Patna High Court
Upendra Yadav vs The State Of Bihar on 3 May, 2024
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.362 of 2019
Arising Out of PS. Case No.-171 Year-2015 Thana- DUMRAO District- Buxar
======================================================
Upendra Yadav, S/o Ram Samhut Yadav, R/o village- Pratap Sagar, P.O.-
Purana Bhojpur, P.S.- Dumraon (Naya Bhojpur O.P.), District- Buxar
... ... Appellant
Versus
The State of Bihar ... .... Respondent
======================================================
Appearance :
For the Appellant : Mr. Vindhya Keshari Kumar, Sr. Advocate
Mr. Manendra Kumar Sinha, Advocate
Mr. Niraj Kumar, Advocate
Mr. Navneet Kumar, Advocate
Mr. Nirmal Kumar, Advocate
For the Respondent/s : Mr. Bipin Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 03-05-2024
The present appeal has been preferred for setting aside the Judgment of
conviction and order of sentence dated 30.01.2019 and 31.01.2019 respectively
passed by learned Additional Sessions Judge, Buxar in Sessions Trial no.
196/2016 arising out of Dumrao (New Bhojpur) P.S. Case no 171/2015 registered
under sections 147, 148, 149, 447, 323, 336, 337, 302 of Indian penal code (in
short 'IPC') and Section 27 of arms act.
2. By the Judgment under appeal (hereinafter referred to as the
'impugned Judgment'), learned trial court has convicted the appellant under
section 302 IPC and section 27 of Arms Act and sentenced to undergo life
imprisonment and fine of Rs. 25000/- under section 302 of IPC and in default of
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payment of fine the appellant has to undergo imprisonment for six months and he
has been been further sentenced to undergo three years rigorous imprisonment
and fine of Rs. 1000/- under section 27 of Arms Act and in default of payment of
fine the appellant has to undergo three months of imprisonment. Both the
sentences have been directed to run concurrently.
Prosecution story:-
3. As per the prosecution story, fardbeyan of the informant Kamaldev
Singh (PW -3) was recorded on 26.05.2015 at 13:30 hours by S.I. Devanand
Sharma, O. P. Incharge of Naya Bhojpur O. P. at Sadar Hospital. It is stated by
the informant that on 26.05.2015 in morning the boys of the informant's village
were playing cricket and while playing a dispute arose between them due to
which Manoj Yadav caused head injury to the informant's cousin Ramashish
Yadav, who was grazing buffalo in fields, by lathi. Thereafter, the informant
provided him treatment at local level and they complained to the family members
of Manoj Yadav in this regard. It is further alleged that around 9:00 A.M. in
morning when the informant's side were sitting at 'palani' (hut made of straw)
his villagers namely, Nayan Kumar @ Sadhu Yadav, Bhim Yadav, Jagdish Yadav,
Gama Yadav, Upendra Yadav (appellant), Birendra Yadav, Guruj Yadav, Munna
Yadav Manoj Yadav, Ramayan Yadav all armed with sticks, bricks and licensee
gun came at palani (hut) of the informant and attacked on them with such
weapons. It is alleged that due to such assault Birbal Yadav and Ramashish Yadav
suffered injuries. In the meantime Jagdish Yadav and Nayan Kumar @ Sadhu
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Yadav instigated "ns[k D;k jgs gks xksyh ekjks " on which Upendra Yadav (appellant)
with the licensee gun fired 2-3 shots aiming informant's son Ajit Kumar who
was standing on the roof which hit him and he fell down. Thereafter the villagers
started gathering then all the accused persons ran away from the place of
occurrence. After this, the informant and other persons rushed to Sadar Hospital
Buxar for treatment of his son where doctors declared him dead.
4. On the basis of the fardbeyan (Ext. 5) of the informant (P.W.3) formal
FIR bearing No. 171 of 2015 dated 26.05.2015 was registered at Dumrao (New
Bhojpur) Police Station under sections 147, 148, 149, 447, 323, 326, 337, 307 of
IPC and section 27 of Arms Act. After investigation the police submitted
Chargesheet no. 281/2015 dated 21.08.2015 and 46/2016 dated 29.02.2016.
Whereupon cognizance of the offences was taken by learned C.J.M., Buxar on
16.03.2016 and the records were committed to the Court of Sessions on
21.06.2016 where charges were explained to other accused and the appellant on
20.09.2016 under sections 147, 148, 323/149, 447/149, 336/149, 337/149 while
charge under Section 302/149 IPC was framed against seven ('7') accused, a
charge under Section 302 IPC and Section 27 of the Arms Act were explained to
Upendra Yadav (appellant) to which he pleaded not guilty and claimed to be
tried.
5. In this case the prosecution has examined altogether twelve
witnesses, they are :-
P.W. 1 Kapildeo Singh
P.W. 2 Ramashish Yadav (Injured witness and cousin of informant)
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P.W. 3 Kamaldeo Singh (Informant)
P.W. 4 Birbal Yadav ( injured witness and cousin of informant)
P.W. 5 Dr. Anil Kumar (examined the injured Birbal Yadav PW 4)
P.W. 6 Dr. Upendranath (examined the injured Ramashish Yadav PW 2)
P.W. 7 Kamlesh Kumar Singh
P.W. 8 Sujeet kumar Singh (I.O.)
P.W. 9 Devendra Sharma (I.O)
P.W. 10 Taj Ahmed Khan
P.W. 11 Sri Bhagwan Yadav (Chowkidar)
P.W. 12 Dr Ravi Bhushan Srivastava (Doctor who conducted post autopsy on the
dead body of deceased)
The following documents has been exhibited by the prosecution:-
Ext. 1. - Signature of informant (P.W.3) Kamaldeo Singh on fardbeyan
Ext. 1/1 - Signature of witness Mandev on the fardbeyan
Ext. 1/2 - Signature of S.H.O Raghan Dayal Singh on formal FIR
Ext. 2 - Injury Report of Birbal Yadav (P.W. 4)
Ext. 3 - Injury Report Ramashish Yadav (P.W. 2)
Ext. 4 & 4/1 - Signature of witnesses Kamlesh Kumar Singh (P.W.7) and Rajdev
Singh on inquest report
Ext. 5 - Handwriting and signature of S.I. Devanand Sharma on fardbeyan.
