Patna High Court
Sambhu Paswan @ Samrat vs The State Of Bihar on 28 March, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.972 of 2018
Arising Out of PS. Case No.-25 Year-2016 Thana- MOKAMAH District- Patna
======================================================
Nawal Rai @ Budhiya, Son of Late Dewan Rai, Resident of Village- Mekara,
P.S.- Mokama, District- Patna.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 989 of 2018
Arising Out of PS. Case No.-25 Year-2016 Thana- MOKAMAH District- Patna
======================================================
Sambhu Paswan @ Samrat, Son of Late Lagan Paswan @ Ram Lagan
Paswan, Resident of village- Mekara Dih, P.S.- Mokama, District- Patna.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 1042 of 2018
Arising Out of PS. Case No.-25 Year-2016 Thana- MOKAMAH District- Patna
======================================================
Indal Rai, son of Late Devan Rai, Resident of Village - Mekara, Naya Tola,
Police Station - Mokama, District - Patna.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 1065 of 2018
Arising Out of PS. Case No.-25 Year-2016 Thana- MOKAMAH District- Patna
======================================================
Arun Rai, Son of Late Devan Rai, Resident of Village- Mekara, Naya Tola,
Police Station- Mokama, District- Patna.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 1159 of 2018
Arising Out of PS. Case No.-25 Year-2016 Thana- MOKAMAH District- Patna
======================================================
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
2/27
Manoj Rai S/o Ram Chnder Rai @ Chander Rai, R/o Village-Makera Ward
No. 7, Nayatola, P.S. Mokama, Distt. Patna.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 972 of 2018)
For the Appellant/s : Mr. Udbhav, Advocate
Mr. Tej Narayan Singh, Advocate
Mr. Harsh Kumar Singh, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (DB) No. 989 of 2018)
For the Appellant/s : Mr. Udbhav, Advocate
Mr. Tej Narayan Singh, Advocate
Mr. Harsh Kumar Singh, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (DB) No. 1042 of 2018)
For the Appellant/s : Mr. Udbhav, Advocate
Mr. Tej Narayan Singh, Advocate
Mr. Harsh Kumar Singh, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (DB) No. 1065 of 2018)
For the Appellant/s : Mr. Udbhav, Advocate
Mr. Tej Narayan Singh, Advocate
Mr. Harsh Kumar Singh, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (DB) No. 1159 of 2018)
For the Appellant/s : Mr. Udbhav, Advocate
Mr. Tej Narayan Singh, Advocate
Mr. Harsh Kumar Singh, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SOURENDRA PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 28-03-2025
These appeals have been preferred for setting aside the
judgment of conviction dated 17.07.2018 (hereinafter referred to
as the 'impugned judgment') and the order of sentence dated
24.07.2018
(hereinafter referred to as the 'impugned order')
passed by learned Additional District and Sessions Judge-I, Badh,
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
Patna (hereinafter referred to as the 'learned trial court') in
Sessions Trial No. 523 of 2016 arising out of Mokama P.S. Case
No. 25 of 2016.
2. By the impugned judgment, the appellants have been
convicted for the offences punishable under Sections 302/34,
120B/34 and 201/34 of the Indian Penal Code (in short 'IPC').
Further, appellants Naval Rai @ Budhiya, Manoj Rai and
Shambhu Rai have been convicted for the offences punishable
under Section 27 of the Arms Act. The appellants have been
ordered to undergo rigorous imprisonment for life with a fine of
Rs.20,000/- under Section 302/34 IPC, rigorous imprisonment for
ten years with a fine of Rs. 10,000/- under Section 120B read with
Section 115 IPC and rigorous imprisonment for seven years with a
fine of Rs. 10,000/- under Section 201 IPC. Further, appellants
Naval Rai @ Budhiya, Manoj Rai and Shambhu Rai have been
ordered to undergo rigorous imprisonment for three years with a
fine of Rs. 10,000/- under Section 27 of the Arms Act. In default of
payment of fine, all the appellants have to further undergo rigorous
imprisonment for nine months. All the sentences are to run
concurrently.
