Patna High Court
Ramashraya Singh And Ors vs State Of Bihar on 21 October, 2019
Equivalent citations: AIRONLINE 2019 PAT 1741, (2019) 4 PAT LJR 1107
Author: Mohit Kumar Shah
Bench: Rakesh Kumar, Mohit Kumar Shah
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.326 of 1993
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1. Ramashraya Singh son of Prayag Singh, resident of Village Mahaicha, P.S.
Uchakagaon, District- Gopalganj.
2. Amod Singh son of Harihar Singh, resident of Village Mahaicha, P.S.
Uchakagaon, District- Gopalganj..
3. Satya Narain Awadhiya, son of Nand Kumar Singh, resident of Village-
Itwan, P.S.-Uchakagaon District- Gopalganj
4. Binay Kumar son of Nand Kishore Prasad, residents of village Mahaicha,
P.S. Uchkagaon, District Gopalganj.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellants No.1 & 2 : Mr.Yogendra Prasad Sinha, Adv.
For No.3 : Mr. Divya Verma, Amicus curiae
For the Respondent : Mr.Ajay Mishra, APP
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)
Date : 21-10-2019
The present Appeal has been filed under Section
374(2) of the Code of Criminal Procedure, 1973 against the
judgment of conviction and sentence dated 24.06.1993 and
26.06.1993respectively, passed in Sessions Trial No. 253 of 1983 arising out of Uchkagaon P.S. Case No. 6 of 1980 dated 22.06.1980 registered for the offence under Sections 147/ 148/ 149/ 307/302 of the Indian Penal Code and Section 27 of the Arms Act, passed by the learned 1st Additional Sessions Judge, Gopalganj, Shri Binod Mohan Prasad.
Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 2/61
2. At this juncture, it would be relevant to mention that though the appeal was preferred by 15 appellants, however, during the course of pendency of the present appeal, as many as 11 appellants have died, hence, the present appeal survives qua four appellants, namely, 1. Ramashraya Singh, 2. Amod Singh,
3. Satya Narain Awadhiya & 4. Binay Kumar.
3. By the aforesaid judgment dated 24.06.1993, all the appellants have been held guilty and convicted under Sections 302/ 149 of the Indian Penal Code and as far as appellant no.1 is concerned, he has been further held guilty and convicted under Section 307/34 of the Indian Penal Code. The learned trial Court by an order dated 26.06.1993 has sentenced all the appellants under Section 302/ 149 of the Indian Penal Code to undergo imprisonment for life and as far as appellant no.1 is concerned, he has been further sentenced under Section 307/34 of the Indian Penal Code to undergo sentence of rigorous imprisonment for 10 years.
4. The short facts of the case are that the fardbeyan of Yogendra Prasad Srivastava son of late Sheonandan Prasad Srivastava of village Mahaicha, P.S. Uchkagaon, District Goptalganj was recorded at Gopalganj Sadar Hospital on 22.06.1980 at about 11.00 A.M. by one Chandrika Prasad Singh, Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 3/61 Officer-Incharge, Uchkagaon Police Station. In the fardbeyan Shri Yogendra Prasad Srivastava disclosed that one case under Section 145 Cr. P.C. was going on in between him and his co- villager, namely, Shri Nand Kishore Prasad pertaining to land situated in the village and the said land was in his possession from much before as also he had planted corn and Arahar. On 22.06.1980 at about 7.00 A.M. in the morning, various persons of the village Mahaicha Nayatola, P.S. Uchkagaon, District Gopalganj, namely, (1) Harihar Singh, armed with farsa, (2) Ramsurat Singh, armed with bhala, 3. Girdhari Prasad, armed with farsa, 4. Ramashray Singh, armed with Khocha, 5. Kapildeo Singh, armed with farsa, 6. Baban Singh, armed with farsa, 7. Daroga Singh, armed with bhala, 8. Sukhdeo Singh, armed with lathi, 9. Jagannath Singh, armed with Bhala, 10. Amod Singh, armed with Farsa, 11. Rampati Awadhiya, armed with country made pistol, 12. Lakhan Lal Awadhiya, armed with farsa, 13. Raghopati Awadhiya, armed with Khocha, 14. Ramdeni Singh, armed with lathi, 15. Nand Kishore Prasad, armed with lathi, 16. Binay Kumar, armed with country made pistol and 17. Satyanarayan Awadhiya, armed with lathi, had arrived at the aforesaid land and by means of spade (Kudal), started making ridge and had also called for bullock for Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 4/61 ploughing the field. Upon seeing the aforesaid events, the brother of the informant, namely Mankeshwar Prasad as also his nephew, namely, Ajay Kumar Shrivastava went to the said field and told them not to make the ridge as also asked them as to why they were doing such thing, whereupon the accused persons had threatened to kill them and had said that Nand Kishore Prasad was in possession of the said land, hence the sale deed should be executed in favour of the accused persons and they had come there to capture the said land whereafter on the orders of Nand Kishore Prasad, the accused Harihar Singh had assaulted the brother of the informant, namely, Mankeshwar Prasad by farsa and upon being hit, he fell down. Then, the accused persons, namely, Ram Surat, Girdhari Prasad, Ramashray Singh (appellant no.1), Kapildeo Singh, Daroga Singh, Nand Kishore Prasad had started assaulting the informant and his brother Mankeshwar Prasad on their bodies with arms which they were holding in their hands, whereupon the nephew of the informant, namely, Ajay Kumar Shrivastava ran away while raising alarm, whereafter the co-villagers, namely, Ramanand Kumhar, Bhukhal Gond, Aliraja Gaddi, Kanhaiya Singh, Chandrama Gond etc. came running there and saved the informant and others, whereupon they took the informant and Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 5/61 his brother to Mirganj in injured condition and from there, they took them to the Hathua Hospital, however, finding the injury to be grievous, the doctor referred them to the Gopalganj Hospital. The co-villager had then taken the informant and his brother Mankeshwar Prasad to Gopalganj Hospital, where the treatment is going on. However, sometime back, the brother of the informant, namely Mankeshwar Prasad had become unconscious. On the basis of the said fardbeyan of the informant, namely, Yogendra Prasad Srivastava, a formal FIR bearing Uchkagaon P.S. Case No. 06 of 1980 dated 22.06.1980 was lodged against 17 accused persons at 1.30 P.M. under Sections 147/ 148/ 149/ 307/302 of the Indian Penal Code and Section 27 of the Arms Act.
5. After investigation, charge sheet was submitted on 15.10.1980 against 17 accused persons under Sections 147, 148, 149, 302, 307 and 328 of the Indian Penal Code. After order of cognizance passed on 03.02.1991 and compliance of the provisions under Section 207 of the Cr.P.C., the case was committed to the court of sessions on 27.5.1982 and charges were framed on 04.07.1988. As far as the appellants of the present case are concerned, charges were framed against them under Sections 302/149 of the Indian Penal Code, however, as Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 6/61 regards appellant no.1, charges were also framed under Section 307/34 of the Indian Penal Code. Since the accused persons denied the charges, they were put on trial.
6. During trial, to establish the case, the prosecution examined altogether 11 witnesses, out of which P.W. 2, namely, Sunil Kumar Srivastava, P.W. 3, namely, Bhukhal Gond, P.W. 4, namely, Chandrama Gond, P.W. 5, namely Ramanand Kumhar, P.W. 6 Ajay Kumar Shrivastava and P.W. 7 namely Israil Khan were cited as eye witnesses to the occurrence, whereas P.W. 1 namely, Bishwanath Pandey was examined as a formal witness to the formal FIR, P.W. 8, namely, Chandra Gokul Prasad is a hearsay witness, whereas P.W. 9 Yogendra Prasad Srivastava is the informant as also an eye witness, whereas P.W. 10 namely Chandrika Prasad Singh is the Investigating Officer and P.W. 11 is the doctor.
7. After conclusion of the prosecution evidence, statement of the accused persons were recorded under Section 313 of the Code of Criminal Procedure, 1973, during which, they denied the charges and thereafter, the defence also examined five witnesses, namely, Bindeshwar Prasad Singh, Krishna Singh, Bimlesh Tiwary, Bishwanath Raut and Binod Kumar Shrivastava. Finally, by the impugned judgment, the Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 7/61 learned Trial Judge convicted all the accused persons under Sections 302/ 149 of the Indian Penal Code and as far as the appellant no.1 is concerned, he has been further held guilty and convicted under Section 307/34 of the Indian Penal Code. After the judgment of conviction and sentence, the appellants preferred the present appeal, which was admitted for hearing on 19-07-1993 and while admitting, all the four appellants were directed to be released on bail.