Ext. 6 - Inquest Report.
Ext. 7 - Forwarding of F.I.R
Ext. 8 - Pagination of F.I.R
Ext. 9 - Signature and writing of seizure list this case on relating to 12 volt
double barrel gun.
Ext. 10 - Sanha
Ext. 11 - Post Mortem Report.
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6. After closure of prosecution Evidence, the statement of accused
persons were recorded under Section 313 Cr.P.C. in which he claimed innocence
and denied his presence in the village.
7. The defence has examined two witnesses and got exhibited some
documents :-
D.W. 1 - Jagdish Yadav
D.W. 2 - Ajit Kumar Singh
The Defence has brought following documentary evidence on records:-
Exhibit -'A' - Signature of Barister Singh at Xerox copy of Gun house register
Exhibit- 'A/1'- Signature of S.I. Taj Ahmed on true copy of Gun house register.
Exhibit - 'A/2'- Signature of S.I. Taj Ahmed on another Gun house register.
Exhibit - 'B' - F.S.L. Report.
Findings of the Trial Court:-
8. The learned trial court has found that from the fardebyan (Exhibit
'5') no prior enmity or motive behind the occurrence may be found. The
occurrence took place on the dispute which arose among the children while
playing cricket on 25.06.2015.
9. The learned trial court found that there are three places of
occurrence. The first place is the badhar, the second place is the rural concrete
road (Dhailaya road) to the informant and the third one is the roof of the house of
the informant.
10. The trial court rejected the contention of the defence that the
witnesses produced on behalf of the prosecution are related and interested
witnesses. The trial court has recorded from the evidence of the prosecution
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witnesses that there was no motive behind the occurrence and the occurrence has
taken place between the parties in a sudden and open fight.
11. The trial court has, upon analyzing the evidences of the prosecution
witnesses, held that if the presence of Kapildeo Singh (PW- 1) is believed then
the second place of occurrence is his door not the 'palani' as claimed in
fardbeyan and in the occurrence which took place at the second place of
occurrence resulted in injury to Birbal Yadav (PW-4) only. Ramashish Yadav
(PW-2) had already suffered injury at the first place of occurrence. The learned
trial court further held that so far as the accused Bhim Yadav, Guruj Yadav,
Manoj Yadav, Gama Yadav and Upendra Yadav are concerned, they had not
caused any injury to Birbal Yadav (PW-4), therefore, their presence at the second
place of occurrence is doubtful. Ramashish Yadav (PW-2) has not stated that at
the second place of occurrence who had assaulted him and by what means. The
trial court has found that PW-2 is contradicting his own evidence. It has been
held that Ramashish Yadav's (PW-2) presence at the second place of occurrence
is doubtful.
12. Upon analyzing the evidence of Birbal Yadav (PW-4), learned trial
court has held that this witness has suffered simple injuries which were not
dangerous to his life and from his evidence, it would appear that he was
assaulted by Jagdish Yadav, Birendra Yadav, Munna Yadav by danda, brick and
stone. Ramashish Yadav (PW-2) suffered injury by assault in the 'badhar' by
Manoj Yadav. The trial court, therefore, found that the presence of Bhim Yadav,
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Guruj Yadav, Manoj Yadav, Gama Yadav and Upendra Yadav (the appellant) at
the second place of occurrence is doubtful. The trial court held that if at the first
place of occurrence only one accused Manoj Yadav and at the second place of
occurrence, only four accused, namely, Nayan Kumar, Jagdish Yadav, Birendra
Yadav, and Munna Yadav were present, then no unlawful assembly within the
meaning of section 149 IPC was formed. The trial court relied upon the judgment
of the Hon'ble Supreme Court Dahari v. State of U.P., reported in (2012) 10
SCC 256, Darbara Singh Vs. The State of Punjab reported in (2012) 10 SCC
476 and Sanichar Sahni Vs. The State of Bihar reported in (2009) 7 SCC 198.
Having said so, the trial court held that the accused persons may be held guilty
only with the aid of Section 34 IPC.
13. Learned trial court further held that from the evidence of PW-4
(paragraph '5') and PW-9 (I.O.), it would appear that the second place of
occurrence is not the 'palani' but the concrete road (dhalaiya sadak) where both
the parties had indulged in free fight and in which three persons from the
informant's side and three persons from the defence side had suffered injuries
and they were treated in the Sub-Divisional Hospital, Dumraon. Out of the three
injured persons from the prosecution side, one had died. The trial court acquitted
the accused persons of the charges under Sections 147, 148 and 447 /149 IPC for
the reason that the number of accused persons at the place of occurrence was less
than five and the weapons in their hand would not fall in the category of
dangerous weapon. Since the second place of occurrence has been found to be
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the rural concrete road which is not in possession of the prosecution side, the
trial court held that the offence of criminal trespass would not be attracted.
14. Learned trial court held that the accused Nayan Kumar, Jagdish
Yadav, Birendra Yadav and Munna Yadav were guilty of the offence under
Section 323/34 IPC whereas accused Manoj Yadav is guilty of the offence
punishable under Section 323 IPC. They were not held guilty under Sections
147, 148, 323/149, 447/149, 336/149, 337/149, 302/149 IPC 447, 336, and
337/149 IPC.
15. As regards the occurrence which took place on the roof of the
house of the informant, learned trial court held that the allegations of instigation
by Nayan Kumar and Jagdish Yadav, Upendra Yadav (appellant) to fire is
doubtful. The trial court held that the evidence of PW-1 is doubtful and this has
not been corroborated by any independent witness. The prosecution had not
examined any villager or independent witness in this regard.
16. The trial court has further found that the presence of Ramashish
Yadav (PW-2) at the third place of occurrence becomes doubtful from his own
statement in paragraph '4' of his cross examination. Further the trial court held
that the informant (PW-3) has made contradictory statement in paragraph '7' of
his cross examination. He could not say the time of death and the cause of death
of Ajit (deceased). The trial court held that the statement of PW-7 that on the
instigation of Jagdish Yadav and Nayan Kumar, Upendra Yadav fired becomes
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doubtful. The trial court has given benefit of doubt to Jagdish Yadav and Nayan
Kumar.
