Patna High Court
Pramod Kumar Singh @ Ganga vs State Of Bihar on 21 November, 2013
Author: Rajendra Kumar Mishra
Bench: Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.284 of 1993
===========================================================
Against the Judgment/Order dated 25.8.1993/ 27.8.1993 passed by the 7th
Additional Sessions Judge, Patna, in Sessions Trial No.999 of 1986, arising out
of Kadamkuan P.S. Case No.155 of 1985.
===========================================================
Babalu @ Rakesh Singh, son of Dr. Rajeshwar Prasad Sinha, resident of
Mohalla-Dariyapur Gola, Police Station-Pirbahore, District-Patna.
.... .... Appellant.
Versus
The State of Bihar
.... .... Respondent.
===========================================================
with
Criminal Appeal (SJ) No. 286 of 1993
===========================================================
Pramod Kumar Singh @ Ganga, son of Late Hardeo Singh, resident of village-
Parthu, Police Station-Punpun, District-Patna.
.... .... Appellant.
Versus
The State of Bihar
.... .... Respondent.
===========================================================
Appearance :
{In CR. APP (SJ) No. 284 of 1993} :
For the Appellant : M/s. D.K. Sinha, Senior Advocate & Swapnil Kumar
Singh, Advocate.
For the State : Mr. S.N. Prasad, A.P.P.
{In CR. APP (SJ) No. 286 of 1993} :
For the Appellant : M/s. D.K. Sinha, Senior Advocate & Swapnil Kumar
Singh, Advocate.
For the State : Mr. Binod Bihari Singh, A.P.P.
===========================================================
CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA
ORAL JUDGMENT
Date: 21 -11-2013
--------------
These two appeals are directed against the Judgment/Order dated
25.8.1993/27.8.1993 passed by the 7th Additional Sessions Judge, Patna, in Sessions Trial No.999 of 1986, arising out of Kadamkuan P.S. Case No.155 of 1985, whereunder the appellants, abovenamed, and one Bipin Bihari Singh Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 2/22 alias Bipin Singh, whose Criminal Appeal (SJ) No.265 of 1993 has been abated due to his death vide order dated 18.5.2009, have been convicted under Sections 307/34 of the Indian Penal Code and Section 27 of the Arms Act and sentenced to undergo rigorous imprisonment for 7 years for the offence under Sections 307/34 of the Indian Penal Code and three years for the offence under Section 27 of the Arms Act with direction to run both the sentences concurrently.
2. The prosecution case, as set out in the fardbeyan (Ext.3) of the informant, Shyam Baboo (P.W.3), is that on 25.2.1985, he alongwith his elder brothers, Gajendra Kumar alias Banerjee (P.W.5), Sergeant D.P. Singh (P.W.2) and Ravindra alias Munna (P.W.1), was returning to house after taking tea from the adjacent tea stall. When he reached in front of his house situated at Arya Kumar Road, he saw Bipin Singh and appellants, Babalu, Pramod Kumar alias Ganga alongwith 4-5 unknowns coming from the north direction. As soon as they came near them, Bipin Singh fired from his pistol by putting it on the chest of Gajendra Kumar alias Banerjee (P.W.5) causing injury on his chest. Appellant, Babalu, also fired from his pistol at Gajendra Kumar alias Banerjee causing injury on his left thumb and, thereafter, his brother, Gajendra Kumar alias Banerjee, fell down. When the informant and his companions ran raising alarm towards his brother then appellant, Pramod Kumar alias Ganga, fired from his pistol at the informant and his companions but the same did not hit to any one of them. In the meantime, Nawal Kishore Singh (P.W.4), Arvind Singh (not examined) and others also rushed there and, thereafter, all the accused fled away towards north direction. The informant Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 3/22 and others immediately took the injured Gajendra Kumar alias Banerjee (P.W.5) on a Rickshaw to P.M.C.H. for treatment and the injured Gajendra Kumar alias Banerjee (P.W.5) was under operation. The informant has stated that the cause of occurrence is due to old enmity of his family with the accused. Earlier, Gajendra Kumar (P.W.5) was also fired shot by Upendra Bihari Singh, son of accused Bipin Singh, for which a case is pending.
3. In the light of the aforesaid fardbeyan (Ext.3) of the informant, Shyam Baboo (P.W.3), as recorded on 25.2.1985 at 12 hours at P.M.C.H. by S.I. D.K. Singh (P.W.7), formal F.I.R. (Ext.5) was drawn up and Kadamkuan P.S. Case No.155 of 1985 under Sections 307/34 of the Indian Penal Code and Section 27 of the Arms Act was registered. After investigation, police submitted the chargesheet. In the light of the chargesheet, cognizance of the offence was taken and after supply of police papers, the case was committed to the court of sessions for trial.