8. At the time of hearing on 01-09-2017, when case was taken up, none appeared on behalf of the appellant No.
4. Keeping in view the fact that the appeal was of the year 1993, the Court considered that it was not appropriate to defer the hearing and as such, on 01-09-2017, Ms. Divya Verma, learned counsel was requested to assist the Court, as Amicus Curiae, and she has since appeared regularly for the Appellant No. 4. Even till date, the learned Advocate, who had filed vakalatnama on behalf of the appellant No. 4, has not appeared.
9. We have heard the learned counsel appearing for the appellants no. 1 to 3, namely, Sri Yogendra Prasad Sinha, who has submitted that the entire case as set forth is false. It has been contended that the circumstances would show that the prosecution witnesses are not reliable and there is contradiction Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 8/61 in their evidence. It has been stated that the witnesses i.e. P.W. 2, P.W. 6, P.W. 8 and P.W. 9 belong to the same family and were having enmity with the accused persons, especially with late Nand Kishore Prasad, hence they are interested witness, as such no reliance can be placed upon their testimony. In fact, several cases are pending in between the accused late Nand Kishore Prasad and P.W. 2, P.W. 6, P.W. 8 and P.W. 9. It is further submitted that the appellants have got no relation with Nand Kishore Prasad and have been falsely implicated in the present case. The learned counsel for the appellants no. 1 to 3 has further submitted that the appellants no. 2 and 3 have admittedly got no role to play in the alleged incident, which is apparent from the testimony of the various witnesses, although they might have been present at the place of occurrence. It is further submitted that P.W. 2, who is the son of the deceased Mankeshwar Prasad has not stated in his testimony regarding presence of the appellant no. 3 at the place of occurrence. Even P.Ws no. 2 to 6 have also not stated about presence of the appellant no. 3 at the place of occurrence, hence, his case is fit case for acquittal. P.W. 1 is formal witness and as far as P.Ws. 3 to 5 and 7 are concerned, though they are independent witness, however, their testimony cannot be relied since admittedly they Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 9/61 have enmity with the accused persons from before. It is also submitted that a bare perusal of the evidence tendered by the prosecution witnesses would show that the specific allegation of giving fatal farsa blow on the head of the deceased Mankeshwar Prasad has been levelled only against the accused namely, Harihar Singh (who has died before framing of the charge). Moreover, the post-mortem report shows that there is only one incised injury on the head of the deceased, which further goes to corroborate the factum of the said accused Harihar Singh having assaulted the deceased by farsa on his head, hence, the post- mortem report falsifies the allegations levelled against the appellants herein. It is also submitted that as far as appellant no. 1 is concerned, according to the FIR, no injury is said to have been inflicted by means of "Khocha" (a weapon in the form of a ball having spikes and attached to a chain). As far as P.W. 9 is concerned, it has been stated that he is an interested witness as also the informant of the present case and having enmity with the prosecution side, hence his evidence cannot be relied upon. It is further submitted that the oral evidence is not supported by the medical evidence, especially since P.W. 9, in his evidence has not stated that 5-6 persons had inflicted blows on the deceased and that Harihar Singh had inflicted farsa blow on the Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 10/61 informant as well, but the post mortem report and the injury report do not support the same. Even P.W. 9, who is the informant of the present case, has not taken the name of the appellant no. 3 and no overt act has been alleged as against him. Lastly, it has been submitted that Section 149 of the Indian Penal Code is not applicable in the present case against the appellants, inasmuch as neither they were members of mob or melee nor there is a common object or common intention inasmuch as at best the appellants can be said to have arrived at the place of occurrence for the purposes of raising ridge, however, they cannot be said to have assembled there with an intention of assaulting the injured/ deceased. In this connection, the learned counsel for the appellants no. 1 to 3 has relied upon a judgment rendered by the Hon'ble Apex Court, reported in AIR 2007 SC 2030 (State of Punjab v. Sanjiv Kumar & Ors.), paragraph no. 8 whereof is relevant to be reproduced herein below:-
"8. The pivotal question is applicability of Section 149 IPC. Said provision has its foundation on constructive liability which is the sine qua non for its operation. The emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 11/61
141. Where common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section
149. The crucial question to determine is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects, as specified in Section 141. It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word object means the purpose or design and, in order to make it common, it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression in prosecution of common object as appearing in Section 149 have to be strictly construed as equivalent to in order to attain the common object. It must be immediately connected with the common object by virtue of the nature of the object. There must be community of object and the object may exist only up to a particular stage, and not thereafter. Members of an unlawful assembly may have community of object up to certain point beyond which they may differ in their objects and the knowledge, possessed by each member of what is likely to be committed in prosecution of their common Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 12/61 object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object, and as a consequence of this the effect of Section 149, IPC may be different on different members of the same assembly".
10. The learned counsel for the appellants no. 1 to 3 has further relied upon a judgment rendered by the Hon'ble Apex Court, reported in AIR 1999 SC 3830, (Ramashish Yadav & Ors. vs. State of Bihar) paragraph no. 2 whereof is reproduced herein below:-
"2. It is contended by the learned counsel for the appellants that even taking the prosecution case in full on the evidence of PWs. 1, 3 and 4 only Ram Das Yadav can be convicted under section 302 who has fired the gun and Mundrika died on account of the gun shot injury and the two others who have the gandasa blows on Tapeshwar can be convicted under section 302/ 34. But the two others who caught hold Tapeshwar as well as two other appellants who never assaulted either Mundrika or Tapeshwar who had caused the injury on PW. 1 could not have been convicted under section 302/149. Mr. B.B. Singh, appearing for the State of Bihar, on the other hand, contended that the very fact that accused persons went there with arms in the hands and then after the Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 13/61 informant party went and challenged, there was exchange of words and then they started assault as a result of which two people died, it must be held that all of them had the common object and could be held liable by taking recourse of section 149. In the alternative he argued that at least those who caught hold of deceased who facilitated the other two accused persons to give the gandasa blow on Tapeshwar would be liable under section 302/34. To appreciate the contentions of Mr. Singh we have scrutinised the evidence of PWs. 1, 3 and 4. From the evidence it transpires that the accused persons had gone to the field and were ploughing. Obviously, at that point of time it cannot be said that they constituted an unlawful assembly within the meaning of section 141 of the Indian Penal Code inasmuch as it has not been established by the prosecution that they had one of the five specified objects enumerated in section 141 of the IPC, as their common objects. Mr. B.B. Singh, however, relied upon the explanation to section 141 and contended that an assembly which was not unlawful, when it assembled, may subsequently become an unlawful assembly. There is no dispute with the aforesaid preposition. But from the evidence of PWs. 1, 3 and 4, it is Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 14/61 difficult for us to conceive that at any later point of time the accused persons can be said to have nurtured one of the five specified objects as their common objects. This being the position and in the absence of establishing the fact that the accused persons constituted an unlawful assembly, their conviction by taking recourse to section 149 IPC is unsustainable. Section 149 postulates an assembly of five or more persons having a common object namely, one of those named in section 141 and then the doing of acts by members of the assembly in prosecution of that object. In view of our conclusion that there was no unlawful assembly, conviction of the appellants under section 149 IPC cannot be sustained. We accordingly set aside the conviction of the appellants under section 302/149 IPC. But so far as the accused Ramdas Yadav is concerned, the witnesses being consistent that it is he, who fired the gun shot which hit Mundrika and Mundrika died and medical evidence corroborates the same, he is convicted under section 302 IPC and sentenced to imprisonment for life".
11. The learned counsel for the appellants has also relied on a judgment reported in 2016 (3) Cr. Law Journal 3136 Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 15/61 (Indira Devi & Ors. vs. State of Himachal Pradesh), paragraph no. 7 and 8 whereof are reproduced herein below:-
"7. The proposition of law that an injured witness is generally reliable is no doubt correct but even an injured witness must be subjected to careful scrutiny if circumstances and materials available on record suggest that he may have falsely implicated some innocent persons also as an after thought on account of enmity and vendetta. The trial court erred in not keeping this in mind. But the trial court in para 24 of the judgment misdirected itself by confining the consideration only to the issue as to whether the complainant who was an injured should be relied upon or not. In view of his being an injured witness as proved by the Doctor, the trial court chose to place full reliance on his deposition. The error committed by the trial court was in ignoring the contradiction and subsequent development quo the three appellants herein and its failure to consider whether the complainant should be believed only in part qua the male accused persons and not in respect of the appellants. This approach of the trial court is clearly erroneous in law.
8. The medical evidence of PW-17, Dr. Superiya Atwal proves the injury on left Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 16/61 side of the face of PW-1 to be a gun shot injury. The second injury was an abrasion on the medial aspect of left hand, 5x1 cm in size. The third injury was a bleeding one on the back of right hand 5x5x1/4 cm in size extending from thumb region to middle finger. The fourth injury was again an abrasion on front of right thigh of 2x1 cm in size. According to Doctor, the injury no. 2 could have been caused with blunt side of 'darat', whereas injury no.3 could have been caused by an axe.
