Patna High Court
Tauhid Khan vs The State Of Bihar on 7 February, 2025
Author: Alok Kumar Pandey
Bench: Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1217 of 2018
Arising Out of PS. Case No.-139 Year-2015 Thana- DURGAWATI District- Kaimur (Bhabua)
======================================================
Sartaj Khan Son of Sardar Khan Resident of Village-Dumri, P.S. Durgawati,
Distt.-Kaimur
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 126 of 2019
In
CRIMINAL APPEAL (SJ) No.4117 of 2018
Arising Out of PS. Case No.-139 Year-2015 Thana- DURGAWATI District- Kaimur (Bhabua)
======================================================
TAUHID KHAN Son of Liyakat Khan Resident of Village - Dumri, P.S.-
Durgawati, District - Kaimur
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1217 of 2018)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Aquaib Khan, Advocate
Mr. Manendra Kumar Sinha, Advocate
For the Informant : Mr. Rajesh Kumar Singh, Sr. Advocate
Mr. Manish Kumar Singh, Advocate
Mr. Praveen Kumar, Advocate
Mr. Uday Pratap Singh, Advocate
For the State : Mr. Satya Narayan Prasad, APP
(In CRIMINAL APPEAL (DB) No. 126 of 2019)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Aquaib Khan, Advocate
Mr. Shahrukh Shiddiqui, Advocate
For the Informant : Mr. Rajesh Kumar Singh, Sr. Advocate
Mr. Manish Kumar Singh, Advocate
Mr. Uday Pratap Singh, Advocate
For the State : Mr. Sujit Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL JUDGMENT
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
2/44
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 07-02-2025
The present appeals have been filed under Section-
374(2) of the Code of Criminal Procedure, 1973 (hereinafter
referred as 'Cr.P.C.') challenging the common judgment dated
31.08.2018
and order of sentence dated 11.09.2018, passed by
learned Additional Sessions Judge-1, Kaimur (Bhabua) in
Sessions Trial No. 345 of 2015, arising out of Durgawati P.S.
Case No. 139 of 2015, whereby appellant Sartaj Khan has been
convicted for the offence under Section-302 of I.P.C. and
Section-27 of the Arms Act and sentenced to undergo life
imprisonment and a fine of Rs. 20,000/- for the offence
punishable under Section-302 of I.P.C. and to undergo R.I. for
five years and a fine of Rs. 10,000/- for the offence punishable
under Section-27 of the Arms Act. In default of payment of both
fines, he has been sentenced to undergo further R.I. for six
months. Further, appellant Tauhid Khan has been convicted for
the offence punishable under Section-307 of I.P.C. and Section-
27 of the Arms Act and sentenced to undergo R.I. for 10 years
and a fine of Rs. 20,000/- for the offence punishable under
Section-307 of I.P.C. and to undergo R.I. for five years and a
fine of Rs. 10,000/- for the offence punishable under Section-27
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
of the Arms Act. In default of payment of both fines, he has
been sentenced to undergo further R.I. for six months. Both the
sentences have been directed to run concurrently.
2. Heard Mr. Ajay Kumar Thakur, learned counsel
assisted by Mr. Aquaib Khan and Mr. Manendra Kumar Sinha,
learned advocates for the appellant, Mr. Rajesh Kumar Singh,
Sr. Advocate, assisted by Mr. Manish Kumar Singh, Mr. Praveen
Kumar and Mr. Uday Pratap Singh, for the informant and Mr.
Satya Narayan Prasad, learned APP for the State in Cr. Appeal
(D.B.) No. 1217 of 2018. Also heard Mr. Ajay Kumar Thakur,
learned counsel, assisted by Mr. Aquaib Khan and Mr. Shahrukh
Shiddiqui, learned advocates for the appellant, Mr. Rajesh
Kumar Singh, learned Senior Advocate, assisted by Mr. Manish
Kumar Singh and Mr. Uday Pratap Singh, learned advocates for
the informant and Mr. Sujit Kumar Singh, learned APP for the
State in Cr. Appeal (D.B.) No. 126 of 2019.
3. As both the appeals arise out of the same
judgment, they are taken up together and are being disposed of
by this common judgment.
FACTUAL MATRIX
4. The brief facts leading to the filing of the present
appeals are as under:
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
"The informant lodged an F.I.R. on 02.07.2015
stating therein that on 02/07/2015, at about 07:30 pm., the
informant was sitting in the compound of Utkramit Urdu
Secondary School, Dumri, Durgawati, when he received a call
from accused Mohammad Tauhid Khan who started abusing
him and threatening to kill him after which he followed the
route of Idgah and reached home. When he reached home, he
informed about the incident to his uncle Mohd. Kamruddin
Khan. He said that his family members have gone to offer
Namaz and he will enquire about the incident, once they return.
Informant and others were taking rest at their door after taking
meal when at about 10:00 PM, an illegal mob formed by the
accused persons named in the F.I.R. reached there. Accused
Nos.1 to 9 were carrying rifles and country-made pistols.
Accused No.10 had his licensee pistol. Accused No. 11 had a
pistol. Accused No. 12 had his licensee rifle. Accused Nos. 13 to
16 were having sticks and were abetting all other members of
the illegal mob to shoot the informant side. At this, all the
accused persons started firing bullets in which incident Sartaj
Khan's bullet hit Mohammad Masaud Khan in the neck. He died
on the spot and Nasiruddin Khan was shot in the neck by
Mohammad Tauhid Khan, who is under treatment. Others
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
started attacking them with sticks, rods and rifles with intention
to kill, in which Mohammad Nasiruddin Khan, Mohammad
Hafiz Matloob Khan and Sarfaraz Khan were shot at and are
undergoing treatment."
5. After filing of the F.I.R., the investigating agency
carried out the investigation and, during the course of
investigation, the Investigating Officer recorded the statement of
the witnesses and collected the relevant documents and
thereafter filed the charge-sheet against the accused persons. As
the case was exclusively triable by the Court of Sessions, the
case was committed to the Court of Sessions where it was
registered as Sessions Trial No. 345 of 2015.
6. The prosecution examined 14 witnesses and also
produced documentary evidence before the trial court.
7. Thereafter, further statement of the accused was
recorded under Section-313 of the Code and after completion of
the trial, the trial court passed the impugned judgment and order
against which the appellants have preferred the present appeals.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
8. Learned counsel for the appellants mainly
submits that the prosecution has failed to prove the place of
occurrence. Learned counsel referred the F.I.R. as well as the
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
deposition of prosecution-witnesses and thereafter submitted
that, as per the F.I.R., the occurrence took place at Darwaja of
Sarfaraj Khan, P.W. 9. However, as per the evidence of other
prosecution-witnesses, it is revealed that different prosecution-
witnesses have described the place of occurrence differently.
