CRIMINAL APPEAL 200 of 2003 on 30 April 2003

1. The State of Bihar

2. Rit Lal Yadav Son of Late Ramashish Rai Resident of Kothwan, P.S.-Khagaul, District- Patna, Bihar.Khagaul, District- Patna, Bihar.

... ... Respondents

======================================================Appearance :(In GOVT. APPEAL (DB) No. 7 of 2024)For the Appellant/s: Mr. Ajay Mishra, APPFor the Informant: Mr. Apurv Harsh, AdvocateFor the Respondent: Mr. P.N. Shahi, Sr. Advocate Mr. Ghanshyam Tiwary Mr. Amit Anand, Advocate(In CRIMINAL APPEAL (DB) No. 952 of 2024)For the Appellant/s: Mr. Apurv Harsh, AdvocateFor the State: Mr. Ajay Mishra, APPFor the Respondent: Mr. P.N. Shahi, Sr. Advocate Mr. Ghanshyam Tiwari, Advocate Mr. Amit Anand, Advocate ======================================================

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD and HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEYCAV JUDGMENT(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Date : 25-09-2025

Both the appeals have been preferred by the State andthe informant respectively for setting aside the judgment dated14.05.2024 (hereinafter referred to as the ‘impugned judgment’)

passed in Sessions Trial No. 246A of 2006 arising out of DanapurP.S. Case No. 200 of 2003 passed by the learned AdditionalSessions Judge-III-cum-Special Judge MP/MLA, Patna(hereinafter referred to as the ‘learned trial court) by which thelearned trial court has been pleased to acquit Rit Lal Yadav(respondent no. 2) for the offences punishable under Sections 148,307 and 302 of the Indian Penal Code (in short ‘IPC’) and Section27 of the Arms Act.

Prosecution Case

2. The prosecution story is based on the writtenapplication of Asha Devi (PW-1), Wife of Satyanarayan Sinha,Resident of Village- Sarari, PS- Shahpur, District- Patna in whichshe has stated that on 30.04.2003 in between 11.00-11.30 AM, shewas going for her treatment along with her husband SatyanarayanSinha, Jivan Yadav, Sanjay Kumar, Nageshwar Prasad, DheerajKumar, Arun Kumar to Khagaul by her vehicle bearingRegistration No. BR1T-0222. As soon as they reached near thehouse of Rambabu Pathik, a Maruti Van was standing in front ofthe house of Rambabu Pathik in such a way that her vehicle couldnot proceed further. The vehicle was being driven by informant’shusband. He took his head outside and asked for giving passage. Itis alleged that three persons came out of the vehicle and shouted

“Satya Narayan Aa Gaya”. They all were armed with weapons.After hearing the hulla, Rambabu Pathik, Ritlal Yadav, SunilYadav @ Kana, Ranjan Kumar Benga and 8-10 others variouslyarmed with weapon came from the house of Rambabu Pathik.Rambabu Pathik while saying “Sala Barka Neta Banta Hai JaanSe Maar Do”, pulled her husband outside, Ritlal Yadav, SunilYadav and Ranjan Kumar fired on her husband due to which, hefell down. Thereafter, at the instance of Rambabu Pathik who said“Gari Me Baithe Logon Ko Maar Do”, all the 10-12 criminalsstarted firing but the informant and all were saved by hidingthemselves under the seat of the vehicle. Sanjay and Dheeraj wereinjured. There were dozen of marks of bullet on the vehicle. Theaccused persons assuming them dead entered into house ofRambabu Pathik. The informant identifies the other accusedpersons but does not remember the names. It is the claim of theinformant that the accused persons namely Rambabu Pathik, RitlalYadav, Sunil Yadav @ Kana, Ranjan Yadav @ Benga and othercriminals had killed her husband Satya Narayan Sinha, due toenmity.

3. On the basis of the written report of the informant(Exhibit '1'), Danapur P.S. Case No. 200 of 2003 dated 01.05.2003

was registered under Sections 147, 148, 149, 323, 307, 324 and302 IPC and Section 27 of the Arms Act.

4. After investigation, police submitted charge-sheetbearing no. 102 of 2004 dated 26.10.2004 under Sections 147,148, 149, 323, 324, 307 and 302 of the IPC and Section 27 of theArms Act against four accused persons including respondent RitLal Yadav. On submission of charge-sheet, cognizance was takenand record was committed to the court of Sessions on 31.01.2006where Sessions Trial No. 246 of 2006 was registered on27.02.2006.

5. In Sessions Trial No. 246 of 2006, the respondent no.2 filed a discharge petition which stood rejected vide order dated07.07.2007. Thereafter, he absconded and remained abscondingfor more than three years. On 12.04.2012, the charges wereexplained to him in Hindi which he denied and claimed to betried. Accordingly, charges were framed against him for theoffence punishable under Sections 148, 307 and 302 IPC andSection 27 of the Arms Act.

6. On behalf of the prosecution, as many as ninewitnesses deposed and some documentary evidences were alsomarked exhibits. The complete description of the prosecution witnesses and the documents marked exhibit are being providedhereunder for a ready reference:- List of Prosecution Witnesses List of Exhibits on behalf of the prosecution

7. On 01.09.2015, statement of the accused-respondentno. 2 was recorded under section 313 CrPC. The defence soughttime to lead evidence. On 22.09.2015, the defence filed somedocuments for exhibiting which were allowed vide order dated29.09.2015. Accordingly, Exhibit ‘A’ to Exhibit ‘P’ were marked.The records were kept pending awaiting the production of defencewitnesses but no defence witness turned up on several dateswhereafter on the request of the accused, the defence evidencewas closed on 08.03.2016. In this case, the prosecution started itsargument on 04.02.2017 and concluded it on 28.02.2017. Onbehalf of the accused, the arguments were concluded on12.07.2017 and thereafter again on various dates the records werekept for argument of the public prosecutor. He ultimatelyconcluded his arguments on 21.07.2017.

The following documentary evidences were marked exhibits on behalf of Defence:- Ext. A-1Certified copy of judgment of ST Case No. 1795/20111795/2011Ext. B-1Certified copy of the written information and FIR of Danapur P.S. Case No. 198/2003, dated 30.04.2003and FIR of Danapur P.S. Case No. 198/2003, dated 30.04.2003Ext. C-1Certified copy of Charge-sheet of Danapur P.S. Case No. 198/2003P.S. Case No. 198/2003Ext. D-1Certified copy of supplementary Charge-sheet of Danapur P.S. Case No. 198/2003sheet of Danapur P.S. Case No. 198/2003Ext. E-1Certified copy of FIR of Khagaul P.S. Case No. 55/1996No. 55/1996

Ext. F-1Certified copy of Charge-sheet of Khagaul P.S. Case No. 55/1996P.S. Case No. 55/1996Ext. G-1Certified copy of FIR of Khagaul P.S. Case No. 86/2005No. 86/2005Ext. H-1Certified Copy of Charge-sheet of Khagaul P.S. Case No. 86/2005P.S. Case No. 86/2005Ext. I-1Certified Copy of supplementary Charge-sheet of Khagaul P.S. Case No. 86/2005sheet of Khagaul P.S. Case No. 86/2005Ext. J-1Certified copy of order-sheet dated 29.02.1997 of ST. Case No. 1434/199829.02.1997 of ST. Case No. 1434/1998Ext. K-1Certified Copy of FIR of Danapur P.S. Case No. 232/1994No. 232/1994

Ext. L-1Certified copy of Charge-sheet of Shahpur P.S. Case No. 238/1994 corresponding to ST. Case No. 1434/1998P.S. Case No. 238/1994 corresponding to ST. Case No. 1434/1998

Ext. M-1 Certified copy of supplementary Charge-sheet of Shahpur P.S. Case No. 238/1994 corresponding to ST. Case No. 1434/1998sheet of Shahpur P.S. Case No. 238/1994 corresponding to ST. Case No. 1434/1998

Ext. N-1Certified copy of the order-sheet of A.C.J.M. Danapur of Khagaul P.S. Case No.03/2004A.C.J.M. Danapur of Khagaul P.S. Case No.03/2004

Ext. O-1Certified copy of application of 1.O. dated 28.12.2005 to A.C.J.M. Danapur28.12.2005 to A.C.J.M. DanapurExt. P-1Certified copy of application of 1.O. dated 25.02.2006 to A.C.J.M. Danapur25.02.2006 to A.C.J.M. Danapur

8. At this stage, it is worth mentioning that SanjayKumar (PW-3), Nageshwar Prasad (PW-4) and Dheeraj Kumar(PW-5) were though examined by the I.O. and their statementswere recorded in paragraph ‘65’, ‘93’ and ‘98’ of the case diary butthey were not specifically made chargesheet witnesses, though theI.O. stated in the chargesheet that other witnesses may beexamined apart from the chargesheet witnesses. Thus, theprosecution filed a petition in the trial court to allow the examination of these witnesses which was allowed vide orderdated 11.02.2013.

9. One of the witnesses, Rintu Singh (PW-6) wasallowed to be examined by the trial court vide order dated27.05.2013 after noting that PW-1 to PW-5 all had stated about thepresence of Rintu Singh at the time of occurrence. A criminalrevision bearing number 606 of 2013 was preferred by theaccused-respondent no. 2 in the High Court which was rejected.Again, on the request of the prosecution, the court allowed theprosecution petition calling for the injury reports of Dheeraj (PW-5) and summons were issued to the treating doctor Dr. N. K. Singh(PW-7), Dr. H. K. Jha (not appeared despite issuance of warrant)and Dr. R. N. Prasad (not appeared despite summons and warrant).

10. One more fact which is important to take note is thatthe trial court was able to secure the appearance of Arshad Jama,the I.O. (PW-8) only after issuance of a bailable warrant againsthim and Dr. Umesh Kumar (PW-9) was brought in court afterissuance of a non-bailable warrant only.

11. On 05.02.2015, the defence filed a petition in thetrial court with a request to stop the cross-examination of theprosecution witness in order to bring case diary of Danapur P.S.Case No. 198 of 2003. The prosecution alleged that police lodged Danapur P.S. Case No. 198 of 2003 to help the accused. It was alsopointed out that the informant had filed a protest petition againstthe conduct of the police. The accused filed a petition foramalgamation of this case with Danapur P.S. Case No. 198 of 2003but vide order dated 31.03.2015, the learned trial court rejected thesaid prayer of the accused.

12. On perusal of the records, this Court finds that forabout four months thereafter the judgment was not delivered bythe learned trial court. On 20.11.2017, the records were transferredto the court of ADJ-IV, Patna and again the records weretransferred on 05.03.2018 to FTC-II Court, on 21.05.2018, it wastransferred to ADJ-IX-cum Special Court. The records were sentwithout the case diary on 07.08.2018, argument started once againbut on 18.12.2018, the records were transferred to ADJ-IV-cum-MP/MLA Court. The records were again transferred on18.01.2019, 05.03.2019, 05.04.2019, 06.04.2019, 27.05.2019,05.09.2019 and 10.12.2019. The accused was earlier granted bailby the High Court vide order dated 14.11.2013 in CriminalMiscellaneous No. 10186 of 2013 but he had not submitted his bailbond as he remained in jail in connection with another case. On20.01.2020, the accused filed a bail bond in this case after he wasgranted provisional bail in another case. On 12.02.2020, his bail

bond was cancelled and production warrant was issued for hisproduction from jail where he was lodged since 10.02.2020 inconnection with another case (Special 271 of 2018). His bail bondwas restored vide order dated 04.06.2020. Again on 18.08.2020,the records were transferred to ADJ-XXI, Patna. On 29.09.2020,the records were transferred to the court of ADJ-X, Patna citingStanding Order No. 36 of 2020 dated 26.09.2020. On 09.01.2021,the records were transferred to ADJ-III, Patna-cum Special CourtMP/MLA. On 13.01.2021, records were transferred to ADJ-XIIPatna citing Standing Order No. 05/21 dated 12.01.21. It appearsfrom the records that the original LCR and the case diary in thiscase went missing. On 15.06.2022, a show cause was issued to theBench Clerk namely Mr. Rajiv Kumar and on 24.06.2022, adirection was issued to initiate a proceeding against him. Theinformant moved High Court in Criminal Writ Jurisdiction CaseNo. 1124 of 2021 and brought it to the notice of the High Courtthat the records are missing and it is being deliberately done tofurther delay the trial. The writ court vide it's order dated12.07.2022 issued certain directions which are being reproducedhereunder for a ready reference:- “Call for a report from the District Judge Incharge,Patna as to why the records of Sessions Trial No. 246and Sessions Trial No. 246A of 2006 arising out of Special Case No. 122 of 2018 (Danapur P.S. Case No.200/2003) have not been sent to the Special Court ofA.D.J.III-cum-M.P./M.L.A. Court. There are seriousallegations that the order of this Court passed as backas on 13.05.2016 in Cr. Misc. No. 18493 of 2016 andthe order dated 17.01.2017 in Cr. Misc. No. 908 of2017 have not been complied with.

Mr. S.D.Sanjay, learned Senior Counsel for thepetitioner submits that in this case all the prosecutionwitnesses have been examined and after 313 Cr.P.C.stage the defence evidence was also closed and thecase was fixed for hearing. At this stage, it appearsthat efforts are being made for last several years bythe interested persons to drag the final hearing of thecase and disposal of the matter.

Let a comprehensive report be sent to this Court.

The District Judge Incharge, Patna shall whilesubmitting the report will examine as to whether thereis an attempt in connivance with the staffs of the CivilCourt to somehow withheld the records in order todrag the matter and avoid the disposal of the case.”

13. This Court has recorded the entire facts showing how the records of this case were kept pending and also transferredfrom one court to another. The trial court could finally deliver itsjudgment only after the records were found pursuant to the orderof this Court.

Findings of the learned Trial Court

14. The learned trial court having analysed the evidencesadduced on behalf of the prosecution and the defence recorded in

paragraph ‘22’ of its judgment that the trial of Trial No. 246 of2006 and 246A of 2006 have originated from the same P.S. casei.e. Danapur P.S. Case No. 200 of 2003, so both the records will beperused for the ends of justice as well as for the better appreciationof the evidences. The trial court noted that the prosecutionwitnesses and the informant have stated that the occurrence tookplace near the house of Ram Babu Pathik, he had also been madean accused in this case by the informant but after investigation, thepolice did not find his role in the alleged occurrence, thereforesubmitted a closure report against him which has been accepted bylearned ACJM, Danapur. The prosecution never challenged thatorder, therefore, it will be deemed to have been accepted by theprosecution. The trial court further noted that the prosecution didnot draw the attention of the trial court towards Section 319 CrPC.The trial court observed that Ram Babu Pathik was said to be anorder giver and it is stated that all the accused persons came fromhis house, this becomes more relevant when there is another casefor the occurrence on the same day for which Danapur P.S. CaseNo. 198 of 2003 had been lodged (Exhibit ‘B’).

15. As regards the place of occurrence, the trial courtnoted that the I.O. has stated a different place of occurrence fromthat of the informant and other prosecution witnesses, therefore, the testimony of the prosecution witnesses are required to beperused carefully. After saying so, the trial court proceeded toconsider the evidence of PW-1. It is noted by way of observationthat PW-1 had never stated in her written information about RintuSingh. Rintu Singh has been examined as PW-6 but he was notmentioned in the witness column of the chargesheet.

Further, the trial court has noted that the name of ArunKumar is not stated in the evidence of PW-1, therefore, there issome hide and seek by the informant. The trial court hasconsidered the evidence of PW-1 adduced in Trial No. 246 of 2006in which in paragraph ‘20’ she had stated that Arun Kumar wasinjured in Danapur P.S. Case No. 198 of 2003 and other witnesseshave stated that he had died. Taking note of this evidence of PW-1in Trial No. 246 of 2006, the learned trial court raised a questionthat how it was probable that a man injured and died in anothercasewas sitting along with the deceased husband of the informant.The prosecution has failed to explain this aspect, said the learnedtrial court.

