Patna High Court
Akil Akhtar @ Bholu vs State Of Bihar on 16 July, 2013
Author: V.N. Sinha
Bench: V.N. Sinha, Rajendra Kumar Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.919 of 2009
(Against the judgment of conviction, order of sentence
dated 28/29.08.2009 passed by Ist Additional Sessions
Judge, Gaya in Sessions Trial Nos.
12/2007/72/2006/11/2007/278/2006) =========================================================== Abid Akhtar, S/O Late Haji Abdul Jabbar, R/O Mohalla- Kathakar Talab, Bari Road, Civil Lines, Distt.- Gaya .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s With Criminal Appeal (DB) No. 910 of 2009 =========================================================== Akil Akhtar @ Bholu, S/O Bakhtiyarul Haque Ansari, R/O Mohalla Noor Compound Opposite Civil Line Police Station, Gaya, P.S.- Civil Line (Gaya), Post and Distt.- Gaya .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s With Criminal Appeal (DB) No. 918 of 2009 =========================================================== Javed Akhtar, S/O Late Haji Abdul Jabbar, R/O Mohalla- Kathakar Talab, Bari Road, Civil Lines, Distt.- Gaya .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s With Criminal Appeal (DB) No. 923 of 2009 =========================================================== Faizi Akhtar, S/O Late Haji Abdul Jabbar, R/O Mohalla- Kathakar Talab, Bari Road, Civil Lines, Distt.- Gaya .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 2 With Criminal Appeal (DB) No. 941 of 2009 =========================================================== Md. Rashid Akhtar @ Rashid Akhtar, S/O Late Abdul Jabbar, R/O Kathokar Talab, P.S. Civil Line, Distt.- Gaya .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance :
(In CR. APP (DB) No. 919 of 2009, CR. APP (DB) No. 918 of 2009, CR. APP (DB) No. 923 of 2009, CR. APP (DB) No. 941 of 2009 For the Appellant/s : Mr. Surendra Singh, Sr. Advocate Mr. Kanhaiya Pd. Singh, Sr. Advocate Mr. S.M. Nematullah, Advocate Mr. Abul Kalam, Advocate Mr. Atal Bihari, Advocate (In CR. APP (DB) No. 910 of 2009) For the Appellant/s : Mr. Rana Pratap Singh, Sr. Advocate Mr. Sumant Singh, Advocate Mr. Aaruni Singh, Advocate For the State (In all appeals) : Mr. Ashwani Kr. Sinha, APP Mr. Dilip Kr. Sinha, APP Mr. S.C. Mishra, APP Ms. S.B. Verma, APP Mr. Abhimanuy Sharma, APP For Informant : Mr. Sanjay Singh, Advocate Mr. Pramod Kumar, Advocate =========================================================== CORAM: HONOURABLE MR. JUSTICE V.N. SINHA and HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE V.N. SINHA) Date: 16-07-2013 V.N. Sinha, J. These five appeals have been filed against the two judgments of conviction, orders of sentence dated 28/29.08.2009 passed by Ist Additional Sessions Judge, Gaya in Sessions Trial Nos.
Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 3 11/2007/278/2006, 12/2007/72/2006, arising out of Civil Lines P.S. Case No. 114/05, G.R. Case No. 1144/05 convicting the five appellants for the offence under Sections 302/149, 307/149, 148 of the Indian Penal Code and Section 27 of the Arms Act and directed to undergo rigorous imprisonment for life, 7, 2 years under Sections 302/149, 307/149, 148 of the Indian Penal Code respectively. The appellants have also been directed to pay fine of Rs. 5,000/-, 1,000/- for the conviction under Sections 302/149, 307/149 of the Penal Code respectively. In default of payment of fine, the appellants have been further directed to undergo rigorous imprisonment for 3, 1 month. For the conviction under the Arms Act appellants have been directed to undergo rigorous imprisonment for 4 years. The sentences, however, have been directed to run concurrently.
2. Prosecution case in brief as set out in the fardbeyan of Md. Zahid Khan, son of the deceased Md. Shahjahan Khan recorded in the emergency ward of Anugrah Narayan Medical College Hospital, Gaya on 11.05.2005 at 22.10 hours by Sub-Inspector Nishikant, Officer in charge, Magadh Medical College police station is that he (Zahid Khan) is 25 years old and assists his father in business. It is further stated in the fardbeyan that on the same day i.e. 11.05.2005 at about 6 P.M. he (Zahid Khan) along with his brothers, father was sitting in the shop and accounting in presence of Md. Shahjada, son of Md. Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 4 Samsuddin, resident of Panchayati Akhara, P.S. Kotwali, Wasim, son of Md. Kalim, resident of Hamjapur, P.S. Amas, heard noise/abuses in the scrap shop situate in Kathotar Pond, Bari Road. Having heard the noise/abuses father of Zahid Khan, Zahid Khan along with others present in the shop came out and saw 9-10 miscreants variously armed were abusing them. Father of Zahid Khan asked the miscreants not to abuse. Miscreants, however, refused to listen. Amongst the armed miscreants, Zahid Khan could identify 1. Abid Akhtar 2. Javed Akhtar
3. Rashid Akhtar 4. Faizi Akhtar, all sons of late Zabbar Akhtar, resident of Kathotar Pond, P.S. Civil Lines armed with rifle and revolver 5. Afzal Akhtar, son of Abid Akhtar, resident of Kathotar Pond, P.S. Civil Lines armed with gun and revolver 6. Bholu @ Akil, son of not known, resident of Noor Compound, P.S. Civil Lines along with 3-4 others armed with Lathi and Iron Rod. The miscreants while abusing also attempted to disturb the merchandise available in the shop. Father of Zahid Khan continued to ask the miscreants not to abuse, disturb the merchandise but they did not pay any heed. Amongst the miscreants Javed Akhtar, Rashid Akhtar and Faizi Akhtar stated in one voice that they have been asking for settlement but these persons have not settled the case, should be blown. In the meanwhile, Abid Akhtar shot from his rifle on his father Shahjahan Khan who fell down, the informant Zahid Khan and others became perturbed, shocked. Abid Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 5 Akhtar again attempted to fire but the shot could not fire. Zahid Khan approached his father who had fallen down and saw that he has suffered bullet injury on the left side of his chest, belly, bleeding profusely leading to colouring of his apparel. Meanwhile, Abid Akhtar, Afzal Akhtar and Faizi Akhtar again resorted to firing by their revolver. One of those shots caused grazing injury near his (Zahid Khan) right thumb. The miscreants restrained informant (Zahid Khan) and his men by resorting to aerial firing. Prior to the occurrence there was stampede, miscreants saw the neighbours assembling, resorting to aerial firing made good their escape towards east. Four years prior to the present occurrence also the miscreants named in the fardbeyan attempted to kill his father for which Civil Lines P.S. Case No. 21/2001 was lodged. There was pressure to settle the said case, failing which they were threatening to eliminate. 10-12 days prior to the present occurrence High Court stayed the proceeding of the earlier case which mounted the pressure further. After stay of the proceeding by the High Court Abid Akhtar arrived at Gaya and along with other miscreants threatened his father and witnesses. Information about the threat was given to the Officer in charge Jitendra Narayan Sharma and Mansoor Ahmad, Dy. S.P. but they did not take any action rather put pressure on his father (Shahjahan Khan) to settle the case, failing which he was threatened to be falsely implicated in other false case as he has filed a writ petition. Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 6 Informant (Zahid Khan) further claimed in the fardbeyan that his father has been killed by the aforementioned miscreants in collusion with the two police officers named in the fardbeyan.
