Ramchandra Yadav vs The State Of Bihar
2025 Latest Caselaw 80 Patna

Patna High Court

Ramchandra Yadav vs The State Of Bihar on 6 May, 2025

Author: Ashok Kumar Pandey

Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                    CRIMINAL APPEAL (DB) No.352 of 2020
       Arising Out of PS. Case No.-29 Year-2017 Thana- DANDARI District- Begusarai
======================================================
Ramchandra Yadav, Son of Late Ganeshi Yadav, Resident of Village - Ward
No.3, Sisauni, Sisoni Kothi, P.S.- Dandari, Distt.- Begusarai.

                                                                      ... ... Appellant
                                        Versus


The State of Bihar                         ... ... Respondent
======================================================
Appearance :
For the Appellant         :        Mr. Pritish Kumar Lal, Advocate
For the State             :        Mr. Ajay Mishra, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
                           and
        HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
                     ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY)

Date : 06-05-2025

This appeal has been preferred against the judgment

dated 04.02.2020 and order of sentence dated 11.02.2020

respectively (hereinafter to be referred as impugned judgment and

impugned order respectively) passed by the Additional Sessions

Judge-Xth, Begusarai (hereinafter to be referred as the learned trial

court) in Sessions Trial No. 605 of 2017 wherein and whereunder

the learned trial court has found the appellant guilty for the

offences punishable under Section 302 read with Section 34 of the

Indian Penal Code (in short 'IPC') and Section 27 (1) of the Arms

Act.

Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

Prosecution Case

2. The case of the prosecution based on self-statement of

informant Bibhash Chandra Paswan @ Pasupati Paswan (P.W.-5)

is that on 21.05.2017 at about 11:30 A.M., he and his brother Hem

Chandra Paswan was going to plough their field by tractor. As they

reached near the well of Dilip Chaudhary, then Mithun Kumar

Sharma, Bilas Sharma, Ram Chandra Yadav, Chotu Kumar and

three others stopped them and told them to plough their field to

which Ram Chandra Paswan replied that he will plough the fields

of that person from who he has taken cash. On this Ram Chandra

Yadav raised a slogan to fire at him. On this, Mithun Kumar

Sharma was having pistol in his waist, took out his pistol and fired

which found it's target on the chest of his brother and Ram

Chandra Yadav in his turn took down the pistol which also hit the

chest of Hemchandra and in the same manner Chotu Kumar also

fired which hit the thigh of his brother and his brother fell down on

the ground and started riggling. His body was in pool of blood.

3. The informant raised alarm, co-villagers namely,

Sanjeet Mahto, Heera Devi, Raja Paswan, Vikash Paswan and

Vikash Chandra Paswan and many other people came on the place.

Accused persons fled away waving their pistols in the air. The

reason for the occurrence is the previoud litigation with Ram Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

Chandra Yadav and the altercation with him used to occur and all

the accused persons and the chawkidar Dasrath Paswan had

conspired the murder of co-villager and murdered him.

4. On the basis of the above statement of informant

(P.W.-5) the formal FIR was drawn up in the shape of Dandari P.S.

Case No.29 of 2017.

5. After the completion of the investigation, the charge-

sheet was submitted against Ram Chandra Yadav leaving

investigation pending against the remaining accused persons. As

such, this case is only against the appellant . The learned

Jurisdictional Magistrate took cognizance of the offence and

committed the matter to the court of Session on 08.12.2017.

6. The charges were read over and explained to the

accused in hindi to which he pleaded not guilty and claimed to be

tried. After that the charges were framed against him under Section

302/34 IPC and Section 27 of the Arms Act.

7. After the evidence of prosecution the

appellant/accused was examined under Section 313 of the Cr.P.C.

on 02.11.2018. He refuted the evidence of the prosecution and

claimed to be innocent.

Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

8. During course of trial, prosecution examined

altogether 10 witnesses and adduced 8 documentary evidences

which is given hereunder in tabular form for a ready reference:-

List of Prosecution Witness

P.W.-1 Arjun Paswan P.W.-2 Pinku Singh P.W.-3 Lakhan Sahni P.W.-4 Dr. Arun Kumar (the Doctor who conducted the Post-mortem) P.W.-5 Vibhash Chandra Paswan @ Pashupati Paswan (informant) P.W.-6 Vikash Paswan P.W.-7 Raja Kumar P.W.-8 Sintu Paswan P.W.-9 Sulendra Paswan P.W.-10 Lalan Ram (I.O.)

List of Documentary Evidence

Ext.1 Post-Mortem Report Ext.2 Signature of Informant on fardbeyan Ext.-3 Signature of Informant on Inquest report Ext.3/1 Signature of Raja Kumar on Inquest report Ext.4 Signature of Sintu Paswan on seziure list Ext.5 Handwriting and Signature of Lalan Ram on Seizure list Ext.6 Handwriting and Signature of I.O. on Inquest report Ext.7 Signature and handwriting on fardbeyan Ext.7/1 Handwriting and Signature of I.O. on formal FIR Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

Ext.7/2 Handwriting and Signature of SHO on the fardbeyan Ext.8 Handwriting and Signature of SHO on Formal FIR

9. As against this the defence has examined only one

witness, namely, Rambabu Singh (D.W.-1), who is a formal

witness. The defence has also adduced following documentary

evidences.

Ext. A & B Certified copy of the FIR and Charge-

sheet Ext.C Certified copy of the deposition of Ram Chandra Yadav (appellant)

Finding of the learned Trial court

10. The learned trial court has held that in this case the

prosecution has been able to prove its case beyond all reasonable

doubt and as far as the place of occurrence is concerned, the trial

court has been pleased to record that in charge-sheet the place of

occurrence is Sisauni while the basis of the FIR reveals the place

of occurrenc nearby the well of Dilip Chaudhary in Pirnagar. It

appears after having a look at the Paragraph '1' of deposition of

the I.O. (P.W.-10) who has given the full account of place of

occurrence and the boundary of the place of occurrence as well.

The referred witness during the course of investigation has found

and deposed that the place of occurrence is situated in Sisauni tola Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

Pirnagar at the husk stag of Jago Chaudhary and house of Dilip

Chaudhary are in the tune of place of occurrence in question. It

goes to show that this Pirnagar is situated in Sisauni Tola and the

husk stag of Jago Chaudhary and the well of Dilip Chaudhary as

admitted by the other witnesses are located close to the place of

occurrence. Relying on this piece of evidence the learned trial

court has found that prosecution have been able to prove its case

beyond all reasonable doubt under Section 302 read with Section

34 of the IPC and under Section 27(1) of the Arms Act and has

held the accused/appellant guilty.

Submissions on behalf of the Appellant

11. Mr. Pritish Kumar Lal, learned counsel for the

appellant has submitted that in this case Arjun Paswan (P.W.-1),

Raja Kumar (P.W.-7) and Sulendra Paswan (P.W.-9) have claimed

themselves as the eye-witnesses of the occurrence but it has come

in the evidence of Lala Ram (P.W.-10), the Investigating Officer

that in their statement under Section 161 of the Cr.P.C. they have

stated not to be the eye-witness and that they also stated that they

are heresay witness. It has also been submitted that in this case,

place of occurrence has not been established and the witnesses

have given different account of place of occurrence. PW-2 and

PW-3 who are independent witness have not named the appellant Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

to have participated in the occurrence. It has also been submitted

that there is absolutely no eye-witness to the occurrence. It has

also been submitted tha the impugned judgment and order under

appeal are bad in law against the materials on the record. There is

no evidence against the appellant. There is conflict and

contradiction between evidence of prosecution witnesses which

has not been appreciated by the learned trial court. The learned

counsel for the appellant has also submitted that in this case the

appellant has adduced documentary evidence which goes to show

that the appellant and deceased were on litigating terms and even

the appellant had earlier deposed against the deceased. This may

be the reason for false implicaiton.