Injuries no. 2 and 4 were opined as simple in nature. In cross-examination the Doctor admitted that injury no. 2 was possible even by a fall on hard surface. A careful analysis of the injuries as proved by the medical evidence creates a distinct impression that injury no. 2 is not by a sharp cutting weapon like 'darat' and besides being simple it may have been on account of fall. The victim, PW 1 has admitted that after receiving gun shot injury he was assaulted by Dev Raj and made to fall. He has also alleged further assault by Brij Lal after the other accused had gone away. Thus as per prosecution case there is no corresponding injury on the person of victim to support the allegation of assault against the lady Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 17/61 accused persons, the appellants. Coupled with this fact the initial version also creates a serious doubt that specific allegations against the appellants have been developed later in the course of deposition in Court. Such allegation has come only from PW - 1 without support from any independent witness. In such circumstances and due to lack of convincing medical evidence, the credibility of specific allegations against the appellants required serious consideration by the trial court and also by the High Court while hearing the appeal. Unfortunately for the appellants, such consideration did not take place".
12. Lastly, a judgment reported in 1992 (2) BLJ 215 (Satya Narain Bhagat & Anr. v. State of Bihar) has also been relied upon, paragraph-17, 26 and 29 to 32 whereof are reproduced herein below:-
"17. The Supreme Court in the case of Bir Singh v. State of U.P., has held that where all the eye witnesses examined by the prosecution had serious animus against the accused and were interested in implicating the accused and neither independent witness was examined nor any reasonable explanation Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 18/61 was given by the prosecution, the court would be justified in drawing adverse inference against the prosecution. In this case it is obvious from the certified copy of the depositions of P.Ws. in the previous cases that the P.Ws. 1, 3, 4 and 5 have formed an unholy alliance against the appellants. They are interested and partisan witnesses. The evidence of these P.Ws. are not corroborated by any independent and reliable witness. They are also accused in a case earlier instituted by the appellant Jai Prakash Bhagat. The credibility of these P.Ws. cannot be relied upon.
26. Again, the Supreme Court in the case of Puran Singh v. State of Punjab has observed that, if the prosecution did not come out with a true version of the nature and origin of the occurrence. They cannot blame the court if the entire version presented by them is rejected. It was further observed, in para 19 that in the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution is doubtful and the genesis of occurrence is shrouded in deep mystery which is sufficient to demolish the entire prosecution case.
Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 19/61
29. As regards, the conviction of the appellant Jai Prakash Bhagat Under Section 302 of the Indian Penal Code is concerned, Shri Lala Kailash Bihari Prasad contended that the appellant Jai Prakash Bhagat can be convicted, with the aid of Section 34 of the Indian Penal Code. Reliance was placed in the case of Laxman Singh V. State. In this case, it has been held that where there is charge Under Sections 302/149, IPC and the charge Under Section 149 disappears because of the acquittal of some of the accused, a conviction Under Section 302 of the IPC with Section 34 of the IPC is good enough, though there is no separate charge Under Sections 302/34 of the IPC. provided on the facts of the case the accused could have been charged Under Section 302/34 of the IPC.
30. In this case Jai Prakash Bhagat was charged Under Sections 302/149 of the IPC. The charge Under Section 149 of the IPC failed because of the acquittal of the other accused. He has, however, been convicted Under Section 302 of the IPC simpliciter. The conviction of appellant Jai Prakash Bhagat simpliciter Under Section 302 of the IPC is not legal. His conviction with the aid of Section 34 of the IPC also cannot be maintained for want of any reliable evidence.
31. As regards, the self defence is concerned, Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 20/61 the Supreme Court, in the case of Vijoy Singh v. State of UP. has held that the general burden of establishing the guilt of accused is always on the prosecution and it never shifts. Even in respect of the cases covered Under Section 105 of the Evidence Act, the prosecution is not absolved of its duty of discharging the burden. The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case. He may adduce the evidence in support of his plea indirectly or rely on the prosecution case itself or he can indirectly introduce such circumstances by way of cross-examination and also rely on probabilities and the other circumstances. Then the initial presumption against the accused regarding the non-existence of the circumstances in favour of his plea gets displaced if a reasonable doubt arises the benefit of it should go to the accused. If there are absolutely no circumstances at all in favour of the existence of such an exception then the rest of the enquiry does not arise in spite of a mere plea being raised. But if the accused succeeds in creating a reasonable doubt or shows preponderance of probability in favour of his plea the obligation on his part Under Section 105 gets discharged and he Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 21/61 would be entitled to an acquittal. In this case the witnesses examined by the prosecution on the material points have serious animus against the appellants as is evident from the discussion made in the preceding paragraphs. No independent and reliable witness has been examined by the prosecution in support of its case. The prosecution has thus failed to prove its case beyond all reasonable doubt. The preponderance of the probability is also in favour of defence. The appellants are, therefore, entitled to be acquitted.
32. In the present case the prosecution has not been able to establish that the occurrence took place in the field of Sheo Pujan Bhagat. The prosecution has also not been able to prove the possession of the informant Janki Bhagat, P.W.9 on plot No. 1331. The prosecution has not offered any explanation as to how and in what circumstances injuries were inflicted on the accused in the same transaction. The witnesses examined by the prosecution on the material points are inimical to the accused. No independent and reliable witness has come to support the prosecution case. All these circumstances, clearly indicate that the prosecution has not come out with the true version of the origin of the prosecution case. The preponderance of the probability is in favour of the defence. Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 22/61 The burden of proof of self defence is thus discharged and the appellants are entitled to be acquitted."
13. It has been submitted by the learned counsel for the appellants no. 1 to 3 that as far as appellant no. 2 is concerned, he was juvenile at the time of occurrence in question and an interlocutory application has been filed on behalf of the appellant no.2 bearing I.A. No. 2181 of 2017 wherein the claim of juvenility has been made on behalf of the appellant no.2 and a certificate issued by the Bihar School Examination Board has also been brought on record to show that on the date of occurrence, appellant no.2 was a juvenile. In this connection, it would be relevant to state here that this Court, by an order dated 6.12.2017 had referred the matter in respect of juvenility of appellant no.2, Amod Singh to the Juvenile Justice Board, Gopalganj to conduct an enquiry and find out about the correctness of the claim of the appellant no.2, whereafter a report dated 17.05.2018 has been sent to this Court by the Juvenile Justice Board, Gopalganj wherein the Principal Judge, Juvenile Justice Board, Gopalganj has stated that the 1st Additional District and Sessions Judge, Gopalganj has, vide his letter no. 173 dated 15.05.2018, informed the Board that the Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 23/61 accused Amod Singh was minor at the time of occurrence, hence, the Principal Judge, Juvenile Justice Board, Gopalganj has stated, on the basis of said letter of the Ist Additional District & Sessions Judge, Gopalganj, that the accused Amod Singh was a minor at the time of occurrence. Thus, the learned counsel for the appellant no.2 has submitted that the case of the appellant no.2 be dealt with considering him to be a juvenile on the date of occurrence.
14. Lastly, it has been contended by the learned counsel for the appellants no. 1 to 3 that the deceased Mankeshwar Prasad had also made a dying declaration, certified copy whereof has been produced before this Court and has been kept on the record of this case. A bare perusal of the said dying declaration of Mankeshwar Prasad dated 22.6.1980, recorded by Shri Jai Prakash Singh, Judicial Magistrate, Gopalganj, in the presence of Superintendent, Sadar Hospital, Gopalganj, would show that the deceased had categorically stated that he was beaten by Harihar Singh by Bhala and the reason for such assault by Harihar Singh was land dispute. Thus, it is submitted that if at all anyone is responsible for the death of the deceased Mankeshwar Prasad, it was Harihar Singh and the appellants cannot be held guilty for the same, hence, they are liable to be Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 24/61 acquitted. Thus it is submitted that the present case is a case of clean acquittal.
15. The learned counsel appearing for the appellant no. 4, namely, Ms. Divya Verma, who is an amicus curiae in the present case and had been appointed by this Court earlier on account of non-representation of appellant no.4 by any counsel, has though adopted the arguments made by the learned counsel appearing for the appellants no. 1 to 3, but has further submitted that the present case arises out of a case and a counter case and both sides had complicity in the matter on account of land dispute. It has also been submitted that no role, whatsoever, has been assigned to the appellant no. 4 as far as assaulting the deceased and the informant of the present case is concerned. In fact, most of the witnesses have not taken the name of appellant no.4 to have present at the place of occurrence and none of the witnesses have alleged any specific overt act qua the appellant no.4, hence, it is submitted that this Court may consider the facts and circumstances of the case and acquit the appellant no.4.