17. Regarding the accusation against this appellant and evidence
against him, the trial court held that from the evidence of PW-1 to PW-4 and in
the medical evidence, it has been proved that the accusation against this
appellant is proved. The trial court rejected the contention that the gun which
was seized by the I.O. from the gun house, Chapra had been deposited in the gun
house on 15.05.2015 itself, the owner of the gun is Barister Singh (brother of
Upendra Yadav) and the Forensic Science Laboratory report (Exhibit 'B') did not
find any sign of firing by the said gun. The trial court held that the defence has
got exhibited the FSL report (Exhibit 'B') which is not in accordance with law.
Relying upon the judgment of the Hon'ble Supreme Court in the case of
reported in 2000 Cr.L.J. 2303 SC the trial court held that the Exhibit 'B' can not
be relied upon.
Submissions on behalf of the appellant
18. Mr. Vindhya Keshari Kumar, learned Senior counsel assisted by
Mr. Manendra Kumar Sinha, learned Advocate for the appellant submits that the
learned trial court has committed grave error in saying that the accusation against
this appellant would be proved from the evidence of PW-1 to PW-4. It is
submitted that the trial court has held that if PW-1 is believed then second place
of occurrence would be his door and not the 'palani'. After perusal of the
prosecution evidence, particularly that of PW-4 and PW-9, the trial court has held
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that the second place of occurrence is the rural concrete road where both the
parties had a free fight by lathi, danda, brick and stone. The trial court has
disbelieved PW-1 saying that the presence of PW-1 at the third place of
occurrence is doubtful because he had himself stated in his evidence that at the
time of occurrence which took place at the third place of occurrence, he was in
his palani in between 9-9:30 am. Thus, the learned senior counsel submits that
when the trial court has doubted the presence of PW-1 at the third place of
occurrence, relying upon him to convict the appellant in this case would be a
travesty of justice.
19. Learned Senior counsel further submits that as regards the presence
of PW-2, the learned trial court has found that Ramashish Yadav (PW-2) had not
suffered any injury at the second place of occurrence, he was assaulted by Manoj
at the first place of occurrence and had suffered injury there. Regarding PW-2, it
has been found that he has made statement in his cross-examination (paragraph
'4') that he had gone to the first place of occurrence at 6:00 am with his she-
buffalo and had stayed there till evening/8:00 pm. Thus, the trial court has
doubted the presence of PW-2 at the second place of occurrence. Thus, it is
submitted that once the presence of PW-2 has been doubted by the learned trial
court at the second place of occurrence and there being no evidence on the record
that he was present at the third place of occurrence, reliance upon his evidence to
prove the guilt against this appellant would not be safe.
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20. Learned Senior counsel submits that the informant (PW-3) made
statement in paragraph '1' of his examination-in-chief that Jagdish Yadav and
Nayan Kumar instigated Upender Yadav saying "banduk kahe laye ho goli maro
saale ko" then Upendra Yadav made 2-3 rounds of firing which hit his son and
he fell down on the roof of his house. But the trial court noted the contradiction
in his evidence and even doubted his evidence giving benefit of doubt to accused
Jagdish Yadav and Nayan Kumar.
21. Learned Senior counsel further submits that so far as Birbal Yadav
(PW-4) is concerned, he has stated in examination-in-chief that Ajit was hurling
abuses and was throwing stones from his roof. Nayan Kumar and Jagdish Yadav
instigated Upendra upon which Upendra fired 3-4 rounds which hit Ajit and he
fell down on the roof. In his cross-examination, he has stated that the second
occurrence took place at about 8.45 -9:00 am, he was present at the second place
of occurrence at 9:00 am. He stayed there for 5-6 minutes. It is stated that in
paragraph '16' of his cross-examination, PW-4 has stated that three firings were
done from down to up side. At the time of firing at the north-east corner of the
roof of the house of Suraj, Suraj was present with him. He and Suraj had gone on
the roof of Ajit after he received the firing. In paragraph '18' this witness has
stated that at the place of occurrence no blank cartridge was found and there was
no sign of firing at the house of Ajit. PW-4 denied the suggestion that it was the
informant himself who had shot at Ajit.
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22. Learned Senior counsel submits with reference to the evidence of
this witness that if the firing had taken place from down to up and 3-4 rounds of
firing were done by this appellant then there must have been some sign of firing
on the house of Ajit. It is submitted that this witness had left the second place of
occurrence after staying 5-6 minutes only in injured condition, thus he had not
seen the occurrence, hence a conviction based on his sole testimony would not be
safe.
23. Learned Senior counsel has further drawn the attention of this court
towards the evidence of Doctor (PW-11). PW-11 has conducted the autopsy on
the dead body, he found pea size (about ¼ cm diameter) round shaped, numerous
lacerated wound about 50 in no; with inverted margin and charring and
blackening of margin of wound. Scattered on anterior part of chest, both arm and
abdomen and thigh. PW 11 has opined that all wound were due to firearm, he
extracted 10 round shaped pellets from body cavities of the deceased. PW-11
has stated that he cannot say whether the injury was horizontal or vertical. In
paragraph '12' of his cross-examination, he has stated that he cannot say as to
from how much distance the firing was done. In paragraph '15' of his evidence,
PW-11 has stated that he cannot say whether injury was from down to up or up to
down. Learned Senior counsel submits that the charring and blackening of
wound would be possible if the firing is discharged within a distance of three
feet. According to him, Ajit was shot at from a close range. It is his submission
that there being no independent or eyewitness in this case and the postmortem
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report (Exhibit '11') not corroborating the prosecution case that firing was done
from down to up, it must be recorded that the prosecution has failed to prove the
manner of occurrence. It is submitted that if the prosecution case is believed that
firing had taken place from 10-15 feet, no blackening or charring wound would
have been possible.