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
Prosecution Case
3. The prosecution story is based on the fardbeyan of
Babu Prasad Rai @ Jhotu Rai (PW-6) recorded by S.I. Shrikant
Bharti (PW-9) of Mokama Police Station on 30.01.2016 at 4:00
PM near Mekra Ghat. In his fardbeyan, the informant has stated
that last year in the month of September 2015, his co-villager
Nawal Rai @ Budhiya shot at and injured his only son Lakad Rai
for which he had filed a case against Naval Rai @ Budhiya in
Mokma Police Station. After few months, Naval Rai @ Budhiya,
along with his own brothers Arun Rai and Indal Rai used to come
to his house regularly and started pressuring them to compromise
the case and used to say that if they do not compromise, then its
result will be bad.
It is further alleged that on 30.01.2016, the informant was
grazing buffaloes in Mekra Diara towards north of his cattle-shed
and his son Lakad Rai was cutting grass towards south of the
cattle-shed. Around 12.00 - 1:00 in the afternoon, Ganga Rai (PW-
1), son of late Rameshwar Rai @ Pujari Rai came to him and
informed that his son Lakad Rai has been caught by Nawal Rai @
Budhiya, Manoj Rai, Shambhu @ Samrat Paswan and all the
above are asking him to compromise some case and are abusing
him and they have tied his hands and took him towards Ganga
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
Ghat. On hearing this, the informant quickly ran towards South
Ganga Ghat and as soon as he reached near Ganga Ghat, he saw
that Naval Rai @ Budhiya and with him Samrat Paswan and
Manoj Rai were taking his son Lakad Rai in a boat and were going
fast towards South in Ganga river. As soon as the boat reached the
middle of Ganga river, three gunshots were heard. Naval Rai @
Budhiya, Shambhu @ Samrat Paswan and Manoj Rai shot and
killed informant's son Lakad Rai and threw him in Ganga river.
After that all three of them fled towards South Ganga Ghat. The
informant also boarded a boat and search went in for his son Lakad
Rai in Ganga river, but could not find him. After that he reached
Ganga Ghat towards Mekra village and informed the local
villagers and then the police also reached there after getting the
information. The informant believes that Nawal Rai @ Budhiya,
Arun Rai, Indal Rai, Shambhu @ Samrat Paswan and Manoj Rai
conspired and as a part of conspiracy, they shot dead his son Lakad
Rai and threw his body in the river Ganga with the intention of
hiding it.
4. On the basis of fardbeyan, Mokama P.S. Case No. 25
of 2016 dated 30.01.2016 was registered under Sections 341, 506,
302, 201 and 120B IPC and Section 27 of the Arms Act. After
investigation, Police submitted chargesheet bearing No. 50 of 2016
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
dated 29.02.2016 against all the accused, namely, (1) Nawal Rai @
Budhiya, (2) Arun Rai (3) Indal Rai (4) Manoj Rai and (5)
Shambhu Paswan @ Samrat under Sections 341, 506, 302, 201
and 120B IPC and Section 27 of the Arms Act. On the basis of this
chargesheet, learned Magistrate took cognizance of the offences
and committed the records to the court of Sessions on 18.06.2016.
After receiving the records, Sessions Trial No. 523 of 2016 was
registered. On 10.11.2016, charges were framed under Sections
302/34, 120B/34, 201 and 506 IPC and Section 27 of the Arms
Act against Naval Rai @ Budhiya, Indal Rai, Manoj Rai and
Shambhu Paswan @ Samrat and on 11.11.2016 against Arun Rai.
Charges were read over and explained to the appellants in Hindi to
which they pleaded not guilty and claimed to be tried.
5. In course of trial, the prosecution examined as many
as nine witnesses and exhibited several documents to prove the
prosecution case. The defence also exhibited some documents. The
list of the prosecution witnesses and the exhibits are being shown
hereunder in tabular form:-
List of Prosecution Witnesses:-
PW-1 Ganga Rai
PW-2 Lallu Rai
PW-3 Dhanik Rai
PW-4 Tuso Rai
PW-5 Ramkaran Rai
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
PW-6 Babu Prasad Rai @ Jhotu Rai (informant)
PW-7 Dr. Arun Kumar
PW-8 Rahul Kumar
PW-9 Shrikant Bharti (I.O.)