Submission on behalf of the State

12. Mr. Ajay Mishra, learned Additional Public

Prosecutor for the State has submitted that the learned trial court

has propely appreciated the evidence and has rightly convicted the

accused but when he was asked regarding the different versions of

witnesses regarding the place of occurrence, he also admitted that

in this case place of occurrence has not been proved by the

prosecution.

Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

Consideration

13. We have heard the submissions at the Bar and

perused the case record. P.W.-1 is Arjun Paswan who has stated in

his examination-in-chief that the deceased Hemchandra Paswan is

his co-villager. He was murdered on 21.05.2017 at about 11-12

A.M. At that time he was at his house. He heard the noise. He saw

that Ram Chandra Yadav, Mithun Kumar Sharma, Chotu Kumar

and other unidentified persons were there. Ram Chandra Yadav

fired at the chest, Mithun also fired at the chest and Chotu Kumar

fired at thigh of the deceased due to which he died. After that the

accused persons fled away with the bike. The dead body of the

deceased was brought to Sadar Hospital, Begusarai where his post-

mortem was conducted. In his cross-examination, this witness has

stated the he does not know the description of the land on which

the ploughing is to be done. He has further stated that between

Ram Chandra Yadav and Hemchandra Paswan, there is an old land

dispute. Regarding place of occurrence this witness has stated that

in the East of the place of occurrence there is field, in South there

is cow shed and in West there is house of Dilip Chaudhary and in

North there is a well.

14. He has further stated that the place of occurrence is

about 150-200 yards from his house. This witness has further Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

stated that after hearing noise, 50 persons of the village proceeded

towards the place of occurrence. They were Vikash Kumar,

Brajesh Paswan, Surendra Paswan and others. Nobody from the

family of Hemchandra Paswan had proceeded to the place of

occurrence with this witness. When he went there he found the

deceased in injured position. He was trembling. He heard that the

deceased was taken to hospital. He died on way. This witness has

stated that there was pool of blood at the place of occurrence. He

has also stated that he has said in his statement before police that

he is an eye-witness.

15. P.W.-2 is Pinku Singh who has stated that the

occurrence is of 10-11 A.M. He was at his field. He saw that the

quarrel was taking place between Hemchandra and Mithun.

Mithun fired at Hemchandra. Hemchandra died. This witness has

also stated that Chotu was also with Mithun. In his cross-

examination this witness has stated that the quarrel was taking

place in "Paasikhana" which belongs to Dilip Chaudhary.

16. P.W.-3 is Lakhan Sahni who has stated that the

occurrence is of 10-11 A.M. He was at his home. He heard that

Hemchandra has been killed and he has been killed by Mithun and

two others. In cross-examination this witness has stated that he Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

knows Chawkidar Dasrath Paswan. Mithun was having affair with

sister of Chawkidar Dasrath Paswan.

17. P.W.-4 is Dr. Arun Kumar who has conducted the

postmortem of the deceased. He has found following injuries on

the person of the deceased :

"(i) Firearm projectile wound of Entry:- 0.5" in diameter going inside with margin lacerated and inverted over the lateral side of right four arm, soiled with blood and blood clot with blackening and charring marks on the entry wound.

(ii) Firearm projectile wound of Exit:- 0.5"x3/4 at going margins everted and lacerated soiled with blood and blood clots on the medical aspects of right lower four arms communicating with injuriy number (i)

(iii) Firearm projectile wound of Entry:- 0.5" in diameter going inside with margins lacerated and inverted. On posterio lateral aspects of back 4" above right iliac crest, soiled with blood and blood clot with blackening charring of margins of the entry wound.

(iv) Firearm projectile wound of Exit:- 0.5"x3/4" at going margins everted and lacerated soiled with blood and blood clot, 0.5" below left midclavicle.

(v) Firearm projectile wound of Entry:- 0.5" in diameter going inside with margins lacerated and inverted. In 7th intercostals space in right mid axilliary lying and soiled with blood and blood clots.

