Patna High Court
Dhananjay Rai vs State Of Bihar on 22 November, 2011
Author: Dinesh Kumar Singh
Bench: Shyam Kishore Sharma, Dinesh Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.1422 of 2007
================================================
Guddu Rai, Son of Gorakh Rai, resident of Village - Semraon,
Police Station -Meerganj, District - Gopalganj.
.... .... Appellant.
Versus
The State of Bihar
.... .... Respondent.
With
Criminal Appeal (DB) No. 1362 of 2007
================================================
Shambhu Rai, Son of Vakil Rai, resident of village - Gulaura,
Police Station - Gopalpur, District - Gopalganj.
.... .... Appellant.
Versus
The State of Bihar
.... .... Respondent.
With
Criminal Appeal (DB) No. 1365 of 2007
================================================
Dhananjay Rai, Son of late Gorakh Rai, resident of Village -
Semraon, Police Station -Kateya, District - Gopalganj.
.... .... Appellant.
Versus
The State of Bihar
.... .... Respondent.
With
Criminal Appeal (DB) No. 1386 of 2007
================================================
Chandrahash Rai @ Ajit Singh, S/o Raghow Singh, Resident of
Village - Koyaladewa, Police Station Phulwariya, District -
Gopalganj,
.... .... Appellant.
Versus
The State of Bihar
.... .... Respondent.
With
Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 2
Criminal Appeal (DB) No. 1400 of 2007
================================================
Om Prakash Rai, Son of Ram Naresh Rai, Resident of Village -
Sonhaula Gokhul, Police Station - Gopalpur, District -
Gopalganj.
.... .... Appellant.
Versus
The State of Bihar
.... .... Respondent.
With
Criminal Appeal (DB) No. 940 of 2009
================================================
Gautam Rai S/O Sajawal Rai Vill - Ahirauli Dubauli, P.S.
Gopalpur ,Distt - Gopalganj
.... .... Appellant.
Versus
The State Of Bihar
.... .... Respondent.
================================================
All the six appeals are against the order of conviction and
sentence dated 6.10.2007/9.9.2009 and 12.10.2007/11.9.2009
passed in Sessions Trial No. 40 of 2004/53 of 2005 and 83 of
2006/192 of 2008 by 1st Additional Sessions Judge, Gopalganj
and 3rd Additional Sessions Judge, Gogalganj, respectively.
----------------
Appearance :
(In CR. APP (DB) No. 1422 of 2007)
For the Appellant : Mr Surendra Singh, Sr. Advocate
Mr. Sunil Kumar Pathak, Advocate
For the Respondent. : Mr. Ashwani Kumar Sinha, APP
For the Informant : Mr. Shakil Ahmad Khan, Sr. Advocate
Mr. Harendra Prasad Singh, Advocate
Mr. Shashi Chandra Pandey, Advocate
(In CR. APP (DB) No. 1362 of 2007)
For the Appellant : Mr. Kanhaiya Pd. Singh, Sr. Advocate
For the Respondent : Mr. Ashwani Kumar Sinha, APP
(In CR. APP (DB) No. 1365 of 2007)
For the Appellant : Mr. Sudhir Singh, Advocate
Mr. Raghwanand, Advocate
For the Respondent : Mr. Ashwani Kumar Sinha, APP
For the Informant : Mr. Shakil Ahmad Khan, Sr. Advocate
Mr. Harendra Prasad Singh, Advocate
Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 3
Mr. Shashi Chandra Pandey, Advocate
(In CR. APP (DB) No. 1386 of 2007)
For the Appellant : Mr. Ashok Kumar Singh, Advocate
Mr. Akhilesh Kumar, Advocate
For the Respondent : Mr. Ashwani Kumar Sinha, APP
For the Informant : Mr. Shakil Ahmad Khan, Sr. Advocate
Mr. Harendra Prasad Singh, Advocate
Mr. Shashi Chandra Pandey, Advocate
(In CR. APP (DB) No. 1400 of 2007)
For the Appellant/s : Mr. Kanhaiya Pd. Singh, Sr. Advocate
For the Respondent : Mr. Ashwani Kumar Sinha, APP
For the Informant : Mr. Shakil Ahmad Khan, Sr. Advocate
Mr. Harendra Prasad Singh, Advocate
Mr. Shashi Chandra Pandey, Advocate
(In CR. APP (DB) No. 940 of 2009)
For the Appellant : Mr. Sudhir Singh, Advocate
Mr. Raghwanand, Advocate
For the Respondent : Mr. Ashwani Kumar Sinha, APP
For the Informant : Mr. Shakil Ahmad Khan, Sr. Advocate
Mr. Harendra Prasad Singh, Advocate
Mr. Shashi Chandra Pandey, Advocate
================================================
CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE
SHARMA
&
HONOURABLE MR. JUSTICE DINESH KUMAR SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR.DINESH KUMAR SINGH, J.)
************
S.K. Sharma &
Dinesh Kumar Singh, JJ. The aforesaid appellants, except appellant Gautam
Rai, have challenged the judgment and order of conviction and
sentence dated 06.10.2007 and 12.10.2007, respectively, passed
by learned 1st Additional District & Sessions Judge, Gopalganj in
Sessions Trial No. 40 of 2004/53 of 2005, whereas appellant
Gautam Rai of Criminal Appeal No. 940 of 2009 has challenged
the judgment and order of conviction and sentence dated 9.9.2009
Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 4
and 11.9.2009, respectively, passed by learned 3rd Additional
District & Sessions Judge, Gopalganj in Sessions Trial No. 83 of
2006/192 of 2008. The appellant Gautam Rai was separately
convicted, since he absconded at the time of defence argument,
but his appeal has also been heard along with appeals of other
convicts, since the same evidence has been the basis of conviction
in both the trials. The five appellants of Sessions Trial No. 40 of
2004/53 of 2005 were convicted under Sections 302/34 & 387/34
of the Indian Penal Code and 27 of the Arms Act and sentenced
to undergo R.I. for life with fine of Rs.5,000/- each for charge
under Section 302/34 of the IPC, R.I. for Seven years with fine of
Rs.1,000/- each for charge under Section 387/34 of the IPC and
R.I. for three years with fine of Rs.500/- each for charge under
Section 27 of the Arms Act. Appellant Guddu Rai was further
convicted under Section 379 of the IPC and sentenced to undergo
R.I. for three years with fine of Rs.500/- and in default of making
payment of fine, each appellant was directed to suffer simple
imprisonment for three months. All the sentences were directed to
run concurrently.
