Patna High Court
Mohammad Shakil vs State Of Bihar on 6 August, 2015
Author: Gopal Prasad
Bench: Gopal Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.319 of 1992
Arising Out of PS.Case No. 148 Year- 1991 Thana -Murarpur District- NALANDA
(BIHARSHARIFF)
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Mohammad Shakil, Son of Mosim Mian, resident of Mohalla Bhaisasur, PS
Murarpur, Dist. Nalanda
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Kanhaiya Prasad Singh, Sr. Advocate
M/s Birendra Kumar Singh, Alok Kumar,
Jyotsna Kumari, Dr. Rajesh Kumar Singh
For the Respondent/s : Mrs. Shashi Bala Verma, APP
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CORAM: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA
and
HONOURABLE SHRI JUSTICE GOPAL PRASAD
ORAL JUDGMENT
(Per: HONOURABLE SHRI JUSTICE DHARNIDHAR JHA)
Date: 06-08-2015
The solitary appellant Mohammad Shakil was put on
trial by learned Sessions Judge, Nalanda at Biharsharif after being
indicted of committing offences under Sections 302 and 323 of the
Indian Penal Code as also under Section 27 of the Arms Act, in
Sessions Trial No. 353 of 1991. The appellant was convicted of
committing all the offences by judgment and order of sentence dated
30th June, 1992 passed by the learned Sessions Judge, Nalanda at
Biharsharif, and after being heard on sentence, was directed to suffer
rigorous imprisonment for life under Section 302 IPC and another
term of rigorous imprisonment for seven years for being convicted
under Section 27 of the Arms Act. The appellant was not awarded
any sentence for having been held guilty of committing offence under
Section 323 IPC. The appellant has appealed to this Court to set up a
Patna High Court CR. APP (DB) No.319 of 1992 dt.06-08-2015
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challenge to the judgment of conviction and order of sentence.
2. The deceased Md. Shahid was the son of
informant Md. Yasin (PW 5). They appeared running an optical shop
under the name and style of "Sinha Opticals". It was stated by PW 5
Md. Yasin in his fardbeyan (Ext.3), that at about 9 PM after closing
the business, he along with his son Md. Shahid were coming back to
their house. When they reached in front of Bhainsasur Durga Asthan,
it was stated, this appellant came from behind PW 5 Md. Yasin and
gave a push to him and just thereafter fired a shot at the deceased Md.
Shahid. The shot hit the deceased somewhere around his right ear.
3. The informant raised an alarm which attracted
many persons from the neighbourhood. But by that time, this
appellant Md. Shakil is said to have made good his escape. The
informant thereafter brought his son to Sadar Hospital, Biharsharif,
where the doctor had declared him dead. As per PW 5 Md. Yasin, the
occurrence had been witnessed by Md. Ekbal Ahmad (PW 1) and Md.
Faiyaz @ Chhotu (PW 2), as also Pramod Kumar (not examined).
4. PW 7 S.I. A K Pandey stated in his evidence
that on 18.4.1991, he was posted as Sub Inspector of Police in
Murarpur Police Station in Biharsharif and he had been out of station
in connection with some investigation of a case. He happened to be on
Patna-Ranchi Road in that connection and he could learn there that a
man had been shot dead in Mohalla Bhainsasur near the Devi Asthan.