16. Mr. Ajay Mishra, learned Additional Public Prosecutor for the State has contended that all the witnesses have deposed on behalf of the prosecution on similar lines and Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 25/61 their evidence is consistent as well as there is no contradiction and furthermore, they are reliable and no infirmity has been drawn up during their cross-examination by the defence. It is further submitted that the argument of the learned counsel for the appellants that Section 149 of the Indian Penal Code is not applicable in the present case is also without substance since not only the appellants were members of the mob but they had also common intention and common object to capture the land in question and evict the prosecution party by assaulting them as also threatening them. It is further submitted that there is no doubt that the allegation levelled against the appellants have been proved beyond all reasonable doubts. Lastly, it is submitted that there is enough evidence on record of the case to sustain conviction of the appellants herein.
17. I have perused the entire materials available on record. Before proceeding further it would be necessary to notice as to what evidence was brought on record by the prosecution. At the very outset, it is essential to examine the statement of prosecution witness i.e P.W. 9, namely, Yogendra Prasad Srivastava. In his examination-in-Chief he stated that the occurrence is about 12 years ago, it was Sunday and at about 7:00 A.M. he was at home and when he went in the back side of Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 26/61 the house towards west side, he saw 20-25 people armed with various arms going towards his field, however, he could recognize only those who have been named as accused in the FIR. P.W. 9 has further stated in his evidence that upon seeing the aforesaid accused persons, he and his brother Mankeshwar Prasad (deceased) as well as his nephew, namely, Ajay Kumar went to their field and when they reached there, they saw that the accused Sukhdeo Singh, Ramdeni Singh and Jagannath Singh were holding spade (Kudal) in their hand and were trying to construct ridge in the field. It has been further stated by P.W. 9 that the field is in possession of his family and they had, 10-15 days back, planted corn and Arahar (pigeonpea). It has also been stated that his brother had then stopped the accused persons from constructing the ridge, whereupon the accused Nand Kishore Prasad had ordered to kill Mankeshwar Prasad. Whereupon, the accused Harihar Singh had assaulted the brother of P.W. 9, namely, Mankeshwar Prasad with intention to kill him by farsa which had hit his brother on head, whereupon he fell down. Thereupon, the other accused persons, namely, Ramsurat Singh, Girdhari Prasad, Nand Kishore Prasad, Daroga Singh, Kapildeo Singh, Ramashray Singh had assaulted the brother of P.W. 9 namely, Mankeshwar Prasad with the arms Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 27/61 which they were holding in their hands. Thereafter, P.W. 9 had tried to save his brother, whereupon the accused persons started beating him as well and the accused Girdhari Prasad had hit him on his head by farsa, the accused Ram Surat Singh had hit him by bhala, Ramashray Singh had hit P.W. 9 on his right arm by Khocha and accused Daroga Singh had hit P.W. 9 by bhala on the little finger of the right hand, whereupon Kapildeo Singh had hit him on his right leg by farsa. In fact, the other accused namely, Harihar Singh had also hit P.W. 9. The P.W. 9 is stated to have fallen down, whereupon his nephew Ajay Kumar had ran away while raising alarm towards the village, whereupon the co-villager, namely, Ramanand Kumhar, ( P.W. 5) Bhukhal Gond (P.W.3), Chandrama Gond (P.W. 4), Aliraja Gadi, Kanhaiya Singh etc. had arrived there. P.W. 9 had further stated that till arrival of the witnesses, the accused persons were still assaulting him and his brother. After the witnesses had arrived there, they had intervened, whereafter the accused persons fled away. PW 9 has also stated that apart from the co-villagers, his brother namely, Chandra Gokul Prasad as also his nephew Ajay Kumar and other witnesses had carried P.W. 9 and his brother Mankeshwar Prasad to the main road from where they were alighted on two rickshaws and taken to Mirganj Police Station Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 28/61 from where they were taken to Hathua Hospital by taxi. However, the doctor present there, advised them to go to Gopalganj Hospital. Thereafter, they came to the Gopalganj Hospital and treatment was started, however, on the said date i.e. on 22.06.1980 the brother of P.W. 9 namely, Mankeshwar Prasad died. P.W. 9 has further stated that his fardbeyan was recorded in the hospital where the Magistrate had come and had also recorded the dying declaration of the brother of P.W. 9 namely, Mankeshwar Prasad. P.W. 9 has stated that the Officer- incharge of Uchkagaon Police Station, namely, Chandrika Singh had recorded his fardbeyan, which he has identified and has been exhibited as Exhibit-2 and he has also identified his signature which has been marked as Exhibit-3. P.W. 9 has also identified the signature of the witnesses namely, Radha Prasad and Baijnath Singh, which have been marked as Exhibits- 3/1 and 3/2 respectively. P.W. 9 has also identified the writing of the Officer-incharge, namely Chandrika Prasad Singh, which has been marked as Exhibits-3/3. P.W. 9 also identified the accused persons in the court, which was not challenged by the accused persons. P.W. 9 in his evidence had also given the brief descriptions of the dispute in question and how he and his family members have come into possession of the said land. Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 29/61 P.W. 9 had also stated that one 145 Cr. P.C. proceeding was also pending in the court in between him and the accused Nand Kishore Prasad. P.W. 9 has also stated that one criminal case was lodged by Nand Kishore Singh against them, however, they have been acquitted. In the cross-examination, P.W. 9 has stated that the "Khocha" was sharp edged and at the time he saw the accused persons, they were at a distance of 200 yards. It has been further submitted in paragraph-17 of the cross-examination by P.W. 9 that immediately upon reaching at the place of occurrence, his brother Mankeshwar Prasad had told the accused persons not to construct the ridge and immediately one minute thereafter, the accused persons started assaulting them, which continued for about 10 to 15 minutes. In paragraph-22, P.W. 9 has stated that he had received three injuries by farsa and two injuries by bhala, as well as one each injury on account of hit by Khocha and lathi. In paragraph no. 26, P.W. 9 has submitted that with regard to the land in question, dispute was going on since the year 1974 with the accused Nand Kishore Prasad. In paragraph-36 of the cross examination, P.W. 9 has submitted that he had seen several injuries present on the body of his brother Mankeshwar Prasad. However, P.W. 9 has stated that he could not describe as to how many injuries were Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 30/61 received due to farsa or on account of bhala or Khocha. In paragraph No. 37 of the cross examination, P.W. 9 has stated that at the place of occurrence apart from the accused persons, 8-10 other persons were also present and had witnessed the occurrence. In paragraph-38 of the cross-examination, P.W. 9 has stated that his brother Mankeshwar Prasad (deceased) was wearing Lungi and half shirt and his clothes as also the clothes of his brother were soaked with blood. P.W. 9 has further stated that he did not know whether his brother had taken breakfast or not.
18. P.W. 2, namely, Sunil Kumar Srivastava has stated in his evidence that on 22.06.1980 at 7 A.M. in the morning he was at Brahm Asthan where he saw 40 persons coming to his field from northern side and after arrival in the field they had started constructing a ridge whereupon his father, namely, Late Shri Mankeshwar Srivastava had stopped them, whereupon they started beating him. The accused Harihar Singh had hit him with farsa, Ramsurat Singh had hit him with bhala, Kapildeo Singh had hit him with farsa, Daroga Singh had hit him with bhala, Baban Singh had hit him with farsa, Amod Kumar had hit him with farsa, Girdhari Prasad had also hit him with farsa, Nand Kishore Prasad had hit him with lathi and Sukhdeo Singh had Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 31/61 hit him with lathi, whereupon he had fallen down and subsequently, he died. P.W. 2 has further stated that the accused persons had also assaulted Yogendra Prasad Srivastava. P.W. 2 has further stated that he had recognised the aforesaid accused persons and apart from them, he had also recognized Kapil Deo Singh and Ramsurat Singh, who are standing in the dock of the court. In cross-examination, in paragraph no. 2, P.W. 2 has stated that Brahm Asthan, where he was standing at the time of occurrence, is 150-200 yards towards east. He has denied the fact that he had only recognized 7 accused persons in presence of the Officer-incharge and has further stated that he has also recognized Harihar, Ram Surat, Kapildeo, Rampati, Nandkishore and Binay Kumar as well. P.W. 2 has also stated that it is not a fact that he has stated that he had not recognized other accused persons. He has further stated that he had told about Binay Kumar holding pistol before both the officers, i.e. the Officer-incharge and the S.D.P.O. In paragraph No. 7, P.W. 2 has stated that the accused persons, namely, Sukhdeo, Ramdeni and Jagannath were constructing the ridge. He has also denied to have told the Officer-incharge that ridge was constructed one day ago and that Moor (grass) was planted one day back. In paragraph No. 11 of the cross examination, P.W. 2 has stated Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 32/61 that it is not a fact that Ram Surat was not present in the village.