3. Besides the informant Md. Zahid Khan, scribe of fardbeyan, S.I. Nishikant, M/s. Saahjahan Khan and Abdul Badud Khan have also signed the fardbeyan as witness. Place of occurrence being scrap shop of deceased Shahjahan Khan situate in Mohalla Kathotar Pond, Bari Road within Civil Lines P.S. the fardbeyan was forwarded to Civil Lines P.S. After receipt of the fardbeyan in the Civil Lines P.S., Civil Lines P.S. Case No. 114 of 2005 dated 12.05.2005 was registered by literate constable Ravindra Sharma under instructions from Officer in charge cum Inspector Jitendra Narayan Sharma at 00.30 hours against six persons named in the fardbeyan for the offence under Sections 302, 307, 147, 148, 149 of the Indian Penal Code and Section 27 of the Arms Act with direction to the Sub-Inspector Prahlad Kumar Bagh to investigate the case. P.K. Bagh having taken charge of investigation prepared the inquest report and then proceeded to Kathotar Pond, Bari Road, Gaya for investigation of the case and learnt that Shahjahan Khan in injured condition has been taken to Magadh Medical College Hospital, wherefrom he has not returned so far. P.K. Bagh thereafter inspected the place of occurrence, which was shown to him by Akram, son of Wasi Ahmad, resident of Kathotar Pond. Place of occurrence of Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 7 the instant case is the cemented Bari Road emanating in the east from Swarajpuri and meeting G.B. Road on the west. Width of the road where dead body of Shahjahan Khan was found is 11' 6 ". Place of occurrence is 3' 6" south and 8 ft. north from the centre of the said road. 5 ft. south of the place of occurrence is a drain and abutting the drain in southern side is a double storey house of the deceased facing north in which his business office is situate. There is 6 ft. passage in the middle of the office premises which bisects the office premises into two rooms. In front of the place of occurrence across Bari Road there is Kathotar Pond field which is fenced by a boundary wall. The triple storey house of the accused persons is situate on the southern side of the Bari Road facing north at a distance of 255 ft. east from the place of occurrence. Another double storey house of the accused persons is just across the road in front of their triple storey house. In the ground floor of the triple storey house there is a room which is akin to a shop in which there is plastic container shop of Md. Rafique. 2 ft. adjacent south of the shop and at a distance of 255' 2" from the place of occurrence .315 bore empty cartridge was recovered. There is electric pole, temple on the western side of the place of occurrence at a distance of 95' 2" and 167' 8" situate north of the road. One bullet mark was found on the eastern side of the electric pole at a distance of 2' 6" from the ground level. The temple is surrounded by a boundary wall and in the middle there is old Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 8 Fig (Peepal) tree. The entrance of the temple is from the eastern side in which grill gate is fixed. There is Shivling on the north-west corner of the temple premises where temple like structure is available and worship is offered. Within the campus of the temple on the eastern wall a pellet was found embedded at a height of 2' 3" from the ground level, which was extracted out. Firing mark was also found at a height of 5' 4'' on the same wall. In front of the temple, electric pole just adjacent north there is a municipal building, in both parts whereof there is a scrap shop of the deceased.
4. The empty cartridge recovered near the shop of Md. Rafique and the pellet extracted from the wall of the temple premises were seized by P.K. Bagh in presence of two independent witnesses i.e. Md. Tahid, son of Abdul Hafiz, resident of Mohalla Kapas Tola, Awadh Kishore, son of late Narayan Prasad, resident of Mohalla Gosai Bag, P.S. Kotwali. From the place of occurrence P.K. Bagh also recovered blood stained ACC cement bag and cotton sheet, which was seized in presence of two independent witnesses i.e. Md. Ahsan, son of Abdur Rehman, Umar, son of Pacho Mian. Having made the aforesaid seizure P.K. Bagh examined Md. Akram who had taken him to the place of occurrence. Md. Akram supported the occurrence. P.K. Bagh also examined Md. Aftab. P.K. Bagh having inspected the place of occurrence, seized empty cartridge and the pellet found there, examined Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 9 two witnesses available in the night of the occurrence and then proceeded to conduct raid along with other police officials so as to arrest the F.I.R. named accused and near Piparpanti Chowk arrested two F.I.R. named accused persons i.e. Abid Akhtar and Bholu @ Akil. One mobile phone was also recovered from Abid Akhtar who during interrogation accepted his guilt and further stated that he has concealed the revolver used in the occurrence in the house of his friend Shakil Ahmad. In the light of the disclosure made by Abid Akhtar, police party in order to recover the revolver used in the occurrence, raided the house of Advocate Shakil Ahmad Khan, resident of Murarpur, P.S. Kotwali and Md. Siraz Khan in presence of two independent witnesses. From the western room in the house of Md. Siraz one 6 round regular revolver was recovered from a person who was trying to conceal himself and disclosed his name as Sazid Khan. Recovered revolver was seized under seizure list prepared by Upendra Kumar, Officer in charge, Kotwali P.S. Sazid Khan further disclosed that Shakil Akhtar Khan, son of Abdul Samad Khan of village Murarpur informed him that the seized weapon has been used in the occurrence which was committed at Kathotar Pond. On the basis of the aforesaid disclosure and seizure of the weapon Kotwali P.S. Case No. 97/05 was lodged. In the light of the aforesaid investigation conducted by P.K. Bagh, Bagh wrote paragraphs 1 to 27 of the case diary and thereafter in compliance of the order of the Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 10 Superintendent of Police, Gaya handed over the investigation of the case to Sri Arun Kumar Dubey, Inspector cum Officer in Charge, Civil Lines P.S. together with the documents and other materials collected during the investigation.
