Patna High Court
Ghutar Mishra @ Pawan Kumar Mishra vs The State Of Bihar on 18 July, 2024
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.958 of 2017
Arising Out of PS. Case No.-145 Year-2011 Thana- BIHPUR District- Bhagalpur
======================================================
Ghutar Mishra @ Pawan Kumar Mishra Son of Ram Balak Mishra, R/o
Village- Amarpur, P.S.- Bihpur, District- Bhagalpur Bihar.
... ... Appellant
Versus
The State of Bihar ... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 918 of 2017
Arising Out of PS. Case No.-145 Year-2011 Thana- NAUGACHIA District- Bhagalpur
======================================================
Laddu Chaudhary Son of Late Triveni Chaudhary , R/o Village- Amarpur,
P.S.- Bihpur, District- Bhagalpur.
... ... Appellant
Versus
The State of Bihar ... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 958 of 2017)
For the Appellant/s : Mr. Birendra Kumar Mishra, Advocate
Mr. Bimal Kumar Jha, Advocate
Mr. Kumar Pathak, Advocate
Mr. Devendra Kumar, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (DB) No. 918 of 2017)
For the Appellant/s : Mr. Davendra Kumar Pandey
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 18-07-2024
Heard learned counsel for the appellants and Mr. Dilip
Kumar Sinha, learned Additional Public Prosecutor for the State in
both the appeals. We have also perused the trial court's records.
2. These two appeals have been preferred for setting
aside the judgment of conviction dated 30.05.2017 (hereinafter
Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024
2/42
referred to as the 'impugned judgment') and the order of sentence
dated 05.06.2017 (hereinafter referred to as the 'impugned order')
respectively passed by learned Additional District and Sessions
Judge-II-cum-Special Judge, Bhagalpur (hereinafter referred to as
the 'trial court') in connection with Sessions Trial No. 949 of
2011/89 of 2012/89(A) of 2012 arising out of Bihpur P.S. Case No.
145 of 2011 whereby and whereunder the appellants have been
convicted for the offences punishable under Sections 302/149 of
the Indian Penal Code (in short 'IPC') and Section 3(ii)(v) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act (in short 'SC/ST Act') and they have been ordered to suffer
life imprisonment and to pay a fine of Rs.20,000/- each. In case of
non-payment of fine, both of them would be liable to undergo
simple imprisonment of six months each. The appellant in
Criminal Appeal (DB) No. 958 of 2017 has been further sentenced
for a period of two years rigorous imprisonment for the offences
punishable under Section 379 IPC and has to pay a fine of
Rs.1,000/-. In case of non-payment of fine, he would undergo a
further simple imprisonment of one month.
3. The prosecution story is based on the fardbeyan of
one Nirmala Devi (PW-2) who is the wife of the deceased made
before ASI Indrajit Singh of Bihpur Police Station, District-
Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024
3/42
Bhagalpur at Jawaharlal Nehru Medical College and Hospital
(Mayaganj), Bhagalpur on 20.05.2011 at 11:00 hours. In her
fardbeyan, the informant (PW-2) has stated as under:-
"My name is Nirmala Devi aged about 32 years wife of
deceased Binod Kumar Ram, residing at Amarpur, police
station Bihpur, District- Bhagalpur. Today on 20.05.2021
at 11:00 hours I am giving my beyan before the Jamadar
Sahab of Barari Police Station in the campus of Jawahar
Lal Nehru Medical College, Mayaganj, Bhagalpur in the
presence of my father-in-law Bindeshwari Rai son of
Late Dodhai Rai, near the dead body of my deceased
husband Binod Kumar Ram that yesterday on
19.05.2011in the evening at about 6:00 PM I was coming from paternal house (maike) Chai Tola, Katariya, P.S.- Kursela, District- Katihar to my matrimonial house village Amarpur, P.S.-Bihpur, District- Bhagalpur by motorcycle with two daughters and husband and as soon as reached near Durga Asthan, Amarpur, saw seven persons namely (1) Ghutar Mishra son of Ram Balak Mishra, (2) Laddu Chaudhary son of Late Triveni Chaudhary, (3) Chhoti Chaudhary son of Barni Chaudhary, (4) Rajnish Kumar son of Sri Naresh Kumar, (5) Akhilesh Chaudhary son of Sri Naresh Chaudhary, (6) Vijay Das @ Ram Sharan son of Dhauli Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 4/42 Das, (7) Nanhi Das son of Late Jitan Das all residents of Amarpur, P.S.- Bihpur, District- Bhagalpur were sitting there. They all said that "saale gadhi roko. We are searching you for many days." Due to fear my husband stopped the vehicle. On stopping the vehicle all persons pushed the vehicle and my husband into ditch by slapping. All started assaulting my husband by brick and stones due to which rupture was caused in the head of my husband and when he fell down then Ghutar Mishra said that if he would remain alive, he would become harmful and after taking out pistol from waist Ghutar Mishra fired on the temporal region and he become motionless then they took out rupees seventy thousand from the back pocket of the trouser. I went to home running for calling family members then they fled away saying all are coming. My husband was being brought to Mayaganj Hospital but he died on way and the doctor declared him dead. I believe that above named persons with common intention assaulted my deceased husband Binod Kumar Ram by bricks-stones and by firing and also snatched money. This is my beyan which I understood after the same was read over to me and after finding the same true I put my signature."
Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 5/42
4. After investigation of the case, the police submitted initially chargesheet bearing no. 230 of 2011 dated 31.08.2011 against Ghutar Mishra, Chhoti and Nanhi Das whereas another supplementary Chargesheet No. 402 dated 26.12.2011 was filed against Laddu Chaudhary. A supplementary charge-sheet no. 430 of 2011 dated 31.12.2011 was filed against Rajnish, Akhilesh, Vijay Das and Ram Sharan Das showing them absconder.