19. P.W. 3 is Bhukhal Gond and he has stated in his evidence that the field where the occurrence had taken place is in possession of Yogendra Prasad Srivastava and he had planted corn and Arahar prior to the occurrence. It has also been stated that Yogendra was in possession of the field from much before the date of occurrence i.e. since last 10-15 years and prior to that one Bengali Gond was in possession of the said field. P.W. 3 has further stated that on 22.06.1980, at about 7 A.M. in the morning, he was present in his field and upon hulla, he went 100 yards away from his field where he saw that 20-25 persons were creating commotion and some persons were trying to construct ridge in the field of Yogendra whereupon Yogendra and Mankeshwar had prevented them from constructing the ridge, whereafter Mankeshwar was assaulted first. Harihar had given farsa blow on the body of Mankeshwar Prasad, whereafter Ramsurat Singh had hit him with bhala, Girdhari Prasad had hit him with farsa, Nand Kishore had hit him with lathi, Ramashray Singh i.e. appellant no.1 had hit him with Khocha, Daroga had hit him with bhala, Kapildeo Singh had hit him with farsa and Baban Singh had hit him with farsa, while other accused persons were standing there. P.W. 3 has further stated that Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 33/61 Rampati Singh, Binay Kumar, Sukhdeo Singh, Ramdeni Singh, Raghupati Singh were also standing there. He has also stated that Binay Kumar was also present there and was holding pistol in his hand. P.W. 3 has also stated that the aforesaid accused persons had also hit Yogendra. In cross examination, in paragraph No. 7, P.W. 3 has stated that he was present towards southern boundary of the disputed land and at the time of occurrence, he was ploughing the field alone. P.W. 3 has also stated that since 3-4 years he was working in a factory. In paragraph-12 of cross examination, P.W. 3 has stated that it is not a fact that he is in the business of illegally occupying lands of others. It has also been stated that the accused Nand Kishore had filed one criminal case against him, Yogendra and others and 14 people were named as accused in the said case, however, all have been acquitted. In paragraph-13 of the cross- examination, P.W. 3 has denied that anybody had assaulted Nand Kishore. He has also stated in paragraph No. 17 of the cross examination that he had given his statement before the Officer-incharge and the Dy. S.P. and had told them that Baban Singh had also assaulted Yogendra and Mankeshwar. P.W. 3 has further denied that he had not taken the names of Kapildeo, Sukhdeo, Jagannath, Rampati Awadhiya, Raghupati Awadhiya, Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 34/61 Ramdeni and Binay Kumar before the Dy. S.P. In paragraph-18 of the cross examination, P.W. 3 has stated that he had told the Officer-Incharge that when the accused persons, who had engaged in assault, had gone towards the northern side, then he had gone to the field and had seen that Yogendra and Mankeshwar were injured and at that time, other witnesses, namely, Rama Nand, Chandrama Gond, Ali Raza and Kanhaiya Singh had also reached there. In paragraph No. 21 of the Cross- examination, P.W. 3 has stated that Sukhdeo, Ramdeni and Jagannath Singh were constructing ridge.
20. P.W. 4 is Chandrama Gond and he has stated in his evidence that on 22.06.1080 at 7 A.M. in the morning, he was going to the market and when he reached near the dirt road, then he saw 40-45 persons on the western side, hence, he did not go to the market and he went near Brahm Asthan where he saw that some persons were constructing ridge and Mankeshwar Prasad and Yogendra Prasad were telling them not to do so. It has been further stated that some people then started assaulting Yogendra Prasad and both Yogendra Prasad and Mankeshwar Prasad, received injury and upon assault, they fell down. P.W. 4 has further stated that the persons, who were assaulting, were 15-16 in number and he had recognized them. This witness had also Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 35/61 recognized the accused persons, namely, Girdhari Prasad, Nand Kishore, Ram Surat Singh and Kapildeo Singh, who are standing in the dock of the court. This witness has further stated that he can also recognize other accused persons, however, they are not present in the court. It has been stated that the accused persons were carrying farsa, lathi, bhala and pistol. This witness has also said that Mankeshwar Prasad was assaulted by Harihar by farsa, by Girdhari by farsa, by Ramsurat by bhala, by Daroga Singh by bhala, by Nandjee Prasad by lathi and Ramashray Singh (appellant no.1) by Khocha. It has been further stated that the other accused persons had surrounded Yogendra and Mankeshwar and the said accused persons had also assaulted Yogendra Prasad. In paragraph no. 2 of his evidence, P.W. 4 has stated that the land on which the assault had taken place, belongs to Yogendra Prasad and the same is in his possession and at the time of occurrence, corn and Arahar crops were existing in the field, which was planted by Yogendra Prasad, 15- 16 days ago and the said field was in possession of Yogendra Prasad since 15-16 years ago, prior to which the said field was in possession of one Bengali Gond. In paragraph-5 of his cross- examination, P.W. 4 has submitted that from Brahm Asthan, he had seen occurrence and other persons, namely, Sunil Kumar, Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 36/61 Bhukhal Gond, Kanhaiya Singh, Rama Nand and Ajoy Kumar were also present. In paragraph no. 11 of his cross examination, P.W. 4 has stated that he does not remember that any 144 Cr. P.C. proceeding was pending and in paragraph no. 12 of his evidence, he has stated that it is not a fact that the ridge was constructed one day prior to the date of occurrence and moreover, it is also not a fact that he had engaged in beating Nand Kishore Prasad. In paragraph no. 14 of his cross- examination, P.W. 4 has stated that he had told the police that Harihar had hit Mankeshwar with farsa while Girdhari had hit him with farsa, Ram surat had hit him with bhala, Daroga Singh had hit him with bhala, Nand Jee had hit him with lathi and Ramashraya (appellant no.1) had hit him with Khocha. In paragraph no. 15 of his cross examination, P.W. 4 has stated that a counter case to the present case was filed wherein he is also an accused along with Yogendra Prasad. In paragraph no. 16, P.W. 4 has submitted that it is not a fact that in every case he had participated with Yogendra Prasad and had given false evidence.
21. P.W. 5 is Ramanand Kumhar, who has stated in his evidence that his field is situated towards western boundary and southern boundary of the field where the occurrence had taken place. It has been stated that on 22.06.1980 at about 7 A.M. in Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 37/61 the morning, he was ploughing his field when he saw that from northern side 30-40 people had come at the field in question and three people had started constructing ridge on the eastern- western portion, whereafter, Yogendra Prasad and Mankeshwar Prasad as also Ajoy Kumar had stopped them and then the accused persons, namely, Nand Kishore Prasad had exhorted to assault them, whereupon the accused persons started beating Yogendra Prasad and Mankeshwar Prasad. It has been further stated that Mankeshwar Prasad and Yogendra Prasad were assaulted by Harihar Singh by farsa, by Ram Surat Singh by bhala, by Girdhari Prasad by farsa, by Nand Kishore Prasad by lathi, by Kapildeo Singh by farsa, by Daroga Singh by bhala, by Baban Singh by farsa, by Amod Kumar by farsa, by Ramashray Singh (appellant no.1) by Khocha, by Raghupati Singh by Khocha. P.W. 5 has further stated that apart from the aforesaid four accused persons, Satya Narain Singh, Ramdeni Singh, Sukhdeo Singh, Binay Kumar and Ram Lakhan Singh were also present there and he recognises all the accused persons, however, four of them are present in the dock. In paragraph No. 3 of his cross examination, this witness has stated that he had also gone to the Gopalganj Hospital where in the hospital at 11 A.M. Mankeshwar Prasad had died. In paragraph no. 10 of his Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 38/61 cross examination, P.W. 5 has stated that earlier also quarrel had taken place with regard to the field in question. In paragraph No. 11 of his cross examination, P.W. 5 has stated that it is not a fact that he had named five persons before the Officer Incharge, who had assaulted Mankeshwar Prasad i.e. Harihar, Ramsurat, Ramashray, Kapildeo and Baban. He stated that it also not a fact that he had not recognized other accused persons as also it is not a fact that Yogendra Prasad was assaulted only by Harihar and Ramsurat. In paragraph no. 13 of his cross examination, P.W. 5 has stated that before the Dy. S.P. he had taken the names of Kapildeo, Ramdeni, Binod Singh and Sukhdeo Singh. In paragraph no. 14 of his cross examination, P.W. 5 has stated that Brahm Asthan was at a distance of about 75 yards from his house. In paragraph-17 of his cross examination, P.W. 5 has stated that upon the orders of Nand Kishore Prasad, all accused persons had started assaulting the deceased and the injured. In paragraph no. 19 of his cross examination, P.W. 5 has stated that his village comprises of 7 mohallas and Nand Kishore and Binay are from his tolla and other accused persons are from different tollas. In paragraph no. 20 of his cross examination this witness has stated that his house and the house of co-villager Yogendra are situated side by side. In paragraph-23 of his cross Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 39/61 examination, P.W.5 has stated that at the time of assault he had not gone to the field where the assault had taken place, however, he had reached there about 2-3 minutes after the accused persons had left the place of occurrence and he had seen that Yogendra and Mankeshwar were lying in the field and blood was oozing out.