5. Arun Kumar Dubey took charge of the investigation on 12.05.2005 and inspected the place of occurrence on 13.05.2005 along with Sub-Inspector P.K. Bagh at about 10.45 A.M. and drew a sketch map of the place of occurrence. A.K. Dubey recorded the further statement of the informant Zahid Khan and statement of witnesses Md. Shahid Khan, Md. Shahnawaz Khan, Md. Shahzada, Md. Akram, son of Wasi. A.K. Dubey also produced the aforesaid witnesses for recording statement under Section 164 Cr.P.C. A.K. Dubey also visited the place of occurrence along with the technicians of the Forensic Science Laboratory, Patna and Sub-Inspector Amarnath Singh. A.K. Dubey also obtained post mortem report of the deceased. A.K. Dubey in compliance of the order of the Superior Police Officers approached Chief Judicial Magistrate, Gaya for obtaining police remand of Abid Akhtar and Javed Akhtar for 48 hours for their further interrogation. A.K. Dubey also received Memo No. 355 dated 28.05.2005 from the office of the Director, Forensic Science Laboratory, Bihar, Patna containing the memorandum of inspection prepared by the technicians of the Forensic Science Laboratory after visit/inspection of the place of occurrence and Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 11 examination of the arms seized in connection with the occurrence. A.K. Dubey also received instruction from the office of the Superintendent of Police, Gaya bearing Memo No. 2343 dated 19.05.2005 informing him that the occurrence in question is special report case and in compliance of the instructions of the Inspector General of Police, Patna requested the D.I.G., Magadh Range to supervise the occurrence and obtained his supervision note. In the light of the materials collected during investigation and the findings recorded by the D.I.G., Magadh Range in his supervision note A.K. Dubey submitted charge sheet bearing Memo No. 184/05 dated 8.8.2005 against the three F.I.R. named accused, namely, Abid Akhtar, Rashid Akhtar and Bholu @ Akil for the offence under Sections 147, 148, 149, 302, 307 of the Indian Penal Code and Section 27 of the Arms Act. He also received injury report of Zahid Khan on 24.09.2005. Later he also submitted charge sheet against Javed Akhtar and Faizi Akhtar vide charge sheet no. 47/06 dated 20.02.2006 keeping the investigation pending against Afzal Akhtar.
6. In the light of the first charge sheet no. 184/05 dated 8.8.2005 cognizance of the offence was taken and Abid Akhtar, Rashid Akhtar and Akil Akhtar @ Bholu were summoned. After appearance of the accused the case was committed to the court of sessions vide Sessions Trial No. 12/2007.
7. In support of the charge in Sessions Trial No. 12/2007 Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 12 prosecution examined 12 witnesses, namely, P.W. 1 Md. Shahnawaz Khan, son of the deceased, P.W. 2 Md. Shahzada brother in law of the deceased, P.W. 3 Md. Shahid Khan son of the deceased, P.W. 4 Md. Zahid Khan son of the deceased who is also the informant. P.W. 5 Dr. Rajeev Ranjan Das who conducted post mortem on the body of the deceased. P.W. 6 Md. Wasim Akram businessman dealing in scrap. P.W. 7 Prahlad Kumar Bagh first I.O., P.W. 8 Arun Kumar Dubey second I.O., P.W. 9 Dr. Sri Prakash Singh, Resident Surgeon of Magadh Medical College Hospital. P.W. 10 Ashok Raj, Judicial Magistrate Ist Class, Gaya, P.W. 11 Ayodhya Prasad Advocate's Clerk, P.W. 12 Sahdev Ravidas Advocate's Clerk. Out of the aforesaid 12 prosecution witnesses P.Ws. 1 to 4, 6 are the eye witnesses of the occurrence. P.Ws. 5, 9 are the two doctors serving in the Magadh Medical College Hospital, Gaya who conducted post mortem on the dead body of the deceased and examined the injured respectively. P.Ws. 7 and 8 are the two Investigating Officers. P.W. 10 is Judicial Magistrate who examined the eye witnesses under Section 164 Cr.P.C. on 16.05.2005. P.Ws. 11, 12 the two Advocate's Clerk are formal witnesses as they have proved the signatures on different exhibits.
8. The defence has also examined six witnesses, namely, D.W. 1 Jamaluddin, D.W. 2 Md. Irfan Ullah. P.W. 3 Md. Habib on the point of alibi of Abid Akhtar. D.W. 4 Shaligram Prasad, son of late Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 13 Mahavir Prasad, D.W. 5 Chunni Singh, D.W. 6 Shaligram Prasad, son of late Mahavir Prasad. D.W. 4 and 6 Shaligram Prasad is the same person who is Advocate Clerk and has proved the signature on application. D.W. 5 Chunni Singh is also an Advocate Clerk. He also proved signature on documents.
9. Pursuant to supplementary charge sheet no. 47/06 dated 20.02.2006 Javed Akhtar and Faizi Akhtar were summoned and after their appearance case was committed to the court of sessions vide Sessions Trial No. 11/2007.
10. In support of the charge in Sessions Trial No. 11/2007 prosecution examined 14 witnesses. The two additional witnesses P.Ws. 13, 14 are not only Advocate's Clerk but also formal witnesses as they have proved signatures. The eye witnesses in Sessions Trial No. 11, 12/2007 are common but the number of two of the eye witnesses have been changed. P.W. 1, Md. Shahnawaz Khan and P.W. 3 Md. Shahid Khan, both sons of the deceased and eye witness were examined as P.Ws. 1 and 3 in Sessions Trial No. 12/2007. They are also examined as P.Ws. 1 and 3 in Sessions Trial No. 11/2007. The other two eye witnesses of the case have exchanged their number in Sessions Trial No. 11/07 as P.Ws. 2 and 7 of the Sessions Trial No. 11/2007 examined themselves as P.Ws. 6 and 4 in Sessions Trial No. 12/2007. The number of two doctors examined in Sessions Trial No. 12/2007 as P.Ws. 5 and 9 Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 14 has been numbered as P.W. 9 and 5 in sessions Trial No. 11/2007. The two Investigating Officers have been numbered in sessions Trial No. 11/2007 as P.Ws. 6 and 10. The Judicial Magistrate examined himself in Sessions Trial No. 12/2007 as P.W. 10 but in Sessions Trial No. 11/2007 he is P.W. 8. P.W. 11 in Sessions Trial No. 11/2007 is Aditya Paswan who is officer of Forensic Science Laboratory, Patna, he was not examined in Sessions Trial No. 12/2007. P.W. 12 of Sessions Trial No. 11/2007 was examined as P.W. 11 in Sessions Trial No. 12/2007. P.Ws. 13 and 14 of Sessions Trial No. 11/2007 are two Advocate's Clerk who were formal witnesses proving the signature and were not examined in the earlier Sessions Trial No. 12/2007.
11. The trial court having considered the evidence led in Sessions Trial No. 12, 11 both of 2007 wrote two separate judgments of conviction as also passed two separate order of sentence dated 28/29.08.2009 which has been impugned in Cr. Appeal Nos. 910, 919, 941 of 2009 and 918, 923 of 2009. Prosecution case and the evidence led in support of the same being substantially common, the five appeals challenging the two separate judgment/order dated 28/29.08.2009 have been heard together and are being disposed of by this common judgment.