4. During trial, prosecution examined altogether eight witnesses in support of its case. P.W.1, Ravindra Kumar Sinha, is the eye witness to the occurrence. P.W.2, Sergeant D.P. Singh, is the brother of the informant, Shyam Baboo (P.W.3) and the injured Gajendra Prasad Singh alias Banerjee (P.W.5). P.W.3, Shyam Baboo, is the informant of the case and brother of the injured Gajendra Prasad Singh alias Banerjee (P.W.5). P.W.4, Nawal Kishore Singh, is the eye witness to the occurrence. P.W.5, Gajendra Prasad Singh alias Banerjee, is the injured. P.W.6, Dr. Om Prakash Sah, is the doctor, who treated the injured Gajendra Prasad Singh alias Banerjee (P.W.5). P.W.7, Devendra Kumar Singh, is the Investigating Officer of the case. P.W.8, Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 4/22 Bhagwan Das, is the Record Keeper in the Sergical Registrar Office of P.M.C.H., Patna.
5. Now, I proceed to consider the evidence of the prosecution witnesses.
6. P.W.3, Shyam Baboo, is the informant of the case. He has stated in his evidence that on 25.2.1985 at about 9 A.M., he alongwith his brother D.P. Singh (P.W.2) and Banerjee alias Gajendra Singh (P.W.5) had gone to take tea at the adjacent tea stall of Ram Lakhan, situated in front of the house of Nawal Baboo (P.W.4). In the meantime, Munna alias Ravindra Kumar (P.W.1) also reached there and they started to take tea, Nawal Baboo (P.W.4) alongwith Amrendra also came at the tea stall. This witness further stated that he alongwith P.W.1, 2 and 5 proceeded to house and Banerjee (P.W.5) was going ahead. When the informant and others rushed in front of his house then he saw Bipin Singh, appellants, Babalu and Pramod alias Ganga and 5-6 unknowns coming near Banerjee. Bipin fired from his pistol causing injury on the chest of Banerjee Singh (P.W.5). Immediately, just thereafter, appellant, Babalu, also fired from his pistol which hit at the left thumb of Banerjee Singh (P.W.5). This witness and others raising alarm proceeded towards Banerjee Singh, whereupon appellant, Pramod alias Ganga, fired from his pistol at him and others but the same did not hit to any one of them. After receiving the shot Banerjee Singh (P.W.5) fell down and the accused persons fled away towards north direction. Thereafter, this witness and others took the injured Banerjee Singh to P.M.C.H. on a Rickshaw. The police came at P.M.C.H. and recorded his fardbeyan, which Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 5/22 was explained to him. He put his signature on the fardbeyan and proved his signature as Ext.1. This witness has further stated that he had gone to the place of occurrence with the police at about 2.30 P.M. Banerjee Singh (P.W.5) has old enmity with the accused, due to that reasons, the occurrence took place. This witness has further stated that Banerjee Singh (P.W.5) used to reside in one room and rest portion of the house situated near the place of occurrence is on rent. This witness has further stated that Banerjee Singh (P.W.5) was under treatment about 2 weeks at P.M.C.H. and, thereafter, he was treated at Popular Nursing Home where his left thumb was operated. He has further stated that after about 7-8 months, second operation of the intestine of Banerjee Singh (P.W.5) at P.M.C.H. was made. This witness has further stated in paragraph-22 of his cross examination that his brother has sustained injury from the distance of 2 fts. He received first shot from the distance of about 2 fts and second shot from the distance of 3 fts. He has denied the suggestion of the defence that he had stated in his fardbeyan and statement before the police that Bipin Singh fired shot touching the chest of Banerjee Singh (P.W.5). This witness has further stated in paragraph-24 of his cross examination that at the time of carrying of his brother on Rickshaw from the place of occurrence, he did not disclose to any one that Bipin and Babalu had fired shot.