List of Exhibits
Ext-1 P.M. Report
Ext-2 QnZC;ku
Ext-2/1 QnZC;ku ij i`'Bkadu
Ext-3 vkjksi i=
Ext-4 vkSipkfjd izkFkfedh
Ext-5 Ekksdkek Fkkuk dk.M la0 171@15 dk F.I.R
dk izekf.kr izfr
Ext-6 Ekksdkek Fkkuk dk.M la0& 39@14
Findings of the Learned Trial Court
6. Learned trial court after analysing all the evidences on
the record found that there is prior enmity between appellants'
family and informant's family and the accused had earlier also
tried to kill the deceased Lakad Rai. Learned trial court found that
first of all, the accused persons pressurised the deceased for
compromising Mokama P.S. Case No. 171 of 2015 and when they
failed to do so, they, with common intention, caught hold of the
deceased and assaulted him, thereafter, took him in a boat, in the
mid of river, they shot him dead and threw his dead body in the
river which was recovered on 14.02.2016.
7. Learned trial court found that the charges under
Sections 302/34, 120B/34, 201/34 IPC and Section 27 of the Arms
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
Act have been proved by the prosecution beyond all reasonable
doubt. Hence, Nawal Rai @ Budhiya, Manoj Rai, Sambhu
Paswan, Indal Rai, Arun Rai have been held guilty of the offences
punishable under Sections 302/34, 120B/34 and 201/34 IPC.
Accused Nawal Rai @ Budhiya, Manoj Rai and Sambhu Paswan
have also been held guilty of the offence punishable under Section
27 of the Arms Act.
Submissions on behalf of the Appellants
8. Learned counsel for the appellants has assailed the
impugned judgment and order on various grounds. It is submitted
that in this case although the prosecution has examined nine
witnesses, some of the prosecution witnesses, namely, Ganga Rai
(PW-1), Lallu Rai (PW-2), and Dhanik Rai (PW-3) have been
declared hostile as they did not support the prosecution case. Out
of these three witnesses, PW-1 happens to be a material witness as
it would appear from the fardbeyan of Babu Prasad Rai @ Jhotu
Rai (P-6) that it was PW-1 who came to him in Mekra Diara area
and informed him that his son has been caught hold of by Nawal
Rai @ Budhiya, Manoj Rai and Sambhu Paswan @ Samrat and
these three persons were talking to him with regard to compromise
of a case, they were abusing him and thereafter, they had tied his
hands and took him towards Ganga Ghat. It is submitted that the
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
fact that PW-1 had not supported the prosecution case would prove
fatal to the prosecution.
9. Learned counsel further submits that another witness
namely, Tuso Rai (PW-4) is not an eye witness to the facts and
circumstances of the case. He has stated that he heard while going
to Mekra Dih village that Lakad Rai has been killed. Nawal Rai,
Manoj and Sambhu Paswan shot him dead and fled away. Learned
counsel submits that this witness claims that he has put his
signature on the inquest report after the dead body was found in
Bind Toli (east), he had given his thumb impression. It is
submitted that the inquest report has been suppressed by the
prosecution, therefore, the place from where the dead body was
found has not been duly proved.
10. It is submitted that Ramkaran Rai (PW-5) claims to
be an eye witness of the occurrence. He had put his left thumb
impression on the fardbeyan. He claims to have seen Nawal,
Manoj and Sambhu assaulting Lakad Rai and Lakad Rai was being
brought from Diara area after tying his hands. He claims that
Lakad Rai was taken on a boat in Gangaji towards south and in the
mid water, he heard three rounds of firing. He claims that after
shooting, the deceased was thrown in the water. He claims that at
that time, Ram Rai and Naveen Rai (both not examined) were also
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
present. It is submitted that on bare perusal of the statement of
PW-5, it would appear that he does not talk of the presence of
Ganga Rai (PW-1) and Babu Prasad Rai @ Jhotu Rai (PW-6). This
witness is full brother of PW-6. He has stated that four witnesses
in this case are the family members. This witness has stated that he
had put his thumb impression in the case which was lodged by
Babu Prasad (PW-6) but he cannot say as to what were written. He
has stated that prior to lodging of the case by PW-6, he had no talk
with him and he had no meeting with him. Learned counsel
submits that it seems highly improbable that PW-5 and PW-6 both
claimed themselves eye witnesses to the occurrence and they saw
three persons at the bank of river and they claimed that they had
gone in search of the dead body of Lakad Rai but PW-5 and PW-6
who are full brothers had no meeting with them prior to recording
of the fardbeyan. The fardbeyan was recorded after about 4-5
hours of the occurrence.
