Patna High Court
The State Of Bihar vs Hardeo Mandal And Ors on 8 May, 2025
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
GOVT. APPEAL (DB) No.3 of 1999
======================================================
The State of Bihar
... ... Appellant
Versus
1. Hardeo Mandal S/o- Lakhi Mandal Village- Makdumma Ps- Ammarpur
Dist- Banka
2. Mahesh Mandal S/o- Hardeo Mandal Village- Makdumma Ps- Ammarpur
Dist- Banka
3. Manoj Mandal S/o- Hardeo Mandal Village- Makdumma Ps- Ammarpur
Dist- Banka
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Dilip Kumar Singh, A.P.P.
For the Respondents : Mr. Ranjan Kumar Jha, Advocate
Mr. Subhash Kumar Jha, Advocate
Mr. Sudhir Mishra, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 08-05-2025
This appeal under Section 378(1) and (3) of the Code of
Criminal Procedure has been preferred by the State against the
judgment dated 22.12.1998 passed by the 2nd Additional Sessions
Judge, Banka, in Sessions Trial No.40/97, whereby the three
respondents herein have been acquitted of the charges levelled
against them.
FACTUAL MATRIX:
2. Amarpur P.S. Case No. 33 of 1996 came to be
registered on 13.02.1996 at 10.15 AM by the Sub-Inspector of
Police, Amarpur P.S., against three named accused persons,
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
2/28
respondents herein, under Section 302/34 of the IPC and Section
27 of the Arms Act, based on the fard-beyan of the informant,
Chandeshwari Yadav (PW 5). The informant, in his fard-beyan,
recorded in the premises of Sadar Hospital, Banka, has stated that
his son, namely, Shankar Yadav (deceased) is the owner of a 'Tata
Maxi' which is used to be plied by him on Amarpur to Banka
Road. One Hardeo Mandal (respondent No. 1 herein) too used to
ply a 'Tata Maxi' in the same route. It is further stated that on
12.02.1996
with regard to timing of plying of vehicles, Hardeo
Mandal of village Makduma raised a dispute and threatened his
son that he will get him lifted within 24 hours, which his son had
told at the home. It is further stated in the fard-beyan that while, on
13.02.1996, at around 07:00 AM, he along with his son (deceased)
was going to Makduma, in connection with some work Kanki
Yadav, Arun Yadav of his village and brother-in-law of his son,
namely, Tuntun Yadav, were also going, on the pitch road near
Pasi-Yadav Tola, Hardeo Mandal, armed with country-made pistol,
Mahesh Mandal, armed with pistol and Manoj Mandal armed with
licensed gun had been waiting there, surrounded his son and
Manoj Mandal opened one shot and said that whoever will come
in the way will be shot. Out of fear, he, other persons of his village
and the people grazing their cattle nearby stopped there. When his
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
son cried for help, then he saw that, with an intention to kill his
son Hardeo Mandal and Mahesh Mandal, both abusing his son,
fired point blank in the left side of his neck. The informant heard
sound of two gun shots. It is also stated in the fard-beyan that
Mahesh Mandal also abusively said that he will not die with two
bullets and made another fire, upon which his son fell down and
all the three fled away. When the informant and others reached
nears his son, his son told that Hardeo and Mahesh Mandal have
shot him. His son was soaked with blood. Three bullet marks were
there on the neck of his son with charring mark and as the shot his
his neck, the bullet exited from the middle of his head and more
blood was oozing out from there. The informant has stated that
Kanikmi Yadav, Arun Yadav, Anirudh Yadav, Soti Yadav and
Tuntun Yadav have seen the occurrence. Thereafter, the injured
was brought to Hospital at Banka in a vehicle, but the Doctor told
that the injured has died. The informant has stated that with pre-
planning and with an intention to kill his son, he was waylaid and
has been shot dead.
2.1. On completion of investigation, charge-sheet
was submitted against the respondents herein before the concerned
Magistrate Court and as the case was exclusively triable by the
Court of Sessions, the learned Magistrate committed the same to
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
the Sessions Court under Section 209 of the Code, where the same
was registered as Sessions Trial No. 40/97.
2.2. At the trial, the prosecution examined six
witnesses and also produced documentary evidence. 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 acquitted the accused of the
charges framed against them against which the State has preferred
the present appeal.
