Sanjay Kumar Roy @ Sanjay Kumar Vs The State of Bihar

====================================================== NARESH YADAV Son of Late Poli Yadav Resident of Village- Khajuraha, P.S.- Sonbarsa, District- Saharsa.

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... ... Appellant/s

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Versus

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THE STATE OF BIHAR

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... ... Respondent/s

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======================================================

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Patna High Court CR. APP (DB) No.319 of 2019 dt.12-01-2024 2/40

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with

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CRIMINAL APPEAL (DB) No. 486 of 2019

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Arising Out of PS. Case No.-69 Year-2003 Thana- SONBERSHA RAJ District- Saharsa

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======================================================

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SANJAY KUMAR ROY @ SANJAY KUMAR Son of Late Ram Prasad Roy Resident of Village - Suhath Bharna, P.S.- Sour Bazar, Dist.- Saharsa.

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... ... Appellant/s

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Versus

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The State of Bihar

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Naresh Yadav Son of Tali Yadav Resident of Village - Khojraha, P.S.Sonbarsa Raj, Dist.- Saharsa.

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Sanjay Yadav Son of Ganeshi Yadav Resident of Village - Gajipata, P.S.Sonbarsa Raj, Dist.- Saharsa.

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... ... Respondent/s

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======================================================

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with

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CRIMINAL APPEAL (DB) No. 495 of 2019 In

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CRIMINAL APPEAL (SJ) No.1104 of 2019

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Arising Out of PS. Case No.-69 Year-2003 Thana- SONBERSHA RAJ District- Saharsa

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======================================================

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SANJAY YADAV Son of Ganeshi Yadav Resident of Village - Gajepatta, P.S.Sonbersa, District - Saharsa

... ... Appellant/s

Versus

The State of Bihar

... ... Respondent/s

======================================================

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with CRIMINAL APPEAL (DB) No. 673 of 2019 In

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CRIMINAL APPEAL (SJ) No.1295 of 2019

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Arising Out of PS. Case No.-69 Year-2003 Thana- SONBERSHA RAJ District- Saharsa

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======================================================

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AMRENDRA KUMAR RAY Son of Sri Prasad Ray Resident of Village - Suhat, P.S.- Sour Bazar, District- Saharsa

... ... Appellant/s

Versus

The State of Bihar

... ... Respondent/s

======================================================

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Appearance :

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(In CRIMINAL APPEAL (DB) No. 319 of 2019)

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For the Appellant/s : Mr. Anshul, Adv Ms. Sagarika, Adv Ms. Aditya Pandey, Adv Mr. Shyam Kishore, Adv For the State : Ms. Shashi Bala Verma, APP For the Informant : Mr. Hemendra Prasad Singh, Sr. Adv ((In CRIMINAL APPEAL (DB) No. 339 of 2019) For the Appellant/s : Mr. Anshul, Adv Ms. Sagarika, Adv Ms. Aditya Pandey, Adv Mr. Shyam Kishore, Adv For the State : Ms. Shashi Bala Verma, APP For the Informant : Mr. Hemendra Prasad Singh, Sr. Adv ((In CRIMINAL APPEAL (DB) No. 340 of 2019) For the Appellant/s : Mr. Chandra Mohan Jha, Advocate For the Respondent/s : Ms. Shashi Bala Verma, APP (In CRIMINAL APPEAL (DB) No. 486 of 2019) For the Appellant/s : Mr. Baleshwar Kamat, Advocate For the Respondent/s : Ms. Shashi Bala Verma, APP (In CRIMINAL APPEAL (DB) No. 495 of 2019) For the Appellant/s : Mr.Viveka Nand Singh, Advocate For the Respondent/s : Ms. Shashi Bala Verma, APP (In CRIMINAL APPEAL (DB) No. 673 of 2019) For the Appellant/s : Mr. Anshul, Adv Ms. Sagarika, Adv Ms. Aditya Pandey, Adv Mr. Shyam Kishore, Adv For the State : Ms. Shashi Bala Verma, APP For the Informant : Mr. Hemendra Prasad Singh, Sr. Adv ======================================================

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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH

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and

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HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)

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Date : 12-01-2024

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Since all these appeals arise out of the same Sessions Trial No. 67 of 2005/222 of 2005 (2047 of 2015), putting to challenge two separate set of judgments of conviction and the orders of sentences have been passed by the learned trial court dated 17.01.2019/18.01.2019 and 08.02.2019/13.02.2019, they

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have been heard together and are being disposed of by the present common judgment and order.

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By the judgment of conviction dated 17.01.2019 and the order of sentence dated 18.01.2019. The appellants Shree Prasad Ray and Amrendra Kumar Ray have been convicted and sentenced as under:-

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Appellant Shree Prasad Ray in Criminal Appeal (DB)

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No. 319 of 2019

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Penal		Sentence
Provision	Imprisonment	Fine (Rs.)	In default of fine
Section 302 of the IPC	R.I. for life	Rs. 15,000/-	S.I. Six months
Section 27(1) of the Arms Act	R.I. for three years	Rs. 5000/-	S.I. three months

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Appellant Amrendra Kumar Ray in Criminal Appeal (DB) No. 673 of 2019

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Penal		Sentence
Provision	Imprisonment	Fine (Rs.)	In default of fine
Section 307 of the IPC	R.I. for 10 years	Rs. 10,000/-	S.I. Six months
Section 27(1) of the Arms Act	R.I. for three years	Rs. 5000/-	S.I. three months

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By the same judgment dated 17.01.2019 the trial

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court has acquitted some of the persons who were facing trial with the aforesaid appellants, viz., Satyanarayan Yadav and Raushan Kumar. In the aforesaid background, the appellants Shree Prasad Ray and Amrendra Kumar Ray have preferred Criminal Appeal (DB) No. 319 of 2019 and Criminal Appeal (DB) No. 673 of 2019 under section 374(2) of the CrPC assailing the judgment of conviction dated 17.01.2019 and the order of sentence dated 18.01.2019 passed by learned Presiding Officer, Fast Track Court, Saharsa. The informant of the case is aggrieved by the acquittal of the abovenamed co-accused Yadunandan Yadav, Dinesh Yadav, Satyanarayan Yadav and Raushan Kumar and has preferred an appeal against acquittal under Section 372 of the CrPC, giving rise to Criminal Appeal (DB) No. 339 of 2019.