Somebody has said that occurrence took place at Darwaja, a few
others have said at Baithka, a few others have stated at Sahan
and a few others have said at R.C.C. Road. Thus, there are four
places of occurrence as per different versions given by the
prosecution-witnesses. Thus, only on this ground, the
prosecution-story be discarded. In support of the aforesaid
contention, learned counsel has placed reliance upon the
decision rendered by Hon'ble Supreme Court in the cases of
Munuwa @ Satish & Ors. Vs. State of Uttar Pradesh,
reported in (2023) 1 SCC 714, Ram Narain Singh Vs. State of
Punjab, reported in (1975) 4 SCC 497, Pohlu Vs. State of
Haryana, (2005) 10 SCC 196 and Ganesh Datt Vs. State of
Uttarakhand, reported in A.I.R. 2014 SC 2521.
9. Learned advocate for the appellants would
thereafter submit that the prosecution has suppressed the earliest
version. In support of the said contention, learned counsel
referred the deposition of P.W. 4 wherein he has stated that he
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
and others proceeded on Bolero vehicle and took Nasiruddin
Khan for treatment. On Bolero they went to the police station
and gave information. It is further submitted that P.W. 12, I.O.,
has deposed that when he received information about the
incident, he made entry in the station diary. However, the same
has not been produced. Thus, the prosecution has withheld the
earliest version. Learned counsel, therefore, contended that there
are all chances of false implication of the present appellants and,
therefore, the appeals be allowed.
10. Learned counsel for the appellants further
submits that, as per the case of the prosecution, the accused
persons have an enmity with the informant, P.W. 9 Sarfaraj
Khan and, as per the case of prosecution, P.W. 9 was also
present at the place of occurrence. However, it is strange that
none of the accused has made firing upon the informant and the
said witness did not sustain any gun-shot injury. It is further
submitted that there was no enmity with the deceased and,
therefore, there was no occasion for the accused to assault the
deceased or P.W. 8 Md. Nasiruddin Khan. Learned counsel,
therefore, contended that the prosecution has failed to prove the
motive on the part of the accused to kill the deceased.
11. It is further contended that the Investigating
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
Officer did not mention that he found any means of
identification at the place of occurrence and except one witness
no other witness has deposed about presence of any means of
identification at the place of occurrence. At this stage, it is
further submitted that there are major contradictions,
inconsistencies and improvement in the deposition of the
prosecution-witnesses and, therefore, the deposition given by
the so-called eye-witnesses and the injured witnesses is required
to be discarded.
12. At this stage, learned counsel would further
contend that, in fact, P.W. 8 is not an injured witness, despite
which the prosecution has projected him as an injured witness.
Learned counsel referred the deposition given by P.W. 4 and
submitted that the said witness has specifically stated that the
nearest Government Hospital from his village is Durgawati,
situated on G.T. Road which goes to Banaras and it is located at
a distance of 5-6 k.ms. The said witness further stated that he
took his father Md. Nasiruddin Khan to Kabirchoura Hospital
where he was admitted and thereafter they came to Maxwell
Hospital. It is contended that it is strange that P.W. 8 was not
given even the first aid in the said hospital and the injured was
firstly taken to Banaras at Kabirchoura Hospital and from there
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
he was taken to Maxwell Hospital. Learned counsel also
referred the deposition given by P.W. 14, the doctor who had
given treatment to P.W. 14 at District Hospital, Banaras. After
referring to his deposition, it is contended that, in fact, the story
put forward by the prosecution with regard to the so-called
injured witness raises doubt and, therefore, the deposition given
by the so-called injured witness cannot be relied upon. It is
further submitted that no document of Kabirchoura Hospital or
Maxwell Hospital has been brought on record.
13. At this stage, learned counsel submits that it is
strange that when such large number of persons resorted to
indiscriminate firing, how the prosecution made the specific
allegation against two accused and, that too, at 10:00 p.m. at
night when there is no means of identification on the road or in
Sahan.
14. Learned counsel lastly submitted that, in the
present case, the trial court has acquitted all the other accused
and, so far as the appellants are concerned, they have been
acquitted qua the charges levelled against them under Sections-
147, 148, 504, 149 and 506/149 of I.P.C. Thus, the trial court
has disbelieved the version of the other injured persons. Thus,
when the trial court has not accepted the story put forward by
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
the prosecution qua the co-accused, then the trial court has
committed serious error while accepting the same story qua the
present appellants. Learned counsel, therefore, urged that these
appeals be allowed and thereby the appellants be acquitted of
the charges levelled against them by quashing and setting aside
the impugned judgment of conviction and order of sentence
passed by the trial court.
SUBMISSIONS ON BEHALF OF THE
INFORMANT & STATE
15. On the other hand, learned senior counsel
appearing for the informant has vehemently opposed both these
appeals. Learned senior counsel has mainly submitted that the
prosecution has proved the place of occurrence as well as the
manner of occurrence by leading cogent evidence. It is
contended that, as per the evidence of the Investigating Officer,
the place of occurrence is the Sahan of the informant and,
similarly, as per P.W. 9 and other witnesses, it is Darwaja, Sahan
and R.C.C. road which is in front of Baithka and part of one
complex. He, therefore, urged that there is no discrepancy qua
the place of occurrence. It is further submitted that the manner
of occurrence has been supported by all the prosecution-
witnesses, including four injured witnesses. Their presence
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
cannot be doubted in view of the deposition given by P.W. 10
and P.W. 14 who have examined the injured witnesses. Learned
counsel has also submitted that P.W. 11 has performed the post
mortem on the dead body of the deceased who has also
supported the case of prosecution.
16. Learned senior counsel thereafter contended
that the prosecution has also proved the motive on the part of
the accused to commit the alleged crime and the same has been
established by the deposition of prosecution-witnesses. It is
contended that it has been established that there was an enmity
between the group of informant and group of accused with
regard to handing over of charge of the post in the school.
Learned counsel has referred the deposition of P.W. Nos. 1, 3, 4
and 9 in support of the aforesaid contention.