3. Heard Mr. Dilip Kumar Sinha, learned
Additional Public Prosecutor appearing on behalf of the appellant-
State and Mr. Ranjan Kumar Jha, learned counsel appearing on
behalf of the respondents-accused.
SUBMISSIONS ON BEHALF OF THE
APPELLANT-STATE :-
4. Learned APP appearing for the appellant-State would
mainly submit that informant is the eye-witness of the occurrence
in question and he is the father of the deceased. It is further
submitted that there are five eye-witnesses to the occurrence in
question and all the eye-witnesses supported the case of the
prosecution. Learned APP, therefore, urged that when the eye-
witnesses have supported the case of the prosecution, the trial
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
court ought to have convicted the respondents accused. Learned
APP has also referred the deposition given by the IO (PW 6) and
pointed out the manner in which the said IO has carried out the
investigation and collected the evidence against the respondents
accused. Learned APP urged that the impugned judgment be
quashed and set aside and thereby the respondents accused be
convicted for the alleged offence.
SUBMISSIONS ON BEHALF OF THE
RESPONDENTS-ACCUSED: -
5. On the other hand, learned Advocate Mr. Ranjan
Kumar Jha appearing for the respondents accused has vehemently
opposed the present appeal. It is submitted that there are major
contradictions and inconsistencies in the deposition of the
prosecution witnesses. It is further submitted that the prosecution
has failed to examine the Doctor, who has conducted the post
mortem examination of the dead body of the deceased, as a result
of which the defence has lost the opportunity of cross-examining
the Doctor and serious prejudice has been caused to the defence.
Learned counsel appearing for the respondents accused has
referred the post mortem report which has been produced before
the trial court. It is submitted that, as per the so-called eye-
witnesses, the accused fired three gun shots, as a result of which
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
the deceased sustained fire-arm injuries. However, from the post
mortem report, it is revealed that the deceased sustained total six
injuries and injury nos.4 to 6 were caused by hard and blunt
substance. Learned counsel, therefore, urged that the medical
evidence does not support the version given by the eye-witnesses.
Learned counsel further submits that, in fact, the aforesaid
witnesses are the chance witnesses. Learned counsel further
submits that the trial court has not committed any error while
passing the impugned judgment of acquittal. At this stage, learned
counsel has placed reliance upon the decision rendered by the
Hon'ble Supreme Court in the case of Chandrappa and Ors. Vs.
State of Karnataka, reported in (2007) 4 SCC 415 and contended
that even if two views are possible one view taken by the trial
court cannot be retracted. He, therefore, urged that the acquittal
appeal be dismissed.
DISCUSSION WITH REGARD TO THE
DEPOSITION OF THE PROSECUTION WITNESSES :-
6. At this stage, we would appreciate the relevant
evidence given by the witnesses. PW 1, namely, Kanki Yadav, has
mainly deposed in his examination-in-chief that the occurrence
took place nearly two years ago. At around 07:00 AM, he and Arun
Yadav were going to fetch labourers from Pasi Tola. Ahead of
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
them Chandeshwari Yadav, Shankar Yadav and Tuntun Yadav were
also going. When they reached near Pasi Tola, they saw Mahesh
Mandal, Hardeo Mandal and Manoj Mandal sitting by the side of
the road. Manoj was armed with licensed gun, and Hardeo Mandal
and Mahesh Mandal were armed with country-made pistols. When
Chandeshwari Yadav and Shankar Yadav (deceased) reached near
the road, Manoj, Hardeo and Mahesh surrounded them. Thereafter,
Manoj exhorted that if anyone comes near, he will be shot and
opened fire at Shankar Yadav, but the same missed the target and
hit the wall of Chariter Mandal. Thereafter, Hardeo Mandal and
Mahesh Mandal shot fire from point blank range on the left side of
neck and left jaw of Shankar Yadav, upon which Shankar Yadav
(deceased) fell down. Thereafter, Mahesh Mandal shot one fire in
the neck. On hulla being raised by Chandeshwari and Shankar,
people from village ran. Then the accused persons fled away.
When they reached near Shankar, he was alive and soaked with
blood. Shankar Yadav was brought to Banka Hospital by a vehicle,
where the doctor declared him dead. He has further deposed that
on the previous evening there was dispute on account of timing of
plying of vehicles between conductor of the bus of Chandeshwari
and Mahesh and Mahesh had threatened him to eliminate Shankar
within 24 hours.