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From the records, it transpires that after conclusion of arguments at the trial, on the date of judgment, the appellants Naresh Yadav of Criminal Appeal (DB) No. 340 of 2019 and Sanjay Yadav of Criminal Appeal (DB) No. 495 of 2019, were not present in the court and, therefore, no judgment was passed against them on 17.01.2019. Subsequently, when they were apprehended and produced before the trial court, a separate judgment of conviction came to be delivered in their presence

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on 08.02.2019 and the order of sentence on 13.02.2019, convicting them of the offences punishable under Section 307 of the Indian Penal Code and Section 27 of the Arms Act and sentencing them to imprisonment and fine in following terms:-

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Appellant Naresh Yadav in Criminal Appeal (DB) No.

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340 of 2019

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Penal		Sentence
Provision	Imprisonment	Fine (Rs.)	In default of fine
307 of the IPC	RI for five years	Rs.10,000/-	SI for six months
27 of the	RI for three years	Rs. 5,000/-	SI for three
Arms Act			months

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Appellant Sanjay Yadav in Criminal Appeal (DB) No. 495 of 2019

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Penal		Sentence
Provision	Imprisonment	Fine (Rs.)	In default of fine
307 of the IPC	RI for five years	Rs. 10,000/-	SI for six months
27 of the Arms Act	RI for three years	Rs. 5,000/-	SI for three months

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Criminal Appeal (DB) No. 486 of 2019 has been filed by the informant of the case under Section 372 of the CrPC assailing the judgment dated 08.02.2019 as according to him the conviction recorded by the trial court is for a lesser offence

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Section 307 of the IPC instead of Section 302 of the IPC thereof.

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We have heard Mr. Anshul, learned counsel appearing on behalf of the appellants in Cr. Appeal (DB) No. 319 of 2019 and Cr. Appeal (DB) No. 673 of 2019, Criminal Appeal (DB) No. 340 of 2019 and Criminal Appeal (DB) No. 495 of 2019 for the appellants. Mr. Hemendra Prasad Singh, learned Senior Counsel has assisted this Court on behalf of the appellants in the appeal against acquittal. He has also appeared on behalf of the informant to oppose the appeals against conviction.

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The son of the deceased, Sanjay Kumar Roy is the informant whose fardbeyan recorded at 1:45pm at the place of occurrence on 17.10.2003 is the basis for registration of Sonbarsa Raj PS Case No. 69 of 2003 disclosing commission of the offences punishable under Section 302 read with 34 of the Indian Penal Code and Section 27 of the Arms Act. There were altogether 9 persons, viz., Narad Yadav s/o of Late Jagdish Yadav, Subhash Yadav s/o Satya Narayan Yadav, Krishna Kumar Yadav s/o Satyanarayan Yadav, Dinesh Yadav s/o Nageshwar Yadav, Satya Narayan Yadav s/o Late. Sukhdeo Yadav, Amrendra Kumar Ray s/o Sree Prasad Ray, Raushan

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Kumar s/o Shree Prasad Ray, Sree Prasad Ray s/o Lat. Jathu Ray and Yadunandan Yadav s/o Prem Lal Yadav who were arraigned as accused in the FIR.

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It can be easily inferred from the First Information Report that Satya Narayan Yadav and his two sons namely, Subhash Yadav and Krishna Kumar Yadav were named in the FIR. Similarly, Sri Prasad Ray and his two sons, namely, Amrendra Kumar Ray and Raushan Kumar were named. In addition to these 6 persons, and 3 other persons as noted above were named in the FIR. As can be seen from the First Information Report, the occurrence is said to have taken place at a kutcha village road, 8 kms away from the police station, passing through an agricultural field. The informant alleged in his fardbeyan that at about 11:30 am he had proceeded from his house in village Suhath, Bharna for Lagma Chowk, and on his way he met his father (the deceased) and his brother Raj Kumar Ray (PW-15) who were also coming from the village on a motorcycle. After some conversation, his father and brother proceeded ahead on the motorcycle. Suddenly, in the meanwhile, the criminals (persons named in the FIR) emerged from the adjacent paddy and sugarcane field and all of them started firing indiscriminately targeting the deceased and his

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brother. Out of fear the informant concealed himself in a safe place and started witnessing the entire incident. He described in his fardbeyan in detail as to which accused was carrying which weapon. He alleged that Narad Yadav was carrying a “303 rifle”. Amrendra Kumar and Krishna Kumar were also carrying country made rifles. Dinesh Yadav was carrying lathi whereas Sri Prasad Ray and Raushan Kumar were carrying “303 rifle”, Yadunandan Yadav was also carrying “303 rifle”. Because of the indiscriminate firing caused by them, the deceased and his son, who was riding the motorcycle sustained firearm injuries. The deceased and his son (injured) (PW-15) attempted to flee away after leaving the motorcycle behind, but they were chased and shot at by the accused persons. The accused persons, after having committed the crime escaped from the place of occurrence on motorcycle(s) and horse(s). Thereafter, when he reached near the deceased and his brother, he noticed that his father was dead and his body was lying in a pool of blood. In his assessment, his father had sustained firearm injuries in his neck, chest, ribcage and arm. The brother of the informant namely, Raj Kumar Ray (PW-15) had also sustained injuries in his right arm and on right side of the chest. He was also profusely bleeding. An old animosity between the informant’s uncle, Sri

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Prasad Ray (an appellant) in relation to a huge chunk of land was the reason behind the occurrence. In his fardbeyan he specifically mentioned that the occurrence had taken place at 12:30 pm. As has been noted at the outset, in relation to the occurrence which had taken place, according to the informant at 12.30 am, the fardbeyan was recorded by the police at the place of occurrence at 1:45pm. The Police Officer who had prepared the inquest report found following marks of injuries on the person of the deceased:-

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“1. An injury on the right side of the neck.