11. As regards the evidence of the informant (PW-6), it
is submitted that he has changed the prosecution story in course of
trial. In his fardbeyan, he has clearly stated that it was Ganga Rai
(PW-1) who had come to him while he was grazing his she-buffalo
towards north to his bathan in Mekara Diara area and informed
him about the occurrence to the extent that his son Lakad Rai had
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
been caught hold of by the three accused persons, they had tied
his hands and he was being abused. It was PW-1 who had
informed PW-6 that the three accused persons had taken away
Lakad Rai towards Ganga Ghat after tying his hands but in course
of trial, PW-6 has not mentioned the name of Ganga Rai (PW-1).
He has claimed that he was grazing she-buffalo and his son was
cutting grass in the south to the Dera, the three accused persons
caught hold of him and they took him assaulting towards the bank
of Gangas, this witness claimed that he went from behind on
which Nawal @ Budhiya told that if Budhwa will come he would
be killed. Whereafter, he got frightened and stayed at some
distance. The attention of this witness was drawn towards his
previous statements made before Police in which he had not stated
that Nawal, Manoj and Sambhu had come and all the three caught
hold of his son and took him towards Gangas by assaulting and he
reached from behind. The I.O. who has been examined as PW-9
has contradicted PW-6 and has stated that PW-6 had not stated
before him that Nawal, Manoj and Sambhu had caught hold of him
(deceased) and took him towards Gangas and he had reached from
behind. The I.O. has stated that he found from the fardbeyan and in
restatement of the informant that the informant had got
information about the occurrence from Ganga Rai.
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
12. Learned counsel submits that there is a very
important aspect of the matter which would be evident from
paragraphs '2' and '3' of the deposition of the informant (PW-6).
In his cross-examination, PW-6 has stated that on the statement
which he had given before Police, he, Rahul and Ramkaran had
put their thumb impression. In paragraph '3', he has stated that his
statement were twice recorded by Police. In the second time, on
the statement, he and Ramkaran had given their thumb impression.
Learned counsel submits that the present fardbeyan is the
statement which was recorded in the second occasion. It bears the
thumb impression of the informant and Ramkaran only. What
happened to the statement which was recorded at first place and
on which the informant, Rahul (PW-8) and Ramkaran (PW-5) had
put their thumb impression is not known. Thus, the first version of
the case has been suppressed by the prosecution. The I.O. (PW-9)
has stated that information with regard to the occurrence was given
to the officer incharge of the Police Station but the station diary in
which the information was recorded has not been proved. In this
regard, his statement in paragraphs '2' and '3' have been pointed
out. Learned counsel submits that the I. O. has also given the
description of the place of occurrence in Mekra Ghat. He has
admitted in paragraph '4' of his deposition that he had not
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
mentioned about the presence of any bathan in course of his
inspection of the place of occurrence. The I. O. had not even
investigated as to who was the owner of the boat and he had not
seized the boat. The I. O. has admitted that he had not inspected
the place where the deceased was said to be engaged in cutting the
grass.
13. Learned counsel submits that the another witness
who claims himself an eye witness to the occurrence is Rahul
Kumar (PW-8). He is the brother of the deceased but he had not
tried to save the deceased. He claims his presence in Mekra Diara
but from deposition of PW-6 itself it would be evident that he was
told about the occurrence later on by PW-6. PW-8 has stated that
thousands of people are engaged in cutting of grass in Diara. He
has stated that the place where he was cutting the grass was shown
to Police, it was Diara and forest (jangal) south to the jangal is the
river Gangas.