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
6.1. In his cross-examination, PW 1 has deposed
that when the altercation between conductor of the bus of
Chandeshwari and Mahesh took place he was not there at the spot.
He has deposed that he cannot say how long he stayed at the place
where he saw Shankar being shot. He said that he did not see the
gun of Manoj Mandal prior to the incident. The people at the place
of incident were saying that the gun which the Manoj was holding
was licensed one. On hulla being raised by Chandeshwari after the
firing, many villagers gathered there. He has deposed in paragraph
7 of the cross-examination that he does not know in whose vehicle
Shankar was taken to Banka Hospital nor does he identify the
driver. He did not go to Banka in the said vehicle, rather he
reached on foot subsequently straightaway to Hospital and he did
not go to the police station. He said that Darogaji came to hospital
and statement of Chandeshwari was recorded first. Thereafter that
of Tuntun Yadav and then his statement was recorded. He admitted
that he had said to the police about the altercation took place in the
previous evening between the conductor of Chandeshwari and
Mahesh with regard to timing of the vehicles. In paragraph 9 of the
cross-examination, PW 1 has deposed that Manoj Mandal fired the
shot from very close range and he did not fire again. He deposed
that Manoj shot fire from a distance of 4-5 haath (approx. 6-7
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
feet), which did not hit Shankar, whereafter Shankar tried to
escape, but he was caught hold of by the accused. He was not
beaten by fists and slaps, not by the butt of the revolver or the gun.
He has not tried to save him out of fear and he also made hulla
along with Chandeshwari. He denied that he had not seen the
occurrence and that the accused had not caused such an occurrence
as described by him and that he is giving false evidence because he
is neighbour of the informant.
7. In his examination-in-chief PW 2, Anirudh
Prasad Yadav, has deposed that the occurrence took place around
two years ago at about 07:00 AM, when he was grazing his buffalo
near the Pasi Tola, he saw Hardeo Mandal, Mahesh Mandal, both
armed with country-made pistol, and Manoj Mandal, armed with a
gun, hiding in the bushes under a mango tree near the road. A little
later, when Chandeshwari Yadav along with son Shankar Yadav
were coming from south on the road, Hardeo, Mahesh and Manoj
surrounded Shankar, as Shankar tried to escape, Manoj pointed his
gun towards him and said if he tries to run away, he will be shot
dead and Manoj shot a fire, which missed Shankar and hit the wall
of Chartiter Pasi. Thereafter, Hardeo Mandal and Mahesh Mandal
fired point blank in the left side of neck of Shanker, as a result of
which Shankar Yadav fell down, then Mahesh Mandal said that he
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
will not die with two bullets and by catching hold of his hair
Mahesh Mandal fired one more bullet in the left side of his neck.
After firing, Chandeshwari, PW 2 and other raised hulla,
whereafter, the accused persons fled away towards north for their
home.
7.1. In his cross-examination, in paragraph 5, PW 2
has deposed that he was standing 40/50 feet west of the road and
grazing buffaloes, he saw Shankar and Chandeshwari were coming
from the south on the road, Shankar Yadav was 5/7 feet behind
Chandeshwari. He saw them from a distance of about 30/32 feet
that Shankar was surrounded by the accused person and tried to
run away when Manoj fired a bullet from his gun at Shankar.
When Shankar stood up and tried to run away, Mahesh and Hardev
shot Shankar in the neck. No one from Pasi Tola came to the place
until Shankar fell down. The third bullet was hit in his neck close
to jaw. He has also deposed that he reached near Shankar within
2/3 minutes after the third bullet was fired. 18-20 men from Pasi
Tola gathered at the place of the incident. A vehicle was coming
from Amarpur, Shankar was brought to Banka by that vehicle.
8. PW 3, namely, Soti Yadav, has deposed in his
examination-in-chief that the incident took place about 2 years
ago, at about 7:30-8:00 in the morning, when he was grazing
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
buffaloes in Pasi Tola. He saw Mahesh Mandal, Hardev Mandal
and Manoj Mandal hiding in a bush near a palm and a mango tree.