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Fire arm injury on the right side of the chest of the deceased. Another fire arm injury on the chest of the deceased.

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An injury on the right side of the back.

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An injury on the right side of the rib-cage.

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An injury on the waist of the deceased.”

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All the injuries appeared to have been caused by the firearm. Two persons namely, Ram Kumar Ray (PW-10) and Ashoka Kumar Ray (PW-7) are said to have witnessed the preparation of the inquest report at the place of occurrence. The dead body of the deceased was sent for postmortem examination. The Doctor (PW-3) found following antemortem injuries on the body of the deceased.

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“I. Firearm entry wound on right side of neck just near the later end of right clavicle, size 1/2” x 1/2” diameter, margin in rular and oval in shape,

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margin inverted black and charred. It was the wound of of entry which passed obliquely damaging the right lung, liver, and perforated the diaphragm and exit wound on right side of back just 3” from the spine. Size of exit wound about 3/A” x 3/A”, margin irregular, inverted and oval in shape.

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II. Second fire arm injury wound on the right side of chest joint about 1” lateral to midline of sternum and about 1/2” below the right injury present on anterior surface of chest. Size about 1/2” x 1/2”margin irregular and oval in shape, margin inverted and black & charred. It passed obliquely and posteriorly and passed through liver diaphragm and exit right side of back joint 1” away from vertebral spine on posterior surface of right eliac fossa. It also performated the small intestine size of exit wound about 1”x1” margin irregular, inverted and oval in shape.

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On internal examination- Ruptured plura and right ling. Lacerated wound found. Liverlacerated wound in liver right side. Perforation of diaphragm with tear margin found in two places. Huge blood and clots were found in chest cavity.

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In abdominal cavity perforation of blood and food materials and faceal materials found.”

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The Police, submitted its first chargesheet against

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the accused Krishna Kumar Yadav for the offence punishable under Section 302 read with 34 and Section 27 of the Arms Act while keeping the investigation pending against other accused persons. The second chargesheet was submitted against co-

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accused Yadunandan Yadav for the offence punishable under Section 302 read with 34 of the Indian Penal Code and Section 27 of the Arms Act. The third chargesheet was submitted against the appellant Amrendra Kumar Ray for the offence punishable under Sections 307, 302 and 120B read with 34 of the Indian Penal Code and Section 27 of the Arms Act. Fourth chargesheet was submitted against co-accused Satya Narayan Yadav and the appellant Sanjay Yadav, who was not named in the FIR, for the offence punishable under Section 302 read with 34 of the Indian Penal Code. Yet another supplementary chargesheet was submitted against co-accused Subhash Yadav, Dinesh Yadav, Raushan Kumar, Sree Prasad Ray (Criminal Appeal (DB) No. 319 of 2019) and Narad Yadav. From the records, it transpire that final chargesheet against the appellant Amrendra Kumar Ray led to institution of Sessions Trial No. 67 of 2005. The charge was framed against him on 22.09.2005 for commission of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and Section 27(3) of the Arms Act. As other accused persons had absconded, their trial stood separated. Subsequently charges were framed against Satya narayan Yadav @ Sattu Yadav, Yadu Nandan Yadav, Sri Prasad Ray, Raushan Kumar, Sanjay Yadav, Dinesh Yadav and Naresh

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Yadav on 03.05.2006 for the offences punishable under Sections 302, 307 read with 34 of the Indian Penal Code and Section 27 of the Arms Act. It further transpires that subsequently by an order dated 03.07.2006 the Sessions Trial No. 67 of 2005 and Sessions Trial No. 222 of 2005 were amalgamated. It is worthwhile mentioning that co-accused Krishna Kumar Yadav was charged of the offence punishable under Section 302/34 and 27 of the Arms Act in Sessions Trial No. 45 of 2004 which resulted into his conviction and sentence by judgment and order dated 30.08.2018/04.09.2018 which is subject matter of challenge in Cr. Appeal (DB) No. 1255 of 2018 before this Court. Since co-accused Narad Yadav absconded during the course of trial, his trial was directed to be separated by the trial court. It has been stated at the bar that he died during the pendency of the trial. It further transpires from the record that the trial as against accused Naresh Yadav and Sanjay Yadav were separated as they had absented themselves before the judgment of the trial court could be delivered on 17.01.2019. After the impugned judgment dated 17.01.2019 was delivered by the trial court, the appellants Naresh Yadav and Sanjay Yadav were apprehended and a separate judgment of conviction and the order of sentence dated 18.02.2019 and 13.02.2019 was

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passed against them in the same Sessions Trial No. 67/05/ 222/05 which are under challenge in Cr. Appeal (DB) No. 340 of 2019 and Cr. Appeal (DB) No. 495 of 2019. It is also pertinent to mention here that the trial against Subhash Yadav had to be separated and trial against him was registered as 67/05/222/05(S). He has been convicted by a judgment dated 18.03.2019 and sentenced to imprisonment and fine vide order dated 28.03.2019 which are under challenge in Cr. Appeal (DB) No. 522 of 2019.

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It is also worthwhile mentioning that since Sonbarsa Raj PS Case No. 69 of 2003 gave rise to different trials and consequent criminal appeals preferred by the convicts and the informant, all such criminal were listed alongside for hearing.