He came there to find that a man was soaked in blood and was lying
east of the road and huge number of persons had assembled there. He
picked up the injured Shahid, the deceased, and put him on the jeep to
bring him to the hospital at Biharsharif. At that time, PW 7 S.I. A K
Pandey was accompanied by the informant PW 5 Md. Yasin. PW 7
would state that while the deceased was being transported to the
Patna High Court CR. APP (DB) No.319 of 1992 dt.06-08-2015
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hospital, he had breathed his last. PW 7 A K Pandey informed the
senior police officers by telephone and thereafter sent for the forms of
dead body challan and inquest report through a constable. On that
particular day, Murarpur Police Station was presided over by Sub
Inspector Sant Kumar Singh as the Officer-in-Charge. He along with
S I Bundel Mistry, A S I Shailendra Kumar Singh, Havildar Jagdish
Jha, Constable 1044 Ram Babu Singh came there with the forms of
dead body challan and inquest report
PW 7 A K Pandey recorded the fardbeyan (Ext. 3) of
PW 5 Md. Yasin at 10.15 PM. He sent the document for institution of
a case in Murarpur Police Station. The Officer-in-Charge of the Police
Station in turn transmitted the document for registration of the case to
the Officer-in-Charge of Biharsharif Police Station, as a result of
which the FIR of Biharsharif (Murarpur) Police Station Case No.148
of 1991 was lodged. PW 7 thereafter held inquest upon the dead body
of Md. Shahid in presence of the witnesses and the report was
prepared by A S I Bundel Mistry at his dictation. Copy of the inquest
report was marked Ext.5. The dead body was sent for post mortem
examination to the hospital with dead body challan.
The Investigating Officer recorded the further
statement of the informant in the hospital itself and proceeded from
the hospital for the place of occurrence at 12 PM on 18.4.1991. He
inspected the place of occurrence on being pointed out to him by PW
5 Md. Yasin, the informant of the case. The place of occurrence was
in front of the Devi Temple.To its east, was the road which was
known as Patna-Ranchi Road and was situated in Mohalla Bhainsasur.
The road had been divided by putting up a concrete divider. PW 7
seized blood-stained earth from the place of occurrence and prepared
the seizure memo. The seizure memo was marked Ext.6. He recorded
Patna High Court CR. APP (DB) No.319 of 1992 dt.06-08-2015
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the statements of PW 2 Md. Faiyaz @ Chhotu, Pramod Kumar (not
examined), Md. Ekbal Ahmad PW 1, Md. Khurshid Ahmad PW 4 and
Wahabd Khan (not examined) at the very place of occurrence. He
thereafter started search for the appellant and not finding him,
requisitioned for issuance of warrant of arrest from the court. The
appellant had surrendered himself to the custody of the court on
23.4.1991. P W 7 A K Pandey did not send the seized blood-stained earth for chemical examination to the Forensic Science Laboratory and after closing the investigation, he sent the present appellant up for his trial.
5. The defence of the appellant was that he had worked in the Optical Shop of PW 1 Md. Ekbal Ahmad and had been trained by him. But subsequently, he independently set up his own shop of opticals in a locality where the veterinary hospital was situated in Biharsharif. On account of establishing the optical shop by the appellant, PW 1 Md. Ekbal Ahmad, who was the „sala‟ of the informant Md. Yasin, had experienced loss of works on account of the clientele dwindling and this was the reason that he had been implicated falsely by the informant at the behest of the PW 1 Md. Ekbal Ahmad.
6. Seven witnesses were examined by the prosecution for bringing the charge home to the appellant. PW 1 Md. Ekbal Ahmad had just pointed out that he was the „sala‟ of PW 5 Md. Yasin the informant. PW 2 Md. Faiyaz @ Chhotu was the younger son of the informant and the younger brother of the deceased Md. Shahid. PW 3 Md. Salauddin was a witness to seizure of blood- stained earth from the place of occurrence in respect of which seizure memo (Ext.6) was prepared. PW 4 Md. Khurshid Ahmad was also a witness to the inquest (Ext. 5). PW 5 Md. Yasin, we have already Patna High Court CR. APP (DB) No.319 of 1992 dt.06-08-2015 5/16 pointed out was the informant of the case, gave an eye-witness account of the occurrence. PW 6 Dr. Ravishwar Prasad Sinha had held post mortem examination on the dead body of Md. Shahid and had issued post mortem examination report (Ext. 2). Needless to point out that PW 7 was the Investigating Officer, S.I. A K Pandey
7. The defence had also examined a witness, namely, Birendra Prasad Singh, who was an Assistant Electrical Engineer, Electric Supply Division I, Biharsharif, on 18.4.1991. He had submitted a report at the orders of the learned Sessions Judge, Biharsharif, regarding the supply position of electricity from 6 PM on 18.4.1991 to 6 AM on 19.4.1991 and that report was marked as Ext.B on behalf of the defence.