16. As regards the evidence of the injured witnesses, thetrial court noted that the informant has laidstress on theirevidence, the court proceeded to consider the evidence of PW-3and PW-5. It has been observed that PW-3 has nowhere stated in

his examination-in-chief regarding the injuries sustained in theoccurrence. Likewise Dheeraj Kumar (PW-5) has stated in hisevidence that he and Sunil ji were injured but he has stated adifferent story then that of as stated by the informant. The trialcourt took a view that PW-3 has stated that bullet crossed his hand,in paragraph ‘7’ of his cross examination, he had stated that it isnot true that there is no mark of firearm injuries on his hand, buthe had not shown any mark of injury to the court during theevidence. The trial court took a view that his statement does notfind any objective corroboration from the evidence of Dr. UmeshKumar (CW-1) who brought the alleged injury report of DheerajKumar (Exhibit ‘5’). The injury report did not show any firearminjury on his hand. The trial court, therefore, held that these are thematerial contradictions in the statement of this witness and the I.O.

17. The trial court has further taken a view that theevidence of the informant and the evidence of the I.O. ArshadJama have material contradictions. As per the informant, the placeof occurrence of the case is near the house of Ram Babu Pathiksituated in Jamaluddin Chak but the I.O. has mentioned the placeof occurrence on the Khagaul-Neora Main Road. The I.O. was notgiven suggestion by the prosecution on the point of place of occurrence so the prosecution failed to establish the exact place ofoccurrence of this case.

The trial court has further held that the I.O. has stated in hisevidence in paragraph ‘9’ of his cross-examination that after theoccurrence when he tried to take the statement of the informant,she did not give the same. He again tried to take the statement ofthe informant and the other witnesses, they did not turn up beforehim. He came to know the fact that witness Arun Kumar had diedin Danapur P.S. Case No. 198 of 2003. The trial court has reliedupon the evidence of the I.O. Arshad Jama and recorded that hehad taken statement of the informant on 14.06.2003, on that day hehad taken the statement of Munna Kumar and after that herecorded the statement of other witnesses like Nageshwar Prasadand Sanjay Kumar. These witnesses had given their statementbefore police after fifteen days of the occurrence. Prior torecording of their statement, the I.O. had taken the statement ofseveral other witnesses.

According to the trial court, the prosecution had notexamined them rather seventeen witnesses have been given up fortheir examination by the prosecution and the same was allowedvide order dated 11.02.2013 by the predecessor court.

18. The learned trial court has dealt with another aspectsaying that the witnesses who have been examined for theprosecution are mostly out of other village than the place ofoccurrence. The informant had gone to her house by taking thedead body of her husband. It is stated by her that approximatelyforty people used to reside in the house having same courtyard butnone of them have been examined by her. She has also notexamined her own grown up children. For all these reasons, thetrial court doubted the occurrence.

It is further held by the learned trial court that there arestatement of the witnesses that the accused persons had fired fromthe front side of the vehicle and some marks of bullet occurred onthe vehicle also. The vehicle was produced by the informantherself to the I.O. and thereafter production-cum-seizure list wasprepared (Exhibit ‘1/5’ and ‘1/6’), the seizure lists do not show anymark of bullet on the seized vehicle. There was no FSL report ofthe material articles which were recovered from the vehicle as perthe seizure list. The bullet was removed from the body of thedeceased and was handed over to the Constable but there is noForensic Science Laboratory (FSL) report regarding this. As perseizure list there was no mark of bullet on the vehicle contrary tothe statement of the prosecution witnesses who have stated that the accused have fired on the vehicle from the front side and severalmarks had occurred on the vehicle. The trial court disbelieved themanner of occurrence saying that while informant has stated thatthe accused fired on her husband when he was in the vehicle, theother witnesses have stated that her husband was dragged from thevehicle and was murdered by the accused persons on being shot tohim.

The learned trial court has also took into consideration thestatement of the informant with regard to the post occurrence facts.The trial court held that there were material contradictions in theevidence of the informant (PW-1) and that of the other witnesses.The trial court has found that the evidence of the prosecutionwitnesses are not getting corroborated by the evidence of the I.O.Some of the witnesses are having criminal antecedents and theyare also residents of different village, therefore, their testimonieswould not be convincing to the court and that would cast shadowon the entire prosecution case. The I.O. has not been declaredhostile by the prosecution. He was Dy.S.P. at the time ofinvestigation and the statement of the informant and otherprosecution witnesses were recorded by him in presence of theD.I.G. Central Range, Patna. In such situation, according to the learned trial court, it cannot be said that the I.O. was in collusionwith the accused.

19. In ultimate analysis, the learned trial court held thatthe prosecution has only proved the death of Satyanarayan Sinhaby adducing the evidence of Dr. Narendra Kumar Singh (PW-7)but failed to prove the fact as to who murdered the deceased. Insuch circumstance, the benefit of doubt will go in favour of theaccused persons. The trial court, therefore, acquitted the accused-respondent no. 2 of all the charges giving him benefit of doubt.

Submissions on behalf of the Appellants

20. Mr. Ajay Mishra, learned Additional PublicProsecutor for the State, submits that in this case, PW-1, PW-4,PW-5 and PW-6 are the eyewitnesses of the occurrence.

21. The trial court has recorded in its finding that theprosecution failed to prove the place of occurrence. Muchsignificance and evidentiary value has been attached to thestatement of the I.O. This finding of the learned trial court is notcorrect inasmuch as it may be found from the evidences availableon the record that the I.O. (PW-8) had taken charge of theinvestigation only on 03.05.2003. According to him, the earlierI.O. had inspected the place of occurrence on 02.05.2003 and hehad recorded that the place of occurrence is the Pakki Road adjacent to Khagaul and at the place of occurrence, the road hadgone from east to west. In paragraph ‘12’ of the case diary he hadnot mentioned of anything found at the place of occurrence. It isevident that the first I.O. had not gone to the place of occurrenceeven on 02.05.2003 which may be found from the fact that whenPW-8 went to the place of occurrence on 03.05.2003, he foundblood-stained soil and the piece of broken glasses. It is evident thatpolice was trying its best to save the accused persons who wereclose to the power as one of the accused in this case, Ram BabuPathik, happened to be the samdhi of the then Chief Minister ofBihar. It is submitted that a close perusal of the evidences on therecord would prove that there is no contradiction between thestatement of the informant and that of the I.O. (PW-8) as regardsthe place of occurrence. In paragraph ‘8’ of his deposition, thesecond I.O. Arshad Jama (PW-8) has admitted that the place ofoccurrence, time of occurrence and the date of occurrence of thepresent case and that of Danapur P.S. Case No.198 of 2003 is thesame and one.

22. Learned counsel submits that the testimony of AshaDevi (PW-1) is very consistent and the prosecution has been ableto prove the place of occurrence, date of occurrence, time ofoccurrence and manner of occurrence.

23. As regards the delay in registration of FIR, PW-1 hasstated that police did not take her written information and the pleaof PW-1 finds support from the fact that ultimately she had to filea protest petition in the court of learned Jurisdictional Magistratecomplaining about indifferent attitude of police in the matter ofinvestigation of the case. It is submitted that the first I.O. IndrajeetTiwary has not been examined in this case which only strengthensthe submissions of the appellant that the investigation of the casewas thoroughly neglected under political pressure. In this regard,attention of this Court has been drawn towards paragraph (iv) and(v) of the deposition of Asha Devi (PW-1).

24. Learned counsel further submits that on perusal ofparagraph ‘20’ of the impugned judgment, it would be found thatthe learned trial court has taken into consideration the evidencesadduced by the parties in original trial no.246 of 2006 also on theground that the same has also originated from Danapur P.S. CaseNo.200 of 2003. It is submitted that the consideration of theevidence of another trial was impermissible. The learned trial courthas completely erred in looking into the records of another trial. Itis submitted that the reasoning and rationale provided in paragraph‘20’ of the judgment in this case is the copy and paste of paragraph‘22’ of the judgment in original Trial No. 246 of 2006.

25. Learned counsel further submits that the I.O.s of thiscase tried to save the accused persons from beginning. In thisconnection, it is pointed out that Khagaul P.S. Case No.6 of 2004was registered for recovery of the firearms from the house of RitlalYadav in course of investigation of this case but no seizure list ofarms was brought on record in this case.

26. Learned Additional Public Prosecutor has reliedupon the judgment of the Hon’ble Supreme Court in the case ofGanesha vs. Sharanappa and Another reported in (2014) 1 SCC87 and Rajeswar Prasad Misra v. State of W.B. and Anotherreported in AIR 1965 SC 1887 to submit that where the trial courthas recorded an order of acquittal by misreading of the evidence ornon-consideration of evidence or perverse appreciation ofevidence, the appellate court would be competent to direct freshdisposal on merit by the trial court.

Submissions on behalf of the Informant

27. Mr. Apurv Harsh, learned counsel for the informanthas submitted that the judgment of the learned trial court isperversed for the reason that the learned trial court says that theplace of occurrence is in question and the learned court has drawnadverse inference from the fact that the final form submittedagainst Ram Babu Pathik was not challenged by the prosecution. It is further submitted that the trial court has recorded that the I.O.has not been declared hostile but no reason has been provided as towhy the I.O. should have been declared hostile.

28. Learned Counsel further submits that the learnedtrial court has taken an adverse view for the reason that PW-1 didnot disclose the name of the doctor to whom she was going withher husband. Further, the trial court has taken a view against theprosecution for the reason that even the children of the deceasedhave not been examined. In this connection, it is submitted thatwhat is important is the quality and not the quantity of thewitnesses. Learned Counsel further submits that in the case ofShahaja @ Shahajan Ismail Mohd. Shaikh vs. State ofMaharashtra reported in (2023) 12 SCC 558, (paragraph ‘29’ and‘30), the Hon’ble Supreme Court has been pleased to discuss theprinciples governing the appreciation of ocular evidences. Thesame has been further discussed in the case of EdakkandiDineshan and Others vs. State of Kerala reported in (2025) 3SCC 273. Attention of this Court has been drawn towardsparagraph ‘25’ to ‘27’ of the judgment in the case of EdakkandiDineshan (supra) wherein the Hon’ble Supreme Court has heldthat lapses on the part of the Investigating Officer should not betaken in favour of the accused because such lapses may be committed designedly or because of negligence. In such situation,the prosecution evidence is required to be examined dehors suchomissions to find out whether the said evidences are reliable ornot. The accused would not be entitled to claim acquittal on theground of faulty investigation done by the investigating agency.

29. Learned counsel for the informant has pointed outfrom the impugned judgment that on behalf of the prosecution, thejudgments of the Hon’ble Supreme Court in the case of ShahajanIsmail (supra), Manoj Suryavanshi vs. State of Chhattisgarhreported in (2020) 4 SCC 451, Bhagchandra vs. State of M.P.reported in (2021) 18 SCC 274, Balu Sudam Khalde andAnother vs. State of Maharashtra reported in (2023) 13 SCC365 and Harendra Rai vs. State of Bihar reported in (2023) 13SCC 563 were cited to submit that there is no fixed or strait jacketformula for appreciation of ocular evidences and where there isinherently improbable minor discrepancies on trivial matters nottouching the core of the issue, the witness cannot be discreditedand a faulty investigation would not render the prosecution caseweak. The trial court, however, did not even discuss thosejudgments while taking a final view on the matter in paragraph‘20’ of its judgment.

30. Learned Counsel further submits that by catena ofjudgments, the Hon’ble Supreme Court has held that evidence ofrelated or interested witness does not suffer from any infirmity, theonly requirement is to apply a rule of prudence that the evidence ofsuch witness should be scrutinised with little care.

31. It is submitted that while examining the ocularevidences, the assessment of the value of the evidence of aneyewitness is to be done on two principal considerations - (i) Is itpossible to believe the presence of the witness at the scene ofoccurrence or in such situations as would make it possible forthem to witness the facts deposed to by the witness and (ii)whether there is anything inherently improbable or unreliable intheir evidence. Pointing out to the judgment of the Hon’bleSupreme Court in the case of Shahajan Ismail (supra), learnedCounsel submits that the Hon'ble Supreme Court held that inrespect of both these considerations, the circumstances eitherelicited from those witnesses themselves or established by otherevidence tending to improbabilise their presence or to discredit theveracity of their statements will have a bearing upon the valuewhich a court would attach to their evidence.

32. Learned Counsel submits that in this case, theconduct of the I.O. (PW-8) may be found from his deposition. He has stated that he was posted as Dy.S.P. Sachivalaya in the year2003. He was ordered to take charge of the investigation of theCase No. 200/03. He has stated in paragraph ‘5’ of his depositionthat he had conducted raid in the house of Sunil Yadav and RitlalYadav and had effected attachment (kurki-japti). He has stated thatfrom the place of Ritlal Yadav, firearms were recovered. However,this witness has not stated that he had prepared any seizure list orsent the said arms recovered from the house of Ritlal Yadav toFSL. PW-8 has not even recorded the statement of the earlier I.O.and had not even perused the case diary written by the earlier I.O.About the first I.O., PW-8 has stated that he had inspected theplace of occurrence on 02.05.2003 i.e. after three days of theoccurrence. He has further stated that he had taken overinvestigation of Danapur P.S. Case No. 198 of 2003, the said casewas registered on the statement of Pramod Kumar, Inspector andin the said case, the place of occurrence, date of occurrence andtime of occurrence is the same. It is submitted that in suchcircumstance where the place of occurrence, time of occurrenceand the date of occurrence is the same and one, the conduct ofPramod Kumar, Inspector in not recording a case of murder ofSatyanarayan Sinha on 30.04.2003 is nothing but a proof of factthat right from beginning, the police was under immense pressure

to give this case a different colour and delayed the lodging of thecase for killing of Satyanarayan Sinha. This was not unusualbecause the police was dealing with the case in which samdhi ofthe then Chief Minister of Bihar was an accused. In suchcircumstance, it was submitted that the lacuna on the part of theprosecution and the deficiencies on the part of the I.O.s of the casewould not prove fatal to the prosecution.

33. Learned Counsel further submits that the judgmentof the learned trial court is full of perversity which may also befound from the fact that the trial court has wrongly held that theseizure list of car does not show any bullet mark. It is submittedthat in fact the I.O. (PW-8) had not mentioned anything like this inthe seizure list. In paragraph ‘14’ of his deposition, the I.O. (PW-8)has stated that he had not produced the seized vehicle in court. Hehas stated to have seized one towel (gamcha) and blood scratchbut he had not mentioned about any other mark in the case diary.Learned Counsel submits that the I.O. (PW-8) had not taken anyphotograph of the vehicle. In such circumstances, the learned trialcourt has recorded a perverse finding. The doctor (PW-7) hasclearly stated that the firing was resorted to from a close range. Onthese grounds, learned Senior Counsel submits that the trial court judgment is liable to be upturned and the accused-respondents areliable to be convicted.

Submissions on behalf of the Accused-Respondent No. 2

34. These appeals have been contested by Mr. P. N.Shahi, learned Senior Counsel assisted by Shri Ghanshyam Tiwari,learned Advocate. It is submitted that in this case, the genesis ofoccurrence has not been established by the prosecution. The storynarrated by the informant that she was going to the doctor for themedical check-up would not inspire confidence as she did notdisclose of what kind of disease she was suffering from and whowas the doctor to whom she was going. It is submitted that theinformant was going for her treatment but being a lady she was notbeing accompanied by her family members, especially femalemembers although on the day of the alleged incident, there wereseveral female members present in the family creates doubt overher statement. In this regard, attention of this Court has beendrawn to paragraph ‘11’ of the evidence of PW-1.

