Arjun Rai Vs The State Of Bihar

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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CRIMINAL APPEAL (DB) No.700 of 2016

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Arising Out of PS. Case No.-37 Year-2005 Thana- TAJPUR District- Samastipur

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

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Arjun Rai son of Late Ram Uchit Rai, resident of Village-Keshonarainpur, P.S. Tajpur Halai, District Samastipur.

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The State of Bihar ===============	====	... Versus ... ... ===========================	... Appellant Respondent ========
Appearance:
For the Appellant/s	:	Mr. Ajay Kumar Thakur, Advocate Ms. Vaishnavi Singh, Advocate Mr. Ritwik Thakur, Advocate
For the State	:	Mr. Ajay Mishra, APP
For the Informant ===============	: ====	Mr. Suraj Narayan Yadav, Advocate Mr. Bijay Bhushan, Advocate Mr. Ashok Kumar, Advocate Mr. Mansoon Alam, Advocate ===========================	========

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CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH

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and

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HONOURABLE MR. JUSTICE SHAILENDRA SINGH CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH) Date: 12.02.2025

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The present appeal under Section 374(2) read with Section 389(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred against the judgment of conviction and order of sentence dated 06.06.2016 and 08.06.2016, respectively, passed in Sessions Trial No. 684 of 2005 (arising out of Tajpur (Halai O.P.) P.S. Case No. 37 of 2005) by the learned Additional District and Sessions Judge-2^nd , Samastipur (hereinafter referred to as “learned Trial Judge”). By the said

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judgment, the learned Trial Judge has convicted the appellant for commission of the offences, under Sections 302 and 379 of the Indian Penal Code (hereinafter referred to as “IPC”) and has sentenced him to undergo rigorous imprisonment for life under Section 302 of the IPC with fine of Rs.50,000/- and in default he has been directed to undergo rigorous imprisonment for a further period of six months separately. The appellant has been further sentenced under Section 379 of the IPC to undergo rigorous imprisonment for a period of three years. Both the sentences have been ordered to run concurrently.

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Short facts of the case are that on 09.02.2005, at about 14:30 hours, the fardbeyan of the deceased-informant was recorded at Sadar Hospital, Samastipur by the Sub-Inspector of Police, Town Police Station, wherein he has stated that on 09.02.2005 at about 9:00 a.m., while he was going from his house to Samastipur Court he had asked his son, namely Sanjay to come along with him, however he said that he would come after sometime hence, he had left his house after 15-20 minutes on his new green cycle along with the documents of title suit and a sum of Rs.1500/- and when he had travelled for about one kilometer and reached near the pond, the accused persons namely, Arjun Rai (Appellant), Subodh Rai, Nand Kishore Rai,

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Sanjeet Rai and Ranjeet Rai, who were present there from before, armed with lathi and khanti had surrounded the deceased-informant whereupon Arjun Rai (Appellant) had exhorted other accused persons to assault the deceasedinformant and kill him, whereafter Arjun Rai (Appellant) had assaulted the deceased-informant with khanti with an intention to kill him, however, he had obstructed with his right hand, resulting his hand being fractured. Thereafter, Arjun Rai (Appellant) had assaulted the deceased-informant with khanti on his stomach and tried to insert it inside the stomach, however, the deceased-informant had obstructed it with his right hand resulting in his elbow being fractured. The deceased-informant had then fallen down, whereafter Subodh Rai, who was armed with khanti had assaulted the deceased-informant on his right leg knee, leading to blood oozing out from there. Then Ranjeet Rai and Sanjeet Rai, with an intention to kill the deceasedinformant had repeatedly assaulted him by lathi leading to the portion below the right leg being fractured. Thereafter, Nand Kishore Rai had sat on the chest of the deceased-informant and with the butt of pistol, he had assaulted on the chest of the deceased-informant as also had pressed his neck. The deceasedinformant had then raised an alarm, resulting in his son namely,

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Sanjay Kumar Sharma (P.W.5) and co-villagers, namely Pandav Singh and Ram Singh having arrived there, whereafter Arjun Rai had taken out the case file from the bicycle of the deceasedinformant and Nand Kishore Rai had taken out a sum of Rs.1500/- from the pocket of the deceased-informant and then all the accused persons had fled away. The deceased-informant has further stated that he was then taken to Sadar Hospital in an injured condition and on the way, he had become unconscious however, subsequently he regained consciousness at the hospital where he has given his statement. The statement was read over to the deceased-informant and after finding the same to be correct, the deceased-informant had put his left thumb impression on the fardbeyan since he had received injury on his hand and was unable to put his signature.

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After recording of the fardbeyan, a formal FIR bearing Tajpur (Halai O.P.) P.S. Case No. 37 of 2005 was registered for offences under Sections 148/307/379 of the IPC on 11.02.2005 at about 13:00 hours against the aforesaid appellant and four others. Subsequently, on account of the death of the informant, Section 302 of the IPC was added, vide order dated 12.02.2005 by the learned Trial Court. After investigation and finding the case to be true qua the appellant and others, the police had

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submitted charge sheet on 10.05.2005 under Sections 148/302/ 379/34 of the IPC. The learned Trial Court had taken cognizance of the offences under Sections 147/148/302 and 379/34 of the IPC vide order dated 20.05.2005. Thereafter, the case was committed to the Court of Sessions and was numbered as Sessions Trial No. 684 of 2005. After taking into consideration the charge sheet and the materials collected during investigation, the learned Trial Judge framed charges under Sections 302/34, 379 and 148 of the IPC against the appellant to which he pleaded not guilty and claimed to be tried.

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During the course of trial, eight prosecution witnesses were examined i.e. P.W.1 Prabhat Ranjan (son of the deceasedinformant), P.W.2 Asharfi Sada, P.W.3 Ram Kumar Singh, P.W.4 Himanshu Shekhar (nephew of the deceased-informant), P.W.5 Sanjay Kumar Sharma (son of the deceased-informant), P.W.6 Dr. Purushottam Kumar Singh (Doctor who had conducted autopsy of the deceased), P.W.7 Bhushan Saini and P.W.8, Subodh Kumar Singh (Investigating Officer).