17. Learned senior counsel for the informant
further submits that P.W. 14 Dr. Jaesh Mishra, who is a doctor at
District Government Hospital, Banaras, has certified the injuries
on the person of P.W. 8 at the neck from close range with
firearm. The said injury has been supported by P.W. 8, injured,
as well as the other prosecution-witnesses. Learned counsel,
therefore, urged that when the injured witnesses have
specifically deposed against the accused, the trial court has not
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
committed any error while convicting the appellants herein.
18. Thereafter, learned senior counsel for the
informant submitted that from the deposition given by P.W. 1 it
is clear that there was bulb light at the place of occurrence at the
time of incident and, therefore, it is not open for the appellants
to contend that there was no source of light at the place of
occurrence for identification.
19. Learned senior counsel has placed reliance
upon the following decisions rendered by the Hon'ble Supreme
Court:-
1. Balu Sudam Khalde & Anr. Vs. The State of
Maharashtra, reported in (2023) 13 SCC 365
2. State of Uttar Pradesh Vs. Naresh & Ors.,
reported in (2011) 4 SCC 324
3. Abdul Sayeed Vs. State of Madhya Pradesh &
Analogous cases, reported in (2010) 10 SCC 259.
ANALYSIS OF ORAL EVIDENCE
20. We have considered the submissions canvassed
by the learned counsels for the parties. We have also perused the
evidence of prosecution witnesses and also perused the
documentary evidence exhibited.
21. At this stage, we would like to appreciate the
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
relevant extract of entire evidence led by the prosecution before
the Trial Court.
22. Before the Trial Court, prosecution examined
14 witnesses.
23. P.W. 1 Md. Shahid Khan has stated in his
examination-in-chief that the incident is of 02.07.2015. At about
10:00 at night, he along with others was sitting at the (door)
Baithka when 16 persons named in the F.I.R. came variously
armed from the eastern side and started abusing. When the
informant side came out, accused Sartaz fired at Masood Khan
which hit his neck causing his death on the spot. Tauhid Khan
fired at his father Md. Nasiruddin which hit his neck. When the
deponent approached his father to save him, Tausid Khan
assaulted him with the butt of rifle on his head causing fracture.
Thereafter Liakat Khan assaulted him with a stick which hit his
hand. Then Shahid, Babar and Aslam Khan assaulted him with
sticks on his back. Md. Matloob Khan was assaulted by Afroz
Khan by means of butt of rifle on his head causing bleeding
injury. Aslam Khan assaulted with lathi. Sharafat Khan
assaulted Md. Sarfaraz with butt of rifle on his front face
causing bleeding from below the eye. Taz Mohammad assaulted
Md. Sarfaraz Khan with butt of rifle which hit his face and nose.
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
Taufique Khan, Turab Khan and Harun Khan assaulted Sarfaraz
with butt of pistol on the back portion of his neck. Afsarul
Haque Khan assaulted with butt of rifle on his face. Tanvir Khan
and Saheb Raj Khan assaulted Sarfaraz with butt of Katta and
also with fists and slaps. He further deposed that the reason for
the occurrence was that Md. Sarfaraz Khan was made In-charge
of Urdu Secondary School, Dumri in place of Tauhid Khan, who
was the then In-charge. He has identified Tauhid Khan, Sartaj
Khan, Shahir Khan and Tausid @ Gosib Khan, present in Court
and claims to identify others by face. He has also stated that
police had recorded his statement.
23.1. In his cross-examination, he has stated that he
is not aware as to who was made In-charge at what point of
time. His statement was taken by the police at his residence two
days after the occurrence. He had not stated before the police
that senior teacher Tauhid Khan was removed from the charge
and another senior teacher Chandrabhan was given the charge.
He had not either stated that on transfer of Chandrabhan Singh,
the charge of the school was given to Sarfaraz Khan. In para
Nos.7 & 8, he has detailed the location and ownership of the
Baithka. He has further stated that when the accused persons
arrived at Sahan resorting to firing, a bulb was on and it was a
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
moonlit night. He further states that 20-25 shots were fired.
When he went to rescue his father, he was lying on the concrete
road with his face upside. His brother Md. Masood Khan was
also lying at a distance of about one hand from that place. The
places where the injured persons were sitting, blood had spilled
out. The occurrence continued for five minutes. He states that he
cannot tell about the persons who came on the spot from the
village. He has admitted to have stated before the police that
when he went to his father, Taufique Khan assaulted him with
butt of rifle on his head causing fracture. He has denied the
suggestion that no such occurrence had taken place as stated by
him and that his father and brother had received such injuries at
another place and he had falsely deposed on being tutored by
the informant.
24. P.W. 2 Jakariya Khan has supported the manner
of occurrence described by P.W. 1.
24.1. In his cross-examination he has stated that
blood had spilled over the place where the injured persons fell
down. None of the members of prosecution-side who received
injuries with butt of rifle/gun and lathi/danda had fainted. He
had not gone to Hospital to see the injured patients. He met
Darogaji in the next morning at the Baithka. He had showed
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
blood spilled on and beneath the wooden cot (Chouki). He had
stated in his statement before Darogaji that at the time of
incident Nasiruddin, Shahid, Matloob and Masaub were with
him. He has denied the suggestion of giving false deposition on
the request of his nephew and he was not present at the time of
occurrence and that no such occurrence took place and he did
not see the incident.
25. P.W. 3 Sarfuddin Khan has stated in his
examination-in-chief that the incident took place on 2nd of July,
2015 at 10:00 p.m. He was sitting on his Baithka with several
persons. He heard a commotion from the eastern side.
Thereafter 16 persons came there variously armed. Accused
Sartaj Khan fired from his rifle at his son Maqsood Khan who
fell down injured and died on the spot. Tauhid Khan fired at
Nasiruddin Khan from rifle, as a result of which he sat down.
Tauhid Khan also hit Shahid with the butt of rifle causing
bleeding. Liakat Khan, Babar and Tauhid Khan assaulted Shahid
Khan with lathi, danda which hit his head and back. Taj
Mohammd assaulted Sarfaraj with butt of rifle on his nose
causing bleeding. The reason behind the incident is regarding
giving charge of the school. He has identified the accused
persons present and claims to identify others by face.
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
25.1. In his cross-examination, he has stated that
his statement was recorded after 2-3 days of the occurrence at
his door and not after a week. He was sitting at the Baithaka 15-
20 minutes before the occurrence. He had gone to the Baithka
with his brother and son. Others, 3-4 in number, were also
sitting on separate wooden cots. Twelve members of the mob
having firearms started firing followed by assaults by others
who were having lathi/danda. Firing continued for 5-7 minutes.