24. Learned Senior Counsel has further pointed out in the evidence of
the I.O. (PW-9) that in paragraph '3' of his evidence, the I.O. has given the
description of the second place of occurrence. It is the rural concrete road going
from east to west in front of the house of Suraj Yadav and Rajdeo Yadav. In
paragraph '4' of his evidence, PW-9 has stated that third place of occurrence is
the joint house of Suraj and Rajdeo Yadav which is single-storied building and it
is the roof of this building where Ajit Kumar had received the shot. It is
submitted that from the evidence of the prosecution witnesses, it would appear
that their case is that the firing was done from the second place of occurrence
and in the said firing Ajit standing on the roof of the house of the informant was
killed, but once the learned trial court doubted the presence of this appellant at
the second place of occurrence, to say that this appellant had fired from the
licensee gun cannot be said to have been proved beyond all reasonable doubts.
PW-9 has stated in his evidence that from the defence side also, three persons
were injured and they were treated in the Sadar Hospital.
25. Learned Senior Counsel has further pointed out from the statement
under Section 313 Cr.P.C. that the learned trial court could not appreciate that all
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the incriminating materials which were brought by the prosecution in course of
trial were put to the appellant. Referring to the questions put to this appellant at
the stage of Section 313 Cr.P.C., learned Senior Counsel submits that this
appellant was told that the informant and the witnesses have given evidence that
he along with his family members and others had assembled at the 'palani'
which is situated adjacent to the house of the informant, the appellant was told
that he was carrying a licensee gun and had attacked which resulted in the
injuries caused to Ramashish Yadav and Birbal Yadav. This appellant was further
told that there are evidences that Jagdish Yadav and Nayan Kumar @ Sadhu
Yadav had instigated him and on that instigation he had fired from the licensee
gun aiming Ajit Kumar, the son of the informant.
26. It is submitted that as per I.O., the second place of occurrence was
the rural concrete road passing east to west in front of the house of Suraj Yadav
and Rajdeo Yadav where according to prosecution case this appellant was present
and had fired upon the deceased son of the informant but in 313 Cr.P.C.
statement second place has been stated as 'palani' was not placed before the
appellant and no explanation was called for. Relying upon the judgment of the
Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of
Maharashtra reported in (1984) 4 SCC 116, learned Senior Counsel submits
that the failure of the prosecution to place all the incriminating
circumstances/evidences to the notice of the appellant would prove fatal to the
prosecution.
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27. Learned Senior Counsel submits that in this case it is evident that
the prosecution witnesses were deliberately making false statement about their
presence at the second place of occurrence which they claimed to be the 'palani'
but learned trial court has disbelieved their presence at the second place of
occurrence which has been found to be the rural concrete road. It is, thus,
submitted that the witnesses who make deliberate false statement are not reliable.
Reference has been made to the judgment of the Hon'ble Supreme Court in the
case of V.C. Shukla Vs. State (Delhi Administration) reported in AIR 1980 SC
1382 paragraph '24'.
Submissions on behalf of the State:-
28. On the other hand, Mr. Bipin Bihari, learned Additional P.P. for the
State, submits that in this case the prosecution witnesses (PW-1 to PW-4) are the
eyewitnesses and they have supported the place, time and manner of occurrence.
It is submitted that it was a planned attack by the accused and the eyewitnesses
account of the occurrence cannot be disbelieved on the basis of the postmortem
report. Learned APP has relied upon judgment of the Hon'ble Supreme Court in
the case of State of Punjab Vs. Rajinder Singh reported in 2009 15 SCC 612.
Consideration
29. We have heard learned Senior Counsel for the appellant, learned
Additional Public Prosecutor for the State and have perused the trial court's
records.
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30. It is evident from the prosecution story as contained in the
fardbeyan (Exhibit '1') of the informant (PW-3) that on 26.05.2015, in the
morning, the first occurrence took place in the 'badhar' where the boys of the
informant's village were playing cricket. In the said occurrence, Ramashish
Yadav (PW-2) was assaulted by Manoj Yadav. PW-2 is said to have sustained
head injury, he was provided treatment at local level. As regards the injury, the
prosecution has not led any evidence in course of trial. There is no role of this
appellant in the first occurrence.
31. The second occurrence took place at about 9:00 A.M. in the
morning when the informant claims himself sitting with other persons at the
'palani'. It is this time, according to the informant, the accused, namely, Nayan
Kumar @ Sadhu Yadav, Bhim Yadav, Jagdish Yadav, Gama Yadav, Upendra
Yadav (appellant), Birendra Yadav, Guruj Yadav, Munna Yadav, Manoj Yadav
and Ramayan Yadav all armed with sticks, bricks and licensee gun came there
and assaulted with such weapons. The informant (PW-3) claimed that in the
second occurrence which took place at 'palani' (hut) of the informant, Birbal
Yadav (PW-4), Ramashish Yadav (PW-2) suffered injury.
32. As regards the second occurrence, when the trial court analyzed the
evidences of the prosecution witnesses, namely, Kapildeo Singh (PW-1),
Ramashish Yadav (PW-2) and Ramadhar Singh (PW-3), learned trial court held
that there is a variance in the statement of these witnesses with regard to second
place of occurrence. The learned trial court has upon analyzing the evidence of
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the IO (PW-9) concluded that the second place of occurrence is not the 'palani'
of the informant, it is rural concrete road which is not in possession of the
prosecution side. The trial court has found that it is this road where both the
parties had indulged in free fight in which three persons from the informant's
side and three persons from the defence side had suffered injuries and they were
treated in the Sub-Divisonal Hospital, Dumraon. Thus, this Court finds that the
prosecution witnesses did not give a correct account of the second place of
occurrence, they tried to make out a case that the defence side attacked the
prosecution party when they were sitting in the palani (hut) of the informant
situated adjacent to the informant's side but the trial court did not believe them in
this regard.
