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27. P.W. 4, Nasiruddin is the informant. He has stated that his son Qayamuddin @ Qayumuddin was killed on Tuesday at Parbatti Chowk at 3.30 P.M. He has further stated hat he was at home and there was shouting outside and everybody was armed with sticks, spears, swords and guns. His son was running towards the house when the rioters caught hold of him and the appellant shot him. Firing and explosion of bomb started and the deponent ran away to Mohidipur and curfew had been imposed. He had stated that when he went to the police station he was turned away. He has further stated that he had got his statement written and typed and then sent it to the Superintendent of Police and his Patna High Court CR. APP (DB) No.1048 of 2009 dt.03-09-2015 statement was also recorded before the Magistrate and at both places he had put his thumb impression. He has further stated that his shop was burnt for which he had got compensation. He has identified the appellant in Court. He has also described the place of occurrence. In the cross examination he has stated that he had not seen the police in the procession and has also stated that he did not remember after how many days, months or year the police had taken his statement. He has stated that he had seen Tatarpur Police Station which was more than 1 Kilometer from his house and further that Kotwali Police Station was also more than 1 Kilometer away and that for reaching Kotwali, Tatarpur was in the way. He has stated that the occurrence was 17 years ago and he could not say with regard to the date prior to or after the occurrence. He had made a statement before the Officer („Hakim‟) once and the police twice. He has stated that he did not remember when he first reported to the police station but further says that he did the same during the riots. He has denied the suggestion that the case was made final. He has stated that he had not given any receipt relating to his house to the police and could not give details of adjoining land and has not counted the number of persons of his locality whom he recognizes and had also not given any paper with regard to his son also living in the locality. He has stated that 17 years ago, 4-5 boys, girls, grand-sons, grand-daughters, wife etc. were Patna High Court CR. APP (DB) No.1048 of 2009 dt.03-09-2015 living in the house. He has stated that Rashid, Nayeem, Kalam, Nizamuddin are his sons and out of them Rashid and he and two boys had run. He has further stated that the police had come to his house a year ago and that he had not got the statement of those persons recorded. He has stated that his son Qayumuddin was coming from Parbatti Chowk and 15-20 minutes after he was hit there was shouting and when he reached he was also chased and he ran away. He has stated that there is mark of gun shot on the wall and his son had died and he was not able to talk to him. He could not tell the time at that moment and said that he could do so by looking at the watch and had stated that at that time also he had no watch. He had stated that for the first time Javed Babu of Nathnagar (Sub Inspector of Police and P.W.8) had taken his statement and he did not remember whether R. B. Singh had taken his statement or not. He has stated that he had told the police that the appellant had fired but not to the Magistrate. He has stated that the rioters had burnt the licence of the shop and looted the shop. He has stated that Hidayat is dead and thus his evidence cannot be recorded. He has stated that he had not given the name of the injured in his application. He had denied the suggestion that the incident did not occur and that he had influenced Senior Police Officers to get the matter re-investigated and that he was giving false evidence.

33. On the other hand Mr. Md. Salauddin Khan, learned Special Public Prosecutor, appearing on behalf of the State, submitted that mere delay in lodging of the F.I.R. could not be fatal for the prosecution. For such proposition he has referred to a division bench decision of this Court under similar circumstances in the case of State of Bihar v. Chunna Rajak reported in 2005(1) PLJR 357, in which the Court has taken note of the fact that in a case of similar nature relating to the same period and the same town, due to curfew having been promulgated, there was delay in reporting of matters to the police. In this context learned counsel has also relied on a decision of the Hon‟ble Supreme Court in the case of Ravi Vs. Badrinarayan reported in 2011(2) BBCJ IV-302, where delay in lodging of the F.I.R. was more than three and a half months and the Supreme Court had held that there could be a variety of reasons in Patna High Court CR. APP (DB) No.1048 of 2009 dt.03-09-2015 genuine cases for delay in lodging of the F.I.R. as unless the kith and kin of victim are able to regain a certain level of tranquility of mind and are composed only then they can lodge the F.I.R. and even if there is delay it deserves to be condoned. Learned counsel has urged that as the role of the appellant has been established by various witnesses, the conviction is fit to be upheld. For such proposition he has relied upon the decision of the Hon‟ble Supreme Court in the case of Babu Krishna v. State of Maharashtra reported in A.I.R. 1980 SC 1269. Learned counsel has also relied for this proposition on the decision of this Court in the case of State of Bihar