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Shri Ajay Kumar Thakur, the learned counsel for the appellant has submitted that the person who has scribed the fardbeyan has not been examined and the fardbeyan has also not been proved, hence it is submitted that no fardbeyan of the

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deceased-informant was ever recorded. Reference in this connection has been made to a judgment rendered by the Hon’ble Apex Court in the case of Kans Raj vs. the State of Punjab & Ors. , reported in (2000) 5 SCC 207, to submit that in order to make the statement of the deceased a substantive evidence the person or the agency relying upon it is under a legal obligation to prove the making of such statement as a fact, thus if it is in writing, the scribe must be produced in the Court and if it is verbal, it should be proved by examining the person who had heard the deceased making the statement. In the present case, the scribe who has recorded the statement of the deceased in his writing has not been examined, hence the statement of the deceased-informant cannot be stated to be a substantive piece of evidence, thus, cannot be relied upon. It is also submitted that treating doctors have not been examined, causing gross prejudice to the appellant. It is next submitted that the prosecution witnesses have consistently deposed that the deceased-informant was becoming conscious and unconscious intermittently, hence under such circumstances, the deceased-informant who was critical could not have given a detailed statement as has been recorded by way of the aforesaid fardbeyan on 09.02.2005 and moreover, there is no evidence on record to show that the deceased-informant was

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in a fit state of mind to give statement.

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The learned counsel for the appellant has further submitted that all the independent witnesses have been withheld by the prosecution, whose statements were recorded by the police under Section 161 of the CrPC. It is also contended that the present case will not fall within the ambit of Section 302 of the IPC, inasmuch as though the accused persons were armed with firearm and khanti , however, neither firearm injury nor injury caused by khanti has been found on the body of the deceased and almost all the injuries except one are on non-vital parts of the body as also most of the injuries are laceration, bruises and abrasion, thus the appellant did not have any intention to kill the deceased nor he had knowledge that by assaulting the deceased-informant in the manner he has done, it would have resulted in death of the deceased. It is next contended that though the accused were only five in number, however, it is apparent from the evidence led in the present case that there were 20-30 persons who had arrived at the place of occurrence, nonetheless, no attempt was made to capture the appellant and others. In fact, no incriminating articles/materials have been found from the place of occurrence and the evidence of the witnesses is full of contradictions, hence not fit to be

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relied upon. It is stated that the present case would also not fall within the ambit of Section 304 Part II of the IPC.

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The learned counsel for the appellant has referred to various judgments rendered by the Hon’ble Apex Court, on the issue of admissibility of a dying declaration, which are being enumerated herein below:-

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(i) Judgment rendered in the case of Manjunath & Others vs. State of Karnataka , reported in 2023 SCC OnLine 1421.

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(ii) Judgment rendered in the case of Paramjit Singh vs. State of Punjab , reported in (1997) 4 SCC 156.

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(iii) Judgment rendered in the case of Uttam vs. State of Maharashtra , reported in (2022) 8 SCC 576. In the said judgment, reference has been made to a judgment rendered in the case Khushal Rao vs. State of Bombay , reported in AIR 1958 SC 22, wherein the principles governing circumstances where courts can accept a dying declaration without corroboration, have been dealt with extensively, which are enumerated herein below:-

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“(1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated;

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(2) that each case must be determined on its own

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facts keeping in view the circumstances in which the dying declaration was made;

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(3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence;

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(4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence;

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(5) that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and

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(6) that in order to test the reliability of a dying declaration, the court has to keep in view, the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night; whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control; that the statement has been consistent throughout if he had

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several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties.”

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(iv) Judgment rendered in the case of Govind Narain vs. State of Rajasthan , reported in 1993 Supp (3) SCC 343. (v) Judgment rendered in the case of Sudhakar vs. State of Maharashtra , reported in (2000) 6 SCC 671 .

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The learned counsel for the appellant has next referred to a judgment rendered by the Hon’ble Apex Court in the case of Deny Bora vs. State of Assam , reported in (2014) 14 SCC 42 to submit that the Hon’ble Apex Court has held in the said judgment that non-examination of material witnesses and them being withheld by the prosecution would oblige the Court to draw an adverse inference against the prosecution by holding that if such witness would have been examined, it would not have supported the prosecution case. In this connection, yet another judgment rendered in the case of Ishwar Singh vs. State of UP , reported in, (1976) 4 SCC 355, has been relied upon. The learned counsel for the appellant has also relied upon a judgment rendered by the Hon’ble Apex Court in the case of Mohan Lal vs. State of Rajasthan, reported in (1999) 9 SCC

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209, to contend that it has been held therein that suppression by the prosecution of the earliest version is also a material infirmity. Lastly, the learned counsel for the appellant has relied upon a judgment rendered in the case of State of Madhya Pradesh vs. Ramjan Khan & Ors., reported in 2024 SCC OnLine SC 3070, to contend that an FIR is not an encyclopedia disclosing all facts and details relating to the entire prosecution case, which is never treated as a substantive piece of evidence and the same can only be used for corroborating or contradicting its maker when he appears in court as a witness.

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Per contra , the learned counsel for the informant, Mr. Suraj Narayan Yadav, has submitted that cross-examination has not been conducted by the defence on the issue of recording of the fardbeyan . He has also submitted that P.W.5 Sanjay Kumar Sharma has stated in his evidence that he had taken his father for treatment to the Sadar Hospital Samatipur where his statement was recorded by the police and he had put his signature on the fardbeyan of his father alongwith P.W.3 Ram Kumar Singh, thus it is submitted that P.W.5 has proved the fardbeyan, hence the same can be relied upon for the purposes of upholding the conviction of the appellant. It is next contended that P.W.8, i.e. the Investigating Officer of the present

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case has stated in his evidence that he had forwarded the fardbeyan of the deceased-informant by his forwarding note, which he has identified to be in his writing as also bears his signature and the same has been marked as Ext.1/3, thus the fardbeyan has definitely stood proved.