2. The appellant Gautam Rai was convicted under
Sections 302/34 & 387/34 of the Indian Penal Code and 27 of the
Arms Act and sentenced to undergo R.I. for life under Section
302/34 of the IPC, R.I. for Seven years under Section 387/34 of
Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 5
the IPC and R.I. for Three years under Section 27 of the Arms
Act. All the sentences were directed to run concurrently.
3. The prosecution case emanates from the fard-
beyan of Ravindra Pandey (P.W.1) recorded on 13.7.2011 at 7.00
A.M. at Primary Health Centre, Kuchaikot by S.I. Mithilesh
Kumar Das, Officer-in-charge of Kuchaikot Police Station
(P.W.12), to the effect that apart from performing agricultural
work, the informant‟s side used to run a brick kiln. Guddu Rai
demanded fifty thousand bricks as extortion four months prior to
the occurrence, which was refused by the informant, on which
threatening was given by Guddu Rai. But the informant did not
convey about the demand to anybody as it would cause fear
within his family, but he became cautious. It has been admitted
by the informant that there are three licensed arms in the family
and on 13.7.2011, at 5.15 A.M., the informant had gone to the
brick kiln which was situated 1000 yards north to his house and
then at around 5.30 A.M., all of a sudden Guddu Rai, Hriday
Rai, Gautam Rai, Dharmanath Rai and 7-8 unknown criminals
came with automatic and ultra modern arms, on five motor cycles
and conveyed to the informant that as he had not fulfilled the
demand of fifty thousand bricks, hence, now he will have to give
Rs. Two lacs in addition to the fifty thousand bricks or he should
remain prepared to die, on which some hot exchange took place.
Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 6
In the meantime, on hearing the alarm of the informant, the father
of the informant, Durga Pandey (deceased), came to save
informant with the licensed arm of the uncle of the informant. In
the meantime, Hriday Rai, Gautam Rai hiding behind the sisam
tree and the other accused hiding in the cane field, started firing
indiscriminately on the father of the informant, while two
unknown criminals caught hold of the informant and then Guddu
Rai and Dharmanath Rai fired upon the father of the informant
with AK-47 and semi rifle, respectively. On receiving the gun
shot injuries the father of the informant fell down and then Guddu
Rai came near the father of the informant, while firing upon him
and snatched the rifle of the father of the informant and fled away
along with his associates. In the meantime, the informant escaped,
after getting himself released from the clutches of criminals, but
in the course of freeing himself, the informant received injury on
being assaulted by the criminals, with the butt of the rifle. The
informant did not identify others, but claimed to identify, on
seeing them. The criminals were in the age group of 30-35 and
were speaking local language and some of them were not armed.
After the criminals fled away, the informant brought his father to
Primary Health Centre, Kuchaikot with the help of the villagers,
where his father was declared dead. The informant also came to
know that prior to the occurrence, Guddu Rai had tea in the house
Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 7
of Dharmanath Rai and from there itself he traced about the
activity of the informant and when they came to know about the
informant‟s going to the brick kiln, the accused persons
committed the offence. It was claimed by the informant that
occurrence was seen by many villagers and by many people
around the brick kiln, but these persons did not come forward to
say anything, out of fear. The whole occurrence took place within
five minutes. It is also claimed by the informant that his father
was killed, as he did not pay the extortion money. Gyanendra
Pandey (P.W.4) was the attesting witness to the fard-beyan, when
ultimately Kuchaikot P.S. Case No. 71 of 2001 was registered on
13.7.2001, at 9.00 A.M. under Sections 384, 386, 387, 302, 379/34 of the Indian Penal Code and 27 of the Arms Act, against four accused namely Guddu Rai, Dharmanath Rai, Hriday Rai and Gautam Rai.
4. The police, after investigation, submitted charge sheet and on cognizance being taken, the case was committed to the Court of Sessions. Charges were framed against all the appellants under Sections 302/34 of the IPC. Appellants Dhananjay Rai, Gautam Rai, Shambhu Rai, Chandrahash Rai @ Ajit Singh and Guddu Rai were further charged under Sections 387/34, 379/34 of the IPC. Appellants Dhananjay Rai, Gautam Rai, Guddu Rai and Om Prakash Rai were further charged under Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 8 Section 27A of the Arms Act. Appellants Shambhu Rai and Chandrahash Rai @ Ajit Singh were further charged under Sections 386/34 of the IPC and 27/34 of the Arms Act and appellant Om Prakash Rai was further charged under Sections 387 & 379 of the IPC.