12. Learned counsel for the appellants assailed the conviction of the appellants and submitted that prosecution case of Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 15 attack on the deceased on the platform abutting his office is untrue as according to learned counsel the incident has occurred elsewhere, possibly near the shop of Md. Rafique which is at a distance of 255 ft. on the eastern side from the office as one empty cell was found by the Investigating Officer there or in front of the scrap shop of the deceased as stated by the informant in the fardbeyan or near the temple, electric pole, which is near the scrap shop of the deceased at a distance of 100 ft. east from the office of the deceased where mark of firing was found and one pellet was extracted from the wall of the temple premises, evidence of shot having hit the electric pole was also found by the 1st Investigating Officer during inspection of Place of Occurrence in the night of occurrence itself. In this connection, it is further pointed out with reference to the evidence of the eye witnesses including the informant that accused persons 10 in number resorted to indiscriminate firing at the office of the deceased from a close range of about 8-10 ft. vide evidence of P.W. 1 Shahnawaz Khan paragraphs 23, 24 and 29, P.W. 2 Md. Shahzada Khan paragraphs 8, 9 and 15, P.W. 3 Md. Sahid Khan, P.W. 3 paragraphs 1, 20, P.W. 4 informant Zahid Khan paragraph 26, yet deceased suffered only one shot and the informant suffered grazing injury on his right thumb and no objective evidence of firing like the bullet mark on the wall of the office, bullets, pellets, wads were recovered by the Investigating Officer from the place of occurrence i.e. Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 16 the platform or the road in front of the office of the deceased. In this connection, learned counsel also referred to the evidence of P.W. 7 first I.O. Sri P.K. Bagh paragraphs 7, 15 and 21, P.W. 8 second I.O. Sri A.K. Dubey paragraph 16, 23. Learned counsel with reference to the judgment of the Supreme Court in the case of State of Punjab Vs. Pritam Singh and others, AIR 1977 Supreme Court 2005, paragraph 7, Swaran Singh Vs. State of Punjab, AIR 2000 Supreme Court 2017, paragraph 25, Bijoy Singh and another Vs. State of Bihar, AIR 2002 Supreme Court 1949 at page 1954 and Suresh Chaudhary Vs. State of Bihar, (2003) 4 Supreme Court Cases 128, paragraph 11 submitted that failure of the prosecution to notice, recover and produce the objective evidence of firing from the place of occurrence is indicative of the fact that the place of occurrence is elsewhere and not the one asserted by the prosecution. Learned counsel with reference to the judgment of the Supreme Court in the case of Hasan Ahmad Mai Isha and others etc. Vs. State of Gujarat, AIR 1980 SC 437 submitted that the prosecution story that 10 persons fired indiscriminately at the deceased and his five companions including informant from their firearms from a close distance of 8-10 ft., yet deceased suffered one firearm injury and the informant suffered grazing injury in his right thumb, other prosecution witnesses standing in close vicinity did not suffer any injury, is wholly unworthy of belief. Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 17
13. Learned counsel for the appellants next submitted that testimony of the eye witnesses, who are none else but the sons, relative, merchandise supplier of the deceased, is fit to be rejected as their evidence that the deceased was shot by the appellant Abid Akhtar at the platform while he was trying to reason out with the assailants not to abuse him from the middle of the road i.e. from a distance of about 8 ft. is not supported by the medical evidence of Dr. Rajeev Ranjan Das who conducted post mortem examination on the deceased and was of the opinion that the shot was fired from a considerable height and its direction was downwards. It is submitted that in view of the medical evidence deceased who was a tall man of 6 ft. and at the time he was shot was standing on a platform which is 8-9 inches above the road level could not have suffered wound of entry over 6th Intercostal Space (6th Rib) and wound of exit in the left side of thoracic 9th Vertebra as the shot was fired from middle of the road. In this connection, learned counsel referred to the evidence of P.W. 1 Shahnawaz Khan paragraph 23 that the accused and the deceased were standing face to face. In paragraph 24 P.W. 1 further stated that the deceased was standing on a platform which was 9-10 inches in height. In paragraph 38 P.W. 1 further stated that the deceased was shot while standing on the platform. In paragraph 28 P.W. 1 also stated that the deceased was a tall and well- built man and that he was taller than accused Abid Akhtar. In paragraph Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 18 29 P.W. 1 stated that the accused and the deceased were facing each other and that they were at a distance of 7' 8". Having referred to the aforesaid evidence of P.W. 1 learned counsel further referred to paragraph 2 of the cross-examination of P.W. 5 Dr. Rajeev Ranjan Das in Sessions Trial No. 12/2007 and P.W. 9 in Sessions Trial No. 11/2007 who conducted post mortem on the dead body of the deceased. Dr. Das admitted in the said paragraph that entry wound was found at anterior auxiliary line towards 6th Intercostal Space and wound of exit could be caused from a considerable height. Dr. Das further accepted in the same paragraph that the injury is not caused from same surface level in the normal case. He further stated that direction of wound was downward. In paragraph 3 Dr. Das further stated that the injury to the deceased would be caused if the assailant was standing on the left hand side of the deceased. In the light of the aforesaid medical evidence, it is submitted that the prosecution evidence being highly interested witnesses should not be accepted.
14. Learned counsel for the appellants further submitted that in view of the prosecution case that five appellants along with one another Afzal Akhtar were indiscriminately firing from their rifle, revolver from a close distance of 8 ft. deceased, informant could not have suffered single, grazing injury on the thumb of his right hand respectively. According to counsel for the appellants injury suffered by Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 19 informant is a self inflicted injury with a view to establish his presence at the place where his father was done to death. In this connection, he referred to the requisition issued by the police officer of Magadh Medical College Hospital P.S. dated 11.05.2005 for examination of informant (Zahid Khan) by Dr. S.P. Singh but informant Zahid Khan produced himself for examination by Dr. Singh on 12.05.2005 at 10.30 A.M. Learned counsel for the appellants further submitted that X-ray report shown to Dr. Singh on 12.05.2005 was never produced either before the Investigating Officer or in court. It was also submitted by the counsel for the appellants that Zahid Khan having obtained X-ray on his own without any advice from Dr. Singh, it was for Zahid Khan to have produced the prescription written by the doctor on whose advice he obtained X-ray and produced it before Dr. Singh on 12.05.2005, to also produce the prescription, x-ray before the Investigating Officer so as to enable the Investigating Officer to confirm the case of Zahid Khan that he having sustained grazing injury in the same occurrence in which his father was killed was advised by the doctor to obtain X-ray. According to counsel for the appellants Dr. Singh having found the injury sustained by Zahid Khan to be simple and having not advised Zahid Khan to obtain X-ray, the story of having obtained X-ray report is being introduced in the prosecution case only to establish the presence of the informant at the scene of crime which cannot be accepted for his failure Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 20 to appear before the doctor to whom he was referred by the police officer until the next day of the occurrence i.e. 12.05.2005 at 10.30 A.M. and to produce the prescription, x-ray before the I.O. and court. From the evidence of P.W. 9 Dr. S.P. Singh, it is quite evident that the X-ray produced before him by the informant P.W. 4 on the next day of the occurrence at 10.30 A.M. was the X-ray of another person and not of the informant as he having suffered grazing injury on his right thumb his X-ray could not have shown bullet embedded in the index finger of his right hand. P.W. 9 having found the injury suffered by P.W. 4 circular, the prosecution case that informant suffered grazing injury in the same occurrence is false and only an attempt to establish the presence of the informant at the place of occurrence at the time of occurrence.
