Patna High Court
Mirza Atiquer Beg @ Mirza Atiqurzman Beg ... vs The State Of Bihar on 15 July, 2024
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1466 of 2019
======================================================
Achchan Beg @ Mirza Shamim Anwar Beg @ Shamim Anwar Beg and Ors.
... ... Appellants
Versus
The State of Bihar ... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 964 of 2019
======================================================
Mirza Atiquer Beg @ Mirza Atiqurzman Beg @Mirza Atique Beg @Atiqur
Baig @ Guddu ... ... Appellant
Versus
The State of Bihar ... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 1068 of 2019
======================================================
Ranu Beg @ Shafquat Imam Beg ... ... Appellant
Versus
The State of Bihar .. ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 1131 of 2019
======================================================
Fahad Beg @ Fahad Raza Beg @ Fahad ... ... Appellant
Versus
The State of Bihar ... ... Respondent
======================================================
INDEX
Sl. No. Particulars Page No.
1 Judgment of conviction and order of sentence passed by the Trial 3 to 5
Court
2 Prosecution Story 6 to 7
3 List of witnesses and Exhibits 8 to 10
4 Findings of the Trial Court 11 to 17
5 Submission on behalf of the Appellants 18 to 22
6 Submission on behalf of the State & Informant 22 to 25
7 Consideration 25 to 99
Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024
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IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1466 of 2019
Arising Out of PS. Case No.-180 Year-2015 Thana- JALE District- Darbhanga
======================================================
1. Achchan Beg @ Mirza Shamim Anwar Beg @ Shamim Anwar Beg Son of
Azam Beg Resident of Village - Garri, P.S.- Jalley, Distt.- Darbhanga.
2. Shamsheer Beg @ Shamsheer Anwar Beg, S/o Shamim Anwar Beg @
Achchan Beg @ Mirza Shamim Anwar Beg Resident of Village - Garri, P.S.-
Jalley, Distt.- Darbhanga.
3. Tabrez Beg @ Mirza Tabrez Anwar Beg, Son of Azam Beg Resident of
Village - Garri, P.S.- Jalley, Distt.- Darbhanga.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 964 of 2019
Arising Out of PS. Case No.-180 Year-2015 Thana- JALE District- Darbhanga
======================================================
Mirza Atiquer Beg @ Mirza Atiqurzaman Beg @ Mirza Atique Baig @
Atiqur Baig @ Guddu S/o Mirza Wadiuzzma Beg R/o Garri, P.S.- Jale,
District- Darbhanga (Bihar)
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 1068 of 2019
Arising Out of PS. Case No.-180 Year-2015 Thana- JALE District- Darbhanga
======================================================
Ranu Beg @ Shafquat Imam Beg Son of Imam Reza Baig Resident of Village
- Garri, P.O.- Garri, P.S.- Jalley, Dist.- Darbhanga (Bihar)
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 1131 of 2019
Arising Out of PS. Case No.-180 Year-2015 Thana- JALE District- Darbhanga
======================================================
Fahad Beg @ Fahad Raza Beg @ Fahad Son of Md. Raza Beg Resident of
Village - Garri, P.S.- Jale, Dist.- Darbhanga.
... ... Appellant
Versus
The State of Bihar ... ... Respondent
Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024
3/99
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1466 of 2019)
For the Appellants : Mr. Praveen Kumar, Advocate
Mr. Jagjit Roshan, Advocate
Mr. Om Prakash Singh, Advocate
For the State : Ms. Shashi Bala Verma, Addl PP
For the Informant : Mr. Vishwanath Prasad Singh, Senior Advocate
Mr. Iqbal Asif Niazi, Advocate
(In CRIMINAL APPEAL (DB) No. 964 of 2019)
For the Appellant : Mr. Anshul, Advocate
Mr. Shiw Kumar Prabhakar, Advocate
Mr. Uma Shankar Sharma, Advocate
Mr. Gautam, Advocate
For the State : Ms. Shashi Bala Verma, Addl PP
For the Informant : Mr. Vishwanath Prasad Singh, Senior Advocate
Mr. Iqbal Asif Niazi, Advocate
(In CRIMINAL APPEAL (DB) No. 1068 of 2019)
For the Appellant : Mr. Chandan Kumar Verma, Advocate
Mr. Rakesh Kumar Sinha, Advocate
For the State : Ms. Shashi Bala Verma, Addl PP
For the Informant : Mr. Vishwanath Prasad Singh, Senior Advocate
Mr. Iqbal Asif Niazi, Advocate
(In CRIMINAL APPEAL (DB) No. 1131 of 2019)
For the Appellant : Mr. Anshul, Advocate
Mr. Shiw Kumar Prabhakar, Advocate
Mr. Uma Shankar Sharma, Advocate
Mr. Gautam, Advocate
For the State : Ms. Shashi Bala Verma, Addl PP
For the Informant : Mr. Vishwanath Prasad Singh, Senior Advocate
Mr. Iqbal Asif Niazi, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 15-07-2024
All these appeals have been preferred for setting aside
the judgment of conviction and order of sentence dated 12-07-
2019 and 18-07-2019 respectively (in short 'judgment and order
under appeal' or 'impugned judgment and order') passed by the
learned Additional Sessions Judge-III, Darbhanga (hereinafter
referred to as the 'trial court) in Sessions Trial No. 350 of 2016
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arising out of Jalley P.S. Case No. 180/2015 registered under
section 147, 148, 149, 302, 341,323,307, 504,506 of the Indian
penal code (in short IPC) and section 27 of the Arms Act.
2. By the judgment and order under appeal, the learned
trial court has convicted the appellant Achchan Beg @ Mirza
Shamim Anwar Beg and Tabrez Beg @ Mirza Tabrez Anwar Beg
under section 302 of the Indian Penal Code (in short 'IPC') and
has sentenced them to undergo life imprisonment and pay a fine of
Rs. 25,000/- each and in default of payment of fine they shall
further undergo rigorous imprisonment (In short ('R.I.') for one
year. Further appellants (i) Mirza Atique Beg @ Guddu Beg, (ii)
Fahad Raza Beg, (iii) Shafquat Imam Beg @ Ranu Beg and (iv)
Shamsheer Anwar Beg have been convicted under Section 302/149
IPC and have been sentenced to undergo imprisonment for life and
pay a fine of Rs. 25,000/- for the offence under section 302/149 of
IPC and in default of payment of fine they shall further undergo
R.I. for one year.
3. Further the learned trial court sentenced the appellants
Achchan Beg @ Mirza Shamim Anwar Beg and Tabrez Beg @
Mirza Tabrez Anwar Beg to undergo R.I. for a period of five years
and fine of Rs. 5,000/- each for the offence under Section 307 of
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IPC and in default of payment of fine they shall further undergo
R.I. for three months.
4. Further the appellants (i) Mirza Atiquer Beg @ Guddu
Beg, (ii) Fahad Raza Beg, (iii) Shafaquat Imam Beg @ Ranu Beg
and (iv) Mirza Shamsheer Anwar Beg have been sentenced to
undergo R.I. for a period of five years and to pay a fine of Rs.
5,000/- each for the offence under Sections 307/149 of IPC and in
default of payment of fine they shall further undergo R.I. for three
months. Learned trial court has further sentenced all the six
appellants to undergo R.I. for period of six months and pay a fine
of Rs. 500/- each for the offence under Section 323 read with
Section 149 and default of payment of fine they shall undergo R.I.
for one month. Further all the six appellants have been sentenced
to undergo S.I. for a period of one month and fine of Rs. 200/-
each for the offence under Section 341 read with Section 149 of
the IPC and in default of payment of fine they shall further
undergo S.I. for five days and they have been further sentenced to
undergo R.I. for a period of two years and fine of Rs. 1,000/- each
for the offence under Section 506 read with Section 149 IPC and
default of payment of fine they shall undergo R.I. for three
months. All the sentences were ordered to run concurrently.
Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024
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PROSECUTION STORY
5. The prosecution story is based on the fardbayan
(Exhibit-7) of the informant Mirza Abdul Razique Beg (PW-5)
recorded on 24.10.2015 by Sub-Inspector of Police Raj Kumar
Ray of Jalley Police Station at 22:00 hours at his house in which
the informant alleged that on 24-10-2015 at 9.00 A.M., his villager
Saheb Ahmad @ Shannu (PW-4), who is son of his samadhi, got a
phone call made through his villager Chand on the mobile no.
9934723133 to mobile number 9534915471 and allegedly PW-4
was abused by his co-villager Chand, on query made by Shahab
Ahmad @ Shannu (PW-4) from Chand, he accepted about the call
made and indulged in ckrk&ckrh (in exchange of words). There
Tabrez, Shamsheer, Shaukat, Fahad, Achchhan Beg @ Shamim
Beg, and Ranu Beg were also present and they took the side of
Atiqur and indulged in abusing which was pacified by the
villagers. On getting this information informant (PW-5) went to
pacify the matter then all the aforesaid accused persons who were
sitting at the door of Achchan Beg indulged in ckrk&ckrh (exchange
of words) and threatened that whoever will come to intervene will
not escape.
6. On that day at 7:00 PM when the informant went to
his Samdhi house, the son of Samadhi (PW-4) went to bring a cold
Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024
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drink and as soon as he reached in front of the house of Achchan
Beg @ Shamim Beg, he was surrounded by all the aforesaid
accused persons and they abused him and started beating. When
the information regarding the above incident reached to
informant's sons namely Faizullah Beg (deceased) and Mirza
Abdulla Beg (deceased), they reached to the place of the
occurrence to pacify the matter. In the meantime after hearing
hulla informant also reached there and tried to pacify the matter
then Tabrej Beg with an intention to kill the informant gave an iron
rod blow on his head and injured him and seeing the oozing of
blood, his sons entered into exchange of words with them, in the
meantime, Ranu Beg shouted to kill both. Achchan Beg @
Shamim Beg and Tabrej Beg brought gun from their house and
started firing. Three gunshots were heard. Both sons of the
informant sustained bullet injuries and they died while reaching
Darbhanga Medical College and Hospital (in short 'D.M.C.H.')
The informant (PW-5) claimed that all seven accused persons
named above acted under a criminal conspiracy and killed his both
sons, namely, Faizulla Beg and Mirza Abdullah Beg with common
intention.
7. After completion of investigation Police submitted
charge-sheet bearing No. 01/2016 dated 23.01.2016
Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024
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u/s147,148,149,341,323,302,307,504,506 of the I.P.C. and 27 of
the Arms act against accused Atikur Beg, Tabrez Beg @Mirza
Tabrez Beg, Fahad Beg and Shamsheer Beg whereupon,
cognizance of the offences was taken by learned C.J.M. Benipur
on 18-02-2016 u/s 147, 148, 149, 341, 323,307, 504, 506,of the
I.P.C order. Another charge sheet bearing No. 48/2016 dated
07.06.2016came to be filed against accused Achchan Beg @ Shamim and Ranu Beg. Accordingly learned C.J.M. Darbhanga took cognizance u/s 147, 148, 149, 302, 341, 323, 307, 504, 506 of the IPC. and section 27 of the Arms Act on 22-06-2016 and the case was committed by learned C.J.M. Darbhanga on 14-07-2016 to the Court of Sessions.
8. In the Sessions Court charges under Sections 341/149, 323/149, 307/149, 302/149, 504/149, 506/149 of the IPC were explained to all accused persons and further charges under Sections 302/149 of the IPC and Section 27(1) of the Arms Act were explained to Achchan Beg @ Mirza Shamim Beg and Tabrez Beg @ Mirza Tabrez Anwar Beg to which they pleaded not guilty and claimed to be tried. Accordingly, charges were framed.
9. On behalf of the prosecution altogether '9'witnesses were examined who are as under:-
P.Ws Name of witnesses Detail of witnesses
PW-1 Mirza Iftekar Ahmad Beg Eye witness
Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 9/99 PW-2 Modassar Beg @ Vicky Eye witness PW-3 Mirza Mansur Alam Beg Eye witness PW-4 Shahab Ahmad @ Shannu Eye witness PW-5 Mirza Abdul Razique Beg Informant, eye witness PW-6 Dr. P.K Das Doctor who conducted postmortem PW-7 Dr. Viveka Nand Jha Doctor PW-8 Brajesh Kumar Pandey PW-9 Janardan Singh I.O.
10. The prosecution got exhibited the following documents:-
Exhibit ' 1' Signature of PW 5 Mirza Abdul Razique Beg on fardebeyan Exhibit ' 2' Postmortem examination report of Faizullah Exhibit '3' Postmortem examination report of Abdullah Exhibit '4' Injury report of Mirza Abdul Razique Beg Exhibit '5' Injury report of Shahab Ahmad Exhibit '6' Sanha entry no 56 of Station diary Exhibit '7' Fardbeyan Exhibit '8' Formal FIR Exhibit '9' Endorsement made by PW 9 Janardan Singh on the fardbeyan Exhibit '10' Inquest report of deceased Abdullah Exhibit '11' Inquest report of deceased Faizullah Exhibit '12' Requisition slip of injured Mirza Abdul Razique Beg Exhibit '13' Requisition slip of injured Shahab Ahmad @ shanno Exhibit '14' Sanha no. 587 of station diary Exhibit '15' Seizure list of double barrel gun Exhibit '16' Original requisition of Sergeant major in writing of Ashok kumar Material exhibit I Sealed vial containing pellet Material exhibit II Sealed vial containing pellet Material exhibit III Double barrel gun Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 10/99
11. In their statements under Section 313 CrPC, the accused-appellants pleaded false implication and claimed to lead evidences.
12. On behalf of the defence, the following witnesses were produced:-
DW-1 Mirza Mohammad Raza Beg
DW-2 Vinit Kumar Sinha
DW-3 Lavkesh Kumar
DW-4 Vivek Kumar Jaiswal
Further, the defence got exhibited the following documentary evidences:-
Exhibit A Enquiry Report of Jalley P.S. 180/15 Exhibit B Sale deed of Dt. 22-11-2011 Exhibit C Attendance Certificate of Accused Mirza Shamim Ahmad Baig Exhibit D Attested copy of letter no. 2927 dt. 20-12-2015 of B.D.O. Pupari Exhibit Attendance certificate accused Mirza Shamim C/1 Anwar Baig Dt. 02-11-2015 Exhibit E Attendance register of staff of block office pupari dt. 24-10-2015 Exhibit Election duty certificate of accused Mirza C/2 Shamim Anwar Baig dt. 02-11-2015
13. The learned trial court having analysed the evidences on the record convicted the accused persons and sentenced them as stated above.
Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 11/99 Findings of the Trial Court
14. The learned trial court held that the defence has failed to demonstrate any infirmity in the prosecution evidence regarding the place of occurrence, therefore, the prosecution has been able to prove the place where the occurrence took place.
15. The learned trial court further held that the accused persons, namely, Mirza Atikur Beg @ Guddu, Tabrez Beg @ Mirza Tabrez Anwar Beg, Fahad Beg @ Fahad Raza Beg, Achchhan Beg @ Mirza Shamim Anwar Beg, Shamsheer Beg @ Shamsheer Anwar Beg and Ranu Beg @ Shafquat Imam Beg were the members of an unlawful assembly and in the prosecution of their common object, they committed the criminal acts which resulted in the death of Faizullah and Abdullah and injuries were caused to Abdul Razique Beg and Shahab Ahmad @ Shannu.