35. Learned Senior Counsel submits that the statementof PW-1, that when she was giving written information to police inthe village police did not take it whereafter she filed an applicationin the court, is highly doubtful. Her written report does not bearthe date of application nor the informant has mentioned any date

on the written report. Referring to some of the paragraphs of theevidence of PW-1, learned Senior Counsel submits that duringtrial, the prosecution failed to establish that the alleged writtenreport which is the basis of the case was written by Rajnish. It issubmitted that Rintu Singh (PW-6) has stated in paragraph ‘10’that FIR was written by Asha Sinha (PW-1) in his presence whichhe had read and had put his signature thereon. It is submitted thatthe evidence of Rintu Singh (PW-6) falsifies the statement of AshaDevi (PW-1). It is submitted that the written report was not writtenby Rajnish, the informant very cunningly to hide the truthcommitted murder of Rajnish, the scribe of the alleged writtenreport which has been proved by the defence side through Exhibit‘G-1’ which is Khagaul P.S. Case No. 86 of 2005 in which PW-4Nageshwar Prasad and Ashok Rai, brother of the deceased andbhaisur of the informant, Sonu Kumar and bhagina of thedeceased are accused. Learned Senior Counsel has argued that theinformant was not present in the vehicle at the time of occurrence.In this regard, it is submitted that in her written report, theinformant has not stated about the presence of Rintu Singh but inexamination-in-chief in paragraph ‘1’ she has stated that RintuSingh was sitting at the front side of the Bolero vehicle. PW-1 didnot mention about the presence of Arun Kumar in her examination-in-chief although in written report, the name of ArunKumar has been mentioned. It is, thus, submitted that it wouldthrow doubt over the prosecution story. Referring to the evidenceof PW-5, learned Senior Counsel submits that he has stated that hewas standing near gumti when his uncle came in the vehicle thenhe and Sugriv had boarded the vehicle. He has not stated about thepresence of PW-1 in the Bolero vehicle. It is also submitted thatKalavati Devi (PW-2) has stated in her cross-examination inparagraph ‘3’ that perhaps she would have stated to Drogaji that ifher bhabhi would not have reached then many people would havebeen killed. Learned Senior Counsel submits that the I.O. hasstated in paragraph ‘17’ of his cross-examination that independentwitnesses denied the presence of PW-1 with Satyanarayan Sinha(the deceased).

36. It is lastly submitted that the informant has herselffailed to establish the presence of Bolero vehicle at the place ofoccurrence because Asha Devi (PW-1) has stated in herexamination-in-chief that somehow they reached their villageSarari by a vehicle. The vehicle was produced after eleven days ofthe occurrence.

37. It is submitted that there are contradictory statementsof the prosecution witnesses. The witnesses have stated that firing had taken place from the front side of the vehicle. PW-6 says thatfiring had taken place for five minutes. PW-6 is one of theeyewitnesses of the seizure list but the statement of the informantand PW-6 are contradictory. Learned Senior Counsel furthersubmits that the informant has failed to explain the delay of 24hours in lodging of the FIR. The date of occurrence is said to be30.04.2003 at 11:30 AM but the information was given to thepolice on 01.05.2003 at 11:45 AM. It is his submission thatalthough PW-1 claimed that she had filed application in the courtbut she had not produced the copy of the application.

38. Learned Senior Counsel has submitted that thearguments advanced by the prosecution-appellant are baseless, thejudgment of the learned trial court does not suffer from perversityand in view of the settled judicial pronouncements on the subject,this Court need not interfere with the judgment of acquittal unlessit is found to be perversed and the one and only irresistibleconclusion is reached that the accused-respondent is guilty ofcommitting the offence.

39. Learned Senior Counsel submits that the prosecutionhas failed to produce the injury report of Sanjay @ ChunnuSharma and further the injury of Dheeraj Kumar is not a reliablepiece of evidence. Dr Umesh Kumar (PW-9) who produced the papers has stated that he had brought the papers from the record ofthe hospital but he could not name the doctor who had writtenthese papers.Thus, the doctor who had examined the injuredDheeraj Kumar has not been examined. It is also pointed out thatthe document produced by PW-9 is Exhibit ‘5’ which does notdisclose any kind of firearm injury rather the paper disclosescomplain of pain.

40. Learned Senior Counsel has relied upon thejudgments of the Hon’ble Supreme Court in the case of SatguruSingh vs. State of Punjab reported in AIR 1995 SC 2449, Stateof Punjab vs. Ajaib Singh and Ors. reported in (2005) 9 SCC 94to submit that in case of an unexplained delay in lodging of theFIR, the prosecution case becomes doubtful. He also relied uponthe judgment of the Hon’ble Supreme Court in the case of GaneshBhavan Patel and Another vs. State of Maharashtra reported inAIR 1979 SC 135 to submit that despite repeated request, theinformant and the witnesses did not give their statements underSection 161 CrPC but after a long delay i.e. on 14.06.2003, thewitnesses gave their statement. However, Rintu Singh (PW-6)never appeared before police to give his statement under Section161 CrPC and this witness lastly appeared in the court whichwould be evident from paragraph ‘3’ of his cross-examination.

Thus, there is a long delay in the statements of the witnesses hencethey are not trustworthy witnesses and no reliance can be placedon them.

41. Learned Senior Counsel has relied upon thejudgment of the Hon’ble Supreme Court in the case of BabuSahebagouda Rudragoudar and Ors. vs. State of Karnatakareported in (2024) 8 SCC 149 to strengthen his submissions thatwhere the order regarding acquittal of an accused is based on aplausible and justifiable view emanating from the discussion of theevidence available on the record, the trial court’s judgment cannotbe said to be suffering from any infirmity or perversity. He hasfurther relied upon the judgment in the case of Ram LakhanSingh and Others vs. State of U.P. reported in (1977) 3 SCC 268to submit that some of the prosecution witnesses were notexamined by the police nor were they cited in the charge-sheet, ina grave charge of murder, it will not be proper to place reliance ona witness who never figured during the investigation and was notnamed in the charge-sheet. In this case, it is submitted that RintuSingh (PW-6) was neither examined by police nor he was namedin the charge-sheet, thus no reliance may be placed on hisevidence.

Analysis of the evidences

Analysis of the evidences

42. Asha Devi (PW-1) is the informant of this case. Inher deposition, she has stated that the deceased was her husband.The occurrence is of 30.04.2003 between 11:00-11:30 AM. At thattime, she was going to a doctor for her treatment. She was going inher own vehicle of which the Registration No. is BR1T 0222. Thevehicle was being driven by her husband, on the front seat, RintuSingh was sitting, in the middle seat, Sanjay and Jeevan weresitting and on the backseat, Nageshwar and Dheeraj were sitting.

She has stated that when the vehicle reached JamaluddinChak, near the house of Ram Babu Pathik, there one Marutivehicle was standing in such a manner that her vehicle could nothave moved, then her husband took out his head outside thevehicle and asked the said Maruti vehicle driver to give side. PW-1has further stated that three persons came out from the said vehicleand shouted that “Satya Narayan aa gaya”. On hearing theirshouts, Ram Babu Pathik, Ritlal Yadav, Sunil Yadav @ Kana,Ranjan @ Benga and 8-10 persons armed with weapon came outfrom the house of Ram Babu Pathik. Ram Babu Pathik said “salabarka neta banta haa jaan se maar do”, in the meantime, Ritlal,Sunil and Benga pulled out the husband of the informant andstarted firing. Her husband fell down after receiving firearm injury.

Ram Babu told to kill all who were sitting in the vehicle,whereafter Ritlal, Sunil and Benga started firing but the informantand others concealed themselves under the seats of the vehicle.PW-1 has stated that Dheeraj and Sanjay got injured in the firingand the vehicle had also marks of several firings. All the accusedpersons fled away thinking that all had died. She has specificallystated in her examination-in-chief that police came in the village,she was giving a written complaint but police did not take itwhereafter she had filed an application in the court. At herinstance, the written information was submitted to the Officer-in-Charge which was in the handwriting of Rajnish, it has beenmarked Exhibit ‘1’. The protest petition submitted by PW-1 in thecourt has also been brought on record and marked Exhibit ‘2’. Thiswitness has further stated that Ram Babu Pathik happened to bethe samdhi of the then Chief Minister, therefore, police was nottaking up the case in proper direction/proper way. She has alsostated that one of the witnesses of this case namely Sanjay @Chunnu has been murdered in the year 2009 by the accused RitlalYadav.

In her cross-examination, she has admitted this suggestion thaton that day there was a “Tel Pilawan Lathi” rally of RashtriyaJanata Dal. The place of rally was Gandhi Maidan. She denied any knowledge as to whether the fact that there was a rally that daywas known to her husband or the persons sitting in the vehicle ornot. The defence suggested as to whether any of the villagers didnot tell them not to go because a rally/procession had beenmarching out. The witness said that nobody had told her and shehad not made any statement before the I.O. that many people hadtold her not to go out because procession was going on.

This witness has further stated that one Rajnish aged about 21-22 years of a neighbouring village had written the FIR on herasking at her house. Many villagers were present in the house, thedead body of her husband was kept in the gosala and the vehiclewas standing outside. She denied her awareness that with regard tothe same occurrence, Danapur P.S. Case No. 198 of 2003 had beenregistered or not. In her cross-examination, she has further statedthat when she had started from Sarari, Rintu Singh was with her,he was known but she did not know his village and father’s name.She has further stated that Sanjay @ Chunnu Sharma, JeevanYadav and Arun Kumar were also with her. About Arun Kumar,she has stated that he died as he was killed. She has stated that hewas her co-villager. She expressed her unawareness that whetherSantosh was injured that day in any occurrence. She knew thatArun had got injured. About the presence of the persons who were in the vehicle, she has stated that they were not called but theywere occasionally visiting her house. In her house, there wereabout 20-21 persons. In her written application and protestpetition, she had not written that for treatment of which disease shewas going. The defence has questioned this witness with regard tothe criminal antecedents of Chunnu Sharma and Rintu Singhsuggesting that they were having criminal antecedents of seriousoffences. The defence has also questioned the antecedent of thedeceased husband of the informant. The informant has stated thatshe was not aware of the number of cases pending against herhusband. She was married in the year 1986 and after her marriage,her husband had gone to jail once for 4-5 months but in which casehe had gone to jail was not known to her. She denied herknowledge that her husband was accused in Danapur P.S. Case No.238 of 1994 under Section 302 IPC, Shahpur P.S. Case No. 44 of1996 under Section 307 IPC, Shahpur P.S. Case No. 64 of 1996under Section 302 IPC and Shahpur P.S. Case No. 76 of 1997under Section 25(i) B of the Arms Act. In her cross-examination,she has further stated that her protest petition was filed on13.06.2003. She did not know that the witnesses named in theprotest petition were accused or not in P.S. Case No. 198 of 2003.She did not remember whether the I.O. had recorded the statement of her children during investigation or not. The defence suggestedPW-1 that she was not in the vehicle rather she was with herchildren but this witness denied the suggestion. The witness alsodenied the suggestion that for this reason, the children were notproduced for their statement. She denied the suggestion that shewas seen going to the place of occurrence after the occurrence.

43. PW-1 has stated that in her written application shehad mentioned the name of Rintu Singh but she did not rememberwhether she had mentioned his name in the protest petition or not.She had mentioned the name of Arun in written application as wellas in the protest petition and had also given name of Amar Rai.She was not aware that her brother Abhay was accused in themurder case of Sanjeet in Khagaul P.S. Case No. 3/04. PW-1 hasfurther stated that her witness Rajnish was killed in the year 2005.She was not aware that in the said case Nageshwar Rai who iswitness in this case, Ashok Rai who is her bhaisur, Sonu, his sonand her bhagina were accused. The defence suggested that becausehe was not ready to depose falsely in this case so he was killed.

44. In paragraph ‘18’ of her deposition, PW-1 has statedthat she did not remember that in the past in Sessions Trial No.246/08 she had stated about her knowledge of Danapur P.S. CaseNo. 198 of 2003. She did not remember that with regard to this occurrence, Danapur P.S. Case No. 198 of 2003 was registered andthe said case was lodged against 1000-1500 unknown people. Shedid not remember to have stated in the said case in court that therewas an exchange of firing between police and accused persons inwhich Arun had become injured. She did not remember to havestated in the said case that Arun was also an accused in the saidcase. In paragraph ‘19’ she has stated that her husband was acandidate in the Assembly Election of the year 2002 from DanapurConstituency as candidate of Bharatiya Janata Party and Dr.Ramanand Yadav was a candidate of the Rashtriya Janata Dal. Inthe said election accused Ritlal Yadav, Sunil, Benga and otherswere the supporters of RJD. Dr. Ramanand Yadav had won theelection and at that time the accused was mukhiya of KothwaGram Panchayat. After this election, the said procession was takenout by RJD. The witness was suggested that in the said procession,the supporters of RJD were going in the rally, this witness deniedher awareness about the same. While answering the question of thedefence, PW-1 has stated that from Sarari via Kothwa to GandhiMaidan there is no route for going from Kothwa to Sarari. There isa pakki road going from Kothwa to Bailley Road which is passingnorth-south. This road connects the road going to Patna at thecanal. The place of occurrence is 5-6 kilometre west-south from Kothwa. She has stated that Jamaluddin Chak village is situated onthe both sides north and south of the railway line. Straight south inSarari there is a railway gumti and after crossing the gumti,Jamaluddin village is reached. This is a pakki road which goes toPatna via Khagaul, in between there is DRM Office. There is tworoute one from Lakhpat road and another passing through DRMOffice.

45. PW-1 has further stated that at the time ofoccurrence, she had concealed herself under the seat and she hadstated this in her protest petition also. She denied the suggestionthat she could not have concealed herself under the seat. She hasstated that she was lodging the case on the same day but policeregistered the case on the other day. She denied the suggestion ofthe defence that the case was lodged after much deliberation. Thedefence suggested to this witness that her husband had assembledthe criminals to make the procession/rally unsuccessful. Thewitness denied this suggestion. Then the defence further suggestedthat about 150-200 persons armed with weapons along with herhusband had attacked the house of Pathik Ji and the criminals hadattacked with bricks, stones and firearms. This suggestion was alsodenied. The defence then suggested that the guard had informedthe Officer-in-Charge whereafter he had called commandos as there was a threat to his life. This witness denied the suggestion ofthe defence that for saving the life of Pathik Ji and others, firingwas made and despite that when they did not disperse then policehad fired on the criminals and eight police personnel were injuredin the occurrence. This suggestion was also denied by this witness.This witness was suggested that in this encounter only her husbandand the co-villager Santosh had got injured. The witness furtherdenied the suggestion that after looking into the FIR of ThanaRoad P.S. Case No. 198 of 2003, she had lodged the FIR. Shedenied the suggestion that in the earlier application no name wasmentioned. She also denied the suggestion that to defame Lalu Ji,house of Pathik Ji was chosen.

The witness denied the suggestion that in her earlierstatement she had not stated that her husband was pulled out. Shehas stated to have made statement that Ritlal, Sunil and Benga hadpulled out her husband and she had also stated that they wereinvolved in firing upon her husband.