7. P.W.1, Ravindra Kumar Sinha, has stated in his evidence that on 25.2.1985 at about 9 A.M. he was taking tea at the tea stall of Ram Lakhan where Banerjee Singh alias Gajendra Prasad Singh (P.W.5), D.P. Singh (P.W.2) and Shyam Baboo (P.W.3) were also present. In the meantime, Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 6/22 Nawal Singh (P.W.4) and Arvind Singh also came. After taking tea, Banerjee proceeded ahead whereas he and other proceeded behind him. When Banerjee Singh reached near his house then Bipin Singh, Babalu and Pramod alias Ganga alongwith 4-5 unknowns were seen coming towards Banerjee Singh. Bipin Singh fired shot at Banerjee Singh which hit at his left chest. In the meantime, Babalu fired shot at Banerjee Singh, which hit at the left thumb of Banerjee Singh. When he and others rushed towards Banerjee, Pramod also fired but the same did not hit to any one and, thereafter, accused fled away in north direction. On alarm being raised, several persons rushed there. This witness has further stated that Banerjee was carried to P.M.C.H. on Rickshaw for treatment. This witness has stated in paragraph-7 of his cross examination that Arya Road is a busy road. In the north and south of the house of Banerjee Singh, several houses and shops are situated. At the time of occurrence, the shops were closed. This witness has further stated in paragraph-8 that firstly he saw the accused at the distance of 15-20 fts. Banerjee Singh on receiving the gun shot injury fell down there. He could not notice about falling of blood at the place of occurrence. This witness has further stated in paragraph 14 of his cross examination that he is an witness in another case of Banerjee Singh (P.W.5).
8. P.W.2, Sergeant D.P. Singh, is the brother of the injured Gajendra Prasad Singh alias Banerjee (P.W.5) and the informant, Shyam Baboo (P.W.3). He has stated in his evidence that on 25.2.1985 at about 9 A.M. he was taking tea at the tea stall situated in front of the house of Nawal Baboo (P.W.4). At that time, Banerjee alias Gajendra (P.W.5), Munna alias Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 7/22 Ravindra (P.W.1), Shyam Baboo (P.W.3), Nawal Baboo (P.W.4) and Amrendra were also present. After taking tea, he alongwith P.Ws.5, 3 and 1 proceeded towards his house, his brother Banerjee was 5-6 fts ahead to them. When he reached near his house, all of sudden, Bipin Singh, Babloo, Pramod alongwith 5-6 came in front of Banerjee. Bipin Singh fired shot at the chest of Banerjee Singh. After few seconds, Babloo fired shot at the left thumb of Banerjee. He and others raised alarm, then Pramod also fired towards them but none of them sustained injury and, thereafter, accused fled away from there. This witness has further stated that he alongwith P.Ws.3, 1 and 5 carried to Banerjee on Rickshaw to the hospital where Banerjee was operated. This witness has further stated in paragraph-6 of his cross examination that his brother Banerjee Singh was convicted under Section 307 of the Indian Penal Code in a case of attempt to murder of Ratnesh and sentenced for seven years. This witness has further stated in paragraph-9 of his cross examination that in Machhua Toli, he has only one house. The said house was raided by the police in which rifle, gun and katta were recovered. Police also recovered Rs.50,000/- and some persons were also arrested from there but this witness has shown his ignorance regarding suggestion of defence that Gajendra (P.W.5), Narendra and Sanat were caught hold by the police in the said case. This witness has denied the suggestion of defence that his brother, Banerjee (P.W.5), was fired shot in his house in course of distributing the theft articles.
9. P.W.4, Nawal Kishore Singh, has given the similar statement as that of the informant (P.W.3). He has stated in his evidence that on 25.2.1985 at about 9 A.M. he was taking tea at the tea stall of Ram Lakhan, Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 8/22 where Devendra Prasad Singh (P.W.2), Munna alias Ravindra (P.W.1), Shyam Baboo (P.W.3) and Banerjee Singh (P.W.5) were taking tea from before. He has further stated that P.Ws.1, 2, 3 and 5 proceeded towards their houses after taking tea, Banerjee Singh (P.W.5), was 5-6 fts. ahead to them. This witness has further stated that at that time, Bipin Singh, appellants, Pramod Singh, Babalu and some unknowns came there from north direction and Bipin Singh fired shot at the chest of Banerjee Singh (P.W.5) and Babalu Singh also fired shot which hit at the left thumb of Banerjee Singh (P.W.5). When Devendra (P.W.2), Shyam Baboo (P.W.3) and Munna (P.W.1) raised alarm then Pramod Singh also fired shot at them but the same did not hit to any one of them and, thereafter, accused fled away towards north. Thereafter, Banerjee Singh (P.W.5) was taken to the hospital on Rickshaw by Devendra (P.W.2), Shyam Baboo Singh (P.W.3) and Munna (P.W.1). This witness has stated in paragraph-2 of his cross examination that he is residing at Mohalla-Machhua Toli since 1954 and the house of Shyam Babloo (P.W.3) is situated at the distance of 25 fts. in north. He has further stated that he knows all brothers of Shyam Baboo and he is on visiting term with Shyam Baboo. This witness has further stated in his cross examination that Servanand, who was residing in the house of Shyam Baboo (P.W.3), had lodged a case under Section 307 of the Indian Penal Code against Bipin Singh and his son, Upendra, and others, in that case he was eye witness of the occurrence but this witness has shown his ignorance about submission of final form by the police in that case.