5. The prosecution, in order to prove its case, examined altogether 14 witnesses, of which P.W. 1 and 2, Rabindra Pandey and Amod Pandey are the sons of the deceased, of which P.W. 2 is a hearsay witness. P.W. 3 is Surendra Singh, though a resident of different village but he is an eye witness to the occurrence and claims his presence at the place of the occurrence. P.W. 4 - Gyanendra Pandey is another son of the deceased and also a hearsay witness. P.W. 5, Lal Babu Pandey is also a resident of different village, but has claimed to be an eye witness. P.W. 6 is Dr. Vishwanath Agrawal, who has conducted the post-mortem examination on the dead body of late Durga Pandey. P.W. 7 - Arbind Dixit is also a resident of different village but claims himself to be the eye witness. P.W. 8 is Rabindra Singh, Judicial Magistrate, who recorded 164 Cr.P.C. statement of P.W. 5 and 7. P.W. 9 - Sunil Kumar Rai is a Clerk in the P.P. office and has proved the handwriting and signature of Wasir Ahmad, in whose handwriting F.I.R. of Kataiya P.S. Case No. 94 of 2001 was registered. He has also identified the Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 9 handwriting and signature of the informant Baleshwar Choudhary of Kataiya P.S. Case No. 94 of 2001. P.W. 10 - Yogendra Prasad Singh is the Constable, who has proved the handwriting of Baleshwar Choudhary, the then Officer-in-charge, on Sanha Entry no. 36 dated 3.6.2001 and Sanha entry no. 168 dated 11.6.2001, which have been marked as Ext. 9 & 9/1. P.W. 11 is Hari Kishore Singh, another Clerk in the P.P. office and has proved the signature and handwriting of Baleshwar Choudhary (P.W.14) on the seizure list of Kataiya P.S. Case No. 94 of 2001. P.W. 12 is Mithilesh Kumar Das, the then Officer-in-charge of Kuchaikot Police Station and the I.O. of the case. P.W. 13 is Arjun Yadav, who is the second I.O. of the present case and P.W. 14 is Baleshwar Choudhary, the 3rd I.O. of the present case, who also submitted one of the charge sheets in the case.
6. The defence has not examined any witness.
7. The convicts can be placed in two categories i.e. named and not named. Initially four persons were made accused in the first information report, they were Guddu Rai, Gautam Rai, Dharmanath Rai and Hriday Rai. Out of them only two have been convicted by the impugned judgments, namely, Guddu Rai and Gautam Rai. Rest of the four convicts, namely, Dhananjay Rai, Shambhu Rai, Chandrahash Rai @ Ajit Singh and Om Prakash Rai were not named in the FIR, nor they were ever put on T.I. Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 10 Parade, but they have been convicted along with FIR named accused persons.
8. P.Ws. 1, 3, 5 and 7 have claimed themselves to be the eye witnesses of the occurrence. P.Ws. 2 and 4 though are sons of the deceased but they admit to have reached the place of occurrence, after the occurrence took place. P.W. 2 specifically admits that he came to know about the entire occurrence from P.W. 1. Though P.W. 4 claims to have seen the accused persons fleeing away from the place of occurrence, but his claim becomes doubtful from his own admission, in para 1 of his evidence, that he was sleeping in his house at the time of the occurrence and on the gun shot firing he woke up and went to the place of the occurrence, which according to him was about 300 yards north to his house and as per the evidence of P.W. 1, the entire occurrence took place within five minutes and immediately after the occurrence, the accused persons fled away from the place of occurrence on motor cycle. Hence, P.W. 4‟s claim, to have seen the accused persons fleeing away from the scene, appears to be doubtful. Hence, we are not deliberating much upon the evidence of P.Ws. 2 and 4.
9. So far P.Ws. 3, 5 and 7 are concerned, they claimed themselves to be the eye witnesses to the occurrence. P.W. 5 has claimed to have gone to the brick kiln of the Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 11 informant (P.W. 1) to collect the consideration amount for the soil supplied by him at the brick kiln, whereas P.W. 7 claims himself to have gone at the brick kiln to collect the burnt coal from the brick kiln. All these three witnesses have claimed that they were talking to the informant when the accused persons came, being variously armed, when Guddu Rai first threatened P.W. 1 for not supplying fifty thousand bricks and demanded Rs. Two lacs. along with fifty thousand bricks and threatened P.W.1 to get ready for being killed, if the demand would not be fulfilled. In the meantime, father of P.W. 1 (deceased), heard about the occurrence, on which he proceeded for the brick kiln from his house, along with the licensed rifle of his brother and resorted to firing. P.W. 3, in para 4 of his evidence, has admitted that his house is 2 k.m. west to the brick kiln. Similarly P.W. 5, in para 5, has admitted the distance of his house to be 2 k.m. from the brick kiln and P.W. 7, in para 28, has admitted that the distance of the brick kiln of P.W. 1 is about 10 miles from his village. The non- examination of any independent witness in the background of the examination of P.Ws. 3, 5 and 7, who were non-residents of the village and who claimed themselves to be present at 5.30 in the morning, at the place of the occurrence, prima facie creates doubt about their claim. This doubt further gets consolidated from the own admissions of these witnesses.
Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 12
10. Firstly, all three witnesses have claimed that they were talking to P.W. 1 at the brick kiln, when the accused persons arrived, but in the first information report their names have not been mentioned. Though, it is a trite law that the FIR cannot stipulate everything, but non-mentioning of the basic elements appertaining to the occurrence, creates doubt about the bonafide of the prosecution case. If the extortion demand was being made from the informant while he was talking with P.Ws. 3, 5 and 7, then the non-mentioning of their names in the FIR, appears questionable, as they have not even been made witness to the fard-beyan, while, P.W. 4 Gyanendra Pandey, has been made witness in the FIR, who admits that he reached the place of the occurrence subsequently, after hearing the sound of gun firing.
11. Secondly, P.Ws. 3, 5 and 7, have consistently admitted that their 161 Cr.P.C. statements were recorded after three days and 164 Cr.P.C. statements after one and half months. Hence, the claim of the appellants, that the presence of such P.Ws. at the place of occurrence is doubtful, appears to have substance, in view of the fact that the names of these P.Ws. are neither mentioned in the FIR, nor in the inquest report, nor they have been cited as seizure list witnesses. Moreover, their 161 Cr.P.C. statements have been taken after three days of the occurrence, coupled with the claim that immediately after the Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 13 occurrence they went to their village, which appears to be very absurd. Their conduct appears not to be only unreasonable but highly improbable. Hence, the credibility of these witnesses with regard to their claim of being present at the place of occurrence, is definitely questionable.
