Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.1111 of 2011 Vidya Bhusan Prasad, son of Late Dharam Prasad, resident of village-Badram, P.S.-Hussainganj, District-Siwan. ……….Appellant. Versus 1. The State of Bihar. 2. Subhash Chandra Srivastava, son of Sadhu Sharan Prasad. 3. Dhiraj Kumar, son of Surendra Kumar Verma. 4. Prabhu Manjhi, son of Late Jangi Manjhi. 5. Ragho Prasad, son of Gulab Kumkar. 6. Vidya Manjhi, son of Sheo Pujan Manjhi. All residents of village-Badram, P.S.-Hussainganj, District- Siwan. 7. Dara Mian @ Sanauddin, son of Qamuddin, resident of village-Kutub Chapra, P.S.-Hussainganj, District-Siwan. ……..Respondents. ********* For the Appellant : Mr. Vindhya Keshari Kumar, Sr. Advocate. For the Informant : Mr. Naresh Prasad, Adv. For the State: Mr. Ashwani Kumar Sinha, APP. *********** 3 27.01.2012 This is an appeal against acquittal for a charge under [STATUTE] and Section 27 of the Arms Act. In this case, earlier, notices were issued to the accused persons who have been acquitted. The accused persons, who have been acquitted, have appeared. Heard Sri Vindhya Keshari Kumar, learned senior advocate appearing in support of the appeal and Sri Shakeel Ahmad Khan, learned senior counsel appearing on behalf of the acquitted persons. We have heard both of them at length. It appears that on 28.3.2006 in the evening, an incident took place at Badram Bazar under Hussainganj police station, district-Siwan. A person Santu Mukhiya was shot by some miscreants. Some of the miscreants were chased and one of them alongwith his motorcycle intercepted beaten up and burnt. The 2 village choukidar P.W.-3, upon hearing the shooting arrived at the scene and then lodged an information with the Hussainganj police station, inter alia, alleging that hearing a gun shot sound and commotion, he rushed to the Bazar. He found that Santu Mukhiya was lying injured shot. He found public chase the miscreants and intercept one of them. They then burnt the motorcycle and fatally assaulted the miscreant. This led to registration of Hussainganj P.S. Case No. 52 of 2006. It is, therein, mentioned also that people then carried Santu Mukhiya to Sadar Hospital, Siwan for treatment. Santu Mukhiya was then brought to Siwan Sadar Hospital, where he was admitted for treatment and a bed head ticket was also drawn up. He was then taken to P.M.C.H., Patna for better treatment where in the early morning on 29.3.2006 he died. After his death, one Vidya Bhusan Prasad gave a statement to the police of Pirbahore police station, Patna, stationed at P.M.C.H. with regard to the death of Santu Mukhiya, which was forwarded to Hussainganj police station and recorded as Hussainganj P.S. Case No. 54 of 2006. In this statement, it was stated that four persons on two motorcycles came on the evening of 28.3.2006 along with several other persons on foot and shot at Santu Mukhiya in the Bazar. The accused persons are named as persons who came running along with the motorcycle and having shot at the Mukhiya. In this statement, it is stated that villagers were chasing the miscreants. Upon this, investigation was carried out, ultimately under orders of the Court while amalgamating the two cases, charge sheet was submitted. The charged were framed. The accused persons pleaded not guilty and, accordingly, 3 they were tried. In course of trial, it is not in dispute that only the alleged informant of the second case was examined as an eye-witness even though the incident had taken place in the evening in middle of a busy bazaar. Even though, there were several independent charge sheet witnesses, none were examined by the prosecution. Two choukidars were examined. P.W.-3 is the choukidar, who lodged the F.I.R., giving rise to Hussainganj P.S. Case No. 52 of 2006. He categorically stated that upon hearing gun-shot, he rushed to the bazaar, found the Mukhiya lying injured shot. The villagers chased the miscreants and caught hold of one of them, whose motorcycle was burnt and he was fatally assaulted. He has categorically stated that none of the accused persons, who are all local villagers, were present there or were seen fleeing away as the miscreants. Similar is the statement of the P.W.-2, another village choukidar, who went to the scene of crime. It has also come in evidence that Santu Mukhiya was immediately taken to Sadar Hospital, Siwan and a bed head ticket was drawn up, his treatment started. But the doctor, P.W.-6 referred him to P.M.C.H. No statement was recorded as to how the person was injured nor was police informed at Siwan even at P.M.C.H. When the patient was brought in, there was no police statement recorded. The statement that was recorded of Vidya Bhusan Prasad long after the death of Santu Mukhiya was sent to Hussainganj police station and recorded as Hussainganj P.S. Case No. 54 of 2006. From this, first thing the court notices is that the two 4 versions treated as two separate fardbeyans related to the same incident. There is no case or counter case. Thus, the first statement of the village choukidar P.W.-3 would be the statement leading to the institution of F.I.R., because F.I.R. is the first information of the occurrence. The police committed clear error by recording the statement of Vidya Bhusan Prasad, received from P.M.C.H., Patna as a second F.I.R. on the next date, for it related to an incident of which report had already been registered. It can at best be a statement of under Section 161 Cr. P. C. but having been signed and given to a police officer, it would be clearly hit by Section 162 Cr. P.C. and could not have been registered as a F.I.R. at all. Be that as it may, it must be noted that though Santu Mukhiya was shot in a busy market place in the evening apart from the village choukidar, no effort was made to lodge a first information report there itself. He was, then, taken to Siwan Sadar Hospital and admitted there. Again, no statement was recorded or given to the police, even though,

Applicable IPC Section: 302

Statute Text:
Section 302 of the Indian Penal Code. Murder. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.