10. P.W.5, Gajendra Prasad Singh alias Banerjee, is the injured and the brother of the informant. He has stated in his evidence that on Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 9/22 25.2.1985 at about 9 A.M. he alongwith Devendra (P.W.2), and Shyam Baboo (P.W.3) had gone to take tea at the tea stall of Ram Lakhan situated near his house. In the meantime, Munna alias Ravindra also came at the tea stall. While he alongwith other was taking tea, Nawal Baboo (P.W.4) and Arvind also came there to take tea. After taking the tea, he alongwith P.Ws.1, 3 and 2 proceeded for house and he was ahead to P.Ws.1 and 3. When he reached in front of his house, he saw Bipin Singh, Pramod alias Ganga and Babalu alias Rakesh, armed with pistols, alongwith 4-5 unknowns coming from north direction. Bipin Singh fired at his chest and just thereafter Babalu Singh also fired at him which hit at his left thumb, then he fell down. On hullah raised by others, Pramod alias Ganga fired shot towards Shyam Baboo Devendra and Munna but none of them sustained injury. Thereafter accused fled away towards north and he was carried to P.M.C.H. on Rickshaw by Shyam Baboo, Munna and Devendra, where he was treated and discharged on 11.3.1985 while he was not fully cured. Thereafter, he got his left thumb treated at Popular Nursing Home and, later on, he was again admitted at P.M.C.H. for treatment, where his intestine was operated. This witness has further stated in paragraph-6 of his cross examination that his brother Ladoo Singh had contested assembly election from the Masaurhi Constituency against Ex- M.L.A. Ganesh Prasad Yadav and after election Ganesh Prasad was murdered in which his brother had gone to jail. This witness has further stated in paragraph-8 of his cross examination that in the year 1985, his brothers, Narendra and Sanad were arrested in connection with Kadamkuan P.S. Case No.452 of 1985 and the said case is still pending. This witness has further Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 10/22 stated in paragraph-12 that after receiving shot, he did not become unconscious. He did not disclose to any one either at the place of occurrence or at the hospital that Bipin had fired shot at him. This witness further stated that in paragraph-13 that he had given the statement firstly to police on 9.3.1985. Before giving the statement to police he had not disclosed the name of Bipin as assailant. This witness has further stated in paragraph-15 of his cross examination that Bipin did not make firing touching his body rather he had fired shot from the distance of 1 and half feets. Bipin had fired only one shot. Second shot was received by him at his thumb. After receiving second shot he fell down and he was put on Rickshaw by others, at that time, 10-15 persons were present near the Rickshaw. This witness, in paragraph-19 of his evidence, stated that it is not in his memory that he had stated before the police that he was shot fired touching the pistol at his chest.
11. P.W.6, Dr. Om Prakash Sah, has stated in his evidence that on 25.2.1985, he was on duty as S.O.D. at Emergency Ward of R.S.B. from 7 A.M. to 2 P.M. On that day at about 9.15 A.M. he examined the injured Gajendra Prasad Singh (P.W.5) and found the following injury on his person:
(i). Multiple pin point marks over the lower chest, more marked on left side and at one point a penetrating wound seen 1/2" X 1/4" X ?
(ii). A bullet was seen and palpated at the left loin subcutaneously.
(iii). A lacerated injury on the left thumb involving whole of left thumb, bone exposed and comminuted.
(iv). Abdomen shows the sign of peritonitis.
During operation, following injuries were found inside the abdomen of the patient by P.W.6:
(1). Stomach ruptured at the greater curvature and bleeding from gastro -epiploic vessels.
(2). Small bowel- A perforation at the proximal end.
Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 11/22 (3). Transverse colon-at the left side of mid-colic artery was found ecchymosed with an opening in the colon which was exteriorized.
(4). Bullet was removed from the loin and it was kept with the office of Registrar, P.M.C.H., Patna.