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In the aforesaid background all these appeals arising out of the same sessions appeals arising out of the same sessions trial have been heard side by side.

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We have mentioned in detail the accusation against these appellants, and other co-accused persons as made in the fardbeyan of the informant and the circumstance in which these appeals have been heard together. At the trial the appellants Shree Prasad Ray, Naresh yadav, Sanjay Yadav and Amrendra

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Kumar Ray were charged of commission of the offences punishable under sections 302/34 and 307/34 of the IPC and Section 27 of the Arms Act.

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They denied the charges and claimed to be tried. The prosecution examined altogether 18 witnesses to prove the charges against them including the informant (PW-4), the injured witness (PW-15), who claimed at the trial to be an eye witness. Indra Dev Ray (PW-1) claimed to have reached the place of occurrence and had seen the accused persons fleeing away, according to his deposition. The doctor, who had conducted the postmortem examination of the deceased, deposed as PW-3 and the doctor who had treated the injured witness as PW-14. The Investigation Officer deposed as PW-5. The inquest report was proved by PW-17, Another son of the deceased Santosh Kumar Ray deposed as PW-16. PW Nos. 6, 7, 8, 9, 11 and 12 did not support the prosecution’s case and accordingly they came to be declared hostile at the instance of the prosecution. Ajit Ray (PW-13) also did not support the case of the prosecution, though not declared hostile.

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In addition to the oral evidence of the prosecution’s witnesses, the prosecution brought on record at the trial following documentary evidence to substantiate the

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charges against these appellants.

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Sl. No.	Description	Exhibit Number
1.	P.M report	Exhibit-1
2.	Fardbeyan	Exhibit-2
3.	Discharge Slip	Exhibit-3
4.	Signature and writing of Inspector AjayKumar on Post mortem report	Exhibit-4
5.	Signature and writing of Ajay Kumar on challan of the dead body	Exhibit-5
6.	Details of station diary of 17.10.2003	Exhibit-6
7.	Objection petition	Exhibit-7
8.	Three prescriptions in the name of Dr. Gopal Sharan Singh of Satyam Hospital, Saharsa	Exhibit-8 to 8/2
9.	Prescription of Dr. Pramod Kumar Agarwal, Katihar	Exhibit-8/3
10.	Prescription of Dr. S.P. Singh, Purnea	Exhibit-8/4
11.	Certified copy of judgment of S.T. No. 142 of 2008	Exhibit-9
10.	Memo no. 453 dated 24.12.2014 of S.P. Saharsa	Exhibit-10

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After closure of the prosecution’s evidence, the

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appellants were questioned under Section 313 of the CrPC so as to give them an opportunity to explain the incriminating circumstances emerging against them based on the evidence adduced by the prosecution at the trial. It has been pointed out by learned counsel for the appellants that identical questions were put to all the persons facing trial under Section 313 of the CrPC. The identical set of questions which were put to all the appellants are being reproduced herein below for the benefit of quick reference :-

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iz0%& xokgks dk C;ku lquk gS \ m0%& th gk¡A

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iz0%& xokgks dk dguk gS fd vki vU; vfHk;qDrksa ls feydj fn0&17-10-03 dks xzke ucVksfy;k Fkkuk lksuc’kkZ jkt ftyk lgjlk fLFkr vxus;L= ls yS”k gksdj ,d mn~ns”; ls izsfjr gksdj jke izlkn jk; ij xksyh Qk;j fd;s] ftlls jkeizlkn jk; ?kVuk LFky ij gh ej x;sA

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m0%& th ughaA

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iz0%& xokgks dk ;g Hkh dguk gS fd fn0&17-10-03 dks gh vki vU; vfHk;qDrksa ls fey dj ,d mn~ns”; ls izsfjr gksdj vXus;L= ls jkt dqekj jk; ij tku ekjus ds fu;r ls Qk;j fd;s ftls og t[eh gks x;kA

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m0%& th ughA

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iz0%&xokgks dk ;g Hkh dguk gS fd vki rFkk vU; vfHk;qDrksa }kjk jktdqekj jk; ij vXus;L= ls Qk;j fd;k tks xksyh jktdqekj jk; dks yxh rFkk og xksyh yxus ds dkj.k fodykax gks x;s gSA m0%& th ughA

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iz0%& lQkbZ esa dqN dguk gS \ m0%& funksZ’k gw¡A

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Thereafter the defence got examined two defence witnesses, namely, Sajan Yadav (DW-1) and Gajendra Yadav (DW-2). A plea of alibi was taken for the accused Yadunandan Yadav through the evidence of DW-1. Through DW-2, the defence attempted to make out a case that the informant was not present at the place of occurrence and at the time of occurrence as he was somewhere else. The trial court after having appreciated the evidence adduced at the trial has recorded conviction of the appellants Sree Prasad Ray, Amrendra Kumar Ray, Naresh Yadav and Sanjay Yadav and has sentenced them to imprisonment and fine as has been noted hereinabove. We have already noted that the trial court has acquitted Raushan Ray, Satya Narayan Yadav and Dinesh Yadav. The informant has preferred Criminal Appeal (DB) No. 339 of 2019 challenging

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their acquittal. The informant is also aggrieved by the conviction of Amrendra Kumar Ray, appellants in Cr. Appeal No. 673 of 2019 for the offence punishable under Section 307 of the Indian Penal Code instead of Section 302 thereof.