16. The learned trial court rejected the defence argument that prosecution had not adduced any independent witness of the locality and all the witnesses produced by the prosecution are relatives of the injured and the informant.
17. In course of trial, the defence on behalf of Atikur Zama Beg @ Guddu and Fahad Raza Beg argued that they have been falsely implicated in this case and for supporting their case, the defence examined DW-1 Mirza Mohammad Raza Beg who is Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 12/99 the father of accused Fahad Raza Beg and father-in-law of the accused Atiqur Zama Beg @ Guddu. Learned trial court found that although this witness has stated that informant had falsely implicated Atiqur Beg @ Guddu and Fahad Raza Beg due to enmity over possession of a land mentioned in Sale Deed No. 3487 dated 22.11.2011 executed by Amirun Nisha but in course of his cross-examination, in paragraph '6' this witness has stated that the persons mentioned in kevala (sale deed) are not accused in this case. He has also stated that when he got mutated the land mentioned in sale deed, Razique Beg had not opposed for the same and this DW-1 has further stated in paragraph '7' that he never complained against Razique Beg regarding any attempt of dispossession from the land mentioned in the sale deed. Learned trial court, therefore, held that the deposition of this witness does not prove the enmity between the informant and the accused Atiqur Zama Beg @ Guddu and Fahad Raza Beg.
18. Learned trial court discussed the charge under Section 120B IPC which was levelled with each charges framed against all the accused persons. It has been found that in this case, the prosecution has only established that the accused persons had assembled at 7:00 pm on the date of occurrence in front of the house of Achchhan Beg, but no evidence has been adduced by the Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 13/99 prosecution regarding agreement between those persons who committed the offence at the scene of the occurrence. Learned trial court, therefore, held that without proving prior agreement between the accused persons no offence under Section 120B IPC shall be proved. Thus, the charge of criminal conspiracy of the offence under Section 120B IPC levelled against all the accused persons could not be proved.
19. So far as charge under Section 27(1) of the Arms Act is concerned, the learned trial court held that the evidences of PW- 4 and PW-5 would show that on the order of Ranu Beg, Mirza Achchan Beg and Tabrez Beg entered in their house and brought the gun in their hand and had fired upon Faizullah and Abdullah. The evidences of PW-4 and PW-5 have been corroborated by PW- 1 to PW-3. The Investigating Officer (PW-9) has stated in his examination-in-chief that he had interrogated the wife of accused Achchhan Beg, Jafia Sulta about gun and she said that on the date of occurrence, the gun was in her home. The trial court observed that since Jafia Sultan has not been examined by the prosecution as prosecution witness, any statement given by her to the Investigating Officer is not admissible. It has come in evidence of PW-9 that on confidential information, he had reached the place where gun was lying at backside of the house of accused Achchhan Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 14/99 Beg in village Garri. PW-9 had produced the seal packed gun which was opened before the court in presence of both the parties. The gun has been marked as material Exhibit-1. The trial court, however, found that the gun was a licensee gun bearing Licence No. 1136 of 1999 in the name of accused Mirza Shamim Anwar Beg issued by Aurangabad District, therefore, Section 27 of the Arms Act would not be attracted. It has, thus, been held that the prosecution has not established any act of the accused which is in contravention of Section 5 of the Arms Act, hence, the charge under Section 27(1) of the Arms Act has not been proved against accused Achchhan Beg @ Mirza Shamim Beg and Tabrez Beg @ Mirza Tabrez Beg.
20. Discussing the charge under Section 504 IPC, the learned trial court held that the prosecution has not established the charge under Section 504 IPC against any of the accused persons in this case. As regards the charge under Section 341 read with Section 149 IPC, the learned trial court held that the evidence of PW-4 and PW-5 have been supported by PW-1, PW-2 and PW-3 who are the eyewitnesses and according to them, PW-4 had been restrained by the accused and he was assaulted. The accused had surrounded PW-4 in front of Achchhan Beg's house at the time when he was on way to bring cold drink and by this act of accused Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 15/99 persons, Shannu (PW-4) was detained against his will and for that reason, the accused were found guilty under Section 341 IPC. Similarly, it has been held that the prosecution has been able to prove charge under Section 506 read with Section 149 IPC beyond all reasonable doubts against all the accused persons.
21. The trial court held that all the prosecution witnesses had wrongfully restrained Shannu (PW-4) and assaulted him in front of the house of Achchan Beg at 7:00 pm. Thus, this act shows the intention to cause hurt to PW-4. Referring to the injury report (Exhibit-5), which has been corroborated by the Doctor (PW-7), the learned trial court held that simple injury has been found upon the body of Shahab Ahmad @ Shannu (PW-4), therefore, the charge under Section 323 read with Section 149 IPC has been proved against all the accused persons.
Regarding the charge under Section 307 IPC, the learned trial court held that in this case, the statement of eyewitnesses and the injury report of the concerned injured persons, informant of the case (PW-5) would show that when PW-5 proceeded to protect Shannu (PW-4), Tabrez had assaulted upon his head and has got injured, blood were oozing out. PW-4 has also stated that he was assaulted by Mirza Shamsheer Anwar Beg on his head, got injured and blood was oozing out and when PW-5 had tried to protect him, Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 16/99 Tabrez assaulted upon the head of Razique Beg as a result whereof his head got injured. It has been found that the statement of both the witnesses have not been contradicted in the cross-examination and other eyewitnesses such as PW-1, PW-2 and PW-3 have also supported the statement of the informant (PW-5) and Shahab Ahmad @ Shannu (PW-4). The learned trial court, therefore, held that the prosecution has established the charge under Section 307 IPC against accused Mirza Shamsheer Anwar Beg and Tabrez Beg @ Mirza Tabrez Beg whereas other accused, namely, Achchhan Beg @ Mirza Shamim Beg, Mirza Atikur Beg, Fahad Raza Beg and Shafquat Imam Beg @ Ranu are concerned, the prosecution had successfully proved them guilty under Section 307 read with Section 149 IPC because they were the member of unlawful assembly with their common object to commit the offence under Section 307 IPC.
22. Referring to the charge under Section 302 IPC levelled against the accused persons, the trial court has taken note of the evidences of the first injured eye witness (PW-4) and the second injured eyewitness the informant (PW-5) whose statements are said to have been corroborated by the other eye witnesses who are PW-1, PW-2 and PW-3. The plea of the defence that they are interested witnesses has been rejected, after holding that the plea Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 17/99 of the defence is not as strong as to prove fatal to the credibility of these witnesses. The learned trial court has referred the post- mortem report of both the deceased which were marked as Exhibit-2 and Exhibit-3 respectively, the evidence of Dr. P.K. Das (PW-7), the kind of injury suffered by the deceased and in ultimate analysis, it has been held that the act of Achchan Beg and Tabrez Beg with other co-accused in the prosecution of their common object being a member of unlawful assembly was sufficient to cause death of the deceased Faijullah and Abdullah. Thus, the trial court held that the prosecution has been able to prove the relation between the act done by the accused Achchan Beg, Tabrez Beg and the death of the deceased. The trial court held that the prosecution has been able to establish beyond all reasonable doubt that the death of Abdullah and Faijullah is a culpable homicide.
23. The charge under Section 302 IPC has been proved against the accused Mirza Tabrez Beg and Mirza Achchan Beg and the other accused persons, namely, Mirza Atiquer Beg, Mirza Fahad Raza Beg, Safquat Imam Beg @ Ranu and Mirza Shamsheer Anwar Beg have been held liable under Section 302 read with Section 149 IPC being the member of unlawful assembly and common object of causing death and bodily injuries. Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 18/99 Submissions on behalf of the appellants
24. Learned counsel for the appellants submits that in the present case, the prosecution has not been able to establish the place of occurrence and the manner of occurrence. It is submitted that in this case the Sanha Entry (Exhibit-6) made in the Station Diary of the Police Station would show that there was a telephonic information to the Officer-in-Charge (PW-9) that there is a clash between two groups in Village-Garri in which firings have taken place. PW-9 informed ASI Subodh Kumar Singh (not examined) to go there to verify the information. On this, at 7:30 PM Subodh Kumar Singh, SI and Amrendra Kumar, ASI with police force left for village Garri which is at a distance of only 2-3 kilometers. But surprisingly, the fardbeyan (Exhibit-7) which is the basis of FIR is shown to have been recorded by Sub-inspector of Police Raj Kumar at 10:00 PM and brought to the Police Station by a Chowkidar and on that basis FIR was shown registered at 11:00 PM. Neither Raj Kumar, S.I. nor the Chowkidar have been examined under Section 161 CrPC or in course of trial which has caused serious prejudice to the defence. It is submitted that the fardbeyan (Exhibit-7) is antedated and ante-timed as the prosecution has suppressed the first version of the occurrence. Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 19/99
25. It is submitted that in this case, the first occurrence is said to have taken place on 24.10.2015 at about 9:00 A.M. (morning) but this occurrence was not reported to Police. It is stated that on coming to know about the first occurrence when PW-5 went to convince all the above accused persons who were sitting at the door of Achchan Beg @ Shameem Beg, an argument took place there and during this occurrence, Tabrez and Achchan @ Shamim Beg threatened him saying that whosoever will come to intervene would not go back. It is stated that the tension had escalated but again the villagers pacified them. The second occurrence took place at about 7:00 P.M. on the same day when the son of Samdhi (PW-4) of the informant was gong to bring a cold drink and had been passing through the road in front of the house of Achchan Beg, he was abused by the accused persons and while he was being assaulted, on information, the two sons (deceased) of the informant (PW-5) reached there to intervene and save him. It is submitted that the second occurrence took place when the informant (PW-5) reached there in order to pacify the accused persons. At this stage, Tabrez Beg assaulted the informant (PW-5) on his head as a result whereof he started bleeding. The two sons of the informant having seen the blood oozing out of the head injury of the informant got involved in argument with the Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 20/99 accused, in the meantime, on the order of Ranu Beg to kill the sons of the informant, Achchan Beg @ Shamim Beg and Tabrez Beg both brought gun from the house and started firing from the gun. There is no statement in Exhibit-7 that Mirza Shamsheer had shouted to kill PW-4 and assaulted him on his head by rod. Regarding order giver, PW-5 has taken name of Ranu Beg only and there is no statement that Shamim fired two shots at Faizullah and Tabrez shot at Abdullah. In course of investigation and trial, PW-5 has made materially different statement which would shake his credibility despite being an injured witness.
26. Learned counsel submits that the informant (PW-5) states in his fardbeyan (Exhibit-7) that he heard sound of three rounds of firing which hit his both sons who died while reaching D.M.C.H. The submission is that the informant (PW-5) did not go to hospital rather he returned to his house which cannot said to be a normal conduct of a person whose two sons who were young and employed had suffered firearm injuries and were taken to the hospital.
27. Learned counsel further submits that in this case from the evidence of PW-4, it would appear that he had stated in paragraph '9' that he did not know who is the informant of this case and to which place he belongs to. Referring to several Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 21/99 paragraphs of his deposition, learned counsel submits that this witness has made a false statement that while he was going to bring a cold drink for PW-5 who had visited his house in the evening and was passing through the road in front of the house of Achchan Beg, the occurrence took place.
28. Learned counsel submits that although PW-1 to PW- 3, PW-4 and PW-5 claim that they are the eye-witnesses to the entire occurrence but from their evidence, it would appear that they are not eyewitnesses.
29. Learned counsel submits that the I.O. (PW-9) has not examined the persons who are residing in the boundary of the occurrence and even as 18-20 persons were said to be present at the time of occurrence, no independent person has come in support of the prosecution case. The informant (PW-5) did not mention a single name of any eyewitness to the occurrence in his fardbeyan (Exhibit-7) and the related witnesses such as PW-1, 2 and 3 were produced next i.e. on 25.10.2015 in the afternoon when PW-9 is said to have recorded their statement. It is submitted that neither inquest report witnesses nor the seizure list witnesses of the seizure of gun were examined. There was no examination of gun to find out whether any firing had taken place from the said gun. It is pointed out that the inquest report was made at 10:30 and 10:50 Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 22/99 PM by ASI Haridwar Pandey at DMCH but said ASI has not been examined. At the top of the inquest report there is a mention of fardbeyan : Modassar Beg which gives an impression that Modassar Beg (PW-2) who admits his presence at DMCH at that time had recorded his fardbeyan but the prosecution has concealed it. The occurrence in which two sons of PW-5 were killed seems to have happened in the spur of moment as per PW-2 firing had taken place from 'Masjid' and he had not seen any firing taking place at the gate of Achchan Beg. Further, it is submitted that the learned trial court has failed to properly appreciate that the defence witnesses were credible and independent witnesses, hence their evidence were required to be considered giving due weightage.
Submissions on behalf of the State
30. Ms. Shashi Bala Verma, learned Additional Public Prosecutor for the State, has contested these appeals. It is submitted that there are specific allegations against the accused persons and the charges levelled against them have been duly proved in course of trial by the oral and documentary evidences produced on behalf of the prosecution. It is submitted that no contradictions could be taken out by the defence in the evidence of prosecution witnesses, particularly, the two injured witnesses who are PW-4 and PW-5. It is submitted that the place of occurrence Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 23/99 and the manner of occurrence have been fully proved. Learned Additional Public Prosecutor submits that although no motive behind the occurrence has been established by the prosecution but it has been duly proved that the deceased who were the two sons of PW-5 had gone to the place of occurrence to save PW-4 and then they were trying to save their father (PW-5). It is submitted that the postmortem reports (Exhibit '2' and '3') fully corroborate the ocular evidences. It is submitted that it is a case of double murder in which the two young employed sons of PW-5 were killed.
Submissions on behalf of the Informant
31. Mr. V.N.P. Sinha, learned Senior Counsel assisted by Mr. Asif Iqbal Niazi, learned counsel for the informant has endorsed the submission of learned Additional Public Prosecutor for the State. In addition, learned Senior Counsel submits that in this case, the place of occurrence is the road, the house of the appellant Achchan Beg is beside the road from where the firing took place. Learned Senior Counsel submits that PW-4 and PW-5 are the injured witnesses who have proved the prosecution story beyond all reasonable doubts. The inquest report (Exhibits '10' and '11') and the postmortem report (Exhibits '2' and '3') fully corroborate the prosecution story as regards the manner of occurrence. In this case, one of the deceased, namely, Abdullah Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 24/99 received one shot whereas another deceased Faijullah received two shots. In this regard the evidence of PW-5 and PW-6 have been referred to.
32. Learned Senior Counsel has submitted that PW-1 has stated that firing was done from a distance of 10-12 feet and the same stand corroborated from the evidence of Doctor who has been examined as PW-7.
33. Learned Senior Counsel submits that so far as the conduct of PW-5 is concerned, this Court can well appreciate that having lost his two young employed sons, he could not have been in a position to move and in all probability a person of sound mind would lose his sense at such moment. Thus, the submission on behalf of the defence that the conduct of PW-5 after the occurrence would be doubtful is liable to be rejected.
