Patna High Court
Sanjay Singh vs The State Of Bihar on 6 July, 2022
Author: Rajeev Ranjan Prasad
Bench: Ashwani Kumar Singh, Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.174 of 2016
Arising Out of PS. Case No.-74 Year-1994 Thana- VIJAYEPUR District- Gopalganj
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Sanjay Singh, Son of late Shivnath Singh, Resident of Village -Sarupai Tola,
Khapey ,P.s Vijayeepur District Gopalganj.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr.Prakash Kumar, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
For the Informant : Mr. Ajay Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
and
HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 06-07-2022
The sole appellant in this case is seeking setting
aside of the judgment of conviction dated 19.12.2015 and the
order of sentence dated 02.01.2016 passed by learned Addi-
tional Sessions Judge - I, Gopalganj in Sessions Trial No.
370/2007/Registration No. 1974/2013 arising out of Vijaipur
P.S. Case No. 74 of 1994 dated 21.09.1994 registered for the
offence under Sections 302/34, 201 and 379/34 of the Indian
Penal Code ('I.P.C.') read with Section 27 of the Arms Act.
2. By the impugned judgment and order the appel-
Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022
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lant has been convicted for the charges under Section 302/34
of the Indian Penal Code and Section 27 of the Arms Act and
has been ordered to undergo life imprisonment and to pay a
sum of Rs. 10,000/- as fine. On failure to deposit the fine the
appellant shall be liable to undergo an additional period of six
months. For the offence under Section 27 of the Arms Act he
has been sentenced to undergo three years of imprisonment
and a sum of Rs. 5,000/- as fine, in case of failure to deposit
the fine he would be required to undergo imprisonment for an
additional period of three months. Both the sentences are to
run concurrently.
3. The First Information Report (Exhibit-4) has been
lodged on 21.09.1994 at 1:30 P.M. by one Chandrashekhar-
Gupta, son of Faujdar Gupta resident of the village- Rasulpur,
P.S.-Vijaipur, District - Gopalganj. The Sub-Inspector cum
Officer-in-Charge (P.W.8) has recorded fardbeyan at 1:30
P.M. on the alleged place of occurrence (P.O.) which is said to
be 'RasulpurSarehJogibabaAsthan'. In his fardbeyan the in-
formant alleged that at about 8:30 A.M. on the same day he
along with his brother Subhash Chandra Gupta (deceased) and
nephew Bhola Gupta left for his native village Rasulpur as
they heard that flood water had entered into their house. His
Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022
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brother Subhash Chandra Gupta was carrying his licensee ri-
fle whereas the informant was himself carrying a single bore
licensee gun. At about 9:00 A.M. when they reached near 'Ra-
sulpurSarehJogibabaAsthan', his brother Subhash Chandra
Gupta stopped there watching the fishermen who were in-
dulged in fishing. At this stage, it is alleged that in the mean-
time (1) Vijay Singh, son of Jangbahadur Singh lashed with
rifle (2) Vishwanath Singh son of Jangbahadur Singh with ri-
fle (3) Sanjay Singh, son of late Shivnath Singh with rifle (4)
Rajesh Singh, son of Vishwanath Singh carrying a single bore
gun, all resident of village SaroopaiTolaKhape, P.S. - Vijaipur
(5) Bharat Shahi, son of not known with rifle (6) Dharmen-
draShahi, son of Bharat Shahi having one single bore gun,
resident of village - Saraura P.S. KotwaliDewariya, District -
Dewariya, Uttar Pradesh (7) Ramakant Shah, son of Radha
Shah carrying single bore gun (8) Yogendra Shah, son of
Radha Shah lashed with a lathi, both residents of village -
Marar (9) MajidMiyan lashed with lathi (10) Gorakh Ram,
son of not known, village - Babhnauli having lathi in his
hand along with 2-3 unknown persons came there. It is al-
leged that Vijay Singh said "yahi sala Subhash hai bhun dalo"
and he fired from his rifle which hit his brother Subhash
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Chandra Gupta on his back side. Sanjay Singh fired from his
rifle which hit on the eyes of Subhash and in the meantime
Vishwanath Singh, Rajesh Singh, BharathShahi, Dharmen-
draShahi, Ramakant Shah started firing from their gun and ri-
fle as a result whereof the body of the brother of the informant
was riddled. One Raghubansh Singh who was an employee of
Nalkoop Department was going on that way to Nalkoop, his
body was also riddled and both the persons died on the spot it-
self.
4. It is then alleged that when Subhash fell down af-
ter receiving the shot, one person of Vijay Singh (co-accused)
went there to snatch the rifle from Subhash but he also suf-
fered the firing which hit him and the said person died on the
spot. The informant (P.W.5) claims that Sanjay Singh (the ap-
pellant) picked up the rifle of the deceased brother of the in-
formant. The informant alleges that because of the firings
there was a terror in the 'Sareh'. The informant and others
were shouting and started fleeing away towards their village.
He further claims that the dead body of his brother was pulled
away in the water by co-accused Ramakant Shah, Yogendra
Shah, MajidMiyan and Gorakh Ram with an intention to con-
ceal the same. The cause of the occurrence is said to be a land
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dispute with the family of Vishwanath Singh which was going
on for the last ten years and that in Vijaipur market the ac-
cused Vijay Singh, Sanjay Singh and Vishwanath Singh were
demanding randari tax which was being opposed by the de-
ceased brother of the informant.
5. After investigation police submitted a charge-
sheet bearing no. 35 of 1998 dated 12.09.1998 against Vijay
Singh (absconder) and (2) Sanjay Singh (absconder) (appel-
lant). Earlier a chargesheet bearing no.71/1994 dated
28.09.1994was filed against co-accused (i) MajidMiyan (ii) Gorakh Ram and (iii) Ramakant Shah for the offence under Section 302/201/379/34 of the I.P.C. and Section 27 of the Arms Act. The investigation was kept pending against the co- accused (i) Yogendra Shah (ii) Vishwanath Singh (iii) Rajesh Singh (iv) Bharat Shahi and (v) Dharmendra Shahi. Later on a supplementary police report was filed bearing no. 95/1998 in which the police submitted a final form against the aforemen- tioned five co-accused. Since no sufficient material could be found against them, they were not sent up for trial.
6. Cognizance was taken and upon finding sufficient material to proceed against the charge-sheeted accused the records were committed to the court of sessions, where Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 6/58 charges were framed against the appellant on 20.12.2011 for the offence under Sections 302/34, 201, 379/34 of the I.P.C. and Section 27 of the Arms Act. The appellant denied the charges and claimed to be tried.
7. On behalf of the prosecution altogether nine wit- nesses were examined. P.W.-1 is Radha Krishna Kharwal who is a witness on the inquest report of the deceased Subhash Chandra Gupta but in course of trial he denied having any in- formation with regard to dead body lying near Charakiya Math. He says that he had not given any statement to police. He denied having said that the accused persons had taken away the dead body in which direction. In his cross-examina- tion he says that he went to see the dead body, the body was kept at a dry place and two more dead bodies were there which were of Raghuvansh Singh, Tubewell Operator and there was an unknown body. According to this witness, in his cross-examination he says that people were saying that the murder has taken place at unknown place and the dead bodies were left there. The clothes on the body of the other two dead bodies were also dry. There was no blood-stain there. P.W.-1 has been declared hostile by the prosecution.
8. P.W.-2 is Chanakaya Bhagat who has stated that he Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 7/58 had not made any statement before the police. This witness has also been declared hostile. He denied the suggestion of the pros- ecution with reference to his earlier statement before the police. In Paragraph '3' of his cross-examination, he says that occur- rence had not taken place in his presence and when he reached there he heard that some unknown persons had killed and thrown the dead body. This witness says that in his presence the family members of Subhash Gupta and Chandrashekhar Gupta (PW-5) came there with police. The dead body of the Subhash Gupta was not there. This witness is completely silent as to the place of occurrence and he is not an eye witness. P.W.-2 has also been declared hostile.
9. P.W.-3 is Fulena Chaursiya. This witness has also been declared hostile after his statement that he had not made any statement before the police. In his cross-examination he has stated in paragraph '3' that he had not seen any accused persons from his eyes and he had not heard the name of the accused in the murder of Subhash Gupta.
