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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.

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.