15. Learned counsel for the appellant further submitted that fardbeyan of the present case was lodged after considerable delay of more than 3 hours as according to the prosecution witnesses the deceased suffered rifle injury at around 6 P.M. and reached Magadh Medical College Hospital at around 7 P.M. vide evidence of P.W. 3 Md. Sahid Khan paragraph 25 but the fardbeyan was recorded at 10.10 P.M. though police station is in the hospital campus where the Dy. S.P. along with police force also reached at about 7.20 P.M. vide evidence of Md. Wasim Akram P.W.-6 paragraph 12. According to counsel for the Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 21 appellants delay in recording the fardbeyan is either because the prosecution witnesses were not available at the scene of the crime or they were not sure about the identity of the accused persons and chose to implicate the entire family of Abid Akthar on account of previous enmity. In this connection, it is further submitted that delay in lodging the fardbeyan was required to be explained by the prosecution by examining the scribe of the fardbeyan S.I. Nishikant and the witnesses of the fardbeyan Saahjahan Khan and Abdul Badud Khan as also the Dy. S.P. who reached the hospital in the evening of the occurrence at about 7.20 P.M. Delay in lodging the fardbeyan having not been explained, the same is fatal to the prosecution case in absence of any explanation for the delay. Reliance in this connection is placed on the judgment of the Supreme Court in the case of Awadhesh and another Vs. State of Madhya Pradesh, AIR 1988 Supreme Court 1158, paragraph 5, Kanhai Mishra alias Kanhaiya Misar Vs. State of Bihar, AIR 2001 Supreme Court 1113, paragraph 7, Bijoy Singh and another Vs. State of Bihar, AIR 2002 Supreme Court 1949, Bachhu Narain Singh Vs. Naresh Yadav and others, AIR 2004 Supreme Court 3055, paragraph 13 and Om Parkash Vs. State of Haryana, (2006) 2 Supreme Court Cases 250.
16. Learned counsel for the appellants further submitted that disclosure statement made by appellant Abid Akhtar soon after his Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 22 arrest in the night of occurrence itself, on the basis of which one revolver was recovered from Sazid Khan cannot be relied upon against the appellant Abid Akhtar as neither the disclosure statement has been exhibited nor any witness examined by the prosecution to establish the disclosure statement made by Abid Akhtar. In this connection, learned counsel further pointed out that neither the revolver was seized from the possession of appellant Abid Akhtar nor it was established that the revolver was in working condition and that the revolver was recently fired. In the light of the aforesaid submission, it is submitted that there is no nexus established between the seizure of the revolver and the commission of the crime.
17. Learned counsel for the appellant finally submitted that it is admitted fact that there is serious enmity between the parties. Both the parties have filed criminal cases against each other. Civil Lines P.S. Case No. 21/01 and Chandauti P.S. Case No. 77/01, compromise whereof was refused by the deceased, have already ended in acquittal of the appellants. According to P.W. 1 Shahnawaz Khan, paragraphs 13, 14 the accused persons have also initiated false prosecution against him. In the aforesaid background, it is submitted with reference to the judgment of the Supreme Court in the case of State of Punjab Vs. Pritam Singh and others, AIR 1977 Supreme Court 2005 that where there is serious enmity between the parties motive for the informant to implicate the Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 23 accused and motive for the accused to kill the informant is required to be balanced. The truth of the prosecution case can only be ascertained from surrounding circumstances. In this connection, further reliance is placed over the judgment of the Supreme Court in the case of Budhwa, alias Ramcharan and others Vs. State of Madhya Pradesh, AIR 1991 Supreme Court 4 and it is submitted that in a case of group rivalry, there is tendency to falsely implicate as many persons as possible. Where the number of assailants exceeds the number of injuries caused to the deceased, there is a sure indication of false implication of the accused. In the instant case, the deceased sustained single injury from a distance, which is indicative of the fact that the prosecution party has sought to falsely implicate the entire family of the appellants.
18. Counsel for the State, informant have refuted the aforesaid submissions. It is submitted by them that as per fardbeyan/ First Information Report the informant, P.W. 4 along with the deceased Shahjahan Khan and P.Ws. 1, 2, 3 and 6 was at the scrap shop of the deceased, which is situate on Kathotar Pond, Bari Road. Those who were present in the shop hearing hulla came out of the shop, saw the appellants and one Afzal Akhtar variously armed with rifle, gun and revolver along with 3-4 unknown armed with lathi, iron rod saying that the deceased and his family will not compromise the cases, therefore kill them. Appellant Abid Akhtar fired from his rifle causing injury to Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 24 Shahjahan Khan on his left side between the chest and stomach. Abid Akhtar tried to fire again but his rifle got jammed, whereafter he took out his revolver and fired along with Afzal Akhtar, Faizi Akhtar, one such shot grazed the right thumb of the informant. Appellants thereafter retreated towards east. The motive for the occurrence is that earlier also the appellants had attacked, injured the deceased, for which Civil Lines P.S. Case No. 21/01 was registered and the appellants were putting pressure to compromise the case. About 10-12 days earlier the High Court granted stay in the aforesaid case, after obtaining stay order Abid Akhtar came to Gaya and was threatening the deceased and his witnesses. Information in this regard was given time and again by the deceased to the Officer in charge, Civil Lines P.S. and the Dy. S.P. but they did not respond.
19. Learned counsel next submitted that the evidence of the eye witnesses including informant is consistent that the witnesses along with the deceased were in the office of the scrap shop at about 6 P.M. The witnesses have described the office as a pucca structure with concrete roof on Bari road facing north and opens up on Bari road which is east to west. Across the road in front of the scrap office is Kathotar Pond field. On the eastern end of Bari road is the house of the appellants. It is consistently stated by the witnesses that the appellants came from east and after committing the occurrence also retreated Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 25 towards east. Further down on the road towards west is the scrap shop (Kabarkhana) of the deceased, which is bounded by scrap sheets facing south. The office and scrap shop (Kabarkhana) are two distinct places. It is submitted that eye witnesses have consistently stated in court that all the appellants stood on Bari road facing towards the office i.e. towards south. The deceased came out of the office along with the eye witnesses and stood on the platform constructed over the drain running parallel to the Bari road. The platform is 8-10 inches above the Bari road level, which would appear from the sketch map prepared by the Investigating Officer and is Ext. 12. The witnesses have consistently stated that the deceased after being shot fell down with part of his body on the platform and part on Bari road. According to learned counsel Investigating Officer has categorically stated in his evidence that he collected blood samples from the place where the deceased had fallen, which fact according to learned counsel for the informant is further established from the evidence given by the eye witnesses. In view of the aforesaid prosecution evidence, it is submitted that place of occurrence where the deceased was shot and had fallen is clearly established. Learned counsel further submitted that eye witnesses have categorically stated that appellant Abid Akhtar was standing on Bari road while the deceased was standing on the platform 8-10 inches above the road level. The fired shot hit the deceased on left side of his body between the chest and Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 26 stomach, whereafter he fell down with part of his body on the platform and part on Bari road. The witnesses are consistent in saying that the rifle used by appellant Abid Akhtar got jammed and he could not fire from his rifle second time. The deceased received one single bullet shot from the rifle by appellant Abid Akhtar. When the rifle got jammed Abid Akhtar took out a revolver from his waist and along with two others, namely, appellant Faizi Akhtar and Afzal Akhtar (absconder) fired from their revolver. The witnesses have consistently stated that one such fire from the revolver injured informant, P.W. 4 when the bullet grazed his right thumb.