Findings of the learned Trial Court
5. Upon submission of the chargesheets, the learned Magistrate vide his order dated 03.09.2011, 07.01.2012 and 13.01.2012 took cognizance of the offences under Sections 341, 342, 323, 336, 338, 302, 379, 427, 504, 506, 120B/34 IPC, under Section 27 of the Arms Act and Section 3(i)(x)(xi) of the SC/ST Act and called upon the appellants to appear. Since the offences of which cognizance were taken were triable by the court of Session, the records were committed to the court of Session where the charges were explained to the appellants, the appellants denied the charges and claimed to be tried.
6. The learned trial court framed charges under Sections 341, 302/149 IPC and 3(2)(v) SC/ST Act against Ghutar Mishra, Nanhi Das and Laddu Chaudhary. Further, a separated charge under Section 302/149 and 379 IPC was framed against Ghutar Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 6/42 Mishra. On behalf of the prosecution, as many as eleven witnesses were examined in Session Trial No. 949 of 2011, 89 of 2011. Later on, after the absconding accused persons were arrested, they faced Sessions Trial No. 89 (A) of 2012 in which five witnesses deposed on behalf of the prosecution. The prosecution further brought on record a number of documentary evidences such as fardbeyan, inquest report, seizure list and the formal FIR etc. The detail of the witnesses examined on behalf of the prosecution and the documents exhibited on their behalf are being shown hereunder in a tabular form:-
"Details of prosecution in S.T. 949/11 + 89/12 I. Parvati Kumari II. Nirmala Devi III. Swarup Das IV. Gainu Das V. Gita Das VI. Dr. Yogesh Prasad Sah VII. Rohit Raj VIII. Dinesh Poddar IX. Bindeshwari Ram X. Akhilesh Kumar Raman XI. Sri Nath Singh Details of prosecution in S.T. No. 89(A)/12 I. Gainu Das II. Gita Das III. Parvati kumari Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 7/42 IV. Nirmala Devi V. Swarup Das Details of Exhibit Exbt-01 Signature of Prosecution 31-5-12 Without Sd/-
P.W. 2 Nirmala Devi objection Addl.
on the Session
Fardbeyan dt. Judge
20.5.12 Bhagalpur
31-5-12
Exbt-02 P.M. report " 22-02- Without Sd/-
P.W. 6 written & 13 objection Addl.
signature by Session
Dr. Y.P.Sah Judge
Bhagalpur
22-02-13
Ex-3 Tcrh lqph ij lkdh " 25-2-15 " Sd/-
P.W.7 la0-7 dk nLr[kr 1st ADJ
25-2-15
Ex-4 e`R;q leh{kk dk " 27-7-15 " Sd/-
PW-9 izfrosnu ij lkdh 1st ADJ
dk nLr[kr 27-7-15
Ex-4/1 " " 16-9-15 " Sd/-
1st ADJ
16-9-15
Ext-1/1 QnZC;ku vfHk;kstu 8-3-17 fcuk vkifÙk Sd/-
Ext- 1/2 i`'Bkadu " " " 2nd ADJ
8.3.17
Ext-4/2 e`R;q leh{kk " " "
izfrosnu ij
gLrk{kj
Ext- 3/1 tCrh lwph " " "
Ext-5 vkSipkfjd izkFkfedh " " "
izn"kZ&1 QnZC;ku ij lkdh vfHk;kstu 14-3-16 fcuk vkifÙk g@&
fueZyk nsoh dk v0t0U;k0
nLr[kr tks eqy dk 14-3-16
QksVks izfr gS
Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 8/42
7. After completion of examination of the prosecution witnesses, statement of the accused persons were recorded under Section 313 Cr.P.C. The accused-appellants claimed innocence in their statement. No oral or documentary evidences were led on behalf of the defence.
8. The learned trial court having examined the prosecution evidences available on the record held that the inquest report (Exhibit '4') and the postmortem report (Exhibit '2') as also the oral testimony of the witnesses proved that the deceased was killed by causing assault on his head by brick and injury on his head by a firearm. The learned trial court held that the manner of occurrence as alleged by the prosecution has been proved from the evidence of the informant (PW-2) and her daughter (PW-1) as also from other eye-witnesses. The learned trial court held that so far as these two appellants who were facing trial in Session Trial No. 949 of 2011 are concerned, in its opinion, the prosecution had been able to prove the guilt of the appellants under Section 302/149 IPC and Section 3(ii)(v) of the SC/ST Act and Section 379 IPC beyond all reasonable doubt. The co-accused Nanhi Das who was also facing trial in Sessions Trial No. 949 of 2011 has been acquitted giving him benefit of doubt. In Sessions Trial No. 89 of 2011 and 89(A) of 2012, the learned trial court held that the prosecution had Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 9/42 not been able to prove the guilt of the accused Rajnish Kumar, Ram Sharan Das, Vijay Das and Akhilesh Chaudhary, therefore, they have been acquitted of the charges under Sections 341, 302/149 IPC and Section 3(ii)(v) of the SC/ST Act.
Submissions on behalf of the appellants
9. Learned counsel for the appellants has taken this Court through the depositions of the prosecution witnesses. It is submitted that the whole prosecution case would depend upon the oral testimony of PW-1 and PW-2 who have claimed themselves eyewitnesses to the occurrence. It is submitted that on a close scrutiny of the testimonies of these two witnesses, it would appear that they are highly inconsistent, made two different statements in their evidence and, in fact, they are not eyewitnesses to the occurrence which would be demonstrated from their own testimonies.
10. Learned counsel submits that in this case the occurrence is said to have taken place near the village of the deceased. The Investigating Officer (PW-11) has given the description of the place of occurrence. He has stated that south to the place of occurrence is the shop of Chandra Kishore Mishra (not examined), east to the place of occurrence is Amarpur Village and at the place of occurrence, several villagers were present but Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 10/42 no one became ready to be a witness. Towards the west of the place of occurrence is 14 No. Road of the village. Nothing has been stated about the northern boundary of the place of occurrence in the statement of the I.O.