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Mr. Anshul, learned counsel appearing in all these appeals against conviction has firstly submitted that it is manifest from the First Information Report that the fardbeyan of the informant was recorded by the SHO at 1:45 pm on 17.10.2003. Time of occurrence according to the informant was 12:30 pm. The distance of the police station from the place of occurrence as noted in the formal FIR was 8 kms. The prosecution’s case, is silent about the initial version of the occurrence learning which the police had reached the place of occurrence. He submits that suppression of the first version of the incident by the prosecution based on which the police had reached the place of occurrence raises serious suspicion about the veracity of the prosecution’s case as disclosed in the fardbeyan . He has secondly submitted that it is evident from the formal FIR that it was registered on 17.10.2003 at 6:00pm and was received in the Court on 20.08.2003. Belated transmission of FIR to the Magistrate mandate of Section 157 of the CrPC to transmit the FIR to the Magistrate forthwith under Section

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157(1) of the Cr.P.C, gives enough scope of manipulation for false implication of the accused persons in the background of the existing animosity as alleged in the FIR itself.

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He had further argued that the prosecution has miserably failed to prove the place of occurrence inasmuch as no blood-stained soil has been proved to have been found at the place of occurrence. Further, neither the blood-stained clothes of the deceased nor that of the injured witness (PW-15) was seized, let alone bringing the same before the trial court in support of the prosecution’s case. He has further, argued that according to the evidence of the witnesses the injured Raj Kumar Ray (PW15) was taken first to Government hospital from where he was taken to Dr. Gopal Saran Singh (PW-14) for better treatment. He contends that there is no evidence to the effect that PW-15 was ever taken to a Government hospital. He has further submitted that according to the prosecution’s case the deceased and the injured witness had attempted to flee from the place of occurrence after leaving the motorcycle behind when they were ambushed. Neither the said motorcycle nor the bicycle which the informant was riding was found near the place of occurrence. The failure on the part of the prosecution to prove the presence of the motorcycle and the bicycle at the place of

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occurrence is fatal to the prosecution’s case, he contends. He has further argued that there are material inconsistencies in the evidence of PW-4, the inquest report and the postmortem report on the point of number of firearm injuries which the deceased had sustained in the occurrence. Whereas PW-4 specifically deposed at the trial in his cross-examination that the deceased had sustained six firearm injuries, the postmortem report indicates two firearm injuries only, i.e., “two entry wounds” and corresponding two exit wounds. The inquest report on the other hand suggests that the police officer had found three entry wounds on the chest and arm of the deceased. He contends that the manner of occurrence as set out by the prosecution at the trial is completely demolished if these evidences are conjointly read. He has also argued, referring to the postmortem examination that the locations of entry wounds and the exit wounds suggest that the deceased had sustained firearm injuries caused by shots made from higher altitude. He submits that the postmortem report further indicates that both the wounds of entries displayed charring which could not have been possible, if the shots were fired from distance of 10-15 feets as asserted by the prosecution. He has also argued that the evidence of the prosecution’s witnesses are self-contradictory as some of them

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deposed at the trial that the accused persons had come on motorcycle whereas some deposed that they were riding horses. He has also argued, furthermore, that though, according to the prosecution’s case there was paddy and sugarcane field where the appellant and other accused persons were hiding and had ambushed the deceased, it is evident, however, from the evidence of the I.O. that no trampling of the plants was found in the field, though he had noticed sugarcane and harvested paddy plants.

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Ms. Shasi Bala Verma, learned Additional Public Prosecutor appearing on behalf of the State has submitted that in this case PW-15 is certainly an eye-witness who himself had sustained firearm injury caused by the accused persons. He being the most competent witness, his evidence cannot be discarded on the ground of minor discrepancies in the evidence of other witnesses and failure on the part of the I.O. to seize the blood-stained clothes of the deceased. She has submitted that there is no reason why the informant and the injured witness would falsely implicate the co-accused persons and thereby let the real miscreants go scot-free. She has argued that the informant in the present case is an eye-witness and has fully supported the prosecution’s case at the trial. The fact that PW-15

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had sustained firearm injury on the date of occurrence in the said occurrence is also corroborated by the evidence of Dr. Gopal Sharan Singh (PW-14) who had treated him. She further submits that the finding of conviction suffers from no legal infirmity requiring this Court’s interference. She has also argued that the evidence of PW-14 further proves that PW-15 (the injured witness) was referred to him by the Sadar Hospital, Saharsa which goes to suggest that he was taken to Sadar Hospital, Saharsa first for treatment. The contention that PW-15 was not taken to a Government hospital for treatment after the occurrence has no merit. She has also submitted that the finding of conviction should not be interfered with by doubting the prosecution’s case solely on the ground of delay in transmission of the FIR to the Magistrate.

¶162

Mr. Hemendra Prasad Singh, learned Senior counsel appearing on behalf of the informant has drawn this Court’s attention to the formal FIR to argue that it was promptly transmitted to the Court as required under Section 157(1) of the CrPC and the ordersheet dated 18.10.2003 of the court of learned Chief Judicial Magistrate indicates that the same was received in the court on the same day. In such circumstance, there is no delay in transmission of the FIR by the police to the

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court nor in receiving of the same, he contends. He has argued that in this case, the charges against the appellants stood fully proved of commission of offence punishable under Section 302 read with 34 of the IPC and Section 27 of the Arms Act based on the evidence of two eye-witnesses, one of whom is an injured witness who had sustained firearm injuries in the occurrence. He has submitted that it is true that there has been failure on the part of the I.O. in recovering the incriminating materials from the place of occurrence but such failure cannot be a basis for giving the convicts, a benefit of doubt. Addressing the points of inconsistencies and contradictions in the oral evidence of the witnesses and the postmortem report he submits that it is settled principle of law that an oral evidence should prevail over the expert’s opinion. He contends that there is no reason to doubt the testimonies of the eye-witnesses. He has also argued that the prosecution’s case cannot be doubted merely on the ground that the prosecution failed to prove the foremost information which the police had received whereupon they had reached the place of occurrence, where the fardbeyan of the informant was recorded. He has submitted that charring in the entry wound is possible if the injury is caused by a firearm from a distance of 10-15 feet, as can been seen from the evidence of the Doctor himself. He