46. On perusal of the evidence of PW-1, it appears thatas regards the place of occurrence, this witness has stated in herexamination-in-chief that when her vehicle reached near the houseof Rambabu Pathik in Jamaluddin Chak, there was a Maruti Car

standing on the road in such a way that her vehicle could not havemoved. It is this place where the accused persons came out fromthe house of Rambabu Pathik, pulled out her husband and killedhim. Even the defence has suggested to this witness that thehusband of this witness along with 1000-1500 persons hadattacked the house of Pathik Ji and there the guard had informedthe police whereafter police had come and then there was a firingfirstly for saving the life of Pathik Ji and others and thereafterwhen the people did not disperse, police had made the firing inwhich the criminals and eight police personnel were injured. ThisCourt, therefore, finds that the occurrence near the house of PathikJi has not been contested by the defence rather suggestions havebeen given by the defence in this regard making the place, i.e. thehouse of Pathik Ji, as the place of occurrence where firing hadtaken place. The learned trial court has recorded in its finding thatthe prosecution has not been able to prove the place of occurrence.The court has noticed that while informant has stated that the placeof occurrence is near the house of Rambabu Pathik situated inJamaluddin Chak, the I.O. has mentioned the place of occurrenceon the Khagaul-Neora Main Road. Taking note of this, the trialcourt has raised doubt and said that the prosecution has not provedthe place of occurrence. In order to conclude as to the place of occurrence, we will take a view after taking note of the evidence ofthe I.O. (PW-8).

47. Kalavati Devi (PW-2) is the sister of the deceasedSatyanarayan Sinha. She has supported the prosecution case. Shehad gone to Jamaluddin Chak where she had seen the dead body ofher brother and found that his wife was weeping. She had heardthat Ritlal, Benga, Sunil and Shravan had killed her brother. Wefind that so far as this witness is concerned, she is not aneyewitness of the occurrence.

48. Sanjay Kumar (PW-3) is one of the witnesses of theproduction-cum-seizure list. He has identified his signature on thesame which has been marked Exhibit ‘3/1’. He has also identifiedthe signature of the another witness, Rajesh, which has beenmarked Exhibit ‘3/2’. He has stated that there was a blood-stainedgamcha (towel) which was seized and blood was also there in thevehicle, there were also marks of firing on the vehicle. He hasidentified his signature on the another seizure list which has beenmarked Exhibit ‘3/3’. He has also identified the signature ofRamanand Rai, who is another witness, as Exhibit ‘3/4’. In hiscross-examination, he has stated that the seizure list was preparedon 10.05.2003 after 15-20 days and after looking to the seizure list,he has stated that in the seizure list it is not stated that there was a towel on the driving seat. There was also no writing in the seizurelist that on which part of the vehicle there were marks of firing.

49. Nageshwar Prasad Yadav (PW-4) has stated in hisexamination-in-chief that he was in the vehicle on 30.04.2003 inbetween 11:00-11.30 AM. Satyanarayan Sinha was driving thevehicle and in the said vehicle there were other people. He had leftthe house for going to the doctor. He has stated that in the westernside when came in front of the house then they saw one Marutiparked from which 3-4 persons came out and shouted that “SatyaNarayan aa gaya”. From the house of Pathik Ji, Ritlal Yadav, SunilYadav and Ranjan Yadav came out and Pathik Ji said that “salabarka neta banta hai jaan se maar do”. On this Ritlal Yadav, SunilYadav and Ranjan Yadav all the three started firing. After sufferingthe bullet, Satyanarayan Sinha fell down at the place ofoccurrence. He has stated that Sanjay Sharma @ Chunnu Sharmaand Dheeraj had also suffered bullet. This witness has stated thatSatyanarayan Sinha had died, they had brought the vehicle drivingto the village. The defence has cross-examined this witness withregard to the distance. He has stated that he got acquainted withSatyanarayan Sinha in the year 2003. He first met him in LakshmiChak village in the house of Badri Rai who is his bhagina. Thiswitness was suggested that he was accused with Sinha in Khagaul P.S. Case No. 86 of 2005 and he was also accused in Khagaul P.S.Case No. 4 of 2004, Khagaul P.S. Case No. 59 of 2003 and someother cases but the witness denied his knowledge about thosecases. He denied the suggestion that he was knowinglysuppressing that he was an accused in those cases.

This witness has stated that he had gone to Sarari village by amotorcycle. The said motorcycle is registered in the name of hisbrother Mahendra Kumar. He has stated that the place ofoccurrence is in Danapur Sub-Division. This witness has alsostated that on the date of occurrence there was a procession/rally ofRJD which was arranged in the Gandhi Maidan. This witness hasstated that he had correctly recorded his statement before DarogaJi. He has stated that he had not given his statement in the chamberof DIG. He has stated that he had given his statement in the houseof Sinha Sahab. He denied the suggestion that he had gone to DIGfor the first time on 19.06.2003. He has also denied the suggestionthat on the said day, Asha Devi, Chunnu Sharma and Dheeraj hadgone. He has stated that he did not remember that the dead bodywas taken out after two days, but he has stated that the dead bodywas lifted from the Sarari house and postmortem was done inDanapur from where they had gone to the burning ghat. He hasdenied the various suggestions given by the defence. He also

showed his unawareness that for the occurrence of the same day,police had registered Danapur P.S. Case No.198 of 2003. Hedenied the suggestion that police was regularly searching thewitnesses. He has stated that he has given the same statement incourt which he had given before police. He has stated that he hadnot stated before police that west to the house a Maruti car wasseen parked rather he had stated that from the Maruti 3-4 personshad come out and they were saying that “Satya Narayan AaGaya”, from the house of Pathik Ji, Ritlal Yadav, Sunil Yadav andRanjan Yadav came out and on the asking of Pathik Ji, RitlalYadav, Sunil Yadav and Ranjan Yadav all the three had fired uponSatyanarayan Sinha as a result whereof he fell down on the placeof occurrence. He has stated that the 3-4 persons who had comeout of the Maruti car could not be identified. He denied thesuggestion that Satyanarayan Sinha had come to disturb the rallyand he was planning it for 3-4 days. He denied the suggestion thatpeople had attacked the house of Pathik Ji. He also denied thesuggestion that unknown people had killed Satyanarayan Sinha.He has stated that he was not aware that in the neighbourhood ofthe place of occurrence there is any Railway Hospital or not. Hehas stated that he had not gone to the Railway Hospital. He deniedthe suggestion that arms and ammunition were kept in the vehicle for using the same in case of need. He also denied the suggestionthat the vehicle was kept concealed for nine days. The defencesuggested this witness that the house of Pathik Ji was attacked andpolice was compelled to fire in which two persons of Sarari villagewere killed and police personnel were also got injured, the witnesssaid that he was not aware of this.

50. Dheeraj Kumar (PW-5) is the nephew of thedeceased who claims that he was accompanying the deceased inthe Bolero vehicle which was being driven by Satyanarayan Sinha.Regarding the place of occurrence, this witness has also stated thatwhen near the house of Pathik Ji, the vehicle reached then a whitecolour Maruti was found standing there and his uncle asked themto keep the vehicle in a side whereafter they shouted that “SatyaNarayan Aa Gaya”. This witness has stated that from the house ofPathik Ji, Ritlal Yadav, Sunil Yadav and Benga Yadav with 8-10persons came out and on the asking of Pathik Ji, SatyanarayanSinha was pulled out and three persons namely Ritlal, Sunil andBenga had fired at him as a result whereof he got injured and felldown. He has stated that he was treated in Railway Hospital andPMCH. He identified Ritlal and other accused persons.

In his cross-examination, this witness has stated that after theoccurrence, he had not gone to the Primary Health Center in Sarari village which is situated at a distance of one kilometer from thevillage. He had not given statement before police that he had gottreatment of the firearm injury at Saguna More. He had not shownthe treatment papers to the I.O. He has stated that the I.O. had toldhim that he would himself collect the papers. He has stated that atthe time of occurrence, he was a student and he was studying inclass 8[th] or 9[th] in a government school. He had left the school in theyear 2006 and had done his Matriculation from the Maner area. Hehas denied the suggestion of the defence that he was standing nearSarari Gumti. He also denied the suggestion of the defence that hehad been waiting at Sarari Gumti for a long time because there wasno vehicle that day and on the same day when his uncle came invehicle near the gumti, then he and Sugriv boarded the vehicle. Hehad shown his unawareness that his uncle had ever gone to jail.

The defence has cross-examined this witness on the point ofhis treatment for the injury. This witness has stated that he was notaware that who had got him admitted in the hospital and he wasnot aware that in the paper what is the date of admission and whatis the date of discharge. He denied the suggestion of the defencethat he had made statement before police that while trying to fleeaway, he had suffered the firearm injury. He denied the suggestionthat there was no mark of firearm injury on his hand. He denied the suggestion that he had stated about suffering of firearm injuryonly to become a witness. He also denied the suggestion that hewas deposing as tutored by Asha Ji and Nageshwar Ji. He hasfurther stated that he had made statement before police that whentheir vehicle reached near the house of Pathik Ji in JamaluddinChak, then Satyanarayan Ji told to give side to the Maruti vehiclefrom which three persons came out and they shouted that “SatyaNarayan Aa Gaya” and then from the house of Pathik ji, RitlalYadav, Sunil Yadav, Benga and 8-10 persons had come out andthen they had pulled out Satyanarayan Sinha and fired upon him.He has then stated that he and Chunnu had suffered firearm injuryand he was treated in Railway Hospital and PMCH. He denied hisknowledge that in the FIR of Danapur P.S. Case No.198 of 2003many persons from his village and Jamaluddin Chak were accused.In the said occurrence, Arun and Santosh had suffered firearminjury in which Arun had died. He was not aware that eight policepersonnel had received injuries. He denied the suggestion that hisuncle along with 200-250 people had attacked the house of PathikJi, police had tried to stop them and ultimately 104 rounds of firingwere made in self-defence in which the people in the crowd andpolice personnel became injured.

51. This Court has noticed from the pattern of cross-examination of the defence that there is no suggestion to theprosecution witnesses that Satyanarayan Sinha or people with himhad made firing on the house of Pathik Ji rather the suggestion isthat police had made 104 rounds of firing in self-defence in whichpeople in the crowd and police personnel had got injured. Thus,the defence has itself suggested that police personnel got injured inthe firing which had been done by police. On record, there is noinjury report of any police personnel. No one of them is a witnessin this case.

52. Rintu Singh (PW-6) has also supported theprosecution case and he has given the same place of occurrenceand the manner of occurrence in his examination-in-chief. He hasstated in his cross-examination that his statement was not taken,his name is there in the FIR but he had not recorded his statementbefore any police officer. He has been cross-examined by thedefence and the defence has questioned his presence at the place ofoccurrence.

53. Dr. Narendra Kumar Singh (PW-7) was posted atSub-Division, Danapur as Deputy Superintendent. He has statedthat a Medical Board was constituted for the postmortem examination of Satyanarayan Sinha and his dead body was broughtfrom Gosala at Village Sarari. The body was brought and identifiedby the Havaldar Lalan Singh, Ashok Rai and Rameshwar Rai. Hehad found the following injuries:-

(i) Lacerated wound 2½” x 2” depth continued inside plusblackening around below the right ear. There was partiallaceration over right ear lobule. It was the entry wound.

(ii) Lacerated wound 5” x 3” depth continued with injuryno. (i) in front of left ear and left side of face. This is exitwound. There is fracture of right side of mandible, left sideof mandible and maxilla.

(iii) Lacerated wound 3½” x 3½” depth continued inside infront and below right shoulder joint plus slide blackeningaround. It was the entry wound.

(iv) Lacerated wound 5” x 3” depth continued with injury no. (iii) on the back of the neck. This is exit wound.

(v) Lacerated wound 1” x 1” omentum sprouting outside of right side of abdomen plus blackening around the entrywound.

External Examination:-

Scalp – Meningal surface pale

Thorax – There is slight laceration of right upper lobe oflung and blood collection in thoracic cavity. Right chamberfull, left empty Abdomen - Vicera, liver, spleen, kidney and gut – generallook pale. There is collection of blood and gas. Slightlaceration of ilium.

Urinary bladder is empty. Stomach contained undigestedfood.

Small gut – Liquid, semidigested food and gas. Large gutcontained faceas of gas. Fragments of bullet are found inthe wall of abdomen and inside the wall of pidium whichwas handed over to the constable.

(4) Time elapsed since death – 36 hours

(5) Injuries from (i) to (v) were firearm injuries causinghemorrhage, shock and death.

(6) This P.M. report in in the handwriting of Dr. H.K. Jhaand written in my presence. It bears the signature of Dr.H.K. Jha, Dr. Ram Niwas Pd. And mine. The P.M. reportwas marked Exhibit – 4

(7) Blackening around injury suggests that firing wasresorted to from close range.

54. On perusal of the evidence of doctor (PW-7), it isfound that Satyanarayan Sinha had suffered at least three firearminjuries. A fragment of bullet was found on the wall of abdomenand inside the wall of pidium which was handed over to theConstable. The time elapsed since death is recorded as ‘36’ hoursand the cause of death were the injuries from 1 to 5 causinghemorrhage, shock and death. He has further stated that blackeningaround the injury suggested that firing was resorted to from closerange. The injuries present on the body of the deceased and the factthat there were blackening around the injury only corroborates themanner of occurrence as stated by the informant and the otherprosecution witnesses.

55. Arshad Jama (PW-8) was posted as Dy.S.P.Sachivalaya in the year 2003. He got the charge of investigation ofDanapur P.S. Case No. 200/03 vide Memo No. 3007/XL dated

02.05.2003. After taking charge of the investigation, he hadinspected the place of occurrence. He has stated that the place ofoccurrence is the main road going from Danapur Station to Shivala.At a distance of 1200 yards there is Danapur Railway Station, in thewest at 350 yards, there is Sarari Gumti and a chauraha where onthe road in the diameter of 18 inch blood was found lying. He hadseized the blood-soaked soil from there. He had also found brokenglass pieces. He has stated that about 25 yards east to the place ofoccurrence, there is a 10-feet wide road which goes to LankaColony towards north and on the west side road culvert, he hadfound two scooter and one Maruti van in burnt condition. He hasstated that about 30 yards east from the place of occurrence andnorth to the main road, there is house of Shri Mahendra PrasadSinha, thereafter the house of Gauri Lal and behind the house ofMahendra Prasad Sinha and Gauri Lal, there is the house ofRambabu Pathik. According to this witness, at the time ofoccurrence, the people going to the rally were coming to LankaColony More from west Sarari-Gumti towards Jamaluddin Chowk.From the description of the place of occurrence given by the I.O.,we find that the house of Rambabu Pathik is very close to the placeof occurrence. Thus, the prosecution case with regard to the place ofoccurrence is, in fact, getting corroborated from the evidence of the

I.O. (PW-8). The I.O. had found blood marks there and he hadprepared the seizure list. It is evident from the postmortem report(Exhibit ‘4’) of the deceased that apart from the three firearminjuries, he had not suffered any other injury on his body, therefore,it cannot be said that he was attacked by the people going in therally. The defence has suggested that he was killed in the firingmade by police, but the bullet recovered from the body of thedeceased was not sent to the Forensic Science Laboratory and nomatching of the bullet was done with the firearm by which thefiring had been done by police. The learned trial court has notconsidered these aspects of the matter. The I.O. has proved theseizure list (Exhibit ‘1/11’). He has stated about a second place ofoccurrence from where he had seized the Bolero Jeep and preparedthe seizure list (Exhibit ‘1/12’). He has stated to have sent theseized material from the place of occurrence to the FSL and got 82-83 process against Ritlal Yadav. He had taken Ritlal Yadav intocustody after he surrendered.

He has stated in paragraph ‘6’ that prior to his taking over theinvestigation, the earlier I.O. had done the investigation. He hadtaken over charge of the investigation on 03.05.2003 but he had notrecorded in the diary that he had perused the case diary recorded bythe earlier I.O. This witness has stated that the earlier I.O. had inspected the place of occurrence on 02.05.2003 and he hadrecorded that the place of occurrence is the pakki road adjacent toKhagaul and at the place of occurrence, this road has gone fromeast to west. At this place only, Satyanarayan Sinha was shot at. Inparagraph ‘12’, the I.O. had not recorded as to finding of anythingat the place of occurrence.