34. Learned Senior Counsel submits that in a case of the present nature where the eye witnesses account of the whole occurrence is available on the record and proved in course of trial, the motive does not matter. It is further submitted that the appellants were given an opportunity at the stage of Section 313 CrPC to come out with a proper explanation but on perusal of their statements, it would appear that none of the appellants have come out with an explanation at all.
Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 25/99
35. Learned Senior Counsel has, however, taken a fair stand towards the end of his submission. It is submitted that so far as conviction under Section 302/149 IPC is concerned, the evidences on the record would show that there was no pre-concert of mind on the part of the accused who had formed unlawful assembly to commit murder of two sons of the informant. It all happened in the spur of moment when the order giver, namely, Ranu directed Mirza Achchan Beg and Tabrez Beg to bring the gun from the house for killing the sons of the informant. Thus, while the two assailants have been rightly convicted by the learned trial court under Section 302 IPC, it is the order giver, namely, Ranu who would be liable to be convicted under Section 302 IPC with the aid of Section 34 IPC and so far as other appellants are concerned, they may not be liable for conviction under Section 302 with the aid of Section 149 IPC.
Consideration
36. We have heard learned counsel for the appellants, the Additional P.P. and learned Senior Counsel for the informant. We have also perused the trial court records.
37. From the fardbeyan (Exhibit-7), it would appear that the genesis of occurrence which took place at 7:00 pm on 24.10.2015 lie in the first occurrence which took place on the same Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 26/99 day at 9:00 am (morning). It is the prosecution case that at the instance of the accused Atiqur Beg @ Guddu, the co-villager 'chand' called from his mobile on the mobile of Shahab Ahmad @ Shannu (PW-4) and abused him, Chand is a feeble minded person. PW-4 inquired about this from Atiqure Beg @ Guddu whereupon he told him that at his instance, the call was made by the co- accused Chand. On this, both indulged in argument ('cd>d') Further case of the prosecution is that at the said place (i) Tabrez,
(ii) Shamsheer, (iii) Shafquat, (iv) Fahad, (v) Achchan Beg @ Shameem Beg and (vi) Ranu Beg were also present and they started abusing PW-4, taking side of Atiqure Beg @ Guddu. The situation got tensed but it was pacified with the intervention of the villagers. The place of first occurrence is not disclosed in the fardbeyan.
The second occurrence took place when the informant (PW-5) came to know about the occurrence, he went to convince all the above accused persons who were sitting at the door of Achchan Beg @ Shameem Beg, it is stated that an argument took place there with Tabrez Beg and Achchan Beg and during this occurrence, Tabrez and Achchan @ Shamim Beg threatened him saying that whosoever will come to intervene would not go back. It is stated that the tension had escalated but again the villagers Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 27/99 pacified them. In the second occurrence, the time of occurrence is not stated. Presence of Shahab Ahmed @ Shannu (PW-4) is not stated at this time of occurrence.
The third occurrence took place on the same day at 7:00 PM when Shannu (PW-4) was going to bring cold drink. It is stated that when PW-4 reached in front of the house of Achchan Beg @ Shameem Beg, all the above named accused persons surrounded him, they started abusing and beating him which information came to both the sons of PW-5, namely, Faijullah Beg aged about 28 years and Mirza Abdullah Beg aged about 25 years, both of them reached there to mediate and save, at the same time on hearing hulla the informant (PW-5) also reached there and started trying to pacify them. At this stage, Tabrez Beg is said to have assaulted the informant (PW-5) on his head by an iron rod and caused him injury. After seeing the blood oozing out from the injury of the informant (PW-5), his both sons were engaged in argument with them. It is, at this stage that Ranu Beg ordered to kill both the sons of the informant whereafter Achchan Beg @ Shamim Beg and Tabrez Beg both took out gun from their house and started firing from the gun. According to PW-5, he heard sound of three rounds of firing which hit both his sons and they died on reaching Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 28/99 D.M.C.H. The informant (PW-5) claimed that all the seven accused persons had killed his both sons under a conspiracy.
38. On record, there is a Sanha Entry (Exhibit-6, with objection) made in the Station Diary of the Jale Police Station on 24.10.2015 at 7:30 PM which reads as under:-
"ml le; ljdkjh eksckbZy ij lwpuk feyh dh xzke xjjh esa nkss i{kksa esa xksyh py jgk gS vkSj dqN yksx ?kk;y gks x;s gS] ml lwpuk dk lR;kiu ,oa vko';d dkjZokbZ esa Fkkuk ls iq0 v0 fu0 lqcks/k dqekj flag] iq0 v0 fu0 vejsUnz dqekj lkFk "kL= cy iqfyl thi ls izLFkku fd;s rFkk Mk;jh dk Hkkj l0 v0 fu0 ujsUnz >k dks fn;s A"
39. It is evident from Exhibit '6' that neither Raj Kumar Rai, ASI who had recorded the fardbeyan of PW-5 at 10:00 PM nor the Chowkidar had gone with the ASI Subodh Kumar Singh and his team. It is not known as to what were done by Subodh Kumar Singh, ASI. The distance between the Police Station and the village is only 2-3 kilometer so Subodh ASI would have reached the village within hardly ten minutes time but the prosecution witnesses PW-1 to PW-3 have shown their unawareness about arrival of Police on 24.10.2015.
40. According to the fardbeyan of PW-5, the occurrence at 7:00 PM took place on the road in front of the house of Achchan Beg @ Shamim Anwar Beg. It is this place where the named Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 29/99 accused persons surrounded Shannu (PW-4) and started abusing and assaulting him. At this stage, there is no statement that the accused were armed with lathi, danda or rod. According to PW-5, when this information reached to his two sons, namely, Faizullah Beg aged 28 years and Mirza Abdullah Beg aged 25 years then they reached at the place of occurrence to mediate. PW-5 states that in the meantime, he heard the hulla and reached there, he also tried to convince them but Tabrez Beg assaulted him by an iron rod on his head as a result whereof he started bleeding. When his sons saw him bleeding then they indulged in exchange of words with the accused persons and at this stage Ranu Beg instigated saying that both be killed and on his saying Achchan Beg @ Shamim Beg and Tabrez Beg both took out gun from their house and started firing.
Here it is required to be pointed out that in the fardbeyan, PW- 5 has made general allegations of abuses hurled and assault upon Shannu (PW-5) against all the accused but in his examination-in- chief PW-5 improved upon his fardbeyan and the restatement made before I.O. (PW-9). In the trial, he states that he saw Achchan, Tabrez, Samsheer, Imam Raja, Ranu, Shaukat, Guddu and Fahad were assaulting Shannu (PW-4) by lathi, danda and rod, in the meantime, Shamsheer shouted "ससलल सननआ कक जसन सल मसर दक"
Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 30/99 and then Shamhseer assaulted Shannu on his head by a rod as a result whereof Shannu suffered injury on his head and started bleeding.
PW-5 has further stated in his examination-in-chief that when he moved ahead to save Shannu (PW-4), Tabrez assaulted him on his head by rod as a result whereof he started bleeding and his sons Faizullah and Abdullah came to save him then Imam Raja and Ranu shouted "दकनन ससलल कक जसन सल मसर दक" This Court finds that in the fardbeyan PW-5 has stated in a different manner, he has stated that when he tried to pacify the accused persons then he was assaulted by Tabrez Beg and thereafter his sons indulged in exchange of words and at the instance of Ranu Beg, Achchan Beg @ Shamim and Tabrez Beg both brought gun. In his fardbeyan PW-5 gave a different sequence of event and had not named Imam Raja as the person who instigated Achchan and Tabrez to kill both the sons of PW-5. Imam Raja was not charge-sheeted and he has not faced trial.
41. This Court further finds that in his fardbeyan the informant (PW-5) has not given name of any of the prosecution witnesses much less an eyewitness and in this regard when he was cross-examined, in paragraph '113' of his deposition PW-5 has Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 31/99 stated that he cannot say why he did not name the witnesses of the occurrence in his fardbeyan.
42. According to PW-5, Shannu (PW-4) had left his house to bring cold drink for him and within 2-3 minutes thereafter PW-5 heard hulla on which he reached at Kamtaul-Darahi road in front of the house of Achchan Beg. PW-5 saw that the named accused persons were assaulting Shannu (PW-4). In paragraph '71' of his deposition, in course of cross-examination only he has stated that apart from the accused persons, he saw Mansur Beg (PW-3), Iftekar Beg (PW-1) and Sabja Beg, Modassar @ Vicky (PW-2) and Sahab @ Shannu (PW-4). When PW-5 reached on the said road, those persons were present south to him on the road. Thus, in his cross-examination, PW-5 states about the presence of PW-4 and only those persons/the prosecution witnesses who are all closely related to him, prior to reaching of PW-5 at the place of occurrence. In paragraph '116' of his deposition, PW-5 has stated that after his reaching to the place of occurrence, 4-5 persons reached there within half to one minute, they were Faizullah Beg, Abdullah Beg, Nirale Beg, Atique @ Bullah Beg and one person whose name he did not remember. If this statement of the informant (PW-5) is looked into in the light of the statement of the I.O. Janardan Singh (PW-9) it would appear that in his Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 32/99 examination-in-chief PW-9 has stated that on 24.10.2015, he received information on his mobile that in village Darahi two groups are fighting and firings are taking place in which some persons have got injured. He had given this information to the Officer-in-Charge who was Incharge of the Police Station, namely, S.I. Subodh Kumar Singh who registered Sanha No. 560 and proceeded to village Darahi. Sanaha entry has been proved as Exhibit-6 (with objection).
43. It is evident from the statement of PW-5 in his cross- examination that large number of persons had assembled at the place of occurrence and Police had information that the two groups were indulged in firing. The evidence of PW-9 suggests a different manner of occurrence. No independent person has been examined in this case. No sign of firing or cross-firing has been recorded by the I.O. No empty/fired cartridges have been seized from the place of occurrence. The I.O. (PW-9) did not collect any blood from the road which is said to be the place of occurrence. It is not known as to what were done by ASI Subodh Kumar Singh and Amrendra Kumar after reaching village Garri, why these two police officers did not record the fardbeyan of PW-4 or PW-5 or any other villager immediately after reaching the village even as PW-4 and PW-5 were in the village itself? Under what circumstances, Raj Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 33/99 Kumar Rai an another ASI recorded fardbeyan of PW-5 at 10:00 PM only and sent the same through a Chowkidar, are some of the relevant questions which remained unanswered due to non- examination of these police officers and the Chowkidar. The conduct of I.O. (PW-9) in not examining the persons who are having their houses and residing in the boundary and vicinity of the place of occurrence would create doubt as to whether proper and fair investigation which is one of the components of a fair trial, has been done in this case? All these factors would raise a doubt as to whether this has seriously prejudiced the case of the appellants?
44. As regards the prosecution story that Shannu (PW-4) had left his house to bring cold drink for PW-5 who had visited his house, it would appear from the deposition of PW-4 that he had no prior programme to go towards the house of Achchan Beg. It is not the prosecution case that the accused persons were aware that PW- 4 is likely to come towards the house of Achchan Beg in the evening, still as per the prosecution story, subsequently developed by PW-1 to PW-5 in course of trial, the accused persons armed with rod, lathi and danda were present near the house of Achchan and as soon as PW-4 reached there, they surrounded him and started abusing and assaulting him by lathi, danda and iron rod. Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 34/99 The injury report of PW-4 has been proved as Exhibit '5' by the Doctor (PW-7) and according to this Exhibit, PW-4 had received one simple injury on his head which was caused by hard and blunt object. Exhibit '5' shows one lacerated wound over scalp right side of vertex 3" x 1/2" x 1/4". The injury report of PW-4 does not indicate any other injury on the body of PW-4. At this stage, this Court is of the view that if 7-8 accused persons had assaulted PW- 4 repeatedly, as claimed by him in paragraph '51' of his deposition, for 5-6 minutes, PW-4 must have suffered multiple injuries on his body but no other injury except one simple injury on his head has been reported. PW-7 who had examined the injury of PW-4 and PW-5 has opined that if a person would be assaulted by rod of 12 mm to 14 mm with full force, it would cause grievous kind of injury. The opinion of PW-7 creates huge doubt on the statement of PW-5 in paragraph '75' of his deposition. In paragraph '21' of his deposition, PW-7 has stated that such injury may be created and in paragraph '27' of his deposition, PW-7 states that the injury may also be caused due to fall on hard substance. In paragraph '28' PW-7 has stated that he had not found any bandage (patti) on the head of both the injured and there was no dry blood there. PW-7 has deposed identically with regard to the injury of PW-5. The statement of PW-5 in paragraph '79' '80', Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 35/99 '81' and '82' regarding manner of assault upon him are completely ruled out by PW-7
45. PW-4 has categorically stated in his deposition that after suffering injury he came back to his house, did not go to any Doctor even though Doctors are there in the village and he was taken to Jale Hospital by Police at about 11:00 pm where he was treated. He has stated that he had not fallen down on the earth and had not become unconscious. In paragraph '74' of his deposition, he has stated that he had not seen any medical document and had not seen any prescription of medicine or purchase receipt of the medicine even though he claims that he had suffered the injury for about 2-3 months (paragraph '125'). The fact that PW-4 had no injury on any other part of his body and he could not produce any prescription of medicine or purchase receipt of the medicines coupled with the opinion of the Doctor (PW-7) and the injury report (Exhibit-5) would create doubt on the prosecution story which has been subsequently developed in course of trial that PW- 4 was assaulted repeatedly by 7-8 persons armed with lathi, danda and rod after surrounding him and he was inflicted an injury on his head by Shamsheer.