33. This Court further finds that the prosecution witnesses claimed that
Ramashish Yadav (PW-2) was assaulted at the second place of occurrence but
learned trial court has held that PW-2 had already suffered injury at the first
place of occurrence and in the occurrence which took place at the second place
of occurrence, it was Birbal Yadav (PW-4) only who had suffered injury. There
are further reasons behind this finding of the learned trial court that learned trial
court found that the PW-2 has contradicted his own statement by saying that he
had gone to the first place of occurrence at 6:00 am with his she-buffalo and had
stayed there till evening/8:00 pm. It is for this reason the learned trial court
doubted the presence of PW-2 at the second place of occurrence. We find that
analysis of the evidence as regards presence of PW-1 and PW-2 at the second
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place of occurrence has been done meticulously by the learned trial court and no
fault may be found with the same.
34. We agree with the submissions of learned Senior Counsel for the
appellant that the PW-1 and PW-2 both were not present at the second place of
occurrence, they cannot be said to be an eye witness to the occurrence which
took place at the second place of occurrence. Their trying to depose as eye-
witnesses to the occurrence which took place as second and this place is only an
attempt to support the prosecution. They are also related witnesses.
35. We have noticed from the evidence of the IO (PW-9) that there is
no distance between the second place of occurrence and the third place of
occurrence. Both the places are in the neighbourhood (vkl&ikl). Rural concrete
road passing east to west which is the second place of occurrence is in front of
the house of Suraj Das and Rajdeo Das which is a joint house and it is this house
on the roof of which Ajit Kumar (deceased) suffered firearm injuries. The
prosecution case as a whole would demonstrate that no doubt, the deceased
suffered firearm injury on the roof of the house but according to the witnesses, it
was the second place of occurrence where this appellant had come with a
licensee gun and on the instigation of Jagdish Yadav and Nayan Kumar, he had
fired. As regards the presence of the accused persons at the second place of
occurrence, the learned trial court has held that only four accused, namely,
Nayan Kumar, Jagdish Yadav, Birendra Yadav and Munna Yadav were present at
the second place of occurrence. The trial court held that for this reason, no any
Patna High Court CR. APP (DB) No.362 of 2019 dt.03-05-2024
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unlawful assembly within the meaning of Section 149 IPC was found. In clear
words, the learned trial court has found that the presence of Bhim Yadav, Guruj
Yadav, Manoj Yadav, Gama Yadav and Upendra Yadav (the appellant) at the
second place of occurrence is doubtful. If it is the finding of the learned trial
court, we fail to appreciate as to how learned trial court has come to a conclusion
that the prosecution has been able to prove that this appellant had come to the
second place of occurrence with gun in his hand and fired from there. Learned
trial court has already acquitted Nayan Kumar and Jagdish Yadav from the
charge that they had instigated the appellant for firing.
36. This Court further finds that Kamaldeo Singh (PW-3) is the
informant of this case. In his examination-in-chief, he has also given the
description of second place of occurrence as his 'palani'. He has stated that with
planning, Nayan Kumar @ Sadhu Yadav, Bhim Yadav, Ramashray Yadav,
Jagdish Yadav, Rama Yadav, Upendra Yadav (appellant), Birendra Yadav, Manoj
Yadav, Guruj Yadav, Munna Yadav all came having danda, bricks and stones. In
paragraph '1' of his examination-in-chief, this witness initially has not stated that
this appellant was carrying a gun but in latter part of his statement, he has stated
that his son Ajit Kumar had seen them from the roof of his house and told that
"Bhd ugha gksxk" whereafter brick and stone were thrown to him also. PW-3 has
stated that Ajit had also given return throw of the same brick and stone from his
roof whereafter Jagdish and Nayan instigated this appellant "canwd dkgs yk;s gks xksyh
ekjks lkys dks". This appellant, according to PW-3, had fired 2-3 rounds which hit
Patna High Court CR. APP (DB) No.362 of 2019 dt.03-05-2024
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his son and he fell down on the roof. PW-3 has stated that the third place of
occurrence is the door of his brother Suraj Yadav and the firing was done from a
distance of 12-15 feet. Thus, PW-3 is himself not sure about the place where his
son received firearm injury. While analyzing the evidence of the informant (PW-
3), learned trial court has held that the informant has made contradictory
statement in paragraph '7' of his cross-examination. He could not say the time of
death and cause of death of Ajit (deceased). The trial court held that the
statement of PW-3 that on the instigation of Jagdish and Nayan Kumar, Upender
Yadav fired becomes doubtful. This Court has already seen that the learned trial
court has recorded a finding doubting the presence of this appellant at the second
place of occurrence. This Court finds that no doubt the fact in issue in the present
case is as to whether this appellant fired from a gun which he was carrying and
the said firing resulted in killing of the son of the informant but the certain facts
become relevant and those are forming part of the same transaction. The fact that
whether this appellant was present at the second place of occurrence with a gun,
the fact that whether the appellant was instigated by Jagdish and Nayan Kumar
to fire upon the deceased would be "relevant" within the meaning of Section 2 of
the Indian Evidence Act. In a case where a person is accused of murder of
another person it would be a relevant fact to establish that the person who has
been charged with committing murder of a person intended to cause death of
that person.
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In the present case, the prosecution has not led any evidence to prove it as a
matter of fact that this appellant intended to cause death of Ajit (deceased).
37. To this Court, it appears that so far as evidences of PW-1, PW-2
and PW-3 are concerned, they have already been doubted by the learned trial
court as regards the second place of occurrence, the presence of this appellant at
the second place of occurrence and the instigation by Nayan and Jagdish to this
appellant to fire have been disbelieved by the learned trial court and before us the
said finding of the trial court has not been assailed.