56. An analysis of the evidence of the I.O. (PW-8) wouldshow that even though the occurrence had taken place on30.04.2003, the earlier I.O. had not gone to the place of occurrenceand though PW-8 has stated that the earlier I.O. had gone to theplace of occurrence on 02.05.2003, i.e., on the third day after theoccurrence, he had not found anything at the place of occurrencebut when PW-8 went to the place of occurrence, he found blood-stained soil and the pieces of broken glasses. To this Court, itappears that the police was completely indifferent to the occurrenceof killing of Satyanarayan Sinha, the prosecution witness,particularly PW-1, has clearly suggested that Rambabu Pathikhappened to be the samdhi of the then Chief Minister of the State,therefore, police was not doing proper investigation of the case. Wefind that the evidence of PW-8 clearly suggests and demonstrates that the police had not done anything after the occurrence to registerthe case and collect the evidences.

57. At this stage, we find that the informant (PW-1) fileda protest petition in the court of the learned jurisdictionalMagistrate. The said protest petition has been brought on record inevidence. In the protest petition, she has alleged that the police wasin collusion with the accused persons and the senior police officersof the Government of Bihar and the I.O. were not taking any legalaction in the matter. The I.O. had not recorded the statement of theinformant (PW-1) and that of the witnesses. This protest petitionwas filed in the court of learned Additional Chief JudicialMagistrate, Danapur on 13.06.2003, whereafter only the I.O. (PW-8) recorded the statement of PW-1. In his statement, in course oftrial, the I.O. (PW-8) has recorded that he reached Sarari village andwanted to take statement of Asha Devi (PW-1) but she was notwilling to give her statement. In paragraph ‘14’ of the case diary, hehad recorded that the earlier I.O. had reached Sarari and wanted torecord the restatement of the informant and other witnesses butnobody appeared. There is no such recording by earlier I.O. Thisstatement of PW-8 cannot be believed by this Court. The protestpetition clearly states that police was not taking any action in thematter and only at a belated stage, a case was developed that PW-1

and other witnesses were not willing to record statement. He hadnot even examined the earlier I.O. but has on his own recorded inparagraph ‘14’ of the case diary that the earlier I.O. had tried to takestatement of the informant but informant had denied to givestatement. The I.O. has stated in paragraph ‘12’ of the depositionabout the recording in paragraph ‘80’ and ‘81’ of the case diary. Hehas stated that the informant had told him that she would give herstatement on 14.06.2003. This date of 14.06.2003 is to be readkeeping in mind that the informant (PW-1) had filed her protestpetition in the court on 13.06.2003 which came to the notice of theI.O. (PW-8) and thereafter in order to save himself he recorded thatthe informant (PW-1) had stated that she would make her statementon 14.06.2003.

This Court further finds that in paragraph ‘13’ of his cross-examination, the I.O. (PW-8) has stated that in course ofinvestigation he had not recorded in the case diary any report of theForensic Science Laboratory. He had not recorded the statement ofthe earlier I.O. Indrajeet Singh was the I.O. of the Danapur P.S.Case No. 198 of 2003 but this witness (PW-8) had not recorded thestatement of Indrajeet Singh because he did not think it proper torecord his statement.

It is evident from the statement of PW-8 that he was not at alltaking interest in the investigation and he did not think it proper toeven record the statement of the earlier I.O. of this case and that ofthe I.O. of Danapur P.S. Case No. 198 of 2003. He has stated tohave recorded in paragraph ‘124’ of the case diary that he hadsubmitted an application in the court of learned A.C.J.M., Danapurfor amalgamation of Case No. 198/03, 199/03 and 200/03 on thedirection of the Inspector General of Police. This witness had notdone any photography of the place of occurrence, he had notprepared any sketch map of the place of occurrence. He has statedthat the independent witnesses had denied to have seen PW-1 in thevehicle with Satyanarayan Sinha but no such witness has beenexamined on behalf of the defence.

58. This Court finds that the defence has suggested thatthe house of Rambabu Pathik was attacked by Satyanarayan Sinhaand the people assembled with him but the I.O. (PW-8) has statedthat he had not recorded the statement of the guards who werepresent at the house of Rambabu Pathik. He has admitted that at hishouse, the guards were on duty. This Court, therefore, finds that thedefence has, though, suggested to the prosecution witnesses that thehouse of Rambabu Pathik was attacked but on this point no materialat all has come. The I.O. (PW-8) has not stated in his examination- in-chief that there was any occurrence of attack on the house ofRambabu Pathik. He has, in fact, categorically admitted inparagraph ‘8’ of his deposition that the place of occurrence, time ofoccurrence and the date of occurrence of the present case and thatof Danapur P.S. Case No. 198 of 2003 is the same and one.

59. This Court is of the opinion that the I.O. of this casehad not at all done proper investigation of the case, he left severallacuna in the investigation but notwithstanding those lacunae, theprosecution has been able to prove the place of occurrence, date ofoccurrence and time of occurrence as also the manner ofoccurrence. The defence cross-examined I.O. (PW-8) with regard tothe earlier statement of witness Asha Devi (PW-1). The I.O. hasstated that PW-1 had not stated before him that she had hiddenherself under the seat and she had not made a statement that Ritlal,Sunil and Benga were firing then she had hidden herself under theseat. She had stated that Sinha Ji had fallen down in the vehicleitself. This Court finds that the statement of the I.O. (PW-8) withregard to the statement of Asha Devi before him in course ofinvestigation would not create any doubt over the prosecution caseand it would not discredit the prosecution witness number 1. It isher consistent case that she was present in the vehicle with herhusband when her husband was killed, there is no change in her statement and even in the protest petition the informant (PW-1) hasstated that the accused persons had pulled out her husband andRitlal Yadav, Sunil Yadav and Ranjan Kumar had fired upon herhusband as a result whereof he had become injured and fallendown. She has, then stated that again Rambabu Pathik told them tokill the people sitting in the vehicle whereafter all the 10-12criminals started firing but she had hidden herself in the vehicleunder the seat. She had stated that the vehicle had several marks offirearm injuries but this I.O. (PW-8) had not sent the vehicle to theFSL. This witness has stated that the vehicle was produced by theinformant after eleven days but he had not produced the vehicleseized in the court. He has admitted that from the vehicle onegamcha (towel) and blood scratch were found but he had not sentthe said gamcha to the FSL.

60. Umesh Kumar (PW-9) was the doctor posted atDanapur Railway Hospital on 30.04.2003. He brought the treatmentpaper of Dheeraj Kumar (PW-5). He has stated that Dheeraj Kumarwas kept in observation in the hospital on 30.04.2003 at 1:15 PM.He has stated that on treatment paper it is written that there is aninjury on the right forearm. He was administered medicine andinjection on an other paper name Dheeraj Kumar is written which isthe record of hospital. He has identified his signature and writing on the paper which has been marked Exhibit ‘5’. In his cross-examination this witness has stated that one page is in hishandwriting and no case number is mentioned on the injury report.He had not recorded about police requisition and Dheeraj Kumarhad not put his signature in his presence. The evidence of the doctor(PW-9) could go on to demonstrate that Dheeraj Kumar (PW-5) wasvery much admitted in the Railway Hospital immediately after theoccurrence on 30.04.2003 and he had received treatment there.Thus, the presence of PW-5 at the place of occurrence and hisstatement that he had suffered injury cannot be discarded.

Consideration

61. A perusal of the entire evidence available on therecord would lead this Court to take a view that the learned trialcourt has not properly appreciated the ocular and the documentaryevidences available on the record. The evidence of the I.O. (PW-8)is that the place of occurrence of this case is the same and onewhich is the place of occurrence of Danapur P.S. Case No. 198 of2003. It is near the house of Rambabu Pathik. The trial court hascompletely missed out to see that for the occurrence which tookplace immediately after murder of Satyanarayan Sinha, ShriPramod Kumar, Inspector of Police, Danapur had registeredDanapur P.S. Case No. 198 of 2003 on the basis of his self- statement. The FIR has though been shown registered on30.04.2003 but it was sent to the court of learned ACJM, Danapuronly on 02.05.2003, therefore at the time of sending the FIR ofDanapur P.S. Case No. 198 of 2003, the police was fully aware ofthe case disclosed by the informant (PW-1) in her writteninformation. The investigation of Danapur P.S. Case No. 198 of2003 was entrusted to one Indrajeet Sinha, Sub-Inspector. For noplausible reason, neither Pramod Kumar, Inspector of Police norIndrajeet Sinha the I.O. of the case were examined by the secondI.O. (PW-8). PW-8 had taken charge of the investigation of DanapurP.S. Case No. 198 of 2003, 199 of 2003 and 200 of 2003 on02.05.2003 and had visited the place of occurrence on 03.05.2003.

62. PW-8 has given the description of the place ofoccurrence in paragraph ‘1’ of his examination-in-chief. He hadfound blood in 18” inch diameter in the middle of the road, he saysabout presence of the broken glass pieces and he had also found twoscooters and one Maruti van in burnt condition near the place ofoccurrence. He has also stated that at the time of occurrence peoplegoing to the rally were coming from different vehicles to LankaColony More and from Western Sarari Gumti to Jamaluddin Chak.There are ample evidences on the record to show that on30.04.2003, the ruling party in the state had organised a rally named

and styled as “Tel Pilawan, Lathi gumawan” rally. From thedeposition of the I.O. (PW-8) it is evident that near the place ofoccurrence, a Maruti van was found in burnt condition. It is theprosecution case that on 30.04.2003 at about 11:30 AM whenSatyanarayan Sinha was going on in his Bolero vehicle and reachednear that place, he found that a Maruti vehicle was standing on theway in such a position that his vehicle could not have moved ahead,on this he asked the persons to park the Maruti in one side andallow him to move. At this stage, some people came outside theMaruti and they shouted that “Satya Narayan aa gaya”. Thereafter,the accused persons came outside the house of Ram Babu Pathikand then the occurrence took place. Presence of blood at the placeof occurrence has been found by the I.O. with broken glass pieces.It is evident that the first I.O., who was in charge of the case from30.04.2003 to 02.05.2003, did not take any step save and except toregister one FIR being Danapur P.S. Case No.198 of 2003 dated30.04.2003 but the same was sent to the learned A.C.J.M. Courtonly on 02.05.2003, therefore, the informant has contended that P.S.Case No. 198 of 2003 was lodged to help the accused. A perusal ofthe formal FIR of Danapur P.S. Case No.198 of 2003 (Exhibit ‘B’)would show that the said case was registered on the basis of self-statement of Pramod Kumar, Inspector of Police. In connection with the said case, the informant prepared a seizure list on 30.04.2003 at14:45 Hrs. Regarding the place from where the seizure was made,the seizure list says Khagaul-Neora Road, Village Jamaluddin Chaksituated “Additional Primary Health Center, in front of SarariGumti Southern Road - found in scattered conditions here andthere. It shows (i) seizure of nine 12 bore empty cartridges (ii) TwoKF 8 mm cartridges and (iii) Three sacks of brick and stone pieces.In the chargesheet bearing No. 101/04 dated 26.04.2004, RintuSingh @ Ravi Kamal Kishore Singh and Sanjay Kumar @ ChunnuRai have been shown as accused persons. A perusal of thechargesheet/final form (Exhibit ‘D-1’) would show that the saidcase was registered under Sections 147, 148, 149, 307, 353, 337,338, 435, 431 and 397 IPC read with Section 27 of the Arms Actand 26A of the Indian Railways Act. The investigation was initiallyhanded over to Indrajeet Tiwari and in this case, twelve named and1000-1500 unknown persons were made accused. Ultimately, thecharge-sheet was filed against two accused persons as stated aboveand the investigation was kept pending against others.

63. On record, the copy of the written information givingrise to Danapur P.S. Case No. 198 of 2003 registered on 30.04.2003by Pramod Kumar, Inspector is not available. In fact, the certifiedcopy of the formal FIR of P.S. Case No. 198 of 2003 together with a

written information submitted by Havaldar M.M. Sattar Sheikh ofBihar Military Police-9 dated 01.05.2003 is on the record. From thiswritten information (Exhibit ‘B-1’), it appears that a force of 1-4 ofBihar Military Police-9, Jamalpur was placed at the house of SriRambabu Pathik, the samdhi of the then Chief Minister of Bihar,situated at Jamaluddin Chak, Danapur. He has alleged that on30.04.2003 at about 12 noon, two criminals had an encounter witheach other on Khagaul-Neora Road near Jamaluddin Chak. In thisoccurrence, 500-600 unknown persons attacked the house ofRambabu Pathik, they started throwing stones and bricks and firingfrom behind, the informant claimed that he tried to stop them byshouting but the crowd was agitated and they started burning thevehicles which were passing through the road, they also attacked onthe informant and the force. On his order, the Constable 672Sukhlal Tudu fired one round in the air for safety, in the meantimethe police force from Danapur Police Station reached there.Havaldar M.M. Sattar handed over one empty cartridge shell. ThisExhibit ‘B-1’ is addressed to the Officer-in-Charge of DanapurPolice Station. It is evident that the application has been written byHavaldar on 01.05.2003 and it was sent to the court of learnedACJM, Danapur on 02.05.2003. The copy of the formal FIR of thiscase has not been exhibited but on perusal of the case diary of the present case, this Court finds that this was the second case whichwas registered in connection with an occurrence giving rise toDanapur P.S. Case No. 199 of 2003 and the investigation of thiscase was also handed over to PW-8.