14. Learned counsel further submits that in this case, it
appears from the evidence on the record that the murder took place
somewhere else. There is no proof that the body was decomposed
in water. It is also not proved that the deceased died of firearm
injuries. Nobody has identified the dead body. The I. O. claimed
that the dead body was identified on the basis of the pieces of
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
clothes but the learned trial court has entered into the case diary
and has recorded that the fact that one of the little finger of the
deceased was chopped off reveals that it was Lakad Rai who had
been earlier attacked and had suffered firearm injury on his left
palm. On the contrary, the Doctor did not find any injury on the
palm of the deceased. It is submitted that these facts have been
picked up by the learned trial court without there being any
evidence adduced in course of trial. There is no independent
witness of the occurrence. The fact that there was a prior enmity
between the deceased and the accused persons has prevailed upon
the learned trial court in passing of the impugned judgment and
order.
15. Learned counsel submits that even at the stage of
Section 313 Cr.P.C., all the incriminating circumstances have not
been put to the accused. Though the appellants Arun Rai and Indal
Rai were not present in the boat but during their statement under
Section 313 Cr.P.C., they were also put the same and one question.
16. According to learned counsel, the FIR is anti-dated
and anti-timed. It is not known how the dead body reached the
village Brahpur Bind Toli. Learned counsel has relied upon the
judgment of the Hon'ble Supreme Court in the case of Syed
Ibrahim versus State of A.P. reported in (2006) 10 SCC 601 to
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
submit that the I.O. has contradicted the material witnesses and as
such, conviction of the appellants relying upon the evidence of the
prosecution witnesses who are not only closely related to each
other but are highly inimical to the accused, would not be safe.
Submission on behalf of the State
17. Learned Additional Public Prosecutor for the State
has submitted that the prosecution case has been supported by the
informant (PW-6) and there are at least two eye witnesses,
namely, PW-5 and PW-8 who have come in support of the
prosecution. It is submitted that the testimony of the related and
inimical witnesses cannot be completely thrown out and discarded,
though they are required to be considered with all circumspection
and care.
18. Towards the end of his submissions, learned
Additional Public Prosecutor for the State accepts that in his
deposition, the informant has stated in paragraph '2' that he, Rahul
and Ramkaran had put their thumb impression on the statement
made before Police. This statement has not been brought on
record in course of trial. The fardbeyan (Ext. 2) is the second
statement on which the informant and Ramkaran had put their
thumb impression.
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
Consideration
19. Having heard learned counsel for the appellants,
learned Additional Public Prosecutor for the State and upon
perusal of the trial court records, we find that in this case the
fardbeyan (Ext. 2) which is the basis of the present case has been
recorded by S.I. Srikant Bharti on 30.01.2016 at 16:00 hours (4:00
pm) at near Mekra Ghat. On this fardbeyan, there are two thumb
impressions. In the right hand side the thumb impression is said to
be of Babu Prasad Rai @ Jhotu Rai (PW-6) whereas in the left
hand side the thumb impression is said to be of Ramkaran Rai.
Nobody has identified the thumb impression. The I. O. (PW-9) has
stated that on receiving information that one person has been
murdered and his dead body has been thrown in the river Gangas
in Mekara, he reached with the police force where he recorded the
fardbeyan of Babu Prasad Rai @ Jhotu Rai (PW-6). Several
villagers met there. PW-9 has stated that on the fardbeyan, he had
taken thumb impression of the Gotiya of PW-6. At his instance the
fardbeyan has been marked Exhibit-2 and the endorsement made
thereon has been marked Exhibit '2/1'. In his cross-examination,
PW-9 has stated that information with regard to the occurrence
was received by the Officer incharge of the police station on his
mobile and the name of the criminals were also disclosed but the
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
person who disclosed the name of the accused persons to the
Officer incharge, about him the I. O. did not inquire anything. He
did not try to find out the mobile number and address of the
person who had given information to the officer incharge of the
police Station. This Court finds that the I. O. claimed that the
information was recorded in the station diary by the officer
incharge of the Police Station but neither the officer incharge of
the police station has been examined nor the station diary has been
proved in evidence.