11. It is stated that the occurrence is said to have taken place on 19.05.2011 at about 07:00 PM. According to PW-2, all the named accused persons asked her husband to stop the motorcycle, they pushed him in a ditch and thereafter assaulted him by brick and stone causing injury on his head. It is stated that the husband of PW-2 fell down whereafter Ghutan Mishra (the appellant in Criminal Appeal (DB) No. 958 of 2017) took out his pistol and shot at the temporal region of her husband. He died on way to Mayaganj Hospital. Learned counsel submits that from the fardbeyan (Exhibit '1') of PW-2, it would appear that the same was recorded within the premises of Mayaganj Hospital at Bhagalpur by ASI Indrajit Singh on 20.05.2011 at 11:00 hours, therefore, there is an inordinate delay of about 16 hours in making of the fardbeyan. This has happened despite the fact that the Bihpur Police Station, within whom jurisdiction the occurrence had taken place, is situated at a distance of 4-5 kilometers from the place of occurrence and it would appear from the evidence of the PW-2 in course of trial that she claims to have brought her Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 11/42 husband in injured condition to Bihpur Government Hospital from where she had taken him to Mayaganj Hospital at Bhagalpur by an ambulance. No reason has been explained as to why despite she and her husband both being at Bihpur, no FIR was lodged at Bihpur Police Station immediately.
12. Learned counsel further submits that according to the fardbeyan of PW-2, after her husband was shot at, she came running to her house and called her family members, in the meantime, her family members were also running towards the place of occurrence, on seeing them, the accused persons fled away, thereafter her family members brought her husband to Mayaganj Hospital but on way to Mayaganj Hospital, her husband died and was declared dead by the doctor in the hospital.
13. Learned counsel submits that in the fardbeyan, the informant had not stated about any demand of rangdari by the accused persons but in course of her evidence in trial, she has come out with a story that the accused persons had demanded a rangdari of Rs.2,00,000/- (Rupees Two Lakh). In her statement in course of trial, she has stated that after the occurrence, her husband was breathing slowly, her house is situated at a distance of five minutes, so she came to her house to call her family members. In paragraph '5', she has stated that in her house, her mother-in-law, Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 12/42 father-in-law, bhaisur all were present but nobody came to provide her any help. She has stated that she came back to the place of occurrence from where she brought her husband to the Government Hospital, Bihpur, from there she took her husband to Mayaganj Hospital in an ambulance but on way her husband died. The dead body of her husband was handed over to her on the same day in evening, she had stayed in the hospital premises for the whole night and only on the next day i.e. on 20.05.2011 at 11 hours, in presence of her father-in-law, she made her fardbeyan to the ASI Indrajit Singh.
14. Learned counsel submits that PW-2 had changed her statement and has made material improvement in course of trial giving a different story. It is evident from her statement that her husband was murdered but PW-2 is not an eyewitness to the occurrence. If her statement is read with the statement of one Dinesh Poddar (PW-8), who has been introduced as 'thelawala', it would appear that according to PW-8, he had brought the dead body of the husband of PW-2 to the police station on his 'thela' at the instance of Rohit Chaukidar (PW-7). He has stated that the distance between the place of occurrence and Bihpur Police Station is five kilometer. Thus, from the evidence of PW-8, it would appear that the dead body had been brought to the Police Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 13/42 Station at Bihpur, no FIR was lodged there, PW-2 reached later, she took her husband to Mayaganj Hospital but the husband of PW-2 died on way. PW-2 remained with the dead body of her husband in the hospital premises for the whole night. By this time, no FIR was lodged.
15. Learned counsel further points out from the evidence of the daughter of the informant who has been examined as PW-1, that she has given a completely different version. In her examination-in-chief, she has stated that she along with her mother, father and younger sister was returning by the motorcycle from her maternal grandmother's house and when they reached near the Mishir Tola, the appellant Ghutar Mishra stopped the motorcycle and asked her father abusing him in the name of his mother and caste to give a rangdari of Rs.2,00,000/-. He pushed the motorcycle and assaulted her father on his head by a brick and shot him at his kanpatti as a result whereof he died. She has not stated that the seven named accused persons in the fardbeyan had stopped the motorcycle and all of them had assaulted her father by hand and fist blow. She has also not stated that they had pushed the motorcycle and her deceased father in a ditch and thereafter all of them were assaulting him by brick and stone. Only in the later part of her examination-in-chief, she has generally stated that Laddu Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 14/42 Chaudhary, Chhoti Chaudhary, Akhilesh Chaudhary and Rajnish Kumar were also there in assault. Learned counsel submits that PW-1 is a child witness, the court put her certain questions to test her capacity to understand and speak the truth. The court put her a question as to how many days are there in a month, to which this witness replied '50 days'. Further, when she was called upon in paragraph '4' of her cross-examination as to whether the brick road was a pucca road, she replied that she cannot say and she also made it clear that she cannot say whether the road was from east to west or north to south.
16. Learned counsel further submits that PW-1 has stated in her cross-examination that nobody had come at the place of occurrence and they had gone to the Police Station where she had stayed and her mummy took her father to a Doctor before arrival of Police on a tamtam. She had also boarded the tamtam and had gone to the hospital where tamtam was left. This witness has further stated that she had gone to Police Station on a big vehicle of her mama, 10-15 persons were there in the vehicle and her father was also there in the vehicle when they had gone to the Police Station. Her mama had no personal vehicle, rather he was driving the vehicle which was carrying local passengers. The said Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 15/42 vehicle runs in the same road by which she was coming from her nanihal.
17. Learned counsel submits that the evidence of PW-1 and PW-2 are completely contradictory to each other and if both the statements are read keeping in mind the statement of PW-2 in her fardbeyan, there would be no difficulty in arriving at a conclusion that neither PW-1 nor PW-2 are eye witnesses to the occurrence and in course of trial they are highly vacillating in their oral testimony.