64. The prosecution in this case has established that thekilling of Satyanarayan Sinha took place on 30.04.2003 at 11:30AM. Perusal of the written information of Havaldar M.M. Sattarwould indicate that the occurrence reported by him took place soonafter the killing of Satyanarayan Sinha. Although according to theHavaldar, the occurrence took place at 12 noon, but he submitted awritten application in this regard only on the next day i.e. on01.05.2003. Be that as it may, according to him, Sipahi Tudu hadresorted to one round of firing only and the empty cartridge shellwas handed over by him to the Officer-in-Charge of Police Station.The informant or the I.O. of P.S. Case No. 198 of 2003 have notbeen examined. PW-8 does not say that police force which arrivedfrom Danapur resorted to the firing on the crowd. In thatcircumstance, a question would arise as to who were the personswho resorted to firing. Havaldar Sattar has said in Exhibit 'B-1' thattwo criminals had a fight with each other, he was required to beexamined, but the I.O. (PW-8) neither examined him nor heexamined any of the guards who were posted at the house of

Rambabu Pathik. In this connection, he has stated in paragraph ‘17’of his deposition that in paragraph ‘114’ of the case diary, he hadrecorded that Satyanarayan Sinha was killed in the position ofsitting on the driver’s seat but he had not recorded the statement ofthe guards who were present at the house of Rambabu Pathik. PW-8has admitted in paragraph ‘17’ of his deposition that the guardswere on duty at the house. The defence suggested to this witness(PW-8) that whatever murdertook place, it took place in the policeencounter but the accused was falsely implicated, the I.O. (PW-8)denied this suggestion of the defence. This deposition of PW-8would show that PW-8 has denied that the murder took place in theencounter with the police. In the above-mentioned background ofthe facts emerging from the records, the first seizure list dated30.04.2003 prepared at 14:45 Hrs. received in the court of learnedACJM, Danapur on 02.05.2003 is important. This seizure list hasbeen prepared in connection with Danapur P.S. Case No. 198 of2003. The certified copy of the same has been brought on record.We would reproduce the seizure list hereinbelow:- izlax & nkukiqj Fkkuk dkaM la[;k & 198@03 fnukad 30@04@03 /kkjk &147@148@149@307@322@353@337@338@435@431@427 Hkk0n0fo0] 27 vkeZ ,DV ,oa 126A(2)bafM;ujsyos ,DV

1 tIrh dh frfFk ,oa le;%& fnukad 30-04-03 dks 14%45 cts

65. The I.O. (PW-8) has deposed in paragraph ‘5’ of hisdeposition that he had conducted a raid at the places of Sunil Yadavand Ritlal Yadav, had seized firearms from the place of Ritlal Yadav.He had also recorded the criminal antecedent of Ritlal Yadav,Shravan Yadav and Sunil Yadav. In this connection, a perusal of thecase diary would show what has been stated by the I.O. (PW-8)with regard to the criminal antecedents of the accused may be foundin paragraph ‘162’ of the case diary wherein the following criminalantecedents of Ritlal Yadav (respondent no.2) have been recorded:- "1& [kxkSy Fkkuk dkaM la[;k 64@95 fnukad 01&09&95 /kkjk302@34 Hkk0nåfoå ,oa 27 vkE~lZ ,DVA2& [kxkSy Fkkuk dkaM la[;k 65@95 fnukad 02&09&95 /kkjk25¼1&ch½,@26@35 vkE~lZ ,DVA

3& [kxkSy Fkkuk dkaM la[;k 50@95 fnukad 01&05&95 /kkjk302@34 Hkk0nåfoå 25¼1&ch½,@26@27 vkE~lZ ,DVA

4&[kxkSy Fkkuk dkaM la[;k 64@96 fanukad 5&7&96 /kkjk323@324@341@307@34 Hkk0nåfoå A

5& [kxkSy Fkkuk dkaM la[;k 52@98 fnukad 01&08&98 /kkjk 35---------Hkk0nåfoå 27 vkE~lZ ,DVA

6& [kxkSy Fkkuk dkaM la[;k 54 @ 98 fnukad 06&08&98 /kkjk302@34 Hkk0nåfoå ,oa 27 vkE~lZ ,DVA

7&& [kxkSy Fkkuk dkaM la[;k 10@99 fnukad 04&02&99 /kkjk302@34 Hkk0nåfoå] 27 vkE~lZ ,DV ,oa 3@4 fo0ink0vf/k0"

66. It is important to note that the further part of paragraph ‘162’ and then paragraph ‘163’ are missing in the case diary. Afterpage no. 1928180, the next page available in 1928182. The page no.1928181 is missing in the case diary.

67. The respondent no.2 was absconding since the occurrence of 30.04.2003, on information that he had come tovillage Kothwa, the I.O. (PW-8) conducted a raid on 12.01.2004.He has stated about the seizure of firearms, the details of whichmay be found in paragraph ‘132’ of the case diary. Police hadrecovered two carbine, two magazine, fifteen live cartridges of 9mm, one country-made pistol, 0.315 bore three live cartridgesand five cartridges of 12 bore. In this connection, policeregistered Khagaul P.S. Case No. 6 of 2004 dated 22.01.2004under Sections 25(1-b)a/26/35 of the Arms Act againstrespondent no.2 and others.

(emphasis supplied)

68. In his deposition, PW-8 has stated that the I.O. ofDanapur P.S. Case No. 198 of 2003 was Indrajeet Singh but he hadnot recorded his statement after taking over the charge ofinvestigation because he did not think it necessary to do so. Inparagraph ‘15’, PW-8 has stated that there was no grievance withrespect to the investigations done by him (Indrajeet Singh) in thetwo cases. In paragraph ‘8’ of his deposition, PW-8 has stated thathe cannot say as to from whom he had taken charge of Case No.198/03.

69. In paragraph ‘9’, PW-8 has stated that regarding ArunKumar, he had come to know that witness Arun Kumar had died inthe police firing in connection with Danapur P.S. Case No. 198 of2003. From the deposition of PW-8 itself it is found that at therelevant time, the police was under immense pressure, otherwisethere was no reason as to why a First Information Report giving riseto Case No. 198 of 2003 would not disclose about the murder ofSatyanarayan Sinha in the occurrence which had already takenplace at 11:30 AM on 30.04.2003. The Danapur P.S. Case No. 198of 2003 was registered on 30.04.2003 at 16:00 hours and the time ofreceipt of information of the occurrence as shown in the formal FIRis 11:35 AM. The distance between police station and the place ofoccurrence has been shown as seven kilometer only, on that day as has come in the deposition of the witnesses the ruling political partyhad called for a rally known as “Tel Pilawan, Lathi gumawan” andRambabu Pathik, who was the samdhi of the then Chief Minister,had arranged for snacks and beverages for the people attending therally at his house. In this connection, the I.O. has stated inparagraph ‘2’ of his deposition that the people going to rally weregoing by different vehicles to Lanka Colony More towardsJamaluddin Chak vide Western Sarari Gumti. Armed force of 1-4was also posted at the house of Rambabu Pathik and I.O. has statedin paragraph ‘7’ of his deposition that the earlier I.O. had inspectedthe place of occurrence on 02.05.2003 and had recorded that theplace of occurrence is Khagaul-Neora Pakki Road and at the placeof occurrence this road had gone from east to west and on the dateof occurrence, on this road itself Satyanarayan Sinha was shot at butin paragraph ‘12’ of his deposition he had recorded that the I.O. didnot find anything at the place of occurrence. This statement of PW-8 in paragraph ‘7’ of his deposition clearly establishes that the I.O.of the case had not even visited the place of occurrence prior to02.05.2003 and he had tried to mislead the investigation of the caseby not recording that the place of occurrence of Danapur P.S. CaseNo. 198 of 2003 and that of the present case (Danapur P.S. Case No. 200 of 2003) was the same and one, from where several roundsof fired cartridges shells were seized on 30.04.2003 at 14:45 Hrs.

70. It is also evident that from the place of respondent no.2, 12 bore cartridges were seized in course of raid and from theplace of occurrence also nine cartridges shells of 12 bore wereseized. The seizure list was made in course of investigation of thepresent case, but the I.O. (PW-8) did not take any step to collectevidence by sending those firearms and seized cartridges to theFSL. In paragraph ‘15’ of his deposition the I.O. has stated that incourse of investigation the report of forensic science is to be enteredin the case diary but in diary he had not entered forensic sciencereport or any other report. In fact the I.O. (PW-8) has stated inparagraph ‘14’ that he had not recorded in the case diary whether hehad received the examination report of the seized blood.

71. The conduct of the investigation in this case has beendone with completely indifferent attitude firstly by the first I.O. andthen by PW-8. In the name of investigation, only some paper workin the nature of formalities have been done, still the learned trialcourt has rejected the prosecution case by pointing out the lacunasin investigation.

72. This Courts finds on perusal of the order dated11.02.2013 that the prosecution had filed a petition dated 16.01.2013 to issue summons to the witnesses Sanjay Kumar,Dheeraj Kumar and Nageshwar Prasad which was allowed. It wasthe submission of the defence at that stage that the prosecution doesnot want to examine seventeen chargesheet witnesses saying thatthey are hearsay witnesses but this is factually incorrect and thosewitnesses are the eyewitnesses of the occurrence. The learned trialcourt accepted the plea of the prosecution and allowed the petition.This order attained finality, therefore no adverse inference couldhave been drawn by the learned trial court against the prosecutionfor not examining the seventeen chargesheet witnesses whoaccording to the prosecution were not material witnesses and theywere hearsay witnesses.

73. In the above background, the evidence of PW-1 inparagraph (v) that she had to submit an application-cum-protestpetition in the court becomes important. In Exhibit ‘2’ she hadcomplained to the court that police was not conductinginvestigation properly, the statement of the witnesses were notbeing recorded and because the samdhi of the Chief Minister of theState is involved in this case, therefore, the senior police officer andthe I.O. have not taken any legal action in the matter. Exhibit ‘2’was filed in court on 13.06.2003. PW-1 has stated that the vehiclehad got dozens of marks of firing but this Court finds that when the

I.O. (PW-8) prepared the seizure list of the Bolero vehicle bearingregistration no. BR-1T/0222, on 10.05.2003 in the description ofthe seized vehicle only the color, registration number, enginenumber and chassis number of the vehicle were written. PW-8 didnot mention about the condition of the vehicle in which it wasseized on 10.05.2003. The vehicle was not sent to the FSL forexamination but in order to explain this inaction, in paragraph ‘10’of his deposition, PW-8 has stated that in paragraph ‘24’ of the casediary he had recorded that when he contacted the informant to giveher statement, she refused to give her statement and when herequested her to send the Bolero vehicle to the Forensic ScienceLaboratory, she refused to do it. She also refused to give thecomplete name and address of the witnesses of the FIR. Thisstatement of the I.O. must be looked into with reference to the casediary in order to get a complete picture of the progress ofinvestigation. Paragraph ‘24’ and ‘25’ are recorded on 03.05.2003,the time is not mentioned. The vehicle was seized on 10.05.2003and it was in lawful possession of the I.O. From the case diary itappears that on or after 10.05.2003, the I.O. did not take any step tosend the vehicle to the FSL. It is, therefore, evident that despitebeing in lawful possession of the vehicle at least on 10.05.2003, theI.O. (PW-8) did not send the vehicle to FSL. It only strengthens the claim of the informant (PW-1) as stated in her protest petition(Exhibit ‘2’) that the senior police officers and the I.O. of the casewere not taking legal action in the matter, as one of the accused inthe case was the samdhi of the then Chief Minister.

74. PW-8 has stated in paragraph ‘14’ of his depositionthat he had not produced the seized vehicle in the court, he hadfound one towel and blood scratch in the vehicle, but he had notmentioned about any other mark apart from these two things in thecase diary. He had also mentioned about the release of the vehiclein the case diary. He had also not conducted any investigation thatduring the eleven days before seizure of the vehicle, the vehicle hadgone to which place or places

75. This Court, while appreciating the evidences on therecord, would rely upon the judgment of the Hon’ble SupremeCourt in the case of Shahajan Ismail (supra). Paragraph ‘29’ and‘30’ of the judgment are being reproduced as under:- “29. The appreciation of ocular evidence is a hardtask. There is no fixed or straitjacket formula forappreciation of the ocular evidence. The judiciallyevolved principles for appreciation of ocularevidence in a criminal case can be enumerated asunder:

29.1. While appreciating the evidence of a witness,the approach must be whether the evidence of thewitness read as a whole appears to have a ring oftruth. Once that impression is formed, it isundoubtedly necessary for the Court to scrutinise theevidence more particularly keeping in view thedeficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find outwhether it is against the general tenor of the evidencegiven by the witness and whether the earlierevaluation of the evidence is shaken as to render itunworthy of belief.

29.2. If the Court before whom the witness givesevidence had the opportunity to form the opinionabout the general tenor of evidence given by thewitness, the appellate court which had not thisbenefit will have to attach due weight to theappreciation of evidence by the trial court and unlessthere are reasons weighty and formidable it wouldnot be proper to reject the evidence on the ground ofminor variations or infirmities in the matter of trivialdetails.

29.3. When eyewitness is examined at length it isquite possible for him to make some discrepancies.But courts should bear in mind that it is only whendiscrepancies in the evidence of a witness are soincompatible with the credibility of his version thatthe court is justified in jettisoning his evidence.

29.4. Minor discrepancies on trivial matters nottouching the core of the case, hypertechnicalapproach by taking sentences torn out of context hereor there from the evidence, attaching importance tosome technical error committed by the investigatingofficer not going to the root of the matter would notordinarily permit rejection of the evidence as awhole.

29.5. Too serious a view to be adopted on merevariations falling in the narration of an incident(either as between the evidence of two witnesses oras between two statements of the same witness) is anunrealistic approach for judicial scrutiny.

29.6. By and large a witness cannot be expected topossess a photographic memory and to recall thedetails of an incident. It is not as if a video tape isreplayed on the mental screen.

29.7. Ordinarily it so happens that a witness isovertaken by events. The witness could not haveanticipated the occurrence which so often has anelement of surprise. The mental faculties thereforecannot be expected to be attuned to absorb thedetails.

29.8. The powers of observation differ from personto person. What one may notice, another may not. Anobject or movement might emboss its image on oneperson's mind whereas it might go unnoticed on thepart of another.

29.9. By and large people cannot accurately recall aconversation and reproduce the very words used bythem or heard by them. They can only recall the mainpurport of the conversation. It is unrealistic to expecta witness to be a human tape recorder.

29.10. In regard to exact time of an incident, or thetime duration of an occurrence, usually, people maketheir estimates by guess work on the spur of themoment at the time of interrogation. And one cannotexpect people to make very precise or reliableestimates in such matters. Again, it depends on thetime-sense of individuals which varies from personto person.

29.11. Ordinarily a witness cannot be expected torecall accurately the sequence of events which takeplace in rapid succession or in a short time span. Awitness is liable to get confused, or mixed up wheninterrogated later on.

29.12. A witness, though wholly truthful, is liable tobe overawed by the court atmosphere and thepiercing cross-examination by counsel and out ofnervousness mix up facts, get confused regardingsequence of events, or fill up details fromimagination on the spur of the moment. Thesubconscious mind of the witness sometimes sooperates on account of the fear of looking foolish orbeing disbelieved though the witness is giving atruthful and honest account of the occurrencewitnessed by him.

29.13. A former statement though seeminglyinconsistent with the evidence need not necessarilybe sufficient to amount to contradiction. Unless theformer statement has the potency to discredit the laterstatement, even if the later statement is at variancewith the former to some extent it would not behelpful to contradict that witness.

[See Bharwada Bhoginbhai Hirjibhai v. State ofGujarat[8], Leela Ram v. State of Haryana[9] andTahsildar Singh v. State of U.P.[10]]

30. To put it simply, in assessing the value of theevidence of the eyewitnesses, two principalconsiderations are whether, in the circumstances ofthe case, it is possible to believe their presence at thescene of occurrence or in such situations as wouldmake it possible for them to witness the factsdeposed to by them and secondly, whether there isanything inherently improbable or unreliable in theirevidence. In respect of both these considerations, thecircumstances either elicited from those witnessesthemselves or established by other evidence tendingto improbabilise their presence or to discredit theveracity of their statements, will have a bearing uponthe value which a court would attach to theirevidence. Although in cases where the plea of theaccused is a mere denial, yet the evidence of theprosecution witnesses has to be examined on its ownmerits, where the accused raise a definite plea or putsforward a positive case which is inconsistent withthat of the prosecution, the nature of such plea orcase and the probabilities in respect of it will alsohave to be taken into account while assessing thevalue of the prosecution evidence.”

8. (1983) 3 SCC 217 : 1983 SCC (Cri) 728 : AIR 1983 SC 753

9. (1999) 9 SCC 525 : 2000 SCC (Cri) 222 : AIR 1999 SC 3717

10. 1959 SCC OnLine SC 17 : AIR 1959 SC 1012

76. In the case of Edakkandi Dineshan (supra), theHon’ble Supreme Court held that the principle of “falsus in uno,falsus in omnibus” is not applicable to the Indian criminaljurisprudence. It has been held that the duty of the Court is toseparate the grain from the chaff. While rejecting the contention ofthe appellants in the said case that the prosecution had notconducted investigation in a fair and impartial manner, the Hon’bleSupreme Court observed in paragraph ‘25’, ‘26’ and ‘27’ of thejudgment as under:- “25. One more thrust of argument from theappellants was that the prosecution has notconducted the investigation in a fair andimpartial manner as they have tried to rope ininnocent persons who were not present at thespot. There was an attempt to rope in oneAshraf and there was a consistency in thestatements of the eyewitnesses that they hadseen Ashraf when the crime was taking place.Admittedly, there is a rivalry between the twogroups so the possibility of exaggerationcannot be ruled out. When the fact that Ashrafwas not at all present during the crime and thathe was present in the hospital came to light ofthe prosecution, they had moved a report andsought deletion of his name.