10. P.W.-4 is Bhola Gupta who is son of the deceased Subhash Chandra Gupta. In the year 2011 while deposing before the learned trial court he declared his age as 29 years. He has supported the prosecution story. P.W.-4 has stated that on Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 8/58 21.09.1994 at about 9.00 am he had left with his father and un- cle for Rasulpur village after hearing that flood water had en- tered in his house. His father (deceased) was carrying a licensee rifle whereas his uncle (PW-5) was having a licensee one single bore gun. This witness has stated that when they reached at Jogibaba Asthan they saw that the fishermen were involved in fishing. It is stated that all three of them stood there and were looking at the fishing being going on, in the meantime from be- hind (from eastern side) Vijay Singh, Sanjay Singh (appellant), Vishwanath Singh and Bharat Shahi all the four persons having rifle in their hands and Rajesh Singh, Dharmendra Sahi, Ra- makant Shah all having single bore gun and Majid Miya, Gorakha Ram and Yogendra Sah lashed with lathi together with 2-3 unknown persons came there. According to P.W.-4 on reach- ing there Vishwanath Singh and Rajesh Singh caught hold of his uncle (PW-5) and Majid Miya snatched the licensee gun from PW-5, Vijay Singh looking at the father of P.W.-4 said "Yahi sala subhashwa hai sale ko bhun dalo" and he having rifle in his hand fired upon the father of P.W.-4 which hit on the back side of father of P.W.-4. It is then stated that on the father of P.W.-4 turning around Sanjay Singh (appellant) who was having a rifle in his hand fired upon the father of P.W.-4 which hit the Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 9/58 eyes of his father and he fell down there.
11. This witness further says that thereafter all the ac- cused persons started indiscriminate firing which hit the father of P.W.-4 and one Raghubansh Singh who died on the spot. P.W.-4 says that because of the indiscriminate firing his father died on the spot. It is further stated that from amongst accused persons one person moved towards father of P.W.-4 and at- tempted to snatch away the rifle of his father but in the indis- criminate firing of the accused persons he also received the bul- let and died there. It is further stated by P.W.-4 that because of the firing there were tension and the people started fleeing away here and there. About this appellant it is stated that he picked up the licensee rifle of father of P.W.-4 even as co-accused Ra- makant Shah, Yogendra Shah, Majid Miya, Gorakh Ram pulled away the dead body of the father of P.W.-4 towards 'Charakhi- yaram Janki Math' with an intention to conceal the dead body. It is stated that the accused persons threatened the people present at the spot that if anybody would say anything he would be mur- dered like Subhash. Regarding the motive behind the occurrence P.W.-4 says that main reason for occurrence is that Vijay Singh, Sanjay Singh (appellant) and Vishwanath Singh were demand- ing rangdari tax from the traders of Vijaipur market which was Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 10/58 being opposed by his father.
12. In paragraph '10' in course of his examination P.W.-4 says that one Hemraj was complaining about the demand of rangdari for about two years prior to the occurrence and he had complained in this regard to P.W.-4 at least on four occa- sions. At this stage, P.W.-4 says that at that time age of Hemraj was 28-29 years and the age of P.W.-4 was 10 years only. He has stated that distance of Vijaipur to Rasulpur village is one and half kilometer. His father was carrying his rifle wherever he was going. He says that the place of occurrence is situated near Jogibaba Asthan and his village is near to that place but as re- gards this occurrence he had not seen his uncle Prabhunath Gupta at the place of occurrence. After the occurrence, his uncle and aunt and others came there. P.W.-4 has disclosed his date of birth as 08.08.1982 in the school from where he had appeared in the matriculation examination.
13. In paragraph '21', P.W.-4 says that road on which they were going was going through east to west and they were going towards western direction. When they crossed Marar vil- lage then they got water and near 'Jogibaba Sthan' at some places the water was below the knee and at some places it was above the knee. He says that the place where they were standing Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 11/58 and looking at the fishing the road is passing through north- south and about 25-30 persons were present who were looking at the fishing. P.W.-4 says that he was standing at a distance of 10-12 ft. South to his father, his uncle was standing at a distance of 14-15 ft. North to his father. P.W.-4, however did not remem- ber that in between his place and where his father was standing and the place in between his father and uncle the said 25-30 per- sons who were present there were standing or not. He did not re- member that whether he remained standing when the firing was taking place and further did not remember as to in which direc- tion he fled away. According to this witness when the assailants went away then he went towards his village Rasulpur and when he reached near his village, the villagers had started coming. He identified his co-villager Yadav Chand Gupta. From his family his elder father/uncle namely Prabhunath Gupta came then all of them reached at the place of occurrence. He did not remember as to what was happening at the place of occurrence when they reached there from the village and how much time was taken in his again reaching at the place of occurrence. He did not re- member whether his uncle (P.W.-5) was also standing at the time of indiscriminate firing at the spot.
14. P.W.-4 has stated that on both sides of road, in the Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 12/58 fields there were flood water but he did not remember whether more flood water were there on the Rasulpur road or in the side where the dead body of his father was being pulled away. This witness has stated in paragraph '30' that he had asked the vil- lagers to stop the accused persons from taking away the dead body but the villagers were afraid and they did not want to in- volve in any scuffle. The accused persons who were pulling away the dead body had lathi in their hand but P.W.-4 and others did not ask them to stop. He has further stated that the way through which the dead body was being dragged in the field there were paddy crops.
15. In paragraph '32' of his cross-examination, P.W.-4 says that after about 40-45 minutes from the time of occurrence police from Vijayipur police station reached there. According to this witness he and his uncle had told the police about the killing and snatching of the gun. The police had recorded the statement of his uncle (P.W.-5) and thereafter the statement of P.W.-4 at the place of occurrence and both of them had signed thereon. This witness states that Daroga Ji, his uncle (P.W.-5) and some villagers had gone towards the direction in which dead body had been taken away and P.W.-4 remained at the place of occurrence till evening. It is stated that after recording the statement of his Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 13/58 uncle and his own statement Daroga Ji and Siphi were in search of dead body of his father but the dead body could not be found. The dead body was found in the evening and P.W.-4 was not present at the place where the dead body was found. He had seen the dead body only at police station at about 7.00 pm. He did not remember whether the clothes of his father had any hole of bullet but he had seen the hole to his stomach. This witness has further stated that at the time of firing Raghubansh Singh was standing at a distance of 25-30 ft. North-east from the place where P.W.-4 was standing. Raghubansh Singh was standing at a distance of 18-20 ft. North-east from the father of P.W.-4 and he received bullet after the father of P.W.-4 had already suffered the shot. His uncle (P.W.-5) was standing at a distance of 7 ft. and Raghubansh Singh was standing 7 ft. East to P.W.-5.
16. In paragraph '39' this witness says that neither he nor his uncle or any other spectator present there received any bullet. This witness was suggested by the defence that neither he nor his uncle (P.W.5) was present at the place of occurrence. He also denied that his father and Raghubansh Singh were running a gang and there was encounter between the gang of his father and gang of Dhanu Tiwary in which his father, Raghubansh Singh and Dhanu Tiwary of another gang were killed. The de- Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 14/58 fence also suggested that the occurrence had taken place some where else and both the dead body had come flowing in the wa- ter. P.W.-4 also denied the suggestion that by taking police into connivance P.W.-5 had got changed the first fardebyan and re- corded another fardbeyan with an intention to falsely implicate the accused persons.
17. P.W.-5 is Chandra Shekhar Gupta who is brother of the deceased Subhash Chandra Gupta and claims himself an eye witness. He has supported the prosecution story and has de- posed on the line of P.W.-4 to some extent. He has stated that he and his brother had started to go Rasulpur carrying rifle and gun for self-defence. P.W.-5 has deposed that he had cartridges in full belt and three cartridges were there in the belt cover. He did not know as to how many cartridges were there with Subhash Chandra Gupta who was carrying rifle. In paragraph '10' this witness says that all the three of them were standing having their face towards the western direction and they were looking at the fishing. He has further stated that his brother Subhash Chandra Gupta was standing in the middle and south to him was Bhola (P.W.-4) and north to him was P.W.-5. The ac- cused persons came from eastern side to western side and to- gether with the accused persons the other persons who are cut- Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 15/58 ting the grass were also present. On the road where this witness was standing there were two ft. water which were flowing slowly. He says that none of the three of them had seen the as- sailants coming before snatching of gun from him. According to this witness when they tried to flee away the accused threatened them that if he would try to run then they would kill him. In his knowledge Subhash Chandra Gupta had suffered two shots and occurrence took place for about two minutes. This witness says that Raghubansh Singh was standing towards east-north corner from his brother Subhash and at that place the road is going from north to south. He further says that on moving towards Marar village Raghubansh Singh will come first then P.W.-5 and thereafter his brother Subhash and in paragraph '18' P.W.-5 says that the accused persons had come from the side of Marar village.