18. It is submitted that according to the fardbeyan, the place of occurrence is near Durga Asthan, Amarpur and when the informant along with her husband reached there she saw only the seven named accused persons present at that place. In her fardbeyan, she has not named a single eyewitness to the occurrence. PW-1 has taken name of only five accused persons and has stated that nobody came at the place of occurrence. PW-2 has also stated that she had gone to her house to call for help but nobody from her family came to help her. PW-2 is, however, fully silent as to how she brought the dead body of her husband from the place of occurrence to the Government Hospital, Bihpur. There is no evidence of any treatment of the deceased at the Government Hospital, Bihpur.
Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 16/42
19. Learned counsel submits that PW-3 is the uncle of the deceased who has stated in paragraph '4' of his deposition that he went to the place of occurrence three minutes after the occurrence which seems highly doubtful because according to PW- 2, the house of the deceased was situated at a distance of five minutes from the place of occurrence and PW-2 has stated to have gone to her house to call for help but nobody came to help her. PW-3 has stated that the deceased had two marriages, he had deserted his first wife and was keeping his second wife. In paragraph '8' of his deposition, PW-3 has stated that three days after the occurrence, the deceased was cremated. In paragraph '9' of his deposition, this witness has stated that there was no prior litigation between Ghutar Mishra and the deceased. The deceased had not made any complaint against the accused persons.
20. PW-4 is a labourer who has deposed on the basis of the information received from the wife of the deceased. His house is situated at a distance of one kilometer from the place of occurrence. He has stated in paragraph '6' that he had seen the deceased prior to the occurrence and he along with his wife had gone to his sasural two days prior to the occurrence whereas the daughter of the deceased (PW-1) has stated in paragraph '3' of her cross-examination that she had gone to her nanihal one month Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 17/42 back, her mother and younger sister were also there. He is obviously not an eyewitness to the occurrence.
21. In his examination-in-chief, PW-5 has stated that on 19.05.2011 at about 05:30 PM, he was returning to his house with grass and when he reached near shop, he saw Ghutar Mishra, Laddu Chaudhary, Rajnish Kumar, Nanhi Das, Ram Sharan Das and Vijay Das sitting there, he went to his house whereafter wife of the deceased came weeping to her house and informed the people of her tola and mohalla that her husband has been murdered then people rushed towards the shop and found Vinod dead. He claims that he had seen the accused persons fleeing away from there. In his cross-examination, he has stated that the occurrence is of 05:30 PM, it took him five minutes to reach his house from the shop and after half an hour he heard the hulla in village that Vinod has been murdered. He reached near the shop within half an hour after hearing the hulla and had seen the dead body of Vinod. In paragraph '4', he has stated that in relationship of the village, PW-2 is her daughter-in-law and Nirmala (PW-2) is the first wife of Vinod. He has also stated contrary to the evidence of PW-4, that Vinod had only one marriage. Learned counsel submits that PW-5 is not an eye witness to the occurrence, he claims to have seen the accused persons near the shop but he is not Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 18/42 a believable witness which would be evident from the fact that according to PW-2, the place of occurrence is near Durga Asthan and not near the shop. PW-4 has also stated in his cross- examination that he and his family members were working in the field of the accused.
22. Learned counsel submits that according to PW-1 and PW-2, the occurrence took place where there was a ditch but none of these witnesses have stated about presence of any ditch near the place of occurrence. PW-2 has gone to the extent of saying that Ghutar Mishra and Laddu Choudhary pushed the motorcycle in the ditch as a result whereof, all of them fell down and the motorcycle fell down over all of them whereafter Ghutar Mishra had pulled up her husband, brought him on the brick soling and started assaulting him by brick and shot at him but neither PW-2 nor her two daughters received any injury due to falling down in the ditch which seems to be highly improbable.
23. It is further pointed out that the Doctor (PW-6) has proved the postmortem report, he found five injuries on the dead body. Injury no. 1, 3, 4 and 5 were caused by hard and blunt object whereas injury no. 2 was caused by firearm. PW-6 has stated that injury no. 1, 3, 4 and 5 may be caused by motorcycle accident. In this connection it is stated that PW-2 has categorically stated in Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 19/42 paragraph '6' of her deposition that her brother and bhaisur had reached Bihpur, father-in-law had not come because he was residing outside the village. None of her brothers had come. Her father came next day of the occurrence on 20th morning. Her mother, brother and bhabhi came from her naihar together in the morning of 20th in Mayaganj Hospital. She has clearly stated that on 19th May itself, the Doctor had said that her husband had died and she had received the dead body of her husband in the same evening. The dead body was kept for the whole night in Mayaganj Hospital and it was cremated on 20th May at 6:00 PM. Learned counsel submits that from the inquest report (Exhibit '4') it would appear that the same was prepared on 20.05.2011 at 11:15 hours by Indrajit Singh, ASI of Barari Police Station (not examined). The dead body was not sent for postmortem on 20.05.2011 at 2:40 PM but it does not mention any Sanha Diary entry/case number. It is submitted that it is obvious from inquest report as well as the postmortem report that only at a belated stage after all the family members of the informant assembled in the premises of the Mayaganj Hospital, with an afterthought fardbeyan was given to ASI Indrajit Singh at Barari Police Station. The fact that after the occurrence on 19th May at about 6:00 PM, the informant had gone Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 20/42 to Bihpur but no FIR was lodged there would create doubt as to the credibility of the prosecution story.
24. It is submitted that PW-7 is the Chowkidar Rohit who is a signatory to the seizure list of the blood soaked brick marked as Exhibit '3'. The seizure list has been prepared on 20.05.2011.
