CRIMINAL APPEAL No.59 OF 2003 Against the judgement of conviction and order of sentence dated 4.2.2003 and 5.2.2003 passed by Ist Additional Sessions Judge, Saharsa in Sessions Trial No.14 of 2001. 1.MATTO YADAV @ NAGESHWAR YADAV 2.SANTOSH YADAV ………Appellants Versus STATE OF BIHAR ………Respondent ------- For the appellant: Sri Anil Kumar Singh, Amicus Curiae For the State: Sri Ashwini Kumar Sinha, APP P R E S E N T THE HON'BLE SRI JUSTICE DHARNIDHAR JHA THE HON’BLE SRI JUSTICE RAKESH KUMAR Dharnidhar Jha & Rakesh Kumar, JJ. The two appellants Matto Yadav @ Nageshwar Yadav and Santosh Yadav were tried by the learned Ist Additional Sessions Judge, Saharsa in Sessions Trial No.14 of 2001 for the composite charge under Section 302/34 of the IPC and Section 27 of the Arms Act and were, by judgement dated 4.2.2003 found guilty of committing the offence of under Section 302/34 of the IPC. While hearing on sentence on 5.2.2003, the learned trial Judge directed the appellants to suffer rigorous imprisonment for life under Section 302 of the Penal Code. The appellants have questioned their conviction by preferring the present appeal. 2. Finding that the learned counsel whose name appears in the daily cause list was not appearing before us, we appointed Sri Anil Kumar Singh, Advocate as amicus curiae - 2 - to assist us in the present appeal and accordingly we have heard him. 3. The prosecution case is that Rajdeep Mandal, the deceased was a peon in the Government polytechnic, Saharsa and while he was sleeping at his darwaja on a chauki, the two appellants along with 2 to 3 others came there and by firing at him caused injuries to him. The said Rajdeep Mandal was rushed to Saharsa hospital where he was declared dead. 4. It was alleged that 2 to 3 days prior to the date of occurrence, i.e., 30.8.2000 there had been some altercation and quarrel between appellant Matto Yadav @ Nageshwar Yadav and the deceased for cutting a branch of a particular tree standing in the house of the deceased and in retaliation the deceased had cut and destroyed a few mango trees of appellant Matto Yadav @ Nageshwar Yadav who had threatened him to teach a lesson and as such the occurrence had occurred. 5. During the course of the trial of the case after submission of the chargesheet by P.W.10 Arun Malakar, the prosecution examined 10 witnesses. P.Ws.1, 2, 3, 4 and 6 are witnesses who are blood relations of the deceased who also claim to reside in the vicinity at the place of occurrence and they have all stated that when they heard a particular sound, they came out of their houses and found that the - 3 - deceased Rajdeep Mandal was coming out of the room after opening the door and he was bleeding from his body on account of severe injury on his person and he narrated to the witnesses named above that it were these two appellants and 2 to 3 others unknown who had shot and injured him. The witnesses have stated that they rushed the deceased to hospital where he was declared brought dead. 6. In cross-examination of the witnesses their attention was drawn to the fact that they had not made any statement to the I.O. of the case P.W.10 that the deceased had made any statement to any of them that the two appellants had shot and injured him or the witnesses had seen other accused persons like Prabhash Yadav, Promod Kumar and Ramdeo Yadav on account of having seen them running from the place of occurrence. The evidence of P.W.10, the I.O. in cross-examination was perused by us and we find that he has stated that none of the witnesses above named had stated the fact to him. We further find that two witnesses, namely, Daya Devi who is the wife of the deceased and Ajay Kumar who is the son of the deceased have stated that the deceased made a dying declaration to them about the appellants Matto Yadav @ Nageshwar Yadav and Santosh Yadav having fired and injured him. The above two witnesses besides the other witnesses have stated that they had seen and identified the accused persons including the two appellants in the light of - 4 - the street light, thats, a bulb which was hanging there from the electric pole. We find from the evidence of P.W.10 in paragraph 13 that he did not find any electric bulb either fitted or hanging in the room or an electric pole anywhere around the place of occurrence. Thus, we find that the source of identification and the claim of the witnesses of identifying the appellants or other accused persons who have not been named by them individually have not been established to the court. 7. We have considered the evidence also of P.W.8 Dr. Uday Chandra Misra who had held postmortem examination on the dead body of the deceased. He had found one gun shot wound of entry measuring 1½”x 1/2” on upper part of epigastrium. The margin of the wound was burnt and inverted. On dissection of the wound coagulated blood was found present in the thoracic cavity. Right lung was found lacerated. Blood vessel was found ruptured. A bullet was found lodged on the upper part of the right thoracic cavity. The death in the opinion of P.W.8 had occurred within 6 to 12 hours of holding of the postmortem examination. In cross- examination in paragraph 5, the doctor has stated that the rupture of lungs and blood vessels would result into haemorrhage due to the gushing out of the blood from the thoracic cavity and the injured will become senseless. This appears in consonance with the evidence of P.W.9 Bhup - 5 - Narayan Yadav who has stated that when he came to the scene of occurrence, he found his Samadhi(the deceased) lying unconscious. The evidence of P.W.9 and also of P.W.8 run contrary to the evidence of other witnesses who have stated that the deceased had made a statement after having walked out of the room after unbolting the doors. We find a curious circumstance from the evidence of P.W.10, S.I. Arun Malakar when he stated that while inspecting the room in which the incident was said to have occurred, he did not find even a droplet of blood on the bed or on the surface of the house. 8. Having considered the evidence led by the prosecution in the case, we find that the prosecution had not succeeded in establishing the charge, specially the participation and identification of the appellants and other accused in the commission of the offence by acceptable, clinching evidence. The case in hand was not proved. It had come in evidence that the deceased was a man of criminal antecedent and he had many enemies to settle scores against him. We feel anything could have happened on that account and after grabbing the opportunity, the accused persons might have been implicated falsely. 9. In the result, we allow this appeal, set aside the conviction and the sentence recorded and passed against the two appellants while acquitting them. The appellant - 6 - Matto Yadav @ Nageshwar Yadav is on bail whereas appellant Santosh Yadav is in custody. Appellant Matto Yadav @ Nageshwar Yadav shall stand discharged from the liabilities of his bail bond. As regards appellant Santosh Yadav, he shall be released forthwith, if not wanted in any other case. Patna High Court Dated, the 9th of February, 2010, Brajesh Kumar/NAFR ( Dharnidhar Jha, J. ) ( Rakesh Kumar,J. )