18. This witness further says that within 55-60 minutes of the alleged occurrence police reached there. Within half an hour of the occurrence villagers had also come there at the place of occurrence and P.W.-5 as well as P.W.-4 had also come back. In paragraph '20' P.W.-5 admits that police had taken his oral statement there but had not recorded the same on paper. He did not remember that police had prepared inquest re- Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 16/58 port of the two dead bodies lying there or not. This witness says that the police had gone in search of the dead body of his brother but after not finding the same again came to the place of occurrence and recorded his statement. It is then stated that P.W.-5 had also gone with the police in search of dead body and after a search of 2-3 hours they returned. He states that after about half an hour of recording of his statement at the place of occurrence he had left for his Vijaipur house. In paragraph '23' P.W.-5 admits that after giving his statement he came to know about the name of Raghubansh Singh and he came to know after his first statement before search of the dead body. The people assembled had told him about his name as he did not know him and they were of another village. In paragraph '25', this witness says that he heard it from the police that one of the dead body is that of Raghubansh Singh. He did not remember whether police had recorded the statement of any villager regarding identifica- tion of the dead body of Raghubansh Singh in his presence. P.W.-5 did not know whether any trader of Vijaipur market has lodged any case against the accused persons alleging demand of rangdari. He admits that neither he nor his brother Subhash Chandra Gupta had lodged any case against the accused persons for the alleged demand of rangdari. He admits that he had not Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 17/58 lodged any case in Vijaipur police station saying that because he and his brother were opposing the accused persons in demand- ing rangdari, they were under threat to their life. They had also not lodged any case saying that because of a land dispute with the family of Vishwanath Singh they had any threat to their life.
19. P.W.-5 is aware that in course of investigation po- lice had not submitted chargesheet against some of the co-ac- cused and police had discharged co-accused Vishwanath Singh, Rajesh singh, Bharat Shahi, Dharmendra Shahi and Yogendra Shah. In paragraph '28' P.W.-5 says that when the police again went in search of the dead body then he was also accompanying him but there was no other member of the family. He denied the suggestion of the defence that in his house where he was living with his brother Subhash Chandra Gupta criminals were assem- bling and both the brothers were protecting the criminals and they had formed a gang. P.W.-5 denied that he had any informa- tion that unknown person Dhanu Tiwary was a criminal. He denied the suggestion that on 20.09.1994 during night hours there was any encounter between two gangs of Subhash Chandra Gupta and Dhanu Tiwary in which firing had taken place. P.W.-5 has further stated in paragraph '22' that in course of investigation police had seized a gun and he had made an ap- Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 18/58 plication in the court for release of the said gun in his favour but the same was not released in his favour. He had not challegend the order of the court either in the sessions court or in the Hon'ble High Court. The said gun was released in favour of Ra- jendra Singh (DW-1). P.W.-5 has further stated that he did not remember his fardbeyan that from the eastern side the accused persons had come. He denied the suggestion that by taking po- lice in connivance a false case has been lodged and that P.W.-5 was not present at the place where the dead body of Dhanu Ti- wary and Raghubansh Singh were lying. In paragraph '35' it is stated that it is not a fact that on 21.09.1994 in the evening po- lice had traced the dead body and brought the same to the police station where he himself went and got wrong fardbeyan recorded.
20. P.W.-6 is Dr.Tirthanand Singh who was posted as Orthopedic Surgeon at Sadar Hospital, Gopalganj and on 22.09.1994 at 2.00 pm he had conducted the postmortem exami- nation on the dead body of Subhash Chandra Gupta. He has proved the postmortem report and he has found the following anti-mortem injuries on the person of the deceased:-
"(i) ½" diameter oval aperture with inverted blackened margin of wound on the back of right lumber region into deep to ab-
dominal cavity i.e wound of entrance. 1½ diameter circular wound Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 19/58 with everted margin of wound and protruding outside the omentum and loop of intestine on front of abdomen above umblicus i.e. wound of exist.
(ii) ½" diameter oval aperture with inverted margin of wound on outer canthus of left eye i.e. wound of entrance and 1¼"
oval aperture with everted margin of wound on back of right ear (the wound of exit). Orbital bone, frontal bone on left side and temporal and mastoid bone on right side were found fractured, left side of eye ball evicerated.
(iii) Lacerated wound on front and back of left hand 2 ½"x1"x deep to bone.
On P.M. Dissection- Abdominal cavity and pelvic flour was full of blood and blood clotts, small gut, large gut were found lacerated, Mesentric vessels were lacerated wound of exist and wound of entrance was in continuation. There were comminuted fracture of orbital fossa, valt of skull, frontal bone on left side and temporal bone with Mastoid process on Rt. Side. Brain tissue were lacerated and intermingled with blood and blood clotts. Wound of en- trance and exist were in continuation.
Hence the death was due to shock and hemorrhage arising out of above mentioned both injuries caused by firearm (rifle). "
21. In his cross-examination this witness says that he cannot say as to which injury out of the three injuries was caused at first on the person of the deceased. Injury no.(i) and Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 20/58
(ii) may be caused at different time and not at a time. If the in-
jury no.1 is caused at first deceased will be fallen on earth. It is not neccessary that deceased will fall on the ground facing front portion. P.W.-6 has further opined that blackening of skin around the wound margin may be possible when the body of de- ceased is at the distance of 6 ft. Or less from exit point of firearm. He did not find any sign of drowning the body into wa- ter and the time elapsed since death is within 36 hours. Regard- ing the rigor mortis present on the person of the deceased it is stated that it may start from 2.00 am in the night of 20/21-9-94. The postmortem report of Subhash Chandra Gupta has been proved as Ext.-3.
22. P.W.-7 is Dr.Janak Lal Sharma. He had conducted the postmortem examination on the dead body of the deceased Raghubansh Singh and had found anti-mortem injuries on the body of the deceased as under:-
"(i) one big zig-zag lacerated wound with sacrifice of whole skull, Nasal bone, orbit of eye (Eyes were intact), cervical ver-
tebrae Mandible, Trachea, Larynx were lacerated
(ii) one 1" oval lacerated wound on left iliac region of ab- domen with profusion of large gut entry wound and abdominal tissue lacerated on Dissection wound of entry.)
(iii) One 1½" oval lacerated wound on back just parallel to Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 21/58 injury no.(ii) - wound of exit In my opinion death was due to shock and haemorrhage caused by injury nos.(i) and (ii). Injury No.(i) caused by explosive and injury no.(ii) by firearm."
23. About injury no.1 P.W.7 states in his opinion that injury no.(i) was caused by explosive and injury no.(ii) was caused by firearm. The postmortem report has been marked as Ext.3/1. The time elapsed since death in this case has been recorded as within 24 hours. In his cross-examination, P.W.-7 says that injury nos.(ii) and (iii) of deceased Raghubansh Singh are the injuries caused by one shot. His injury nos.(i) and (ii) are very serious in nature. The doctor has opined that after sustain- ing either injury no.(i) or injury no.(ii) person will not remain stand on his leg rather he would be fallen down. The doctor had not recorded in his report as to whether there was any mark of blackening which was caused by firearm. It means shot was fired from long range. The doctor has stated that on the basis of police requisition he had mentioned in his report that dead body of deceased Raghubansh Singh was found near Nalkup at vil- lage Vijaipur. He had further deposed that injury no.(i) of de- ceased Raghubansh Singh and injury no.(i) of unknown de- ceased are most similar in nature. The injury of the unknown de- ceased has been found as under:-
Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 22/58 "(i) one big zig-zag lacerated wound of size 6"x 4" cavity deep spreaded on lefft sub Mandibular region to lefft side of skull.
Left Mandible, Teeth, upper palate, Nasal bone, left eye orbit, pari- etal bone of skull with brain matter sacrificed
(ii) Small abrasion 3"x3" on front left side of chest
(iii) one abrasion 3"x3" on left hypo chondrium In my opinion death was due to shock and haemorrhage caused by injury no.(i) which was caused by firearm."
24. The postmortem report of unknown body has been marked as Ext.3/2. In his cross-examination the doctor says that 'Zig-zag lacerated wounds were found over dead bodies of both the deceased but their size were different and no size possible by explosive substance. He has not mentioned the nature of injury no.(ii) and (iii) of unknown deceased. These injuries may be possible by fallen hard substance.
