been examined; (c) there was a gathering
of about forty to fifty people in a meeting of the political
party immediately before the occurrence; (d) those
persons who had attended the meeting would not have
reached their homes by that time; (e) the occurrence
having been committed immediately after the meeting
was over and the dead-body having been seen by the
wife of the deceased (P.W.1) lying somewhere in the
field, across the road and (f) no other person having
been even attempted to be harmed or shooed away.
49. Does it not reflect that the occurrence
never took place, as it has been projected by the
prosecution. There could be truth in the suggestion
given to the witnesses. There is also a possibility that
such suggestions would be only the figment of
imagination. However, no political worker showing in his
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
solidarity with the slain leader, gives us a feeling that
perhaps the real cause of the incident or the real
incident itself was something else and, therefore, nobody
came forward to be a part of the prosecution.
50. Had the I.O. been examined, the Trial
Court could have questioned and elicited whether there
were any mass scale protest against the killing of a
political leader. Though P.W. 1/the wife of the deceased
has admitted to have seen P.Ws. 2 and 3 and others
near the well when she had come out of the house; but
it was she only who carried a torch in her hand and had
spotted the deceased somewhere afar in the field. This is
not in sync with the prosecution version.
51. It is an accepted principle that non-
examination of the I.O. may not in all cases be fatal to
the prosecution case. In Behari Prasad & Ors. Vs.
State of Bihar: (1996) 2 SCC 317 and Bahadur Naik
Vs. State of Bihar: (2000) 9 SCC 153 , it has been
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
opined that when no material contradictions have been
brought out, then non-examination of the I.O. as a
witness for the prosecution is of no consequence and
under such circumstances, no prejudice is caused to the
accused.
52. However, on perusal of the entire
materials brought on record, we find that non-
examination of the I.O. has caused serious prejudice to
the appellants in this case. We are inclined to think so
in the present case, especially when few sets of facts
were withheld by the prosecution.
53. We are conscious of the fact that
procedural lapses may not be good ground for rejecting
the prosecution case altogether. But in the present
case, in order to avoid erosion of faith and confidence of
people in the administration of criminal justice, this
Court has examined the evidence laid by prosecution
threadbare and has not refrained from giving primacy to
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
the non-examination of the I.O.
54. For all these reasons, we are unable to
accept the prosecution case as a truthful account of what
had happened. No doubt, the post-mortem report fully
confirms that the deceased was murdered brutally. Not
only he was shot at, but also assaulted by sharp-pointed
object and hard and blunt substance.
55. The question but is as to who were
responsible for the same.
56. Both the witnesses, viz., P.Ws. 2 and 3,
on whose deposition the entire fulcrum of the
prosecution hinges, have named nine persons. How
come? They have denied to be the members of the
political party. Did the miscreants/appellants belong to
the same village? These are important facts which
remains under wraps because of non-examination of the
I.O.
57. In this background, what is further
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
noticeable is that the deceased and P.Ws. 2 and 3 were
accused in the murder of one Ram Uday Singh, which
offence was committed sometimes earlier. Either the
deceased and P.Ws. 2 and 3 were comrade-in arms or
they had fallen out with the deceased. This was
required to be investigated.
58. The other important indicator is that
appellant/Madan Singh, who was tried separately, is
related to Ram Uday Singh for the murder of whom the
deceased as also P.Ws. 2 and 3 were made accused.
59. Thus, everything has remained in dark.
60. For practically the same reason, the Trial
Court could not convict the other four accused persons.
Even, P.Ws. 2 and 3 except for having stated at the Trial
that appellant/Tuntun Singh had fired, could not speak
about specific roles played by the appellants. Though it
may not be necessary or may not be possible. However,
if P.Ws. 2 and 3 knew the names of the assailants and
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
were present at the P.O., such vague statement that the
deceased was stabbed and killed does not inspire
confidence.
61. That apart, if the deceased was dragged
to a distance and shot at, the distance of the shooter
would have been minimum. The Doctor has not found
any charring or blackening near the wound of entry.
Wound of exit could not be found because the bullet was
stuck in the cavity, which was taken out only at the time
of the post-mortem.
62. Does it also not state that the occurrence
had not taken place in the manner in which Satish has
narrated.
63. Shakuntala Devi (P.W. 1), the only
relative of the deceased who was examined, did not see
any assailant and did not even identify any one of them
in the dock.
64. For these reasons, we find that the
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
prosecution by not examining the I.O. has committed a
self-goal. We do not, thus, believe the prosecution case.
65. For the reasons stated above, we set
aside the judgment and order of conviction and
sentence, referred to above, in both the Sessions Trials
and acquit the appellants of all the charges levelled
against them.
66. All the three appeals stand allowed.
67. Appellants/Tuntun Singh [Cr. Appeal
(DB) No. 377 of 2018] and Kapildeo Singh [Cr. Appeal
(DB) No. 342 of 2018] are on bail. They are
discharged of their liabilities under their bail bonds.
68. Since appellants/Umesh Singh, Diwakar
Singh, Kamlesh Singh and Raj Kumar Singh @ Raja Jee
[Cr. Appeal (DB) No. 342 of 2018] and Madan Singh
[Cr. Appeal (DB) No. 383 of 2018] are in jail, they are
directed to be released forthwith, if they are not
detained or wanted in any other case.
Patna High Court CR. APP (DB) No.377 of 2018 dt.28-06-2024
69. Let a copy of this judgment be dispatched
to the Superintendent of the concerned Jail forthwith for
compliance and record.
70. The records of these cases be returned to
the Trial Court forthwith.
71. Interlocutory application/s, if any in all
the three appeals, also stand disposed off accordingly.
(Ashutosh Kumar, J)
(Jitendra Kumar, J)
Praveen-II/
Saurav/Manoj
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 02.07.2024
Transmission Date 02.07.2024