12. Moreover, the presence of P.Ws. 3, 5 and 7, at the place of occurrence also becomes doubtful, in the light fact that it has nowhere been mentioned or stated as to what was the reaction of P.Ws. 3 and 7, when the occurrence took place, as it would have been very natural and probable that P.Ws. 3, 5 and 7 would also have been captivated or caught hold of by the accused persons, when the occurrence took place. The silence of P.Ws. 1, 3 and 7, on this aspect creates doubt with regard to their presence at the place of occurrence along with P.W. 5 and it appears that the names of P.Ws. 3, 5 and 7 has only been added as a witness for proving the case against the accused. Though, P.W. 5 has stated in his deposition, that he along with P.Ws. 3 and 7 stopped back and witnessed the occurrence, which seems very absurd and improbable.
13. P.W. 1, being the son of the deceased is the informant of the case, who claims that Guddu Rai and others, demanded fifty thousand bricks, as extortion, four months prior to the occurrence, which was refused by the informant, but the Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 14 informant not only admits in his fard-beyan but also in his evidence that he neither lodged any case, nor any complaint before any authority about the demand of extortion. On the date of occurrence on 13.7.2001, this witness went to his brick kiln from his house at about 5.15 A.M., which is situated 1000 yards north to his house and at about 5.30 A.M. Guddu Rai, Gautam Rai, Dharmanath Rai, Hriday Rai and 7-8 unknown criminals came along with automatic and ultra modern arms on five motor cycles and conveyed the informant that, by not conceding to their demand of fifty thousand bricks, he will now have to pay Rs. Two lacs in cash also, or else he should be ready to be killed. On hearing the alarm, the father of the informant, deceased Durga Pandey, in order to save the informant ran along with the licensed rifle of the uncle of the informant and when he was 200 yards away from the brick kiln, Hriday Rai and Gautam Rai sitting near the Sisam tree and other accused, hiding in the cane fields resorted to indiscriminate firing. Two accused persons caught hold of the informant. It is also claimed that Guddu Rai and Dharmanath Rai went to the cane field and fired from AK-47 and semi automatic rifle, respectively. The firing made by the accused persons hit the father of the informant, when after few minutes the father of the informant died and after being released by the criminals the informant reached near his father and found Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 15 him dead. As per the fard-beyan of P.W. 1, it was recorded on 13.7.2011 at Primary Health Centre, Kuchaikot at about 7.00 A.M. but P.W. 1, in para 1 of his evidence, has stated that the victim was taken to Primary Health Centre, Kuchaikot, where he was declared dead and thereafter, the dead body was taken to the police station, where the informant‟s statement was recorded and then he signed the papers and his brother (P.W. 4) also signed as a witness on the fard-beyan. P.W. 1 has further improved his version in para 46 of his evidence appearing at page 32 of the paper book, that he took his father‟s dead body, on his own, to the police station, where his statement was first taken in presence of several witnesses and thereafter the dead body was sent by police officer for conducting post-mortem. This evidence of P.W. 1 gets contradicted with the evidence of the I.O. (P.W. 12), that the fard-beyan was recorded at the Primary Health Centre. This inconsistency between the fard-beyan and the evidence of P.W. 1 vis-à-vis P.W. 12, not only contradicts the evidence of P.W. 1, who is virtually the sole eye witness, but it also creates doubt about the credibility of P.W. 1 as an eye witness to the occurrence.
14. So far as the manner of the occurrence is concerned, it is the consistent evidence of P.Ws. 1, 3, 5 and 7 that at the first instance four FIR named accused persons and 7-8 Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 16 unknown persons came to the brick kiln of the informant and threatened for not supplying fifty thousand bricks and further demanded fifty thousand bricks along with Rs. Two lacs, otherwise threatened to get ready for being killed and when the father of the informant heard about the occurrence, then he came from his house, armed with rifle, which as per the fard-beyan was situated 1000 yards south from the brick kiln, and he started firing in order to save P.W.1, but when he was about 200 yards from the brick kiln, then Hriday Rai and Gautam Rai, hiding behind the sisam tree and other accused persons from the cane field, began firing indiscriminately. No doubt, the informant alleged that Guddu Rai was armed with AK-47 and Dharmanath Rai and others were armed with semi automatic rifle and that the father of the informant received 3-4 fire arm injury, but from the medical evidence of P.W. 6 it appears that only one injury was found, which was 8" x 2 ½" x extending from upper part and right side of face including right ear, right side of neck up to right shoulder, which is was described in the following words:-
"Fire arm lacerated wound with inverted and blacken margin of size 8" x 2 ½" x extending from upper part and right side of face including right ear, right side of neck up to right shoulder area with injury to all soft tissues, carotene vessels in oblique manner".
Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 17 Definitely, the aforesaid injury was caused as a result of assault by sophisticated and powerful fire arms but it cannot at all be said that the victim received 3-4 fire arm shots. Though, there is no wound of entry or exit in the body, but it appears that such kind of injury can be caused from higher place, which is also suggested by the doctor. The doctor, in para 5 of his evidence, has stated that firing was resorted from a higher place than the place where the victim was standing. Perhaps, this was the reason that it was the case of the informant in the fard-beyan that when the deceased was about 200 yards from the brick kiln, then indiscriminate firing was resorted to, but in para 17 of his evidence, P.W. 3 has further developed his version by saying that the victim started lying down to save himself, after the firing was resorted to by the accused persons and while lying down, he received the firearm injuries. This fact is not only contradictory to the version of the informant in the fard-beyan, but it also appears to be unreasonable, as the firing made by sophisticated firearms can dislodge several bullets within fraction of seconds.