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contends that on the said ground also the finding of conviction does not require interference. Pressing his appeals the proviso to Section 372 of the CrPC filed by the informant Sanjay Kumar Ray in Criminal Appeal (DB) No. 339 of 2019 and Criminal Appeal (DB) No. 486 of 2019 has submitted that there being consistent evidence of the eye-witnesses including respondents no. 2-6 of participation of all the accused persons in commission of offence with an intention to kill the deceased and PW-15, the trial court has wrongly acquitted the said respondents of the charge of commission of offence punishable under Section 302 of the IPC and convicted respondent No. 6 for the charge punishable under Section 307 of the IPC instead of Section 302 thereof. He has submitted that each of the accused persons had, with a common intention to kill the deceased and PW-15, resorted to discriminate firing so much so that they were chased by them and shot at. He submits that the acquittal is wholly unjustified and this Court should reverse the finding of acquittal as against Respondents No. 2-5 and hold them guilty of the charges framed against them and modify the conviction of Respondent No. 6 from Section 307 of the IPC to Section 302 read with Section 34 of the IPC. Learned counsel for the informant has argued that the failure on the part of the I.O. to

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carry out proper investigation may not be a ground for this Court to interfere with the findings of conviction.

¶169

We have perused the impugned judgment and order of the trial court and the lower court’s records and we have given our thoughtful consideration to the rival submissions advanced on behalf of the parties as noted above.

¶170

As has been noted above, it has been argued on behalf of the appellants, challenging the judgment of conviction that there had been delay in transmission of the FIR. We have perused the original records and we find that the FIR was registered at 6:00 pm on 17.10.2003 and was available in the court on 18.10.2003. We do not find any substance in the said submission which is accordingly rejected.

¶171

The second point which has been urged on behalf of the appellants is that it is evident from the records that the police had reached the place of occurrence nearly 1 hour 15 minutes after the time of occurrence, as according to the informant (PW4), the occurrence had taken place at 12:30 pm. The nature of information received by the police whereupon police has reached the place of occurrence has not been disclosed. The I.O. (PW-5) deposed at the trial that at about 1:05 pm he had learnt about the rumor of an occurrence of murder near village Lagma

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Navtolia . After entering a Sanha , for verification of the said information he proceeded towards the village with police force and reached there at about 1:45 pm and recorded the fardbeyan of the informant. On careful perusal of the records, we find substance in the submissions advanced on behalf of the appellants that except the vague deposition of the informant that he had learnt through rumors about the occurrence, the nature of the information which was first received by him has not been disclosed rather suppressed.

¶174

Further, the I.O. deposed that he had found a motorcycle at the place of occurrence but without preparing any seizure memo he had handed over the same to the informant. He had not found the bicycle at the place of occurrence which according to the informant, he was riding at the time of occurrence and he had left bicycle and bag full of rice and lentils at the place of occurrence itself, which the informant was carrying. A suggestion was made by the defence while crossexamining the I.O. about the criminal antecedent of the deceased as to whether he was convicted of any case of offence under Section 302 of the IPC or not. No investigation was done by the I.O. on the point of the criminal antecedent of the deceased. He admitted in his cross-examination that he had not

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seized the blood-stained clothes of the deceased nor had found any spent cartridge at the place of occurrence. He also agreed to the suggestion that he had not mentioned in the case diary as to who had informed him about the occurrence.

¶177

The description of the place of occurrence, according to the informant was a village road adjacent to which there was an agricultural field having sugarcane crops. The informant was on a bicycle with the bags of rice and lentils when the deceased and PW-15 were ambushed. The FIR gives vivid description of the accused persons with their parentage and as to which of the arm each of them were carrying when they had attacked the deceased and PW-15. It is the definite evidence of the appellant that an indiscriminate firing was made by the accused persons on the deceased and the injured (PW-15) and that they were profusely bleeding. The police had reached, according to the prosecution’s case, hardly one hour after the occurrence. It is also the evidence of the informant and the injured witness that the deceased and the injured witness were profusely bleeding. After having committed the crime, according to the prosecution’s case, the accused persons had escaped from the place of occurrence on motorcycle/horses. This being the scene of the occurrence, in the Court’s opinion it

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was incumbent upon the prosecution to have proved the place of occurrence with cogent evidence. It is conspicuous from the evidence led at the trial that there was no blood mark found at the place of occurrence. The motorcycle which the deceased and the injured witness were riding and was left by them in order to escape the assault would have been an important piece of evidence to prove their presence at the place of occurrence. The motorcycle was not seized and according to the IO, without any inquiry or investigation the same was handed over to the informant himself. According to the prosecution’s case, the informant was riding a bicycle which also was lying at the place of occurrence. The police did not find bicycle present at the place of occurrence. The evidence that 9 accused persons were hiding in a sugarcane field and after commission of the crime all of them escaped on motorcycle/horses would have certainly left some mark/evidence in the nature of trampled plants, scattered soil, etc. It is evident from the deposition of the I.O. that no such evidence was found by him at the place of occurrence. The I.O. deposed at the trial that he had done a minute inspection of the place of occurrence but no pellets or firearm was recovered because of the harvested paddy crop in the field. The explanation to justify failure on the part of the IO/police to

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recover spent cartridges at the place of occurrence on the ground that it could not be done because of presence of paddy crops in the field could have been accepted and the place of occurrence could not have been doubted on that ground alone, had the prosecution was able to prove the other important aspects in relation to the place of occurrence, as noted above.