22. P.W. 6 is Ajay Kumar Srivastava and he has stated in his evidence that he recognises the name and face of all the 16 accused persons. He also recognises the accused persons, namely, Kapildeo Singh and Nand Kishore Prasad, who are present in the dock of the court. In paragraph no.2 of his evidence, he has stated that his father, informant of this case, and the deceased were present at the time of occurrence which had taken place about eight years ago. On 22.06.1980 at about 7 A.M. in the morning, he was at village-Maicha and at that time he had seen Mankeshwar Prasad and Yogendra Prasad going to their field and he had also gone to the field behind them and when they reached near the field it was found that the accused persons namely Jagannath Singh, Ramdeni Singh and Sukhdeo Singh were constructing ridge whereupon Mankeshwar Prasad told them not to do so, whereafter Nand Kishore Prasad ordered to kill and then Harihar Singh gave a farsa blow on the head of Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 40/61 Mankeshwar Prasad, whereupon he fell down. After Mankeshwar Prasad fell down, Harihar Singh, Ramsaran Singh, Girdhari Prasad, Nand Kishore Prasad, Kapildeo Singh, Daroga Singh and Ramashray Singh had assaulted him with their weapons and when Yogendra Prasad went to save him, Girdhari Prasad had also assaulted him with farsa and after assaulting him, the accused persons fled away. In paragraph No. 5, P.W. 6 had stated that injured persons were taken to Hathua hospital from where the injured persons were referred to Gopalganj hospital where Mankeshwar Prasad died. In Paragraph No. 6, P.W. 6 has stated that Harihar Singh, Girdhari Prasad, Kapildeo Singh, Baban Singh, Amod Singh and Lakhan Lal Singh all were armed with farsa, while Ram Surat Singh, Daroga Singh and Jagannath Singh were holding bhala and Nand Kishore Prasad, Satya Narain Awadhiya, Sukheo Singh and Ramdeni Singh were holding lathi and the other accused persons, namely, Ramashray Singh and Raghopati Singh were holding Khocha while Binay Kumar and Ramapati Awadhiya were holding pistol in their hand. In paragraph No. 7 of his cross-examination, P.W. 6 has stated that Binay Kumar and Ramapati Awadhiya were holding pistol in their hand. In paragraph No. 8 of his cross- examination, P.W. 6 has stated that his statement was taken by Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 41/61 the Inspector of Police and the S.D.P.O. and it is not a fact that he had not disclosed before the S.D.P.O. regarding the weapons being carried by the accused persons. In paragraph no. 10 of his cross-examination, P.W. 6 has stated that upon seeing the assault being made by the accused persons, he had fled away towards Brahm Asthan while raising alarm. He has stated that when he had raised alarm, Kanhaiya Singh, Israil Khan and Ali Raza had come there and he has not said that Bhukhal Gond, Chandrama Gond and Ramanand Kahar had also come at the Brahm Asthan. In Paragraph No. 19 of his cross-examination, P.W. 6 has stated that false allegation has been levelled against him of having beaten Nand Kishore by lathi. In paragraph no. 22 of his cross- examination, P.W. 6 has stated that at the place of occurrence, one or two days prior to occurrence, the police had been posted. In paragraph no. 23 of his cross-examination, P.W. 6 has stated that he had reached with his father at the place and time of occurrence. In paragraph no. 24 of his cross-examination, P.W. 6 has stated that upon seeing his uncles being beaten by the accused persons, he had not tried to save them and his uncles were being beaten from all the sides and both of them had fallen on the ground on account of being assault by the accused persons and nobody had come there to save them as also neither Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 42/61 the police, nor Dafadar nor Chowkidar were present there. In paragraph no. 25 of his cross examination, P.W. 6 has stated that he was present at the place of occurrence even till 5-7 minutes after the assault by the accused persons had stopped and in the meantime, the co-villagers, namely, Israil Khan, Ali Raza, Bhukhal Gond, Chandrama, Ramanand Kahar and other persons had come.
23. P.W. 7, in his evidence has supported the case of the prosecution and he stated that the occurrence dates back to 11-12 years ago and the time was about 7 A.M. in the morning when he was in his house and then he heard Ajoy Kumar making hulla (noise), whereupon he had come out from the house and gone to the place of occurrence where he saw that Yogendra Prasad and Mankeshwar Prasad were being beaten by Daroga Singh and Jagannath Singh by farsa. He has further stated that the accused Kapil Singh armed with farsa, Baban Singh, armed with farsa and 25-30 other persons were also present there and he can name them and recognize them. It has been stated that other people were holding lathi in their hand. This witness has further stated in his evidence that apart from him, Bhukhal Gond, Ramanand Kohar, Chandrama Gond etc. were present there and had seen the occurrence. This witness Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 43/61 has also recognized the accused persons in the dock and has identified them, which has not been challenged by the defence. In paragraph no. 2 of his cross- examination, P.W. 7 has stated that the land where the occurrence of assault had taken place, belongs to Nand Kishore Prasad and on that day, the crops of corn and Arahar were existing. In paragraph no. 3 of his cross- examination, P.W. 7 has stated that Ram Surat Singh was not present at the place of occurrence. In paragraph no. 4 of his cross-examination, P.W. 7 has stated that Chandra Gokul Prasad, Yogendra Prasad, Mankeshwar Prasad, Ajoy Prasad, Ramanand Kumhar, Bhukhal God, Chandrama Gond, Kashi Gond, Satya Narain Gond were carrying lathi, danda, farsa as also Kanta. This witness has further stated that he had seen cut mark on the right hand of Nand Kishore Pasad. This witness in paragraph no. 5 of his cross- examination has further stated that several people were present from both the sides and assault had taken place from both the sides and at the place of occurrence he had seen that Mankeshwar Prasad had fallen down and a lot of commotion was prevailing at the place of occurrence whereupon he left the place of occurrence.
24. P.W. 8, namely, Chandra Gokul Prasad, has stated in his evidence that the occurrence dates back to 12 years back Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 44/61 and it was 7 A.M. in the morning and at that time he was employed in a job and since the day was Sunday, he was present at his house and upon hearing hulla, he had reached at the place of occurrence where he saw that Yogendra Prasad and Mankeshwar Prasad were lying in the field in an injured condition and he had seen the accused persons fleeing away. This witness has further stated that he had seen the accused persons running away while holding various type of weapons in their hands, who were Girdhari armed with farsa, Harihar Singh armed with farsa, Ramsurat Singh armed with bhala, Nand Kishore Prasad armed with lathi, Baban Singh armed with farsa, Kapildeo Singh armed with farsa, Amod Singh, armed with farsa, Daroga Singh, armed with lathi, Jagannath Singh, armed with bhala, Sukhdeo Singh armed with lathi, Sukhdeo Singh, armed with lathi, Ramdeni Singh, armed with lathi and Satya Narain Singh, armed with lathi. This witness has further stated that he had seen that some people were running away, namely, Lakhan Lal, Binay Kumar etc. and when he had reached at the place of occurrence, he found that witnesses were present there namely, Bhukhal Gond, Chandrama Gond, Ramanand Kumhar and Ajay Kumar present there. In paragraph no.2, P.W. 8 has stated that Mankeshwar Prasad and Yogendra Prasad both were Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 45/61 his brother and in an injured condition they were taken to Mirganj Police Station from where they were taken to Hathua hospital and from there they were sent to Gopalganj hospital. In paragraph no. 3, he has stated that prior to the occurrence he had given an application to the Superintendent of Police, Gopalganj and thereupon one 107 Cr. P. C. case was instituted against the accused person. This witness has further identified the persons standing in the dock of the court which has not been challenged by the defence. This witness has further volunteered that one of his brother, namely, Mankeshwar Prasad, who was injured during the course of occurrence had died in the Gopalganj hospital. This witness has further stated in paragraph-10 of his cross examination that whether mutation of the land, where occurrence had taken place, had been done in favour of Nand Kishore Prasad is not known to him, however, when the land was purchased by him and his family members, they had got the land mutated in their favour. He has stated that it is not a fact that in appeal, the D.C.L.R. had cancelled the mutation whereas the fact is that the court of D.C.L.R. had passed an Order in favour of the accused persons, against which they had filed an appeal and the Collector had cancelled the order of the D.C.L.R. and the case was remanded back for fresh enquiry. In paragraph Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 46/61 no. 12 of his cross-examination, P.W. 8 has stated that it is not a fact that he had not given his statement before the Officer Incharge to the effect that Girdhari Prasad was armed with farsa. He has also stated that he had told the Officer Incharge that Amod Singh, Baban Singh and Kapildeo Singh were holding farsa in their hands. In paragraph no. 14 of his cross examination, P.W. 8 had stated that prior to purchasing the land, he had enquired that the land in question was mutated in favour of Bengali Gond and receipt used to be granted to him. In paragraph no. 18 of his cross-examination, P.W. 8 has stated that at the time when they had purchased the land, they were convicted by the lower court in a case filed by the wife of Nand Kishore Prasad. In paragraph no. 19 of his cross-examination, P.W. 8 has stated that when he had taken the injured to the police station, he had disclosed the entire incident to the Police Inspector. In paragraph no. 21 of his cross-examination, P.W. 8 has stated that when he initially came to the place of occurrence, the accused persons were at a distance of 50/60 yards and were running towards the northern side. In paragraph no. 22 of his cross-examination, P.W. 8 has stated that when the accused persons were fleeing away, Ram Surat Singh was at the front and Girdhari Prasad was at the last and rest of the accused Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 47/61 persons were in between the line they had formed. This witness has stated that the clothes of the injured Mankeshwar Prasad and Yogendra Prasad had been soaked with blood and from the place of occurrence, the said two injured persons were carried on two rickshaws to Mirganj, from where they were taken to Hathua hospital on a motor car. It has been further stated that the Officer Incharge had come to Gopalganj hospital and the Officer Incharge had recorded his statement and also that of the injured Yogendra Prasad but had not recorded the statement of Mankeshwar Prasad. The Officer Incharge had also recorded the statement of Ajay Kumar.