8. The learned Sessions Judge after considering the evidence of the prosecution and the defence passed the impugned judgment and the order of sentence.
9. Shri Kanhaiya Prasad Singh, learned Senior Counsel appearing on behalf of the appellant, referred to us the relevant part of the evidence of witnesses and submitted that the whole prosecution story smacks of concoction and fabrication at the behest of PW 1 Md. Ekbal Ahmad, who was unhappy with the appellant on account of loss of business due to the appellant having created a parallel business in opticals. Submission was that the informant also appears not present at the scene of occurrence. He had arrived at the site of occurrence subsequently to the arrival of the Police and inspite of having been questioned by the Police had kept a stoic silence until and unless PW 1 Md. Ekbal Ahmad arrived at the hospital only when he could give his statement. It was contended with reference to the evidence of PW 7 A K Pandey, the Investigating Officer, that many persons having assembled at the site of occurrence Patna High Court CR. APP (DB) No.319 of 1992 dt.06-08-2015 6/16 or even at the hospital, no one indeed was ready to come forward to give any statement to PW 7 and those persons included the informant also and that led PW 7 to prepare the inquest report on the dead body challan or transmit the dead body to mortuary for post mortem examination. It was contended that PW 1 Md. Ekbal Ahmad as also PW 2 Md. Faiyaz @ Chhotu were never present at the scene of occurrence and their testimony also appears motivated on account of psychological reasons due to being related to the deceased. Shri Singh was castigating the whole prosecution case by lastly pointing out that indeed there was no availability of electricity during the whole night much before the time of occurrence and it was only an imaginary story which was put forth by the informant with the only motive of implicating the solitary appellant in this case.
10. Sushri Shashi Bala Verma, learned Additional Public Prosecutor was arguing on the reliability of the evidence of the witnesses, like PW 5 Md. Yasin, as also those like PW 1 Md. Ekbal Ahmad and PW 2 Md. Faiyaz @ Chhotu, and was further pointing out to us that PW 4 Md. Khurshid Ahmad could not be said to be the same Khurshid Ahmad who had accompanied PW 1 Md. Ekbal Ahmad to a movie show and had come back with him. Sushri Verma submitted that it could be another gentleman and the evidence of PW 1 Md. Ekbal Ahmad may not be rejected on the ground that Md. Khurshid Ahmad PW 4 had not supported him as regards the arrival of PW 1 at the scene of occurrence. Sushri Verma was pointing out that evidence of the prosecution justified the passing of the impugned judgment.
11. While placing his submissions to us, Mr. Singh, learned Senior Counsel appearing on behalf of the solitary appellant, was highlighting some of the purposeful improvement made by the Patna High Court CR. APP (DB) No.319 of 1992 dt.06-08-2015 7/16 informant PW 5 Md. Yasin while deposing in court. Shri Singh was pointing out that fardbeyan was not indicating that PW 2 Md. Faiyaz @ Chhotu, his younger son, or Pramod Kumar had also accompanied him while he and the deceased were coming back from their optical shop after closing their business. But while deposing in court as PW 5, the informant had improved upon his initial story by naming PW 2 Md. Faiyaz @ Chhotu and Pramod Kumar (not examined) also amongst the persons who were accompanying him and the deceased, where the incident had taken place. Shri Singh was also highlighting that besides the above addition to the initial prosecution story by way of citing two persons as eye-witnesses to the occurrence, the informant also had put some words into the mouth of the deceased. He has stated in his examination-in-chief that when he reached near his son who had fallen after having received the gun shot, he heard his son whispering that this appellant Md. Shakil had killed him. Submission was that it was such an important statement that it must not have been missed to be incorporated in his fardbeyan when PW 5 Md. Yasin was giving the statement to PW 7 A K Pandey.