38. We will now examine the evidence of PW-4 and the extent to
which it may be relied upon to convict this appellant. This Court finds that PW-4
had suffered injury at the second place of occurrence. He has stated in his
evidence that he was sitting in 'Palani' when the accused persons came there and
attacked on them. He suffered injuries which are attributed to the other accused
and not to this appellant. PW-4 has stated in examination-in-chief that Ajit was
hurling abuses and was throwing bricks from his roof. He has stated that Nayan
Kumar and Jagdish Yadav instigated the appellant whereupon this appellant fired
3-4 rounds as a result whereof Ajit Kumar fell down on the roof. On hearing the
sound of firing, the people from mohalla assembled there but at that time the
accused persons had fled away. In his cross-examination, this witness has stated
that he was at the second place of occurrence at about 09:00 am. He has stated in
paragraph '5' that he stayed there for 5-6 minutes. In his cross examination, he
contradicted his own statement saying that the second place of occurrence is the
Patna High Court CR. APP (DB) No.362 of 2019 dt.03-05-2024
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concrete road. We find from the evidence of PW-4 that he stayed at the second
place of occurrence only for 5-6 minutes during which he received the injuries in
the free fight which took place between the parties at the rural concrete road. We
find from the evidence of PW-3 that in paragraph '12' of his cross-examination,
he has stated that the third place of occurrence is situated at a distance of 15-20
minute walk on foot from the main road and that the firing was done from down
to upside but this witness has contradicted himself in paragraph '6' of his cross-
examination where he has stated that the firing was done from a distance of 12-
15 feet and the third place of occurrence is the door of his brother. Contrary to
the evidence of PW-3, PW-4 has stated that the third place of occurrence is the
roof of the house of Suraj Narayan and the third place of occurrence is situated at
a distance of 15-20 feet south to the second place of occurrence. It is, thus,
evident from the evidences of these witnesses that the firing was done from the
second place of occurrence where the presence of this appellant has been
doubted by the learned trial court.
39. To this Court, it appears that the evidence of PW-4 could not prove
the presence of this appellant at the second place of occurrence from where the
firing is said to have taken place. Further PW-4 had already left the second place
of occurrence after 5-6 minutes only, therefore, it cannot be believed that he had
seen the entire occurrence which took place at the second place of occurrence
between both the sides. He was already injured in the said occurrence and Doctor
(PW-5) has found that he had received lacerated wound on posterior aspect of
Patna High Court CR. APP (DB) No.362 of 2019 dt.03-05-2024
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scalp which was bone deep, he had complained of vomiting and giddiness. He
was examined by Doctor at 11:00 am at Buxar, he had other injuries on his body
and in these circumstances, it cannot be believed that he was standing on the roof
along with Suraj when Ajit received the firearm injury. Thus to this Court, it
appears that it would not be safe to convict the appellant on the testimonies of
PW-1, PW-2, PW-3 and PW-4.
40. Now coming to the medical evidence on the record, Dr. Ravi
Bhushan Tripathi (PW-11), who was the Medical Officer in Sadar Hospital,
Buxar posted on 26.05.2015, has proved the postmortem report which was
prepared in his handwriting and under his signature, as Exhibit '9'. In course of
autopsy on the dead body, the Doctor (PW-11) observed as under:-
" (I) Pea size ( about ¼ cm diameter) round shaped, numerous
lacerated wounds about 40 in number with inverted margin & charring &
blackening of margin of wounds. Scattered on Anterior part of chest, both arms
& abdomen & thigh more on left half of body. Some wounds communicate with
chest cavity. Some with abdominal cavity & some are muscle deep.
1. On dissection of Chest:-
Chest cavity is filled with blood clot & left lung is pierced at seven
places Right lung is pale. Heart:- both chambers empty by pellets.
2. On dissection of Abdomen:-
Abdominal wall at some wound is pierced upto abdominal cavity some
upto ant. Abdominal muscle.
Patna High Court CR. APP (DB) No.362 of 2019 dt.03-05-2024
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Abdominal cavity contains blood & clot, stomach is pierced at
03 places by pellets. Liver is Pale. Spleen is lacerated.
3. Time elapsed since death:- Within 24 hours.
4. Cause:-
All wounds are due to firearm. In my opinion death is due to shock &
Hemorrhage due to above wounds.
5. Note:- 10 round shaped pellets are extracted(recovered) from body
& body cavity of deceased & sealed & handed over to police. "
41. In course of his cross-examination, PW-11 has stated that the dead
body was brought by the Chowkidar and he had done the postmortem on the
basis of the inquest report. It is not possible to say whether the injury was
horizontal or vertical and he cannot say as to the distance from which the shot
was fired. In paragraph '15' of his cross-examination, PW-11 has stated that he
cannot say whether the injury was from down to up or up to down.
42. Learned Senior Counsel for the appellant has submitted that
postmortem report (Exhibit '9') does not corroborate the ocular evidence. The
Doctor found numerous lacerated wounds of about 50 in numbers with inverted
margin and charring and blackening of margin of wounds. It is his submission
that a shotgun fired from a distance of 12 feet, the charge of the shot would
spread widely and the same would enter in the body as individual pellets
producing separate openings entering area of 5 to 8 inches in diameter depending
upon the choke, but without causing blackening, scorching or tattooing of the
Patna High Court CR. APP (DB) No.362 of 2019 dt.03-05-2024
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surrounding skin. It is his submission that in this case the prosecution has failed
to prove that before autopsy an X-ray examination has been undertaken. It has
been submitted that if a shotgun is discharged from a distance of not more than 3
feet then blackening is found. In this case, the ocular evidence is that the firing
was done from a distance of 12-15 feet from down to upside, therefore, as per the
medical jurisprudence, the charring and blackening margin of wounds would not
have been possible from a distance of 12-15 feet. PW-11 has stated in his cross-
examination that he cannot say whether the firing was done from down to upside
or up to downside. This is an issue of medico legal importance which has not
been answered by the Doctor.
43. Upon consideration of the evidence of PW-11, we are persuaded to
agree with the submissions of learned Senior counsel for the appellant. Modi
Textbook of Medical Jurisprudence and Toxicology in its Chapter 25 paragraph
25.7.1.1reads inter alia as under:-
25.7.1.1 Distance of the Firearm ".......If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches around the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt/partially burnt grains of gunpowder or smokeless propellant powder. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a greyish or white deposit on the skin around the wound. If the area is photographed by infrared light, a smoke halo round the wound may be clearly noticed. Blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol discharged within about two feet........."
Patna High Court CR. APP (DB) No.362 of 2019 dt.03-05-2024 26/33 It further states that ".....At a distance of 12 feet, the charge of the shot spreads widely and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter depending on the choke, but without causing blackening, scorching or tattooing of the surrounding skin. ......"