25. The evidence of PW-8 namely Dinesh Poddar seems to be very important. It is submitted that this witness is a 'thelawala' who has stated that he was coming with his empty 'thela' from Bihpur. Rohit Chowkidar (PW-7) had brought the dead body of Binod on his 'thela' to Police Station. Learned counsel submits that from the evidence of PW-8 it is crystal clear that it was the Chowkidar (PW-7) who had brought the dead body of Binod from the place of occurrence to Bihpur Police Station, the family members of the deceased including PW-2 reached later at the Bihpur Police Station from where they took the deceased to Mayaganj Hospital but on way itself he died, therefore he was not even admitted in Mayaganj Hospital for treatment. The father-in- law of PW-2 was not in the village so he had not reached Mayaganj Hospital on 19th May. Her father, mother, brother and bhabhi were not with her on 19th May. The father-in-law (PW-9), father, mother, brother and bhabhi of PW-2 reached Mayaganj Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 21/42 Hospital premises in the morning of 20th May, 2011. According to PW-2 in paragraph '6' of her deposition, her brother and bhaisur had reached Bihpur but she does not say that any member of her family had accompanied her with her husband from Bihpur to Mayaganj Hospital. Thus PW-2 was alone with the dead body in Mayaganj Hospital she remained waiting for arrival of her father- in-law and other family members from her naihar who reached only on the next day morning whereafter with an afterthought, the fardbeyan was given. The formal FIR was registered only on 20.05.2011 at 5:00 PM, after knowing the postmortem report of the deceased.
26. PW-9 and PW-10 are the eyewitnesses to the inquest report who approved their signatures as Exhibit '4' and Exhibit 4/1' respectively. They are not witnesses to the facts and circumstances of the case.
27. Srinath Singh (PW-11) is the I.O of the case. He has stated that fardbeyan was recorded by Indrajit Singh ASI but he has not been examined in this case. In paragraph '2' of his deposition, he claimed that he had prepared the inquest report and at his instance, it has been marked as Exhibit '4/1'. It is submitted that PW-11 was not present in Mayaganj Hospital, therefore question of his preparing the inquest report would not arise. He has Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 22/42 stated that the blood soaked brick was seized on 20.05.2011 in presence of two witnesses. The investigation of the case was handed over to Officer-in-Charge Arvind by order of S.P. on 31.05.2011 and after transfer of the Officer-in-Charge on 31.07.2011, the investigation was again handed over to him whereafter he had filed the charge-sheet following the instruction in the supervision note.
28. Learned counsel points out that PW-10 had not prepared any map of the place of occurrence. The blood soaked brick and the soil were not sent for examination. PW-11 has stated that prior to occurrence a sanha was entered by the deceased and proceeding under Section 107 CrPC was initiated, neither the said sanha has been exhibited nor PW-11 has stated that the deceased and the appellants had any enmity prior to the occurrence and for that reason sanha was recorded.
29. PW-11 has given the description of the place of occurrence in paragraph '8' of his deposition. According to him, the place of occurrence is Durga Ashtan which is situated at a distance of 160 yards from the house of the deceased. Many people were present at the place of occurrence but nobody became ready to become a witness. I.O. had not recovered any empty cartridge from the place of occurrence. He had not recorded Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 23/42 statement of any staff of the hospital at Naugachhia or Parbatta. He had also not inquired as to whether the deceased was admitted in the hospital at Mayaganj. He has stated that there is a police camp in the hospital and if any injured goes there for treatment, Barari Police records his statement. In this case Barari Police had not recorded statement of any person. He has stated that the deceased had died on way to Mayaganj Hospital where he was taken immediately after the occurrence. Learned counsel therefore submits that the evidence of the I.O. leads nowhere, the main I.O. who was the Officer-in-Charge of the Police Station for a period of two months has not been examined in course of trial.
30. Learned counsel for the appellants have therefore submitted that in this case the prosecution has not been able to prove the guilt of the accused persons beyond all reasonable doubts, therefore the impugned judgment is liable to be set-aside.
Submissions on behalf of the State
31. Mr. Dilip Kumar Sinha, learned APP has opposed both the appeals. It is submitted that PW-1 and PW-2 are the eyewitnesses to the occurrence, they have narrated the occurrence and the defence is not able to take any vital contradictions in the oral testimony of these two prosecution witnesses. Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 24/42
32. Learned APP further submits that there is a reason for delay in lodging of the FIR but for that reason alone, the prosecution cannot be thrown out if the prosecution witnesses are found to be credible witnesses.
33. Learned APP further submits that the inquest report (Exhibit '4') and the postmortem report (Exhibit '2') corroborate the ocular evidences on the record, therefore no fault may be found with the judgment of the learned trial court.
Consideration
34. Having heard learned counsel for the appellants and learned Additional P.P. for the State in both the appeals as also upon perusal of the trial court's records, this Court finds that the fate of the whole prosecution case depends upon the oral testimonies of PW-1 and PW-2 who have claimed themselves eyewitnesses to the occurrence. The credibility of these witnesses are to be examined keeping in view the other evidences on the record and the circumstances appearing from the deposition of other witnesses.
35. In this case the occurrence is said to have taken place on 19.05.2011 at 6:00 PM (evening hours). The month of May being a summer period, the sunset takes places much after 6:00 PM The place of occurrence is near Durga Asthan, Amarpur Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 25/42 which is said to be at a distance of 160 yards from the house of the deceased and in between this, it has come in evidence that there are several other houses. According to the informant (PW-2), she had seen seven named accused persons present at the place of occurrence who stopped the motorcycle by abusing her husband and after the motorcycle was stopped, all the accused persons pushed the vehicle and her husband into the ditch by slapping. Thereafter, all the accused persons are said to have assaulted the deceased by brick and stones due to which head of the deceased was ruptured and when he fell down, then the appellant Ghutar Mishra took out his pistol and fired on the temporal region of the deceased whereafter he became motionless. It is evident from the written report of PW-2 that according to her own case, her husband had become motionless after receiving the firearm shot on his temporal region. She has, however, stated in her evidence in course of trial that her husband was breathing slowly, her house was situated at a distance of five minutes so she went to her house but no one from her family came and she returned to her husband and took him to a Government Hospital at Bihpur. This Court finds that her case in the fardebyan is that after her husband became motionless, the accused persons took out Rs.70,000/- from the back pocket of the trouser of the deceased. The informant claimed Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 26/42 in her fardebyan that she went to home running for calling family members and when she was coming with her family members, the accused persons fled away saying that "bhago sab aa rha hai". She has stated in her fardbeyan that the family members lifted her husband and took him to Mayaganj Hospital by ambulance but on way to Mayaganj Hospital, her husband died. She has not named the family members who had taken her husband to Mayaganj Hospital. No witness has come forward to say that he was accompanying PW-2 while carrying the husband of PW-2 to the hospital. Her statement in fardbeyan and those made in her examination-in-chief are materially different from each other. In her examination-in-chief, she has come out with a different story saying that nobody from her family came and she had taken her husband to Government Hospital, Bihpur where the Doctor told her that her husband was serious and he should be taken to Mayaganj Hospital then she took an ambulance on payment of Rs.1,000/- and took away her husband to Mayaganj Hospital. Thus, in her examination-in-chief, she has not stated that her family members came and they had taken away the victim by an ambulance to Mayaganj Hospital.
