1 CRIMINAL APPEAL No.409 OF 1988 - - - - Against the judgment of conviction and order of sentence dated 30.7.1988 passed by the 2nd Additional Sessions Judge, Patna, in Sessions Trial No.213 of 1985. - - - - Nandu Mishra son of K.K.Mishra of village Sahpur P.S. Goreyamath,District Gazipur(U.P.) … … Appellant Versus The State of Bihar … … Respondent With CR. APP (DB) No.424 of 1988 Gopi Krishna Singh son of T.P.Singh, Booking Clerk, resident of Quarter No.95,B.Railway Colony, Karbigahia, District Patna … … Appellant Versus The State of Bihar … … Respondent For the appellant: Smt.Rina Sinha, Advocate, (in Cr.A.No.409/1988) Amicus Curiae For the appellant : Shri Randhir Kumar Singh,Adv., (in Cr.A.No.424 of 1988) Amicus Curiae P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA THE HON'BLE MR. JUSTICE DINESH KUMAR SINGH - - - - Dharnidhar Jha & Dinesh Kumar Singh, JJ.- Both the appeals have been filed against the judgment of conviction and order of sentence dated 30.7.1988 passed by the 2nd Additional Sessions Judge, Patna, in Sessions Trial No.213 of 1985 by which both the appellants were found guilty of committing the offence under Section 302/34 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for life. 2. The prosecution case as per the fardbeyan of Karmbir Kumar(P.W.10) recorded on 15.5.1984 at 10.30 P.M. by the Officer-in-charge of Jakkanpur Police 2 Station is that at 8 P.M. the informant along with his friend Ramesh Kumar were going in front of the house of Shankar Sao when he saw the appellant Gopi Krishna Singh and Satyendra Kumar Singh(since acquitted) standing. Appellant Gopi Krishna Singh asked the informant that he should caution his nephew Sunil Kumar since he had abused him, upon which the informant conveyed that his nephew was still a minor and he would caution him. In the meantime, the informant saw accused Nandu Mishra along with 10-12 boys going from east to west. When the informant along with Ramesh Kumar was sitting on the cot in front of the shop of Kamla Sao accused Gopi Krishna Singh came to the informant again and repeated the same complain. Meanwhile, the nephew of the informant Sunil Kumar was going from the shop and as soon as he reached in front of the accused persons, accused Nandu Mishra and 10-12 persons returned and started chasing him shouting ‘Maro-Maro’. Accused Gopi Krishna Singh and Satyendra Kumar Singh also repeated the same thing and chased Sunil Kumar. The informant considering the seriousness of the situation ran along with Ramesh Kumar and heard the sound of gun shot. The nephew of the informant fell down on the ground and thereafter all the accused persons ran away in the northern side towards the railway station. The informant picked up the injured 3 nephew and took him to Patna Medical College Hospital by a Mini bus where the Doctor declared him dead. On the basis of the aforesaid fardbeyan of the informant (Ext. 3) Kotwali(Jakkanpur) P.S.Case No. 504 of 1984 (Ext.5) was registered on 16.5.1984 at 9 A.M. 3. The police after investigation, submitted charge sheet against the three accused persons. Thereafter, cognizance was taken and the case was committed on 29.4.1985 and, ultimately, the trial ended in conviction and sentence of the two appellants, as indicated above, whereas accused Satyendra Kumar Singh was acquitted of the charges under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act. 4. The prosecution, in order to prove its case, examined altogether 12 witnesses. P.W. 1 Ramesh Kumar who according to the F.I.R. was accompanying the informant, has been declared hostile. P.W. 2 Jagdeo and P.W.5 Shankar Sao have been tendered. P.W.3, Md. Neyaz, P.W. 4 Pradeep Kumar, P.W.6 Raj Kumar and P.W. 7 Kamla Kant Prasad are hearsay witnesses. P.W. 8 Ram Krishna Prasad Singh is the Doctor who conducted the post- mortem examination. P.W. 9 Sheo Nath Prasad is the witness to the inquest. P.W. 10 Karmbir is the informant. P.W. 11 Tri Dev Singh is a constable and a formal witness who has proved the signature of S.I. 4 Chandrama Prasad on the F.I.R. Ext. 2/5. P.W.12 is Chandrama Prasad, the Investigating Officer. Considering the evidence adduced by the prosecution, the learned trial court came to a conclusion that the prosecution has proved its case under Section 302/34 of the Indian Penal Code beyond reasonable doubt and conviction was recorded accordingly and consequently, both the appellants were sentenced as indicated in the first paragraph of the present judgment. However, the charge under the Arms Act was not found proved. 5. The only witness who has supported the prosecution case during the trial is P.W. 10 Karmbir Kumar. On scanning his evidence, it appears that in the F.I.R. he claimed that on hearing the sound of gun shot he went to the place of occurrence and found that his nephew Sunil Kumar had fallen down on the ground, whereas, in his evidence, at page 32 of the Paper Book, during trial he specifically deposed that appellant Gopi Krishna Singh took out a pistol from his waist and shot at his nephew. In subsequent line he tried to further clarify his statement by saying that the victim also conveyed to the informant that appellant Gopi Krishna Singh had shot him and fled away. This part of the evidence of the informant is not only an improvement in his initial version, the F.I.R., but also creates doubt about his credibility as he has 5 tried to improve his earlier version in the fardbeyan as also during the trial which indicates his tendency to get the accused persons convicted and to send them to prison. This evidence of the informant also gets clouded on his own evidence to the effect that there was no electricity when the occurrence took place and admittedly the occurrence took place at 8.30 P.M. 6. The evidence of the informant further appears doubtful in view of the evidence of the Doctor P.W. 8 who conducted the post mortem examination. The Doctor found only one multiple penetrating pellet injury in an area of 4” diameter on the right side of the chest on the front though there was no evidence of singeing, blackening or tattooing around the wound. However, 10 pellets were recovered from the muscle of the chest wall on the right side, though in his cross-examination the Doctor has stated that 14 pellets were recovered. This part of the evidence of the Doctor that the victim received the injuries on chest suggests that he received the injury in some other manner than suggested by the informant and in paragraph 13 of his evidence the informant has stated that Sunil Kumar was running and was being followed by Nandu Mishra and 8-10 boys and thereafter Gopi Krishna Singh was following them. In that circumstance also, the firing, if at all, would have hit Nandu Mishra and other 8-10 boys from their 6 back and then to the victim whereas in the present case the injury had been caused from the front side on the chest. From the aforesaid discussions it is apparent that the manner of occurrence is absolutely negated by the evidence of the Doctor. 7. In view of the aforesaid discussions, it appears that the informant was not the eye witness to the occurrence and, subsequently, he tried to improve his version in his evidence during the trial and further, even assuming that his evidence during the trial was an eye witness account to the occurrence, the same is absolutely negated by the evidence of the Doctor. In that view of the matter, we find that the prosecution has absolutely failed to prove its case beyond reasonable doubts. As such, the judgment of conviction and order of sentence passed against the appellants are set aside and both the appellants are acquitted. 8. In the result, both the appeals are allowed. Both the appellants, who are on bail, are discharged from the liabilities of their bonds. 9. We appreciate the assistance rendered to us by Smt. Rina Sinha and Shri Randhir Kumar Singh in hearing and disposing of these two appeals and in our opinion each of them deserve fee of hearing which should be paid to them by the Patna High Court Legal Services 7 Committee. A copy of the present judgment be made over to them for needful. ( Dharnidhar Jha, J.) ( Dinesh Kumar Singh, J.) Patna High Court The 16th July, 2010 Kanth/N.A.F.R.