20. Learned counsel further submitted that all the eye witnesses, P.Ws. 1, 2, 3, 4 and 6 were present at the place, time of occurrence. They are consistent in their deposition about the place, manner of occurrence and during their cross-examination the defence has not been able to impeach the credibility of the statements made by them as eye witness.
21. Learned counsel further submitted that post mortem was conducted by P.W. 5. He has proven the post mortem report, Ext. 6. P.W. 5 in his deposition has described the wounds which is consistent with the wounds mentioned in the post mortem report. He has found the wound of entry on the left side at anterior, auxiliary line over 6 intercostal space with irregular margin and fractured with invert Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 27 dislocation of underline portion of 6th rib. The exit wound with everted and irregular margin on the left side of thoracic 9th vertebra fractured with outward dislocation. The doctor, P.W. 5 has found both the wounds communicating. According to learned counsel nature of wound is consistent with the manner of occurrence as stated by the witnesses i.e. the bullet has travelled in a straight line entering the thoracic area of the body and also exiting from the thoracic area of the body. It can be said that the bullet travelled in the straight line from the time it was fired. A small deviation in the trajectory of the bullet can be attributed to the bullet hitting the 6th rib causing its fracture and moving a little downwards fracturing the 9th thoracic vertebra before exiting the body. Since the 6th rib and the 9th thoracic vertebra are more or less parallel to each other, the bullet can be said to have travelled in straight line. Suggestion that the bullet was fired from the higher pedestal and travelled downwards is rather far-fetched and is not sufficient to disbelieve the manner of occurrence. According to learned counsel the answer given by P.W. 5 in his cross-examination, paragraph 2 is in contradiction with the injury described by him in paragraph 1 and 2 of his examination in chief. Learned counsel with regard to the injury suffered by informant, P.W. 4 submitted that doctor, P.W. 9 who examined P.W. 4 has categorically stated that the police requisition was received for examination of P.W. 4 on 11.05.2005 but he examined Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 28 P.W. 4 on 12.05.2005 at 10.30 A.M. and during examination of P.W. 4 found injuries caused by a bullet in the right index finger of P.W. 4. P.W. 9 has further stated that he examined the X-ray plate and found foreign body near the 2nd carpophalynial joint. P.W. 9 also opined that the injury caused was within 24 hours. According to learned counsel deposition of doctor, P.W. 9 clearly demonstrates that the ocular evidence i.e. manner of occurrence described by the eye witnesses is supported and complemented by the medical evidence. It is further submitted that the injury sustained by the informant, P.W. 4 in his right hand is supported by all the eye witnesses in their deposition is also supported by doctor, P.W. 5 who in his deposition has categorically defined the nature of injury and its age which P.W. 4 sustained in the same transaction in which the deceased was killed.
22. According to learned counsel the suggestion that P.W. 4 is not the eye witness or was not present at the place of occurrence is presumptuous and is not based on materials on record. Any adverse inference cannot be drawn on question as to why P.W. 4 was not examined in the night intervening 11.05.2005-12.05.2005 for the reason that it was his father who was killed and his post mortem was being conducted in the night and last rites also took place immediately thereafter. According to learned counsel, natural conduct of son would be that he was disturbed and would not be bothered about his injury, Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 29 which according to doctor's opinion was simple in nature. The most important aspect is that P.W. 9 who examined P.W. 4 has categorically stated that the injury was caused within 24 hours. The only inference which can be drawn is that P.W. 4 was injured in the same transaction in which his father was killed.
23. Learned counsel further submitted that motive for the occurrence has been indicated in the fardbeyan/ First Information Report itself. The accused persons wanted the deceased and his family members to compromise the cases instituted against them. The eye witnesses have categorically deposed about the manner in which threats were being given and the complains which they had made. Prior to the date of occurrence the deceased himself instituted two cases, namely, Civil Lines P.S. Case No. 21/01, Ext. 18 and Chandauti P.S. Case No. 77/01, Ext. 17D. After 12.05.2005 P.W. 1 also instituted two cases, namely, Chandauti P.S. Case No. 150/05, Ext. 17A and Kotwali P.S. Case No. 174/06, Ext. 16B. According to learned counsel the aforesaid cases have been precipitated for forcing the deceased and others to compromise the cases. The informant is categorical in saying that grant of stay by the High Court emboldened the appellant Abid Akhtar, on being threatened the deceased made complaint to the Regional I.G. of police on 10.05.2005, Ext. X and was killed in the evening of 11.05.2005. The fear of Abid Akhtar and his group is such that two of the charge sheet Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 30 witnesses, namely, Aftab and Akram on being threatened refused to depose in the present case. The other witnesses have deposed as they have been provided with body-guards and it was only because of security being provided to the witnesses that they could depose in court against the appellants.
24. Learned counsel finally submitted that occurrence took place in the evening at 6 P.M., whereafter his father was taken to A.N.M.M.C. Hospital where he was declared brought dead. The fardbeyan is said to have recorded at 10.10 P.M. It is submitted that there is presumption that there is delay in recording of fardbeyan and the delay is attributed to the informant, P.W. 4. It is pointed out that though there is no material on record to suggest that P.W. 4 was not giving his statement and thus delaying the recording of the fardbeyan. On the other hand, there can be presumption that the police was not recording the fardbeyan as the Dy. S.P. who visited the hospital immediately after the occurrence was trying to manipulate on behalf of the accused so that true facts may not be recorded. After all, the informant has categorically stated in the fardbeyan that police officials were not helping the deceased, in fact, were hand-in-glove with the appellants. Further delay of about 3 hours cannot be taken as delay so as to suspect the prosecution case, more so, immediately after the occurrence the deceased has been taken to hospital where he has been declared brought Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 31 dead.
25. In support of the aforesaid submission, counsel for the State, informant relied upon the judgment of the Supreme Court in the case of Brahm Swaroop and another Vs. State of Uttar Pradesh, (2011) 6 Supreme Court Cases 288, paragraphs 26, 28, 32 and submitted that the testimony of related, interested witness though required to be examined with care and caution but the testimony of injured witness should be accepted. Learned counsel also relied on the judgment of the Supreme Court in the case of Abdul Sayeed Vs. State of Madhya Pradesh, (2010) 10 Supreme Court Cases 259 paragraphs 32 to 39 and submitted that if there is inconsistency between ocular and medical evidence, ocular evidence should prevail. In this connection, learned counsel also placed reliance on the judgment of the Supreme Court in the case of Vishnu alias Undrya Vs. State of Maharashtra, (2006) 1 Supreme Court Cases (Cri) 217.