46. PW-4 has stated that he was going to purchase a cold drink. In this regard, when he was cross-examined, in paragraph Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 36/99 '31' of his deposition he has stated that east to his house there is a cold drink shop of one Anjum Beg. In paragraph '32' he has stated that the shop is situated at a distance of 60-70 yards. If this evidence of PW-4 is looked into in the light of his statements made in paragraph '20', it would be found that he has stated that north to his house is the road which goes from east to west towards Jogiyara. This road goes for one kilometre towards western side from Masjid to Jogiyara. In paragraph '27' of his evidence he has stated that Jogiyara is situated west to his village. Jaale is situated west to his village at a distance of 2-3 kilometre and a road which is highway passes through his village to Jaale. He has stated that there is a Police Station, Block and Referral Hospital at Jaale. In paragraph '23' of his evidence he has stated that a village road passes from north to south towards Kamtaul. This road is 20-22 feet wide and the road ends in his village at half kilometre. Hundred houses are situated east to the said road and house of Achchan Beg and others are there. In paragraph '29' PW-4 has stated that to go to Kamtaul, the road which has been passing from north to south, the place where the road takes a turn towards eastern direction, from there at a distance of half kilometer there is a Masjid. In paragraph '31 he has stated that south to his house there are small-small shops but he did not remember whether cold Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 37/99 drink shop is there or not. He has stated in paragraph '31' initially that there is no cold drink shop in east or west side of his house but then he has changed his statement and stated that east to his house is the only cold drink shop of Anjum Beg. It is not the case of the prosecution that on 24.10.2015 at about 7:00 PM when PW-4 left his house to bring a cold drink, the shop of Anjum Beg which was situated east to his house was either closed or that no cold drink was available in the said shop. PW-4 has stated in paragraph '32' that the shop of Anjum is situated at a distance of 60-70 yard but then he has stated in paragraph '33' of his deposition that on the way to Kamtaul Road there is a Masjid and cold drink shop of Anjum is situated west to the Masjid at a distance of 200-300 yards and highway road is towards west near the Masjid and he used to go to purchase cold drink by this road. To me, it appears that the prosecution story saying that PW-4 had gone to purchase cold drink and on way he reached in front of the house of Achchan Beg is doubtful. He has admitted in his deposition (paragraph 31) that south to his house is small-small kirana shop, his statement that he did not remember whether there is a cold drink shop or not is only an attempt to withhold the correct information and this statement has been made only in order to justify his movement towards the house of Achchan Beg. Nonetheless, PW-4 has Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 38/99 admitted that east to his house is the cold drink shop of Anjum Beg which is at a distance of 60-70 yards only. In such circumstance, it is completely doubtful that PW-4 would go to the Kamtaul road and then would go to the cold drink shop of Anjum from the Masjid side taking highway road and cover a distance of 200-300 yards west to the Masjid. The statement of PW-5 in paragraph '141' of his cross-examination that he did not remember to have made statement in his fardbeyan or restatement that on the date of occurrence, Shannu had gone to bring a cold drink further strengthens the view of this Court that the story about PW-4 going to purchase cold drink is not true. On going through the evidence of PW-4, I am of the opinion that the prosecution story saying that PW-4 had gone to purchase cold drink for PW-5 and on way in front of Achchan Beg house he was surrounded by the accused persons is not duly proved beyond reasonable doubt.
47. From the evidence of PW-4 and PW-5 as discussed above, while it is found that according to these witnesses, the place of occurrence is the road going to Village-Kamtaul (north to south) in front of the house of Achchan Beg, it is not proved that firing took place at the gate of the house of Achchan Beg. PW-5 has stated in paragraph '173' that adjacent south to the Masjid is the house of Achchan Beg. If the house of Achchan Beg is situated Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 39/99 east to the Pucci Road and it is adjacent south to the Masjid, it is evident that the road which is said to be the place of occurrence is in front of Masjid as well as the house of Achchan Beg. In paragraph '30' of his deposition, PW-2 has stated that prior to firing from Jama Masjid, the injured persons were in south direction. It has been suggested by the defence while cross- examining these witnesses that the place of occurrence is somewhere else (refer paragraph '88' and '223' of PW-5 and paragraph '45' of PW-4).
48. PW-4 has stated in paragraph '179' that in the darkness he had not seen anybody of the village. In paragraph '182' he says firing was taking place from southern direction. It is not the prosecution case that house of Achchan Beg is in south direction of the Pucci Road. Achchan Beg house is east to the road. It is evident that firing was not done from eastern direction. In paragraph '184', it is stated that firing was taking place from 20-25 feet distance from Faizullah and 30-35 feet from Abdullah whereas the Doctor (PW-6) has opined that the deceased were shot at from a distance of 1-2 feet only (see paragraph '15'). In paragraph '13', PW-6 has stated that in the postmortem report, there is no mention as to how many shots were fired at. Neither PW-4 nor PW-5 had shown the place of occurrence to Police. In paragraph '153', PW-5 Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 40/99 states that he came to know that the villagers had shown the place of occurrence to Police but there is no evidence of any villager saying that he had shown the place of occurrence to Police. The I.O. (PW-9) says he did not remember who had shown the place of occurrence. To me, therefore, it appears that there is no material to show as to how Police reached the place of occurrence in this case. Place of occurrence is the road but there is no wholly reliable evidence on record to establish that the place of occurrence was the road in front of the house of Achcan Beg.
49. This Court finds from the deposition of Mirza Iftekar Ahmad Beg (PW-1) that he has admitted in paragraph '22' of his deposition that the informant is his uncle in village relationship. PW-1 is not a witness to the occurrence which took place in the morning at 9:00 AM. He has stated that at about 7:00 PM he was going to offer Namaz in the Masjid and he had seen the occurrence. According to him, Shamsheer assaulted PW-4 on his head and others were also assaulting PW-4. When PW-5 came to save him, he was assaulted by Tabrez on his head by an iron rod and others also started assaulting but the statement of PW-1 that Shamsheer assaulted PW-4 on his head has come for the first time in course of trial. In the fardbeyan, there is no such statement of PW-5. There is a general statement of PW-5 that all the accused Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 41/99 persons had been assaulting PW-4 after surrounding him. The statement of PW-1 that when PW-5 came to save him he was assaulted by Tabrez on his head by an iron rod is on the line of the statement of other prosecution witnesses who deposed in this case but his statement that PW-4 and PW-5 were assaulted by Shamsheer and Tabrez respectively by rod and by other accused persons who were armed with lathi and danda also are not getting corroborated from the injury reports of PW-4 and PW-5 (Exhibit-
5), evidence of the Doctor (PW-7). PW-4 and PW-5 have stated that after getting assaulted on their head they had not fallen on the earth and had not become unconscious. Both of them had come to their house on their own. They did not visit any Doctor in the village. PW-7 did not find any bandage (patti) on their head. All these circumstances clearly show that PW-1 had not seen the assault being made on PW-4 and PW-5 but has deposed to support the prosecution case being a related and interested witness. The I.O. (PW-9) has stated that in his statement before Police, PW-1 had not stated in the manner stated in course of trial. Further, Exhibit '5' and PW-7 completely rule out the manner of assault and use of weapon as stated by PW-1.
50. This witness has stated that he had made statement before Police on the next day of the occurrence. He has stated that Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 42/99 no one tried to save PW-4. PW-4 was assaulted at a distance of 25-
30 feet from the Masjid (paragraph 22). It is the same distance from which both the deceased were shot at. PW-1 is therefore not consistent with his examination-in-chief in which he said that PW- 5 had tried to save PW-4. This witness has stated that on the date of occurrence he offered Namaz at 7:40 PM and thereafter returned his home at 8:15 PM. This conduct of PW-1 is totally unbelievable in the circumstances. It is difficult to believe that after such an occurrence in which two young persons who were related to him had suffered firearm injuries and they were almost dead and the others like PW-4 and PW-5 were injured, PW-1 would go to offer Namaz in the Masjid and will comfortably return to his house by 8:15 PM. In paragraph '19' of his deposition, he has stated that he had not met any Police personnel in the village in between 7:00 PM and 9:30 PM whereas according to Sanha (Exhibit-6) ASI Subodh Kumar Singh and the police force had moved toward this village at 7:30 PM and the distance which they were required to cover was only 2-3 kilometer. As per PW-5, his fardbeyan was recorded in his house at 10:00 PM. Despite all this how PW-1 can remain unaware of arrival of Police is a big question mark. According to PW-1, in the morning he came to know that Police had come in the village. In paragraph '20', he has stated that he Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 43/99 cannot say as to what were done by Police after their arrival. He has stated that the assault by rod took place for 5-7 minutes but he had not seen whether due to said assault by rod any fracture had taken place. He had also not seen whether rod was stained with blood. He had not seen the person who had fired, loading bullet.
51. This witness was suggested that at the house of Tabrez, the informant and others had committed loot-paat and had assaulted them which this witness denied. This witness has accepted that he is the husband of Neelam Beg who is niece of Rabani (samdhi of PW-5) and father of PW-4. So he is in fact brother-in-law of PW-4. It appears that PW-1 is not an eyewitness to the occurrence. He being a related witness was produced before Police only in the afternoon of the next day of the occurrence and his statement in paragraph '22' of his deposition that he had shown the place of occurrence to the police but at the same time his saying that he heard about arrival of Police in the village in the morning but he cannot say as to what were done by police after their arrival are only self-contradictory statements which impeaches upon his credibility.
52. PW-1 was suggested that he had not seen any occurrence and he is deposing only because he is related to PW-5. Further he was suggested that Mirza Shamim Anwar Beg @ Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 44/99 Achchan Beg was not at the place of occurrence and he was on election duty in Pupri Block. PW-1 denied the suggestion. It, however, appears from the evidence of the I.O. (PW-9) that he has stated in paragraph '119' that the statement of Mirza Iftekar Beg (PW-1) was recorded on 25.10.2015 after 12:00 noon but he had not mentioned the time in the diary. According to PW-9, PW-1 had not made any statement that when he was going to offer Namaz then he saw Achchan Tabrej, Shamsheer, Imam Raja, Ranu, Fahad and Guddu having lathi and rod and that they were abusing and assaulting Shannu (PW-4) and in the meantime, Shamsheer shouted abusing PW-4 to kill and assaulted him by a rod on his head as a result whereof he started bleeding profusely and thereafter other persons also started assaulting him whereafter PW- 5 came to save him and then he was assaulted by Tabrej by a rod on his head causing injury on his head and then he was also assaulted by other persons. PW-9 has further stated that PW-1 had not stated that on saying this Faizullah moved to save Razique and from behind Abdullah was also coming, at this Imam Raja and Ranu both shouted to kill them then Achchan and Tabrej both went running into their house and came out with gun and thereafter Achchan fired two shots which hit Faizullah on his head and chest. Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 45/99 PW-1 had not stated that when Abdullah came to help Faizullah then Tabrej fired.
53. I would, therefore, record that PW-1 is not an eye- witness to the occurrence. He is a related and interested witness who was brought before Police as an eye-witness only by way of an afterthought on the next day of the occurrence. He is not named as a witness in the fardbeyan or restatement of PW-5.
54. Modassar Beg @ Vicky (PW-2) is the nephew of the informant (PW-5). In his examination-in-chief, PW-2 has supported the prosecution case. He claims himself a chance witness as according to him, he was going to Barahi Tola and on way when he reached Neem Chowk situated on the road leading to Jogiyara, he heard hulla. PW-2 claims that he saw that in front of the house of Achchan Beg, on the road the accused persons who were armed with lathi danda and rod except Fahad Beg who was not having lathi in his hand had surrounded Shannu (PW-4) and were assaulting him. Thereafter he says that Shamsheer assaulted PW-4 on his head causing bleeding. In the meantime, Razique Beg (PW-5) came to save PW-4 then Tabrej Beg assaulted PW-5 on his head by rod causing injury on head and he was bleeding. According to PW-2, when Faizullah moved ahead to save his father and his brother Abdullah was coming from behind, then Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 46/99 Imam Raja Beg and Ranu Beg shouted in one voice to kill both of them. PW-2 has deposed that thereafter Achchan Beg and Tabrez Beg went inside their house and both came with gun in their hand, Achchan Beg fired twice which hit Faizullah Beg on his head and chest and Tabrez Beg fired from the gun in his hand which hit Abdullah on his chest.
55. From the deposition of PW-2 it appears that he had already reached the place of occurrence prior to reaching of PW-5 and his both sons. PW-2 has stated that he was going to Barahi Tola and on way he heard hulla whereafter he reached the place of occurrence but in course of his cross-examination, in paragraph '19' he states that he did not remember the name of the carpenter (badhai) to whom he was going to meet. PW-2 is next door neighbor of PW-5 but he states in paragraph '20' of his cross- examination that he is not aware as to who had lodged this case and he had not inquired from the family members of Faizullah and Abdullah (the two deceased) as to why they had not lodged a case. He accepts that Faizullah happened to be his cousin brother. Despite this much closeness with PW-5 and the deceased, in paragraph '5' of his cross-examination he has stated that he was not aware whether Police had come on the date of occurrence. He met Police on 25th of October 2015. He was called by Chaukidar at Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 47/99 the place of occurrence in between 9-10 AM and he had made his statement at the place of occurrence. He states in paragraph '6' that at the place of occurrence apart from the accused persons there were 18-20 people. He has stated that the villagers had taken two injured persons to hospital, they are the deceased but how other persons were taken to the hospital is not known.
56. The evidence of PW-2 suggests a group clash between the family members and relatives of PW-5 on the one hand and the accused persons on the other hand. In paragraph '8' he states that he had gone to Jale Hospital with the injured persons (he refers the two deceased) but he cannot say the time of admission in Referral Hospital. He had seen about fifteen injured persons in Jale Hospital. He has disclosed that Police Station is besides the Jale Hospital and Police had come to the hospital but his statement was not recorded by Police. Police had not inquired from him and had not recorded the statement of the injured persons. Both the injured persons were unconscious. In paragraph '19' PW-2 contradicts himself when he states that when he reached the place of occurrence then 18-20 people were not there. He did not remember how much time he stayed at the place of occurrence. In paragraph '22', PW-2 states that he had heard sound of three firing from a distance of ten feet. The house of Achchan Beg is Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 48/99 situated east to the place where he heard sound of firing. In west there is house of Late Aale Beg and in north-south there is Kamtaul-Jogiyara Road. PW-3 has categorically stated that he had not heard the sound of firing at the gate of Achchan Beg or Aale Beg. He cannot say at how much distance from him PW-4 or PW-5 were standing. In paragraph '30' of his deposition, this witness states that he did not know as to in which direction the persons who were firing were there from the injured persons prior to firing. In the same paragraph, PW-2 states that prior to firing from Jama Masjid, the injured persons were in south direction. He did not remember as to how many persons were there among the injured persons prior to firing from Jama Masjid. This part of the statement of PW-2 in paragraph '30' of his cross-examination would give an impression that the firing took place from Jama Masjid. This witness seems to be inconsistent as regards the place from where the firing was done. While he has stated in paragraph '8' of his cross-examination that the injured persons were unconscious, in paragraph '38' of his deposition he has stated that on hulla he reached the place of occurrence where he saw the informant and injured. He had not seen any other person and at this stage PW-2 states that the injured persons were not unconscious. He further states that he had seen Guddu and Fahad but he had not Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 49/99 seen both of them indulged in the assault. Attention of this witness was drawn towards his statements made before the I.O. in course of investigation. In paragraph '35', the defence cross-examined him with reference to his statements made before the I.O. to take a contradiction. The I.O. (PW-9) has contradicted this witness in his statement made in paragraph '104'. It is evident from the evidence of the I.O. in paragraph '104' that PW-2 is not consistent in his statements during investigation and in course of trial. He had made self-contradictory statements also. He seems to have come before Police for recording of his statement only on 25.10.2015 in the afternoon at the instance of the informant (PW-5). I say so because according to PW-2 he was called by the Chowkidar on 25.10.2015 at the place of occurrence and then his statement was recorded. I would, however, hasten to point out at this stage that PW-2 seems to have made his statement before S.I. Haridwar Pandey of Jale Police Station who had prepared the inquest reports of the two deceased. What is stated at the top of the inquest reports (Exhibit '9') is being reproduced hereinafter:-
"QnZc;ku&fejtk eqnn~"kj csx mez 30 o'kZ firk& fejtk etg:y bLyke lk0 xjjh Fkkuk tkys"
Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 50/99 The inquest reports were prepared on 24.10.2015 at 10:30- 10:50 PM respectively at DMCH, Darbhanga. Till then FIR was not registered.