He stayed at the scene during the occurrence, but did not sustain
any injury. He saw the blood spilled only near his son. He has
also stated that he had not gone to the police station, rather he
had gone to Bhabua with the dead body. He has denied the
suggestion of giving false deposition.
26. P.W. 4 Md. Faruk Khan has deposed in his
examination-in-chief that on the date of occurrence, i.e. on
02.07.2015, at 10:00 p.m. he was at his door with his family
members and cognates. The accused persons came there
variously armed and started abusing. Liakat Khan and Aslam
Khan were raising slogans to kill them. On being asked by
Masaud Khan about the reason, Sartaj Khan fired at him with
his rifle and killed him. On this, Nasiruddin Khan proceeded
ahead who was also shot at by Tauhid Khan on his neck. When
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
Shahid Khan went to his rescue, Tausif Khan assaulted him with
butt of rifle on his head causing bleeding injury. He has further
stated that injured Nasimuddin Khan was treated at Banaras and
others were treated at Durgawati Government Hospital.
26.1. He has stated in his cross-examination that
two persons sustained bullet injury in the incident of firing
which went on for 3 minutes. He did not flee away during the
firing. Both the injured were lying on the R.C.C. road beside the
place where he and his uncle were standing and blood had
spread on the R.C.C. road. A few injured were lying near the
road and a few others were lying on the floor of Baithka. He
proceeded to Banaras with the injured Nasiruddin Khan. Till
then, all other injured were present at the Baithka. The nearest
hospital from his village is at Durgawati, at a distance of 5-6
k.ms. beside the road leading to Banaras. Injured was not taken
to Durgawati Hospital, which is situated near the police station.
The police was informed about the occurrence, but he does not
know as to who had given the information to the police. He took
his father to Kabir Chouk Hospital, Banaras. After admitting, his
father was referred to Maxwell Hospital where he received
treatment for 20 days. During that period, police had gone there
and recorded the statement of his father. The police recorded the
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
statement of the deponent a day after the occurrence. He has
denied the suggestion of giving false deposition and that no such
occurrence, as stated by him, had taken place.
27. P.W. 5 Md. Matloob Khan has stated in his
examination-in-chief at para-1 that the incident is of 02.07.2015.
At about 10:00 at night, he was sitting at his door. Thereafter, he
has precisely supported the manner of occurrence as stated by
P.W. 2. He has further stated that he was treated in a
Government Hospital. From there, he was referred to Bhabua.
He has identified accused Tauhid, Sartaj, Shahid and Tausid @
Mausid present in Court and claims to identify others by face.
27.1. In his cross-examination, he has stated that he
went to Durgawati Hospital after the occurrence at about 11:30-
12:00 at night along with Md. Shahid Khan and Md. Sarfaraz
Khan in a vehicle. He had fallen on the wooden cot lying on the
Baithka. He is not aware as to who had fallen on the cot besides
him. On the date of incident, he had not seen any injury on the
body of Taufique. He remained at Durgawati Hospital for a
week. His statement was recorded by the Police on the next day
of the occurrence. He has denied the suggestion that he had not
received any injury in the incident in question and that no such
occurrence, as stated by him, had taken place.
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
28. P.W. 6 Kamruddin Khan has stated in his
examination-in-chief that on 02.07.2015, at 11:00 p.m. the
inquest report of Masaud Khan was prepared by the police
authority at the door of Sarfaraz Khan on which he had put his
signature, which he identifies (Ext-1.).
28.1. In his cross-examination, he has stated that
when the accused persons crowded at Baithka, they went to
Sahan and stood there together. Amongst the accused persons,
seven were having rifles, three were having Kattas, three were
having pistols and others were armed with lathi, danda. When
the accused persons fled away, no blood had fallen on the floor,
rather it had fallen on the road. When the police reached, five
persons were lying on the Baithka out of whom one had died
and the rest were unconscious. Police rushed them to the police
station. He cannot tell the time and manner in which the police
took the injured to the police station. He had visited the hospital
after four days, but he cannot say which hospital and the persons
he met. He has denied the suggestion that no occurrence had
taken place at Baithka and that he had deposed falsely as the
informant is his nephew.
29. P.W. 7 Nisar Khan is an attesting witness to the
inquest report. He has stated that his thumb impression was
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
taken on the inquest report of deceased Md. Masaud Khan. He
has identified the signature of Kamruddin Khan on the inquest
report. The police had interrogated him. He has identified
accused Shahid and claims to identify others by face.
29.1. In his cross-examination, he has stated that
Kamruddin Khan is his cousin brother. At 11:00 p.m. at the time
of arrival of police a large number of persons were present. He
cannot tell the exact number. Police remained there for half an
hour. He did not leave the place during night. He has denied to
have given false statement.
30. P.W. 8 Md. Nasruddin Khan has specifically
stated in his examination-in-chief that on the instigation of
Liakat, Aslam, Babar and Shahid, Sarfaraz fired at Md. Masaud
in his neck resulting in his spontaneous death. Thereafter, Md.
Tauhid Khan fired at the deponent with the rifle he was having,
which hit the left side of his neck, as a result of which he sat
there itself. Thereafter accused Shahid Khan and Matloob Khan
assaulted Shahid Khan with the butt of rifle causing fracture in
his head. He has further stated that he was treated at Kabir
Chouk, Banaras. From there he was referred to Maxwell
Hospital for further treatment. The bullet was taken out of his
neck after operation. He remained admitted in the hospital from
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
03.07.2015 to 14.07.2015. Darogaji took the bullet with him.
Police had recorded his statement at his house. He identifies
accused Sartaj Khan, Tauhid Khan, Tausib Khan @ Gosib and
Shahid Khan, who are present in Court and claims to identify
others by face.
30.1. In his cross-examination, he has stated that
during the period he was admitted, police had not recorded
statements of any of his family members. He was unconscious
while being operated upon and thereafter also. The doctor did
not hand over the bullet to Darogaji in his presence. After
receiving the bullet injury and until being operated upon, he was
never unconscious. Before arrival of the police, his sons Danish
Khan and Farooque Khan and nephews Jakaria Khan and
Mashook Khan helped him in standing up. He has denied the
suggestion that no such occurrence, as stated by him, had taken
place and that the prosecution side had not received any injuries
at the place of occurrence rather they received injuries at
another place and that he had given false deposition as
instructed by the informant.