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At this juncture, the learned counsel for the informant has referred to Section 33 of the Indian Evidence Act, 1872 (hereinafter referred to as “the Act, 1872”) to submit that the evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, hence the fardbeyan of the deceased-informant can very well be said to be a relevant piece of evidence. It is contended that the statement of deceased is a dying declaration by virtue of Section 32(1) of the Act, 1872. In this connection, reliance has been placed on a judgment rendered by the Hon’ble Apex Court in the case of Sri Bhagwan vs. State of U.P. , reported in (2013) 12 SCC 137 to contend that in the said case it has been held by the Hon’ble Apex Court that the statement of the victim/deceased made before the witnesses immediately after the incident assumes the character of dying declaration

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falling within the four corners of Section 32(1) of the Act, 1872. After death of the victim and then whatsoever credence that would apply to a declaration governed by Section 32(1) of the Act, 1872 should automatically be deemed to apply in all force to such a statement even though it was once recorded under Section 161 CrPC. It is further submitted that the injury report would show that fatal blow, relatable to Injury No.15 was inflicted by Nand Kishore Rai and Arjun Rai (Appellant), hence the appellant is definitely guilty of offence under Section 302 of the IPC. In this connection, reference has been made to a judgment rendered by the Hon’ble Apex Court in the case of Ramji Singh vs. State of Bihar , reported in (2001) 9 SCC 528 wherein it has been held that common intention can be gathered from the circumstances and the manner in which the assault is carried out.

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The learned Additional Public Prosecutor for the State, Mr. Ajay Mishra, has submitted that non-examination of the scribe of the fardbeyan will in no case vitiate the dying declaration. It is further stated that the credibility of the evidence led by the prosecution has not been impeached by the defence and in fact, the testimony of the witnesses is sufficient to uphold the conviction of the appellant. He has referred to evidence of P.W.4 Himanshu Shekhar, to submit that the evidence has not been contradicted by

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the Investigating Officer (P.W.8), hence his evidence is enough to uphold the conviction of the appellant. The learned Additional Public Prosecutor for the State has next referred to the evidence of P.W.6 i.e. the doctor Purushottam Kumar to submit that he has stated in conclusion that the injuries found on the body of the deceased-informant were sufficient to cause his death. The learned Additional Public Prosecutor for the State has relied upon a judgment rendered by the Hon’ble Apex Court, in the case of Balbir Singh vs. State of Punjab, reported in (2006) 12 SCC 283, to contend that it has been held therein that non-recording of dying declaration of the deceased by the Magistrate cannot itself be a ground to reject the whole prosecution case as also law does not provide that a dying declaration should be made in any prescribed manner or in the form of questions and answers, however, dying declaration should be voluntary and not tutored, as also its admissibility as evidence is statutorily recognized in terms of Section 32 of the Act, 1872. In this connection, reference has also been made to a judgment rendered by the Hon’ble Apex Court, in the case of Jai Karan vs. State of Delhi (NCT) , reported in (1999) 8 SCC 161, paragraph No.10 whereof is reproduced herein below:-

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“ 10. A dying declaration is admissible in evidence on the principle of necessity and can form the basis for

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conviction if it is found to be reliable. While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premiss that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. It is this premiss which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross-examined by the person who is sought to be implicated. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on a strict scrutiny finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence - neither extra strong nor weak - and can be acted upon without corroboration if it is found to be otherwise true and reliable.”

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The learned APP for the State has next relied upon a judgment rendered by the Hon’ble Apex Court, in the case of Gian Chand & Ors. vs. the State of Haryana , reported in (2013) 14 SCC 420, to submit that the Hon’ble Apex Court has

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held therein that in absence of question being put to the witness in cross-examination to a particular fact/circumstance, the unchallenged part of the evidence of such a witness is to be relied upon. In this regard, reference has also been made to a judgment rendered by the Hon’ble Apex Court in the case of Laxmibai vs. Bhagwantbuva , reported in (2013) 4 SCC 97, paragraph No.40 whereof is reproduced herein below:-

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“ 40. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination-in-chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the

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circumstances which indicate that the version of events provided by him is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses.”

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Thus, it is submitted that there being no contradictions in the evidence of the prosecution witnesses, who are consistent in their testimony, no interference is required in the judgment of conviction and the order of sentence passed by the learned Trial Judge, hence the present appeal is fit to be dismissed.

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Besides hearing the learned counsel for the parties, we have minutely perused both the evidence i.e. oral and documentary. Before proceeding further, it is necessary to cursorily discuss the evidence.

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P.W.1 Prabhat Ranjan, who is the son of the deceasedinformant, has stated in his deposition that the occurrence dates back to 09^th February 2005 at about 09:15 a.m. in the morning when he was planting vegetables at a distance of 200 yards on the west. Having heard hulla (alarm), P.W.1 had gone to the place of occurrence and he saw that Arjun Rai (Appellant), Subodh, Nand Kishore, Sanjeet and Ranjeet were assaulting his father. The place of occurrence is situated near Subadhi Pokhar

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(Pond) towards eastern side near Keso Narayanpur Road. Arjun Rai (Appellant) was assaulting father of P.W.1 by khanti , Subodh was also assaulting his father by khanti , and Nand Kishore Rai was assaulting with the butt of the pistol and pressing the neck of his father. Ramjee Rai was exhorting to kill the father of P.W.1. P.W.1 has also stated that on that day, his father was going to the civil court to attend the hearing of the title suit. P.W. 1 has next stated that thereafter, Arjun Rai (Appellant) had snatched the BSA cycle of his father and documents of the title suit and ran away and in the meantime, Nand Kishore Rai had snatched a sum of Rs.1500/- from his father. P.W.1 has also stated that his father had become injured and his right hand as also leg had broken into 3-4 pieces, whereafter they had hired a vehicle and taken his father to Samastipur Hospital where treatment was done. Thereafter, father of P.W.1 was referred to Patna Hospital and then they had gone to Dr. Rewati Raman Jha at Samastipur for enquiring as to whether the patient can be taken to Patna safely and then the police had arrived and recorded the statement of his father, which was read over to him and over the same he had put his impression as he was not able to sign on account of his hand being broken, whereupon Sanjay Kumar Sharma (P.W.5) and