26. In order to appreciate the rival submissions made by the counsel for the parties, the prosecution case as set out in the fardbeyan and deposed by the eye witnesses in court in Sessions Trial No. 12/2007 is required to be examined in detail. The prosecution story set out in the fardbeyan of informant, P.W. 4 is that on 11.05.2005 at about 6 P.M. the informant, his brothers, father was present in the shop and were busy accounting in presence of P.W. 2 Md. Shahzada, P.W. 6 Md. Wasim Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 32 Akram. Those present in the shop heard noise/ abuses in the scrap shop situate in Kathotar Pond, Bari Road. Having heard noise/abuses father of informant along with others present in the shop came out and saw 9- 10 miscreants variously armed were abusing those present in shop. Father of informant asked the miscreants not to abuse. The miscreants refused to listen. Amongst the armed miscreants informant identified Abid Akhtar leading his three brothers, namely, Javed Akhtar, Rashid Akhtar and Faizi Akhtar, all sons of late Zabbar Akhtar and Afzal Akhtar, son of Abid Akhtar armed with rifle/gun, revolver along with Akil Akhtar @ Bholu and 3-4 unknown armed with lathi and iron rod. The miscreants while abusing also attempted to disturb the merchandise available in the shop. Father of the informant continued to ask the miscreants not to abuse, disturb the merchandise but the miscreants did not listen. Amongst the armed miscreants appellants Javed Akhtar, Rashid Akhtar and Faizi Akhtar stated in one voice that they have been asking for settlement of the case but the father of the informant has refused to settle the case, should be blown. Appellant Abid Akhtar, in the meanwhile, shot from his rifle on the father of the informant, who fell down. The informant and others became perturbed, shocked. Appellant Abid Akhtar again attempted to fire from his rifle but the shot could not fire. Informant approached his father who had fallen down and saw that he had suffered bullet injury on the left side of his chest, Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 33 belly and was bleeding profusely, which also coloured his apparel. Abid Akhtar, Afjal Akhtar and Faizi Akhtar again resorted to firing by their revolver. One of the shots caused grazing injury near the right thumb of the informant. The miscreants restrained the informant and his men by resorting to aerial firing. Before the occurrence there was stampede, miscreants saw the neighbours assembling, resorting to aerial firing made good their escape towards east. Aforesaid prosecution case of assault on the father of the informant as also on the informant in the scrap shop of his father has not been reiterated by the prosecution witnesses including the informant P.W. 4 in court, as in court they have categorically deposed that the assault on the deceased was made by the appellants on the platform raised over the drain abutting Bari road on the southern flank while the informant, deceased and others were present and accounting in the scrap office, which is situate adjacent south of the drain on Bari road, over which platform has been raised. The informant, deceased and others present in the office while accounting heard noise/ abuses, came out of the office and asked the appellants not to abuse but the appellants led by Abid Akhtar refused to listen and 4 of them i.e. appellants Abid Akhtar, Javed Akhtar, Faizi Akhtar, Rashid Akhtar and one absconder Afzal Akhtar resorted to indiscriminate firing causing fatal, simple injury to the father of the informant and informant respectively. As per evidence of first I.O., Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 34 P.W. 7 paragraph 7 it is quite evident that scrap shop of the deceased is situate in a municipal building on the northern flank of Bari road at a distance of about 131 ft. between the temple and electric pole which is at a distance of 167' 8", 95' 2" respectively from the platform where the deceased had fallen after being shot by rifle shot and admittedly the scrap shop and the scrap office of the deceased are situate in two different buildings, one on the southern flank and the other on the northern flank of the Bari road at a distance of 100 ft. vide paragraph 12 of informant P.W.4. In view of the categorical case of the prosecution in the fardbeyan that occurrence took place in the scrap shop, it was incumbent upon the informant and the prosecution witnesses to have explained the departure made by them about the place of occurrence in their evidence deposed in court, especially when first I.O., P.W. 7 in paragraphs 6, 7 of his evidence has categorically stated that he came to the place of occurrence along with Akram, son of Wasi Ahmad, resident of mohalla Kathotar Talab in the night between 11-12.05.2005 and found bullet mark on the eastern wall of the aforesaid temple and electric pole at 2' 3", 5' 4" and 2" 6" from ground level respectively and extracted one pellet from the eastern wall. In view of the categoric evidence of the first I.O. that he found mark of firing near the scrap shop of the deceased on the eastern wall of the temple, electric pole situate west, east of the scrap shop respectively, it was incumbent upon Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 35 the prosecution witnesses to have explained the objective evidence of firing found by the Investigating Officer west, east of the scrap shop. It was also incumbent upon the prosecution to have examined Akram, son of Wasi Ahmad who took the Ist Investigating Officer, P.W. 7 not only to the platform where the deceased received gun shot injury but also to the temple, electric pole and shop of Rafique situate in double storey house of the accused on the northern flank of Bari road at a distance of 255' 2" east from the platform where .315 bore shell was found for explaining the manner in which evidence of firing was noticed on the eastern wall of the temple, electric pole on the western side of the platform and .315 bore shell was found at a distance of 255' 2" east of the platform. Examination of Akram, son of Wasi Ahmad was necessary to unfold the prosecution story in order to appreciate the manner in which evidence of firing shot was found east and west of the scrap shop of the deceased over the eastern wall of the temple and electric pole affixed east of the scrap shop, as both the investigating officers, P.Ws. 7, 8 in paragraphs 21, 16 of their evidence categorically stated that they did not find any empty shell of bullet, pellet within a radius of 15-20 ft., 200 ft. from the place of occurrence. From petition dated 11.08.2005 filed by the informant before the Chief Judicial Magistrate, Gaya as also the order considering the said petition; it does not appear that Akram, son of Wasi Ahmad, who took the Investigating Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 36 Officer to the place of occurrence was under any threat not to depose in the trial. It also does not appear from paragraph 8 of the evidence of informant, P.W. 4 who was examined in court on 13.12.2006 that Akram, son of Wasi Ahmad was under any threat from the accused persons not to depose in the court. Prosecution should have examined aforesaid Akram to explain the objective evidence of firing found near the scrap shop of the deceased. Failure to examine Akram has caused prejudice to the defence. It may be stated here that learned counsel for the informant is incorrect in submitting that Investigating Officer has stated in his evidence that he collected blood samples from the place where the deceased had fallen. From paragraph 9 of the evidence of first I.O., P.W. 7, it would appear that he had seized from the place of occurrence one blood stained cement bag and cotton sheet. In his entire evidence first I.O. has not stated that he recovered blood stained earth from the place of occurrence.
