IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No. 911 of 2007 ***** Against the judgment of conviction dated 23.05.2007 and order of sentence dated 28.05.2007, passed in Sessions Trial No. 471 of 2011 by Shri J.K. Srivastava, 3rd Additional Sessions Judge, Naugachia. ***** PRAMOD YADAV, SON OF LATE PADARATH YADAV, RESIDENT OF VILLAGE- BHATGAMA, P.S.-CHAUSA, DISTRICT-MADHEPURA. …..Appellant. Versus THE STATE OF BIHAR …..Respondent. Appearance For the Appellants : Mr. Vikramdeo Singh, Mr. Satyajit, Mr. V.K. Verma, Mr. Bhim Kumar Yadav, Advocates. For the Respondent : Mr. Ashwini Kumar Sinha, APP. ***** CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA And HONOURABLE MR. JUSTICE VIKASH JAIN S.K. Sharma & Vikash Jain, JJ. Sole appellant Pramod Yadav has challenged the judgment of conviction dated 23.05.2007 and order of sentence dated 28.05.2007 passed by learned 3rd Additional Sessions Judge, Naugachia in Sessions Trial No. 471 of 2004, whereby the appellant has been convicted under Section 302 of the Indian Penal Code and Section 27 of the Arms Act. He has been sentenced to undergo rigorous imprisonment for Patna High Court CR. APP (DB) No.911 of 2007 dt.23-09-2011 2 life under Section 302 of the Indian Penal Code. For committing offence under Section 27 of the Arms Act no separate sentence was passed though he was convicted. 2. On 31.05.2002, the informant, ASI B.N. Tiwary posted at Dholbajja Police Station recorded his fardbeyan at about 8.15 A.M. He had been to investigate Sanha Entry No. 338, along with Constable 261 Kedar Singh (P.W.8), Chowkidar 6/9 Kulo Sharma (not examined), the informant Shekhar Yadav P.W.1 and Pramod Kr. Yadav P.W.2 to Bus Stand Dholbajja. When the raiding party went near the Bus Stand then Changuri Yadav and Pramod Yadav were spotted carrying three nuts in their hands. Siyaram Yadav was also standing there and he was exhorting others to teach lesson to the person who restrained them from working as Agents of the Bus Stand. Constable Suman Kr. Mandal (the deceased) wanted to know their identity upon which at the behest of Changuri Yadav and Siyaram Yadav accused Pramod Yadav fired upon the deceased causing injury on his right side of the chest and he fell down. The accused persons who were mounting on the horses escaped towards North and Siyaram Yadav towards West. The victim Patna High Court CR. APP (DB) No.911 of 2007 dt.23-09-2011 3 was brought to local clinic of a doctor and from there he was referred to Naugachia Hospital. From Naugachia Hospital the victim was referred to Patna Medical College Hospital, Patna but during course of treatment he lost his life. The statement resulted in Naugachia (Dholbajja) P.S. Case No. 113 of 2002 for offence punishable under Sections 144, 333, 353, 307, 386, 387, 120B of the Indian Penal Code and Section 27 of the Arms Act. After death of Constable Suman Kr. Mandal, Section 302 of the Indian Penal Code was added vide order dated 06.06.2002. The investigation proceeded and after investigation chargesheet was submitted against this appellant and two others namely Siyaram Yadav and Changuri Yadav. Cognizance was taken. Other co-accused Siyaram Yadav and Changuri Yadav jumped bail during trial and so the trial of the appellant/accused was split up and the appellant/accused was charged under Sections 144, 353, 387, 333, 302/34 of the Indian Penal Code and Section 27 of the Arms Act. When the appellant/accused pleaded innocence, the trial proceeded. 