25. P.W. 1, namely, Bishwanath Pandey is a formal witness, who has proved the formal FIR, which has been exhibited as Exhibit-1.
26. P.W. 10 is the Investigating Officer of this case, namely, Chandrika Prasad Singh, who has stated in his evidence that on 22.06.1980, he was Officer Incharge of Uchkagaon town Police Station and he had been sent to village Mahicha, P.S. Uchkagaon by the Superintendent of Police, Gopalganj, upon receipt of information regarding tension prevailing in the said village. He is stated to have received one application given by one Chandra Gokul Prasad and on the basis of the same, a Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 48/61 proceeding under Section 107 Cr. P.C. was initiated. He had proceeded against both the sides and had also posted police force in the said village. In paragraph no. 2 of his evidence, P.W. 10 has stated that after receiving information about the occurrence, he had gone to Gopalganj hospital where he had recorded the fardbeyan of the informant, namely, Yogendra Prasad Srivastava and had registered the case. He has further stated that he had himself written fardbeyan in his own writing, upon statement being made by the informant and after having read the same to the informant, the informant had put his signature upon finding the same to be correct and then two witnesses had put their signatures. This witness has identified his signature and writing on the fardbeyan. P.W. 10 has stated that on the basis of the fardbeyan, formal FIR was recorded in his writing, which he has identified. In paragraph no. 3 of his evidence, P.W. 10 has submitted that he had examined the injuries on the person of Yogendra Prasad Shrivastava and had prepared the injury report. Apart from the informant, he is stated to have seen one injured Mankeshwar Prasad, who was badly injured and the said injured person died prior to his statement being recorded. The inquest report was prepared by the Officer Incharge namely, K.P. Singh whose writing and signature has Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 49/61 been identified by this witness, apart from identifying the signature of the witnesses and the same has been exhibited as Exhibit-4. P.W. 10 has further submitted that the dead body of Mankeshwar was sent for post-mortem, whereafter he had gone to the place of occurrence and had inspected the same. In paragraph no. 6, P.W. 10 has described the place of occurrence. In paragraph no. 7, P.W. 10 has stated that he had seized blood soaked mud from the place of occurrence and seizure list was prepared, which he has identified and the same has been exhibited as Exhibit-5. In paragraph no. 8 he has stated that he had recorded the statement of the witnesses and had submitted the charge sheet against the accused persons. In paragraph No. 10 of his cross examination, P.W. 10 has stated that he had recorded the statement of witness Chandra Gokul Prasad on 22.06.1980 at his house and at the time when he had gone to the hospital, Chandra Gokul Prasad and Ajay Kumar were in the hospital. In paragraph no. 14 of his cross examination, P.W. 10 has stated about the statement made by the witness Sunil Kumar Srivastava and in paragraph no. 15 he has stated about witness Bhukhal Gond, whereas in paragraph no. 16 he has stated about the statement made by Chandrama Gond and has also stated that this witness had told him that 50/60 people had come in the field Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 50/61 at the time of occurrence. In paragraph-17, P.W. 10 has stated that the witness Ramanand Kumhar told him that Harihar, Ramsurat, Ramashray, Kapildeo and Baban had been recognized by him. In paragraph-18 of his cross examination, P.W. 10 has stated about witness Ajay Kumar Shrivastava, who had told him that he had gone to the Brahm Asthan and stayed there, where other persons, namely, Chandrama Gond, Ali Raza, Bhukhal Gond, Ramanand Kumhar and Israil Khan, were present whereafter all of them had gone to the field. In paragraph-19, P.W. 10 has stated that the witness Chandra Gokul Prasad has stated that this witness had not told him that Girdhari Prasad was holding farsa in his hand. In paragraph no. 20, P.W. 10 has stated that the witness Yogendra Prasad had not taken the names of the accused who had beaten Mankeshwar Prasad, after he had fallen down. In paragraph no. 22 of the cross-examination, P.W. 10 has stated that the accused Ramsurat Singh has stated regarding him having gone to Patna on the date of occurrence, which is also recorded in the diary and during the course of investigation, the said fact was enquired into and it has been found that the said fact of Ram Surat Singh having gone to Patna is correct, which has been recorded in paragraph 152 of the case diary. In paragraph-24 of his cross-examination, P.W. Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 51/61 10 has stated that with regard to the occurrence in question, Nand Kishore Prasad had filed a counter case bearing Uchkagaon P.S. Case No. 8(6)80 under Sections 147/ 148/ 323/ 328/ 306 of the Indian Penal Code against Yogendra Prasad and 12 other accused persons.
27. P.W. 11 is the doctor, who was posted as Deputy Superintendent, Sadar Hospital, Gopalganj on 22.06.1980 and had performed post-mortem on the body of Mankeshwar Prasad and had found the following ante mortem injuries:-
(i) One lacerated wound 2"x1/2" x bone deep on the left side of back of head.
(ii) One incised wound 2"x1/2" x bone deep on the left side of back of head crossing with injury no. (i) with surrounding swelling 3"x3".
(iii) Swelling on the left side of front of chest 10"x6" with achajmosis.
(iv) One lacerated wound ¾"x1/4" on the dorsem of the proximal phalaux of middle finger of right hand.
(v) Abrasion ½"x1/2" with swelling of front of knee.
(vi) Multiple small abrasions on the both lower limbs and back.
(vii) Abrasion ½"x1" on the front of left leg Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 52/61 with fracture of both bones of left leg.
28. P.W. 11 has further submitted that on dissection, extensive hematoma was seen on the left side of front of chest and external region of chest. Blood about sixteen (16) ounce was found in the left hemi- thorax. Fracture of left side rib-2nd, 3rd, 4th along with manubrium externi was found. Further laceration and cut of 1 ½"x1/8" x 1" was seen on the front surface of left lung. Crack fracture of skull-bone was seen below injury no. (i) and (ii). There was blood and clot below the scalp-bone. The meninges underneath was congested and there was blood in the brain tissues. PW-11 has stated that the death in his opinion was due to haemorrhage and shock caused by the above injuries. He has further stated that Injury no. (ii) was caused by sharp weapon, possibly by farsa, and all other injuries were caused by hard and blunt substance. Time elapsed since death was stated to be within 8 hours. P.W. 11 has also identified the post-mortem report and has stated that it is in his writing and bears his signature and the same has been marked as Exhibit-6.
29. P.W. 11 has further stated that on the same day at about 10 A.M. he had examined the injured Yogendra Srivastava and found the following injuries:-
(i) One incised wound 1½"x ½"x bone Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 53/61 deep on the left side of back of head.
(ii) One incised wound 1½"x ¼"x skin deep and ½"x 1/10" x skin deep and one lacerated wound ½ x ¼" skin deep all on the right side of nose.
(iii) Echymosis and abrasion 6"x 1/" on the right side of cheek and forehead.
(iv) Echymosis with abrasion 4"x1" on the outer side of right elbow region.
(v) Swelling of inner-half of dorsal surface of right palm with fracture of proximal phalanx of right finger.
(vi) Five echymosis with bruise 5"x1", 4 ½" x 1", 3" x 1", 4" x 1" and 6" x 1" on the back.
(vii) Echymosis with abrasion on the right side of thigh 1 ½"x 3/4" .
(viii) Swelling of right ankle region.
30. PW-11 has further stated that all the injuries are simple in nature except injury no. (iv), (v) and (vi) whose opinion was reserved. It has also been stated that all injuries except no. (i) and (ii) are by hard and blunt substance. Injury no.