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Ram Kumar Singh (P.W.3) had put their signature over the statement of the father of P.W.1 as witness, which P.W.1 has recognized and the same has been marked as Ext. 1/1. P.W.1 has next stated that in the night, at about 9:00 p.m., his father had died in the clinic of Dr. Rewati Raman Jha. He has also stated that a title suit was going on with Arjun Rai (Appellant) and others, hence they have committed the said occurrence. P.W.1 had recognized all the accused persons, who were standing in the dock. P.W. 1 has stated in his cross-examination that he had stated before the police in the police station that when he reached the place of occurrence, the accused persons were assaulting his father. P.W.1 has further stated in his crossexamination that when he had reached at the place of occurrence, apart from the accused persons, several other persons were present there and they had stood there for 10 minutes. P.W. 1 has also stated that on the date of occurrence, at about 11 a.m., all of them had reached hospital and his father had stayed at the Sadar Hospital upto 02:30 p.m. where the doctor had examined his father and treated him.

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P.W.2 Asharfi Sada, who is an independent witness, has stated in his deposition that the occurrence dates back to one and a half years at about 8-9 a.m. in the morning. After he had

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heard hulla (alarm), he had gone to the place of occurrence and had seen that Arjun Rai (Appellant), Subodh and their brothers were assaulting Shiveshwar Master Ji by iron rod whereupon he had become injured leading to his subsequent death. P.W.2 has further stated that co-villagers and the son of the said Shiveshwar Sharma had then taken him on a vehicle to Samastipur for treatment where he died. P.W.2 had recognized all the accused persons standing in the dock. P.W.2 has stated in his cross-examination that his statement was recorded by the police wherein he had stated before the police that Subodh and Arjun (Appellant) were assaulting Master Ji by iron rod and sota (whip). P.W.2 has further stated that upon alarm being raised, co-villagers along with the sons of Master Ji had arrived at the place of occurrence and found him to be unconscious as also he was not speaking but was only wriggling in pain and in the said condition he was lifted into a vehicle and taken to hospital in an unconscious state where he died.

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P.W.3 Ram Kumar Singh has stated in his deposition that the occurrence dates back to 09.02.2005 at about 9-9.30 a.m. in the morning when he was going to the in-law’s place of his child on a motorcycle and had reached near the pond, whereupon he saw that some people had assembled there armed with lahti ,

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sota and khanti and were assaulting one person. P.W.3 had then stopped his motorcycle there and raised alarm, whereafter some people had arrived along with the son of Shiveshwar Sharma, who was being assaulted and had become badly injured whereafter, he was taken to the hospital and in the meantime, he had gone to in-law’s place of his child. P.W.3 has also stated that subsequently, he heard that the accused persons had ran away with cycle and documents. P.W.3 has further stated that Arjun Rai (Appellant), Subodh Rai and Sanjeet Roy were assaulting the deceased-informant and while Subodh was assaulting by khanti , Arjun Rai (Appellant) was assaulting by rod and others were assaulting by lathi . P.W.3 has stated in his crossexamination that he had given his statement before the police at the police station and had stated that Subodh was holding khanti in his hand while Arjun Rai was holding rod and others were holding lathi in their hands. P.W.3 has stated that he had reached the in-law’s place of his child at 10:30 a.m in the morning but they were not available there, hence he had returned to his house after half an hour and after eating food, he had gone to the hospital at around 01:30 p.m. in the afternoon and he saw that the deceased was sometime regaining consciousness and sometime he was becoming unconscious and he stayed at the

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hospital till 02:30 p.m. when the statement was recorded by the police and the deceased was referred for further treatment to Patna. As the health condition of the deceased was deteriorating, he was taken to the clinic of Dr. R.R. Jha where he died during the course of treatment. P.W.3 has stated in his crossexamination that when he reached at the place of occurrence, Shiveshwar Sharma had fallen down and then he had raised alarm, whereupon people including the family members of the deceased-informant had come and then all the people including him had taken him to hospital in a vehicle. P.W.3 has next stated that blood was oozing out from hands and legs of the deceased, who had been badly assaulted.

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P.W.4 Himanshu Shekhar, who is the nephew of the deceased-informant, has stated in his deposition that the occurrence dates back to 09.02.2005 at about 9 a.m. in the morning when he was cutting crops in his field and upon hearing hulla (alarm), he had gone to the place of occurrence and then he saw that Arjun Rai (Appellant), Subodh Rai, Nandbali, Ranjeet and Sanjeet Roy were assaulting Shiveshwar Sharma. Nandbali was armed with pistol, Arjun (Appellant) and Subodh were armed with rod and Ranjeet was armed with lahti . They were assaulting the deceased repeatedly. Thereafter, he and others who had arrived

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there had gone near the deceased, however, in the meantime, the accused persons had ran away with the documents and the cycle of the deceased-informant and the people present there had lifted the deceased-informant and taken him for treatment to Samastipur where he was referred to Patna but since his condition was deteriorating, they had taken him to the clinic of Dr. R.R. Jha for treatment and during the course of treatment he had died at about 9-9:30 p.m. in the night. P.W.4 had recognized the accused persons standing in the dock. P.W.4 has stated that Subodh, Nandbali, Banshidhar Thakur and Ranjeet Roy had snatched the medical prescription from him and Subodh had beaten him on his face by the butt of pistol and was asking him not to testify. P.W.4 has stated in his cross-examination that his statement was recorded by the police and it is not a fact that he had not told the police that Nandbali armed with pistol, Arjun and Subodh armed with rod and Ranjeet armed with lathi were assaulting the deceased repeatedly and they had ran away with the cycle and documents of the deceased. P.W.4 has stated that he was cutting crops in his field, ½ KM. east of his house and when he reached at the place of occurrence about 10 people were present there including Ram Kumar, Pandav, Suryadev Thakur, Arvind Rai, Devendra Rai, Vidyasagar, Ram Naresh and Bhona Rai. He has next stated that

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injuries were present all over the body of his uncle, including his hand from where blood was falling down and then they had taken the deceased to the hospital. At the hospital, the doctor had referred the deceased-informant to Patna, after seeing that his condition was serious but they had taken the deceased-informant to Dr. R.R. Jha’s clinic where the condition of the deceased started deteriorating and he died during the course of treatment.