Thereafter, he saw Shankar Yadav and Chandeshwari Yadav
coming from the south. No sooner both of them reached near the
bush, the three accused came out of the bush and surrounded
Shankar and Chandeshwari. At that time, Manoj Mandal was
holding gun in his hand and Hardev Mandal and Mahesh Mandal
were holding country-made pistols in their hands. While abusing
Shankar Yadav, Manoj Mandal fired shot from his gun, which hit
the wall of Charitar Pasi. Hardev Mandal and Mahesh Mandal
fired shot from point blank range in the left side of neck, as a
result of which Shankar Mandal fell on the ground. Thereafter,
Mahesh catching hold of the hairs of Shankar told that babuji he
will not die of two bullets and fired one more shot near the same
spot. On hulla being raised by the Chandeshwari and other
witnesses, the people started gathering and the accused fled away
towards north. PW 3 also went to the spot where Shankar was
lying and saw the injuries. Shankar was alive at that time and
when Chandeshwari lifted Shankar in his lap, he said that Mahesh
and Hardeo have shot him. Shankar was taken to Banka Hospital.
PW 2 has deposed that he has given his statement to Daroga.
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
8.1. In his cross-examination, PW 3 has deposed
that he saw the entire incident from 25/30 feet west of the place of
incident, where he was grazing the buffalo. He heard four sounds
of gun shots. Accused did not fire at Chandeshwari. Manoj had
fired one shot. Firstly, Hardeo and Mahesh, both simultaneously
fired at the same spot with point blank range. After Shankar fell
down, one more shot was fired near the same spot and
Chandeshwari was watching the incident from a distance of 15/20
feet. In paragraph 5 of his cross-examination, PW 3 has deposed
that after the accused fled away, he reached at the place of
occurrence and saw the blood oozing out from the body of
Shankar and Shankar became unconscious after saying to
Chandeshwari that he has been shot by Hardeo and Mahesh. He
has further deposed that his statement was recorded by Daroga in
the evening on the same day at the door of Chandeshwari. He also
deposed that leaving his buffalo, he went running to village
Ratapur raising hulla about the incident, from where many persons
rushed to the place of occurrence, including Kanika Lal, Tuntun
and Arun Yadav.
9. PW 4, namely, Tuntun Yadav, has deposed in
his examination-in-chief that he is brother-in-law of Shankar
Yadav and he is living at Ratanpur village for 4-5 years and used
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
to work as a conductor of the vehicle. The incident took place on
13.02.1996 at about 06:00-07:00 AM, when he was coming from
Ratanpur to Makduma. Ahead of him Shankar Yadav and his father
Chandeshwari Yadav were coming. When PW 4 reached near Pasi
Tola Makma, he saw Mahesh Mandal, Hardev Mandal having
pistols in their hand and Manoj Mandal having gun in his hand
coming out of the bushes from the east side of the road. They
surrounded Shankar Yadav and started abusing him. When
Shankar Yadav tried to run away, Mahesh Mandal started fighting
with him and shot a fire, which missed Shankar and hit the wall of
Ramcharitar Pasi. Manoj said that if anyone moves forward, he
will be shot. Thereafter, Hardev Mandal and Mahesh Mandal shot
Shankar Yadav near the neck and jaw, as a result of which he fell
on the ground whereafter, Mahesh Mandal said that he will not die
of two bullets and fired one more shot near the left side of the
neck. All the accused fled away towards north on hulla being
raised. When he came near Shankar, he saw him writhing and said
that he has been shot by Mahesh Mandal and Hardev Mandal.
Shankar Yadav was taken to Banka Hospital in a Tata Maxi 407,
but he died on the way and the doctor declared him dead. He has
further deposed that a day before this incident, i.e., on 12.021996,
in his presence, a quarrel had taken place between Hardev Mandal
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
and Shankar Yadav near Banka Gandhi Chowk bus stand regarding
the timing of the vehicle and Hardev Mandal had threatened
Shankar that he would be lifted within 24 hours.