(vi) Firearm projectile wound of Entry:- 0.5" in diameter going inside with margins lacerated and inverted. On lateral size of right thigh 6" below the greater tochanter soiled with blood and blood clots with blackening of margins of entry wound.

Investigation X-ray Skull AP view suggested.

X-ray abdomen including pelvish AP view.

X-ray chest AP view and X-ray right thigh.

X-ray done at Sadar Hospital, Begusarai on the same day and shows one bullet in right thoracic cavity.

One bullet in right groin.

On Dissection :- Brain matter pale.

Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

Neck- NAD Chest- Ribs and chest wall. Fracture of right side of lower ribs and fracture of left second and third ribs. One bullet lodged and recovered in nineth intercostal space. Lural cavity right sided blood and blood clot. Left side blood and blood clot.

Lungs- Both lungs lacerated.

Heart- All chamber empty.

Abdomen- Peritoneal and peritoneal cavity full of blood and blood clot, gut lacerated.

Stomach- Empty Small intestine including appendix lacerated, large intestine and masentric vessels lacertated. Liver, Spleen and Kidneys all are pale.

Bladder- Empty.

OPINION :-

Time elapse since death within four hours of examination.

Cause of death- In my opinion death was due to Haemorrhagic and Nuerogenic shock as a result of above mentioned injuries caused by firearm. PM report in original- 4 Pages (Four page) inquest papers dead body, Five X-ray plate and One Bullet recovered from body sealed and signed glass vial and handed over to police personnel Sipahi 93 Dharmendra Kumar PS Nagar (Yown0 begusarai :- The Second bullet visible on x-ray in right groin was deeply impacted in bone so it could not be recovered."

18. P.W.-5 is the informant. According to the prosecution

case, he is eye-witness of the occurrence. This witness has stated

that the occurrence is of 25.1.2017 at 11:30A.M. He was going

with his brother Hemchandra and nephew Raja Kumar on tractor

to plough the fields of Sarpanch Shivjee Paswan. When they

reached near Pirnagar near the well of Dilip Chaudhary, Ram

Chandra Yadav, Mithun Sharma, Chotu Kumar restrained their Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

tractor and Ram Chandra Yadav told them to plough his field and

his brother Hemchandra Paswan told them that he will plough the

field of the person from whom he has taken cash. On this, Ram

Chandra Yadav ordered to kill. Mithun Sharma took out his pistol

from his waist and fired at Hemchandra Paswan. The appellant

also fired at the chest of Hemchandra Paswan. Chotu Kumar fired

which hit the right thigh of Hemchandra. Hemchandra fell down

and his body was in pool of blood. This witness raised alarm,

people arrived there, the accused persons fled away. Thereafter, he

took his injured brother to Sadar Hospital Begusrai and his brother

died in the way. Police approached where he gave his statement

which was read over to him by Darogaji. Finding the statement

true, he signed the same which has been marked Ext.-2. Inquest

report was made before him which was signed by him. On the

identification of this witness, the same has been marked as Ext.-3.

This witness claims to identify all the accused persons including

the appellant.

19. In cross-examination this witness has admitted that

the tractor was of Hemchandra which he bought about one year

ago and it was new one. He admitted that Hemchandra and he was

living jointly but he was having no share in the tractor. It was used

for ploughing by Hemchandra. He has further admitted that Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

Hemchandra was not having any driving license and he was

having no any document to show that Hemchandra was a tractor

driver. This witness has also admitted that Ram Chandra Yadav

field is situated at Kusaha Bahiyar. No crop was standing in the

field at the time of occurrence but he admitted that between

Hemchandra and Ram Chandra (appellant) there was altercation

about six months ago from the date of the occurrence. He further

revealed that such altercation was lastly on quarrel between

children and it has been solved. It has also been stated by this

witness that the defence side has also threatened him of dire

consequence. This witness has further stated that he often went

with Hemchandra in order to learn the driving. There was no

particular time to go to plough the field. This witness has disclosed

the place of occurrence and has stated that he was sitting with

Hemchandra on the tractor. Raja and Dilip Chaudhary caused him

to get down from the tractor and he also came down from the

tractor and the accused persons including the appellant all were at

a distance of about five feet towards south. Altogether six persons

had surrounded Hemchandra from the South side. Regarding place

of occurrence this witness has stated that in North there is a well

and cowshed, in South there is husk stag of Jago Chaudhary, in

East land of Amanul and Ataul, in West there is house of Dilip Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