¶182

It is relevant to notice at this juncture, the evidence of the Investigating Officer (PW-5) on the point of the presence of the injured eye witness at the place of occurrence, when he had reached there. In his cross-examination the I.O. initially deposed that PW-15 (the injured witness) was lying in an injured condition at the place of occurrence. He specifically deposed that PW-15 was lying in the paddy field which he had mentioned in the case diary. On further examination, he testified that he did not remember as to how far the injured (PW-15) was lying from the dead body of the deceased which was not mentioned in the case diary. In the same breath, contradicting his evidence, he deposed that he had not seen PW-15 at the place of occurrence because he was already taken by the persons for treatment from there. The statement of the injured was recorded by him seven days after the date of occurrence in the clinic of Dr. Gopal Sharan Singh at Saharsa. It is clear from his

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deposition that he could not collect any evidence of PW-15 having been taken to Sadar Hospital whereafter he was referred to the clinic of Dr. Gopal Sharan Singh (PW-14). He had not recorded the statement of Dr. Gopal Sharan Singh. Apparently, thus, going by the evidence of Investigating officer, PW-14 deposed at the trial for the first time. We are of the opinion, thus, that the I.O. fumbled in his deposition on the point of the presence or otherwise of the injured at the place of occurrence where he had reached in response to the certain rumors regarding the occurrence of a murder.

¶185

Further we find merit in the submission advanced on behalf of the convicts that the postmortem report does not corroborate the manner of occurrence as set out by the informant in his fardbeyan and the prosecution at the trial during the course of investigation. It has been the consistent case of the prosecution that all the persons named in the F.I.R. has resorted to indiscriminate firing targeting the deceased and PW-15 when they were going on a motorcycle. The informant (PW-4) in para 17 during his cross-examination specifically deposed that six bullets had hit the deceased and two, to the injured witness (PW15). He reiterated that he was witnessing the entire occurrence by hiding himself behind a tree. Similarly, PW-15, consistent

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with the evidence of the informant deposed that the miscreants were firing from a distance of 10 to 15 feet. Six bullets had hit the deceased. In his evidence, he described as to which shot fired by whom had hit the deceased and PW-15. According to him the fire shot by Subhash Yadav hit the deceased in the right side of the neck and the second one in his chest. Two shots were fired by Kishan Kumar, first of which hit the deceased in his chest and the second on his back. The appellant Shree Prasad Ray had fired two shots, one of which had hit the rib cage of the deceased and the other hit the waist of the deceased. Appellant Amrendra Kumar Ray shot at PW-15 one of which hit him in his right arm and the other in his chest. He also deposed that he regained consciousness two days after the occurrence while under treatment in the clinic of PW-14. We have noted hereinabove the antemortem injuries sustained by the deceased as per the postmortem report. It is evident from the postmortem report (Exhibit-1) and the evidence of the doctor who had conducted the postmortem examination that the deceased had sustained two fire arm injuries and accordingly, two entry wounds and two exit wounds were found to have been caused by fire arm. On close scrutiny of evidence of PW-15, it can be easily inferred that he is not wholly reliable. This is also for the

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reason that in his evidence, he gave a vivid description of a respective shots made by the accused persons and, the shots made by which accused had shot which part of the body of the deceased and PW-15 himself, which appears to be highly improbable in normal circumstances. It is noteworthy that there are two witnesses namely PW-2 (the informant) and the injured witness PW-15 who claimed to have seen the occurrence. Their consistent evidence to the effect that the deceased had received six gun shots injuries is not corroborated by the medical evidence rather the same stands falsified by the same.

¶190

There is yet another aspect of the matter which has been argued on behalf of the convicts. It has been argued that whereas the witnesses have deposed that the fires were shot from a distance of 10 to 15 feet, the entry wounds have been found to be ‘black’ and ‘chard’ which would have been possible only if the shots were fired from a close range. This is an additional reason why the manner of occurrence as set out by the prosecution becomes doubtful. The postmortem report (Exhibit-1) is not only inconsistent with the oral evidence of eye witnesses rather the same contradicts the evidence of the said eye witnesses. We are, thus, of the view that this aspect coupled with the fact that the first wound of entry of the deceased was

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found to have passed obliquely, in the postmortem examination, entering into the right side of neck near the lateral end of right cervical, damaging right lung, liver and perforating the diaphragm and the exit wound being on the right side of the back from the spine, gives an impression that the shots leading to injury caused to the deceased were fired from above, contrary to the prosecution’s case that the shots were fired from the agricultural field and with the deceased on the same plain. Similar is the situation in case of second fire arm injury, the entry wound being on the right side of the chest and which passed obliquely coming out of the right side of the back, just one inch away from the vertebral spine. The antemortem injuries sustained by the deceased appears to have been caused by firing from a very close range. We are of the view, thus, that it would be unsafe for this court to wholly rely on the evidence of PWs 4 and 15 who have claimed to be eye witnesses. PW-1 is not an eye witness to the occurrence. According to him, he had reached the place of occurrence soon after the shots were fired and had seen the persons named in the F.I.R. including the convicts, fleeing from the place of occurrence. He is apparently a chance witness. We find contradictions in the evidence of the witnesses on the point of the accused persons fleeing from the

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place of occurrence after committing the offence. It may be noted that in the F.I.R. the informant asserted that the accused persons fled away on motorcycle(s) and horse(s). In his deposition, at the trial, PW- 4 testified that after committing the offence the miscreants fled away on motorcycle. In his crossexamination, he deposed that all the accused persons had fled away on one motorcycle. Further, three accused persons had escaped on one motorcycle. It is noteworthy that it is the prosecution’s case that there were altogether nine persons who had committed the offence and had opened indiscriminate firing. The informant in his cross-examination, however, deposed that three persons had fled away on a motorcycle. There is no reference to the accused persons fleeing away from the place of occurrence after committing the offence, riding horses.

¶195

The evidence of PW-1 that he had seen the accused persons fleeing away from the place of occurrence becomes doubtful. We are thus of the view that the manner of occurrence as mentioned in the First Information Report and subsequently, disclosed by the witnesses at the trial cannot be said to have been conclusively proved beyond doubt. It emerges from the materials on record, which in fact is not in dispute that the deceased and the appellant Shree Prasad Ray are full brothers.