9.1. In his cross-examination, PW 4 has deposed
that at the bus stand, drivers and conductors of other buses and
tempos were also present when the altercation took place. Hardev
did not threaten him. Shankar did not report the incident to the
police. After the incident of altercation, the vehicle went to
Amarpur and then returned to Ratanpur. Neither Amarpur police
station was informed about the said threat nor any FIR was lodged
with Ratanpur Police Station nor he discussed about the incident
with anyone in the village. He has further deposed that his
statement was taken in the evening of 13.02.1996 by Daroga at
Ratanpur. The dead body was brought to the village after post-
mortem and cremation took place on 14.02.1996 at Barari Ghat
(Bhagalpur), in which he also participated. The statements of
Chandeshwari Yadav, Kanak Lal alias Kanki Yadav, Soti Yadav,
Anarudh Yadav and Arun Yadav were also recorded in the evening
along with him and he met Daroga at Pasi Tola at 04:30 PM on
13.02.1996. In paragraph 7 of his cross-examination, PW 4 has
deposed that when Mahesh shot Shankar for the third time, they
raised hulla. On hearing their hulla, Kanki Yadav, Anirudh Yadav,
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
Arun Yadav and Soti Yadav and others came. He has deposed that
no one asked Shankar as to who shot him, but when they reached
near him, he himself told them. When Shankar described the
incident, there were many people other than the above mentioned
six persons, but he does not remember the name of any of them. In
paragraph 8 of his cross-examination, PW 4 has deposed that
Shankar Yadav had sustained one bullet injury on the left side
between the jaw and throat, and two bullet injuries on the left side
of the throat and the third bullet hit the left side of the throat. He
denied that Shankar Yadav himself had collected the crowd and
fired bullets at Pasi Tola and people of Pasi Tola also fired in
retaliation and around 150 rounds of bullets were fired from both
the sides.
10. PW 5, Chandeswari Yadav, who is the
informant of the case and the father of the deceased, has mainly
deposed in his examination-in-chief that the occurrence took place
around 2-2 ½ years ago at around 07:00-08:00 AM, when he and
his son Shankar were coming to agricultural field from their house
reached on the pucca road near Pasi Tola, Hardeo Mandal, Mahesh
Mandal and Manoj Mandal came from east and surrounded his son
Shankar Yadav (deceased), at that time Shankar Yadav was 50
steps ahead of him. Before surrounding Shankar, Manoj Mandal
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
had fired a shot, which missed Shankar and hit the wall of Chaliter
Mandal. Hardeo and Mahesh were holding pistols in their hands
and they shot Shankar from point blank range in the middle of left
jaw and neck, as a result of which Shankar fell on the ground. He
was alive till then, upon which Hardeo said that he is still alive.
Then Mahesh Mandal caught hold of the hairs of Shankar and shot
one more fire under the left neck of Shankar. Thereafter, all the
accused persons fled away towards north. After the accused
persons fled away from the place of occurrence, PW 5 reached
near Shankar and Shankar was alive at that time and told him that
Hardeo and Mahesh had shot him. His son was lying 12-13 haath
(approx. 18-20 feet) west from the pucca road. After he reached
there, Kanik Lal Yadav, Soti Yadav, Anirudh Yadav, Tuntun Yadav,
Arun Yadav and other persons came there. Shankar was brought to
the Banka hospital and after seeing him, the doctor declared him
dead. At the hospital, his statement was recorded by the Daroga of
Banka Police Station, which was signed by him after the same was
read over to him. He has deposed that on the evening previous to
the date of occurrence, an altercation took place between his son
Shankar and Hardeo Mandal and at that time Hardeo Mandal had
threatened his son that he will be eliminated within 24 hours. His
son had narrated about the said incident to him.
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
10.1. In his cross-examination, PW 5 has deposed
that while he was returning after visiting his crops in the filed near
Pasi Tola along with his son Shankar, the occurrence took place.
Shankar was moving around 25-30 haanth ahead of him. No
attempt was made by the accused to either surround or assault PW
5. He also did not try to flee away. Manoj fired at Shankar from a
distance of 10-15 haath from east and did not fire any shot again.
Kanik Lal Yadav, Soti Yadav, Anirudh Yadav, Tuntun Yadav and
other persons had arrived at the place of occurrence so also the
wife of PW 5 and the wife of the deceased. He reached first near
Shankar and immediately after him Kanik Lal reached there.
Thereafter Soti Lal reached there. Shankar had stopped speaking
before Soti reached there.
11. PW 6, Ghasiya Uraon, is the Investigating
Officer of the case. He has deposed in his examination-in-chief
that on 13.02.1996, he was posted as Junior Police Officer in
Amarpur Police Station. He had obtained the fard-beyan of the
present case from Banka Police Station. He has deposed that on
receipt of fard-beyan and the inquest report, he prepared formal
FIR and himself took over investigation of the case. In course of
investigation, he recorded re-statement of the informant and
inspected the place of occurrence. He found blood spread at the
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
place of occurrence, but did not seize the same as the same was not
in proper state. He also found mark of bullet on the northern wall
of Ramcharitra Mandal, but did not find anything worth seizing
and did not prepare the seizure list nor did he find any material of
any worth at the place of occurrence.