12. We examined the contentions of Sri Singh on the above two aspects of the matter with the seriousness they deserved. We want to point out that an FIR which is not a substantial evidence and remains as such throughout the criminal trial, still has its own primal value. In the scheme of our trial procedure, it is treated as the most important document not only for the prosecution but also for the defence so as to finding out what indeed was the initial version of the prosecution. The document is also important for the purpose as to who were the persons who had been cited as witnesses by the informant of the incident. Thus, when we considered the evidence of PW 5 in the light of the submission of Shri Singh on the above important aspects Patna High Court CR. APP (DB) No.319 of 1992 dt.06-08-2015 8/16 of the evidence of PW 5, we find that indeed there was no room in the FIR to add up any person who could have accompanied the deceased and the informant, when they were coming back to their home after closing down their business. The statement contained in Ext. 3, the fardbeyan, was categorical as not to permitting of inserting or incorporating any name further as the companion of the informant and his son the deceased. But still PW 5 Md. Yasin, as was rightly submitted by Shri Singh, was naming PW 2 Md. Faiyaz @ Chhotu and Pramod Kumar (not examined) as persons who were also with them along with the deceased when they were travelling back to their house. What other purpose could be of inserting the names of persons as witnesses than that they are accepted as the eye-witnesses to the occurrence and if they come to depose in court in that capacity of being eye-witnesses then the court must give due credence and weightage to their evidence. But again that addition has to be adjudged, as we have just pointed out, on the balance of the initial prosecution version and the probability of any one being present being culled out of that particular document. We record our dismay and disapproval on the insertion of names of PW 2 Md. Faiyaz @ Chhotu and Pramod Kumar for the simple reason we have just pointed out that fardbeyan Ext. 3- the initial prosecution document- did not permit of inserting or inducting any person as a witness to the occurrence other than the informant.
13. As regards the other submission in context to the fardbeyan of PW 5 Md. Yasin that he was putting some words into the mouth of his son so as to create an evidence of dying declaration, we find that this important improvement in the prosecution evidence also appears purposely made with no other motive than to ensure the acceptability of the evidence of PW 5 and the further purpose of Patna High Court CR. APP (DB) No.319 of 1992 dt.06-08-2015 9/16 creating evidence which may be readily acceptable to the court. All persons cannot be presumed to be trained in law, rather persons are truly not trained in law. But, that may not be the truth in the present day circumstances even illiterate persons are aware that words of a dying man are readily acceptable to courts and the courts generally believe such words to hold someone guilty. Tools of appreciation of evidence and the yardstick of admissibility of it are as commonly in the domain of the general public as it can be in the knowledge of Judges or members of the Bar. This is how the system of judging has improved, but the negative aspect of this development of legal literacy has its own impact on our criminal justice system when we often find that evidence is created in proceedings only to ensure that the accused is convicted. The case in hand appears one of the instances of such situation. We find PW 5 Md. Yasin making a very important statement during his examination in court which was pointed out by Shri Singh as having not been made ever by anyone including PW 5 in his first statement to the Police. In addition to that, the improvement which was made by PW 5 Md. Yasin is that his son was whispering some words that it was this appellant who had shot him. What we find further is that PW 7 the Investigating Officer A K Pandey had indisputably reached at the place of occurrence within a minute or so as appears very well from the evidence of PW 5 in paragraph-16 at page 33 of the paper book. PW 5 stated that no sooner his son had been hit by the shot, the Police had arrived, probably within a minute or two. The evidence of PW 7 S.I. A K Pandey tells us that after having learnt about the incident of a man being shot at, he reached at the site of occurrence, i.e., in front of the Devi Temple which is known as Patna-Ranchi Road and he found the man lying in a pool of blood and moaning but he did not find him blurring a single Patna High Court CR. APP (DB) No.319 of 1992 dt.06-08-2015 10/16 word. He ultimately put the man on his police vehicle and started for the hospital when he found PW 5 Md. Yasin also sitting in his vehicle. If PW 5 had heard his son stating that particular line that it was this appellant who had shot and injured him, we do not find any reason as to why PW 7 A K Pandey could not hear those words and tell the court by incorporating that fact in his investigation.