20. This Court further finds that in the fardbeyan, the
informant claimed that he was informed by Ganga Rai (PW-1)
about the occurrence in which the three accused persons had
caught hold of the deceased, had tied him by his hands and they
were taking him towards Ganga Ghat. PW-1 has not supported the
prosecution case and hence, he has been declared hostile but in
course of trial, the informant (PW-6) has changed the prosecution
story. He has not mentioned the name of PW-1 in his
examination-in-chief and has come forward as an eye witness of
the entire occurrence but the I.O. has contradicted him in
paragraph '23' of his deposition. The I. O. has stated that PW-6
had not stated before him that Nawal, Manoj and Sambhu all the
three had come and had caught hold of him (deceased) and took
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
him assaulting towards the bank of Gangas and that he had
reached there from behind. The I. O. (PW-9) has further stated
that the informant (PW-6) had also not said that the accused
persons told that if budhwa will come, he will be killed and he had
also not stated that they had taken away Lakad in a boat, killed
him in the mid of river and threw his dead body and fled towards
north Mekra Dih. We, therefore, find that the I. O. has
contradicted the informant (PW-6) on material aspect of the
matter. This leads to a highly doubtful situation with regard to the
presence of the informant (PW-6) in the Mekra Diara.
21. We find from the evidence of Ramkaran Rai (PW-5)
that he claims his presence sitting at the north end of Gangas from
where he had seen the occurrence which was taking place in Diara.
He claims that he was involved in the search of the dead body and
police came at 4 O'clock. According to him, the cause of
occurrence is the murder of his son which took place in the year
2014. Lakad Rai was shot at by Nawal and in the said case, Indal
Rai, Arun Rai and Nawal Rai were pressurizing for a compromise.
He has stated that police inquired from him and his brother Babu
Prasad. This witness has stated that he was the informant in the
murder case of Gulla Rai but who killed Gulla and why, he cannot
say. This Court finds that PW-5 had given his thumb impression
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
on the case lodged by PW-6 but he claims that prior to lodging of
the case, he had no talk with Babu Prasad (PW-6) and he had no
meeting with him. In paragraph '11' of his deposition, he has
stated that at 4 O'clock police had come, there were several people
from the village but he was not present.
22. This Court finds that his thumb impression is present
on the fardbeyan recorded at 4:00 pm on 30.01.2016. Statement of
PW-5 is that when police had come at 4 O'clock, there were
several villagers but he was not present, in such circumstance
presence of his thumb impression (not identified by anyone) on the
fardbeyan becomes doubtful. The contention of learned counsel
for the appellants that the FIR seems to be ante-dated and anti-
timed cannot be ignored. PW-5 has not said about the presence of
PW-6 either in Mekra Diara in the southern side of the bank of the
river Gangas at the time of occurrence. Thus, to this Court, the
presence of PW-5 as well as PW-6 at the bank of river Gangas and
their claim to have seen the occurrence as eye witnesses become
highly doubtful.
23. This Court finds from the evidence of PW-6 that his
first version before Police on which he, Rahul and Ramkaran had
put their thumb impression has been suppressed. In paragraph '2'
of his deposition, PW-6 has stated that on the statement which he
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
has given before police, he, Rahul and Ramkaran had put their
impression. In paragraph '3' of his deposition, he has again stated
that statement before police was recorded twice. In the second
statement, he and Ramkaran had given thumb impression. It is,
therefore, evident that the prosecution has not only failed to bring
on record station diary entry which was recorded by the Officer-in-
Charge of the police station on the basis of the telephonic call
received by him from someone in which the name of the criminals
were disclosed, as claimed by the I.O., even the first version of the
informant (PW-6) has not been brought on record. This approach
of the prosecution would create huge doubt over the authenticity of
the prosecution story and the possibility of ante-dating and ante-
timing of the fardbeyan is very much present.
24. The another aspect which is evident from the
statement of the informant (PW-6) is that according to him, in
paragraph '7' of his deposition, the dead body was found in river
Ganges. He has further stated in paragraph '8' that the dead body
was not decomposed, then he has stated in paragraph '9' that some
fish had eaten the dead body. Contrary to his claim in the
examination-in-chief that Lakad was caught hold of by all the
three accused, he was tied and then was being taken towards the
bank of Ganges assaulting him and thereafter he was made to
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
board a boat and in the middle of the river he was shot dead and
his dead body was thrown in Ganges, in the cross-examination
(paragraph '10'), the informant says that at the place of occurrence
he had seen 'Hkkx nkSM+'. Lakad was fleeing. Budhiya and Naval
caught hold of him. He says that three rounds of firing had taken
place and his son suffered three shots, in that condition. The
informant has further stated that Ramkaran (PW-5) has continuous
enmity with the accused persons for last one year. In paragraph
'22' of his deposition, he has stated that Bulla Rai was his nephew
but he was not aware that Bulla had murdered the nephew of
Lakhinder. The defence suggested to this witness that he had not
seen the occurrence and the occurrence has not taken place at the
place given by him.