Chaudhary. This witness has further stated that six persons were

armed with pistol and he stated that there were 50 people at the

place of occurrence at the time of occurrence. Out of them, he

could only recognise the family members, i.e. his mother Fulwati

Devi, Sister-in-law Reena Devi (wife of the deceased), nephew

Mukesh Paswan and three named co-villagers Heera Devi, Sanjeet

Mahto, Brajesh Kumar and others.

20. He admits that he hide himself about 50 feet away

behind the dates tree after the firing at Hemchandra. This witness

has further stated that altogether 6 rounds were fired. Six pillet had

been targetted at the body of Hemchandra. The accused persons

fired five rounds in air when they were rushing from the palce of

occurrence. This witness has further stated that he has given his

statement before the I.O. at 3 o'clock in the evening which was

read over to him and after understanding the same he made his

sginature which was re-read by him after two days. After taking

the copy of that he further admits that he never met accused Ram

Chandra Yadav after the occurrence and has admitted that he can

identify Ram Chandra Yadav in the dock.

21. P.W.-6 is Vikash Paswan; he was declared hostile on

the prayer of the prosecution. This witness has stated that he saw Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

that persons were fleeing away from the paasikhana and were

saying that Hemchandra Paswan has been shot dead.

22. P.W.-7 is Raja Kumar who has stated that the

occurrence took place at 11:30 A.M. on 21.05.2017 when he was

going along with his father to plough the field situated in Pirnagar

and when he reached nearby the well of Dilip Chaudhary, the

accused persons were standing. Ram Chandra Yadav pulled his

father Hemchandra from the tractor and asked to shoot him,

thereafter Mithun Sharma took out the pistol from his waist and

fired at chest of his father. Ram Chandra Yadav also fired at the

stomach of his father and Chotu fired which targeted the thigh of

his father. When he tried to escape Dilip Chaudhary and Randhir

Mahto pushed him and these persons took their heels and

continued firing at his father.

23. After the said firing, co-villagers rushed to the spot

and thereafter he brough his father to Sadar Hospital Begusarai

where his father died. Inquest report was prepared. On his

identification, the same inquest report has been marked as Exhibit-

3/1. This witness has identified all the accused persons. In his

cross-examiantion he has stated that he has gone with his father to

till the fields. He has also stated that on the date of occurrence he

and his uncle were accompanying his father on the tractor. He has Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

stated that his father was shot after pulling down from the tractor.

This witness has also stated that he hide himself in husk and he

could not see as to which accused fired how may times. This

witness has also stated that his father had fell near the well. The

well was towards North. This witness has further stated in

paragraph '16' of his cross-examiantion that he did not tried to

rescue his father because he was afraid that accused persons may

kill him. He has been suggested by the defence in his cross-

examination that he has not stated before police as he has deposed

in court rather he has stated before police that he had heard about

the occurrence.

24. P.W.-8 is the formal witness who has identified the

seizure list and on his identification he has stated that Darogaji has

prepared the seizure list on two empty cartridges, old slippers,

towel. In cross-examination he has stated that he has not seen any

of the articles.

25. P.W.-9 is Sulendra Paswan. This witness has stated

that while he was returning after fetching land, as he reached near

the house of Rajo Poddar, he heard the sound of firing and for that

he has stated that accused persons fired at Hemchandra Paswan. In

cross-examination he has stated that he came to know about the

occurrence when he heard the noise of firing. While he was Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

suggested by the defence this witness has stated that before police

he has not daid that Bibhash @ Pashupati Paswan informed him on

mobile. He has further stated that when he went to the house of

Dilip Chaudhary he found the dead body of Hemchandra Paswan.