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P.W.5 Sanjay Kumar Sharma, who is the son of the deceased-informant has stated in his deposition that the occurrence dates back to 09.02.2005 at about 9:30 a.m. in the morning when his father was going to the civil court and he was following him from behind. The accused persons had surrounded his father towards the eastern side of Suwadhi Pokhar (pond) and he saw that Arjun Rai (Appellant) and Subodh armed with khanti , Nand Kishore armed with pistol and Ranjeet and Sanjeet armed with lahti were repeatedly assaulting his father while Ramjee Rai was standing nearby and was exhorting the other accused persons to kill the deceasedinformant whereupon P.W.5 had raised alarm and then Ram Kumar, Kamta, Ramanand etc. had arrived there and then the accused persons had ran away. P.W.5 has also stated that Nand Kishore Rai was sitting on the chest of his father and was

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pressing his neck whereafter, his father became unconscious. Arjun Rai had then taken away the BSA cycle of his father as also the documents pertaining to title suit and pension papers. Nand Kishore had taken away a sum of Rs.1500/- from the pocket of his father. P.W.5 has further stated that immediately thereafter, they had taken the deceased-informant on a Marshal vehicle to Sadar Hospital where treatment was done, however, since the condition was critical, the doctor had referred his father to PMCH, Patna and in the meantime the police had arrived and recorded the statement of his father which was read over to him and then he had put his impression since he could not sign on account of his hand being broken whereupon P.W.5 and Ram Kumar had put their signature which he recognizes and the same has been marked as Ext.1/2. P.W.5 has further stated that since the condition of the deceased-informant was critical, they had gone for taking opinion of Dr. R.R. Jha and then taken the deceased-informant there, where in the night he had died. P.W.5 had recognized all the accused persons standing in the dock. P.W.5 has stated in his cross-examination that his statement was recorded by the police officer where he had stated that Arjun (Appellant) and Subodh armed with khanti , Nand Kishore armed with pistol, Ranjeet and Sanjeet armed with lathi

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were assaulting his father and Ramjee was standing nearby, who was giving order to kill the deceased and then Nand Kishore had sat on the chest of the deceased and had pressed his neck. P.W.5 has stated that when he had reached at the place of occurrence, upon alarm being raised, apart from family members, ten covillagers had also arrived there. P.W.5 has further stated in his cross-examination that when he reached at the place of occurrence, he found injuries on the head, leg and chest of his father and blood was oozing out from hand and legs as also his father was wriggling in pain and had fallen down on the road, whereafter marshal vehicle was called and the deceasedinformant was taken to the hospital. He has further stated that sometimes his father used to regain consciousness and sometimes he used to become unconscious, nonetheless during the course of treatment, his statement was recorded by the police and then he was referred, whereafter they had reached the clinic of Dr. R.R. Jha at about 3:00 p.m. in the evening where also his father used to sometime regain consciousness and then used to become unconscious, however his father died at about 10 p.m. in the night. He has stated that a case and a counter case was going on in between the parties.

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P.W.6 Dr. Purshottam Kumar Singh has stated in his

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deposition that he was posted at Sadar Hospital, Samastipur on 10.02.2005, had conducted autopsy/postmortem on the dead body of Shiveshwar Prasad Sharma and had found the following ante-mortem injuries:-

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“(i) Lacerated wound over dorsum of right hand, size about ½ "x ½ "x muscle deep.

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(ii) Bones of right forearm found clinically fractured.

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(iii) Three stitched wounds over back side of right lower part of arm each about 1" in length.

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(iv) Lacerated wound over dorsum of right thumb, size about 1” x ¼ ” x muscle deep.

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(v) Bruise over lower third of right forearm dorsally, size about 2"x ½”.

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(vi) Lacerated wound over distal part of left index finger dorsally, size about ½" x ¼ " x muscle deep.

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(vii) Stitched wound below left knee joint on front 1" in length.

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(viii) Abrasion over left heel, size 1"x ¼ ".

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(ix) Stitched wound over ventral aspect of right middle toe 1" in length and stitched wound over right thigh laterally, size about 5 ½” in length.

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(x) Bruise over left buttock, size 1"x 1".

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(xi) Bruise over left arm 1"x ¼ " and bruise over left wrist joint dorsally, size ½ "x ¼ " and over lateral aspect of left elbow joint, size ½ "x ½ ".

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(xii) Bruise over front of lower left thigh 3 in number each about ½ x ½”.

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(xiii) Stitched wound over space between left little toe and adjacent toe, size about ½” in length.

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(xiv) Multiple bruises over front of right leg, left little toe & right knee joint & right and right lower thigh.

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(xv) Multiple bruises over left side chest (front) ½ " x ½ " to ½” x ¼”.

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The findings of P.W.6 on dissection are as follows:-

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On dissection of chest :-

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(i) Left sided 3^rd , 4^th , 5^th , 6^th ribs were found fractured on anterior portion.

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(ii) Left side pleura and lung found lacerated.

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(iii) Left pleural cavity found full of blood.

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On dissection of limbs :-

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Both bones of right forearm found fractured and

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hematoma present all around fracture.

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P.W.6 has opined about the weapon used as follows :-

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Wound Nos. 1, 2, 4, 5, 6, 8, 10, 11, 12, 14, 15, caused by hard blunt substance and rest wounds are stitched already so weapons could not be determined.

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P.W.6 has found time elapsed since death to be between 6 to 24 hours.

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P.W.6 has finally opined as follows: -

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The cause of death was shock and hemorrhage produced by above mentioned injuries.

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P.W.6 has proved the postmortem report which has been

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prepared in his pen and signature and the same has been marked as Ext.2. Time of death has been stated to be in between 6-24 hours. P.W.6 has stated in his cross-examination that rigor mortis starts spreading after 3 hours of death. In between 6-24 hours it spreads in four limbs and it may be 18-24 hours. Rigor mortis was present in four limbs and almost all the injuries except injury no.15 have been found to be on non-vital part of the body. P.W.6 has also stated that such injuries are not possible by fall.