25. This Court finds that when the I.O. (PW-9) was
examined in course of trial, he has given a statement that he got
the dead body on 14.02.2016 (evening) in village Barahpur. The
dead body was identified on the basis of some pieces of clothes of
the shirt and pant. His little finger was found cut and both the
hands of the dead body were tied behind. I.O. had prepared the
inquest report but the same has not been exhibited in course of
trial. There is no seizure list of the pieces of clothes and the rope
(jLlh). The I.O. had not prepared any najri naksha of the place of
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
occurrence. He has stated that as per paragraph '24' of the case
diary, in course of his inspection on 30.01.2016, he had not found
any hut whereas PW-6 has stated about a cattle shed in his
fardbeyan. The dead body was decomposed which he had recorded
in the case diary. He did not find the identity mark godana (tattoo)
on the dead body of the deceased. The I.O. had not recorded any
statement of the witnesses either in the fardbeyan or in their
statements regarding the age of the deceased. He has stated that the
witness Jhotu Rai @ Babu Prasad Rai (PW-6) had not stated
before him that Nawal, Manoj and Shambhu had caught hold of
him and had taken him towards Ganges river assaulting and he
reached from behind. He had also not stated that cq<+ok vk;sxk rks ekj
nsaxs. He had also not stated that they had taken Lakad in the boat,
killed him in the middle of the river and threw him then fled away
towards North Mekara Dih. The I.O. has further stated that in his
statement, the informant had not stated that Ramkaran, Rahul and
Ravinder were present there.
26. The I.O. had been suggested that he had suppressed
the first version, the dead body was not of Lakad Rai and the place
of occurrence described is not the actual place of occurrence and
that is the reason why he did not find any evidence of occurrence
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
at the so-called place of occurrence. PW-9 denied the suggestions
of the defence.
27. To this Court, it appears from a combined reading of
the evidence of the informant (PW-6) and the I.O. (PW-9) that
while the informant has stated in his examination-in-chief that he
had been searching the dead body of Lakad but did not find, in his
cross-examination (paragraph '7'), he has stated that the dead body
was found in river Ganges. He has stated that he had informed the
Mokama Police Station after finding of the dead body. PW-6 has
clearly stated that regarding the occurrence, he had informed
Sarpanch, Mukhiya Upender and Suresh Sahni. He has also stated
that he informed the members of the family Ramkaran, Bipin,
Russo, Rahul and Ravi. Contrary to this claim, the I.O. has stated
that he got the dead body in village Barahpur on 14.02.2016.
According to the informant, the dead body was not decomposed
but he has stated that the body was eaten by some fish. It is very
much clear from the evidence on the record that the dead body
which was found in village Barahpur was not duly identified as
that of Lakad Rai. Neither the inquest report has been brought on
record nor the pieces of the clothes and ropes were seized. The age
of the deceased was not known and no independent witness has
come to say that it was the dead body of Lakad Rai. The place
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
from where the dead body was recovered is highly doubtful as
there are two different versions of the place from where the dead
body was found.
28. At this stage, we would also take note of the
evidence of the Doctor (PW-7) who conducted the autopsy on the
dead body on 15.02.2016 at 7:30 AM. The findings of PW-7 are
recorded as under:-
"External - Mouth was open, eyes closed, body
decomposed.
The whole body decomposed
One whole like injury over front of chest below
right nipple size 1"x1/2"
hole like injury medium side of front of chest right
side blow nipple 1"x1/2"
Two hole over back below chest 2"x1/2" and
2½"x1/2"
The body was decomposed, hairs over head, eye
lashes were not present, devoid of little finger of left
hand
Flushes from body were not present.
Abdomen - distended.