According to P.W.6, the injuries were caused within six hours by firearms. The injuries no.1, 2 and 4 were dangerous to life and injury no.3 was grievous. Injury nos.1, 2 and 4 were sufficient to cause death if the patient was not operated. This witness has stated that the injuries described in S.O.D. Book have been written by House Surgeon on his dictation and he has proved the injuries description of S.O.D. Book as Ext.2. He has proved the Bed Head Ticket of the patient (P.W.5) in 10 pages as Ext.2/1. P.W.6 has further stated that the S.O.D. book shows that the bullet was handed over to Assistant of Registrar Office on 25.2.1985 and he proved the entry regarding the same as Ext.2/2. P.W.6 has proved the entry in the S.O.D. book about handing over the bullet to Bhagwan Das, an Assistant of Registrar Office on 25.2.1985 as Ext.2/3. P.W.6 has further stated that concised injury report prepared by him was sent to the court of 4th Additional Sessions Judge, Patna, and proved the same as Ext.2/4. P.W.6 has further stated that on his advise the X-ray of the patient was taken. The X-ray report, two in number, shows the bullet in the body of the patient as described in injury no.(ii). The X-ray report is marked as Material Ext.I (with objection). In reply to the question of the defence that whether the multiple pin point marks might have been caused by small pellets shot from a distance, this witness has stated that the injury may be caused by small pellets. When this witness was asked whether penetrating wound seen at one point could have been caused by bullet then he Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 12/22 made evasive reply that let a firearm expert be examined on this point as he is unable to give expert opinion. This witness has further stated that he is not sure that whether the bullet which was recovered from loin was fired by pistol or from gun or from rifle. This witness has also stated that he did not find any burning, blackening or tattooing over injury no.iii, i.e., lacerated injury on the left thumb.
12. P.W.7, Devendra Kumar Singh, is the Investigating Officer of the case. He has stated in his evidence that on 25.2.1985 he was posted as Kadamkuan Police Station. On that day at about 11.20 A.M. he got telephonic message from an unknown person to the effect that firing was resorted at Machhua Toli area near Municipal Corporation. On getting the said information, he alongwith Constable No.1306, Devsharan Singh, proceeded for Machhua Toli near Municipal Corporation and on query he came to know that Banerjee, the brother of Laddu Singh, had sustained firearm injury and he was taken to the P.M.C.H. Thereafter, he went to P.M.C.H. where he found Gajendra Kumar alias Banerjee in an unconscious state at Rajendra Surgical Emergency Ward and then he recorded the fardbeyan of Shyam Baboo (P.W.3), brother of Gajendra Kumar alias Banerjee (P.W.5). This witness has proved the fardbeyan as Ext.3 and also the endorsement regarding forwarding the fardbeyan as Ext.4 for institution of the case. This witness has further stated that formal F.I.R. was prepared by Sri R.D. Mishra and he proved the formal F.I.R. as Ext.5. This witness has further stated that he prepared the injury report in respect of banded injury of Gajendra Kumar alias Banerjee (P.W.5) in carbon process and handed over the same to S.O.D., Rajendra Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 13/22 Surgical Emergency Ward. This witness has proved the carbon copy of injury report as Ext.6. This witness has stated that he reexamined the informant and also recorded the statements of the witnesses and inspected the place of occurrence. According to this witness, the place of occurrence is western soil flank of Arya Kumar Road in Machhua Toli under Kadamkuan Police Station ahead 10 fts. in east to the front of double storied building of the informant, 20 fts. ahead from the place of occurrence, there was tea stall of Ram Lakhan Prasad. This witness has further stated that he recorded the statement of the injured, Gajendra Kumar alias Banerjee (P.W.5) and, thereafter, on transfer he handed over the charge of investigation to the Officer Incharge. This witness has stated in his cross examination that Kadamkuan Police Station is about one kilometer in south-west to the place of occurrence. This witness has further stated in paragraph-9 that he reached at about 11.40 A.M. near Corporation Office at Arya Kumar Road where he made query to some people but at that time, they did not disclose the name of the assailants. This witness has further stated in paragraph-12 of his cross examination that there is over writing in the timing of recording of the fardbeyan but this witness denied the suggestion of the defence that 2.45 has been corrected as 12. This witness has further stated in paragraph-15 of his cross examination that he had recorded the statement of Tara Devi, wife of tea stall owner, Ram Lakhan, on the same day. This witness