26. P.W.-10 is Lalan Ram, Investigating Officer. In his

examination-in-chief, he has stated that after receiving the charge

of investigation, he went to the "Paasikhana" of Dilip Chaudhary

and he came to know that Hemchandra Paswan of village Sisauni

has been shot dead. He has also recovered slipper, two empty

cartridges which he has seized. He has identified his handwriting

on the seizure list which has been marked as Ext-5. He has also

identified the inquest report. The carbon copy of the inquest report

which was prepared by the S.I. Sudish Mishra. He identified his

signature. He has further stated that during investigation he

recorded the statement of the witnesses and he has also described

the place of occurrence as the "Paasikhana" of Jago Chaudhary.

This witness has categorically stated that the persons who were

present at the place of occurrence told him that miscreants have

shot dead Hemchandra Paswan and they flew towards Samsha.

They had not disclosed the name of any of the accused. In his

cross-examination in Paragraph-10, this witness has categorically

stated that informant has shown him the place of occurrence which Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

is "paasikhana" of Dilip Chaudhary. He has further stated that he

has not described about any well in the case diary. He has also not

found any tractor on the place of occurrence and has not found any

blood on the place of occurrence. In Paragraph '14' this witness

has staed that the informant disclosed him that the occurrence took

place near well. Vikash Paswan told him that the occurrence took

place at the time of tillling of the land. But he found the

"paasikhana" as the place of occurrence and he has further stated

that he did not do any investigation regarding this difference in

place of occurrence.

27. In this case, from perusal of the FIR it transpires that

according to the informant (P.W.-5) he was going with his brother

for tilling the land. So according to the FIR only informant is the

eye-witness. But from perusal of the evidence of the prosecution it

is clear that Raja Kumar(P.W.-1) and Arjun Paswan(P.W.-7) have

attempted to become eye-witness. P.W.-1 has stated in his cross-

examination that first of all he heard the noise of firing. He has

also stated that he has seen pool of blood on the place of

occurrence but this statement is not corroborated with the

deposition of the I.O. who has stated that he has not found any

blood on the place of occurrence. Even informant has not stated

that P.W.-1 was there at the place of occurrence. P.W.-1 is not an Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

eye-witness. As far as the evidence of P.W.-5 is concerned, he has

stated that while he was going with his brother Hemchandra on

tractor, the accused persons intercepted them and there was

altercation on point of ploughing the field and after that his brother

was shot dead by appellant and others. It is very strange that while

the informant was with his brother he has not sustained any injury

nor he attempted to rescue his brother, rather he hide himself in

husk stag. This conduct of the P.W.-5, who happens to be the own

brother of the deceased is not natural.This witness has stated that

there was pool of blood at the place of occurrence which does not

get corroboration from the deposition of the I.O. who has stated

that he had not found any blood. Regarding place of occurrence,

this witness has stated that the tractor was stopped at road, north of

it is well and cowshed and in the south husk stag of Jago

Chaudhary, in east land of Amanul and Ataul and in west house of

Dilip Chaudhary.

28. We find from the evidences on the record that in this

case place of occurrence has not been duly proved. P.W.-2 has

stated that quarrel was taking place in the "Paasikhana", informant

(P.W.-5) has stated that the occurrence took place near the well of

Dilip Chowdhary, P.W.-7 says that his father fell down near the

well but the I.O. (P.W.-10) did not find any well near the place of Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

occurrence. According to P.W.-10, the place of occurrence is the

"Paasikhana" where he seized the two empty cartridges, old

slippers, towel as per seizure list.

29. This Court finds that when place of occurrence

which is one of the essential ingredients of the criminal case is not

proved, the case of the prosecution cannot be accepted. In this

regard, we would like to reproduce part of Paragraph '11' of a

judgment of the Hon'ble Apex Court in the case of Syed Ibrahim

Vs. State of A.P. reported in (2006) 10 SCC 601 :

"11. ...... When the place of occurrence itself has not been established it would not be proper to accept the prosecution version."