27. Father of the informant having suffered rifle injury at about 6 P.M., was taken to A.N.M.M.C. Hospital where he reached at about 7 P.M., the doctor having examined declared him brought dead vide evidence of P.W. 3 Md. Shahid Khan, paragraph 25. Dy. S.P. with police force also arrived at the hospital at about 7.20 P.M., vide paragraph 12 of the evidence of P.W. 6 Md. Wasim Akram, yet the fardbeyan of informant Md. Zahid Khan was recorded by S.I. Nishikant, Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 37 Officer in charge, Magadh Medical College P.S. at 10.10 P.M. in presence of Md. Saahjahan Khan and Abdul Badud Khan who also put signature on the fardbeyan as witness. Prosecution has neither examined Nishikant, the scribe of the fardbeyan nor the two attesting witnesses of the fardbeyan, namely, Md. Saahjahan Khan and Abdul Badud Khan to explain the delay of more than 3 hours in recording the fardbeyan. P.W. 4 informant and other prosecution witnesses have also not explained the delay caused in recording the fardbeyan. Submission of the counsel for the informant that Officer in charge of Civil Lines P.S. Jitendra Narayan Sharma and Mansoor Ahmad, Dy. S.P. against whom allegations have been set out in the fardbeyan itself were responsible for causing delay in recording of the fardbeyan does not inspire confidence as no sooner informant recorded his fardbeyan at 10.10 P.M. the scribe of the fardbeyan examined the dead body of the deceased Shahjahan Khan and prepared inquest report on 11.05.2005 at 22.45 hours and thereafter forwarded the fardbeyan to Civil Lines P.S. through Chaukidar 6/5 Ram Bachan Paswan. After receipt of fardbeyan in Civil Lines P.S., Civil Lines P.S. Case No. 114/05 dated 12.05.2005 was registered by literate constable Ravindra Sharma under instruction from Inspector Jitendra Narayan Sharma on 12.05.2005 at 00.30 hours with direction to S.I. P.K. Bagh to investigate the case. P.K. Bagh having taken up the investigation proceeded to Kathotar Talab, Bari Road, Gaya for Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 38 investigation of the case in the night itself and inspected the place of occurrence shown by Akram, son of Wasi Ahmad, resident of Kathotar Pond. Having inspected the place of occurrence and made recoveries P.K. Bagh organized a police team, conducted raid to arrest the named accused persons and succeeded in arresting the assailant Abid Akhtar and Akil Akhtar @ Bholu during the night itself, who made disclosure statement. In the light of the disclosure statement Investigating Officer further succeeded in making recovery of the revolver used in the occurrence, for which a separate case under the Arms Act was also registered in the same night. It would, thus, appear that police party was quite active in conducting the investigation after the fardbeyan was recorded by informant, P.W. 4 at 10.10 P.M. on 11.05.2005 and the submission that it was the police authorities which caused delay in recording the fardbeyan does not appear to be correct and inspire confidence.
28. There is yet another aspect of the matter that informant P.W. 4 having accompanied his father to the hospital, reached the hospital at about 7. P.M. and obtained O.D. slip from the Officer in charge for examination of his injury in the same evening on 11.05.2005, Ext. 9, perusal whereof indicates that before obtaining the O.D. slip addressed to the Medical Officer, A.N.M.M.C. Hospital he had already been treated by a private doctor for grazing injury suffered by him in his Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 39 right thumb. Informant, P.W. 4 for the reasons best known to him did not appear before the Medical Officer, A.N.M.M.C. Hospital, to whom the said O.D. slip was addressed in the evening/ night of occurrence and chose to appear before P.W. 9 on 12.05.2005 at 10.30 A.M., perhaps for the reason that he could not obtain X-ray during the evening/ night of 11.05.2005. P.W. 4 having not produced the prescription of the private doctor who advised him for X-ray as also the X-ray either before the Investigating Officer or in court, his case that he underwent X-ray for the grazing injury caused in his right thumb, could not be confirmed during investigation, trial. Submission of the learned counsel for the informant that informant, P.W. 4 having recorded his fardbeyan on 11.05.2005 at 10.10 P.M. was concerned about the post mortem which was conducted on 12.05.2005 at 1.30 A.M. and burial also took place immediately thereafter, as such, could not appear before the Medical Officer, P.W. 9 until 12.05.2005, 10.30 A.M., is wholly incorrect in view of the evidence of P.W. 3, paragraph 14 where P.W. 3 has categorically stated that dead body of his father was handed over to them at about 1 A.M., whereafter the same was taken to the residence and kept for about 13-14 hours. It is, thus, evident from the evidence of P.W. 3 that burial of the deceased had been performed on 12.05.2005 at about 1 P.M. or thereafter and the submission that he could not appear before Dr. S.P. Singh, P.W. 9 in the evening/ night of 11.12.05.2005 Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 40 does not appear to be correct and inspire confidence.
29. From the evidence of P.W. 1, Md. Shahnawaz Khan, it is quite evident that deceased was a tall man over 6 ft. in height and well built and at the time of attack he was standing on a platform, which was 9-10 inches above the road level. Appellant Abid Akhtar is shorter in height than the deceased and at the time of assault was standing on the road facing the deceased. At the time of assault deceased and assailants were standing face to face at a distance of about 8 ft. The injury suffered by the deceased could not have been caused from the road level as according to autopsy surgeon the injury was caused from a considerable height and direction of wound was downward.
30. It is not in dispute that the appellants and the members of prosecution party are daggers drawn having serious enmity between them and they have been lodging criminal cases against each other. Three of the criminal cases lodged by the prosecution party against the appellants bearing Civil Lines P.S. Case No.21/01 referred to in the fardbeyan, Chandauti P.S. Case No. 77/01 referred to in the evidence lodged prior to the occurrence and Chandauti P.S. Case No. 150/05 lodged after the occurrence have ended in acquittal of the accused persons, which would appear from the supplementary affidavit filed on behalf of the appellants on 27.06.2013 but such acquittal does not mean that the appellants had no motive to commit the crime as there is deep- Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 41 rooted enmity between them which would be evident from the different cases filed by them against each other not only in the court below but also in this Court vide Cr.W.J.C. No. 123 of 2001(Md. Shahajahan @ Md. Shahjahan Khan Vs. The State of Bihar and others), Cr.W.J.C. No. 165 of 2005 (Md. Shahjahan Khan Vs. The State of Bihar and others) and Cr. Misc. No. 4582 of 2005 (Aabid Mian @ Aabid Akhtar Vs. The State of Bihar and others), the evidence of P.W. 1 Shahnawaz Khan paragraphs 13, 14 that accused persons have also initiated false cases against them. Existence of motive, however, is not enough for conviction. Conviction is to be made placing reliance on cogent evidence, provided prosecution has been able to establish date, time, manner of occurrence and identity of the accused persons is established beyond reasonable doubt.
31. In view of discussion made in paragraphs 26 to 30 above, notwithstanding the evidence of eye-witnesses, existence of motive, it is not safe to maintain the conviction of the appellants as prosecution/eye-witnesses have failed to explain the delay in lodging the fardbeyan, shifting of the place of occurrence from scrap shop of the deceased to his office even by examining Akram, son of Wasi Ahmad who took the first Investigating Officer to the place of occurrence in the night itself. They are entitled for grant of benefit of doubt. Accordingly, Judgment of conviction, order of sentence dated 28/29.08.2009 passed Patna High Court CR. APP (DB) No.919 of 2009 dt.16-07-2013 42 in Sessions Trial Nos. 11/2007/278/2006, 12/2007/72/2006 is set aside. Appellants are acquitted of the charge levelled against them. Appellant Abid Akhtar is directed to be released forthwith, if not wanted in any other case. The other appellants i.e. Akil Akhtar @ Bholu, Javed Akhtar, Faizi Akhtar and Md. Rashid Akhtar @ Rashid Akhtar are discharged from the liabilities of their respective bail bonds.
32. The five appeals are, accordingly, allowed.
(V.N. Sinha, J) I agree.
(Rajendra Kumar Mishra, J) P.K.P./Rajesh/AFR (Rajendra Kumar Mishra, J)