has further stated in paragraph-16 of his cross examination that he had searched two witnesses, Ravindra Singh (P.W.1) and Arvind Singh on 25.2.2985 but they could not be traced. When he reached at the place of occurrence second time, Shyam Baboo was present but he also did not Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 14/22 produce the said witness before him. This witness has further started in paragraph-18 of his cross examination that on 25.2.1985 he made query from Bhajju Ram, Bangali Ram, Badri Prasad and others. This witness has further stated in paragraph-19 of his cross examination that he recorded the statement of Ravindra (P.W.1) and Amrendra on 26.2.1985 at about 3.30 P.M. This witness has further stated in paragraph-22 that he recorded the statement of the injured Gajendra (P.W.5) for the first time on 9.3.1985. This witness has further stated in paragraph-25 of his cross examination that he did not find any blood or other relevant things near the place of occurrence as the place of occurrence is being used by people frequently. P.W.7 has further stated in paragraph-31 of his cross examination that the witness Ravindra Kumar (P.W.1) has not stated before him that Arvind and Nawal Singh (P.W.4) had come at the tea stall to take tea. He had not stated before him that Banerjee was moving ahead to him. He had also not stated before him that 7-8 persons came all of sudden and resorted firing. P.W.7 has stated in paragraphs-33 and 34 of his evidence that the witness, D.P. Singh (P.W.2) had not stated before him that Nawal Kishore Singh (P.W.4) and Amrendra Singh were taking tea with him and Bipin Singh fired shot at the chest of Banerjee rather he had fired shot at the body of Banerjee. This witness has further stated in paragraph-35 of his cross examination that the witness, Shyam Baboo (P.W.3) had not stated before him that he had gone to take tea at the shop of Ram Lakhan Singh. In paragraph-36 this witness has stated that Shyam Baboo (P.W.3) had stated before him that Bipin Singh had fired shot touching the chest of Gajendra Singh (P.W.5). This witness had further stated in paragraph- Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 15/22 37 that Nawal Kishore Singh (P.W.4) has not stated before him about firing shot at the chest of Banerjee nor he had stated that Banerjee was ahead to 5 to 8 fts. to him. This witness has further stated in paragraph-38 that the witness, Gajendra (P.W.5), had stated in his statement before him that firing was made touching his chest.
13. P.W.8, Bhagwan Das, is Record Keeper of Surgical Registrar Office of P.M.C.H., Patna. He has stated that on 25.2.1985, Dr. Om Prakash Sah (P.W.6), who is Surgeon at P.M.C.H., had handed over pellet sealed in a phial to him. The name of the patient from whose body pellet was recovered is detailed over the phial. This witness has further stated that on the phial there is signature of Dr. Om Prakash Sah with date and he proved the same as Material Ext.II. This witness has also stated that he had obtained the phial putting his signature on S.O.D. book and proved his writing and signature on S.O.D. book as Ext.2/2. As such, this witness is a formal witness, who has produced the pellet sealed in a phial.
14. Learned counsel appearing on behalf of the appellants referring the fardbeyan (Ext.3) of the informant and paragraphs-36 and 38 of the evidence of Devendra Kumar Singn (P.W.7), the Investigating Officer, made submission that the informant, Shyam Baboo (P.W.3), has stated in his fardbeyan that Bipin fired from his pistol by putting it on the chest of Gajendra Prasad Singh alias Banerjee Singh (P.W.5) causing injury on his chest. The informant, Shyam Baboo (P.W.3), has also stated in his restatement before Devendra Kumar Singh (P.W.7) that Bipin Singh fired shot from his pistol touching it on the chest of Gajendra Prasad Singh (P.W.5), Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 16/22 which would appear from paragraph-36 of the evidence of Devendra Kumar Singh (P.W.7), the Investigating Officer. Similarly, P.W.5, Gajendra Prasad Singh alias Banerjee Singh, who is injured, had also stated in his statement before Devendra Kumar Singh (P.W.7), the Investigating Officer, that shot was fired touching his chest. But P.W.3, Shyam Baboo (informant) and P.W.5, Gajendra Prasad Singh alias Banerjee Singh (injured), have stated in their evidence before the court that Bipin Singh fired shot at the chest. P.W.3, Shyam Baboo, has further stated in paragraph-22 of his evidence that his brother, Gajendra Prasad Singh alias Banerjee Singh (P.W.5), sustained injury from the distance of 2 fts. He received first shot from the distance of 2 fts. and second shot from the distance of 3 fts. P.W.5, Gajendra Prasad Singh alias Banerjee Singh (P.W.5) has also stated in paragraph-15 of his evidence that Bipin Singh did not make firing touching his body rather he had fired shot from the distance of 1 and 1/2 fts. P.W.3, Shaym Baboo