15. The manner of the occurrence also gets clouded by the finding of the doctor (P.W.6), that the injury was with "blacken margin". The consistent case of the prosecution, as P.W. 1 has stated in the fard-beyan, is that the victim was 200 Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 18 yards away from the brick kiln and the distance has been given by the I.O. (P.W. 12), in para 2 of his evidence, where he has stated that the house of the informant, from the place from where the deceased received injury, was 300 yards south and sisam tree was 50 yards away from the place of the occurrence and the cane field was about 75 yards north-east. This is the consistent case of the eye witnesses that the firing was made by two accused persons from behind the sisam tree while the other accused persons were firing from the cane field and both the sisam tree and the cane field were in the north-east directions and if they were situated in the same line, then it appears unreasonable that two sets of accused persons were firing, being positioned in the same line. Hence, the minimum distance from where the firing was resorted to was 50 yards. Hence, the blackening could have been caused due to the deposit of smoke. In some cases, the blackening is caused due to the bullet, which is usually made of lead, of which the inherent colour is black, but such blackening, caused due to lead content, gets cleared one the skin is wiped by the Doctor during the post-mortem. So far as the possibility of blackening of skin caused due to smoke is concerned, the same also comes under doubt as the smoke cannot travel more than 50 yards, caused due to firing of a bullet from a firearm. Hence, it appears that the victim did not receive Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 19 injury in the manner, as suggested by the eye witnesses, particularly P.W. 1. It has now been well settled principle in a catena of decisions of the Apex Court that while appreciating the variance between the medical evidence and ocular evidence, the ocular evidence of eye witnesses has to be given primacy as the medical evidence is basically opinionative in nature, but when the Court finds that the evidence given by the eye witnesses is totally inconsistent with the medical evidence, then the evidence has to be considered in a different perspective, as has been laid down in the case of Mahinder Singh Vs. The State, reported in AIR 1953 Supreme Court 415, para 10, which reads as follows:.
"In a case where death is due to injuries or wounds caused by a lethal weapon. It has always been considered to be the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. It is elementary that where the prosecution has a definite or positive case, it must prove the whole of that case. In the present, it is doubtful whether the injuries which are attributed to the appellant Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 20 were caused by a gun or by a rifle. Indeed, it seems more likely that they were caused by a rifle than by a gun, and yet the case for the prosecution is that the appellant was armed with a gun and, in his examination, it was definitely put to him that he was armed with the gun P-16. It is only by the evidence of a duly qualified expert that it could have been ascertained whether the injuries attributed to the appellant were caused by a gun or by a rifle and such evidence alone could settle the controversy as to whether they could possibly have been caused by a fire-arm being used at such a close range as is suggested in the evidence."
In the case of Maniram Vs. State of U.P. reported in AIR 1994 Supreme Court 840, para 10 reads as follows:-
"It is well settled by long series of decision of this Court that where the direct evidence is not supported by the expert evidence then the evidence is wanting in the most material part of the prosecution case and, therefore, it would be difficult to convict the accused on Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 21 the basis of such evidence. If the evidence of the prosecution witnesses is totally inconsistent with the medical evidence, it is the most fundamental defect in the prosecution case and unless this inconsistency is reasonably explained it is sufficient not only to discredit the evidence but the entire case."
The different situations of conflict between the oral testimony and the medical evidence have also been considered in the case of Thamman Kumar Vs. Union Territory of Chandigarh reported in AIR 2003, page 3975. Para 16 read as follows:-
"The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the types which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 22 weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye witness. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straightway be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken consideration in judging the reliability of ocular testimony."
16. From the testimony of the prosecution Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 23 witnesses and on the basis of aforesaid principles laid down by the Apex Court, it appears that though the informant claims that the accused persons were armed with firearms like AK-47 and semi automatic rifles, but the place from where the injury is alleged to have been caused, will not result into blackening of the skin near the injury and moreover, when the eye witnesses claimed that the deceased received 3-4 gun shot injuries, then either it ought to have been received from the front or from the side. Though, it has been claimed that the injuries have been caused by bullets fired from rifle, but the specifications of the injury does not suggest that the injury could have been caused by rifle. Moreover, it has been opined by P.W. 6, the Doctor, who performed the post-mortem, that firing might have been made from some higher place than the level where the injured was lying, but the same contradicts the allegation levelled in the F.I.R., where it has been alleged that the deceased fell down after receiving the gun shot injuries. As per the allegation, the firing was resorted to from ground level itself, hence the same suggests that the informant has not seen the actual occurrence, which must have taken place in some other manner. Subsequently, during his deposition, the informant has tried to improve his version by saying that the deceased received injuries, while he attempted to lie down to Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 24 save himself, but probably this improvisation was done to corroborate himself with the post-mortem report.
17. The learned Senior Counsel for the informant has relied upon a judgment of Gosu Jairami Reddy & Ors. Vs. State of A.P. reported in AIR 2011 Supreme Court 3147, where it has been held in paragraph no. 28, that "it is not always easy for an eye witness to a ghastly murder to register precise number of injuries that were inflicted by the assailants and the part of the body on which the same were inflicted. A murderous assault is often a heart-rending spectacle in which even a witness wholly unconnected to the assailant or the victim may also get a feeling of revulsion at the gory sight involving merciless killing of a human being in cold blood. To expect from a witness who has gone through such a nightmarish experience, meticulous narration of who hit whom at what precise part of the body causing what kind of injury and leading to what kind of fractures or flow of how much blood, is to expect too much. Courts need to be realistic in their expectation from witnesses and go by what would be reasonable based on ordinary human conduct with ordinary human frailties of memory and power to register events and their details".
18. The aforesaid principle is not applicable in the present case, as in the present case the injury claimed to have Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 25 been seen on the neck of the deceased by the eye witnesses which were also found during post-mortem, but the injuries of the same specification, as alleged by the prosecution has not been found. As per the deposition of P.W. 1, the informant, it has been claimed that Guddu Rai, Dharam Nath Rai and other unknown criminals fired upon his father from the cane field, while Gautam Rai and Hriday Rai fired from behind the Sisam tree when the deceased received three-four gun shot injuries below the right ear on his neck, whereas, as per the post-mortem report only one firearm lacerated injury was caused to the deceased.