Cause of death- hemorrhage and shock due to
cardio failure.
Cause of death- gun shot injury
Time since death :- more than 48 hours"
29. In his cross-examination, PW-7 has stated that he
had not found blackening or tattooing or charring around the
wound. Injury no.1 and 2 both were adjacent to each other. He has
stated that the injury found on the back was the injury of exit.
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
Most importantly, the Doctor has stated that the dead body was
wholly decomposed which could not have been identified easily
but it is not said that the dead body was decomposed in water. The
Doctor had not found any injury on the palm of the deceased.
From the postmortem report (Exhibit '1'), it is evident that there
were two injuries which were adjacent to each other. This does not
corroborate the claim of the informant (PW-6) that three rounds of
firing were made on the deceased while fleeing away, this Court
would, therefore, conclude that in this case, the prosecution has
failed to prove the place of occurrence and the manner of
occurrence. The informant (PW-6) and his brother Ramkaran (PW-
5) are highly inimical witnesses and their testimonies are self-
contradictory which do not inspire confidence of the Court. In
view of the statement of the informant in paragraph '6' of his
deposition, he had informed about the occurrence to the members
of his family namely Ramkaran, Bipin, Russo, Rahul and Ravi,
therefore, the claim of Ramkaran (PW-5) and Rahul (PW-8) that
they are eyewitnesses to the occurrence cannot be believed.
30. At this stage, we also find that the learned trial court
while recording the statement of the accused-appellant under
Section 313 CrPC put same and one question to all the accused.
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
We reproduce the Section 313 CrPC statement of Arun Rai as
under:-
"iz"u %& lkf{k;ksa dk lk{; vius lquk gS\
mŸkj %& th gkWA
iz"u %& lkf{k;ksa dk dFku gS fd fnukad 30 tuokjh 2016 dks
le; yxHkx 12%00 cts fnu esa ydM+ jk; dks vkius vU;
vfHk;qDrksa ds lkFk ,djk; gksdj ,oa 'kM;U= jpdj xkyh&xykSt
,oa ekjihV djrs gq, xzke&esdjkMhg] Fkkuk eksdkek] ftyk &
iVuk fLFkr xaxk unh ds e/;e esa uko }kjk ys tkdj xksyh ekj
dj gR;k dj fn;k ,oa lk{; feVk us ds fu;r ls yk"k dks xaxk
unh esa Qsad fn;kA
mŸkj %& th ughA
iz"u %& lQkbZ esa D;k dguk gS\
mŸkj %& funksZ'k gw¡A"
31. It is nowhere the prosecution's case that Arun Rai
and Indal Rai were present at the time when Lakad Rai was shot
dead and his dead body was thrown in river Ganges. The
allegation was that Arun Rai and Indal Rai had been also
pressurising the deceased to enter into a compromise in an earlier
case. Despite this, Arun Rai and Indal Rai both were asked the
same and one question which clearly shows that the accused-
appellants were not put to explain all the incriminating
circumstances brought by the prosecution against them.
32. In the light of the discussions made hereinabove, we
are of the considered opinion that the learned trial court has
completely erred in appreciation of the evidences on the record.
The prosecution has failed to establish it's case beyond all
Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025
reasonable doubts and the appellants have made out a case for
acquittal giving them benefit of doubt.
33. In result, all these appeals are allowed. The
impugned judgment and order of the learned trial court is set aside
and they are acquitted of the charges giving them benefit of doubt.
34. The appellants in Cr. Appeal (DB) No. 1042 of 2018,
Cr. Appeal (DB) No. 1065 of 2018 and Cr. Appeal (DB) No. 1159
of 2018 are on bail, they and their sureties are discharged from the
liability of bail their bonds. The appellants in Cr. Appeal (DB) No.
989 of 2018 and Cr. Appeal (DB) No.972 of 2018 are in jail, they
shall be released forthwith, if not wanted in any other case.
35. The trial court records together with a copy of the
judgment shall be sent down to the trial court.
(Rajeev Ranjan Prasad, J)
(Sourendra Pandey, J)
SUSHMA2/-
AFR/NAFR
CAV DATE
Uploading Date 08.04.2025
Transmission Date 08.04.2025