and P.W.5, Gajendra Prasad Singh alias Banerjee Singh, reiterated to their earlier statement given before the police and have stated in their evidence before the court about the firing from the distance of 2 fts., only to corroborate the injury report of P.W.5 (Ext.2) as P.W.6, Dr. Om Prakash Sah, who examined the injured, Gajendra Prasad Singh alias Banerjee Singh (P.W.5), did not find any scorch blackening and tattooing near the injury of Gajendra Prasad Singh alias Banerjee Singh (P.W.5). As such, reiterating to the earlier statements by P.W.3, Shyam Baboo, and P.W.5, Gajendra Prasad Singh alias Banerjee Singh, given to the police, in their evidence before the court itself creates doubt about the prosecution case and the manner of the occurrence. Learned counsel for the Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 17/22 appellants further made submission that the injured, Gajendra Prasad Singh alias Banerjee Singh (P.W.5), has stated in paragraph-13 of his evidence that for the first time he had given his statement on 9.3.1985 in the case, before that he had not disclosed the name of Bipin Singh as his assailant. This witness has further stated in paragraph-15 of his evidence that after receiving second shot he fell down and after 10-15 minutes he was put on a Rickshaw. At that time, 10-15 persons had surrounded the Rickshaw. This witness has further stated in paragraph-16 that in between 25.2.1985 to 9.3.1985, several persons had come to P.M.C.H. to see him but he was not aware about lodging of the case by Shyam Baboo (P.W.3) against the three accused. As such, non disclosing the name of assailants till his recording the statement by the Investigating Officer (P.W.7) and unawareness of lodging of the case by his brother, Shyam Baboo (P.W.3), against the accused is itself indicative of the fact that Gajendra Prasad Singh alias Banerjee Singh (P.W.5), who is injured and prime witness of the occurrence, was not sure about his assailants. Learned counsel for the appellants further made submission that Gajendra Prasad Singh alias Banerjee Singh (P.W.5) has criminal history as he himself has admitted in paragraph-7 of his evidence that he was convict in a case of attempt to murder of Ratnesh prior to the occurrence of the present case. Sergeant D.P. Singh (P.W.2), has also stated in paragraph-9 of his evidence that police had raided his house situated at Machhua Toli from where rifle, gun and katta anf also cash Rs.50,000/- were recovered and several persons were arrested and the case is still pending. In fact, Gajendra Prasad Singh alias Banerjee Singh (P.W.5) sustained injury at his house due to conflict in Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 18/22 between his gang men and taking the advantage of the injury sustained by Gajendra Prasad Singh alias Banerjee Singh (P.W.5), his brother, Shyam Baboo (P.W.3), has falsely implicated the appellants due to old enmity. It is also submitted by the learned counsel for the appellants that in this case, P.Ws.1, 2, 3, 4 and 5 are said to be the eye witnesses of the occurrence but all are interested witnesses as P.W.3 is the informant of the case, P.Ws.2 and 5 are his brother and P.Ws.1 and 4 are none but close to the informant as both are the witnesses in the case relating to the informant and no independent witnesses have been examined in this case to support the prosecution case while P.W.7, Devendra Kumar Singh, the Investigating Officer of the case, has stated in his evidence that he had recorded the statement of Tara Devi, wife of the teal stall owner, Ram Lakhan, and Amrendra and also made query to Bhajju Ram, Bangali Ram and Badri Prasad and others near the place of occurrence regarding the occurrence.
15. Learned A.P.P. for the State opposed the submissions of the learned counsel for the appellants and made submission that according to the fardbeyan (Ext.3) of the informant, Shyam Baboo (P.W.3), Bipin Singh fired from his pistol putting it on the chest of Gajendra Prasad Singh alias Banerjee Singh and the informant, Shaym Baboo (P.W.3) and the injured Gajendra Prasad Singh alias Banerjee Singh (P.W.5) had also given the similar statement before P.W.7 but due to that reasons, the whole prosecution story could not be discarded as P.W.3, Shaym Baboo, P.W.5, the injured, Gajendra Prasad Singh alias Banerjee Singh, P.W.1, Ravindra Kumar Sinha, P.W.4, Nawal Kishore Singh, who are the eye witnesses of the occurrence, have fully Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 19/22 supported the prosecution case in their evidence causing injury at the chest of P.W.5. It is also submitted by the learned A.P.P. that while P.W.5, Gajendra Prasad Singh alias Banerjee Singh, has stated in his evidence before the court that for the first time he had given the statement to the police on 9.3.1985 and before that he had not disclosed the name of Bipin Singh as assailant but only due to that reasons, the prosecution case cannot be disbelieved.