19. No doubt, that subsequently at 3.00 P.M. on the same day, one AK-56 with magazine was recovered from Guddu Rai and from Chandrahash Rai @ Ajit Singh along with barrel of the country made pistol and 14 cartridges of AK-56. This recovery was made by P.W. 14 which led to the registration of Kataiya P.S. Case No. 94 of 2001, but it has been proved by P.W. 11 - Hari Kishore Singh, a Clerk in the P.P. office, who has only proved the signature and handwriting of Baleshwar Choudhary, as in para 2 of his evidence, he has stated that the seizure was not made in his presence and he has not proved the contents of the seizure. We do not understand the attempt of prosecution that, when the person who made the seizure and Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 26 prepared the seizure list was examined as P.W. 14, then why the seizure was not proved by him. It is also surprising that the prosecution has not asked any question, with regard to the seizure either from the two accused, or from P.W. 14.
20. It is a settled law that mere production and marking of a document as an exhibit by the Court, cannot be held to be a due proof of its contents, as held in the case of Salt Tarajee Khimchand & Others Vs. Yelamarti Satyam & Others, reported in AIR 1971 Supreme Court 1865, to the effect that mere marking of a document as an exhibit does not dispense with the proof of the document. The said principle has further been reiterated in the case of Narbada Devi Gupta Vs. Birendra Kumar Jaiswal & Anr. reported in (2003) 8 Supreme Court Cases 745, para 16 of which reads as follows:-
"The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue".
The situation is, however, different where the documents are produced, they are admitted Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 27 by the opposite party, signatures on them are also admitted and they are marked thereafter as exhibits by the court. We find no force in the argument advanced on behalf of the appellant that as the mark of exhibits has been put on the back portions of the rent receipts near the place where the admitted signatures of the plaintiff appear, the rent receipts as a whole cannot be treated to have been exhibited as admitted documents."
21. Hence, in our view the contents of seizure has not been proved by the prosecution, but since the seizure list and the FIR lodged in pursuance to the seizure being made in Kataiya P.S. Case No. 94 of 2001 has been accepted in the present case, hence, it is assumed that even if the seizure was made, yet it does not conclusively help to reach at a conclusion that the victim received injuries from the seized AK-56, as it is the consistent case of the prosecution that out of 4 FIR named and 7-8 unnamed accused persons, two resorted to firing from the sisam tree and rest two from the cane field. In these circumstances, it was necessary for the Police Officer, who seized the arms, to have sent the seized arms for ballistic examination to verify whether the same was used, in Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 28 commission of the offence, but it appears that nothing has been done in the present case nor any question has been put on this account to P.W. 14, who made the seizure. Not only that, some empty cartridges were recovered from the place of occurrence also, but they were also not transmitted to the ballistic expert.
22. In the case of Nachhettar Singh and others Vs. State of Punjab, reported in AIR 1976 Supreme Court 951, where recovery was made from the accused persons in a similar manner, it was held by the Apex Court to the effect that the recovery ought to have been proved by examining the witnesses who had witnessed the recovery. Failure of Sub-Inspector to find out by smelling the fire arms at the time of their recovery whether they had been freshly used or not, also added its own weight to the volume of doubt created in the prosecution case.
23. In the present case, further doubts arise, as the seizure list does not suggest whether the seized AK-56 was in a working condition or not, whereas an opinion in this regard could have been given by the ballistic expert. The specific case of the informant is that Guddu Rai was armed with AK-47, whereas one AK-56 was recovered/seized, which not only creates doubt about the credibility of P.W. 1, but it also does not help the prosecution to substantiate its case.
24. The recovery of firearms also does not help the Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 29 prosecution in its effort to prove the case because it is the consistent case of the eye witnesses that, after the victim (deceased Durga Pandey) received injuries, Guddu Rai went near the injured witness and snatched his rifle, but that rifle was not recovered from Guddu Rai. Hence, it cannot be assumed that the seizure from the Guddu was made in the same transaction as it has been admitted by P.W. 5, in para 32 of his evidence, that one rifle has been recovered and it appears from the Trial Court judgment that it was recovered from one Lal Babu, much after the occurrence. Hence, in view of the above discussion we cannot come to a definite conclusion that the firing was made from the seized arms or that firing from the seized firearms actually caused injury to the deceased.
25. The consistent case of the eye witnesses including P.W. 1 is that the firing was indiscriminately resorted to by the two accused persons, Guddu Rai and Gautam Rai from behind the sisam tree and by the others from the cane field. Hence, in this circumstance, when the stand of the prosecution is that all the accused persons were sharing common intention and in furtherance of the same they committed the murder of the informant‟s father, it has to be examined whether the accused persons were actually sharing the common intention or not. It is a settled law that to apply Section 34 IPC, apart from the fact Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 30 that there should be two or more accused, two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, Section 34 IPC will be attracted, as it essentially involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case.
26. For the application of Section 34 IPC, it is difficult to state any hard and fast rule which can be applied universally to all cases. It will always depend upon the facts and circumstances of the given case whether the persons involved in the commission of the crime with a common intention can be held guilty of the main offence committed by them together. The provisions of Section 34 IPC comes to the aid of law while dealing with the cases of criminal offence committed by a group of persons with common intention. Section 34 IPC read as follows:-
"When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 31 for that act in the same manner as if it were done by him alone".
A bare reading of this section shows that the section could be dissected as follows:-
(a) Criminal act is done by several persons
(b) Such act is done in furtherance of the common intention of all; and
(c) Each of such persons is liable for that act in the same manner as if it was done by him alone.
In other words, these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34 of the IPC. While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intentions are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 must be done by every persons. The emphasis in this part of section is on the word „done‟. It only flows from this, that before a person can be convicted by following provisions of Section 34, that person must have done something along with other persons. Some individual participation in the commission of a criminal act would be the requirement. Every individual member of the Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 32 entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity. Under Section 34, every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally, i.e., he is a participant not only in what has been described as a common act but also what is termed as common intention and thereafter in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also jointed him and played a role that is similar or different
27. Section 34 also deals with constructive criminal liability, which provides that where a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them.