57. Here it is required to be noted that the I.O. (PW-9) did not record the statement of the persons whose houses were situated in the boundary of the place of occurrence (paragraph '49' of PW-9). I.O. says that he had gone to the place of occurrence at 00:15 AM (night hours) on 25.10.2015 but he did not remember who had shown him the place of occurrence. PW-2 states that he was not aware that Police had come in the night. The fact that PW- 2 was called by Chowkidar at the place of occurrence on 25.10.2015 and then his statement is said to have been recorded would show that he was introduced as a witness only with an afterthought to support the prosecution case which was further developed subsequent to the fardbeyan of PW-5 through the prosecution witnesses. It is doubtful whether he had seen the occurrence because he himself says in paragraph '38' that he reached on hulla at the place of occurrence and saw the informant and injured but no other person at the place of occurrence. Contrary to the evidence of PW-4 and PW-5, this witness has stated that he had not seen Guddu and Fahad indulging in the assault.
Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 51/99
58. Regarding this witness, this Court finds that he is neither wholly reliable nor wholly unreliable witness. He reached the place of occurrence on hearing hulla after the occurrence had taken place. He had accompanied the two injured (since deceased) to DMCH, on way to DMCH both the injured died. At DMCH, the inquest reports of both the deceased were prepared and statement of PW-2 was recorded by Haridwar Pandey, SI of Police but later on the statement of PW-2 as fardbeyan has been suppressed.
59. Mirza Mansur Alam Beg (PW-3) is the son of Nagina Begum, who is fufi of PW-5, therefore this witness and PW-5 are cousins. PW-3 retired as Sub-Inspector of Police. He claims to have seen the occurrence as according to him, at that time around 7:00 PM, he was going to his sasural in his own village and when he reached at the road, near the house of Achchan Beg, he saw Achchan Beg, Tabrez Beg, Shamsheer Beg, Imam Raja, Shauqat, Ranu, Fahad and Guddu armed with iron rod, lathi and danda and they were assaulting Shannu (PW-4). This witness has then narrated the same story. From the statements made in his examination-in-chief, it appears that he was at the place of occurrence prior to reaching of PW-5 at the place of occurrence because in his examination-in-chief PW-3 has stated that after Shannu was assaulted on his head by Shamsheer, he was Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 52/99 bleeding profusely, in the meantime PW-5 came there then he was assaulted by Tabrez on his head by rod. PW-3, therefore, does not say that PW-5 tried to save PW-4 then Tabrez assaulted him on his head. PW-5 has stated that when he was in the house of Rabbani (his samdhi) and PW-4 left for bringing a cold drink, within 2-3 minutes, he heard hulla whereafter he ran towards the place of occurrence. He claimed that he was trying to save PW-4 then he was assaulted by Tabrez. PW-3 happened to be a Police Officer but in paragraph '12' of his deposition, he has stated that he had not informed the Police Station about the occurrence. He did not know whether the Police had come. His statement was recorded on 25.10.2015 at the place of occurrence. He was not aware as to where the injured persons were treated. In paragraph '13' he has stated that he had not seen any person from mohalla at the place of occurrence. It is important to note from the cross-examination of PW-3 that he had not stated to Police that he had seen double barrel gun, he had also not stated about firing from the gun. This witness had not seen any empty cartridge at the place of occurrence either at the time of occurrence or after the occurrence. He has further stated in the same paragraph that at the time of occurrence in the dark night, there were four electricity poles in his village but he has further stated that in his village there is a Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 53/99 transformer from where the electricity is supplied. The transformer is at a distance of 25 yards towards south from the place of occurrence. He cannot say that for how many months, the pole transformers are there. This witness has categorically stated that for the last three years, the electricity transformer of his village is not in a working condition (ख़राब है ) but this witness has denied the suggestion that for this reason, there is no question of supply of electricity on the pole. In paragraph '23' of his deposition, however, when he was asked a question as to in the dark night of the occurrence, how many persons he had seen from the distance of 15 yards, PW-3 answered that in the darkness nothing could be seen but 20-25 persons were seen. From this part of his deposition, it is evident that at the time of occurrence darkness had already prevailed, it was towards the end of the month of October when the sunset takes place at around 5:30 PM only, therefore, not only the presence of this witness is not established, in fact in the darkness, this witness could not have seen the occurrence from his own naked eyes. In paragraph '26' he has stated that he is not aware that there is no name of witness in the FIR. In paragraph '36' of his deposition this witness has stated about the relationship of the witnesses with the informant. From the evidence of PW-3 again it is clear that despite being so closely related to PW-5 he has Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 54/99 shown his unawareness about the arrival of Police on the date of occurrence, the place where the injured persons were treated and has categorically stated that he had not seen any person from the mohalla at the place of occurrence. The other prosecution witnesses have stated about presence of 18-20 persons at the place of occurrence, he himself claims at one place to have seen 20-35 persons in darkness, therefore the conduct of this witness seems to be highly doubtful. PW-5 has stated in paragraph '171' of his deposition that this witness is his fufera brother. He retired as Deputy Superintendent of Police and at the time of occurrence, he was in his house. Thus, PW-5 himself rules out presence of PW-3 at the place of occurrence.
60. The I.O. (PW-9) has stated that he had reached village at 11:45 PM and had recorded the statement of PW-4 at the house of PW-5. In paragraph 41 of his deposition PW-9 has stated that at the house of the informant (PW-5) apart from Shannu many other persons were present, but he did not know their name and he had not recorded the statement of any other person and the family members of PW-5. This conduct of the I.O. gives rise to a doubt that at the time of recording statement of PW-4 and PW-5 at 11:45 PM the prosecution was not sure about who should be placed as witness to the case, therefore only on the next day the names were Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 55/99 decided and then PW-1, PW-2 and PW-3 all were called by Chowkidar at the given place of occurrence where they claim to have made their statements. In this regard, the statement of the I.O. (PW-9) in paragraph '108' of his deposition would show that the I.O. has contradicted PW-3 on many aspects of the matter. The I.O. has stated that he had not recorded the statement of PW-3 on 25.10.2015 at 9:00 AM. On the said date and time, PW-3 had not made statement that the occurrence is of 7:00 p.m. when he was going to his sasural in his village. It is thus evident that PW-3 has been introduced as a witness in this case at a belated stage, his evidence is therefore required to be looked into with all circumspection and care.
The fact that according to the Doctor (PW-6), the injuries were caused by firing from 1-2 feet whereas the witnesses have stated that the firing took place from a distance of 25-35 feet, would further create doubt on the presence of PW-1, PW-2 and PW-3 at the given place of occurrence.
61. From the discussions made hereinabove, I would record that the evidence of PW-1, PW-2 and PW-3 as regards their presence at the place of occurrence and having seen the occurrence from their own eyes are not consistent with their earlier version Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 56/99 made before the I.O. and in fact they have made self-contradictory statements even in course of their examination in the trial.
62. So far as PW-4 and PW-5 are concerned, they have not only made exaggerated statements, they have gone to the extent of making unreliable statements in their pursuit to implicate the accused persons in serious kind of offences.
63. No doubt PW-4 and PW-5 are said to be the injured witnesses and normally their presence at the place of occurrence cannot be outrightly disbelieved but in the kind of discussions made hereinabove, their statements are required to be examined with all circumspection and care.
64. Dr. Praful Kumar Das (PW-6) is the Doctor who was posted as Associate Professor in the Department of FMT, DMCH. He had conducted the autopsy on the dead body. According to him, the victim Md. Faizullah had suffered injuries which were antemortem, dangerous to life in ordinary course and were caused by a firearm firing the cartridge containing the lead pellets from distant range. PW-6 had prepared the postmortem report (Exhibit-
2). The same Doctor had conducted the autopsy on the dead body of Md. Abdullah and similar observations were made by him. The postmortem report of Md. Abdullah is Exhibit-3. In his deposition, in paragraph '9', he has stated that he had not determined the age Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 57/99 of injury and the range of firing. He had also not written specifically the kind of arms by which the firing was done. It is important to note that in paragraph '13' of his deposition, PW-6 has stated that he had not written in the postmortem report as to how many shots were fired at. In paragraph '15' of his deposition, he has stated that both the deceased suffered injuries which were caused by firing from a distance of 1-2 feet. In paragraph '16', he has stated that he had received dead body challan of both the deceased from the Police Station and he had recorded the challan number in the postmortem report. The observations of PW-6 as regards the injuries suffered by both the deceased are being reproduced hereunder:-
"1. Blood and blood clots were present at mouth and both nostrils. Body surface and body cloths were stained and soaked with blood and blood clots. T. shirt showed 5 perforations over right and three on left chest wall with evidence of burning multiple rounded lacerated punctured wounds were found measuring 1" x 8" diameter over right side of forehead above right eyebrow at four places right side of the face at two places, over left shoulder at four places over front of left arm at five places, over left chest wall in upper part at five places and in the fifth intercostal space in apical region of heart, over the upper part of sternum at three places and over right chest wall in upper part above the nipple at five places and in lower part below the nipple in one place. These were surrounded by collar of abrasion. They have pierced right chest wall and left chest wall and perforated both lungs and heart. On cleansing five rounded pellets were recovered from right lung and two from Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 58/99 left lung. Both sides of chest cavity was full of blood. These seven recovered lead pellets were sealed in a glass vial properly labeled and handed over the accompanying chaukidar for onward transmission to the I.O. of the case. At other places pellets were not recovered and the underlying soft tissues were bruised and infiltrated with blood and blood clots. 5th ribs on the left side was fractured anteriorly. The wounds were placed in dispersion mode in upper part. On dissection both sides of the heart were empty. Liver, spleen and both kidneys were pale. Stomach contained about 50 ml rice mixed pasty food materials with pale gastric mucosa. Bladder was empty. Genitals were normal. Brain and its meninges were pale.
Above noted injuries were antemortem dangerous to life in ordinary course of nature and were caused by a firearm firing cartridges containing lead pellets from distant range. Death was due to hemorrhage and shock. Time since death was within 12 to 18 hours from the time of postmortem examination in the department.
2. Right side of cococola coloured T. shirt worn by the deceased showed multiple perforations of about 1/8" diameter with evidence of burning body cloths are soaked with blood. Multiple rounded lacerated punctured wound about 50 in number and measuring 1/8" diameter was found over right chest wall dispersed on 8" diameter area. These wounds were communicating through a track across the right chest wall and abdominal cavity piercing right lung and antero superior surface of the liver. Tissues in and around the whole track was grossly lacerated and infiltrated with blood and blood clots. Right chest cavity and abdominal cavities are full of fluid blood. On cleansing nine spherical lead pellets were recovered from right lung. These recovered pellets were sealed in a separate vial properly labeled, sealed and handed over to accompanying chaukidar for onward transmission to the I.O. of the case. One lacerated wound ¼" x ¼" x 1/4" was found over lower lip and was covered with blood clots. Underlying soft tissues were Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 59/99 bruised. This was simple injury caused by hard and blunt trauma. On dissection both sides of the heart were empty, left lung, spleen and both kidneys are pale. Stomach contained 50 ml pasty food material with pale gastric mucosa. Bladder contained 200 ml of urine. Brain and its meninges were pale. Above noted injuries over right chest wall are antemortem, dangerous to life in ordinary course of nature and were caused by a firearm cartridges containing lead pellets - Death was due to hemorrhage and shock. Time since death was within 12 to 18 hours from the time of postmortem examination in the department."
65. I have also perused the postmortem reports (Exhibit- 2 and 3). Perusal of the same would show that it has been prepared on 25.10.2015. The body was received at 10:30 AM on 25.10.2015 and the postmortem commenced at 12:00 noon on 25.10.2015 but in place of case number, it is the challan number 150747 dated 25.10.2015 mentioned in Exhibit-2 whereas in Exhibit-3 it is challan number 150747 dated 24.10.2015. (It seems that in Exhibit-3, the date of challan has been wrongly mentioned as '24' instead of '25'). The evidence of the Doctor (PW-6) leads nowhere. Neither the nature of weapon nor the number of shots fired at the deceased have been stated by PW-6. The prosecution did not try to examine PW-6 in course of his examination-in-chief on these vital aspects of the matter.
66. It is evident from the postmortem report that even as the FIR in this case has been shown registered on 24.10.2015 at Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 60/99 11:00 PM while issuing challan for postmortem of the dead bodies, on the next day, the FIR number with date was not provided to the Doctor (PW-6). This has to be considered keeping in mind the case of the defence that FIR has been antedated and ante-timed and the other circumstances which have been discussed hereinabove. Non- mentioning of the case number while issuing challan for postmortem of the dead body only strengthens the case of the defence that the FIR was ante-timed. It is to be remembered that PW-5 has stated in his deposition that on 24.10.2015 twice his statements were recorded and again on 25.10.2015 at 1 o'clock in night his statements were recorded, but the materials on the record would not show that the statements of PW-5 were recorded thrice by Police. When was one of the statements made and why the same has been suppressed remained a mystery. Even PW-4 has stated that Police had recorded his statement on the date of occurrence in his house but on record prosecution has failed to show that who was the police officer who had visited the house of PW-4 and had recorded his statement? Why that statement has been suppressed? So far as I.O. (PW-9) is concerned, he has categorically stated that he never visited the house of PW-4.
67. Dr. Vivekanand Jha (PW-7) was posted as a Medical Officer at Jale Referral Hospital and on 25.10.2015 at about 12:30 Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 61/99 am (night hours), he had examined Mirza Abdul Razique Beg (PW-5) and Sahab @ Shannu (PW-4). He found one lacerated wound over scalp right side of vertex 3" x 1/2" x 1/4" on the body of PW-5 which was caused by hard blunt object and it was simple in nature. He proved the injury report of PW-5 as Exhibit-4. The injury of PW-4 is a lacerated wound over forehead 2" x 1/4" x 1/4" and the same has been caused by hard blunt object which is simple in nature. PW-7 has stated that he was the only Doctor on emergency duty in the hospital in the night of 24.10.2015. He has stated that he had not admitted PW-4 in the hospital but subsequently he has stated that on 24.10.2015 from 8 o'clock to 25.10.2015 morning at 8:00 AM, PW-4 was admitted. Apparently, this statement of PW-7 is not reliable because PW-4 has himself stated that he was taken to hospital by Police at 11:00 PM and he had come back at 12 o'clock in night from the Police Station. Therefore, it is not his statement that he was admitted in the hospital. PW-7 has stated that he cannot say the entry number of the register with regard to PW-4. He has also not mentioned the registration number of PW-5 though he states that he had seen PW- 5 on 25.10.2015 at 12:30 in night. He has stated that he had found only one injury on PW-4 but he had recorded the width, depth and length of the injury on estimation basis. No X-ray was done. He Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 62/99 has stated that if any person would assault someone by a 12 mm to 14 mm rod with full force, the said person would suffer grievous injury. As regards PW-5, the Doctor has stated that he had found only one injury on PW-5 and he had not found the said injury on the middle of the head of PW-5. In paragraph '10' again he has specifically stated that he had not found any other injury on PW-5. It is important to note that in paragraph '21' this witness has stated that the injury of both the injured were simple and the injuries of both the injured could have been manufactured. In paragraph '25', he has stated that he had not seen blood oozing out from the injury of both the injured and in paragraph '26', PW-7 has stated that the injury of both the injured may be self-manufactured, PW-7 has stated in paragraph '28' that when he had inspected the injuries of both the injured, there was no bandage (patti) on the head of both the injured.