25. P.W.-8 is Ram Pavitra Singh who is the I.O. of this case. He has proved the fardbeyan recorded by him in his own pen and had drawn the formal F.I.R. The formal F.I.R. has been proved as Ext.4. He has proved his signature on the fardbeyan as Ext.1/2 and the seizure list as Ext.2/1. This witness has proved the inquest report of Raghubansh Singh as Ext.5, the in- quest report of unknown dead body as Ext.5/1 and the inquest report of Subhash Chandra Gupta as Ext.5/4. In course of cross- Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 23/58 examination in para '2', P.W.-8 states that he had received in- formation through rumour about the alleged occurrence at the place of occurrence which is situated at a distance of two kilo- meter from the police station. He claims to have recorded the same as Sanha entry but did not write the name of the person who gave the information. The I.O. (P.W.-8) claims that he started at 9.30 am for the place of occurrence and after chasing accused persons he came at the place of occurrence at about 1.30 pm. He has specifically stated in paragraph '3' of his cross- examination that he had not reached the place of occurrence prior to 1.30 pm and in his case diary he had not recorded that after leaving the police station he had conducted raid in search of the accused persons. He met the infformant (P.W.-5) at the place of occurrence at about 1.30 pm.
26. P.W.-8 prepared the inquest report of Raghubansh Singh and unknown dead body at 2.30 pm and 2.45 pm respec- tively. Neither the witness Chandrashekhar nor Bhola Gupta are inquest report witness of these two dead bodies. P.W.-8 did not find any sign of fishing at the place of occurrence. He further deposed in paragraph '9' that the dead body of Raghubansh Singh was identified by Sitaram Sah and Phulan Prasad Srivas- tava. The I.O. had not recorded in the diary that the dead body Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 24/58 of Raghubansh Singh was identified by informant Chan- drashekhar Gupta (P.W.-5) or his nephew Bhola Gupta (P.W.-4). In Paragraph '10' this witness says that he had recovered the dead body of Subhash Chandra Gupta from inside the water but he did not record in the case diary as to whether the clothes on the body of Subhash Chandra Gupta were dry or wet. He had not recorded whether the dead body was swollen in the water or it was normal. P.W.-8 has not recorded as to whether the dead body or the clothes of the Subhash Chandra Gupta had got any mark/sign of dragging. Regarding identification of the unknown dead body P.W.-8 states that he got to know about Dhanu Ti- wary only at the police station. This witness has denied sugges- tion that the fardbeyan of this case is anti-time and anti-dated. It is denied that in connivance with the informant he had recorded the fardbeyan at the Vijaipur police station. He has denied the suggestion of the defence that his investigation is faulty and one sided.
27. P.W.-9 is one Sachitan @Sachita Yadav who claims that he had seen the alleged occurrence as an eye wit- ness. This witness has stated in paragraph '21' that Subhash Chandra Gupta was standing at about 15-20 ft. North to Jogibaba Sthan which was a dry place. He has further stated in Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 25/58 paragraph '22' that the accused persons had come through road and moving in the water. The road could be seen from the dis- tance of half kilometer towards east side. In paragraph '28' this witness says that the accused persons had caught hold of Chandrashekhar Gupta (P.W.-5) for about 3-4 minutes and snatched his gun but did not try to kill him. This witness has fur- ther stated that when the accused persons were snatching the gun of Chandrashekhar Gupta at that time Subhash Chandra Gupta was standing with his rifle at a distance of 15-20 ft. Subhash Chandra Gupta did not fire to save the gun of Chandrashekhar Gupta. In paragraph '31' this witness says that the place where Subhash Chandra Gupta was shot at there was no flood water and some rain water were there. Firing was tak- ing place from east and south direction. This witness says that he went away after firing upon the three persons and came back after 15-20 minutes. Police had not reached there by this time. He had not gone to the police station to give information. This witness says that along with him P.W.-4 and P.W.-5 had left to the village and there they told the villagers about the alleged oc- currence. In paragraph '36', this witness says that the villagers had come to the place of occurrence, about 25-30 people had as- sembled and all were from his village. He stayed there for about Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 26/58 1-1.15 hours and thereafter he went to his house. He went after the police came. In paragraph '37', P.W.-9 has stated that police had not asked him anything. On the date of occurrence P.W.-4 and P.W.-5 had not disclosed the name of P.W.-9 as an eye wit- ness. In paragraph '38' this witness admits that he had not told Chandrashekhar Gupta (P.W.-5) that he had seen the alleged oc- currence. He told after 6-7 months to P.W.-5 that he had seen the occurrence and would depose as witness. He further states that during 6-7 months he had not gone to the police station and he had gone to make statement before the police after 6-7 months. He did not remember whether his statement was recorded by Daroga. In paragraph '41' this witness says that when his state- ment was taken P.W.-4 and P.W.-5 were present and his state- ment was recorded at the place of occurrence. It was the month of December but he did not remember the month exactly. He says it was winter season.
28. The statement of the appellant was recorded under Section 313 Cr.P.C. The questions put to him and answer given by the appellant under Section 313 Cr.P.C. are being repro- duced hereunder for a ready reference:-
"iz"u %& vkius lkf{k;ksa dk lk{; lquk gSA mrj %& th gka iz"u %& vkids fo:) lk{; gS fd fnukad 21&09&1994 dks le; djhc 9%00 cts fnu esa xzkejlqyiqj ljsg ;ksxh ckck LFkku Fkkuk fot;iqj ftyk xksikyxat esa jk- Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 27/58 bQy ls yS"k gksdj vU; vfHk;qDrks ds lkFk fey dj ,d jk; gksdj vijkf/kd 'kM;a= ds rgr lqHkk'k xqIrk] j?kqca"k flag ,oa /kuq frokjh dh tkucq> dj xksyh ekj dj gR;k dj fn;sA D;k dguk gSA mrj %& th ugh] esjs fo:) yxk;k x;k vkjksi xyr gSA blls esjk dksbZ lEca/k ugha gSA iz"u %& vkids fo:) ;g Hkh lk{; gS fd vkius mijksDr frfFk le; ,oa LFkku ij e`rd lqHkk'k xqIrk dh yk"k xk;c djus dh fu;r ls fNik fn;s rkfd vijk/k izdV u gks vkSj yk"k ikuh esa Qsad fn;sA D;k dguk gSA mrj %& th ugha] esjs fo:) ;g vkjksi xyr gSA iz"u %& vkids fo:) ;g Hkh lk{; gS fd vkius mijksDr ?kVuk dh frfFk le; LFkku ij vU; vfHk;qDrks ds lkFk fey dj ,d jk; gksdj lqHkk'k xqIrk dk jkbQy ,oa pUnz"ks[kj xqIrk dk cUnqd cyiwoZd pksjh dh fu;r ls fNu fy;s bl laca/k esa D;k dguk gSA mrj %& th ugh] og vkjksi xyr gSA iz"u %& vkids fo:) ;g Hkh lk{; gS fd vkius mijksDr ?kVuk frfFk le; ,oa LFkku ij vius gkFk esa fy;s jkbQy ls lqHkk'k xqIrk ,ao j?kqca"k flag dh tkucq> dj gR;k dj nhA bl laca/k esa D;k dguk gSA mrj %& th ugh] vkjksi xyr gS bl ds"k ls esjk dksbZ laca/k ugha gSA iz"u %& lQkbZ esa D;k dguk gSA mrj %& esjs mij yxk;s x;s lHkh vkjksi xokgks ds lk{; >qBk gS lqHkk'k xqIrk ,d vkijkf/kd izo`fr ds O;fDr Fks budk fxjksg pyrk Fkk fxjksg esa vkilh opZLo dh yM+kbZ /kUUkq frojh ls pyrh Fkh mlh opZLo dh yM+kbZ esa xk- syhckjh gqbZ ftlesa lqHkk'k xqIrk vkSj /kUuq frokjh rFkk j?kqoa"k flag dh e`R;q gks xbZA vuqla/kkudrkZ vkSj lqpd dh feyhHkxr ls ?kVukLFky ,oa le; ifjorhZr dj fn;k x;kA vuqla/kku ds Øe jktsUnz flag ds ?kj ls canqd cjken dh xbZ ftl canqd dks iqfyl }kjk pUnz"ks[kj xqIrk dh crkbZ xbZA dkaM esa U;k;ky; }kjk mls canqd dks jktsUnz flag ds i{k esa eqDr fd;k x;kA vkt rd pUnz"ks[kj xqIrk }kjk viuh cnqad dk ykbZlsal iqfyl dks u fn[kk;k x;k vkSj U;k;ky; esa izLrqr fd;k x;k ;g iqfyl vkSj lqpd ds fcp feyhHkxr ls ?kVuk frfFk ,oa LFky dks cny dj esjs ifjokj dks cjckn djds fy, og vkjksi yxk;k x;kA eSa viuh csxqukgh dk lk{; dksVZ esa izLrqr d:axkA"
Defence Evidence
29. On behalf of the defence four witnesses were ex- Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 28/58 amined. The defence witness no.1 is one Rajendra Singh whose gun was seized by the police in course of investigation alleging that the said gun was snatched by the criminals in connection with Vijaipur P.S.Case No.74/1994. D.W.-1 has proved that gun seized by the police belonged to him and the informant and of- ficer in-charge of the police station had connived in seizure of the gun of D.W.-1 to show that the gun is the same which was snatched from P.W.-5 in Vijaipur P.S. Case No.74/1994. The gun was sent to FSL, Patna for examination on the request of D.W.-1 and on finding that the gun is of the same number of which D.W.-1 is holding the license, the learned C.J.M. called for a re- port and later on released the gun in favour of D.W.-1.