28. Common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any pre-determined plan to commit such an offence. This will always depend on the facts and circumstances Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 33 of each case.
29. When we apply the provisions of Section 34 IPC in the present case, we find that the case of P.W. 1, the informant, is that the FIR named accused persons particularly Guddu Rai demanded fifty thousand bricks as extortion, four months prior to the occurrence, but it was not conveyed by P.W. 1 to any one and on the date of the occurrence the accused came and demanded fifty thousand bricks along with Rs.Two lacs. and threatened to kill and firing was resorted to, only when the father of P.W. 1, i.e., Durga Pandey (deceased) started coming towards brick kiln while firing at the accused, in order save P.W. 1. No doubt the accused persons were variously armed with automatic firearms, but as per the evidence of P.W. 5, in para 9 of his evidence, it is apparent that none of the accused persons misbehaved, with P.Ws. 1, 3, 5 and 7, meaning thereby that they had no intention to commit any serious offence and as suggested by learned Senior Counsel, the accused persons were armed with rifle with a purpose to overawe the informant and others. The evidence of P.Ws. 1, 3, 5 and 7, does not reflect that there was any consultation before the accused persons took shelter behind the sisam tree or in the cane field, rather there is no evidence on record to suggest that when the accused left the brick kiln to take position at the place of firing. Firing must have been resorted to Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 34 by the accused persons, in a reflex action, since the deceased was firing at them, which is admitted by witnesses also. The manner in which the firing has been asserted by the prosecution witnesses appears to be suspicious, as both the places of firing, from where the deceased was assaulted are situated in the north- east from the place where the victim was shot at, as the sisam tree was 50 yards and thereafter the cane field in the same line, which is also admitted by P.W.1, the informant in para 16 of his evidence. Resorting to firing, in such manner, would definitely have jeopardized the life of two accused, who were firing from the sisam tree because they were absolutely in the range of firing or in the range of the accused persons who were allegedly firing from the cane field.
30. Definitely, this is not the case of the prosecution that the victim had any plans to come to the brick kiln in the morning, rather the case of the prosecution is that on hearing the alarm the victim decided to come to the place of occurrence with the fire arm. Hence, accused had no information about the planning of the deceased coming to the place of occurrence. Hence, prior to the coming of the deceased, at the place of occurrence, the accused could not have shared any intention to kill the deceased. No doubt, common intention can develop at the spot also, but, since the eye witnesses admitted that the Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 35 occurrence took place within five minutes, hence, it appears that firing was resorted to by the accused as a retaliatory action. Action, which can be termed as mutual fighting. Hence, examining the conduct of the accused, as deposed by the eye witnesses, it does not appear that they all were sharing the common intention. Admittedly, two accused persons were not armed, but it has not been disclosed by the witnesses, was to who were the two accused persons, who were not armed. Moreover, if at all the accused persons had come for demanding extortion, with an intent to commit murder, then there was no reason, why they would leave alone the informant because as per the allegation, it was the informant who was actually being threatened and that too at early hours in the morning.
31. The non-receiving of the injury by the victim in the manner alleged by the eye witnesses also creates doubt about the common intention being shared by the accused persons as P.W. 1, in para 44, and P.W. 5, in para 19, of their evidence have clearly stated that they could not say whose firing actually hit the victim and considering the case of the prosecution, in the light of the injury received by the deceased, it cannot be said with certainty that actually the deceased received 3-4 shots as claimed by P.W.1.
32. No doubt, P.W. 12 has stated that there are 47 Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 36 cases in which convict Guddu Rai was implicated, as was incorporated in para 42 of the case diary, but at the same time the I.O., in para 31 of his evidence, has stated that the records of those cases were not examined by him. The prosecution has not led evidence with regard to the criminal antecedent of the accused, hence, on the basis of the evidence of P.W. 12, no adverse inference can be drawn in the present case.
33. The prosecution has failed to examine the independent witnesses in such case of commission of serious offence, as P.Ws. 1, 2 and 4 are the sons of the deceased, while P.Ws. 3 and 5 claimed to have supplied soil to the brick kiln and even though they were resident of the different villages, but they were well acquainted with the informant, whereas P.W. 7 claims that he was a resident of another village situated more than 10 miles away from the place of occurrence and that he had come for collecting burnt coal. Hence, they cannot be termed to be independent witnesses in a true sense. Though, the informant right from his fard-beyan to deposition has claimed that several villagers came to the place of occurrence and that other persons also arrived at the place of occurrence and P.W. 3, in para 10 of his evidence, stated that 25-30 persons came at the place of occurrence, but none has been examined. As discussed above, P.W. 14 who made the seizure of arms from Gautam Rai and Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 37 Guddu Rai has not come to prove the seizure list or the FIR, hence, it appears that prosecution has not come forward to prove its case in the manner in which it is required to be done under the law.
34. So far the place of occurrence is concerned, though the exact place of occurrence has not been fixed by the prosecution witnesses, but it appears that the place of occurrence is adjacent to the land of Subhash Khan. However, there is no dispute with regard to the place of the occurrence, but it appears that blood was found there and it was shown to the police, as admitted by P.W. 1, in para 16 of his evidence, whereas P.W. 4, in para 3, has suggested that blood stained earth was seized by the police but it was not sent for the chemical examination and neither the seized soil nor any recovered materials have been brought on record. Hence, it appears that the place of occurrence has not been established. The investigation appears to have been made in a most perfunctory manner.