68. While discussing medical evidence versus ocular evidence, the Hon'ble Supreme Court has held in the case of Ram Narain Singh Vs. State of Punjab reported in (1975) 4 SCC 497 that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, it amounts to a fundamental defect in the Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 63/99 prosecution case and unless reasonably explained it is sufficient to discredit the entire case.
69. In Abdul Sayeed vs. State of Madhya Pradesh reported in (2010) 10 SCC 259, the Hon'ble Supreme Court has observed in paragraph '39' as under:-
"Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved."
70. From the deposition of PW-7 it would appear that there is a huge difference between the statement of PW-4 and PW- 5 as regards their injuries on the one hand and the evidence of the Doctor (PW-7). On the other hand, while PW-4 and PW-5 have stated in course of trial that they were repeatedly assaulted by all the accused persons armed with lathi-danda and it is stated that Shamsheer and Tabrez had assaulted PW-4 and PW-5 respectively by rod and it has come through the mouth of the witnesses that they were assaulted by a rod of 12 mm to 14 mm, the evidence of Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 64/99 PW-7 that there was no other injury to both the injured, they were not bleeding and they had no bandage/patti on their head and further the kind of injuries may be self-caused/manufactured would lead this Court to disbelieve the evidence of PW-4 and PW- 5 that they were repeatedly assaulted by all the accused persons and that Shamsheer and Tabrez assaulted PW-4 and PW-5 by a rod of 12 mm to 14 mm.
71. It appears at this stage that even as PW-4 and PW-5 are injured witnesses, their credibility is shaken, they have indulged in making out a different story of assault by the accused persons, the injury reports and evidence of PW-7 completely rule out the manner of assault as claimed by PW-4 and PW-5. The Doctor (PW-7) is also a prosecution witness, he has not been declared hostile, therefore, there is no reason to disbelieve him.
72. It has come in the evidence of I.O. (PW-9) that he reached village at 11:45 PM (night), therefore, it may be safely concluded that while Raj Kumar Rai, ASI (not examined) has recorded the fardbeyan at 10:00 pm and he is said to have prepared the requisitions referring both the injured to the hospital, the fact is that for next two hours approximately, the injured were not sent to the Referral Hospital. It has been noticed in the evidence of PW-7 that he had seen PW-5 at 12:30 AM (night) on 25.10.2015. It is Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 65/99 obvious from these circumstances, that neither PW-4 nor PW-5 had suffered any significant injury so as to get treated immediately. They had not even chosen to go to any Doctor in the village though there were Doctors present in Village-Garri.
73. I, would take a view that any conviction based on the testimonies of PW-4 and PW-5 without there being any corroboration from any independent material would not be safe in the present case.
74. Contrary to the claim of the prosecution witness nos. 1, 2 and 3 that they had given their statements to the I.O. on 25.10.2015 at 9:00 am at the place of occurrence, the I.O. (PW-9) has stated in his cross-examination that on 25.10.2015, he had gone to Village-Garri at 12:00 noon and prior to that, he had not done investigation and he had not recorded the statement of Mirza Iftekar Beg (PW-1) or Modassar Beg @ Vicky (PW-2) at that time. In paragraph '105', PW-9 has stated that Modassar Beg @ Vicky had not made statement on 25.10.2015 that on 24.10.2015 at 7:00 PM when he was going to Badhai Tola and reached at Neem Chowk on the road leading to Jogiyara, he reached there on hearing hulla and had seen on reaching in front of the house of Achchan Beg that Tabrej, Achchan Beg, Shamseer Beg, Imam Beg, Shauqat Beg, Ranu Beg, Guddu Beg all were armed with Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 66/99 lathi-danda and rod, accused Fahad Beg was not armed with lathi but was present there and all were assaulting Shannu by surrounding him and Shamsheer Beg assaulted Shannu by rod on his head as a result whereof Shannu started bleeding. PW-9 has not supported the statement of PW-1, PW-2, PW-3, PW-4 and PW-5 and this is evident from his statements recorded in paragraph '104', '108', '110', '112', '118', '119' and '127' of his deposition. In paragraph '119' of his statement, PW-9 has in fact contradicted the claim of Iftikar Beg (PW-1), (PW-9) has contradicted PW-2 in paragraph '104', PW-3 in paragraph '108', '110' and '112', PW-4 in paragraph '118' and also contradicted PW-5 in paragraph '127' of his deposition.
75. From the evidence of PW-9 it would appear that both the injured witnesses namely Shannu (PW-4) and Abdul Razique Beg (PW-5) have improved upon their earlier version before the I.O. and they have tried to fill up the omissions in their previous statements which if taken into consideration, would amount to contradictions in the statements of PW-4 and PW-5.
76. Janardhan Singh who has deposed as I.O. (PW-9) was also the Officer-in-Charge of Jale Police Station on 24.10.2015. In his examination-in-chief, he has stated that he had gone on Muharram duty and the charge of the Police Station was given to Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 67/99 SI Subodh Kumar Singh. He had received information on 24.10.2015 that in Village-Garri, firing is taking place between two groups and some persons have got injured. He informed the Officer-in-Charge of that time Subodh Kumar Singh and for verification of this information, SI Subodh Kumar Singh, SI Amrendra Kumar proceeded with armed forces to Village-Garri after recording Sanha No. 560 (Exhibit-6). Although, Exhibit-6 has been admitted with objection but it appears that PW-9 has proved Exhibit-6 by producing the station diary and has identified the writing of Munsi Avdhesh Rai. PW-9 had registered the formal FIR on the basis of the fardbeyan and the formal FIR was in the writing of illiterate Constable Avdhesh Rai on which PW-9 had put his signature. The formal FIR has been marked Exhibit-8 and the endorsement made on the fardbeyan has been marked Exhibit-9.
According to PW-9, he took charge of the investigation and proceeded to Village-Garri, he reached at 11:45 pm (night) and in the house of PW-5, he recorded further statement/restatement of PW-5. He also recorded the statement of PW-4 and and sent both the injured to Jale Referral-cum-Primary Health Center. There were several persons but PW-9 says he did not take statement of any other person or the family members of PW-5.
Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 68/99 PW-9 has stated that he went to the place of occurrence but because it was night hour and there were darkness, he could not conduct inspection of the place of occurrence. The fact that at the place of occurrence there were darkness stands established from the evidence of PW-2, PW-3 and PW-4 also. PW-3 has stated that the village transformer was out of order for last three years. The prosecution has not brought any evidence to show that prior to visit of PW-9, any other Police Officer had visited the place of occurrence. There is a complete silence about visit of Subodh Kumar Singh, ASI who had left for village-Garri for verification of information at 7:30 PM. It creates doubt as to whether the prosecution is suppressing the first version of the occurrence received by the said ASI. He has not been examined in this case. It is further evident from the statement of PW-9 that there were darkness at the place of occurrence and it could not have been inspected during night hours. Although, PW-9 states that he had posted Chowkidar Dinesh Paswan at the place of occurrence but neither any kaman was issued to the Chowkidar nor the said Chowkidar has been examined. Raj Kumar Rai, ASI who is said to have recorded the fardbeyan of PW-5 has not been examined by the I.O. and in course of trial. There is nothing to show that the Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 69/99 place of occurrence which is said to be a road was cordoned off to protect the sign of firing and violence.
According to PW-9, he visited the place of occurrence on 25.10.2015 at 6:00 AM. According to him, in front of the house of accused Achchan Beg, is Jogiyara-Kamtaul Pakki Road and from this place firing was done. Thus, according to PW-9 firing was done from pakki road. He is not saying that firing was done from the gate of the house of Achchan Beg. The place of occurrence is in the middle of the village and according to PW-9, at a distance of 50 yards north-west from the place of occurrence on the side of the road, the Masjid is situated whereas PW-5 has stated that the house of Achchan Beg is situated just adjacent south to the Masjid. He has given the boundary of the place of occurrence as follows - North-Chamcham Beg house, south-Md. Manuel Haque House and ration shop, east-pakka house of Achchan Beg @ Shamim Beg and west-house of Safdar Imam Beg and Matin Beg. He had received the inquest report of both the deceased which was prepared by ASI Haridwar Pandey. PW-9 produced the inquest reports which were marked Exhibit-9. On perusal of the inquest report, it would appear that at the top of the inquest report there is an endorsement as follows - "QnZc;ku&fejtk eqnn~"kj csx mez 30 o'kZ firk& fejtk etg:y bLyke lk0 xjjh Fkkuk tkys" On both the inquest Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 70/99 reports this endorsement is present and it is in pen of Haridwar Pandey, ASI and it is part of the inquest report which were prepared by Haridwar Pandey, ASI on 24.10.2015 at 10:30 PM and 10:50 PM. From the endorsement of the aforesaid time present on both the inquest reports, I get an impression that Mirza Modassar Beg @ Vicky (PW-2) who has stated that he had gone in the vehicle with Faizullah and Abdullah to Jale Referral Hospital and then he had also gone to DMCH, though, on a motorcycle with a co-villager and was present there had made his fardbeyan to Haridwar Pandey, that is why instead of giving the case number on the inquest report, Haridwar Pandey, ASI made an endorsement showing fardbeyan of PW-2 but this fardbeyan has not seen light of the day. I am of the view that non-examination of Haridwar Pandey, ASI has caused prejudice to the defence. Further, I find that there were two witnesses to the inquest report, namely, Mirza Sadab who is own brother of PW-4 and Naushad Beg a co-villager but both the inquest report witnesses were not produced in course of trial. Absence of both the inquest report witnesses as well as the ASI Haridwar Pandey has definitely caused prejudice to the defence inasmuch as the circumstances under which Haridwar Pandey, ASI had recorded on the inquest reports about the fardbeyan of PW-2 could not be elicited in course of trial. ASI Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 71/99 Subodh Kumar Singh, Raj Kumar Rai, ASI and the Chowkidar have not been examined which has caused serious prejudice to the defence. Subodh Kumar Singh, ASI could have disclosed the first version of the villagers and would have thrown light on the information as to group clash and firing from both sides and the situation at the spot.
PW-9 has stated that in paragraph '40' of his statement that he reached Village-Garri at 11:45 PM and in paragraph '41' he states that he had recorded the statement of Shannu (PW-4) in the house of Razique Beg (PW-5). At this stage, when the evidence of PW-4 is looked into it would be found that he claims that after occurrence he left the place and straightaway went to his house and remained there till 11 o'clock when Police came and took him in the jeep and then he was taken to the Referral Hospital. PW-4 has claimed that his statement was recorded in his house, he had not gone to the house of PW-5. PW-9 has stated in paragraph '46' that he had gone to the place of occurrence after 00.15 AM (night) but it is not mentioned in the diary and it is also not mentioned as to who had shown the place of occurrence. He had not recorded the statement of the persons or the family members of that person who had their houses in the boundary of the place of occurrence Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 72/99 (paragraph '49'). He had also not interrogated the Doctors who conducted the postmortem on the dead bodies (paragraph '90').
Regarding the seizure of gun, although PW-9 has himself proved the seizure list (Exhibit-15) but the seizure list witnesses, namely, Mirza Shadab Beg and Nasreen Imam have been withheld by the prosecution. These witnesses were material witnesses to throw light on the circumstances leading to seizure of the gun. The gun was in two parts kept in a bag but there is no seizure of bag. It was suggested by defence that the signature of Nasreen Imam has been forged. The gun was not produced before the Magistrate after seizure. PW-9 had not verified the license of Achchan Beg from Aurangabad from where it was issued and no connection between the license of Achchan Beg and the seized gun has been established by the prosecution. Even the photocopy of the license said to be in the name of Achchan Beg has not been brought on record by way of secondary evidence. The gun was though sent for examination to the Sergeant to find out its capability to fire but it is not known why it was not sent to the FSL and ballistic expert to know as to whether any firing had taken place from the said gun. Although, the pellets were recovered by the Doctors who conducted the autopsy and the same were sent to the Police Station through the Constable but there was no determination as whether Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 73/99 ammunition is or is not associated with a specific firearm. It is to be remembered that the Doctor (PW-6) has stated in his cross- examination that he had not mentioned as to how many shots were fired at, therefore, the claim of PW-5 that he heard three rounds of firing could not be tested by any means of evidence. Prosecution has failed to connect the seized gun with the occurrence in the present case.
77. In paragraph '127' of his deposition, PW-9 has stated that neither in the fardbeyan nor in his statement Abdul Razique Beg (PW-5) had stated as to whose bullet hit Faizullah and Abdullah. He had also not stated that on which part of the body Faizullah and Abdullah were shot at. According to PW-9, in paragraph '125' of his deposition PW-5 had neither in his fardbeyan nor in his statement stated that Achchan had repeatedly fired twice which hit Faizullah on his head and chest and that Faizullah fell down in front of house of Phool Babu and when Abdullah came to save Faizullah then Tabrej fired from a gun which hit Abdullah on his chest and Abdullah fell down near the electricity pole near the Masjid and all the accused persons fled away in the house of Achchan Beg and thereafter a vehicle came on which the villagers took Faizullah and Abdullah to Jale Hospital. From the evidence it appears that the electricity pole is at Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 74/99 a distance of 25 yards from the Masjid, the deceased were fired at from a distance of 20-25 and 30-35 yards and PW-2 has stated that firing was done from Masjid.
78. Brajesh Kumar Pandey (PW-8) is a formal witness who had brought the material exhibit in the court. He has stated that the material exhibit was not seized in his presence, it has been given to him by the Officer-in-Charge and the material exhibit is sealed but he cannot say what it is. From the evidence of PW-8, it does not appear that he has proved the signature of the Officer who had sealed the material exhibit and the seal was not opened in his presence.
79. On behalf of the defence four witnesses have deposed. Mirza Mohammed Raza Beg (DW-1) has deposed on behalf of Atiqure Rahman @ Guddu and Fahad Raza Beg. He has proved a kebala which is marked Exhibit-A. He had purchased a piece of land on 22.11.2011 in the name of his son Mohsin Raza Beg from one Amirun Nisa, wife of Late Abid Beg. The thumb impression of Amirun Nisa was identified by Atiqure Raza Beg and Fahad Raza Beg. It is his statement that after taking kebala, he came into possession of the land under the sale deed but thereafter Jiaul Haque Beg, Rabbani Beg, Rajik Beg, Iftekar Beg all wanted to dispossess him from the land which was being objected to by Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 75/99 his son-in-law Atiqure Jama Beg @ Guddu and his son Fahad Raza Beg. It is for this reason both of them have been falsely implicated in this case by Rajik Beg. In his cross-examination, DW-1 has stated that his son, in whose name the land was purchased, is not an accused and Razik Beg had not objected to the mutation of the land. In paragraph '8' of his deposition, DW-1 has stated that he had not made this statement which he had given in the court before Darogaji. On going through the evidence of DW- 1, I am of the considered opinion that DW-1 was not examined by the I.O. in course of investigation and he had deposed for the first time in court. His evidence is not worth giving much evidentiary value.