31. P.W. 9 Sarfaraz Khan is the informant of this
case. He has supported his version about the manner of
occurrence as described in the F.I.R. He has specifically stated
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
that the accused persons having lathi were instigating the
accused persons having firearms to kill the prosecution side. At
this, Sartaj Khan fired at Masaud Khan which hit his neck
causing his death on the spot. Tauhid Khan fired at Nasruddin
Khan which hit his neck and he was rushed to Banaras for
treatment. Shahid Khan while trying to help his father, Tausid
Khan @ Gosib Khan assaulted him with the butt of rifle causing
fracture injury in his head. The deponent was assaulted with the
butt of rifle by Sarafat Khan causing injury under his left eye.
Before he could balance himself, Taj Mohammad assaulted him
with the butt of rifle on his face causing bleeding from his neck.
Afsarul Haque assaulted him with the butt of rifle under the
right ear and cheek causing bleeding injury. He has further
stated that Sahan is situated in front of the door. Adjacent to the
Sahan, there is R.C.C. cast lane where the incident took place.
Police reached after half an hour, prepared Panchnama of
Masaud Khan and took Shahid Khan, Hafiz Matloob Khan and
him to the police station. The reason behind the occurrence is
handing over of the charge of the school. He has identified
accused Sartaj Khan, Tauhid Khan, Tausib Khan @ Gosib Khan
and Shahid Khan, present in Court and claims to identify others
by face.
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
31.1. In his cross-examination, he has stated that
though police had seen his injuries, it did not submit written
report with regard to the same to the hospital. Police took him to
the police station in a jeep where he remained for half an hour.
There the police prepared the injury report and then sent him for
treatment. He went to Durgawati Hospital in a police van and
remained there from 12:00 to 05:00 a.m. whereafter he was
referred to the private hospital named Bhrigunath Memorial
Hospital, Mohania. He was under treatment there for four days
and thereafter returned home. Before leaving for home, police
had interrogated him at the hospital.
32. P.W. 10 Dr. Khalid Raza has stated in his
deposition that on 03.07.2015, he was posted at P.H.C.
Durgawati as a Medical Officer. On that day, he examined
injured Md. Shahid Khan and noted the following:-
i. Lacerated wound on the right parietal region
of head of size 2"x1/8"x bone deep.
ii. Pain and Swelling on the right wrist.
A/I- within six hours.
Opinion- Above injuries caused by hard &
blunt object, but opinion regarding nature of injury kept
reserved because patient has been referred to higher
center.
32.1. He has further given his opinion on the basis of
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
the paper received on 12.09.2015 and said that paper shows that
injury on the right parietal region on head about 8 cm. muscle
deep is caused by sharp cutting object. Therefore, injury No. 1 is
grievous in nature and injury No. 2 is simple in nature.
On the same day he examined injured Matloob Khan
S/o Sarfuddin Khan, R/o Vill.- 12:15 a.m. and found following
injuries:-
i. Lacerated wound on right parietal region of
the head, size 2"x1/8"x bone deep.
ii. Pain and swelling on the left forearm.
iii. Pain and swelling on the right leg.
M/I- healed wound mark on the left arm.
Opinion- Above injury caused by hard and
blunt object but opinion regarding nature of injury is kept
reserved because patient is referred for higher center.
32.2. He has also given supplementary opinion on the
facts of paper of higher center on 12.09.2015 and stated that
paper shows injury in the right temporal parietal region about
six cm. by sharp cutting object. Therefore, injury No. 1 is
grievous in nature and injury Nos. 2 & 3 are simple in nature.
32.3. On the same day, he examined Sharfaraj Khan at
01:45 a.m. and found following injuries:-
i. Cut on the lid of left eye with bruise below
the eye with mild redness of the eye.
ii. Cut on the nose.
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
iii. Pain & swelling on the right cheek.
iv. Cut on the left knee.
v. Cut on the right knee.
vi. Complain of pain in whole body.
A/I- Within six hours.
Opinion:- Above injuries are caused by hard
blunt object but opinion regarding nature of injury is kept
reserved as patient has been referred to eye specialist.
After receiving the supplementary report, he said that
everything within normal limit. Therefore, injury has
been considered as simple in nature caused by hard &
blunt object like rifle butt, katta butt etc.
32.4. He has also proved the carbon copy of all the
three injury reports which has been prepared by him and bears
his signature. This report has been marked as Ext.- 2, 2/1 & 2/2
respectively.
33. PW-11 Dr. Binod Kumar has stated in his
deposition that on 3rd July, 2015, he was posted at Sadar
Hospital, Bhabhua. On that day, he received the dead body of
Masaud Khan and recorded the following findings:-
On external examination:-
Rigor mortis present in all the four limbs, hair
black, eye semi open, mouth close, dark red blood present
in nostril, body & cloth smeared with blood.
Injury No. 1:- An inverted and tattooed
margine, lacerated wound size about 1/4" in diameter
communicated to injury No. 2 present over left side of
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
upper part of neck just below and adjacent to an angle of
mandible on left side surrounding area of face and neck.
The wound covered with gun powder spots.
Injury No. 2:- Averted margin lacerated wound
about 1.5 inch in diameter communicated to injury No. 1
present over right side of cheek adjacent to angle of
mouth on right side. It is wound of exit.
On dissection:-
Skull bone intact, brain matter intact and pale.
Neck- In the way of injury No. I & II associated muscle
vessels and visceras lacerated mandible to injury No. 2
along with teeth, fractured into pieces, thoracic bone cage
intact, both lungs intact & pale. Heart- intact & both
chambers empty. Stomach- Full of semi digested food
materials. Intestine- Small & large both contains gas,
liquid and feaces. Liver- Spleen & both Kidney- intact.
Urinary bladder- contain 120 ml of urine.
Opinion:- Above mentioned injuries are ante
mortem caused by fire arm.
II- Death is due to renal cardio respiratory
arrest due to excessive haemmorhage & shocks.
III- Time lapse between death & autopsy-
within 24 hours.
All injuries are sufficient to cause death in
ordinary course of nature. He has proved the injury report
with his pen and signature which is Ext.-3.
34. P.W. 12 Pankaj Kumar is the Investigating
Officer of the case. He has stated in his examination-in-chief
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
that he was posted at Durgawati P.S. on 03.07.2015. That day he
received the written complaint of informant Sarfaraj Khan based
on which Durgawati P.S. Case No. 139/15 was registered (Ext-
4.). He had paginated the same which he identifies (Ext-4/1). He
himself took the charge of investigation of the case. He prepared
the inquest report of deceased Masaud Khan at the door of the
informant at 11:00 p.m. which is in his pen and signature and
bears the L.T.I. of witness Kamruddin Khan,(Ext-1/1). In para-4
he has described the place of occurrence. He further states that
he arrested accused Sartaj Khan, Afroj Khan, Tahir Khan and
Tausid @ Gosib Khan.