44. We find from the evidence of PW-11 that he is unable to say as to from how much distance the firing took place. PW-11 has further failed to say regarding the direction of the firing, whether it was from up to down or down to up.
45. In the case of Budh Singh vs. State of MP reported in (2007) 10 SCC 496, the Hon'ble Supreme Court was dealing with a case where it was alleged that the appellant had fired a shot from his .12 bore double barrel gun on the deceased. The Hon'ble Supreme Court observed in paragraph '19' as under :-
"19. Blackening of the wound can be found only when the shot is fired at from a short distance, namely, about 3 to 4 feet and not beyond the same. Absence of any blackening of the wound has rightly been not found in the post-mortem examination."
46. In the present case, as per the postmortem report PW-11 found charring and blackening of the margin wounds which could have been possible only if the shotgun would have been discharged from a short distance of about 3- 4 feet.
47. The fact that the postmortem report does not corroborate the ocular evidence gains importance when it is found that the eyewitnesses account of the occurrence has not been found credible and trustworthy. The learned court has already doubted the presence of the appellant at the second place of occurrence.
Patna High Court CR. APP (DB) No.362 of 2019 dt.03-05-2024 27/33
48. In the case of the State of Uttar Pradesh vs. Krishna Gopal reported in (1988) 4 SCC 302, the Hon'ble Supreme Court has observed in paragraph '24' as under:-
"24. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the orality of the trial process. Eyewitnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the "credit" of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation."
49. In paragraph '26' and '27' the judgment in the case of Baso Prasad and Ors. vs. State of Bihar reported in 2006 13 SCC 65, the Hon'ble Supreme Court has observed as under:-
"26. So far as the contention in regard to distance of firing is concerned, it is true, ordinarily, charring would take place, if firing is done from a distance of less than four feet, as has been noticed in some of the judgments of this Court in Subhash v. State of U.P3., Nath Singh v. State of U.P.4, State of Punjab v. Wassan Singh5 and Sidharth v. State of Bihar6" .
3. (1976) 3 SCC 629 : 1976 SCC (Cri) 483
4.(1980) 4 SCC 402 : 1980 SCC (Cri) 968
5. (1981) 2 SCC 1 : 1981 SCC (Cri) 292
6. (2005) 12 SCC 545 : (2006) 1 SCC (Cri) 175 Patna High Court CR. APP (DB) No.362 of 2019 dt.03-05-2024 28/33 "27. In some cases, medical evidence may corroborate the prosecution witnesses; in some it may not. The court, however, cannot apply any universal rule whether ocular evidence would be relied upon or the medical evidence, as the same will depend upon the facts and circumstances of each case. No hard-and-fast rule can be laid down therefor."
50. Keeping in view the observations of the Hon'ble Supreme Court in the aforementioned judicial pronouncements and the materials on the record, we are of the considered opinion that the injuries noted by PW-11 in course of autopsy on the dead body do not corroborate the manner of occurrence as disclosed by the prosecution witnesses.
51. We have found from the prosecution evidences that the licensee gun was owned by the brother of this appellant namely Barister Singh, who was serving as a Security Guard in the Punjab National Bank. It was a double-barrel gun which was found deposited with the Gun House at Chapra from 15.05.2015. The first I.O. of this case was Devanand Sharma (PW-9) who has stated that he had not conducted any investigation as to whether there is any licensee gun in the house of the accused, he had not seized the gun from the gun shop at Chapra.
52. The subsequent I.O., namely, S.K. Singh (PW-8) had investigated the records of the gun house and found that in the register of 2015 at serial no. 92 dated 15.05.2015 at 11:30 am, the gun number of the Barister Singh has been shown deposited. PW-8 has stated in paragraph '17' of his cross-examination that the gun was deposited at Chapra on 15.05.2015 but he had not brought the gun. This witness has stated that he had not taken sanction either from D.M. of Buxar Patna High Court CR. APP (DB) No.362 of 2019 dt.03-05-2024 29/33 or D.M. of Chapra. In paragraph '22', he has stated that during his time, gun was not seized. It appears that third I.O. Taj Ahmad Khan (PW-10) had seized the gun from the gun shop of Chapra. The seizure list has been marked Exhibit at his stance as Exhibit '8'. He had taken charge of investigation of this case on 25.05.2017, therefore, it is evident from the evidence of PW-10 that for two years from the date of occurrence, the Investigating Agency did not seize the licensee gun. Later on, when the gun was sent for examination to the Forensic Science Laboratory, it has been reported by the Laboratory that no sign of firing from the said gun could be found. In this connection, the report dated 22.08.2017 of the Laboratory has been brought on record at the stance of the defence which has been marked as Exhibit 'B'. The report interalia says that "as a result of chemical analysis, no firearm discharge residues could be detected in the barrels (left and right) of the regular gun marked 'A' noted in item (1) indicating thereby no sign of previous firing it is perfect in working order and can be used as an effective firearm.
53. The defence has relied upon Exhibit 'B' and has brought two witnesses from its side who are Jagdish Yadav (DW-1) and Ajit Kumar Singh (DW-2). The learned trial court has held that it is a prosecution document but defence has got it exhibited without calling for the expert as a witness in court. Learned court has refused to rely upon the same. This Court finds from the record that vide order dated 05.06.2018 the learned trial court had allowed the application of the defence to mark FSL report as exhibit (with objection). From Patna High Court CR. APP (DB) No.362 of 2019 dt.03-05-2024 30/33 the records we find that a petition dated 15.05.2018 under Section 233 (3) Cr.P.C. was filed on behalf of the defence with a copy served on learned APP. It was submitted that the prosecution has not adduced evidence of Ssrgent Major and forensic science expert with a malafide intention, therefore, summon be issued compelling the attendance of the Sargent Major and Forensic Science expert to record their statements as a witness. The prosecution replied to this petition and submitted that FSL Report is admissible under Section 293 Cr.P.C. so evidence of expert is not essential. So far as the Sargent Major is concerned, on the record there is no report of the Sargent Major on the record.