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P.W.7 Bhushan Saini, who is a formal witness, has proved the case-diary, which has been marked as Ext.3.

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P.W.8 Subodh Kumar Singh, who is the investigating officer of this case, has stated in his deposition that on 10.02.2005, he was In-charge of Halai O.P. and had received fardbeyan of Shiveshwar Sharma from Town Police Station, Samastipur, which was recorded by the Sub-Inspector, R.D. Singh of Town Police Station at Sadar Hospital, Samastipur and after receiving fardbeyan, he had forwarded the fardbeyan to Tajpur Police Station for registration of FIR. The said forwarding note, which is in the writing of P.W.8, has been proved by him and he has also recognized his signature, which has been exhibited as Ext.1/3. On the basis of the farbdeyan , Tajpur P.S. Case No.37 of 2005 dated 11.02.2005 was registered under Sections 148, 307, 379 of the IPC. He has also stated that during the course of treatment, the informant, namely, Shiveshwar Prasad Sharma died on 09.02.2005 in the night and thereafter, he had received the inquest report of the deceased on 10.02.2005, carbon copy whereof has been proved by him, which was prepared by the then Sub-Inspector, R.D. Singh and the same is in the writing of Sri R.D. Singh and bears his signature which P.W.8 has identified and the same has been marked as Ext.4. P.W.4 has further stated that after taking up the investigation, he had gone to the house of the deceased at Kesho

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Narayanpur and recorded the statement of witnesses, namely, Asharfi Sada, Ashok Kumar, Rath Dev Thakur, Sita Devi, Ram Kumar Singh, Raj Kumari Devi and Rajesh Kumar and had also inspected the place of occurrence. He has stated that the place of occurrence is situated at 100 yards east of Keshav Narayanpur near Subadhi Pokhar (pond). On 11.2.2005, P.W.8 had arrested the accused, namely, Sanjeet Roy and had also recorded the statement of witnesses namely, Pandav Singh, Maheshwar Prasad Sharma, Sanjay Kumar Sharma, Prabhat Ranjan and Himansu Shekhar. P.W.8 has stated that he had received the postmortem report from the Sadar Hospital, Samastipur and thereafter, on the basis of statement of the witnesses, inspection of the place of occurrence and the postmortem report, he had submitted charge sheet against Arjun Rai (Appellant) and Sanjeet Roy while keeping the investigation going on qua the other accused persons. P.W.8 is stated to have not recorded the statement of the deceased. He has next submitted that on 10.02.2005, after receiving the fardbeyan and the inquest report, he had gone to the place of occurrence and tried to record the statement of the sons of the deceased and his family members, however their mental condition was not found to be good, hence they had not given their statement.

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P.W.8 has stated in his cross-examination that on 24.02.2005, he had recorded the statement of Prabhat Ranjan (P.W.1), who has not stated before him that Ramjee Rai had exhorted the other accused persons to kill the informant whereupon Arjun (Appellant) and Subodh had assaulted by the butt of pistol and Nand Kishore was sitting on the chest of the informant and pressing his neck. P.W.8 has also stated that Prabhat Ranjan (P.W.1) has not stated that Arjun Rai (Appellant) had taken away the cycle of the deceased and Nand Kishore had taken out a sum of Rs.1500/- from the pocket of the deceased. P.W.8 has next stated that Prabhat Ranjan has stated before him that at the time of occurrence, he was planting vegetables near his house along with his brother. P.W.8 has also stated that witness Asharfi Sada (P.W.2) had not stated before him that Arjun and Subodh were assaulting by sota (whip) and rod. P.W.8 has also stated in his cross-examination that witness Ram Kumar Singh (P.W.3) had not stated before him that Subodh was armed with khanti and Arjun (Appellant) was armed with rod. P.W.8 has next stated that witness Himanshu Shekhar (P.W.4) has not stated before him that Nandbali armed with pistol, Arjun (Appellant) and Subodh armed with rod and Ranjeet armed with lathi were assaulting the deceased repeatedly. Lastly, P.W.8 has

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stated in his cross-examination that witness Sanjay Kumar Sharma (P.W.5) has not stated before him that Ramjee was standing nearby and was ordering the other accused persons to kill the deceased and that Nand Kishore was sitting on the chest of the deceased and pressing his neck while Ranjeet, Sanjeet armed with lathi and Arjun and Subodh armed with khanti were assaulting the deceased.

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After closing the prosecution evidence, the Ld Trial Court recorded the statement of the appellant on 20.01.2014 under Section 313 of the CrPC for enabling him to personally explain the circumstances appearing in the evidence against him, however in his statement, he claimed himself to be innocent.

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The trial Court, upon appreciation, analysis and scrutiny of the evidence adduced at the trial has found the aforesaid appellant guilty of the offences and has sentenced him to imprisonment and fine, as noted above, by its impugned judgment and order.

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A bare perusal of the evidence of the prosecution reveals that on 09.02.2005 at 9:00 a.m. in the morning, the appellant herein as also Nand Kishore Rai, Subodh Rai, Ranjeet Rai and Sanjeet Rai had surrounded the deceased-informant, whereafter Arjun Rai (Appellant) and Subodh Rai armed with khanti had

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assaulted the deceased-informant, leading to fracture of his right hand and right elbow and in the meantime Nand Kishore Rai had sat on the chest of the deceased-informant and assaulted on his chest by the butt of his pistol as also pressed his neck whereupon, Sanjeet Roy and Ranjeet Rai had beaten the deceased-informant with lathi , resulting in the deceasedinformant being injured badly. Thereafter, the deceasedinformant was taken to Sadar Hospital, Samastipur where his condition was found to be serious by the treating doctor, hence he had referred him for further treatment to Patna. At this juncture, it would be relevant to mention that P.W.1 Prabhat Ranjan, P.W.2 Asharfi Sada, P.W.3 Ram Kumar Singh, P.W.4 Himanshu Shekhar, and P.W.5 Sanjay Kumar Sharma are eye witnesses to the aforesaid occurrence and they have deposed consistently with regard to the overtact engaged in by the appellant herein and four others qua the deceased-informant which has also stood the test of cross-examination. It is a well settled law that minor divergences, if any in the prosecution’s evidence being insignificant in nature, cannot have any effect on the case of the prosecution in case of overwhelming incriminating evidences have been adduced at the trial to establish the guilt of the accused persons.