36. This Court further finds that the place of occurrence is falling within the jurisdiction of Bihpur Police Station. If the Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 27/42 oral testimony of PW-2 as made in her examination-in-chief is taken into consideration then it is evident that she had brought her husband in alive condition to Government Hospital, Bihpur but there is nothing on the record to show and it is not her case that her husband was admitted in the Government Hospital, Bihpur or any immediate medical aid was provided to him to save his life. The prosecution has not explained as to why in such serious condition the Bihpur Police was not informed either by PW-2 or by the authorities of the Government Hospital. The evidence of PW2 become seriously doubtful and it is not possible to believe that she had taken her husband to Government Hospital, Bihpur in seriously injured condition. Her first version in the fardebyan is that the family members had come to the place of occurrence and they had taken away her injured husband in an ambulance to Mayaganj Hospital but on way her husband died. Prosecution has failed to prove by any reliable piece of evidence that family members of PW-2 had come to the place of occurrence and from there they took away the husband of PW-2 to Mayaganj Hospital.
37. This Court further finds that there is an inordinate and unexplained delay in lodging of the FIR. The Bihpur Police Station is situated at a distance of five kilometers from the place of occurrence. No information at all was given to police station either Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 28/42 by PW-2 or her family members on 19.05.2011. PW-2 has herself stated that when her husband was being brought in the ambulance to Mayaganj Hospital, he died on way and on seeing him, the Doctor immediately declared him dead. She has also stated that she had received the dead body of her husband on the same day in evening. This has also come in evidence that in Mayaganj Hospital, the Barari police has a camp and cases of these kind are reported to the police. In this case, the prosecution has not explained as to why no fardebyan of PW-2 was recorded by Barari Police on 19.05.2011 immediately after arrival in the hospital or within a reasonable period thereafter.
38. PW-2 claims that she remained with the dead body for the whole night in the hospital premises, there is no documentary evidence or oral evidence that her husband was admitted in the hospital for treatment. The father-in-law, father, mother, brother and bhabhi of PW-2 arrived in the hospital only on the next day in the morning whereafter all of them discussed among themselves and only after all deliberation at 11:00 Hours on 20.05.2011, fardbeyan of PW-2 was recorded by ASI Indrajit Singh of Barari Police Station Camp, Mayaganj Hospital. The ASI Indrajit Singh has not been examined in this case, which has definitely caused serious prejudice to the defence inasmuch as the Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 29/42 defence could not examine him to know as to when information regarding the dead body lying in the hospital was given to the police and who had given such information. What is evident from the evidence of PW-2 is that she had not made any statement to Barari Police and had been waiting for arrival of her family members. In the fardbeyan, she has stated that her family members had taken her injured husband to Mayaganj Hospital, therefore, the evidence of PW-2 on this point as to presence of her family members at Mayaganj Hospital on 19.05.2011 when the dead body was already handed over to her and then saying that family members came on the next day in morning are self-contradictory and has shaken the credibility of this witness. Who were those family members who brought the husband of PW-2 to Mayaganj Hospital remained a mystery.
39. This Court further finds that the evidence of the 'thelawala' (PW-8) in this case is very important. Dinesh Poddar (PW-8) has stated that he was coming with empty thela from Bihpur. He has stated that Rohit Chaukidar (PW-7) had brought the dead body of Vinod on his thela to the police station. This statement of PW-8 is to be appreciated in the light of the evidence of PW-2 in paragraph'9' of her deposition wherein she has stated that she did not know that there was a Chaukidar in the village Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 30/42 prior to occurrence. She has stated that before their arrival to Mayaganj Hospital, police had not come to the place of occurrence and she had not gone directly to Bihpur Police Station, rather she had gone to Bihpur Hospital where no inquiry was made from her but in the same paragraph, she has stated that when she brought her husband to Bihpur Hospital then she had gone to Bihpur Police Station and had made a request to provide her security but no security was provided to her by the Police. PW-1 has also stated that they had gone to Police Station.
40. Paragraph '9' of the deposition of PW-2 read together with the oral testimony of 'thelawala' (PW-8) would lead to conclude that the husband of PW-2 had died at the place of occurrence, his dead body was brought on thela of PW-8 by the Chaukidar (PW-7). On hulla, PW-2 reached Bihpur Police Station only after the dead body had arrived at Bihpur Police Station. It was never taken to Bihpur Government Hospital. No FIR was lodged at Bihpur, PW-2 decided to take the deceased under some hope of survival to Mayaganj Hospital but on reaching Mayaganj Hospital, the husband of PW-2 was not admitted in the hospital and was declared dead. Thereafter, on the next date, in the morning, the family members arrived and with an afterthought, the fardebyan was lodged at 11:00 Hours. In the fardebyan recorded in Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 31/42 the Mayaganj Hospital not a single witness has been cited by PW- 2 which would further lead this Court to believe that it was a blind case of murder and at the stage of making of the fardebyan, PW-2 was not sure about presence of any witness at the place of occurrence.