(i) and (ii) are by sharp-cutting weapon, may be possible by farsa. Age of injuries has been stated to be within 6 hours. M.I.-
Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 54/61 Would be sear of injury no. (ii). This witness has identified the injured in the Court and said that his name is Yogendra Pd. Srivastava). PW-11 has further stated that on 28.06.1980, he gave opinion about injury no. (iv), (v), (vi) of Yogendra Pd. Srivastava as follows:- Injury no. (iv) fracture of lateral epicondil of right humorous bone, Injury no. (v) fracture of proximal phalanx of right finger right hand, and fracture of metacarpal bone of middle finger of right hand and Injury no.
(vi) fracture of caracoid process of left scapula. The said three injuries have been stated in opinion of PW-11 to be grievous in nature. The aforesaid two reports have been identified by P.W. 11 and he has stated that they are in his writing and bear his signature and the same have been marked as Exhibit- 7 and Exhibit- 7/1. The reserved opinion was given by PW-11 after examination of X-ray plates. All the three X-ray plates have been identified by P.W. 11, who has also identified his signature upon the same and the same have been marked as Exhibits- 3/4, Exhibit-3/5 and Exhibit-3/6.
31. The defence has examined five witnesses. D.W. 1 is Bindeshwar Prasad, who is an Advocate, practicing in the Patna High Court and he has supported the plea of alibi of accused Ramsurat, however, Ramsurat Singh is no longer alive, Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 55/61 hence, I do not find any necessity of discussing the evidence of D.W. 1.
32. D.W. 2 is Sri Krishna Singh, resident of village Balbhadra Patti, police station Uchkagaon, District Gopalganj and he has identified certain documents, hence, his deposition is not at all relevant for the present case.
33. D.W. 3 is Bimlesh Tiwary, resident of village Panchrukhiya, police station Barauli, District Gopalganj and he has also identified certain documents pertaining to the land/ property, hence, his evidence is also of no relevance.
34. D.W. 4 is Bishwanath Raut, who has identified the formal FIR of the counter case and the same has been marked as Exhibit- J and this witness is a formal witness and apart from identifying the formal FIR, he has not stated anything.
35. D.W. 5 is Binod Kumar Srivastava, who is also a formal witness and has identified one injury report written in the hand-writing of his deceased father, which has been exhibited as Exhibit-L.
36. Besides hearing the learned counsel for the parties, I have perused the entire evidence brought on record and after going through the evidences of the independent eye witnesses i.e. P.W. 3 Bhukhal Gond, P.W. 4- Chandrama Gond, Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 56/61 P.W. 5- Rama Nand Gond and P.W. 7- Israil Khan, it is evident that all the said witnesses have unanimously stated that accused Harihar Singh had inflicted farsa blow on the head of the deceased Mankeshwar Prasad resulting in him falling on the ground. In fact, all of the said independent witnesses have further unanimously deposed that the appellant no. 1, namely, Ramashray Singh had inflicted "Khocha" blow on the deceased Mankeshwar Prasad resulting in him receiving grievous injuries. However, as far as the independent eye witnesses, i.e. P.W 3, P.W. 4 and P.W. 7 are concerned, they have not alleged any specific overt act as against the appellants no. 2, 3 and 4. In fact, P.W. 7, namely, Israil Khan has also not deposed regarding the appellants no.2 to 4 being present at the place of occurrence. As far as P.W. 4 is concerned, it is evident that he has also not taken the names of the appellants no. 2 to 4 specifically, as having been present at the place of occurrence. As far as P.W. 6 is concerned, he is stated to be the nephew of the deceased and son of the informant, nonetheless he has also not alleged any specific overt act by the appellants no. 2 to 4, however, he has supported the factum of the appellant no.1 having hit the deceased Mankeshwar Prasad by "Khocha" and he has also stated that Harihar Singh had assaulted the deceased by farsa. Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 57/61 Now coming to the evidence of P.W.8, who is brother of both the deceased and the informant, his testimony cannot be relied upon inasmuch as he has admitted in his cross examination that he reached at the place of occurrence when the accused persons were fleeing away, hence, obviously this witness had not actually witnessed the occurrence, particularly when the accused persons are stated to have assaulted the deceased/ injured. As far as P.W. 2 is concerned, he is the son of the deceased and he has also stated about the accused Harihar Singh having assaulted the deceased Mankeshwar Prasad by farsa.
37. As far as the informant of this case i.e. P.W. 9 is concerned, his thrust is also upon the accused Harihar Singh and he has corroborated the factum of the said accused having assaulted the deceased Mankeshwar Prasad by farsa. This witness P.W. 9 has also corroborated the factum of the appellant no.1- Ramashray Singh having hit the deceased Mankeshwar Prasad on his right arm by "khocha" and further has stated that the appellant no.1 had also assaulted him.
38. Considering the facts and circumstances of the case, as also the evidence on record and the submissions made by the learned counsel for the appellants, I am of the view that the main accused in the present case is Harihar Singh, since Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 58/61 deceased, who has given the fatal blow by farsa on the head of the deceased Mankeshwar Prasad, which is also corroborated by the evidence of the Doctor i.e. P.W. 11 and is also supported by the evidence adduced by all the witnesses. I am further of the view that as far as the appellants no. 2 to 4 are concerned, the independent witnesses have neither alleged any specific overt act on their part nor have stated about their presence at the place of occurrence. Even the informant i.e. P.W. 9 has not alleged any specific overt act as against the appellants no. 2 to 4, though the said witness has supported the factum of the presence of the said appellants no. 2 to 4 at the place of occurrence. Thus, a conjoint reading of the entire evidence creates a serious doubt about the case of the prosecution qua the appellants no. 2 to 4 inasmuch as firstly, no specific overt act has been attributed to the appellants no. 2 to 4 and secondly, a bare reading of the entire evidence also creates serious doubt about their presence at the place of occurrence. Moreover, no common object is proved qua the appellants no. 2 to 4 from a bare perusal of the evidence on record inasmuch as it has not been proved that either the said witnesses were interested in the plot in question or were related to the main accused, namely, Nand Kishore Prasad nor they are said to be having any prior Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 59/61 enmity with the members of the prosecution party, much less with the informant. Thus, Section 149 of the Indian Penal Code would also not come to the aid of the prosecution for the purposes of convicting the appellants no. 2 to 4.
39. Accordingly, by way of giving benefit of doubt, the present appeal is allowed qua the appellants no. 2 to 4 and the judgment of conviction dated 24.06.1993 as well as the order on the point of sentence dated 26.06.1993 passed in Sessions Trial No. 253 of 1983 by Shri Binod Mohan Srivastava, the then learned Additional District & Sessions Judge, Gopalganj, is hereby set aside. Since the appellants were directed to be released on bail- bonds at the time of admission of the appeal, hence, in view of the setting aside of the judgment of conviction and sentence, they are hereby discharged from the liability of their bail bonds.
40. Now, coming to the case of the appellant no.1, I find, on perusal of the evidence on record, that there is no reason to doubt the prosecution case qua the appellant no.1 herein inasmuch as the testimony of the informant (PW-9) regarding appellant no.1 having not only inflicted blow by means of "Khocha" on the deceased Mankeshwar Prasad but also having hit him, is consistent with the evidence of the other Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 60/61 eye witnesses including the independent witnesses i.e. P.W. 3, P.W. 4 and P.W. 5, who have all stated that the appellant no.1 had hit the deceased Mankeshwar Prasad by means of "Khocha". In fact, P.W. 6, who was admittedly present at the place of occurrence, has also corroborated the factum of the appellant no.1, having hit the deceased Mankeshwar Prasad by "Khocha". As far as the evidence of the Doctor i.e. P.W. 11 is concerned, the anti mortem injuries found by him on the body of the deceased Mankeshwar Prasad fully corroborates the case of the prosecution qua the appellant no.1 herein and in fact, the doctor has further stated in his evidence that "the death, in my opinion, was due to haemorrhage and shock caused by the above injuries". Thus, the medical evidence not only corroborates the case of the prosecution qua the appellant no.1 but also corroborates the assault made by the appellant no.1 on the informant, namely, Yogendra Prasad.
41. Considering the facts and circumstances of the case, as well as the specific evidence, which has been brought on record against the appellant no.1, including the consistency in the evidence of eye witnesses, there is no reason to create any doubt. I have examined the materials available on record and I do not find any apparent error in the impugned judgment Patna High Court CR. APP (DB) No.326 of 1993 dt.21-10-2019 61/61 of conviction and sentence, as far as the appellant no.1 is concerned, hence, no interference is required, qua the appellant no.1. Accordingly, the present appeal qua the appellant no.1 stands dismissed. In view of dismissal of the appeal, qua the appellant no.1 herein, since the appellant no.1 was extended the privilege of bail at the time of admission of the present appeal, the bail bonds of the appellant no.1 is hereby cancelled and the appellant no.1 is directed to surrender before the court below for serving remaining period of sentence.
( Mohit Kumar Shah, J) I agree.
Rakesh Kumar, J:
(Rakesh Kumar, J) Tiwary/-
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