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The prosecution’s narrative in the FIR is fully supported by the ocular evidence adduced at the trial and the ocular evidence is corroborated by the medical evidence, inasmuch as the doctor has categorically stated in his evidence that the injuries found on the person of the deceased are sufficient to cause his death. Reference in this connection be had to a judgment rendered by the Hon’ble Apex Court in the case of Bhagchandra vs. State of M.P. , reported in (2021) 18 SCC 274. 29. In fact, the Ld. Counsel for the appellant has also not been able to show any material contradictions in the statement of the witnesses inasmuch as though the statements made by the witnesses under Section 161 Cr.P.C. were put to P.W.8 Subodh Kumar Singh (Investigating Officer) to elicit his response, however, a bare perusal of the evidence of P.W.8 would show that as far as P.W.1, P.W.3 and P.W.4 are concerned, the defense has failed to elicit any contradictions. As far as P.W.5 is concerned, P.W.8 has stated that he had not stated before him that Ramjee was standing nearby and ordering to kill/assault and Nand Kishore was sitting at his chest and pressing his neck while Ranjeet and Sanjeet were assaulting by lathi and Arjun (Appellant) and Subodh by khanti, which is not of much consequence in view of the consistent ocular evidence led by the

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prosecution’s witnesses. Thus, considering the ocular evidence of the prosecution’s witnesses, which have withstood the test of cross-examination, in our opinion, minor discrepancies in their evidence cannot affect the prosecution case as these witnesses do not appear to be untrustworthy.

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Now coming to the fardbeyan of the deceased-informant, it has been argued at great length by the learned counsel for the appellant that in order to make the statement of the deceased a substantive piece of evidence, the person or the agency relying upon it is under a legal obligation to prove the making of such a statement as a fact, hence the scribe, who had written the fardbeyan of the deceased-informant, should have been produced in the Court, however in the present case since the scribe has not been produced during the course of the Trial, the fardbeyan of the deceased-informant has remained unproved. It has also been argued by the learned counsel for the appellant that the evidence on record would show that the deceasedinformant was becoming conscious/ unconscious from time to time, hence the deceased-informant being critical could not have given a detailed statement as has been recorded by way of the aforesaid fardbeyan on 09.02.2005 and moreover, there is no evidence on record to show that the deceased-informant was in a

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fit state of mind to give a statement. The learned counsel for the appellant has referred to several judgments on this issue, however, this Court finds that the principles laid down by the Hon’ble Apex Court, regarding admissibility of a dying declaration is not in dispute and it is a well-settled law that there is no prescribed manner or format of a dying declaration, nonrecording of dying declaration of the deceased by the Magistrate cannot itself be a ground to reject the whole prosecution case, however, dying declaration should be voluntary and not tutored, consistent and credible and its admissibility as evidence is statutorily recognized in terms of Section 32 of the Act, 1872. Therefore, dying declaration can be the sole basis for conviction if it inspires full confidence of the Court and the Court is satisfied that the declaration is true and voluntary. In this regard, reference be had to the following judgments rendered by the Hon’ble Apex Court:-

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(i) Jai Karan vs. State of Delhi (NCT) , reported in (1999) 8 SCC 161;

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(ii) Balbir Singh vs. State of Punjab, reported in (2006) 12 SCC 283;

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(iii) Panneerselvam vs. State of T.N. , reported in (2008) 17 SCC 190;

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(iv) Atbir vs. Govt. (NCT of Delhi) , reported in (2010) 9 SCC 1; and

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(v) Rajendra vs. State of Maharashtra , reported in 2024 SCC OnLine SC 941.

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Now adverting back to the present case, we find that all the witnesses have consistently stated that the deceasedinformant was regaining consciousness from time to time and when he was taken to Sadar Hospital, Samastipur, he had regained consciousness after treatment and then the police had arrived there and recorded his statement which was countersigned by P.W.3 Ram Kumar Singh and P.W.5 Sanjay Kumar Sharma and in fact P.W.5 has also identified his signature and the signature of P.W.3 during the course of trial, which has been marked as Ext.1/2. Thus, it cannot be said that the fardbeyan of the deceased-informant has not stood proved. Another aspect of the matter is that no question has been put to the witness in cross-examination regarding untruthfulness of the fardbeyan and that the same is fabricated, hence the unchallenged part of the evidence of a witness is required to be relied upon. It is a well settled law that in absence of question being put to the witness in cross-examination to a particular fact/circumstance, the unchallenged part of the evidence of such

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a witness is to be relied upon. Reference in this connection be had to a judgment rendered by the Hon’ble Apex Court in the case of Gian Chand & Ors. vs. the State of Haryana (supra) and in the case of Laxmibai vs. Bhagwantbuva (supra).

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The second part of clause (1) of Section 32 of the Act, 1872 is yet another exception to the rule that in criminal law the evidence of a person who has not been subjected to or given an opportunity of being cross-examined by the accused would be valueless, for the simple reason that a person on the verge of death is not likely to make a false statement, unless there is strong evidence to show that the statement was secured either by prompting or tutoring. Reference in this connection be had to the judgment rendered by the Hon’ble Apex Court in the case of Kans Raj vs. State of Punjab (supra) as also to a judgment rendered by the Hon’ble Apex Court in the case of Sri Bhagwan (supra). Thus, we are of the view that since in the present case no conflicting circumstance has been either pointed out or demonstrated during the course of trial so as to warrant excluding the statement made by the deceased-informant, which has been recorded as a fardbeyan as also bears the thumb impression of the deceased-informant and has remained unchallenged apart from the same having been proved by P.W.5

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Sanjay Kumar Sharma, who had put his signature over the same alongwith P.W.3 Ram Kumar Singh, there is no reason to doubt the said declaration of the deceased-informant, which we find to be not only true and voluntary but the same also stands corroborated by the abundant legal evidence on record.

