IN THE HIGH COURT OF JUDICATURE AT PATNA ***** Criminal Appeal (DB) No.838 of 2004 With Criminal Appeal (DB) No.847 of 2004 ***** Against the judgment of conviction and order of sentence dated 22nd of November, 2004 passed in Sessions Trial No. 211 of 1985 by learned Additional Sessions Judge, Fast Track Court No. 2, Siwan. Jaleshwar Choudhary @ Jaleshwar Ahir, Resident of Village – Khor, P.S. – Darauli, District- Siwan. .... .... Appellant. (in Cr. App. No. 838 of 2004) Versus The State of Bihar .... .... Respondent. with 1. Hridya Shankar Mishra @ Hridya Nand Mishra, Son of Late Balkishore Mishra. 2. Sri Kant Rai, Son of Bishwa Nath Rai, Both are Resident of Village – Kewla, P.S. – Darauli, District – Siwan. .... .... Appellants. (in Cr. App. No. 847 of 2004) Versus The State of Bihar .... .... Respondent. Appearance : (In both the appeals) For the Appellants : Mr. Mukesh Kumar Jha, Amicus Curiae. For the Respondent : Mr. Ashwini Kumar Sinha, APP. CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN ORAL JUDGMENT S.K. Sharma, J. When these appeals were called out, then nobody responded on behalf of the appellants so, in order to facilitate the hearing Shri Mukesh Kumar Mishra, learned Advocate has been appointed as amicus curiae on behalf of the appellants. Who has assisted the Court in this matter. Patna High Court CR. APP (DB) No.838 of 2004 dt.16-08-2011 2 2. Criminal Appeal No. 838 of 2004 on behalf of Jaleshwar Chaoudhary @ Jaleshwar Ahir and Criminal Appeal No. 847 of 2004 on behalf of Hridya Shankar Mishra @ Hridya Nand Mishra and Sri Kant Rai have arisen out of one judgment dated 22.11.2004 passed by First Additional Sessions Judge, Fast Track Court No.2, Siwan in Sessions Trial No. 211 of 1985, whereby and whereunder the appellants were found guilty under Section 302/149 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for life. 3. The prosecution case relates to an occurrence of 31st January, 1985 at 5 P.M. The formal First Information Report (Ext.1) relates to an occurrence dated 31.01.1985 P.W.8 Janardhan Rai alleges that on the date of occurrence the informant, his cousin, nephew and elder brother (the deceased) were returning at about 5 P.M. As soon as, the informant and others reached near the field of ‘Rahar’ he saw that someone fired on his brother from the side of the field. The informant heard the sound of firing and noticed that his elder brother Triguna Nand was running away from the miscreants. He was chased by Tirth Raj Mishra, Patna High Court CR. APP (DB) No.838 of 2004 dt.16-08-2011 3 Hridya Mishra, Srikant Rai and two others. Triguna Nand fell down and was overpowered by the accused persons. Hridyanand Mishra, Jaleshwar Ahir and Srikant Mishra caught him and he was stabbed by Rajaram Ahir and Tirthraj Mishra (both not appellants) by means of dagger over neck, stomach, mouth and back of the deceased. Other co-accused persons threatened the witnesses, so that they could not dare to come to the rescue of Triguna Nand. 4. The injured Triguna Nand was taken to Darauli Hospital, where he was pronounced as ‘dead’ by the doctor. The occurrence was on account of the fact that the deceased and the prosecution party were having long standing enmity with the defence side. The deceased was a witness of a case against the co-accused Rajaram Ahir who was released from the jail custody few days prior to the occurrence. He was convicted in a case and due to this grudge committed the instant murder, which led to registration of Darauli P.S. Case No. 11 of 1985 under Sections 147/148/149/302 of the Indian Penal Code. The investigation was taken up and charge sheet was submitted. Tirth Raj Mishra was shown absconder on the basis of the charge sheet and the papers Patna High Court CR. APP (DB) No.838 of 2004 dt.16-08-2011 4 made available by the prosecution cognizance of offence was taken under provisions of Indian Penal Code as well as under provisions of the Arms Act. The case was committed to the court of Sessions where charges were explained. The case of the co-accused Rajaram Chaudhary (Ahir) was split up due to his absence. When the accused persons/appellants denied charge then the trial began. 5. In order to prove the charge, the prosecution has examined ten witnesses. They are P.W.1 Rajendra Singh, P.W.2 Pabhari Rai, P.W.3 Mahesh Rai, P.W.4 Sant Kumar Rai, P.W.5 Suraj Prasad, P.W.6 Doctor Ramesh Mishra, P.W.7 R.P. Sah, P.W.8 Janardhan Rai, P.W.9 Ram Nath Tiwary and P.W.10 Bhuneshwar Singh. P.W.6 has performed the post-mortem examination of the deceased. P.W.7 was the Judicial Magistrate who has recorded the statement of witnesses under Section 164 of the Code of Criminal Procedure. P.W.8 is the informant and P.W.9 is the Investigating Officer of the case. Besides the First Information Report the prosecution has adduced other documentary evidences which were original fardbeyan signed by the informant (Ext.3), Signature of witness Sant Kumar Rai Patna High Court CR. APP (DB) No.838 of 2004 dt.16-08-2011 5 (Ext.3/1), Signature of Sant Kumar Rai on the statement under Section 164 of the Code of Criminal Procedure (Ext.3/2), Cycle was produced as material witness (Ext.4/1) and blood stained soil was also seized and produced. 