11.1. He has deposed in his cross-examination that
he received the information about the occurrence of killing of
Shankar Yadav at 11:50 AM at Katoriya More on 13.02.1996. He
could not ascertain the name of the assailants at that time. He has
deposed that he reached at the place of occurrence at 12:45 PM on
the same day and upon enquiry from many villagers came to know
that Chandeshwari Yadav and his opponent have been shot. He
also learnt that Shankar Mandal has been taken to Banka Hospital
by the villagers of Ratanpur for treatment. At that time, it was not
known who had shot Chandeshwari Yadav nor did anyone tell the
names of the opponents. He did not find any blood mark or blood
at the place of occurrence where bullets were said to have been
fired. He stayed there till 1:00 pm and then went to Banka
Hospital, where he came to know that the FIR and the inquest
report has been prepared by S.P. Singh, Sub Inspector of Banka
Police Station. He received the said FIR and the inquest report
from Banka Police Station at 02:00 PM and made entry in the case
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
diary. He has deposed that he recorded the statement of six
witnesses in the premises of Banka hospital 02:30 PM, left for the
place of occurrence again and reached there at 02:50 PM, but
nobody indicated the place of occurrence, however, he saw blood
spilled 10 feet west of the road, which place was shown to him
earlier by the villagers as to where Chandeshwari Yadav was shot
by his opponents and where he had not seen any blood stain or
mark earlier. The blood was so much trampled by the movement of
people that it was not worth analysis for which reason it was not
seized. It is not written how much of the bullet mark was found on
the wall. He has deposed that when he visited first time at 12:45
PM, he did not find any bullet mark on the wall. Chandeshwari
Yadav does not have any land within the boundary of the alleged
place of occurrence. In paragraph 11 he has deposed that in course
of investigation, he had also recorded the statements of
Ramcharitra Mandal and Shambhu Mandal. The statements of both
the witnesses are mentioned in paras 34 and 35 respectively. He
has deposed that he did not receive the pellet or bullet described in
the post mortem report nor did he enquire about it when they did
not reach the police station. He has deposed in paragraph 14 that
witness Kanki Yadav has not given statement before him that in
the evening previous to the date of occurrence any altercation took
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
place between the conductor of Chandeshwari and Mahesh with
regard to plying timing of the vehicle.
12. The Doctor, who conducted the post mortem
examination of the dead body of the deceased, has not been
examined by the prosecution. However, the post mortem report has
been brought on record by way of Exhibit-5.
OBSERVATIONS AND REASONING: -
13. From the evidence led by the prosecution, it
transpires that the prosecution has projected PW 1 to PW 5 as eye-
witnesses. PW 1, Kanki Yadav has deposed that when
Chandeshwari Yadav (informant) and Shankar Yadav (deceased)
shouted, the village people came at the place of occurrence. The
said witness has further admitted that he along with Chandeshwari
has raised hulla after the deceased sustained fire-arm injury.
However, PW 2, Anirudh Prasad Yadav, who has deposed before
the court that he was grazing his cattle. At that time, he had seen
the occurrence in question. After the firing took place, he along
with Chandeshwari raised hulla. The said witness, in paragraph 5
of the cross-examination, he has deposed that he saw Shankar and
Chandeshwari coming from the south on the road. Shankar Yadav
was 5/7 feet behind Chandeshwari. He saw them from a distance
of about 30/32 feet. Shankar was surrounded by the accused
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
persons and when he tried to run away, Manoj fired a bullet from
his gun at Shankar, Shankar stood up and tried to run away when
Mahesh and Hardev shot Shankar in the neck. No one from Pasi
Tola came to the place until Shankar fell down. The third bullet
was hit in his neck close to jaw. He has also deposed that he
reached near Shankar within 2/3 minutes after the third bullet was
fired.
13.1. So far as PW 3, Soti Yadav, is concerned, the
said witness has deposed during cross-examination that he saw the
entire incident while he was grazing his cattle near the place of
occurrence. He has admitted that after the accused fled away from
the place of occurrence, he reached near Chandeshwari and
Shankar and thereafter he went running to Ratanpur village raising
hulla about the incident, from where many persons rushed to the
place of occurrence including Kanika Lal (PW 1), Arun Yadav (not
examined) and Tuntun Yadav (PW 4). Thus, from the deposition of
this witness, it is revealed that Kanki Yadav (PW 1), Arun Yadav
and Tuntun Yadav (PW 4) reached at the place of occurrence
subsequently.