34.1. In his cross-examination, he has stated that he
got the information about the incident of which he made entry in
the station diary, but he did not mention it in the case diary. He
proceeded for the place of occurrence at 22:10 at night. After he
reached the place of occurrence, the informant prepared the
written complaint. The same does not bear the signature of any
of the injured or villager except Sarfaraj Khan. He did not
mention at any place about the blood or blood stain, not even
near the dead body. He has further stated that no wooden cots
were found in front of Baithkha. He found wooden cot in the
Verandah and Baithka of the informant. He did not find any
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
blood or blood stain either in Sahan, Verandah or Baithka. He
recorded the statements of Shahid Khan and Matloob Khan at
the police station at 7 O'clock. He has not mentioned in the case
diary about finding any injury on their body. However, he has
denied the suggestion that he has conducted a faulty
investigation.
35. P.W. 13 Dhananjay Kumar has deposed that he
was posted as S.H.O. of Durgawati P.S. He took over the charge
of investigation on 16.08.2015 from A.S.I. Pankaj Kumar. He
procured the post mortem report from local P.S. and recorded
the same in the case diary. He also procured the supplementary
injury reports of injured Matloob Khan, Shahid Khan, Nausif
Khan and Sarfaraz Khan and recorded in the case diary.
Thereafter, he submitted charge-sheet against Sartaj Khan, Afroj
Khan, Shahid Khan, Tausib @ Gosib Khan and Md. Tauhid
Khan under Sections- 147, 148, 149, 341, 307, 302, 504, 506 of
I.P.C. and 27 of the Arms Act.
35.1. In his cross-examination, he has stated that all
the accused persons were not arrested before he took over the
charge of investigation. He had not arrested any accused except
Tauhid Khan, who were arrested by his predecessor. He had
submitted an application before the Court for obtaining an order
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
of attachment. He had not recorded the statement of any of the
accused.
36. P.W. 14 Dr. Jaesh Mishra has deposed that on
03.07.2015, he was on night duty at Shri Shiv Kumar Gupta
District Hospital, Varanasi as an Emergency Medical Officer
and at 02:20 in the night, conducted the medical examination of
Master Nasiruddin Khan who was brought by Dr. Umer Khan.
Description of injuries:-
1. A torn wound measuring 0.9 cm in length and
0.8 cm in width, depth could not be determined,
located 5 cm above the middle part of the collar
bone on the left side of the neck and 2.5 cm from
the middle part of the body on the side. There was
colour of abrasion and a black spot in the wound,
Fresh blood was oozing out on pressing the wound.
The injury was kept under observation and referred
to the surgeon and radiologist for advice.
Note:- A bandage was tied around the said wound.
The wound was seen after the bandage was
removed.
Advice for X-ray was given and referred to the
surgeon and radiologist for the expert opinion.
5. Duration of injury:- Fresh.
6. Weapon used:-
All the above injuries are possible from the fire
arms.
36.1. He has further stated that the patient's family
refused to admit and the patient was referred to a bigger centre
for better treatment. He has stated that this injury report is in his
handwriting and it bears his signature too which he recognizes
and has been marked as Exhibit- 06. The LTI is also attested by
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
him. On the request of the relatives of the patient, the said
patient was referred to a higher centre after giving him life
saving medicines on the treatment slip which is in his
handwriting and is marked as Exhibit 6/1.
36.2. In his cross-examination, he has stated that he
did not know the injured person before his treatment. After
seeing the patient, he told the attendant that it is necessary to
admit him but his guardian refused. He had advised for X-ray to
know the nature of the injury. The X-ray was not presented to
him by the injured or his guardian. How old the injury was
before the patient was examined is recorded. It is stated that the
wound is fresh. The wounds of 6 to 8 hours duration are called
fresh. It is not that the colour of the injury changes every 6
hours. The colour of such wounds changes in 24 hours. In
medical, the colour of any wound is an important factor for
determining its age or duration. The patient was his outdoor
patient. The patient was brought at 2:20 on the night of
3.07.2015. The report was prepared after examination. It is not
mentioned for how long the injured person was in the outdoor.
The patient was given only emergency treatment. After
examining the wound, the injured person was taken away. The
patient was conscious at the time of examination of the patient.
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
The patient was not referred to him by any other doctor. The
guardian's signature is not there on both the papers. At the time
of preparation of the slip, the name of the patient was also
recorded in the hospital register. Today, the hospital register is
not available with him. It is not that the injury report is not
scientific.
DISCUSSION & FINDINGS
37. Having heard learned advocates appearing for
the parties and having gone through the trial court record as well
as the evidence led by the prosecution, it transpires that, as per
the fardbeyan, the incident took place at about 10:00 p.m. on
02.07.2015. The informant has specifically alleged in the
fardbeyan that all the accused persons came at the place of
occurrence with firearms and started firing bullets. It is further
revealed that allegation has been levelled against the appellant
Sartaj Khan that he fired bullet which hit deceased Md. Masaud
Khan in the neck whereas accused Md. Tauhid Khan fired bullet
which hit injured Nasiruddin Khan. From the evidence it would
reveal that P.W. 1 Md. Shahid Khan is an eye-witness to the
incident in question. He has specifically deposed in his
examination-in-chief that accused Sartaj Khan fired at Md.
Masaud Khan which hit his neck causing death on the spot. He
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
has further deposed that accused Tauhid Khan fired at his father
Nasiruddin Khan which hit his neck and when P.W. 1 tried to
save him, Tauhid Khan again assaulted him with the butt of rifle
on his head. P.W. 2 Jakaria Khan has also supported the manner
of occurrence described by P.W. 1. He is also an eye-witness to
the incident in question. Similarly, P.W. 3 Sarfuddin is also
projected as an eye-witness by the prosecution. The said witness
has also specifically deposed that he was sitting on his Baithka
with several persons and he heard a commotion from the eastern
side and thereafter all the accused came there carrying firearms.
The said witness has also supported the case of prosecution by
narrating the manner in which the incident took place and the
role played by the present appellants. Similarly, P.W. 4 and P.W.
5 are the eye-witnesses. At this stage, it is relevant to observe
that P.W. 8 Md. Nasirudding Khan is also an injured eye-
witness. P.W. 8 has specifically deposed that Md. Tauhid Khan
fired at him with the rifle he was carrying which hit the left side
of his neck, as a result of which he sat there itself. The said
witness has further deposed that he was treated at Kabirchoura,
Banaras. From there he was referred to Maxwell Hospital. The
bullet was taken out after operation.