30. It will not be out of place to mention here that this

view of the Hon'ble Apex Court was followed by the Hon'ble

Allahabad High Court in the case of Balister and Anr. Vs. State

of U.P. reported in (2022) SCC Online All 656 : (2022) 6 All LJ

739 : ILR (2022) 10 All 871.

31. The Division Bench of the Hon'ble Allahabad High

Court has observed in part of Paragraph '24' of the above

judgment that :

"24. .... "when the place of occurrence itself has not been established it would not be proper to accept the prosecution version"."

Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

32. Again this principle was followed by the Hon'ble

Calcutta High Court in the case of Asraf Biswas Vs. State of

West Bengal reported in (2016) SCC Online Cal 4342.

33. It has been reiterarated in paragraph-26 of the

Hon'ble Division Bench case in Balister and Anr. (supra) that :

"26. .... "it would not be proper to accept the prosecution case when the place of occurrence itself has not established. The place of occurrence was not proved beyond all reasonable doubts in the instant case and as a result, we have no hesitation to arrive at a conclusion that there was infirmity in decision making process of the learned Trial Judge. Once it is held that the place of occurrence has not been established beyond all reasonable doubts, then the other circumstances are hardly sufficient to establish the guilt of the accused"."

34. From the perusal of the evidence of the Doctor it is

clear that the deceased had 6 firearm injuries out of which 3 are

entry wounds and 3 are communicating to these entry wounds are

exit wounds. There is no doubt that Hemchandra Paswan was

killed. The Doctor has found that the death was due to

Haemorrhagic and Nuerogenic shock due to above mentioned

injuries caused by firearm. He has stated that one bullet was

recovered form the body; sealed and signed by him in glass vial

and handed over to the police personnel. The Second bullet visible Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

on X-ray in right groin was deeply impacted in bone so it could

not be recovered. This witness was discharged as the learned

counsel for the accused has declined to corss-examine the witness.

From the evidence of Doctor it is clear that the deceased was killed

and his death was due to firearm injuries but from the evidence of

the prosecution it is not clear as to who is the perpatrator of the

offence. In this case the place of occurrence has not been proved

and it is highly doubtful. The witness have given different versions

regarding place of occurrence.

35. We have also noticed that there is a prior enmity

between the parties. This appellant was a witness in a case against

the deceased. In this connection, defence has exhibited the

deposition of this appellant which is Exhibit- 'C'. The learned trial

court has not considered these aspects of the case. The learned trial

court has held that there is minor contradiction in the evidence of

the prosecution and the place of occurrence is in Sisauni village.

Village is a big place. When we talk of place of occurrence, the

evidence of prosecution should be specific regarding the place

where the occurrence was committed.

36. In light of the discussions above, we are of the

considered view that prosecution has not been able to prove the

place of occurrence and even the evidence of witnesses is not of Patna High Court CR. APP (DB) No.352 of 2020 dt.06-05-2025

that quality which can be termed as trustworthy and unwavering or

unimpeachable. There are major contradictions in the case of the

prosecution and evidence of the prosecution. It is well settled

principle of criminal jurisprudence that the benefit of doubt always

goes to the accused/appellant. As the prosectuion has not been able

to prove the place of occurrence. The case of the prosecution as a

whole cannot be taken as true.

37. As such, we set aside the impugned judgment of

conviction and order of sentence and acquit the appellant for the

offences under Section 302 read with 34 IPC and Section 27(1) of

the Arms Act giving him benefit of doubt. The appellant is said to

be in custody. He shall be released forthwith if not wanted in any

other case.

38. In result, this appeal is allowed.

39. Let a copy of this judgment and the trial court's

record be sent down to the trial court.

(Rajeev Ranjan Prasad, J)

(Ashok Kumar Pandey, J) Durgesh/-

AFR/NAFR
CAV DATE
Uploading Date          14.05.2025
Transmission Date       14.05.2025