14. There is yet another approach we have adopted in testing the evidence of PW 5. As regards the veracity of the particular statement made by him that his son had stated to him that it was this appellant who had shot the deceased, we go to the other evidence also. Assuming for the sake of arguments that PW 2 Md. Faiyaz @ Chhotu was also present as was claimed by PW 5, then we do not find PW 2 or even PW 1 Md. Ekbal Ahmad stating before the trial court that the deceased was speaking and he was naming this appellant as his assailant. Thus, on the basis of analyzing the evidence, we do not have any hesitation in reaching the conclusion that PW 5 Md. Yasin had made a serious attempt by not only putting down a couple of names of persons who as per his evidence had accompanied him besides his deceased son, but appears also to have made a serious attempt to create evidence by deposing in court which could be readily acceptable to the court for utilizing a different line in order to holding the accused guilty. However, he stands falsified by his own evidence in para-17 when he stated that after hit by the gun-shot deceased Shahid remained alive from 2 ½ minutes and when he was put in the jeep he was moaning and was not speaking. If a witness is found making such serious futile attempt on the aspects just considered by us, we could have very well rejected his evidence as that of highly interested witness which was quite unsafe to rely upon and which could lead the court into danger of passing an unlawful order of Patna High Court CR. APP (DB) No.319 of 1992 dt.06-08-2015 11/16 conviction.
15. However, we have proceeded to examine the prosecution story by considering the other important evidence of witnesses. PW 1 Md. Ekbal Ahmad and PW 2 Md. Faiyaz @ Chhotu claimed that they had been attracted to the scene of occurrence after hearing alarms of PW 5 Md. Yasin and both the witnesses appear stating almost the similar facts that as soon as they had arrived at the site of occurrence, they had seen this appellant Md. Shakil running with the pistol and entered into a gali. We have just found that PW 5 claimed that PW 2 was an eye-witness. That account having not come from PW 2 Md. Faiyaz @ Chhotu, it forced us to consider the reasonableness of the evidence on the balance of probability. PW 1 Md. Ekbal Ahmad had claimed that he had gone to witness a movie show with Md. Khurshid Ahmad and both of them had travelled by a bi-cycle. When he had come back, he had heard the alarms of the informant and he reached the scene of occurrence to see this appellant running with the pistol and entering into a gali. The time of occurrence was 9 PM on 18.4.1991. In cross-examination by defence, in paragraph-15 PW 1 Md. Ekbal Ahmad stated that the movie show had ended at around 9 PM. whereafter he and his companion Md. Khurshid Ahmad came to the cycle-stand of the picture hall to receive back their cycle. From the cycle-stand they paddled up to their respective houses. The fallacy in the evidence of PW 1 which appears to us, was that the house of Khurshid Ahmad was located at a place much much before that of PW 1. But Khurshid Ahmad as per PW 1 had not requested him to drop him at his house and PW 1 had continued to carry him on his bi-cycle upto his house and then also to the hospital. We cannot find out any reasonable ground to believe as to why Khurshid Ahmad, who was returning from the movie show, Patna High Court CR. APP (DB) No.319 of 1992 dt.06-08-2015 12/16 should be continued to be carried on the bi-cycle by PW 1 and should not request him to drop him so that he could go home. Though Sushri Shashi Bala Verma had contested the claim of the defence that Khurshid Ahmad was examined as PW 4, but we do not find from the record that he could be a different person. Khurshid Ahmad stated during his examination in court that he was at his house when he heard the alarm and when he knew about the incident. He also rushed to the hospital where he found PW 1 Md. Ekbal Ahmad along with others also assembled there. Evidence of PW 1 Md. Ekbal Ahmad that he had not reached the place of occurrence has been tested by us by reading the evidence of PW 7, S.I. A K Pandey, Investigating Officer of the case, who stated that when he brought the deceased to the hospital where he was declared dead, many persons assembled there and Ekbal Ahmad also came there for the first time in the hospital.
