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4. Heard learned counsel Mr. Bimal Kumar for the appellants and Mr. Satya Narayan Prasad, learned APP for the respondent-State.

5. Learned Advocate for the appellants-accused has submitted that the appellants have been falsely implicated in Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 the occurrence in question because of the enmity between the parties. It is submitted that, as per the case of the prosecution, the informant is Lallan Sah (deceased), who gave his fard-beyan in Sadar Hospital, Ara. It is submitted that it is further case of the prosecution that when the informant was admitted in the said hospital in Surgical Ward, his statement came to be recorded by the police. However, it is contended that though the injured was in the hospital, the endorsement of the Doctor was not obtained by the police officer who has recorded the fard-beyan. It is not clear from the evidence led by the prosecution that whether the informant was, in fact, in a position to give his statement before the police or not. At this stage, learned counsel has referred the deposition given by PW 4, Chhitani Sah, who is brother of the deceased. It is submitted that as per the version given by the said witness, fard-beyan of the injured Lallan Sah was recorded by Darogaji while the injured was on the way to Sadar Hospital, Ara, and after reaching at the hospital, Lallan Sah signed the fard- beyan. At this stage, learned counsel has also referred the deposition given by PW 7, Sipato Devi, who is mother of the deceased. It is submitted that the said witness has specifically stated in paragraph 7 of the cross-examination that her son said something at the place of occurrence and thereafter he became Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 unconscious. At this stage, it is submitted that thereafter when the said injured informant regained consciousness, it is not stated by any of the prosecution witnesses.

5.1 Learned counsel for the appellants thereafter submits that the informant has stated in the fard-beyan that when he sustained gun shot injury, he cried and thereafter his brother Chhitani and other persons from nearby came to the place of occurrence. It is submitted that PW 4, Chhitani Sah, has also stated that after he reached to the place of occurrence, 50 persons gathered at the place of occurrence. However, both the aforesaid persons have not stated that their other family members also came to the place of occurrence. Thus, learned counsel submits that though independent witnesses gathered at the place of occurrence, the prosecution has intentionally not examined the independent witnesses and only near relations of the deceased were produced before the court as prosecution witnesses. He also submitted that the murder weapon, i.e., the country-made pistol, was also not recovered. The Investigating Officer has not collected blood stained soil from the place of occurrence nor the blood stained clothes of the deceased were seized by the Investigating Officer. It is also submitted that, as per the version of PW 4 (brother of the deceased), place of occurrence is the orchard of one Nathuni Singh Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 and that too near sesame tree. However, as per the deposition given by the Investigating Officer, place of occurrence is a foot- way near the field of Butan Singh and also near the barbed wire fencing. He has also submitted that the police officer, namely, Bismillah Khan, who has recorded the fard-beyan of the informant, has also not been examined by the prosecution. Learned counsel for the appellants, therefore, urged that the prosecution has failed to prove the case against the appellants beyond reasonable doubt despite that the trial court has passed the impugned judgment and order, which deserves to be quashed and set aside.

15. PW 12, Raj Kumar Pandey, is the Investigating Officer of the case. He has deposed in his examination-in-chief that the place of occurrence is the footway (pagdandi) in the southern portion of the land of Butan Singh where barbed wire fencing is there. When deceased tried to escape, he got tangled in the barbed wire and fell down. He found blood there. He has deposed that he has taken fard-beyan of Chittani Sah and received the inquest report of Lallan Sah. He did not collect the blood stained soil from the place of occurrence. The family members of the deceased have not given blood stained clothes of the deceased to him. He got the information about the said occurrence from the fard-beyan of the deceased. Neither the village Chowkidar nor the family members of the deceased informed him. He had taken the statement of elder grand-daughter of the informant. He has deposed that witness Ramawati has not said in her statement that when she went to the orchard after hearing the sound of fire, she saw Lallan Sah lying.

Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024

16. We have re-appreciated the entire evidence led by the prosecution before the trial court. It would emerge from the record that PW 1, PW 2, PW 5 and PW 6 have not supported the case of the prosecution and they have turned hostile. It further transpires that, as per the case of the prosecution, fard-beyan of injured Lallan Sah was recorded by the police officer Bismillah Khan. However, the said police officer has not been examined by the prosecution. Fard-beyan of the informant Lallan Sah was recorded at male surgical ward of Sadar Hospital, Ara. As per his fard-beyan, after the incident in question took place, on his shouting, his brother Chhitani and other persons of the vicinity reached at the place of occurrence in question. Thus, from the aforesaid fard-beyan, it is revealed that there is no eye-witness to the occurrence in question. Therefore, the case of the prosecution rests on the information given by the informant Lallan Sah who subsequently died on the way when he was being taken to PMCH, Patna. It would emerge from the record that the police officer, who has recorded the fard-beyan of the informant did not obtain the endorsement of the Doctor that the patient was conscious and was in a position to give his statement. At this stage, it is relevant to note that, as per the case of the prosecution, fard-beyan of the informant was taken when he was in male surgical ward of Sadar Patna High Court CR. APP (DB) No.969 of 2012 dt.29-03-2024 Hospital, Ara. Therefore, the presence of the Doctor at the said place could be natural. However, endorsement of the Doctor was not taken on the fard-beyan. Further, the prosecution has also failed to produce the papers of medical treatment given to the informant (deceased) when he was in male surgical ward, Sadar Hospital, Ara.