13.2. PW 4, Tuntun Yadav, is the brother-in-law of
the deceased Shankar Yadav. He had stated in his deposition that
Shankar Yadav and his father were going to Makduma from
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
Ratanpur and reached near Pasi Tola Makma. He saw Mahesh
Mandal, Hardev Mandal having pistols in their hand and Manoj
Mandal having gun in his hand coming out of the bushes from the
east of the road. They surrounded Shankar Yadav and started
abusing him. When Shankar Yadav tried to run away, Mahesh
Mandal started fighting with him and shot a fire, which missed
Shankar and hit the wall of Ramcharitar Pasi. Manoj said that if
anyone moves forward, he will be shot. Thereafter, Hardev Mandal
and Mahesh Mandal shot Shankar Yadav near the neck and jaw, as
a result of which he fell on the ground. Whereafter, Mahesh
Mandal said that he will not die of two bullets and shot him again
near the left side of the neck. All the accused fled away towards
north on hulla being raised. When he came near Shankar he saw
him writhing and said that he has been shot by Mahesh Mandal
and Hardev Mandal. Shankar Yadav was taken to Banka Hospital
in a Tata Maxi 407, but he died on the way and the doctor declared
him dead. The said witness has admitted during cross-examination
that when Chandeshwari Yadav and he raised hulla Kanki Yadav
(PW 1), Soti Yadav (PW 3), Anirudh Yadav (PW 2) and Arun
Yadav (not examined) and other persons came at the place of
occurrence. Thus, from the deposition of the said witness, it
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
appears that Kanki Yadav (PW 1), Soti Yadav (PW 3) and Anirudh
Yadav (PW 2) came at the place of occurrence subsequently.
13.3. Thus, from the aforesaid evidence led by the
prosecution, it transpires that there are major contradictions and
inconsistencies in the version of the prosecution with regard to the
presence of the so-called eye-witnesses at the scene of the
occurrence. We are of the view that the aforesaid witnesses can be
termed as chance witnesses.
13.4. At this stage, it is also relevant to observe that
the prosecution has failed to examine the Doctor, who had
conducted the post mortem of the dead body of the deceased. It is
the specific contention taken by the learned counsel for the
respondents-accused that because of non-examination of the
Doctor, the defence has lost the opportunity to cross-examine him,
as a result of which, serious prejudice has been caused to the
defence. It is also pertinent to observe at this stage that post
mortem report of the dead body of the deceased is exhibited. We
have gone through the said post mortem report. In the post mortem
report, in column No. 33, it has been observed as under: -
"G:- Detailed description of injuries,
burns ligature marks at neck, if any. Mention Ante or
Post Mortem and nature of probable weapons used: -
"The following ante mortem injuries were
present on the body of the deceased:-
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
1. Lacerated oval wound 1/4" x 1/3" x
cavity deep on middle and left portion of neck with
inverted and ...(illegible) margin.
2. Blackened skin (Superficial Burn) 6" x
1/4" from lower and left portion of neck to the left
angle of mandible.
3. Lacerated wound 1/4" x 1/3" cavity
deep with inverted margin below left armpit.
4. Lacerated wound 1/4" x 1/4" muscle
deep on posterolateral portion of left side of neck.
5. Lacerated wound 1/4" x 1/4" bone deep
on anterior portion of vault of skull.
6. Lacerated wound 1/4" x 1/4" x bone
deep on vault of skull.
On dissection:-
(1) Rupture of major vessels of neck
beneath injury no.1
(2) Thoracic cavity full of blood.
(3) Lacerated injury to the upper & middle
portion of the left lung extensively.
Two metallic pieces were removed; one
from the pool of blood in the thoracic cavity and other
from thoracic wall underneath right scapular being
sent with the P.M. Report.
Cause of death- In my opinion, death had
been caused by shock and hemorrhage due to injury
no. 1& 3.
Weapon- Injury Nos. 1 to 3 by fire arm;
injury no. 4 to 6 by hard and blunt substance.
Time elapsed since death- within 24
hours."