54. Thereafter, the defence filed a petition dated 28.05.2018 with a copy served on learned APP under Section 294 Cr.P.C. with a prayer to mark FSL Report as Exhibit without formal proof. The prosecution failed two paragraph petition in which it was submitted that the FSL report submitted by FSL, Patna is not fit to be admitted into the evidence and it did not afford sufficient ground on the basis of which laboratory reach to viable conclusion. On the rejoinder petition filed on behalf of the prosecution there is an endorsement in the left side "Not Pressed". Meaning thereby that the prosecution withdraw its objection to the petition dated 28.05.2018 filed on behalf of the defence. Under these circumstances there was no reason for the learned trial court to mark FSL Report as Exhibit showing it marked "with objection". In fact the prosecution itself had submitted that it may be marked exhibit in terms of Patna High Court CR. APP (DB) No.362 of 2019 dt.03-05-2024 31/33 Sections 293 and 294 Cr.P.C. It was duly marked but the learned trial court erred in not considering the FSL Report in its judgment.
55. DW-1 has deposed that Upendra Yadav was employed in Shiva Shakti Security Force at Hyderabad from 15.01.2015 to 20.08.2015. He has stated that his brother Gama Yadav had lodged counter case against the informant Kamaldeo Yadav and others. DW-2 is the owner of the gun house who has proved the signature of Barister (Exhibit 'A') with objection and signature of S.I. Taj Ahmad (Exhibit 'A/1') with objection on the register showing deposit and withdrawal of the gun. Prosecution has cross-examined him to create a doubt in his evidence on the ground that he had not given information about the deposit of arms to the Arms Magistrate and S.P., Buxar.
56. We have also perused the statement of the appellant recorded under Section 313 Cr.P.C. The appellant was asked three questions which he answered in negative. In his defense, he has submitted that at the time of occurrence, he was at Hyderabad. The question and answer done under Section 313 Cr.P.C. is being reproduced hereunder for a ready reference:-
"iz"u%& D;k vkius lkf{k;ksa dk lk{; lquk gS\ mRrj%& gk iz"u%& vkids fo:) lwpd ,oa lkf{k;ksa dk vkjksi ,oa lk{; gS fd fnukad 26&5&15 dks lqcg t[eh jkek"kh'k ;kno ds ifjtuksa }kjk eukst ;kno ds ifjtuksa ls mykguk ds i"pkr ykSVdj vkus ds ckn mlh fnu djhc 9 cts lqcg vki vius gkFk esa fy, ykblsUlh cUnqd ifjokj ds vU; uo nwljs yksx ds lkFk tks vius&vius gkFk esa ykBh] MaMk] bZaV] iRFkj fy, gq, FksA ,d jk; gksdj utk;t etek cukrs gq, lwpd ds ?kj ds cxy fLFkr iykuh ds ikl igqpdj geyk dj fn;s ftlls jkek"kh'k o ohjoy ;kno t[eh gks x;s rFkk txnh"k ;kno o u;u dqekj mQZ lk/kq ;kno } kjk yydkjus ij vius&vius gkFk esa fy, ykblsUlh canwd ls vius Nr ij [kM+s lwpd ds iq= vthr dqekj (mez 16 o'kZ) dks fu"kkuk cukdj nks rhu Qk;j fd, xksyh yxus ds ckn vthr dqekj cqjh rjg t[eh gks x;k rFkk mls (vthr dqekj) dks lnj vLirky cDlj ykus ds i"pkr MkWDVjksa }kjk e`R; ?kksf'kr dj fn;k x;kA D;k dguk gS\ mRrj%& funksZ'k gSaA Patna High Court CR. APP (DB) No.362 of 2019 dt.03-05-2024 32/33 iz"u%& lQkbZ esa D;k dguk gS\ mRrj%& ?kVuk ds le; eSa gSnjkckn esa FkkA "
57. While going through the statement of the appellant under Section 313 Cr.P.C we find that the learned trial court did not apprise the appellant with all the incriminating materials which were brought by the prosecution against him. He was suggested that he was being armed with a licensee gun, formed an unlawful assembly with his family members and others who were having lathi, danda, bricks and stones in their hand, attacked on Ramashish and Birbal Yadav at the 'palani' situated beside the house of the informant and at the instigation of Jagdish Yadav and Nayan Kumar @ Sadhu Yadav, he fired from the licensee gun 2-3 rounds aiming Ajit Kumar (aged 16 years), son of the informant. This Court finds that the learned trial court did not inform this appellant about the statement of PW-1, PW-3 and PW-4 who claimed their presence at the second place of occurrence, the learned trial court did not place before the appellant that he had fired from the second place of occurrence when Ajit Kumar (deceased) standing on the roof of Suraj Das and Rajdeo Das which is a joint house. Learned trial court did not consider the defence statement of the appellant that he was at Hyderabad on the date of occurrence. Learned trial court could not appreciate that the defence had requested the I.O. to investigate on this point. In paragraph '19' of his cross-examination, PW-8 has stated that he had conducted investigation on the point that on the date of occurrence, the appellant was at Hyderabad. PW-8 has stated that this appellant was working as night guard in Om Shiva Shakti Force, he had not recorded statement of anyone from the Company but he had verified it over telephone. It appears that learned trial court Patna High Court CR. APP (DB) No.362 of 2019 dt.03-05-2024 33/33 has completely missed out on this part of the deposition of PW-8. No evidence has been led to prove that the appellant intended to kill Ajit (deceased).
58. On analysis of the entire evidences on the record, we find that learned trial court is not correct in holding the appellant guilty of murder of Ajit Kumar, son of the informant in the occurrence which took place on 26.05.2015. The prosecution has failed to prove the guilt of the appellant beyond all reasonable doubts. We, therefore, set-aside the impugned judgment of conviction and order or sentence. The appellant is acquitted of the charges giving him benefit of doubt.
59. The appellant is in custody, he shall be released forthwith if not wanted in any other case.
60. The appeal is allowed.
(Rajeev Ranjan Prasad, J.) ( G. Anupama Chakravarthy, J.) siwani/-
AFR/NAFR CAV DATE 18.04.2024 Uploading Date 03.05.2024 Transmission Date 03.05.2024