80. Vinit Kumar Sinha (DW-2) was the Block Development Officer of Pupri Block on 24.10.2015. Pupri Block fell in Sursand Assembly Constituency and according to him, the assembly election of this constituency was held on 01.11.2015. In connection with the said election, the accused Mirza Shamim Anwar Beg was on duty as In-charge of the Vehicle Cell in the Block. At that time, he was posted as Nazir in Pupri Block. DW-2 has issued a certificate (Exhibit-C with objection) to say that Achchan Beg @ Mirza Shamim Anwar Beg was working in the Block on 24.10.2015, 25.10.2015 and 23.10.2015. DW-2 has also Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 76/99 proved the letter written by him to Imtiyaz Ahmad Karimi, Director, Urdu Directorate, Cabinet Secretariat, Government of Bihar which has been marked Exhibit-'D'. He denied the suggestion of the prosecution that at the instance of Mirza Shamim Anwar Beg he had issued wrong certificate. This witness has stated that on 24.10.2015 Mirza Shamim Anwar Beg was present in the Vehicle Cell.
81. Lavkesh Kumar (DW-3) was posted as Anchaladhikari in Pupri Block from 12.05.2015. He has stated that at the relevant time, the Officer-in-Charge of Pupri Police Station was Sri Vivek Jaswal. Pupri Block is also Pupri Sub-Division which falls in 26, Sursand Assembly Constituency. DW-3 has stated that the election work was going on and in the Vehicle Cell also the work were being done. The Vehicle Cell was being looked after by the B.D.O., Block Agriculture Officer and Nazir Mirza Shamim Anwar Beg and Clerks. Officer-in-Charge also used to come and go. This witness has proved his certificate issued on 02.11.2015 and marked Exhibit-C/1 on behalf of the defence. He also proved the attendance register showing attendance of Mirza Shamim Anwar Beg and other employees on 24.10.2015. This has been verified by the Sub-Divisional Officer, Pupri. He has stated that because of the election, work was being done on Muharram Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 77/99 Day also which was otherwise a holiday. DW-3 has proved the signature of the S.D.M. on the attendance register which has been marked Exhibit-A. He has stated that on 24.10.2015, Mirza Shamim Anwar Beg was engaged in the Vehicle Cell of Pupri Block from 6:00 AM to 8:00 PM. He has stated that he issued the certificate in official capacity. DW-3 denied the suggestion that at the instance of Mirza Shamim Anwar Beg he had issued a wrong certificate. He denied the suggestion that the documents filed by him are false and fabricated and have been ante-timed to show the presence of Mirza Shamim Anwar Beg even as he was on leave on account of Muharram Holiday. On perusal of the evidence of DW- 3, it appears that his statements about the engagement of Achchan Beg @ Mirza Shamim Anwar Beg in the Vehicle Cell of the Block and that there was an election of Sursand Assembly constituency fixed on 01.011.2015 have not been contested by the prosecution. It is not contested that Achchan Beg @ Mirza Samim Anwar Beg was posted as Nazir in Pupri Block. Even as I find that the learned trial court has disbelieved the certificate (Exhibit-C/1) and the attendance register (Exhibit-E). The evidence of DW-3 cannot be wholly rejected. DW-3 happened to be the Circle Officer of the Pupri Block and his evidence would be required to be considered Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 78/99 giving appropriate weightage keeping in view the evidentiary value of the prosecution evidences on the record.
82. Vivek Kumar Jaswal (DW-4) was the Officer-in- Charge of Pupri Police Station posted from 05.08.2015 to 22.02.2017. He has also stated that Mirza Shamim Anwar Beg was involved in the election process and he was on duty in Vehicle Cell. DW-4 has also issued a certificate which has been marked as Exhibit-C/2. He has stated that he had come to Pupri Block on 24.10.2015 during daytime at 01:30 PM, again he had gone there at about 6-6:30 PM in evening and had stayed there till 8:30 PM. DW-4 has stated that Mirza Shamim Anwar Beg was present in Pupri Block at the time of his presence. He has stated in paragraph '7' of his cross-examination that whatever statements he had made in the court, he had given the same statement to the I.O. He has reiterated that he had made statement before the I.O. that Shamim Anwar Beg was present in the Vehicle Cell of Pupri Block from 6:00 PM to 8:00 PM. He denied the suggestion that he had given wrong statement. At this stage, this Court finds that when the I.O. (PW-9) was being examined in course of trial, he has stated in paragraph '129' that vide Memo No. 851 dated 08.12.2015, he was directed by the Chief Judicial Magistrate, Darbhanga to inquire into the plea of allibi of Mirza Shamim Anwar Beg and submit a Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 79/99 report. PW-9 has proved the report submitted by him in this regard which has been proved as Exhibit-'A' on behalf of the defence. On perusal of Exhibit-'A', it is found that the I.O. had apart from taking statement of the B.D.O., the CO and the Officer-in-Charge of Pupri Police Station, obtained the tower location of the two mobile phones of Achchan Beg @ Shamim Anwar Beg. In his report (Exhibit-A), the I.O. has stated that near the place of occurrence, there is a Masjid in which prior to the Ajaan firing had taken place. He had inquired from the Muazzim of the Masjid and as regards the tower location, he found that the tower location of the mobile phone of Mirza Shamim Anwar Beg would show that he was in his Village-Garri at about 11:39 hours, at about 3:00 PM he went towards Pupri, therefore, the I.O. has concluded in his report that the accused Achchan Beg @ Shamim Anwar Beg was in his village on the date of occurrence from 11:30 AM to 3:00 PM, thereafter his tower location is of Pupri and again it is there up to 6:56:31 whereafter the location of his both mobile phones is of Village-Makaria which is at a distance of six kilometre from the place of occurrence. At 7:29:08 PM, the tower location is of Jale and again at 7:51:45 PM it shows Janakpur Road, Pupri. On perusal of Exhibit-A proved by PW-9, it appears that the information with regard to the tower location of the mobile phones Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 80/99 of Achchan Beg @ Shamim Anwar Beg is an important piece of evidence which supports his defence that he was not present in the village at the time of occurrence which took place at 7:00 pm. PW-9 is a prosecution witness and Exhibit-'A' has been marked at the instance of the defence. This part of the evidence of PW-9 shows that location of Achchan Beg @ Shamshir Anwar Beg at around 7:00 PM is at Pupri and Makaria.
83. On a careful scrutiny of the evidences on the record, I find that in this case the following facts are emerging from the deposition of the prosecution witnesses and the documentary evidences brought on record by the prosecution:-
(i) The genesis of the occurrence which took place at 7:00 pm on 24.10.2015 in the incident which took place in the morning at 9:00 AM. The morning incident had taken place when PW-4 was abused on his mobile by Md. Chand. At that time, the matter was pacified and it is stated that PW-5 had also went to pacify the accused persons but there he was threatened by Tabrez Beg and Achchan beg @ Mirza Shamim Anwar Beg that in future if anyone will come to intervene, he would not be spared.
(ii) As regards the second occurrence which took place at 7:00 PM, although it is stated that it happened when PW-4 was going to bring a cold drink for PW-5 who had visited his house but Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 81/99 the materials on the record would show that the story of the PW-4 going towards the house of Achchan Beg for purpose of purchasing a cold drink is highly doubtful and is not proved from the evidences on the record.
(iii) It is stated in the fardbeyan of PW-5 that on hearing hulla he reached the place of occurrence and when he reached in front of the house of Achchan Beg he found that the accused persons had surrounded PW-4, they were abusing him and beating him. His two sons Faizullah Beg and Abdullah Beg both had already arrived on getting information about the assault being given to PW-4. At this stage, PW-5 does not say that the accused persons were armed with lathi-danda and rod. He does not say that Shamsheer Anwar Beg assaulted PW-4 on his head by rod. The I.O. has also stated that neither in his fardbeyan nor in his statement before the I.O. PW-5 had stated that Shamsheer had assaulted PW-4 on his head by a rod but in course of his examination-in-chief in trial PW-5 has developed his statement and made specific allegation that the accused persons were armed with lathi-danda and rod and Shamsheer assaulted PW-4 by rod.
PW-5 also changed the sequence of event in his examination-in- chief with regard to the occurrence in which his two sons came to intervene.
Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 82/99
(iv) In this case, it appears from the evidences on record that the prosecution has suppressed the first version of the occurrence which took place at 7:00 PM on the road passing north to south. The sanha entry (Exhibit-6) has been brought on record by prosecution. It shows that Subodh Kumar ASI and Amarendra Kumar ASI with police force had left for the place of occurrence to verify the information about the clash between two parties and the firings taking place in village Garri. What happened after his reaching in the village has been totally suppressed. Under what circumstances Raj Kumar Rai and the Chowkidar went to the house of PW-5, at what time they visited Village-Garri and after how much delay they went to the house of PW-5 to record his fardbeyan are not known. The prosecution has remained silent on these aspects. The statement of PW-5 has been shown recorded by Raj Kumar Rai, ASI at 10:00 PM but the fardbeyan was sent to the Police Station at 11:00 PM through the Chowkidar. Neither the Chowkidar nor any of the prosecution witnesses or member of the family is a witness to the fardbeyan. Neither Raj Kumar Rai, ASI nor the Chowkidar has been examined.
84. The fardbeyan conspicuously does not mention name of any witness to the occurrence. PW-1, PW-2 and PW-3 have been introduced as an eyewitness to the occurrence only on Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 83/99 the next date i.e. 25.10.2015 in the afternoon when PW-9 is said to have come to the village and recorded their statement.
85. On a careful perusal of the statement of PW-4 and PW-5 who are the two injured witnesses in this case on behalf of the prosecution it would appear that in course of trial they have improved upon their earlier version and have tried to implicate all the accused persons by saying that all of them had assaulted PW-4 and PW-5 by lathi-danda and rod. However, their conduct in not getting treated by any Doctor in the village and not going to Jale Hospital situated at a distance of 2-3 kilometre only creates doubt on their version that they were assaulted by all the accused persons repeatedly by lathi-danda and rod. The injury reports of PW-4 and PW-5 and the evidence of the Doctor of Jale Hospital (PW-7) completely rules out the manner of occurrence. PW-7 found only one simple injury on PW-4 and PW-5, he did not find any blood oozing out of the injury, there was no dry blood even and both were not having any bandage (patti) on their injury when they were examined by PW-7 in the hospital after about five hours of occurrence. PW-7 has gone to the extent of saying that the kind of injury suffered by PW-4 and PW-5 on their head may be self- manufactured. If an iron rod of 12 mm to 14 mm would have been used to assault PW-4 and PW-5, it would have caused grievous Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 84/99 injuries. On the face of the evidence of PW-7, the prosecution story that Shamsheer had assaulted PW-4 by iron rod and Tabrej had assaulted PW-5 by iron rod cannot be believed. Similarly, the prosecution witnesses have developed a story that all the other accused persons were armed with lathi and danda and they had also assaulted PW-4 and PW-5 repeatedly but PW-7 has categorically stated that he did not find any other injury on the body of PW-4 and PW-5, therefore, I am of the opinion that PW-4 and PW-5 only tried to falsely implicate all the accused persons by attributing them lathi, danda and rod in their hand and by saying that they had repeatedly assaulted them. This indicates that PW-4 and PW-5 are though injured witnesses but they have indulged in implicating the accused persons with an afterthought, therefore, their evidences alone cannot be wholly relied upon as star witnesses of this case. There is no reason why evidence of PW-7 be discarded as he is one of the prosecution witnesses and has not been declared hostile.
86. In this case, PW-1, PW-2 and PW-3 have been brought as eyewitnesses to the occurrence but a threadbare scrutiny of their evidences have shown that they are not only closely related to PW-4 and PW-5, their own statements are vacillating and at some places contradicting. These witnesses are Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 85/99 not eyewitnesses to the entire occurrence which took place at 7:00 PM. The evidence of PW-2 that he had gone with the two injured (since deceased) on the vehicle to Jale Hospital from where they had been taken to DMCH by Police are reliable to that extent. The inquest reports prepared by Haridwar Pandey, ASI at DMCH shows an endorsement giving an impression that it refers to a 'fardbeyan' of PW-2 but this fardbeyan has been suppressed.
87. The inquest report witnesses, one of whom is the elder brother of PW-4, have been withheld and not examined in course of trial.
88. As regards the place of occurrence, the different prosecution witnesses have given the geographical description of the place of occurrence differently. I.O. (PW-9) has stated that he had conducted inspection of the place of occurrence only on next date because on the date of occurrence when he went to the place of occurrence it was night hour and there were darkness. The map of the place of occurrence has not been proved. According to him, in front of the house of accused Achchan Beg is Jogiyara Kamtaul Pakki Road and from this place firing was done. It is the case of PW-4 and PW-5 that Achchan Beg and Tabrez Beg went into their house and came out with gun in their hand and started firing but PW-9 has not said that the firing was done from the gate of the Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 86/99 house of Achchan Beg and Tabrez Beg, it has come that both are brothers and reside in the same house. PW-2 has gone on to say that firing took place from the Masjid which according to PW-9 is at a distance of 50 yards north-west from the place of occurrence on the side of the road. Evidence has also come that adjacent south to the Masjid, the house of Achchan Beg is situated. PW-9 has given the boundary of the place of occurrence and the house of Achchan Beg has been shown in the eastern side. The boundary of the place of occurrence as disclosed by PW-9 and other witnesses would show that it is surrounded by a number of houses of the co- villagers, it is in the middle of the village but the I.O. (PW-9) has not examined a single independent witness in this case even as the prosecution witnesses have stated that apart from the accused persons, 18-20 persons were present at the place of occurrence and within 50 yards from the place of occurrence, towards north-west side, the Masjid is situated where the Namaz time was fixed around 7:15 PM and large number of co-villagers had been present in and outside the Masjid. Annexure-A which is the report of PW-9 mentions that when PW-9 interacted with the Muazzim of the Masjid they told him about the firing taking place in the Masjid. The evidence on the record provides a possible story that at 7:00 PM on 24.10.2015 when PW-4, PW-5 and his two sons had gone Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 87/99 to Masjid for Namaz, there was a scuffle with some of the accused persons, it was not pre-meditated and planned planned because the accused persons were not armed with any lathi-danda and rod but in the spur of the moment, firing took place from the Masjid side in which the two sons of PW-5 were killed. Since the prosecution has failed to establish that the firing was done from the gate of the house of Achchan Beg, the prosecution story that Achchan Beg and Tabrez had brought gun from their house and fired thrice remains doubtful. The gun which was seized by PW-9 was not sent for ballistic examination and FSL report.