16. We have in the earlier part of the judgment referred to the evidence of PW 5 Md. Yasin in paragraph-16 in which he stated that the Police had reached the site of occurrence in a minute or so of the incident. PW 7 S.I. A K Pandey did not state that he had found Md. Ekbal Ahmad present there while PW 7 was present there. We find from the evidence of PW 7 and PW 4 as also from the evidence of PW 1 himself that there is serious doubt in the claim of PW 1 that he arrived at the place of occurrence as if Md. Faiyaz @ Chhotu (PW 2) had indeed arrived at the place of occurrence or was accompanying his father, PW 5 the informant. Then it was also not less important a fact to be missed out being incorporated earlier. We have all the reasons to believe that indeed PW 1 Md. Ekbal Ahmad and PW 2 Md. Faiyaz @ Chhotu had come into the witness-box to depose in favour of the prosecution under psychological pressure of supporting the charge of murder slapped against the appellant Patna High Court CR. APP (DB) No.319 of 1992 dt.06-08-2015 13/16 probably after imagining the situations which were reproduced by them before the court. We do not treat PW 1 and PW 2 reliable witnesses as we have serious doubts in their claim for being present at the place of occurrence.
17. PW 5 the informant of the case has given eye-
witness account of the incident. He is the person who had lodged the report and his claim of accompanying his son from his business establishment could not be rejected blindly. But when we went through the evidence of PW 7, the Investigating Officer, who had indisputably arrived at the scene of occurrence as the first man to do so, we came to know that in fact there can be a probability that PW 5 Md. Yasin might also not have been present there. PW 7 stated in his examination-in-chief itself that after having learnt about the incident, he came to the place of incident and found the deceased Md. Shahid in a pool of blood and also found many persons assembled there. He put the injured into his police jeep and brought him to Biharsharif hospital. He was also accompanied by the informant. PW 7 stated in paragraph-13 of his cross-examination that on his arrival at place of occurrence he found that the injured was lying on the road and was not conscious and was moaning. He put him into the vehicle and found the informant also sitting in the jeep. He questioned the informant there in the vehicle itself and he reached the hospital at 22 hours, i.e. at 10 PM. Thereafter he informed the Murarpur Police Station telephonically and on his information Station Diary Entry no. 402 dated 18.4.1991 was made. That entry has been marked Ext. A/1 on behalf of the defence. PW 7 stated that he had not given the name of the appellant while he was informing telephonically the officers of Murarpur Police Station on the basis of which information Ext.A/1 the Station Diary Entry was incorporated and after having informed the Patna High Court CR. APP (DB) No.319 of 1992 dt.06-08-2015 14/16 Police Station, he continuously remained present in the hospital when many persons of Bhainsasur Mohalla assembled there which included PW 1 Md. Ekbal Ahmad also. PW 4 Md. Khurshid Ahmad was a witness to inquest and he stated that he came to the hospital within 15 minutes of the news of murder being committed and he found mohalla people assembled there in the hospital which included PW 5 Md. Yasin and PW 1 Md. Ekbal also. He found PW 7 the I.O. preparing the paper and at the same time he was also questioning PW 5 Md. Yasin, but he was not stating anything and it appears that he was in serious shock. Thus, what we find from the evidence of PW 4 as also PW 7 is that PW 5 Md. Yasin after being questioned by PW 7 had not stated anything and PW 7 who had reached the place of occurrence not getting anybody coming forward to give his statement was forced to prepare the inquest report and the dead body challan for sending the dead body for post mortem examination and only when he had created the two documents by completing those parts of the investigation, he could obtain the statement of PW 5 in the form of Ext. 3 at 11.55 PM.
