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12. P.W. 1, Parmeshwar Prasad cousin of deceased Poonam Jayaswal has stated that this tenanted block and the tenanted block which used to be in occupation of the accused and deceased Poonam Jayaswal were separated by a common wall and both these residential blocks were located on the first floor of the house of P.W. 2 Damodar Mahto. As testified by P.W.1 Parmeshwar Prasad, he is the owner of a watch repair shop and he goes to attend that shop at 7 to 7.30 A.M. in the morning. He then returns for lunch at about 2.30 to 3 P.M. and again goes back to his shop. Then in the night, he returns to his house at 9 to 10 P.M. With this, P.W. 1 Parmeshwar Prasad further deposed that on 03.01.1994, as usual he returned his home at 10 P.M. and found the accused and Poonam Jayaswal sitting at the Varamdah of the house. He further testified that in that night at about 3 to 4 A.M. he heard sound of a blast and opened window of his house. At that time, Patna High Court CR. APP (DB) No.27 of 1996 dt.07-07-2022 he saw the accused going out speedily. Then as per his version, P.W. 2 Damodar Mahto saw the blood in the drain in the morning and therefore, P.W. 2 Damodar came up stair. Then it was found that Poonam was lying dead in her room with the left side of his head blown off. P.W. 1 Parmeshwar Prasad also clarified that P.W. 6 Vijay Prasad had then lodged the First Information Report in his presence and he signed that First Information Report Ext.1 as a witness thereof. He also acted as a Panch witness to the inquest and for seizures effected from the spot of the incident. At the end of his chief examination, P.W. 1 Parmeshwar Prasad made a cryptic statement that when he came to the house in the evening, he found the accused bursting crackers.

13. It is not clarified by P.W. 1 Parmeshwar Prasad that, when as per his version, on 03.01.1994 he returned to his house at 10 P.M., how he was in a position to see that in the evening hours, the accused was bursting crackers. Even usual time of his return to the house, as stated by this witness is 9 to 10 P.M. of the day. Deceased Poonam Jayaswal was shot dead in the room adjacent to room of P.W. 1 Parmeshwar Prasad in the night hours of about 3 A.M. It being a gunshot, the sound of the blast must be of high intensity. That gun was fired in the Patna High Court CR. APP (DB) No.27 of 1996 dt.07-07-2022 next room separated by the common wall and P.W. 1 Parmeshwar Prasad was staying in just the adjacent room of the room where the occurrence took place. According to the prosecution case as reflected in the FIR, this witness P.W. 1 Parmeshwar Prasad wake up on hearing the sound of the blast occurring in the next room but his wife had made him to slip by saying that accused must have bursted crackers. As against this, it is in the evidence of P.W. 1 Parmeshwar Prasad that upon hearing the sound of gunshot, he opened his window and saw the accused going out speedily. If that is so, it was expected of a prudent person and particularly from a relative to inquire about such sound of high Intensity from his brother-in-law i.e. the accused. Ultimately, P.W. 1 Parmeshwar Prasad was maternal cousin of Poonam. The gunshot was at the odd hours of the night from the next room occupied by his cousin. In such situation we doubt the conduct as deposed by P.W. 1 Parmeshwar Prasad in only opening the window without doing anything further in that matter and by remaining a mute spectator. As observed by the learned trial court, this witness has even improved his version on material aspect for favouring the prosecution case. Even this witness had no reason to be in the room in the evening hours to see the accused bursting crackers, Patna High Court CR. APP (DB) No.27 of 1996 dt.07-07-2022 when as per his own version, he regularly returns from his shop after 9 P.M. This witness though expected in the normal course of human nature, had not woke up the landlord or other neighbours, had not even entered in the room of his cousin Poonam Jayaswal upon allegedly seeing her husband leaving the spot hurriedly at such unusual time after the sound of blast, had not even questioned the accused or made hue and cry. No doubt, there is no straight jacket formula of judging a human behavior but in the case in hand, huge sound of gunshot occurring in the room of his cousin Poonam must have, in normal course activated P.W. 1 Parmeshwar Prasad to exhibit such type of active conduct instead of exhibition in different attitude. His version shows that though he heard the sound of the blast, he opened his window and thereafter meekly slept again to go in the blissful slumber. He was residing at the very same house since last four years and as such must be acquainted with all neighbourers in that thickly populous locality. The conduct reflected by P.W. 1 Parmeshwaar Prasad, as seen from his evidence, makes his testimony highly artificial and doubtful. The taint of falsehood in the version of this witness is also reflected from his statement that when in the evening hours the accused was bursting the cracker, his landlord questioned the Patna High Court CR. APP (DB) No.27 of 1996 dt.07-07-2022 accused as to how the cracker is being bursted and thereupon the accused uttered that without any reason he is bursting the crackers. If this version of P.W. 1 Parmeshwar Prasad is compared with that of his landlord P.W. 2 Damodar Mahto, then it is seen that the same is far from truth. P.W. 2 Damodar, has deposed that the was having the night duty during that period and he used to return to the house after completing that night duty after 12 A.M. in the midnight. P.W. Damodar has stated that in that night also he returned at about 12 O' clock. Therefore, P.W. 2 Damodar Mahto had no occasion to remain present in the house in the evening hours of 03.01.1994 to question the accused regarding alleged bursting of the crackers. We, therefore, are not in a position to place explicit reliance on the version of P.W. 1 Parmeshwar Prasad for arriving at the conclusion that the accused was seen in the company of his wife from evening hours of 03.01.1994 and was with her till her death caused by the gunshot.

14. One more aspect which makes version of P.W. 1 Parmeshwar Prasad unreliable is the case of the prosecution as set out in the FIR lodged by his uncle P.W. 6 Vijay Prasad. No doubt the FIR can be used only to corroborate or contradict the maker thereof but the prosecution case set out Patna High Court CR. APP (DB) No.27 of 1996 dt.07-07-2022 by such initial report of cognizable offence can be compared with the version of the prosecution witnesses in order to test the conduct and version of such witnesses. P.W. 1 Parmeshwar Prasad has claimed that he was present with P.W. 6 Vijay Prasad when P.W. 6 Vijay Prasad lodged the FIR. He has also sign the FIR as witness. If really P.W. 1 Parmeshwar Prasad, upon hearing the sound of blast in the night hours from the adjoining room, had opened the window of his house and saw the accused leaving the spot hurriedly, he would have certainly disclosed such fact to his uncle, i.e, First Informant Vijay Prasad, in order to see that it gets reflated in the FIR. The conduct of not disclosing this fact to his uncle by P.W. 1 Parmeshwar Prasad, though he had an ample opportunity to do so, also makes the version of P.W. 1 Parmeshwar unreliable and untrustworthy and doubtful.