41. Proceeding further, when this Court examines the evidence of the child witness (PW-1), it would appear that this child witness seems to be not fully conversant as to how many days are there in a month. She has given altogether a different statement. PW-1 has stated that Ghutar Mishra stopped the motorcycle of her father and by abusing him, the said accused asked for a rangdari of Rs. 2 lakhs and threatened that if it would not be paid, then he would kill her father. Thereafter, he pushed the motorcycle down and assaulted her father by a brick on his head and fired at his kanpatti, whereafter her father died. She has further stated that the motorcycle was damaged and then this witness has stated that the persons who were involved in killing were also Laddu Chaudhary, Chhoti Chaudhary, Akhilesh Chaudhary and Rajneesh Kumar. From the evidence of PW-1, it becomes crystal clear that according to her, her father had died at the spot itself but contrary to this, PW-2 has stated that her husband was breathing slowly and she had gone on to the extent of Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 32/42 saying that when she took her husband to Bihpur Hospital, the Doctor told her that he is in serious condition, therefore, till that time, her husband was alive. No Doctor from Bihpur Government Hospital has been examined in this case. Therefore, this Court finds that the evidence of PW-1 and PW-2 are contrary to each other.
42. It is further found from the evidence of PW-1 that she has claimed that she along with her mother and younger sister was in her maternal grandparents' village for about one month but PW-2 has stated that she had gone to her naihar with her husband only two days back and on the date of occurrence, she was returning with her husband and the two daughters on the motorcycle. The evidence of PW-1 that she along with her mother and sister was in her naihar since a month before the occurrence indicates that PW-1 and PW-2 were outside the village and their presence at the place of occurrence is highly doubtful. In paragraph '5' of her cross-examination, PW-1 has stated that nobody came to the place of occurrence and they had gone to the Police Station where they stayed. Thus, according to her statement, the family members had not come to the place of occurrence, she along with her mother and sister had come to the police station and stayed there, from there her mother had taken her father to a Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 33/42 Doctor. This witness has stated that her mother had taken away her father on a tamtam on which she has also boarded with her bare papa and dada. This statement of PW-1 is self-contradictory and is not consistent with the statement of PW-2 who has claimed that her father-in-law resides outside the village so he had not come on that day and had arrived in Mayaganj Hospital only on the next day in the morning. PW-1 has stated that after five minutes of her father being shot at, she had gone to the Police Station and the hospital. This further shows that the husband of PW-2 had already died and his dead body had been in fact taken to the Police Station. Because he had died so no treatment was provided at the Government Hospital, Bihpur but PW-2 decided to take the dead body to Mayaganj Hospital and at this stage no FIR was lodged.
43. In the case of Thulia Kali vs. State of Tamil Nadu reported in (1972) 3 SCC 393 there was a delay of more than 20 hours in lodging the FIR, though the Police Station was only at a distance of two miles. The Hon'ble Supreme Court observed that the circumstances would raise considerable doubt regarding the veracity of the case and it would not be safe to base conviction upon it. The relevant part of the observations of the Hon'ble Supreme Court in paragraph '12' of the judgment reads as under:-
"...... First information report in a criminal case is an extremely vital and valuable piece of evidence for the Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 34/42 purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. ....."
44. In the case of Meharaj Singh (L/Nk.) vs. State of U.P. with Kalu vs. State of U.P. and Ors. reported in (1994) 5 SCC 188, the Hon'ble Supreme Court while reiterating the views expressed in the case of Thulia Kali (supra) observed in paragraph '12' inter-alia as under:-
".....With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 35/42 the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8."
45. Swaroop Das (PW-3) is the uncle of the deceased who in his examination-in-chief has stated about the occurrence and has given an impression as if he is an eyewitness to the occurrence. In paragraph '4' of his deposition, during cross- examination, he has stated that he reached the place of occurrence three minutes after the occurrence. PW-3 has further revealed that Kallu (one of the names of the deceased) had two marriages, he had left one of his wives and was keeping the another one. In paragraph '8' of his deposition, this witness has stated that they had taken Kallu to a hospital, he had not gone to the hospital and Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 36/42 cannot say as to where he was taken from the hospital. He states that the dead body was not brought in the village rather the same was cremated outside, then, this witness claims that he had gone in the cremation of the dead body of Kallu. According to him, the dead body was cremated after three days. Apparently, this witness is not an eyewitness and his own statements that he had not gone to hospital and cannot say that from there, where the dead body was taken away would lead to conclude that no evidentiary value may be attached to the oral testimony of this witness.
46. On the point of prior enmity, Swaroop Das (PW-3) has stated that there was no prior enmity with Ghutar Mishra and accused persons and Kallu had not made any complaint against the accused persons at any point of time.
47. Gainu Das (PW-4) is also a hearsay witness. He was working in the State of Punjab prior to the occurrence. His house is situated at a distance of little less than one kilometer and he was told about the occurrence by the wife of the deceased. In paragraph '4' of his deposition, this witness has stated that the accused persons are of another tola, they have agricultural land in the village whereas the prosecution side are not having any land and they were working since their ancestors time in the agricultural field of the accused persons. The evidence of PW-4 is to be Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 37/42 appreciated keeping in view the suggestion of the defence to PW-2 in paragraph '13' of her deposition that Laddu Chaudhary and Ghutar Mishra are having landed property in which her father-in- law was doing ploughing and farming but when the land were taken back from him, the accused persons have been falsely implicated in the present case.