30. D.W.-2 and D.W.-3 are the two fishermen who have deposed that no such occurrence had taken place on that day at Jogibaba Sthan where they were involved in fishing. D.W.-2 and D.W.-3 had not given any statement to police in course of investigation. D.W.-4 is a resident of village Rasulpur who says that on 21.09.1994 from 7.00 am to 4.00 pm he had taken his she-buffalo for grazing near Jogibaba Sthan. At that time, there was no flood water and no occurrence had taken place near Jogibaba Sthan. This witness had been suggested that he had deposed on behalf of the appellant because the wife of Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 29/58 co-accused Vijay Singh was the Zila Parishad Chairman and she had engaged him for some work in which he was getting some honorarium.
Submission on behalf of the appellant
31. Learned counsel for the appellant has submitted that in this case neither place of occurrence nor manner of oc- currence has been proved by the prosecution. It has been argued that P.W.-3 who is an inquest report witness has denied having any information regarding the dead body. According to him, the dead body was kept at a dry place and two more dead bodies were there which were of Raghubansh Singh, Tubewell Oper- ator and there was an unknown body. He has stated that the clothes on the body of the other two dead bodies were also dry. He has been declared hostile. It is further submitted that in his fardbeyan recorded on 21.09.1994 at 13.30 hours the informant (PW-5) has taken the name of Raghubansh Singh, it means Raghubansh Singh was well known to P.W.-5 but in paragraph '25' of his deposition P.W.-5 says that he heard the name of Raghubansh Singh from police. Contrary to that in paragraph '9' of his deposition the I.O. (P.W.-8) says that the dead body of Raghubansh Singh was identified by inquest witness Sitaram Sah and Fulan Prasad Srivastava (both not examined). P.W.-8 Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 30/58 had not written in the diary that the dead body of Raghubansh Singh who was an employee of Nalkup Department was identi- fied by the informant or his nephew Bhola Gupta.
32. It is further submitted that in course of his evid- ence the doctor (P.W.-7) has stated that he had conducted the postmortem over the dead body of the deceased Raghubansh Singh whose body was found near Nalkup in village Vijaipur. In cross-examination this witness says that on the basis of police requisition he had mentioned in his report that the dead body of the deceased Raghubansh Singh was found near Nalkup at vil- lage Vijaipur. When the attention of the I.O. (P.W.-8) was drawn towards this he denied that the dead body of Raghubansh Singh was found near Vijaipur Nalkup and he had prepared the inquest report there and sent the dead body for postmortem. Learned counsel submits that there is a contradiction in the statement of the P.W.-7 and P.W.-8 on this point.
33. Learned counsel further submits that inquest re- port of Raghubansh Singh (Ext.-5), the unknown dead body (Ext.5/1) and the inquest report of Subhash Chandra Gupta (Ext.5/2) would show that paragraph '6' and '7' in all these in- quest reports required an information to be furnished with re- gard to "manner in which and weapons (if any), by which injur- Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 31/58 ies appeared to have been inflicted" and "circumstances, if any, which give rise to suspicion of foul play" but save and except to say that "rifle evam banduk ki goli lagne se jakhm hona para- tit hota hai" neither the manner in which injuries have been caused nor the circumstances were informed to the I.O. (P.W.-8) by the informant (P.W.-5) and his nephew (P.W.-4). In fact the very presence of P.W.-4 and P.W.-5 at the time of preparation of requisition of inquest report of Raghubansh Singh and the un- known dead body becomes highly doubtful. In paragraph '22' of his deposition, P.W.-3 says that after about 30-45 minutes from the time of giving these statements before police he left the place of occurrence and reached his Vijaipur house. In para- graph '21' he specifically says that he cannot say whether the in- quest report of the two dead bodies were prepared in his pres- ence or not. In paragraph '23', P.W.-5 says that after giving statement to police he came to know about the name of Raghubansh Singh. He further says that he came to know this after giving his statement prior to searching the dead body. Learned counsel, therefore, submits that P.W.-5 has confirmed in his evidence that prior to searching of the dead body he had given his fardbeyan to police but that was not recorded and after the dead bodies were found his statements were recorded by the Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 32/58 police and on that basis this FIR has been lodged. Learned coun- sel for the appellant has, thus, submitted that the fardbeyan on the basis of which FIR has been recorded is not earliest version of the prosecution and the earliest version has been apparently suppressed.
34. Learned counsel further submits that from the evidence on the record, it is clear that as per two FIR named eye witnesses namely Bhola Gupta (P.W.-4) and Chandrashekhar Gupta (P.W.-5) police arrived at the place of occurrence imme- diately after the occurrence within one hour and both gave their statement to the police, but the I.O.(P.W.-8) has not at all sup- ported this version of P.W.-4 and P.W.-5. P.W.-8 has categoric- ally stated that he reached for the first time at the place of occur- rence at 1.30 (afternoon). It is submitted that from the evidence of P.W.-4 and P.W.-5 it is apparent that their statements made before the police at the so-called place of occurrence has been purposely withheld by the prosecution, if the informant was not knowing the name of Raghubansh Singh it could not have been possible for him to describe him in so detail saying that he was an employee of Tubewell Department and was going to sun-pipe Nalkup and according to learned counsel this itself goes to show that the present fardbeyan was not recorded at 1.30 pm but in Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 33/58 the evening at the police station the fardbeyan was recorded after recovery of all the three dead bodies and this was done with due deliberation.
35. Learned counsel further submits that there is one more reason to say that the prosecution has purposely sup- pressed the earlier version which was allegedly given to the po- lice at about 10.00 am in which name of none of the accused was mentioned. It is submitted that had the name of the accused been mentioned by the informant or his nephew police may have gone in that direction in which accused allegedly fled away and had the accused been named the police would have conduc- ted raid on their respective houses but in absence of this inform- ation the I.O. had not recorded that after leaving the police sta- tion when he started searching the accused what are those places where he conducted the raid. Learned counsel has submitted that it is highly doubtful that P.W.-4 and P.W.-5 were actually ac- companying the deceased Subhash Chandra Gupta as claimed by them. It is submitted that that both witnesses have talked about indiscriminate firing as a result of which the body of Subhash Chandra Gupta and Raghubansh Singh got riddled with bullets and one accused who was among the assailants had re- ceived injury and died but it is unbelievable that P.W.-4 and Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 34/58 P.W.-5 who claimed that they were also standing at some dis- tance did not receive even a scratch on their body. It is submit- ted that story of indiscriminate firing and snatching of rifle of Subhash Chandra Gupta by this appellant have already been dis- believed by the learned trial court as the police after investiga- tion did not find sufficient materials to proceed against some of the co-accused, they were discharged and not sent up for trial. Similarly, the learned trial court has held that rifle was not in ex- istence and appellant has been acquitted from the charge under Section 379/34 I.P.C.
36. Learned counsel has also adopted the arguments of Mr. Surendra Prasad Singh, learned senior counsel who has argued in Cr.Appeal (DB0 No.123 of 2016 on the point that in this case the prosecution case is so interwoven and inextricably connected that it is not possible to believe one part of the pro- secution story and reject the another part of the story. It is fur- ther submitted that the postmortem report of all the three injured completely falsify the allegations. The doctors who conducted the autopsy have been examined as P.W.-6 and P.W.-7. P.W.-6 had conducted the postmortem of the dead body of Subhash Chandra Gupta on 22.09.1994, he has explained the three injur- ies on the dead body but did not find that the body of Subhash Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 35/58 Chandra Gupta was riddled with bullets. P.W.-6 has stated that the time elapsed between the death and the postmortem of Subhash Chandra Gupta was within 36 hours. According to him the injury no.(i) and (ii) may be caused at different time and not at a time. If the injury no.(i) is caused at first the deceased will be fallen on the earth and it is not necessary that the deceased will fall on the ground facing front portion. This witness had stated that he did not find any sign of drowning the body into water and it is important to note that he had calculated the time elapsed since then i.e. within 36 hours on the basis of rigor mor- tis present on the person of the deceased which may start from 2.00 am in the night of 20/21-9-94.