16. P.W.3, Shyam Baboo, the informant of the case, has stated in his fardbeyan (Ext.3) that on 25.2.1985 at about 9 A.M. after taking the tea from the tea stall of Ram Lakahn situated near his house, he along with his brother, Sergeant D.P. Singh (P.W.2), Gajendra Prasad Singh alias Banerjee Singh (P.W.5) and Ravindra Kumar Sinha (P.W.1) proceeded towards his house. At that time, Gajendra Kumar Singh alias Banerjee Singh (P.W.5) was ahead to them. When he reached in front of his house, he saw Bipin Singh and the appellants, Babalu and Pramod alongwith 5-6 unknowns coming from the north direction. Bipin Singh fired shot touching the pistol on the chest of Gajendra Kumar Singh alias Banerjee Singh (P.W.5) and, soon thereafter, appellant, Babalu, fired shot causing injury on the left thumb of Gajendra Kumar Singh alias Banerjee Singh (P.W.5). He alongwith others ran towards Gajendra Kumar Singh alias Banerjee Singh (P.W.5) raising alarm then appellant, Pramod alias Ganga, also fired from his pistol but none of them sustained injury. Devendra Kumar Singh (P.W.7), the Investigating Officer of the case, has stated in his evidence, in paragraph-36, that Shyam Baboo (P.W.3) has stated in his fardbeyan and restatement that Bipin fired shot from his pistol at Gajendra Prasad Singh alias Banerjee Singh (P.W.5) touching the Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 20/22 pistol on his chest. Devendra Kumar Singh (P.W.7) has further stated in paragraph-38 that the witness, Gajendra Prasad Singh alias Banerjee Singh (P.W.5), had stated in his statement that shot was fired touching his chest. But Shyam Baboo (P.W.3) and the injured Gajendra Prasad Singh alias Banerjee Singh (P.W.5) have stated in their evidence that Bipin fired on the chest. P.W.3, Shyam Baboo, in his evidence has further clarified that the shot was fired from the distance of 2 fts. and 3 fts. Similarly, the injured Gajendra Prasad Singh alias Banerjee Singh (P.W.5) has also clarified that shot was not fired touching his chest rather the same was fired from the distance of 1 and 1/2 fts. P.W.6, Dr. Om Prakash Sah, who examined the injured Gajendra Prasad Singh alias Banerjee Singh (P.W.5), has found multiple point marks over the lower chest, more marked on left side and at one point a penetrating wound seen 1/2" X 1/4" X ?. No scorch blackening and tattooing found near the injury of Gajendra Prasad Singh alias Banerjee Singh (P.W.5) by P.W.6. As such, it appears that P.W.3, Shaym Baboo and P.W.5, Gajendra Prasad Singh alias Banerjee Singh reiterated to their earlier statement given before P.W.7 and stated in their evidence about firing at the distance of 1 ½ fts.-2 fts., only to corroborate the injury as found by P.W.6 in the injury report (Ext.2) of Gajendra Prasad Singh alias Banerjee Singh (P.W.5).
Gajendra Prasad Singh alias Banerjee Singh (P.W.5) has stated in paragraph-13 that he had given his statement firstly on 9.3.1985 and disclosed the name of Bipin Singh as assailant. He has stated in paragraph-15 that after receiving the second shot he fell down and remained lying on the ground about 10-15 minutes and, thereafter, he was put on Rickshaw and at that time, Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 21/22 10-15 persons were present. He has further stated in paragraph-16 that in between 25.2.1985 to 9.3.1985 several persons had come to see him at P.M.C.H. but he was not made aware that his brother, Shyam Baboo (P.W.3) has lodged the case against the three accused including the appellants. Injured Gajendra Prasad Singh (P.W.5) has claimed to identify the assailants including the appellants at the place of occurrence in his evidence. When P.W.5 was being carried on Rickshaw to the P.M.C.H., 10-15 persons were present and several persons visited to seen him at P.M.C.H. in between 25.2.1985 to 9.3.1985 but he had not disclosed the name of the assailants to any one and he was also not aware about lodging of the case by his brother, informant Shyam Baboo (P.W.3) against the three accused including the appellants. Non disclosure of the name of assailants by P.W.5 to any person, who were present at the time when he was being carried to P.M.C.H. and who visited P.M.C.H. to see him till 9.3.1985 and also his unawareness of lodging the case by his brother, Shyam Baboo (P.W.3), clearly indicates that P.W.5 was not sure about the identity of the assailants. Admittedly, P.W.3, Shyam Baboo has old enmity with the appellants. P.Ws.2, 5 are brother of the informant, P.W.3. P.Ws.1 and 4 are the men of the P.W.3 and they were also the witnesses in the case of P.W.3. As such, evidence of P.Ws.1, 2, 3 and 4 cannot be relied safely taking into consideration the above discrepancy.
17. Under the facts and circumstances of the case and the discussions made above, I am of the view that the prosecution has not been able to prove its case beyond all reasonable doubts against the appellants and the appellants are entitled to get the benefits of doubt. Patna High Court CR. APP (SJ) No.284 of 1993 dt.21-11-2013 22/22
18. In the result, the impugned Judgment/Order is set aside and these two appeals are allowed. The appellants are acquitted of the charges. The appellants are on bail, so they are discharged from the liabilities of their bail bonds.
(Rajendra Kumar Mishra, J) P.S./-N.A.F.R.