v. Chunna Rajak (supra) which was a case relating to the same sequence of events, that is, communal conflict in the town of Bhagalpur of which the present incident is also part of, that if witnesses are trustworthy and consistent and incident taking place in broad daylight thereby facilitating identification of accused appellant involved in the incident, mere interestedness is not a ground to reject the evidence and further that belated recording of evidence by the police in a volatile law and order situation can be well appreciated. Learned counsel has submitted that even if the witness disowns having made any statement inconsistent with his deposition in Court, such testimony in Court on that score is not vitiated until cross examination proceeds to comply with procedure prescribed in the Patna High Court CR. APP (DB) No.1048 of 2009 dt.03-09-2015 second limb of Section 145 of the Indian Evidence Act, 1872 since so long as attention of prosecution witness is not drawn to statement attributed to him related by officer-in-charge of police station, his evidence cannot be rejected. For such proposition learned counsel has relied upon a decision of the Hon‟ble Supreme Court in the case of Binay Kumar Singh v. State of Bihar reported in 1997(1) PLJR 24 (S.C.). Learned counsel has lastly submitted that improvement or variations made by witnesses in their earlier and later statements alone is not sufficient ground to reject their otherwise reliable testimony and that minor inconsistency in statements of witnesses and F.I.R. would not make the testimony of the witnesses unreliable and rather on the contrary, they show that the witnesses were not tutored. In support of his contention learned counsel has relied upon the decision of the Hon‟ble Supreme Court in the case of Maqsoodan v. State of U.P. reported in (1998) 1 SCC 218 as well as Binay Kumar Singh v. State of Bihar (supra). Learned counsel has urged before the Court that due to collusion of the police, specially the Investigating Officer, at the initial stage when the F.I.R. was lodged, with the accused, the investigation was sham and thus any development consequent to such final form submitted as a result of such investigation, even if it is followed by acceptance of the final form by the Court, cannot be a bar to further investigation. He refers Patna High Court CR. APP (DB) No.1048 of 2009 dt.03-09-2015 to the testimony of P.W.7 in this connection indicating that the first Investigating Officer had not taken the statement of either the informant or any witness. He submitted that the fact that F.I.R. was lodged on 07.02.1990 and final report was prepared on 31.03.1990 is a clear indicator of the undue haste shown to somehow close the case against the accused.

34. The Court has gone through the evidence of witnesses and has considered the submissions made by learned counsel for the parties. The present incident cannot be looked in isolation and in a hyper technical way for the simple reason that a situation where two communities were daggers drawn against each other and there was a sense of insecurity and lawlessness all around, the position of a victim who is pitted against a much more powerful opponent i.e., the accused, which prevents him from getting justice cannot be overlooked. In the present case, the incident being the result of communal violence in the town of Bhagalpur it has to be appreciated that the informant‟s first priority after losing his son would be ensure the safety and security of his own as well as of his other family members. It is also an admitted position that there was curfew in the town for a long period. Further, the informant has also stated in his testimony that he had gone to the police station from where he was turned away. In this context the Court finds it relevant Patna High Court CR. APP (DB) No.1048 of 2009 dt.03-09-2015 to refer to the decision of the Hon‟ble Supreme Court in the case of Zahira Habibulla H. Sheikh v. State of Gujarat reported in (2004) 4 SCC 158, where it has been observed that in killings arising out of communal frenzy and there is failure of State machinery to protect citizens life, liabilities and property and the investigation conducted is in a manner helpful to accused persons, it is the duty of the Courts to maintain confidence of the public in the judicial system and ensure that accused persons are punished and the might and authority of the State are not used to shield itself or its men. The Hon‟ble Supreme Court has also held that the trial should be a search for truth and not a bout over technicalities. The Court is also tempted to draw an analogy of the reasoning given by the Hon‟ble Supreme Court in the said case where it was found on facts that there were serious infirmities, telltale even to the naked eye for an ordinary man, arbitrariness, where truth has become a causality, it was necessary to prevent its recurrence and therefore a fit and proper case for retrial. In the present case it is only further investigation, for which there is amble justification as has been clearly brought out from the deposition of the witnesses. The then range D.I.G. (P.W.7) clearly indicating that for all practical purposes there was no investigation, the further investigation was not only appropriate but also the requirement for upholding the law and ensuring public confidence in Patna High Court CR. APP (DB) No.1048 of 2009 dt.03-09-2015 the criminal justice system.