37. P.W.-7 has conducted autopsy of dead body of Raghubansh Singh and unknown dead body. P.W.-7 has stated that injury no. (i) on the body of Raghubansh Singh was caused by explosive. He has proved the postmortem of Raghubansh Singh as Ext.3/1 and again the postmortem report of the un- known dead body as Ext.3/2. Injury No.(i) of unknown dead body was found almost similar to injury no.(i) of Raghubansh Singh.
38. This Court finds that P.W.-6 and 7 are full-
fledged prosecution witnesses and they have not been declared Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 36/58 hostile by the prosecution. The learned Public Prosecutors have not confronted P.W.-6 and P.W.-7 on the question that both the deceased i.e. Raghubansh Singh and unknown person having re- ceived injury by bomb.
39. Learned counsel further submits that there is an- other fact which will go to show that the present fardbeyan was recorded after the recovery of all the three dead body and P.W.-4 and 5 were not present at the place of occurrence. It is submitted that both P.W.-4 and 5 have stated in their examination-in-chief that the dead body of Subhash Chandra Gupta was dragged by Ramakant Sah, Majid Mian and Gorakh Ram for concealing the same in northern side towards Charkhia Math but the inquest re- port of Subhash Chandra Gupta shows that the same was found at a distance of 200 yards from Charkhia Math whose hand was tied with Langota from a mujz. The inquest report was prepared on 21.09.1994 at 17.45 pm. It is submitted that if P.W.-4 and P.W.-5 have stated that the dead body was allegedly dragged to- wards Charkhia Math and the distance of said Charkhia Ram Janki Mandir from the place of occurrence is half kilometre (para 28 of P.W.-4), it is strange why such delay occurred in tra- cing out the dead body of Subhash Chandra Gupta. It shows that much after recovery of all the three dead bodies, the fard- Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 37/58 beyan was recorded. Learned counsel further submits that non- production of Sanha in this case would give rise to an adverse inference against the prosecution.
40. In this regard, he relies upon a judgment of the Hon'ble Supreme Court in the case of Arjun Marik Vs. State of Bihar reported in 1994 Supl.(2) SCC 372. Further on the point of suppression of the first version, learned counsel has re- lied upon the judgment of the Hon'ble Supreme Court in the case of State of Madhya Pradesh Vs. Ratan Singh & Ors. re- ported in (2020) 12 SCC 630 It is submitted that in the facts of the present case, there is not only a delay in lodging of the FIR which remains unexplained but there is also a wilful suppression of the actual first information received by the police.
41. As regards the evidence of P.W.-9 Sachintan @ Sachida Yadav it has been argued that he is not a reliable wit- ness. He has himself stated that he had not disclosed to P.W.-5 that he was an eye witness. After about 6-7 months, he claims to have told P.W.-5 that he had seen the occurrence and would de- pose as a witness. He has relied upon a judgment of the Hon'ble Supreme Court in the case of Ram Lakhan Singh and Others Vs State of U.P. reported in AIR 1977 SC 1936 to submit that in a case of grave charge of this nature it will not be proper to Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 38/58 place reliance upon a witness who never figured during the in- vestigation.
Submission on behalf of the State and informant
42. Mr. Dilip Kumar Sinha, learned Additional Public Prosecutor assisted by Mr. Ajay Kumar learned counsel for the informant has opposed the appeal and defended the judgment of the learned trial court. Learned counsel for the informant has opposed the appeal on identical grounds on which he opposed the Cr.Appeal (DB) No. 123 of 2016 (Vijay Singh Vs. the State of Bihar). In fact both the appeals were heard one after another in continuity. According to the prosecution, the I.O. (P.W.6) en- tered the information regarding the killing of Subhash Chandra Gupta and two others in the station diary being SDE No. 301 and proceeded for the place of occurrence in order to locate the dead body and to apprehend the accused persons. It is submitted that the delay has been well explained and would not be fatal for the prosecution as the F.I.R. was duly transmitted to the learned court on the very next day without delay. Reliance in this regard has been placed on the judgment of Hon'ble Supreme Court in the case of Bhajan Singh @ Harbhajan Singh & Ors. v. State of Haryana reported in AIR 2011 SC 2552. The judgments cited on behalf of the appellant have been sought to be distin- guished on the facts of those cases. It is submitted that in AIR Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 39/58 1981 SC 1230 the conduct of the SHO was highly doubtful as the sanha diary entry was not produced even after the order of the court. Regarding the judgments on the delay in lodging of the F.I.R. learned Addl. P.P. for the State has stated that in AIR 2004 SC 3055 the I.O. was present at the P.O. but none claimed himself as an eye witness, after 1:00 - 1:30 hours a person came and claimed as eye witness, during trial there were major con- tradictions so the court accepted the submissions of the defence on the point of delay in lodging of the F.I.R.
43. Learned Additional Public Prosecutor further sub- mits that the exoneration of five accused persons cannot be a ground to discard the version of the eye witnesses. With refer- ence to a judgment of the Hon'ble Supreme Court reported in 2022 Live Law (SC 137) Criminal Appeal No. 339-340 of 2014 (Rajesh Yadav and Another etc. v. State of U.P.) it is submitted that a final report is nothing but a piece of evidence. It forms a mere opinion of the investigating officer on the mate- rials collected by him. It takes note of the offence and thereafter, conducts an investigation to identify the offender, the truth of which can only be decided by the court.
44. On the point of eye witness contradicted by the medical evidence, it is submitted that oral evidence has to be Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 40/58 given primacy since medical evidence is only corroborative. It is submitted that the doctor has explained injury no. 1 of Raghubansh Singh caused by explosive and injury no. 1 of un- known deceased caused by fire-arm but during cross examina- tion the doctor has opined that injury no.1 of Raghubansh Singh and injury no. 1 of unknown deceased are most similar in nature and, therefore, the inference could be drawn that the injury no. 1 of Raghubansh Singh may be caused by fire-arm as there is no other sign of explosive either on the body or through any other evidence which could suggest the use or presence of explosives in the area and the medical jurisprudence supports such injury by fire-arm.
45. The prosecution relies upon the judgment of the Hon'ble Supreme Court in Bhajan Singh @ Harbhajan Singh & Ors. V. State of Haryana reported in AIR 2011 SC 2552 (paragraph 23) to submit that ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when med- ical evidence makes the ocular testimony improbable, that be- comes a relevant factor in the process of the evaluation of evi- dence. Regarding the fact that the arm was released in favour of Rajendra Singh, it is submitted that the prosecution had never claimed that the gun was seized at the place of occurrence, Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 41/58 rather it was seized much after the occurrence for which Vi- jaipur P.S. Case No. 78 of 1994 dated 03.10.1994 under Section 414 I.P.C. And Section 25(1-b) of Arms Act was lodged. As number of gun was tampered, therefore, it was sent to F.S.L. Patna who vide it's report being F.S.L. No. 627/95 dated 01.11.1995 reported that tampering was done, thereafter the Of- ficer-in-Charge of Vijaipur Police Station vide it's letter dated 28.11.1995 written a letter to learned Chief Judicial Magistrate, Gopalganj that the recovered gun is the same gun which was snatched in Vijaipur P.S. Case No. 74/94 and therefore, prayed for stay of the order of release dated 24.11.1995, however this fact was not brought during the trial. It is submitted that it was an omission on the part of the I.O. and the conducting counsel.
46. Regarding the evidence of Sachitan Yadav (P.W.7), again it is submitted that his statement was recorded in supplementary case diary but it was not brought to the notice of the learned trial court due to omission on the part of the I.O. and the conducting counsel. In this regard, reliance placed by the de- fence on the judgment of the Hon'ble Supreme Court in the case reported in AIR 2019 SC 3727 and AIR 1975 SC 1962 is of no relevance.
47. Relying upon the judgment of the Hon'ble Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 42/58 Supreme Court in the case of Rajesh Yadav & Anr. Etc. v. State of U.P. relying on C. Muniappan v. State of Tamil Nadu reported in (2010) 9 SCC 567; learned counsel submits that even if there are some omissions, contradictions and discrepan- cies, the entire evidence cannot be dis-regarded. Reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of State of Rajasthan v. Kishore reported in (1996) 8 SCC 217 and Rajendra Prasad v. Narcotic Cell reported in (1999) 6 SCC 110. It is submitted that every irregularities and illegalities in investigation will not thereby render prosecution case untrustworthy.
Consideration
48. I have heard learned counsel for the appellant, learned Additional Public Prosecutor for the State and learned counsel for the Informant as also perused the records.