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He and his two sons appellant Amrendra Kumar Ray were named in the F.I.R. Satyanarayan Yadav and his two sons were also named in the F.I.R. The property dispute between the family of the deceased is not much in controversy. The way the allegations were made in the F.I.R. describing in detail the specific manner of occurrence, attributing fire of shots by different weapons by the accused persons, there appears to be a chance of their implication in the wake of such dispute.

¶198

The last but not the least, we notice from the records that there has been no proper compliance of the statutory provision under Section 313 of the CrPC while questioning the accused persons after closure of the prosecution’s evidence. Section 313(1)(b) of the CrPC mandates that in a trial after the witnesses for the prosecution had been examined and before the accused to called on for defence, to question the accused facing trial generally on the case for the purposes of enabling the accused personally to explain any circumstance appearing in the evidence against him. The significance of the said provision has been addressed by the courts on umpteen number of occasions. In case of Sharad Birdhi Chand Sarda vs State Of Maharashtra reported in (1984) 4 SCC 116 the Supreme Court has laid down in unequivocal terms that Section 313 lays down

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that in every enquiry or trial for the purpose of enabling the accused person to explain any circumstance appearing in the evidence against him the court may at any stage, without previously warning the accused, put such questions to him as the court considers necessary and shall, after the witnesses for the prosecution have been examined and before he is called for his defence, question him generally on the case. The incriminating circumstances in respect of which an accused is not examined cannot be used against him, the Supreme Court has ruled.

¶201

The view taken by the Supreme Court in Sharad Birdhi Chand Sarda (supra) have been consistently followed in subsequent decisions.

¶202

In case of State of UP Vs. Md. Iqram and Anr. (AIR 2011 SC) the Supreme Court has held the requirement under Section 313 of the Cr.P.C. to be mandatory in nature which casts an imperative duty on court and confers a corresponding right on the accused. In this case also the Supreme court has held that the circumstances not put to an accused in his examination under Section 313 of the CrPC cannot be used against him. In the case of Naval Kishore Singh Vs. State of Bihar reported in (2004) 7 SCC 502 the Supreme

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Court has disproved the practices of putting the entire evidence against the accused in a single question and giving an opportunity in that manner to explain the circumstances for the reason that the accused may not be in a position to give a reasonable and satisfactory intelligent explanation.

¶205

In the present case, we have noted the nature of common questions which were put to all the accused persons including the convicts who are here before us in the present set of appeals. All of them were informed by the trial court that according to the witnesses, they, with other accused persons equipped with fire arms, with a common intention had indiscriminately fired upon the deceased whereafter he died. Further, another common question was put to all the accused persons that on the said date of occurrence, he with other accused persons with a common intention had resorted to indiscriminate firing on Rajkumar Ray (PW-15) because of which he sustained injuries. Thirdly, the injury caused by the accused persons with the fire arms used by them, Rajkumar Ray (PW-15) became handicapped. It is manifest on reading of all the questions put to the accused persons under Section 313 of the CrPC that the same were vague. All the incriminating circumstances which have been taken into account by the trial

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court for holding the appellants guilty, were not explained to them so as to elicit their proper explanations to such questions. The examination under Section 313 of the CrPC was done by the trial court apparently in a slip shot manner which cannot be approved.

¶208

In the background of the discussions as noted above, we are of the considered opinion that –

¶209

(i) The prosecution failed to prove the place of occurrence for its failure to prove the presence of blood stains, the motorcycle of the deceased and the cycle of the informant and articles which he was carrying, which according to the prosecution’s case were lying at the place of occurrence.

¶210

(ii) There is no explanation coming forth as to why the blood stained clothes of the deceased and the injured (PW-15) were not recovered.

¶211

(iii)The ocular evidence is not corroborated by postmortem report rather it contradicts the oral evidence of the prosecution witnesses. PWs 4 and 15 who have claimed to be the eye witnesses to the occurrence do not appear to be wholly reliable witnesses on whose evidence, it would not be safe to uphold the finding of conviction.

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(iv) No used cartridges were recovered from the place

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of occurrence. It is the specific case of the prosecution that there had been indiscriminate firing and the police had reached the place of occurrence nearly 1:15 hours after the time of occurrence.

¶215

(v) There has not been proper compliance of the requirement under Section 313 of the Cr.P.C.

¶216

For the reasons noted above we are of the view that the impugned judgement of the trial court to the extent it relates to recording finding of conviction of the appellants cannot be sustained. The appellants deserve to be acquitted by giving them benefit of doubt in the facts and circumstances as noted above.

¶217

Resultantly, Criminal Appeal (DB) No. 319 of 2019, Criminal Appeal (DB) No. 673 of 2019, Criminal Appeal (DB) No. 340 of 2019 and Criminal Appeal (DB) No. 495 of 2019 are allowed.

¶218

Consequently, the criminal appeals filed by the informant under the proviso to section 374 of the CrPC i.e. Criminal Appeal (DB) No. 339 of 2019 and Criminal Appeal (DB) No. 486 of 2019 are hereby dismissed.

¶219

Since, the appellant Shree Prasad Ray of Criminal Appeal (DB) No. 319 of 2019, appellant Amrendra Kumar Ray of Criminal Appeal (DB) No. 673 of 2019, Naresh Yadav of

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Criminal Appeal (DB) No. 340 of 2019 and Sanjay Yadav of Criminal Appeal (DB) No. 495 of 2019 are on bail, they are discharged from the liability of their bail bonds and sureties, if any.

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(Chakradhari Sharan Singh, J)

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(G. Anupama Chakravarthy, J)

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ranjan/rajesh/ aditi/suraj/amit-

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Sanjay Kumar Roy @ Sanjay Kumar v. The State of Bihar

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