48. Geeta Das (PW-5) is not an eyewitness and he has deposed on the basis of information furnished to him by the wife of the deceased. This witness has stated that he was returning with fodder at 5:30 PM when he had seen the accused persons sitting near the shop, this witness gives a different place of occurrence. He claims in paragraph '3' during his cross-examination that it took him five minutes in reaching home from the place of occurrence and half an hour thereafter he heard hulla in the village that Binod has been killed. After hearing hulla, he reached the place of occurrence after half an hour and reached near the shop where he had seen the dead body of Binod. According to this witness when he reached the shop, he saw that the accused persons had fled away to a distance of 25 yards. To this Court, it appears that this witness is not at all believable. He heard the hulla of murder after half an hour of reaching his home and thereafter within half an hour he reached the place of occurrence, till then the Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 38/42 accused persons had run only to a distance of 25 yards. This witness does not say that he came to know about the occurrence from PW-2. PW-2 has stated in her fardbeyan that she had gone to her house after the occurrence and had come back with her family members and found that the accused persons were fleeing away. In her evidence, she has stated that it took five minutes to her in reaching her home, therefore according to PW-2 within 5-10 minutes she had been again back to the place of occurrence with her family members, obviously PW-5 is not deposing the truth. In paragraph '6' of his deposition, this witness has stated that the wife of Binod (PW-2) had gone to her naihar prior to the occurrence and Binod had also gone to her sasural which is not in consonance with the evidence of the daughter of the deceased who has stated in paragraph '3' of her deposition that she was in her nanihal for about one month prior to the occurrence and her sister and mother were also there.
49. Dr. Yogesh Prasad Shah (PW-6) is the Doctor who has proved the postmortem report (Exhibit '2'). The postmortem examination revealed the following findings:-
"i. Multiple abrasions with bruise were present on face, cheek, chin and below left eyelids.
ii. one wound of entry 1"x1/2'' size was present around the meatus of left ear, the margin was inverted and black, pinna was lacerated, projectile entered skull and Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 39/42 came out by exit wound 1"x1/2" size with margin everted on left forehead. The frontal bone and both parietal bone were found fractured. iii. One lacerated injury 1"x1/2" bone deep size was present behind left ear.
iv. One lacerated injury 1"x1/2" bone deep size was present on left temporal part of scalp. v. Massive haematous was present on both side of cerebral hemisphere and occipital area. Opinion :- the above noted injuries were antemortem and injury no. ii was caused by a fire arm whereas injury no. i, iii, iv, v were caused by hard blunt object. Cause of death- Due to above noted injuries. Time since death - Within 12 to 24 hours from the time of P.M. examination"
50. At this point of time, when this Court looks into the inquest report (Exhibit '4') and the postmortem report (Exhibit '2'), it is found that the inquest report was prepared on 20.05.2011 at 11:15 AM. As stated above, it was recorded by ASI Indrajeet Singh, who has not been examined, therefore the defence could not elicit relevant information with regard to the facts and circumstances leading to the delayed recording of fardbeyan and preparation of the inquest report.
51. Bindeshwari Ram (PW-9) and Akhilesh Kumar Raman (PW-10) are the witnesses of the inquest report and it is stated therein that the deceased died on way to hospital due to the injuries suffered by firing. The postmortem report reveals that the body was sent for postmortem on 20.05.2011 at 2:40 PM. The Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 40/42 formal FIR has been registered at Bihpur Police Station on 20.05.2011 at 5:00 PM. It was sent to the court of learned jurisdictional Magistrate on 21.05.2011. Thus, it is evident from these exhibits that there was an inordinate delay in recording of the fardbeyan of PW-2 even though she claims to have remained present with the dead body in the hospital since 19.05.2011 evening. She had received the dead body as stated by PW-2 on the same day in the evening but then she kept on waiting for arrival of her family members and only on the next day she went to make her statement. This would prove fatal to the prosecution case as it is evident from these materials on the record that the case was lodged only with an afterthought. It was a case of blind murder.
52. Sri Nath Singh (PW-11) is the Assistant Sub- Inspector of Police who has stated that he lodged the formal FIR (Exhibit '5'). It appears from paragraph '1' of his examination-in- chief that he has proved the endorsement made on the fardbeyan as Exhibit '1/1'. He has wrongly stated in paragraph '2' that he had prepared the inquest report which has been marked Exhibit '4/1'. He has identified the signature of Indrajit Singh on the inquest report as Exhibit '4/2' but has not stated as to how he could identify the signature of ASI Indrajit Singh. PW-11 claims that he had prepared seizure list on 20.05.2011, he had found part of the Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 41/42 brick and blood soaked soil. He has proved the seizure list as Exhibit '3/1'. He had not sent the brick and the blood soaked soil for examination. According to PW-11, the place of occurrence is Durga Asthan, many people were present at the place of occurrence but they were not ready to become witness. PW-11 had not noted the names of those persons. He had not seized any empty cartridge from the place of occurrence, he had also not recorded statement of any staff of Naugachiya or Parbatta Hospital. He has stated that immediately after the occurrence the deceased was taken to Mayaganj Hospital but he died on the way to hospital.
53. In ultimate analysis, this Court finds that the prosecution has failed to prove any motive on the part of these appellants in the killing of the deceased Binod Ram. PW-1 and PW-2 claim themselves to be eyewitnesses to the occurrence but from careful scrutiny of their oral testimony, this Court finds that they are not eyewitnesses to the occurrence and PW-2 has got recorded her fardbeyan with an inordinate delay of over seventeen hours from the time of occurrence. In the opinion of this Court it would not be safe to base the conviction of the appellants on the basis of oral testimony of PW-1 and PW-2.
Patna High Court CR. APP (DB) No.958 of 2017 dt.18-07-2024 42/42
54. In result, the impugned judgment and order are set aside and the appellants are acquitted of the charges giving them benefit of doubt.
55. Both the appeals are allowed. The appellant Ghutar Mishra @ Pawan Kumar Mishra in Cr. Appeal (DB) No. 958 of 2017 is in custody, he shall be released forthwith if not wanted in any other case. The appellant Laddu Chaudhary in Cr. Appeal (DB) No. 918 of 2017 is on bail, he is discharged from the liability of his bail bonds.
(Rajeev Ranjan Prasad, J) (Shailendra Singh, J) Rishi/Lekhi-
AFR/NAFR CAV DATE Uploading Date 25.07.2024 Transmission Date 25.07.2024