(i) On the Point of place of occurrence
49. On the point of place of occurrence, I find that Bhola Gupta (P.W.-4) has stated that when he along with his father and uncle (P.W.-5) reached near Jogibaba Sthan they saw that fishermen were involved in fishing, all three of them stood there and were looking at the fishing being done there. P.W.-4 says that in the meantime from behind (from eastern side) all the Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 43/58 accused persons arrived and then he narrates the manner of oc- currence. As regards the place of occurrence this witness says that the road on which they were going is going through east to west and they were going towards western direction. When they crossed Marar village then they got water and near Jogibaba Sthan at some places the water was below the knee and at some places it was above the knee. He says that the place where they were standing and looking at the fishing the road is passing through north to south and about 25-30 persons were present there. He further narrates that on both sides of road, in the fields there was flood water but he did not remember whether more flood water was there on the Rasulpur road or in the side where the dead body of his father was being pulled away. According to this witness, he was standing at a distance of 10-12 ft. South to his father, his uncle was standing at a distance of 14-15 ft. North to his father. He did not remember whether anybody else was standing in between his place and where his father was standing or in between his father and uncle. He did not remember whether 25-30 persons who were present there were standing or not. According to this witness, Vijay Singh was having rifle had identified Subhash (deceased) and had fired from his rifle upon him which hit him on the back side. If evidence of P.W.-4 is Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 44/58 carefully scrutinized it may be found that on a road passing from north to south this witness, his father and uncle were standing having their face towards western side and according to him the accused persons came from behind. He does not say that the road where they were standing having their back to- wards eastern side was connected by a road from eastern side. This witness says that Raghubansh Singh who happened to be an employee of Nalkup Department had also received shot in course of indiscriminate firing being done by all the accused persons. P.W.-4 says that as a result of the indiscriminate firing the body of his father was riddled with bullets but the post- mortem report (Ext.-5) shows three fire-arm injuries on the body of Subhash. P.W.-4 could see the third injury only at the police station. He has attributed two injuries on the body of his father to Vijay and this appellant respectively, it means in the alleged indiscriminate firing by all the accused persons, the father of P.W.-4 got only one injury that too on his left hand. A perusal of the postmortem report of the father of P.W.-4 shows that in the column showing place from where the dead body was sent for postmortem, doctor (P.W.-6) has recorded "Samho Tola, Vi- jaipur". Similarly as regards Raghubansh Singh it has been found by doctor (P.W.-7) that his injury no.1 was not having any Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 45/58 entry or exit wound and the kind of injury was a result of use of explosive substance. The doctor (P.W.-7) who conducted the autopsy on the body of Raghubansh Singh and proved the post- mortem report of Raghubansh Singh as Ext.5/1 has stated that he had recorded the place from where the dead body was brought as "near Nalkup, Vijaipur" on the basis of the requisi- tion received from police. I have perused the postmortem report of Raghubansh Singh and found that in the column showing place from where dead body was recovered it was earlier recor- ded "near Nalkup, Vaijaipur", but it has been cutdown/penned- down by some one and has been written afresh at the top as Jo- gibaba place, Rasulpur. Who has cut down and penned down entry in the postmortem report and why another place of recov- ery of dead body has been shown seems mysterious. The atten- tion of doctor (P.W.-7) was rightly drawn towards this fact and he has stated that he had recorded the place as near Nalkup, Vaijaipur on the basis of requisition received from police with the dead body.
50. In course of evidence, P.W.-4 has stated that he did not remember except Sachitan Yadav of his village as to who others were present at the place of occurrence. He did not remember that when firing started he remained standing there Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 46/58 or ran towards any direction. He says that the dead body of his father Subhash was being dragged away towards north- western direction of Charkhia Ram Janki Mandir. He was not present at the place where the dead body of his father was found. This witness says that Sachitan Yadav and Harihar Gupta had told him that name of the one of the deceased was Raghubansh Singh who was Nalkup Operator.
51. As regards place of occurrence, P.W.-5 who has proved the fardbeyan (Ext.1) says that the place of occurrence he along with his brother Subhash Gupta (deceased) and nephew Bhola Gupta (P.W.-4) were standing. His brother Subhash was standing in the middle. South to Subhash was standing P.W.-4 and this witness was standing north to his brother Subhash and all were looking towards western direc- tion. He says that the accused persons came from east side to west side and with them apart from the accused persons the labourers engaged in cutting of grass were also coming. It seems highly unbelievable that in a flood situation labourers engaged in cutting of grass would be visiting the place. P.W.-5 says that the place where they were standing on the road there was two ft. water and water was flowing slowly. When the fir- ing started this witness wanted to flee away but the accused Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 47/58 persons told that if he would run then they would kill him. In paragraph '17' he says that to his knowledge, Subhash had suffered two fire-arm shots. P.W.-5 says that he did not know about Raghubansh Singh earlier, he was standing at the east- north corner of his brother Subhash. At this stage, this witness says that the place where occurrence took placce road is going from north to south and on coming from village Marar it will be Raghubansh Singh whose place will come first thereafter the place of P.W.-5 and then that of his brother Subhash. In paragraph '18', P.W.-5 clearly says that the accused persons had come from the side of Marar village.
52. An analysis of the evidence of P.W.-5 further shows that the place where the occurrence took place road was passing through north to south and on that road Raghubansh Singh was standing at the east-north corner. This witness has not stated that there was any road coming from east side connecting the place of occurrence. To me it appears that neither P.W.-4 nor P.W.-5 is able to prove the place of oc- currence in this case.
53. P.W.-5 has stated that the police arrived at the place of occurrence within 55-60 minutes and from his evid- ence it is clear that by the time police arrived at the place of Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 48/58 occurrence this witness and other people from the village had assembled at that place. In paragraph '20' this witness says that the police had taken his oral statement but that was not reduced in writing and police went in search of the dead body of his brother Subhash. When the dead body was not found then police came back and thereafter again P.W.-5 gave his statement which was recorded by the police. In paragraph '20', P.W.-5 says that he had also gone in search of the dead body with police and had been searching the dead body of his brother towards north and west corner from 'Jogibaba Sthan'. He had been involved in search of the dead body for about 2-3 hours. He did not remember whether any police personnel was left at the place of occurrence or not. In paragraph '22', this witness says that after 30-45 minutes of giving his state- ments he left the place of occurrence to his Vijaipur house and he did not remember whether police had recovered any cart- ridge or explosive substance after searching the place of oc- currence. In paragraph '23', P.W.-5 says that after giving statement to police he came to know about the name of Raghubansh Singh. This witness states that he came to know the name after giving his statement to police before searching out the dead body. People told him about his name but he did Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 49/58 not know those persons as they belong to another village.
54. At this stage when I scrutinise the evidence of P.W.-5 he seems to be totally inconsistent in his statement par- ticulary when it is compared with the statement of P.W.-4 and the I.O. (P.W.-8). The statement of doctor (P.W.-7) clearly suggests that the dead body of Subhash was sent for post- mortem with requisition showing the place name from where the dead body was sent. It was recorded as "Samho Tola, Vi- jaipur". The dead body of Raghubansh Singh was found near Nalkup, Vijaipur and accordingly it was entered in the post- mortem report. From the alleged place of occurrence if the dead body of Subhash had been dragged towards north-west- ern side of Charkhia Janki Mandir which is situated at a dis- tance of one kilometer approximately then there is no reason as to why police would not be able to search the dead body of Subhash within 2-3 hours. It is, at this stage, it becomes im- portant to note that the dead body of Subhash was found at Samho Tola, Vijaipur and not near Charkhia Janki Mandir. P.W.-5 is trying to conceal material facts would also be evid- ent from his statement that he firstly says that he came to know about the name of Raghubansh Singh from the people after his first statement and before searching out the dead Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 50/58 body. He later on says in paragraph '5' that he had heard it from police that out of the two dead bodies one dead body is that of Raghubansh Singh, but he did not remember whether police had recorded the statement of any villager with regard to identity of Raghubansh Singh. The statement of P.W.-5 in paragraph '23' would go a long way to show that after first statement of P.W.-5, police recorded another fardbeyan of P.W.-5 and this time when all the dead bodies had already been recovered, the farbdeyan was recorded belatedly and in the nature of the crime the delay would prove fatal to the pro- secution.
55. In my opinion, the place of occurrence in this case could not be proved by the prosecution beyond all reas- onable doubts.