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As far as the argument of the learned counsel for the appellant to the effect that independent witnesses and material witnesses have been withheld which has prejudiced the appellant, this Court finds that it is a well settled law that mere non-joining of an independent witness, where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellant. Reference in this connection be had to a judgment rendered by the Hon’ble Apex Court in the case of Gian Chand (Supra) and the one rendered in the case of Appabhai & Anr. vs. State of Gujarat , reported in 1988 Supp SCC 241 , paragraph No.11 whereof is reproduced herein below:-

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“ 11. In the light of these principles, we may now consider the first contention urged by the learned counsel for the appellants. The contention relates to the failure of the prosecution to examine independent witnesses. The High

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Court has examined this contention but did not find any infirmity in the investigation. It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual

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manner. In Rana Pratap v. State of Haryana [(1983) 3 SCC 327] Chinnappa Reddy, J., speaking for this Court succinctly set out what might be the behaviour of different persons witnessing the same incident. The learned Judge observed:

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“ Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep theselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.”

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In the present case, we find that the evidences of prosecution witness are cogent, convincing, creditworthy and reliable apart from the fact that P.W.2 Asharfi Sada and P.W.3 Ram Kumar Singh are independent eye witnesses, thus examination of other independent witnesses in quantity would not have made any difference, hence the said submission advanced by the learned counsel for the appellant does not merit any consideration.

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Now coming to the last submission made by the learned

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counsel for the appellant to the effect that the present case will not fall within the ambit of Section 302 IPC inasmuch as though the accused persons were armed with firearm, khanti and lathi , however, no serious injuries have been found on the body of the deceased and all the injuries (laceration, bruises and abrasion) except one are on non-vital part of the body of the deceased, hence the accused persons did not have any intention to kill the deceased apart from the fact that he had no knowledge that by assaulting the deceased-informant in the manner he had done would have resulted in his death. As regards this aspect of the matter, we have considered the evidence led by the prosecution from which we find that all the injuries except one are on nonvital parts of the body of the deceased and moreover, neither grievous/piercing injury has been inflicted by khanti/lathi nor gunshot has been fired by Nand Kishore Rai though he was armed with pistol, thus we are of the view that it cannot be concluded that the intention of the appellant and others was to cause death or to cause such injury which was sufficient in the ordinary course of nature to cause death, nonetheless the fact remains that the appellant and others had badly assaulted the deceased and in fact P.W.6 Dr. Purushottam Kumar has stated in his evidence that the injuries found on the body of the deceased

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were sufficient to cause his death, hence we find that the appellant had engaged in overtact with the knowledge that the same is likely to cause death. Therefore, we find that the appellant and others had though engaged in overtact with the knowledge that the same is likely to cause death but they did not have any intention to cause death. We also find from the records that though the deceased-informant was critical, having been assaulted badly by the appellant and others and was referred by the treating doctor at Sadar Hospital, Samastipur to PMCH, Patna but the family members of the deceased-informant, instead of taking him to PMCH, Patna for better treatment, had delayed the matter whereafter, they had finally taken the deceased-informant to the clinic of one Dr. R.R. Jha at Samastipur itself where also apparently proper treatment was not given leading to the death of the deceased-informant in the night of 09.02.2005. It is a well-settled law that the death must result as a proximate and not a remote consequence of the act of violence. Thus, this circumstance has also weighed upon us to come to a finding that the present case would fall under Part II of Section 304 of the IPC. In such view of the matter, we find that the appellant is liable to be convicted under Section 304 Part II of the IPC, thus the conviction of the appellant under

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Section 302 of the IPC and the sentence of rigorous imprisonment for life awarded thereunder along with fine of Rs.50,000/- are set aside and instead the appellant is convicted under Section 304 Part II of the IPC and sentenced to undergo rigorous imprisonment for ten years. In this connection, reference be had to the following judgments rendered by the Hon’ble Apex Court:-

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(i) Camilo Vaz vs. State of Goa , reported in (2000) 9 SCC 1;

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(ii) Rampal Singh vs. State of U.P. , reported in (2012) 8 SCC 289;

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(iii) Ankush Shivaji Gaikwad vs. State of Maharashtra , reported in (2013) 6 SCC 770;

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(iv) Chenda vs. State of Chhattisgarh , reported in (2013) 12 SCC 110;

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(v) Surain Singh vs. State of Punjab , reported in (2017) 5 SCC 796;

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(vi) Anbazhagan vs. State, reported in 2023 SCC OnLine SC 857; and

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(vii) Velthepu Srinivas vs. State of Telangana, reported in 2024 SCC OnLine SC 107.

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As regards, conviction under Section 379 of the IPC, we find that the appellant has been alleged to have grabbed the

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bicycle and land related documents, whereafter he had ran away but the same does not stand corroborated by the evidence of P.W.2 and P.W.3. As far as P.W.4 is concerned, he has made a general and omnibus allegation that all the accused persons had ran away with the cycle and documents of the deceased, however, no specific allegation has been levelled qua the appellant herein. As far as P.W.1 is concerned, the defence has been able to elicit contradiction while cross-examining P.W.8, who has stated that P.W.1 has not stated before him that the appellant had taken cycle and ran away. In the facts and circumstances, we are of the view that conviction of offence under Section 379 of the IPC does not stand proved against the appellant, considering the evidence available on record, hence the finding of conviction recorded by the learned Trial Judge under Section 379 of the IPC, vide judgment dated 06.06.2016 is set aside qua the appellant herein.

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The appellant herein, namely, Arjun Rai was granted bail during the pendency of the present appeal, vide order dated 19.06.2020. In view of the fact that the appellant has now stood convicted under Section 304 Part II of the IPC and sentenced to undergo rigorous imprisonment for ten years by the instant judgment, the bail bonds of the aforesaid appellant is hereby

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cancelled and he is directed to surrender before the learned Trial Court for being sent to jail for serving the remaining sentence.

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