13.5. From the aforesaid post mortem report, it
transpires that six injuries were found on the dead body of the
deceased. It further transpires that the Doctor, who had signed the
said post mortem report, has specifically observed that injuries No.
1 to 3 have been caused by fire-arm and injuries No. 4 to 6 have
been caused by hard and blunt substance. Thus, it is clear from the
said post mortem report that injuries No.4 to 6 have been caused
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
by hard and blunt substance. At this stage, it is required to be
recalled that all the five so-called eye-witnesses have deposed
before the court that the accused have fired three rounds and three
bullet injuries were sustained by the deceased. There is no
reference with regard to the blow given by any of the accused by
any other weapon/hard and blunt substance. We are, therefoere, of
the view that the medical evidence does not support the case of the
so-called eye-witnesses.
13.6. At this stage, we would like to refer the
decision rendered by the Hon'ble Supreme Court in the case of
Chandrappa and Ors. Vs. State of Karnataka, reported in
(2007) 4 SCC 415. The Hon'ble Supreme Court has laid down the
principle regarding the powers of the Appellate Court while
dealing with an appeal against an order of acquittal. In Para-42 of
the said decision, the Hon'ble Supreme Court has observed as
under:-
"42. From the above decisions, in our
considered view, the following general principles
regarding powers of the appellate court while dealing
with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to
review, reappreciate and reconsider the
evidence upon which the order of acquittal is
founded.
(2) The Code of Criminal Procedure, 1973
puts no limitation, restriction or condition on
exercise of such power and an appellate court
on the evidence before it may reach its own
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
conclusion, both on questions of fact and of
law.
(3) Various expressions, such as,
"substantial and compelling reasons", "good
and sufficient grounds", "very strong
circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to
curtail extensive powers of an appellate court
in an appeal against acquittal. Such
phraseologies are more in the nature of
"flourishes of language" to emphasise the
reluctance of an appellate court to interfere
with acquittal than to curtail the power of the
court to review the evidence and to come to its
own conclusion.
(4) An appellate court, however, must bear
in mind that in case of acquittal, there is
double presumption in favour of the
accused. Firstly, the presumption of innocence
is available to him under the fundamental
principle of criminal jurisprudence that every
person shall be presumed to be innocent unless
he is proved guilty by a competent court of
law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened
by the trial court.
(5) If two reasonable conclusions are
possible on the basis of the evidence on record,
the appellate court should not disturb the
finding of acquittal recorded by the trial
court."
13.7. In the case of Nikhil Chandra Mondal Vs.
State of West Bengal, reported in (2023) 6 SCC 605, the Hon'ble
Supreme Court has observed, in Para-22, as under:-
"22. Recently, a three-Judge Bench of this
Court in Rajesh Prasad v. State of Bihar [Rajesh
Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2
SCC (Cri) 31] has considered various earlier
judgments on the scope of interference in a case of
acquittal. It held that there is double presumption in
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
favour of the accused. Firstly, the presumption of
innocence that is available to him under the
fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless
he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced,
reaffirmed and strengthened by the court. It has been
further held that if two reasonable conclusions are
possible on the basis of the evidence on record, the
appellate court should not disturb the finding of
acquittal recorded by the trial court."
13.8. Thus, from the aforesaid decisions rendered by
the Hon'ble Supreme Court, it can be said that Appellate Court
must bear in mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the presumption of
innocence is available to him under the fundamental principle of
criminal jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent Court of law.
Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced, reaffirmed and
strengthened by the Trial Court. Further, if two reasonable
conclusions are possible on the basis of the evidence on record, the
Appellate Court should not disturb the finding recorded by the
Trial Court.
CONCLUSION: -
14. Keeping in view the aforesaid decisions
rendered by the Hon'ble Supreme Court, we have carefully
Patna High Court G. APP. (DB) No.3 of 1999 dt.08-05-2025
examined the evidence led by the prosecution as well as the
impugned judgment of acquittal rendered by the trial court, we are
of the view that the prosecution has failed to prove the case against
the accused beyond reasonable doubt and the trial court has not
committed any error while passing the impugned judgment of
acquittal.
15. In view of the aforesaid discussion, we are of
the view that no interference is required in the impugned judgment
rendered by the trial court
16. Accordingly, this appeal is dismissed.
(Vipul M. Pancholi, J)
(Sunil Dutta Mishra, J)
Pawan/-
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 15.05.2025.
Transmission Date 15.05.2025.