(ii) Manner of Occurrence
56. Regarding the manner of occurrence as well, I find that the prosecution witnesses are quite inconsistent and they have made contradictory statements. The evidence of P.W.-5 categorically shows that when police arrived within 55-60 minutes he had made statement before police but that statement of P.W.-5 has been suppressed and fardbeyan has been recorded at 1.30 P.M. The I.O. (P.W.-8) has not proved the Sanha entry Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 51/58 which he claims to have made at about 9.30 am, thus, Sanha entry has also been withheld and this would give rise to an ad- verse inference against the prosecution.
57. The postmortem reports of the deceased which have been proved by P.W.-6 and P.W.-7 do not corroborate the manner of occurrence as claimed by P.W.-4 and P.W.-5. On the body of Subhash, P.W.-6 has found inverted blackened margin of wound on the back of right lumber. In his cross-examination, he says that blackening of skin around the wound margin may be possible when the body of the decased is at the distance of 6 ft. or less from exit point of firearm. P.W.-6 did not find any sign of drowning the body into water and he further says that injury no.(i) and (ii) may be caused at different time and not at a time. He has also noticed that time elapsed since death was within 36 hours and this relates back to the night of 20/21-9-94.
58. As regards the injury of Raghubansh Singh, P.W.-7 has stated that Injury no.(i) has been caused by explos- ive substance. The perusal of injury no.1 shows that this in- jury has no entry or exit wound and it is in the nature of a big zig-zag lacerated wound with sacrifice of whole skull, Nasal bone, orbit of eye, cervical vertebrae etc. P.W.-7 has further stated that injury no.(ii) and (iii) of Raghubansh Singh are the Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 52/58 injuries caused by one shot. P.W.-4 and P.W.-5 both have stated about only one shot received by Raghubansh Singh as a result whereof he fell down. Both the witnesses are silent as to the circumstances under which injury no.(i) was caused.
59. The injury no.(i) of the unknown deceased has been found almost similar to injury no.(i) of Raghubansh Singh. Regarding injury no.(i), P.W.-7 has said that injury no.
(i) was caused by firearm and in cross-examination he has stated that zig-zag lacerated wounds were found over the dead body of both the deceased but their size were different and no size is possible by explosive substance. The evidence of P.W.- 7 further goes to suggest that injury no.(i) of Raghubansh Singh which was having no size was possibly caused by ex- plosive substance. Thus, the postmortem reports of Raghubansh Singh and the unknown dead body which has been later on identified as of Dhanu Tiwary rules out the ocu- lar evidence of P.W.-4 and P.W.-5 to a great extent.
60. I have further noticed that P.W.-8 has stated in his evidence that he went to the place of occurrence at 1.30 PM. He has thus contradicted P.W.-4 and P.W.-5 who claim that P.W.-8 had arrived at the place of occurrence within one hour i.e. up to 10.00 am. Further P.W.-8 has stated in para- Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 53/58 graph '6' that at the place of occurrence he did not find any evidence of fishing by fishermen but he had not mentioned this fact in the case diary. He had also not found any live or empty cartridges of gun or rifle from the place of occurrence. He says that after inspection of the place of occurrence and taking statement of the witnesses he returned to the police sta- tion. Contrary to this, P.W.-5 has claimed that he had gone with the police in search of the dead body and had returned to the place of occurrence with the police after 2-3 hours. P.W.-8 says that he had not recorded in his case diary as to whether the clothes of the Subhash Chandra Jha were dry or wet. He had not found any explosive substance at the place of occur- rence as according to him the explosive substance might have flowed away in the water. In paragraph '12' of his evidence, he says that he had noticed that in the postmortem report of Raghubansh Singh the doctor had mentioned about one injury caused by explosive substance. He has further stated that in the supervision note the then Superintendent of Police, Gopal- ganj had recorded about the deceased Subhash Chandra Gupta belonging to the gang of Bachha Rai. This witness has stated that the place of occurrence is situated at a distance of two kilometer from the police station, he had heard rumour about Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 54/58 the occurrence and had also recorded a Sanha in the station di- ary but has not recorded that who had given the information. In paragraph '3' he categorically says that he had not reached the place of occurrence before 1.30 pm and he had not recor- ded in the case diary as to the places where he conducted raid in search of the accused persons. From the evidence of P.W.-8 it is crystal clear that he is trying to suppress the first state- ment of P.W.-5.
61. I further find that evidence of Sachitan Yadav @ Sachida Yadav (P.W.-9) is not trustworthy. He is not a charge- sheet witness and much after the alleged occurrence he has been introduced in this case. From his evidence itself it is evident that he contradicts P.W.-4 and P.W.-5 as regards the condition of the place of occurrence. In paragraph '21' of his evidence, he says that there were some dry places at about 15- 20 ft. North from Jogibaba Sthan and it is the said place where Subhash Gupta was standing. In paragraph '22' he says that about half kilometre from the place of occurrence it was visible to see anybody and the accused persons had come through road moving in water. If the statement of P.W.-9 is be- lieved for a moment he is found contradicting P.W.-4 and P.W.-5 as regards the place of occurrence. In paragraph '34' of Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 55/58 his evidence, he says that he had not gone to police station to give information regarding the occurrence. In paragraph '35' he does not say that the dead body of Subhash Chandra Gupta was being dragged away and in paragraph '38' he says that his name was not told by Bhola Gupta and Chandrashekhar Gupta as witness on the date of occurrence. After about 6-7 months he told Bhola Gupta and Chandrashekhar Gupta that he had seen the alleged occurrence and will depose as a wit- ness. In paragraph '41' he says that it was the month of December when the occurrence took place. He had not gone to police station for 6-7 months to record his statement.
62. In the aforementioned circumstance, it would not be safe to rely upon the statement of Sachitan Yadav (P.W.-9).
63. I find from the inquest reports which are Ext.5, 5/1 and 5/2 that in column no.6 and 7 which require recording of information with regard to the manner in which and the weapons (if any), by which injuries appeared to have been in- flicted and the circumstances, if any, which give rise to suspi- cion of foul play the only statement recorded is that "rifle evam banduk ki goli ka fire hone se jakhm hona jisse mrityu hui" and "rifle evam banduk ki goli lagne se zakhm hona par- Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 56/58 atit hota hai". The inquest report witness of Raghubansh Singh and the unknown dead body have not deposed in course of trial and Chandrashekhar Gupta (P.W.-5) who is one of the inquest report witness of his brother Subhash Chandra Gupta's dead body had also not explained the circumstances and the manner in which the injuries were inflicted on the dead body of the deceased Subhash Chandra Gupta. One of the inquest report witness of Subhash Chandra Gupta has de- posed as P.W.-1 who has been declared hostile.
64. I further find that the story of indiscriminate fir- ing could not be substantiated in course of investigation and at least five named accused persons against whom there were al- legations of indiscriminate firing were not sent up for trial and that has not been challenged by the prosecution. I also find that the fact that prosecution case in its entirety is so inter- woven and inextricably mixed up that it is not possible to sep- arate one part of the prosecution story from the whole prosec- ution case.
65. On perusal of the 313 Cr.P.C. statement of the appellant, again I find that the attention of the appellant was not drawn towards incriminating materials which were brought against him by the prosecution. In the name of state- Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 57/58 ment under Section 313 Cr.P.C. only some questions were put to him. The very first question which was put to this appellant is that there were evidence against him that he along with co- accused had hatched conspiracy and they had shot dead Subhash Chandra Gupta, Raghubansh Singh and Dhanu Tiwary. Here it is important to note that attention of the appel- lant was not drawn towards the specific materials which had come through the witnesses against him as regards the allega- tion that he had fired at the eyes of Subhash Chandra Gupta. The allegation of indiscriminate firing by all other accused could not be substantiated and they were not sent up for trial. The appellant has explained that the allegations and the state- ments against him were false. Subhash Chandra Gupta was a person having criminal antecedent and he was member of a gang. He suffered injuries in the encounters which he had with the gang of Dhanu Tiwary. He also stated that the I.O. was in connivance with the informant and he had seized the gun of Rajendra Singh (D.W.-1) to show that it was the gun of the informant (P.W.-5) but later on the said gun was released in favour of D.W.-1 by the court.
66. From the discussions hereinabove, I find that the prosecution has failed to prove the guilt of the appellant bey-
Patna High Court CR. APP (DB) No.174 of 2016 dt.06-07-2022 58/58 ond all reasonable doubts and it would not be safe to convict him on the shaky kind of evidences which have been found in course of trial. I, therefore, set aside the judgement of convic- tion dated 19.12.2015 and the order of sentence dated 02.01.2016 which are impugned in the present appeal and ac- quit the appellant. The appellant shall be released forthwith, if he is not wanted in any other case .
(Rajeev Ranjan Prasad, J) Ashwani Kumar Singh, J: I Agree.
(Ashwani Kumar Singh, J) arvind/-
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