37.1. If the deposition given by P.W. 8 is read with
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
the deposition given by P.W. 14 Dr. Jaesh Mishra, it would
reveal that P.W. 14 has deposed before the Court that on
03.07.2015 he was on night duty at District Hospital, Varanasi
as an Emergency Medical Officer and at 02:20 in the night, he
conducted the medical examination of injured Md. Nasiruddin
Khan who was brought by Dr. Umer Khan. P.W. 14 has
described the injuries sustained by P.W. 8. The said witness
further stated that injury report has been written by him and the
same has been signed by him. The said report is produced by
Ext.- 6. The said witness further deposed that at the request of
the relatives of the patient, the said patient was referred to
higher centre for better treatment. This witness has also deposed
that all the injuries are possible from firearms.
38. Thus, from the deposition given by P.W. 8 and
P.W. 14, we are of the view that the prosecution has duly proved
that P.W. 8 is an injured eye-witness who has sustained injuries
in the incident in question. We cannot doubt the presence of
P.W. 8 at the place of occurrence. At this stage, it is relevant to
note that it has been contended by learned counsel for the
appellants that from the deposition given by P.W. 4, it is
revealed that the nearest government hospital from the village is
Durgawati, situated at G.T. Road which goes to Banaras and
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
which is located at a distance of 5-6 k.ms. and it is claimed that
P.W. 8 was not given the first aid in the said hospital and he was
taken to Kabirchoura Hospital, Banaras. The contention that
merely because Durgawati Hospital is situated at a distance of
5-6 k.ms. from the place of occurrence, the injured was required
to be taken to the said hospital and when he was not taken to the
nearest hospital and treatment was taken by him at Banaras, the
story of prosecution is required to be doubted, is misconceived.
We cannot accept the submission that when he was not taken to
the nearest hospital and treatment was taken by him at Banaras,
the story of prosecution is required to be doubted, in view of the
deposition given by P.W. 14.
39. From the deposition given by P.W. 8, who is an
injured eye-witness, as well as the other eye-witnesses, it is
revealed that the said witnesses have narrated, in detail, about
the role played by the present appellants. No doubt, there are
certain discrepancies and exaggerations in the deposition given
by the prosecution-witnesses and it is also true that the trial
court has acquitted the other accused by not accepting the story
put forward by the same prosecution-witnesses, however,
merely because there are certain exaggerations/discrepancies in
the evidence, entire story put forward by the prosecution cannot
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
be discarded, more particularly when P.W. 8, an injured witness,
has fully supported the case of the prosecution and P.W. 14, the
doctor who has given treatment to the injured witness, has also
described about the injuries sustained by P.W. 8. At this stage, it
is also required to be observed that learned counsel for the
appellants has contended that, as per the prosecution-witnesses,
there are different places of occurrence. Somebody said that
occurrence took place at Darwaza, another said at Baithka, a
few others said at Sahan and the Investigating Officer said about
the R.C.C. Road. However, if the entire evidence led by the
prosecution is closely examined, it can be said that Darwaza,
Sahan and R.C.C. Road, which is in front of Baithka, are part of
one complex and, further, from the deposition of P.W. 12, the
I.O., it can be said that Neem tree is situated in Sahan and near
to that there was Verandah (Osara). P.W. 6 has also said about
the Baithka and verandah in his deposition. The dead body was
found by the I.O. near the said Neem tree near R.C.C. Road. We
are, therefore, of the view that the contention raised by the
learned counsel for the appellants with regard to different places
of occurrence is misconceived.
40. Learned counsel for the appellants has also
submitted that the prosecution has failed to prove the motive on
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
the part of the appellants to kill the deceased and to injure P.W.
8. However, we are of the view that the said contention is also
misconceived. From the evidence led by the prosecution, it is
revealed that there was dispute with regard to handing over of
the charge of post in the Utkramit Urdu Secondary School,
Dumri, Durgawati and P.W. 9 Sarfaraj Khan is the informant.
With regard to the dispute with regard to the rival group of the
accused came to the place of occurrence with firearms and
started firing and in the said firing P.W. 8 sustained injury and
deceased Masaud Khan died on the spot. Prosecution-witnesses
have, during the course of deposition, specifically deposed with
regard to the same and, therefore, it cannot be said that the
prosecution has failed to prove the motive on the part of the
appellants.
41. It has been contended by learned counsel for
the appellants that the first version given to the police has been
suppressed by the prosecution. In support of the same, learned
counsel has referred the deposition given by P.W. 4 who has
stated during the course of his deposition that they proceeded in
a Bolero car and information was given to the police station.
However, the said version has been withheld. We have gone
through the deposition of P.W. 4. Though the said witness has
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
deposed that information was given to the police, but who had
given the said information is not known to him. It is relevant to
note at this stage that, as per the case of prosecution, the
incident took place at 10:00 p.m. on 02.07.2015 and
immediately, during the night hours at 02:30 a.m., i.e. within
four hours only, the F.I.R. has been lodged. Thus, we are of the
view that, in the facts and circumstances of the present case,
when there is no delay in lodging the F.I.R. and when in the
incident in question one person died on the spot and other
sustained gun-shot injury and, more particularly, in view of the
deposition given by P.W. 8 and P.W. 14, it cannot be said that
the present appellants have been falsely implicated, as
contended by the learned counsel for the appellants by
suppressing first version.
42. Further, from the deposition given by P.W. 1, it
is clear that there was a bulb light at the place and time of
incident and, therefore, the doubt raised by the defense with
regard to the presence of source of identification cannot be
accepted in view of the evidence led by the prosecution.
43. At this stage, it is also relevant to note that P.W.
11 is the doctor who had performed post mortem on the dead
body of the deceased. P.W. 11 has specifically deposed with
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
regard to the injuries sustained by the deceased. The doctor has
specifically given the opinion that the injuries are ante mortem,
caused by firearms. Thus, we are of the view that the medical
evidence also supports the case of P.W. 8 as well as other eye-
witnesses. Hence, merely because the trial court has acquitted
the other accused, the appellants herein cannot take an
advantage of the said order rendered in favour of other accused.