It is curious to know that PW 5 was maintaining his silence until and unless Md. Ekbal Ahmad PW 1 had arrived in the hospital and it appears from the very last line of paragraph-13 of the evidence of PW 7. What we find from the consideration of the evidence of PW 7 and the document Ext.5 the inquest report, is that there is some inconsistency in the evidence and Ext.5 the inquest report. As per the evidence of PW 7 A.K. Pandey, he had prepared the record prior to the recording of fardbeyan, but the document is contrary to that evidence. But at any rate it remains constant that before recording the fardbeyan the informant had been questioned by the Police and he had maintained silence for quite some time. This fact is stated both by PW 4 Md. Khurshid Ahmad and PW 7, the Patna High Court CR. APP (DB) No.319 of 1992 dt.06-08-2015 15/16 Investigating Officer and that was the reason that PW 7 had sent the information about the incident, on the basis of which Station Diary Entry (Ext.A/1) was recorded. Thus, the basic evidence of these witnesses suggests as if the informant had not, for quite substantial a time, given his statement pointing out not only the manner of occurrence but also the name of the person who had killed his son.
18. We have in the earlier part of the judgment referred to the attempt of PW 5 to improvise upon the basic prosecution story and in that context we had noticed that PW 5 had attempted to put a few words in the mouth of his son when he stated that Md. Shahid the deceased was speaking that it was this appellant who had fired the shot and injured him. When we contrasted the evidence of PW 5 with his evidence in paragraph 17, we find that PW 5 had indeed made a serious attempt in his examination-in-chief to introduce the evidence of dying declaration of his son and that statement was patently false. PW 5 himself stated in paragraph-17 that after being hit by the shot Md. Shahid the deceased was alive for about two-and-a half minutes and thereafter he was put on the jeep and he was moaning but was not speaking. This fact that the deceased could never have spoken appears also discernible from the evidence of PW 6 Dr. Ravishwar Prasad Sinha in paragraph-5 when he stated that the magnitude of the wound which was caused by the shot and its instantaneous effect of causing death could not have made it possible for the deceased to mumble out a few words.
19. Thus, on analyzing the evidence of PW 5 we find that it is never safe to rely upon his solitary evidence as he does not appear to be a trustworthy witness.
20. After having gone through the evidence of the prosecution and after scanning it in the light of the submissions of the Patna High Court CR. APP (DB) No.319 of 1992 dt.06-08-2015 16/16 learned counsel for the parties, we find that indeed there was a probability of no one having seen as to who had killed the deceased Md. Shahid as there was no light available at the scene of occurrence also. DW 1 Birendra Prasad Singh, Assistant Electrical Engineer, had deposed in court and had tendered in evidence his report, Ext.B, and had pointed out that from about 8 PM on 18.4.1991 upto about 6 AM on 19.4.1991 there was a complete darkness on account of load shedding. If it was so on that particular road at 9 PM on 18.4.1991, then the probability which we have just noticed that nobody had seen the occurrence and as such no witness could state as to who had done it appears strongly emerging from the evidence. Analyzing the evidence from all angles, as we have, we find that the prosecution has not succeeded in bringing the charges home to the accused. The evidence was very shaky and unacceptable as a result of which, in our opinion, the charges appear not established to the hilt against the appellant.
21. In the result, we find merit in the appeal and allow it by acquitting the solitary appellant of the charges for which he was held guilty. We set aside the judgment of conviction and order of sentence passed upon him. The appellant is on bail. He shall stand discharged from the liabilities of his bail bond.
(Dharnidhar Jha, J)
(Gopal Prasad, J)
mrl/saif
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