26. A cumulative reading of the entire evidenceon record suggests that the investigation hasnot taken place in a proper and disciplinedmanner. There are various areas where a proper investigation could have strengthened its case.In Paras Yadav v. State of Bihar[8], the SupremeCourt observed as under : (SCC p. 130, para 8)

“8. … the lapse on the part of theinvestigating officer should not be taken infavour of the accused. It may be that suchlapse is committed designedly or because ofnegligence. Hence, the prosecution evidenceis required to be examined dehors suchomissions to find out whether the saidevidence is reliable or not. For this purpose, itwould be worthwhile to quote the followingobservations of this Court from Ram BihariYadav v. State of Bihar[9]: (SCC pp. 523-24,para 13)

‘13. … In such cases, the story of theprosecution will have to be examined dehorssuch omissions and contaminated conduct ofthe officials otherwise the mischief which wasdeliberately done would be perpetuated andjustice would be denied to the complainantparty and this would obviously shake theconfidence of the people not merely in the law-enforcing agency but also in the administrationof justice.’ ”

27. Hence, the principle of law is crystal clear thaton the account of defective investigation the benefitwill not inure to the accused persons on that groundalone. It is well within the domain of the courts toconsider the rest of the evidence which theprosecution has gathered such as statement of the

8. 1999 (2) SCC 126 : 1999 SCC (Cri) 104

9. (1998) 4 SCC 517 : 1998 SCC (Cri) 1085

eyewitnesses, medical report, etc. It has been aconsistent stand of this Court that the accusedcannot claim acquittal on the ground of faultyinvestigation done by the prosecuting agency. Asthe version of eyewitnesses in specifically namingthe appellants have been consistent throughout thetrial, we find that there is enough corroboration todrive home the guilt of the accused persons. Whenthe testimony of PW 1 Jitesh, PW 2 and PW 4 isseen cumulatively, their versions can be seen to becorroborating each other. All of them beingeyewitnesses, what is material to be seen is theirstand is consistent when they said that it was A-2who was responsible for inflicting blows on boththe deceased. It may not be out of place to mentionthat though the unfortunate incident took place atmidnight around 1 a.m., it was a full moon nightand as such, it was not pitch dark. This has also notbeen vehemently disputed by the defence counsel.Hence, the version put forth by the prosecutionwitnesses inspires confidence of this Court. Thespecific role attributed by the prosecution witnessescannot be challenged on extraneous grounds whichhave been raised by the defence. There is nocontradiction when it comes to assigning specificrole to the above accused. Admittedly, there was anenmity between the witnesses as they were fromdifferent political groups. Moreover, it can be seenfrom the record that the accused and the witnesseswere well acquainted with each other as PW 1, PW2 and PW 4 had defected from CPI and had joinedRSS. The witnesses could have tried to implicateanyone had they wished to take advantage of theirpast acquaintance and recent rivalry.”

77. In this case, we have pointed out in detail that how theinvestigation of this case has been carried out. The reason behindthe indifferent attitude of the senior police officials and the I.O. ofthe case have been noticed by this Court and the reason behind thatis apparent. In such circumstance, as has been held by the Hon’bleSupreme Court in the case of Edakkandi Dineshan (supra), theaccused persons cannot get benefit of a defective investigation. ThisCourt will consider the rest of the evidences which the prosecutionhas gathered and in this regard, the evidence of the prosecutionwitnesses, the evidence of the doctors and other materials on therecord are required to be considered.

78. We are aware that some of the prosecution witnesses inthis case are related or interested witnesses. As regards theevidentiary value of the evidence of the related and interestedwitnesses, the Hon’ble Supreme Court has held in the case of Raju@ Balachandran and Others vs. State of Tamil Nadu reported in(2012) 12 SCC 701 in paragraph '29' as under:- “29. The sum and substance is that the evidence of arelated or interested witness should be meticulouslyand carefully examined. In a case where the relatedand interested witness may have some enmity withthe assailant, the bar would need to be raised andthe evidence of the witness would have to beexamined by applying a standard of discerningscrutiny. However, this is only a rule of prudence

and not one of law, as held in Dalip Singh[4] andpithily reiterated in Sarwan Singh[7] in the followingwords: (Sarwan Singh case[7] , SCC p. 376, para 10)“10. … The evidence of an interested witness doesnot suffer from any infirmity as such, but the courtsrequire as a rule of prudence, not as a rule of law,that the evidence of such witnesses should bescrutinised with a little care. Once that approach ismade and the court is satisfied that the evidence ofinterested witnesses have a ring of truth suchevidence could be relied upon even withoutcorroboration.”

79. We have noticed that one of the reasons for acquittal of the accused-respondent no. 2 as recorded in the impugned judgmentis that according to the trial court, the prosecution witnesses havegiven different statement in the court than the statement to thepolice. The I.O. has not been declared hostile by the prosecution.The trial court has recorded a finding that the I.O. was Dy.S.P. at thetime of the investigation and the statement of the informant andother prosecution witnesses were recorded by him in presence ofthe DIG, Central Range, Patna. In such situation, it cannot be saidthat the I.O. was in collusion with the accused. We, however, findthat this finding of the learned trial court is not correct. A perusal of

4. Dalip Singh versus State of Punjab, AIR 1953 SC 364 : 1953 Cri LJ 1465 : 1954 SCR 145

7. (1976) 4 SCC 369 : 1976 SCC (Cri) 646

the evidence of PW-8 would show that he has nowhere stated in hisdeposition that he had recorded the statement of the prosecutionwitnesses in presence of the DIG. The police officer in whosepresence statement of the witnesses were recorded has not beennamed in course of trial and on perusal of the entire case diary, itdoes not appear that the I.O. was recording the statement of theprosecution witnesses in presence of any senior officer. Thus, thefinding of the learned trial court on this score is completely baselessand unfounded.

80. We have noticed hereinabove the conduct of the policeofficers who were involved in the investigation of the case. The factthat first FIR was lodged giving rise to Danapur P.S. Case No. 198of 2003 by Pramod Kumar, Inspector of Danapur Police Station on30.04.2003 but it was seen by learned A.C.J.M. only on 02.05.2003.No reason explaining the delay in sending FIR to the jurisdictionalcourt has been mentioned. In the column showing date of dispatchof FIR, it has been left blank. Moreover, the self-statement ofPramod Kumar which is the basis of FIR No. 198 of 2003 has notbeen exhibited though the formal FIR has been marked exhibit. Thesecond FIR being Danapur P.S. Case No. 199 of 2003 wasregistered on the information of Havaldar M.M. Sattar and then thepresent FIR giving rise to Danapur P.S. Case No. 200 of 2003 was

lodged on 01.05.2003. There were house guards posted at the houseof Rambabu Pathik, but in course of investigation of this case not asingle police officer/guard was interrogated by the I.O. (PW-8).PW-8 was given charge of the investigation on 02.05.2003. He wentto the place of occurrence on 03.05.2003 from where he seizedblood-stained soil and one cartridge shell, this only shows that thefirst I.O. had done nothing but to do a formality on 30.04.2003. Wetake judicial notice of the fact that one of the accused in this casewas the samdhi of the then Chief Minister of the State of Bihar, theinformant (PW-1) has specifically stated so in her protest petition(Exhibit ‘2’) and she has stated that the police officers were nottaking any legal action in the matter.

81. The learned trial court has taken a view against theprosecution saying that the I.O. has not been declared hostile by theprosecution, this Court is of the opinion that the learned trial courthas completely erred in taking such a view. We are of the opinionthat no doubt the investigation of the case has not been doneproperly, there are huge lapses on the part of the investigatingagency for obvious reasons that the investigating agency was underthe ultimate control of the then Chief Minister of the State,however, in course of trial the I.O. (PW-8) has supported theprosecution case on certain aspects of the matter such that PW-8 has stated that the place, date and time of occurrence in this case is thesame as that of Danapur P.S. Case No. 198 of 2003. It was the dutyof the learned trial court to consider as to whether the lapses on thepart of the investigating agency may confer any benefit to theaccused. In the case of Harendra Rai vs. State of Bihar reportedin (2023) 13 SCC 563, the Hon’ble Supreme Court has observedinter alia that the failure of the State machinery and failure of thetrial court to ensure a fair trial from the perspective of the victimside and the aspect of non-marking of the FIR and bayan tahriri asan exhibit, non-production of the formal witnesses in the trial wouldnot vitiate the genuineness of the FIR and bayan tahriri. TheHon’ble Supreme Court observed “… We refuse to give anydiscount to the accused persons for non-exhibition thereof….”

82. Relying upon the judgment of the Hon’ble SupremeCourt in the case of Ram Bihari Yadav vs. State of Bihar reportedin 1998 4 SCC 517, the Hon’ble Supreme Court in case ofHarendra Rai (supra) quoted paragraph ‘13’ thereof as under:- “13. Before parting with this case, we consider itappropriate to observe that though the prosecutionhas to prove the case against the accused in themanner stated by it and that any act or omission onthe part of the prosecution giving rise to anyreasonable doubt would go in favour of the accused,yet in a case like the present one where the recordshows that investigating officers created a mess by bringing on record Ext. 5/4 and GD Entry 517 andhave exhibited remiss and/or deliberately omitted todo what they ought to have done to bail out theappellant who was a member of the police force orfor any extraneous reason, the interest of justicedemands that such acts or omissions of the officersof the prosecution should not be taken in favour ofthe accused, for that would amount to givingpremium for the wrongs of the prosecutiondesignedly committed to favour the appellant. Insuch cases, the story of the prosecution will have tobe examined dehors such omissions andcontaminated conduct of the officials otherwise themischief which was deliberately done would beperpetuated and justice would be denied to thecomplainant party and this would obviously shakethe confidence of the people not merely in the law-enforcing agency but also in the administration ofjustice.”

83. In view of the aforementioned judicialpronouncements, we are of the considered opinion that the learnedtrial court was obliged to examine the materials available on therecord even though there was a mess created by the I.O.s of thiscase and there was a deliberate attempt to omit to do somethingwhich they ought to have done to bail out the accused.

84. In the case of Edakkandi Dineshan (supra), theHon’ble Supreme Court has applied the principle of Noscitur asociis a well-recognised principle used for interpretation of statutes.In paragraph ‘18’ of the judgment, Their lordships held as under:

“18. It is worthwhile to mention that in hisexamination-in-chief, PW 1, V.K. Jithesh hadmentioned that Sunil was not seen. In his cross-examination, PW 1 had stated that he had told thepolice at the picket post that Sunil was missing.This was apparently in contradiction to the stand ofthe defence that death of Sunil was mentioned in theFIR at 3 a.m. itself while his body was found onlyat 7.30 a.m. in the morning. The statement of PW 1to the police mentioning that Sunil is “missing”cannot be seen in an abstract. “Noscitur a sociis” isa well-recognised principle used for interpretationof statutes. It means that the meaning of a word canbe determined by the context of the sentence; it is tobe judged by the company it keeps. Though thisprinciple is used for interpretation of words in astatute, the inherent principle can very well beapplied to the facts of the present case which havebe seen in the context of the entire set of events thathad transpired that night. The High Court has also,in its well-reasoned judgment considered the factthat while struggling for his life, injured Sunil mighthave made some movements and while so he mighthave fallen into the slushy area and happened to beamidst the bushes which is the reason for him beingallegedly “missing”.

85. Further, in the same judgment the Hon’ble Supreme Court held in paragraph ‘20’ and ‘21’ as under:- “20. Either a partial, untrue version of one of thewitnesses or an exaggerated version of a witnessmay not be a sole reason to discard the entireprosecution case which is otherwise supported byclinching evidence such as truthful version of thewitnesses, medical evidence, recovery of the weapons, etc. At this stage, it may not be out ofplace to refer to the principle called as “falsus inuno, falsus in omnibus”.

21. It is a settled position that “falsus in uno,falsus in omnibus” (false in one thing, false ineverything) that the above principle is foreign toour criminal law jurisprudence. This aspect hasbeen considered by this Court in a plethora ofjudgments. In Ram Vijay Singh v. State of U.P.[5], ,a three-Judge Bench of this Hon'ble Court hadheld that : (SCC pp. 254-55, paras 20-21)

"20. We do not find any merit in the arguments raised by the learned counsel for the appellant.A part statement of a witness can be believedeven though some part of the statement maynot be relied upon by the court. The maximfalsus in uno, falsus in omnibus is not the ruleapplied by the courts in India. This Courtrecently in a judgment in Ilangovan v. State ofT.N.[6] held that Indian Courts have always beenreluctant to apply the principle as it is only arule of caution. It was held as under : (SCC p.536, para 11)

‘11. The counsel for the appellant lastly arguedthat once the witnesses had been disbelievedwith respect to the co-accused, theirtestimonies with respect to the present accusedmust also be discarded. The counsel is, ineffect, relying on the legal maxim “falsus inuno, falsus in omnibus”, which Indian Courtshave always been reluctant to apply. A three-Judge Bench of this Court, as far back as in1957, in Nisar Ali v. State of U.P.[7 ]held on thispoint as follows : (SCC OnLine SC paras 9-10)

5. (2021) 15 SCC 241

6. (2020) 10 SCC 533 : (2021) 1 SCC (Cri) 137

7. 1997 SCC Online SC 42 : AIR 1957 SC 366

“9. … This maxim has not received generalacceptance in different jurisdictions in Indianor has this maxim come to occupy the statusof a rule of law. It is merely a rule of caution.All that it amounts to is that in such cases thetestimony may be disregarded and not that itmust be disregarded. …

10. The doctrine merely involves the questionof weight of evidence which a court may applyin a given set of circumstances, but it is notwhat may be called “a mandatory rule ofevidence”.”

21. Therefore, merely because a prosecutionwitness was not believed in respect of anotheraccused, the testimony of the said witnesscannot be disregarded qua the presentappellant. Still, further, it is not necessary forthe prosecution to examine all the witnesseswho might have witnessed the occurrence. It isthe quality of evidence which is relevant incriminal trial and not the quantity.”

(emphasis in original)”

86. Speaking on the effect of lapses on the part of theInvestigating Officer, the Hon’ble Supreme Court in the case ofParas Yadav vs. State of Bihar reported in (1999) 2 SCC 126observed in paragraph ‘8’ as under:- “8. … the lapse on the part of the investigatingofficer should not be taken in favour of theaccused. It may be that such lapse is committeddesignedly or because of negligence. Hence, theprosecution evidence is required to be examineddehors such omissions to find out whether the saidevidence is reliable or not…”

87. Having said so, we will consider the evidence on therecord to take a view as to whether the learned trial court hasappreciated the evidence in a proper manner to acquit the accused.

88. Admittedly on 30.04.2003, the ruling political party inthe state of Bihar had called for a rally under name and style “TelPilawan, Lathi gumawan”. It has come in evidence that the peoplewho had come to attend the rally were coming to the house ofRambabu Pathik where there were arrangements for snacks andbeverages for them. The deceased Satyanarayan Sinha hadcontested the assembly election against the candidate of the rulingparty, he had lost the election. It is also an admitted position thatthere was a political rivalry between the deceased and the accused-respondent no.2 as it has come in evidence that the accused-respondent no.2 had contested election on the ticket of BharatiyaJanata Party against Dr. Ramanand Yadav of the ruling politicalparty RJD. In paragraph ‘19’ of her deposition PW-1 has stated thatat that time respondent no.2 was Mukhiya of Kothwa GramPanchayat. She has also stated in her deposition that her husbandwas a Ward Commissioner. It has also come in evidence that in thesaid election, the accused-respondent no.2 and other accusedpersons were the supporters of the RJD, therefore the politicalrivalry between the two has been established by the prosecution.