44. In the case of State of Uttar Pradesh Vs.
Naresh & Ors. (supra), the Hon'ble Supreme Court has
observed in para-27 as under:
"27. The evidence of an injured witness must be
given due weightage being a stamped witness, thus, his presence
cannot be doubted. His statement is generally considered to be
very reliable and it is unlikely that he has spared the actual
assailant in order to falsely implicate someone else. The
testimony of an injured witness has its own relevancy and
efficacy as he has sustained injuries at the time and place of
occurrence and this lends support to his testimony that he was
present during the occurrence. Thus, the testimony of an injured
witness is accorded a special status in law. The witness would
not like or want to let his actual assailant go unpunished merely
to implicate a third person falsely for the commission of the
offence. Thus, the evidence of the injured witness should be
relied upon unless there are grounds for the rejection of his
evidence on the basis of major contradictions and discrepancies
therein."
45. In the case of Abdul Sayeed (supra), the
Hon'ble Supreme Court has observed in para-28 as under:
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
"28. The question of the weight to be attached
to the evidence of a witness that was himself injured in the
course of the occurrence has been extensively discussed by this
Court. Where a witness to the occurrence has himself been
injured in the incident, the testimony of such a witness is
generally considered to be very reliable, as he is a witness that
comes with a built-in guarantee of his presence at the scene of
the crime and is unlikely to spare his actual assailant(s) in order
to falsely implicate someone. "Convincing evidence is required to
discredit an injured witness."
46. In the case of Balu Sudam Khalde (supra), the
Hon'ble Supreme Court has observed in para-26 as under:
"26. When the evidence of an injured
eyewitness is to be appreciated, the undernoted legal principles
enunciated by the courts are required to be kept in mind:
26.1. The presence of an injured eyewitness at
the time and place of the occurrence cannot be doubted unless
there are material contradictions in his deposition.
26.2. Unless, it is otherwise established by the
evidence, it must be believed that an injured witness would not
allow the real culprits to escape and falsely implicate the
accused.
26.3. The evidence of injured witness has
greater evidentiary value and unless compelling reasons exist,
their statements are not to be discarded lightly.
26.4. The evidence of injured witness cannot be
doubted on account of some embellishment in natural conduct
or minor contradictions.
26.5. If there be any exaggeration or immaterial
embellishments in the evidence of an injured witness, then such
contradiction, exaggeration or embellishment should be
discarded from the evidence of injured, but not the whole
evidence.
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
26.6. The broad substratum of the prosecution
version must be taken into consideration and discrepancies
which normally creep due to loss of memory with passage of
time should be discarded."
47. Thus, from the aforesaid decisions rendered by
the Hon'ble Supreme Court, it can be said that the evidence of
injured witness has greater evidentiary value and, unless
compelling reasons exist, his statement is not to be discarded
lightly. The evidence of injured witness cannot be doubted on
account of some embellishment in natural conduct or minor
contradictions. If there be any exaggeration or material
embellishment in the evidence of an injured witness, then such
part should be discarded from the evidence of injured, but not
the whole evidence. Even the presence of an injured eye-witness
at the place of occurrence cannot be doubted, unless there are
material contradictions in his deposition.
48. Keeping in view the aforesaid decisions
rendered by the Hon'ble Supreme Court, if the evidence led by
the prosecution in the present case is carefully examined, we are
of the view that P.W. 8 is an injured eye-witness who has no
reason to falsely implicate the present appellants and merely
because there are certain discrepancies and exaggerations in the
deposition of the prosecution-witnesses, evidence of injured
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
witness cannot be disbelieved. Further, in view of the deposition
given by P.W. 14, the doctor who has examined P.W. 8 and
narrated about the injury sustained by him, which suggests that
P.W. 8 had sustained such injuries, evidence of P.W. 8 cannot be
disbelieved.
49. At this stage, we would also like to examine the
decisions referred by the learned counsel for the appellants. In
the case of Munuwa @ Satish & Ors. (supra), Hon'ble
Supreme Court has observed in para-32 as under:
"32. Having considered the matter in detail, and
having noted that the prosecution failed to recover bloodstained
materials from the place of occurrence, empty cartridges,
pellets, or any other weapon used for commission of the crime,
coupled with the contradictions and unnatural conduct of the
eyewitnesses PW 1 and PW 6, and the inconsistencies in the two
dying declarations, we believe that the prosecution has not
proved the case beyond a reasonable doubt, and the accused are
entitled to be given the benefit of doubt."
50. We are of the view that the aforesaid decision
would not render any assistance to the appellants looking to the
evidence led by the prosecution.
51. Learned counsel for the appellants has further
placed reliance on para Nos. 8 and 9 of the judgment rendered
by the Hon'ble Supreme Court in the case of Ram Narain
Singh and analogous case (supra). However, we are of the view
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
that in the said case there was no injured eye-witness and
looking to the discrepancy with regard to the time and place of
occurrence in the evidence of the prosecution, the Hon'ble
Supreme Court has made certain observations in favour of the
accused and thereby acquitted them. However, as discussed
hereinabove, in view of the deposition given by the injured eye-
witness, the case of the prosecution cannot be disbelieved or
discarded.
52. Similarly, the decisions rendered by the
Hon'ble Supreme Court in the cases of Pohlu (supra) and
Ganesh Datt (supra) are also not helpful to the case of the
appellants herein in view of the evidence led by the prosecution
in the present case.
53. Thus, after re-appreciating the entire evidence
led by the prosecution, we are of the view that the injured eye-
witness, P.W. 8, who has also sustained injury in the incident in
question and when the said witness has been examined by P.W.
14 doctor who has also found the firearm injury on the neck of
P.W. 8, we cannot simply discard the deposition given by the
said witness. Merely on the ground of certain inconsistencies
and discrepancies in his deposition, entire evidence led by the
prosecution cannot be disbelieved and discarded.
Patna High Court CR. APP (DB) No.1217 of 2018 dt.07-02-2025
54. We have also gone through the reasoning
recorded by the trial court while convicting the present
appellants for committing the alleged offences and we are of the
view that the trial court has not committed any error while
passing the impugned judgment and order, so far as the present
appellants are concerned.
CONCLUSION
55. In view of the aforesaid, we are of the view that
the impugned judgment and order passed by the trial court
requires no interference in the present appeals. Accordingly,
both these appeals stand dismissed.
56. Appellant Tauhid Khan (in Cr. Appeal (D.B.)
No. 126 of 2019) is on bail. His bail-bonds are cancelled and he
is directed to be taken into custody forthwith.
(Vipul M. Pancholi, J)
( Alok Kumar Pandey, J)
K.C.Jha/-
AFR/NAFR N.A.F.R.
CAV DATE N.A.
Uploading Date 15.02.2025
Transmission Date 15.02.2025