35. So far the appellants Dhananjay Rai, Shambhu Rai, Chandrahash Rai @ Ajit Singh and Om Prakash Rai are concerned, they were not named in the FIR. Learned Senior Counsel has also taken us through the various paragraphs of the evidence of P.Ws. 1, 3, 5 and 7, which reflect that they were neither named in the FIR nor they were known to the eye Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 38 witnesses and in spite of the fact that they came to know their names just after the occurrence. No effort was taken to conduct the T.I. Parade and they have been identified for the first time in the Court by the witnesses. The inconsistency in the said identification gets crystallized in the evidence of P.W. 5, in para 2 of his evidence, when he identifies Shambhu and Dhananjay, in the dock. Moreover, P.W. 12, the I.O., has clearly stated, in para 13 and 15 of his evidence, that the informant did not name Om Prakash in his subsequent statement. Neither the informant nor any witness, nor the I.O. verified about the criminal antecedent of this appellant, whereas, in para 21 of his evidence, he has stated that P.W. 2 did not name this appellant. Similar is the evidence of P.W. 12 with regard to Dhananjay, in para 6 of his evidence. Hence, it appears that whatever has been said by the eye witnesses against non-FIR accused, it is for the first time in the Court and not prior to that. Hence, in our view there is absolutely no evidence against them.
36. The prosecution has relied on the confession of Guddu which is Ext. D/1. Admittedly, Guddu was subsequently arrested at 3.00 P.M. on the same day, i.e., 13.7.2001, which led to the registration of Kataiya P.S. Case No. 94 of 2001, but his confession did not lead to any recovery. The principles for relying upon the confession has been enumerated by the Apex Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 39 Court in the case of State (N.C.T. of Delhi) Vs. Navjot Sandhu reported in AIR 2005 Supreme Court 3820. Para 13 and 14 of which reads as follows:-
"Para 13 - Pointing out a material object by the accused furnishing the information is not necessary concomitant of S. 27. Though in most of the cases the person who makes the disclosure himself leads the Police Officer to the place where an object is concealed and points out the same to him, however, it is not essential that there should be such pointing out in order to make the information admissible under S. 27. It could very well be that on the basis of information furnished by the accused, the Investigating Officer may go to the spot in the company of other witnesses and recover the material object. By doing so, the Investigating Officer will be discovering a fact viz., the concealment of an incriminating article and the knowledge of the accused furnishing the information about it. In other words, where the information furnished by the person in Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 40 custody is verified by the Police Officer by going to the spot mentioned by the informant and finds it to be correct, that amounts to discovery of fact within the meaning of S. 27. Of course, it is subject to the rider that the information so furnished was the immediate and proximate cause of discovery. If the Police Officer chooses not to take the informant accused to the spot, it will have no bearing on the point of admissibility under S. 27, though it may be one of the aspects that goes into evaluation of that particular piece of evidence."
"Para 14 - Joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 41 be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. Such disclosures by two or more persons in police custody do not go out of the purview of S. 27 altogether. If information is given one after the other without any break almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, there is no good reason to eschew such evidence from the regime of S. 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the Police Officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the stand point of credibility Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 42 and its nexus with discovery. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence."
Testing the confession on the ratio laid down in the aforesaid case the confession cannot be treated to have been admissible.
37. A person has, no doubt, a profound right not to be convicted for an offence which is not established by the evidentiary standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case. Referring to what degree of probability amounts to "proof" is an exercise of the inter- dependence of evidence and the confirmation of one piece of evidence by another, as the simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response.
Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 43
38. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon the reason and common- sense. It must grow out of the evidence in the case.
39. In the present case, the presence of P.Ws. 3, 5 and 7 becomes doubtful in view of the fact that they are not even named in the FIR or a witness of the FIR and inquest and their 161 Cr.P.C. statement was recorded after three days of the occurrence and their conduct of leaving the P.O. immediately after the occurrence, which not only discredits their credibility, but it also impeaches the credibility of P.W. 1. In such circumstances, we feel that the evidence has not been properly considered by the learned Trial Court. The negation of the evidence of P.W. 1 by the medical evidence and the conduct of P.W. 1 of not unfolding the correct manner of the occurrence, not naming P.Ws. 3, 5 and 7 in the first information report also creates reasonable doubt about the claim of P.W. 1 to be the eye witness of the occurrence. Particularly, keeping in view, his averment in the fard-beyan that the deceased received injuries while coming from the house and resorting to firing, which was subsequently improved, perhaps after going through the medical Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 44 evidence, when the version of P.W. 1 changed and he deposed to the effect that the victim received gun shot injuries while lying down on the ground, and this improvement was perhaps, because the doctor suggested that the injury has been caused from a higher place.
40. Hence, from the evidence on record, we come to the conclusion that the prosecution has failed to prove the case against appellants Guddu Rai and Gautam Rai beyond shadow of reasonable doubt. Hence, they are acquitted of the charges by giving benefit of doubt, whereas the other four appellants, namely, Dhananjay Rai, Shambhu Rai, Chandrahash Rai @ Ajit Singh and Om Prakash Rai are concerned, the prosecution has not found any cogent evidence against them to prove the case of the prosecution.
41. Hence, on the basis of discussion made above, the judgment and order of conviction and sentence dated 06.10.2007 and 12.10.2007, respectively, passed by the learned 1st Additional Sessions Judge, Gopalganj in Sessions Trial No. 40 of 2004/53 of 2005 and the judgment and order of conviction and sentence dated 09.09.2009 and 11.09.2009, respectively, passed by learned 3rd Additional Sessions Judge, Gopalganj in Sessions Trial No. 83 of 2006/192 of 2008 are set aside. The appellants are acquitted of the charges. They are on bail, Patna High Court CR. APP (DB) No.1422 of 2007 dt.22-11-2011 45 therefore, they are discharged from the liabilities of their respective bail bonds. So far appellants Guddu Rai and Gautam Rai are concerned, they are in custody and therefore, they are directed to be released forthwith, if not wanted in any other case.
42. Accordingly, all the six appeals are allowed.
(Shyam Kishore Sharma, J.) (Dinesh Kumar Singh, J.) Patna High Court, Dated 22nd November, 2011, DKS/A.F.R.