3. The defence of the appellant was of false implication. Patna High Court CR. APP (DB) No.911 of 2007 dt.23-09-2011 4 4. In order to prove the case, the prosecution has examined twelve (12) witnesses. They are P.W.1 Shekhar Yadav, P.W.2 Pramod Kr. Yadav, P.W.3 Rajendra Pd. Gupta, P.W.4 Diwakar Jaiswal, P.W.5 Bijay Chaudhuri, P.W.6 Munna Mandal, P.W.7 Sadanand Singh, P.W.8 Kedar Singh, P.W.9 Havildar Bhagwan Sahni, P.W.10 Upendra Rai, P.W.11 S.I. Sukhdeo Uraon and P.W.12 Indradeo Singh. P.Ws. 1 to 8 have not supported any part of the allegation and they were declared hostile by the prosecution. P.W.9 is a hearsay witness and he is not witness of the occurrence. P.W.11 is the second and main investigating officer of the case is P.W.12. The prosecution has relied upon the testimony of sole eye witness Upendra Rai, the Constable. The doctor who either first treated or referred the injured from Dholbajja to Naugachia or from Naugachia to Patna Medical College Hospital, Patna has not been examined. The doctor who has conducted the post-mortem examination has also not been examined. Even the post-mortem examination report has not been brought on record. 5. P.W.8 is a Constable and surprising part is that he has also not supported the Patna High Court CR. APP (DB) No.911 of 2007 dt.23-09-2011 5 prosecution case. P.W.9 is another Havildar and he has been examined as a hearsay witness. P.W.10 has supported the occurrence that on 31.05.2002, he was posted at Dholbajja Police Station at about 7-8 A.M. he was going with Jamadar. When they proceeded then they saw Pramod Kr. Yadav, P.W.2 and Shekhar Yadav P.W.1. At that time Siyaram Yadav, Changuri Yadav and Pramod Yadav (this appellant) were seen mounting on the horse. Siyaram Yadav instigated Changuri Yadav and thereafter, Changuri Yadav and Pramod Yadav fired. At that time Constable Suman Kr. Mandal was there. The firing was made by Pramod Yadav which caused injury upon the chest of Constable Suman Kr. Mandal. After firing, the accused persons escaped. The injured was brought to the hospital from where he was referred to Naugachia Hospital but from there also he was referred to Patna Medical College Hospital, Patna for further treatment. After two days Constable Suman Kr. Yadav died on account of injuries received by him. In examination-in- chief, he has supported the prosecution version of assault but in Para-6 he has given a complete go bye so far as culpability of the accused persons is concerned and he has stated that he Patna High Court CR. APP (DB) No.911 of 2007 dt.23-09-2011 6 has not seen anybody firing rather he has merely seen the accused persons escaping. Therefore, the sole eye witness P.W.8 has also not supported. So, on merit it can be said that the prosecution has not produced even one witness to support that it was the appellant Pramod Yadav who has fired which has caused injury/death of Constable Suman Kr. Mandal. 6. There is complete dearth of examination of eye witnesses. This gets further compounded from the fact that even the doctor who has conducted post-mortem examination or has examined the injured at different places have not been examined. In absence of the examination of the doctor, even the death has not been proved. The specific case of the prosecution is that the injured was brought up to the Patna Medical College Hospital, Patna for treatment and he died at Patna. None production of the post-mortem examination report is a surprising fact, especially in a case when a police personnel was killed which shows the lack of the prosecution in pursuing such a case. The informant has not been examined. There is no evidence as to whether the seized article was sent for chemical examination. The Chowkidar No. Patna High Court CR. APP (DB) No.911 of 2007 dt.23-09-2011 7 6/9 Kulo Sharma has been cited as a witness and his name even finds place in the fardbeyan but he has also not been examined. Therefore, there is no witness at all on the record from which it can be said that Constable Suman Kr. Mandal was killed by this appellant. There is no witness at to support the charge that the appellant has caused death by firearm. The prosecution has utterly failed to prove that the appellant has caused death by firing. 7. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant is set aside. He is acquitted of the charges. 8. The appellant Pramod Yadav, who is in custody, is directed to be released forthwith, if not required in any other case. Patna High Court, Patna Dated the 23rd of September, 2011 N.A.F.R. kksinha/- (Shyam Kishore Sharma, J.) (Vikash Jain, J.)