6. P.W.6 is the doctor and he has performed post-mortem examination of the deceased on 01.02.1985 and has found the following injuries: (i)Incised wound 2”x ½”x ½” at right side of lower jaw. (ii)Incised wound ½” x ½” x muscle deep on right side of the neck cutting lateral large vessels. (iii)Incised wound 2” x ¼” x skin deep on the trachea. (iv)Incised wound ½” x ½” x ½” above injury no. (iii). (v)Incised wound 1” x ½” x ½” at chin. (vi)Incised wound ½” x ½” below the bone of nose. (vii)Penetrating wound 1 ½” x ½” cavity deep below the left nipple. (viii)Penetrating wound 1” x ½” x cavity deep below left scapula on Patna High Court CR. APP (DB) No.838 of 2004 dt.16-08-2011 6 the back. (ix)Penetrating wound 1” x ½” x cavity deep below injury no. (viii). (x)Penetrating wound 8” x 2” x cavity deep below left postural margin with posterior of stomach and left gut. (xi)Penetrating wound 1 ½” x ½” x 1 ½” at the right thigh of the back. The injuries were caused by sharp cutting weapon. There was cross-examination with regard to manner of weapon used by the accused persons. The prosecution case that death was on account of sharp cutting weapon stands proved. 7. The defence of the accused persons was of false implication on account of enmity. The death has not been doubted. The trial court after considering the evidence brought on record came to the conclusion that the prosecution has proved the charge beyond shadow of reasonable doubts. 8. We are required to reappraise the evidence brought on record and to see as to whether the prosecution has been able to prove the charge against the appellants beyond shadow Patna High Court CR. APP (DB) No.838 of 2004 dt.16-08-2011 7 of all reasonable doubts. 9. The informant of the present case P.W.8 has stated in his evidence that on 31.01.1985 at 5 P.M. he was returning with Triguna Rai (the deceased), Sant Kumar Rai and others. On the way, he heard sound of firing. Triguna Rai, thereafter, started fleeing away, leaving his Cycle. Five accused persons Tirthraj Mishra, Hridyashankar Mishra, Rajaram Ahir, Jaleshwar Ahir and Srikant Rai were identified as the persons who were present, at the place of occurrence whereas, three others could not be identified. All the accused persons chased Triguna Rai, who was caught by Hridyashankar Mishra, Jaleshwar Ahir and Srikant Rai and in that very position he was stabbed by Tirthraj Mishra and Rajaram Ahir. In his further examination-in-chief, he has stated that the appellants also stabbed to him. This version of the informant regarding giving a specific role to the appellants, as the persons who also stabbed is not in the fardbeyan which was recorded after three hours of the occurrence. This version of the informant is a development of the fardbeyan because there was no specific allegation of inflicting dagger blows attributed Patna High Court CR. APP (DB) No.838 of 2004 dt.16-08-2011 8 to any of the appellants when the fardbeyan was given. 10. The informant in his further evidence has stated that before death, Triguna Rai has stated that he has been fatally injured by Rajaram Ahir and Tirthraj Mishra. This version, that the deceased prior to his death has named only two persons Rajaram Ahir and Tirthraj Mishra as the persons who were responsible for stabbing him, is in the fardbeyan also. This version of the deceased exonerates these appellants so far as any charge for allegation of giving any fatal injury against the accused persons. The version of the informant has been supported by other witnesses who have been examined on behalf of the prosecution. P.Ws. 2, 3 and 4 are the witnesses named in the First Information Report. Their evidence is also that the deceased prior to his death has stated before them that he has been stabbed by Rajaram Ahir and Tirthraj Mishra. 11. No doubt, the informant and prosecution witnesses have developed the prosecution case by attributing role of catching and holding the deceased to the appellants, but the statement of the deceased regarding injury Patna High Court CR. APP (DB) No.838 of 2004 dt.16-08-2011 9 caused to him exonerates them from the charge to the extent that they were responsible for giving fatal injuries to the deceased. This is the major development which has been effected by the prosecution and if some developments are made then a doubt is created regarding participation of the accused persons who were not named in the initial version and whose role were not described by the deceased in his statement prior to his death. The statement regarding death is fully covered under Section 32 of the Evidence Act and if that statement is there, then it has to be accepted. The cause regarding death has been narrated by the deceased prior to his death and that role has been attributed to only two persons. Therefore, this development that the appellants have also contributed in facilitating the death cannot be accepted to be the version of the deceased and the enmity appears to be the reason as to why these appellants have been roped in at a later stage of the case. 12. Due to lack of evidence against the appellants, we are of the view that the prosecution could not prove the charge against them beyond shadow of all reasonable doubt. Once a doubt is created then the benefit of doubt has Patna High Court CR. APP (DB) No.838 of 2004 dt.16-08-2011 10 to given to the accused persons/appellants. 13. In the result, the judgment of conviction and sentence imposed upon the appellants is set aside and the appeal is allowed. The appellants are discharged from the liability of their respective bail bonds. 14. The appellant of Criminal Appeal (DB) No. 838 of 2004 Jaleshwar Choudhary @ Jaleshwar Ahir, who is reported to be in custody, is directed to be released forthwith, if not required in any other case. 15. Let a copy of first and last page of the judgment be handed over to the amicus curiae who has assisted the Court on behalf of the accused persons/appellants. Sheema Ali Khan, J., I agree. Patna High Court, Patna Dated the 16th of August, 2011 N.A.F.R. kksinha/- (Shyam Kishore Sharma, J.) (Sheema Ali Khan, J.)