89. The postmortem reports of the deceased do not disclose the number of shots fired upon the deceased. The prosecution did not lead evidence through the Doctor (PW-6) to prove the manner of occurrence. The Doctor did not mention any would of entry in the postmortem reports of the deceased. He does not say whether Faizullah had received two shots as suggested by PW-5 in course of trial. PW-6 has stated that the firing took place from 1-2 feet whereas the prosecution witnesses have gone on to say that both the deceased were fired at from a distance of 20-25 feet and 30-35 feet respectively. The Masjid is situated at a distance of 50 yards from the place of occurrence, therefore, if the ocular evidences are believed, the possibility of firing taking place Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 88/99 from Masjid cannot be ruled out but the evidence of PW-6 saying that both the deceased were fired from a distance of 1-2 feet only would create difficulty in establishing the place from where the firing was done. Apparently, the prosecution witnesses including PW-4 and PW-5 are suppressing the true fact.
90. In evidence it has come that the father of PW-5 owned a gun. His father died in the year 2013 but when he was called upon to say as to where is that gun, PW-5 evaded the said question saying that he is not aware of the whereabouts of the gun. This answer of PW-5 would caste a doubt as to whether PW-5 is suppressing possession of a gun. He has neither proved that the gun is somewhere deposited in a licence gun house. He is only among his brothers who resides in the village, therefore, his being in possession of the gun of his father, as suggested by the defence in course of his cross- examination, is to be believed. In paragraph '9' of his evidence PW-5 has stated that he has three brothers, one of his brothers was residing in Saudi with his family and the another brother resides at Delhi, their family is not residing in the village. Under these circumstances, the statement of PW-5 that he does not know about the gun is nothing but an attempt to suppress his possession of the gun. This has to be seen with the information recorded in Exhibit-6 that there was a group clash in which firings were exchanged. PW-9 did not find any empty cartridge or fired cartridge on the road where the two deceased Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 89/99 were shot at would strengthen the belief of this Court that the group clash took place inside the Masjid, the firing took place from close vicinity, the darkness had already prevailed as stated by the witnesses and the electricity transformer was lying out of order, therefore there was no electricity on the pole near the Masjid on the road, therefore who fired from amongst the accused persons in the crowd could not be seen. PW-9 did not find any empty/fired cartridges on the road, no sign of firing has been noted by PW-9. In the fardbeyan PW-5 could not disclose that Achchan Beg fired twice which hit his son Faijullah on his head and chest and then Tabrez Beg fired on Abdullah which hit on his chest. In the cross-examination, the witnesses have stated about hearing of the sound of firing. Finding that the tendency of PW-4 and PW-5 is to implicate the accused persons by developing a subsequent story, I am of the opinion that their statement that Achchan Beg @ Shameem Anwar Beg and Tabrez Beg went into their house and came out with gun and fired thrice cannot be believed as it is. There is no evidence of firing from the gate of the house of Achchan Beg and Tabrez Beg. Moreover, the witnesses have stated that they had not seen loading the bullet then question arises as to how three firings were done at a time. No witness has stated that they were carrying two different guns, subsequently, PW-2 has developed a case that Imam Raza Beg had given his licensee gun to Tabrez Beg but nobody had seen it and in course of investigation, Imam Raza Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 90/99 Beg was not chargesheeted. There was an attempt by PW-4 and PW-5 in course of trial to implicate Imam Raza Beg also as an order giver but then no application was filed to summon him under Section 319 CrPC.
91. It has come in investigation that Achchan Beg @ Shamim Anwar Beg had a licencee gun which he had acquired during his posting at Aurangabad. No raid was conducted in his house immediately after the occurrence to seize the gun. In a very shoddy manner a Sanha was entered being Sanha No. 587 (Exhibit '14') wherein it has been stated that a secret information was received in the Police Station that a suspicious object is lying in the agriculture field of Ajam Beg who is father of Achchan Beg and Tabrez Beg, on this information, PW-9 went there on 16.03.2016 i.e. after about five months of the occurrence, seized the said object being a gun kept in two parts in a bag. A seizure list was prepared in which there are two seizure list witnesses including wife of Achchan Beg namely Nasreen Imam. None of the seizure list witnesses were produced and there is no seizure of the bag shown in the list, moreover, the gun was not produced before the learned Judicial Magistrate and it was kept in the Malkhana of the Police Station. Belatedly, PW-9 sent the said gun to the Sergeant for getting a report as to its firing capacity but no ballistic report was called for to find out as to whether any firing was done from the said gun and the Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 91/99 pellets recovered from the body of the deceased were from cartridge which could have been fired from the said gun. The I.O. says that he was given a photocopy of the licence of the gun but he could not verify the same from Aurangabad, it was not proved in trial and this Court finds that no connection between the said gun and the shot fired upon the deceased could be established by the prosecution. If Tabrez Beg fired from another gun, no clear statement has come about it and that gun could not be traced, therefore this is yet another loophole in the prosecution case as to whether Achchan Beg @ Shamim Anwar Beg and Tabrez Beg fired from the gun or it was only one of them who had fired twice from the double barrel gun or the firing was done from any other firearms weapon. This is stated in the light of the evidence of Doctor (PW-6) that in the postmortem report there is no mention that how many shots were fired upon the deceased. No wound of entry on the body of either of the deceased has been mentioned and there is nothing to suggest that Faizullah had suffered two shots fired by a gun.
92. In the case of Mohinder Singh vs. The State reported in AIR 1953 SC 415 their Lordships of the Hon'ble Supreme Court observed in paragraph '10' as under:-
"10. On a careful reading of the judgment under appeal, it appears that the learned Judges of the High Court strongly felt that they had no adequate explanation in the oral evidence before them for certain puzzling features of the injuries on Dalip Singh. This is exactly Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 92/99 what we also feel in this case, and it seems to us that the evidence which has been adduced falls short of proof in regard to a very material part of the prosecution case. In a case where death is due to injuries or wounds caused by a lethal weapon, it has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of that case. In the present case, it is doubtful whether the injuries which are attributed to the appellant were caused by a gun or by a rifle. Indeed, it seems more likely that they were caused by a rifle than by a gun, and yet the case for the prosecution is that the appellant was armed with a gun, and, in his examination, it was definitely put to him that he was armed with the gun P-
16. It is only by the evidence of a duly qualified expert that it could have been ascertained whether the injuries attributed to the appellant were caused by a gun or by a rifle and such evidence alone could settle the controversy as to whether they could possibly have been caused by a firearm being used at such a close range as is suggested in the evidence."
93. Again in the case of Prem Singh vs. Sukhdev Singh and Ors. reported in (2019) 9 SCC 683, the Hon'ble Supreme Court was dealing with a case in which the Doctor had recovered a bullet from inside the brain and 12 pellets in course of autopsy on the dead body. The eyewitnesses claimed that knife blows were given first by accused Sardul Singh but that was Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 93/99 falsified from the evidence of the Doctor. As regards prosecution case, four firearm shots hit the deceased but the Doctor found only two entry wounds. The medical evidences were falsifying the ocular evidences, a submission was made that the ocular evidence shall prevail over the medical evidence. The Hon'ble Supreme Court rejected the said contention and observed in paragraph '8' as under:-
"8. A number of authorities were cited to show that ocular evidence should be preferred to medical evidence. We are not referring to those, since in our view each case has to be decided in its own facts."
94. In the said case also the licensed firearms of the accused were seized but they were not sent to a ballistic expert. In paragraph '10' of its' judgment, this aspect of the matter has been taken note of.
"10. Another aspect is that though the licensed firearms of the accused were seized but they were not sent to a ballistic expert and there is no forensic evidence to show that these were the guns actually used during the occurrence"
95. Further, while disbelieving the eye-witnesses, the Hon'ble Supreme Court opined in paragraph '12' as under:-
"12. According to the two eyewitnesses PWs 1 and 2, all the four firearm shots hit the deceased on the head. According to the doctor there were only two entry wounds. This also belies the statement of the so-called eyewitnesses according to whom the accused gave four firearm injuries on the head of the deceased. The doctor was a prosecution witness and the prosecution cannot be heard to say that his Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 94/99 statement should not be relied upon. The prosecution did not pray that the doctor be declared a hostile witness. Therefore, we have to go by the statement of the medical expert."
96. Modi a Textbook of Medical Jurisprudence and Toxicology in Chapter 25 deals with the injuries by mechanical violence. Paragraph 25.7.1.1 deals with the distance of the firearms. The same is being reproduced hereunder for a ready reference:-
"25.7.1.1 Distance of the Firearm If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches around the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt/partially burnt grains of gunpowder or smokeless propellant powder. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a greyish or white deposit on the skin around the wound. If the area is photographed by infrared light, a smoke halo round the wound may be clearly noticed.
Blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol discharged within about two feet. In the absence of powder residue, no distinction can be made between one distant shot and another, as far as distance is concerned. Scorching in the case of the latter firearms is observed within a few inches, while some evidence of scorching in the case of shotguns may be found even at one to three feet. Wetting of the skin or clothes by rain reduces the scorching range. Blackening is not affected by wet surface although it can easily be Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 95/99 removed by a wet cloth. Blackening with a high power rifle can occur up to about one feet.
The effects produced by small shot fired from a shotgun vary according to the distance of the weapon from the body and choking device. A charge of small shot, fired very close to, or within a few inches, of the body enters in en mass like a single bullet making a large irregular wound with scorched and contused edges, and is followed by the gases of the discharge which greatly lacerate and rupture the deeper tissues. Particles of unburnt/partially burnt powder expelled from the weapon behind the missile are driven to some distance through the wound, and some of them are found embedded in the wound and the surrounding skin, which is also singed and blackened by the flame and smoke of combustion. The exit wound of a close range shot may show greater damage of tissues than the entrance wound, the margins are everted, but there is no evidence of blackening or singeing. At a distance of one to three feet, small shots make a single aperture with irregular and lacerated edges corresponding in size to the bore of the muzzle of the gun, as the shot enters enmass, but are scattered after entering the wound and cause great damage to the internal tissues. The skin surrounding the wounds is blackened, scorched and tattooed, with unburnt/partially burnt grains of powder. On the other hand, at a distance of six feet, the central aperture is surrounded by separate openings in an area of about two inches in diameter made by a few pellets of the sho, which spread out before reaching the mark. The skin surrounding the aperture may not be blackened or scorched, but is tattooed to some extent. At a distance of 12 feet, the charge of the shot spreads widely and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 96/99 depending on the choke, but without causing blackening, scorching or tattooing of the surrounding skin. At a distance of about 50 feet a pattern measuring about 14 inches from a fully choked barrel and about 28 inches from an unchoked barrel are produced and at about 100 feet the spread pattern on the target is about 30 inches from a fully choked barrel and 50 inches from an unchoked one. A rule of thumb in long usage is that the diameter of the spread of the shot pattern on the skin in inches is roughly equal to the distance from the muzzle in yards. The scattering of shot depends upon the choke of the gun, the charge of the powder and the distance of the gun from the body, the dispersion of pellets should however be studied with the gun and similar ammunition in question. Country made handguns with short barrels give unusually high dispersion-data (Forensic Science Laboratory, Bombay).
If an over short card wad is found in the wound, it indicates that the shot was fired from less than two yards, while its absence suggests more than two yards. In conclusion, it must be noted that a definite opinion about the distance from which a firearm was discharged should be given with caution. Firing experiments must be done with the weapon and cartridges (or loading) similar to those which are alleged to have been used. Fresh, cleaned, shaved pigskin from a slaughterhouse is recommended for a firing experiment."
97. Paragraph 25.7.1.7 discusses the firearms analysis, the method adopted which is again reproduced hereunder:-
"25.7.1.7 Firearms Analysis, The Method Adopted Infirearms analysis, examiners attempt to determine whether ammunition is or is not associated with a specific firearm based on toolmarks produced by guns on the Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 97/99 ammunition. (Briefly, gun barrels are typically rifled to improve accuracy, meaning that spiral grooves are cut into the barrel's interior to impart spin on the bullet. Random individual imperfections produced during the tool-cutting process and through "wear and tear" of the firearm leave toolmarks on bullets or casings as they exit the firearm. Parts of the firearm that come into contact with the cartridge case are machined by other methods. Of course, it is not necessary that toolmarks be unique for them to provide useful information whether a bullet may have been fired from a particular gun. However, it is essential that the accuracy of the method for comparing them be known based on empirical studies."
98. In the present case, while the prosecution witnesses have stated that the firing was done from a distance of 20-25 and 30- 35 yards, the Doctor (PW-6) has stated that the firing was made from 1-2 feet only. The firearm was not sent for ballistic report, therefore the ballistic experts could not take different measurements of the crime bullet and study their photograph, the marks of rifling and their characteristic individualities and compare these individual marks with test bullets fired from the questioned gun and opine whether a particular bullet was fired from a particular firearm or not. In fact, in this case, Police could not seize a suspected bullet/cartridge. The Doctor has not recovered any bullet stuck inside the body. The postmortem reports (Exhibit '2' and '3') are completely inconclusive to take a view as to how many shots were suffered by the deceased.
99. As recorded hereinabove, for various reasons, this Court is of the view that the prosecution has not come out with the Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 98/99 true story of the occurrence, it has suppressed the initial version of the occurrence which took place at 7:00 PM, even the postmortem reports which show that the dead body was received for postmortem on 25.10.2015 at 10:30 AM does not contain the case number of the Jale Police Station which indicates that till that time, the FIR was not registered, therefore, the case of the defence that it is ante-dated and ante-timed seems more probable and cannot be ruled out.
100. The learned Senior counsel for the informant has taken a stand to the extent that according to him, all other accused persons except Achchan Beg, Tabrez Beg and Ranu Beg could not have been convicted and sentenced for the murder of two sons of the informant with the aid of Section 149 CrPC because the firing took place in course of a scuffle, it was in spur of moment and it cannot be said to have been done with a pre-meditation of mind.
101. In ultimate analysis, this Court is of the considered opinion that the prosecution has failed to establish the guilt of the appellants beyond all reasonable doubts. It would not be safe to convict them for the charges framed against them. They are entitled to get benefit of doubt. Accordingly, this Court acquits the appellants from the charges. The impugned judgment and order of the trial court is set aside. The appellant Achchan Beg @ Mirza Shamim Anwar Beg @ Shamim Anwar Beg and Tabrez Beg @ Mirza Tabrez Anwar Beg who are appellant nos. 1 and 3 respectively in Criminal Appeal Patna High Court CR. APP (DB) No.1466 of 2019 dt.15-07-2024 99/99 (DB) No. 1466 of 2019 are in jail so they will be released forthwith, if not wanted in any other case. The appellant Shamsheer Beg @ Shamsheer Anwar Beg in Criminal Appeal (DB) No. 1466 of 2019, Mirza Atiquer Beg @ Mirza Atiqurzaman Beg @ Mirza Atique Baig @ Atiqur Baig @ Guddu, Ranu Beg @ Shafquat Imam Beg and Fahad Beg @ Fahad Raza Beg @ Fahad who are the appellants in other three appeals respectively are on bail. They are discharged from the liability of their bail bonds.
102. These appeals are allowed.
(Rajeev Ranjan Prasad, J) Shailendra Singh, J :- I agree (Shailendra Singh, J) Rishi/Siwani/ AFR/NAFR CAV DATE 07.05.2024 Uploading Date 15.07.2024 Transmission Date 15.07.2024