89. The genesis of the occurrence is also established fromthe evidence on the record that on the date of rally when thedeceased was going in his Bolero vehicle and was passing throughthe road near the house of Rambabu Pathik, a Maruti vehicle wasparked there in such a way that the vehicle of the deceased couldnot have moved ahead. At this place, Satyanarayan was killed.

90. The learned trial court has while analysing theevidence in paragraph ‘20’ of its judgment has taken intoconsideration the evidences adduced in Trial No. 246 of 2006 in thename of the ends of justice and for the better appreciation ofevidences. This, in our opinion would not be a correct approach. Inthe case of A.T. Mydeen and Another vs. AssistantCommissioner, Customs Department reported in (2022) 14 SCC392, the Hon’ble Supreme Court referred the judgment in the caseof State of Kerala and Others vs. Joseph @ Baby and Othersreported in (2014) 16 SCC 385. In the said case, the High Courthad considered the evidence of one sessions case which tried someof the accused in another sessions case, which was trying anotherset of co-accused arising out of same offence and acquitted all theaccused. The Hon’ble Supreme Court held that the High Court wasnot right in considering the evidence of one case for another caseand accordingly set aside the judgment of the High Court and remanded the matter to the High Court for fresh disposal. We,therefore, find that the learned trial court has erred on this countalso.

91. We further notice from the judgment of the learnedtrial court that the trial court has relied upon the fact that RambabuPathik was not chargesheeted by the investigating agency, the finalform submitted by police was accepted by learned jurisdictionalMagistrate and even in course of trial, the prosecution did notinvoke Section 319 CrPC to summon Rambabu Pathik. The trialcourt observed that the prosecution witnesses including theinformant have stated in their evidence that Rambabu Pathik wasorder giver and prior to this, all the accused persons came from hishouse. The trial court observed that such things becomes morerelevant. In our opinion, this finding of the trial court is completelyperversed. The learned trial court had before it the statement of theprosecution witnesses and the court was aware of the provision ofSection 319 CrPC. If the trial court was satisfied from the evidencethat any person not being an accused has committed any offence forwhich such person could be tried together with the accused, thecourt could have proceeded against the said person and undersubsection (2) of section 319 CrPC such person could have been summoned. Instead of acting in accordance with law, the trial courtdrew an adverse inference against the prosecution case.

92. The trial court has referred the FIR of Danapur P.S.Case No. 198 of 2003 (Exhibit ‘B’) brought on record by thedefence and held that the I.O. has stated a different place ofoccurrence from that of the one disclosed by the informant. Thisfinding is completely perverse. On perusal of records, we find thatExhibit 'B' is the formal FIR of P.S. Case No. 198 of 2003, theactual self-statement of Pramod Kumar Inspector of Police,Danapur has not been brought on record through it should havebeen part and parcel of Exhibit 'B'. Instead the written statement ofHawildar Sattar which is the basis of P.S. Case No. 199 of 2003 isattached with the Exhibit 'B' and the same has been marked Exhibit'B-1'. We have already recorded hereinabove that the I.O. has statedin his deposition that the place of occurrence in this case is the sameand one which was the place of occurrence of Danapur P.S. CaseNo. 198 of 2003. Thus, the trial court has committed grave error onthis point as well.

93. Further, the learned trial court has discussed theevidence of PW-1, it has been found that she had never stated in herwritten information the name of Rintu Singh as stated by her in theevidence. Rintu was not mentioned as a witness in the charge-sheet,

but has been examined as PW-6. It has been further noted by thetrial court that PW-1 had not mentioned the name of Arun Kumar inher evidence though in her written information she had mentionedthe name of Arun Kumar. The trial court held that from this ittranspired that there is some hide and seek by the informant. ThisCourt is of the considered opinion that raising doubt over theevidence of PW-1 for the reason stated by the trial court is not inaccordance with the principles of appreciation of ocular evidences.We have already recorded in the beginning of the judgment itselfthat Rintu Singh (PW-6) was allowed to be examined by the learnedtrial court vide order dated 27.05.2013 after noting that PW-1 toPW-5 all had stated about presence of Rintu Singh at the time ofoccurrence. A criminal revision preferred against the said order ofthe trial Court was rejected by the High Court. Further, this Courthas recorded that how some of the prosecution witnesses namelyPW-3, PW-4 and PW-5 were though examined by the I.O. invarious paragraphs of the case diary, but they were not madechargesheet witnesses. The trial court, however, allowed them to beexamined. In our opinion, the fact that PW-1 did not give the nameof Rintu (PW-6) in her written information or that she did notmention the name of Arun Kumar in her evidence cannot be takento discredit the witness.

94. It is further evident from the judgment of the trial courtthat the evidence of PW-1 in Trial No. 246 of 2006 in which she hasstated in paragraph ‘20’ that Arun Kumar was injured in DanapurP.S. Case No. 198 of 2003 and other witnesses have stated that hehad died, has been taken into consideration by the trial court to raisea question as to how it was probable that a man injured and died inanother case was sitting along with deceased husband of theinformant. The trial court, in the opinion of this Court, hascompletely missed out to correlate the sequence of events andseems to have gone by the date of registration of the cases. In thisconnection, the written information (Exhibit ‘B-1’) which is on therecord gives one version that there was a fight among the twogroups first and in the meantime, 500-600 unknown personsassembled at the house of Rambabu Pathik and they were throwingbricks and stones and there were firing also from behind. The I.O.(PW-8) has stated in paragraph ‘17’ that in paragraph ‘114’ of thecase diary he had recorded that Satyanarayan Sinha was killed inthe vehicle on the driver seat in sitting condition. I.O. has deniedthe suggestion of the defence that the murder took place in policeencounter but the accused was falsely implicated. The occurrencewhich took place after murder of Satyanarayan Sinha led to firingby Sukhilal Tudu, Constable No. 672.The I.O. (PW-8) has deposed

that at the time of occurrence there was a Camp of BMP and thirtyyards east from the place of occurrence, north to the main roadthere is house of Shri Mahendra Prasad Sinha whereafter house ofGauri Lal and at the north-western corner of the house of Gauri Laland behind the house of Mahendra Prasad Sinha is the house ofRambabu Pathik. He had found the Maruti van and two scooterslying there in burnt condition nearby the place of occurrence. Thisstatement of the I.O. (PW-8) leaves no iota of doubt that the crowdwhich had assembled after murder of Satyanarayan Sinha hadthrown bricks and stones and also burnt the vehicles. In suchcircumstance, it was quite clear that Arun Kumar who was named inthe FIR by PW-1 as a witness subsequently got injured in theoccurrence which took place after murder of Satyanarayan Sinhaand later on died. We have already found that Danapur P.S. CaseNo. 198 of 2003 was though shown registered by police on30.04.2003 itself, but the FIR was sent to the jurisdictional courtonly on 02.05.2003. In such circumstance, the learned trial courtwas oblidged to consider the plea of the informant that police wasin collusion with the accused and P.S. Case No. 198 of 2003 waslodged only to help the accused. In such circumstance, only becausethe present case has been lodged on 01.05.2003, it cannot be saidthat Arun Kumar who was an injured in Danapur P.S. Case No. 198

of 2003 and subsequently died so he could not have been a personsitting along with the deceased husband of the informant.Apparently, the learned trial court has completely failed toappreciate the materials available on the record which led torecording of an absurd finding.

95. The learned trial court thereafter proceeded to considerthe evidence of the injured witnesses. According to the learned trialcourt, Sanjay Kumar (PW-3) and Dheeraj Kumar (PW-5) are theinjured witnesses but the trial court found that Sanjay Kumar (PW-3) had nowhere said to have sustained firearm injuries. This Courtfound that the learned trial court has mistakenly treated SanjayKumar (PW-3) as an injured witness of this case. In fact, the perusalof the deposition of the prosecution witnesses would show that thesaid Sanjay who had suffered firearm injury was in fact SanjaySharma @ Chunnu Sharma who was murdered during pendency ofthis trial. His mother Usha Devi had lodged Bihta P.S. Case No. 280of 2009 in which Rit Lal Yadav was made accused. The informantof the said case had alleged that her son Sanjay Sharma @ ChunnuSharma was a witness in the murder case of Satya Narayan Sinhaand he was often threatened by Rit Lal Yadav. Thus, Sanjay Kumar(PW-3) who is the formal witness and has proved his signature andproduction-cum-seizure list is not an injured witness. The trial court

has committed gross error in taking him as an injured witness. Wefind from the records that Sanjay Kumar (PW-3) has been examinedonly as a formal witness to prove his signature on the production-cum-seizure list. He has identified his signature (Exhibit ‘3/1’) andthat of another witness Rajesh (Exhibit ‘3/2’). He has also identifiedhis signature on the seizure list of the blood-stained towel, he hasstated that there were blood marks on the vehicle and there weremarks of firing on the vehicle. He has identified his signature on thesecond seizure list which has been marked Exhibit ‘3/3’. He alsoidentified signature of Ram Nandan Rai who is a witness on thesecond seizure list as Exhibit ‘3/4’. In this regard, we have noticedthat Sanjay Kumar (PW-3) was not named in the chargesheet by theI.O. even though he was interrogated during investigation and hisstatements were present in the case diary in paragraph ‘65’. Thecase diary is available on the record and we have noticed that eventhough Sanjay Kumar (PW-4) was named in the written informationof PW-1, the I.O. (PW-8) did not examine him as to the facts andcircumstances of the case. The Public Prosecutor did not examinethis witness on the point of his presence in the Bolero vehicle.These were the lapses on the part of the Investigating Officer andthe Public Prosecutor from which no benefit will accrue to theaccused (respondent no.2). Regarding Dheeraj Kumar (PW-5), the trial court has observed that though this witness has stated thatbullet crossed his hand and in paragraph ‘7’ of his cross-examination, he has stated that it is not true that there is no mark offirearm injury on his hand, but he has not shown any mark ofinjuries to the court during the evidence.

96. We have noticed from the evidence of Dr. UmeshKumar (Court Witness no.1) that he had brought the injury report ofDheeraj Kumar which has been marked Exhibit ‘4’. It was the dutyof the I.O. (PW-8) to collect the medical examination report/injuryreport of PW-3 and PW-5 particularly of PW-5 when he was treatedin PMCH also, but the I.O. failed to collect the injury report of theprosecution witnesses. In our opinion, the failure of the I.O. tocollect the injury report would not prove fatal to the prosecution.

97. To this Court, it appears that the learned trial court hasgiven much evidentiary value to the evidence of the I.O. (PW-8) torecord that the I.O. has stated in his evidence that after theoccurrence when he tried to take the statement of the informant, shedid not give the same. The trial court could not appreciate that theI.O. (PW-8) was not even a competent witness to say so because hewas not the first I.O. of the case. He had taken charge of theinvestigation by order dated 02.05.2003 only, therefore, for firstthree days of the occurrence I.O. (PW-8) had no opportunity to even try to take the statement of the informant. It is reiterated that thefirst I.O. was not even examined by the second I.O. and has notbeen made a charge-sheet witness. This is how the investigatingagency has tried to help the accused. This Court, therefore, rejectsthat part of the testimony of PW-8 where he has stated that after theoccurrence, he tried to take the statement of the informant and theother witnesses. The trial court has not at all considered the protestpetition (Exhibit ‘2’) filed by the informant (PW-1) complainingabout the indifferent attitude of the investigating agency in notrecording the statement of the witnesses.

98. The learned trial court could not appreciate that onlyafter filing of the protest petition (Exhibit ‘2’) on 13.06.2003 in thecourt, the I.O. recorded the statement of the informant on14.06.2003 and then he recorded the statement of other witnesses.Thus, no adverse inference may be drawn from the fact that theprosecution witnesses were examined after fifteen days of theoccurrence. The trial court has recorded that prior to this, the I.O.had taken the statement of several witnesses and the names arementioned by the learned trial court in its judgment but theprosecution had not examined them rather seventeen witnesses havebeen given up for their examination by the prosecution and thesame was allowed vide order dated 11.02.2013 by the predecessor court. This Court finds from the order dated 11.02.2013 passed bythe learned trial court that while seeking to examine Sanjay Kumar,Dheeraj Kumar and Nageshwar Prasad, the defence submitted thatthe prosecution had filed petition praying that prosecution did notwant to examine seventeen charge-sheet witnesses as they are notmaterial witnesses because they are hearsay witnesses but accordingto the defence, this was factually incorrect as those witnesses werethe eyewitnesses of the occurrence. The learned trial court,however, allowed the application of the prosecution and the orderdated 11.02.2013 attained finality. Thus, giving up of seventeenwitnesses by the prosecution cannot create doubt over theprosecution case. These are irrelevant considerations by the learnedtrial court.

99. The learned trial court has recorded another incorrectfinding saying that the seizure list with regard to the vehicle did notmention marks of bullet on the vehicle and there is no FSL reporton the record. To this Court, it appears that these are the laches onthe part of the investigating agency. While preparing the seizure liston 10.05.2003, the I.O. (PW-8) did not mention the completecondition of the vehicle. He has, though, seized the vehicle but didnot send the same to the FSL on or after 10.05.2003. Thus, non-availability of FSL report with regard to the condition of the vehicle

of the deceased is result of a failure of the investigating agency andthe same cannot inure benefit to the accused. The prosecutionwitnesses have consistently said that the vehicle had marks offirearm firing. The I.O. (PW-8) has stated that when he hadinspected the place of occurrence on 03.05.2003, he had foundbroken glass pieces at the place of occurrence. Further, from thevehicle, blood-stained towel was found and PW-8 had also foundblood scratches which clearly proves that Satyanarayan Sinha (thedeceased) was killed when he was going through his Bolero vehicleand reached the place of occurrence, which is nearby the house ofRambabu Pathik. The trial court had no reason to disbelieve thestatement of the witnesses that the accused persons had fired fromthe front side of the vehicle and some marks of bullets were presenton the vehicle also. The trial court seems to have fallen in error bytaking a view that the vehicle was produced by the informantherself to the I.O., this Court found that though there is aproduction-cum-seizure list with respect to the vehicle prepared on10.05.2003 but the circumstances under which the police officialswere not taking prompt action to collect the evidences and theinformant had to make a complaint to the court of jurisdictionalMagistrate in this regard, the delay in seizure of the vehicle cannotbe a ground to take a view that the vehicle did not have, had the bullet marks. The fact that the vehicle was not sent for the FSL onlyproves that there was an attempt to weaken the prosecution case bythe then police officials who were working directly under thecommand of the then Chief Minister of the State.

100. At this stage, we would also take note of the facts inissue in the present case. In the present case, the fact that theaccused-respondent no.2 caused death of Satyanarayan Sinha (thedeceased) is the fact in issue. The evidences available on the recordare the statement of the witnesses in form of oral evidence and thereare some documentary evidences as well to prove that SatyanarayanSinha was killed by respondent no. 2 and his accomplices. Underthe Indian Evidence Act (now 'Bhartiya Shakshya Adhiniyam'), afact is said to be proved when, after considering the matters beforeit, the court either believes it to exist or considers its existence soprobable that a prudent man ought, under the circumstances of theparticular case, to act upon the supposition that it exists. The word“proved”, “disproved” and “not proved” are defined under theEvidence Act in the following terms:- “Proved”.––A fact is said to be proved when, afterconsidering the matters before it, the Court eitherbelieves it to exist, or considers its existence soprobable that a prudent man ought, under thecircumstances of the particular case, to act upon thesupposition that it exists.

“Disproved”.––A fact is said to be disproved when,after considering the matters before it, the Courteither believes that it does not exist, or considers itsnon-existence so probable that a prudent man ought,under the circumstances of the particular case, to actupon the supposition that it does not exist.“Not proved”. –– A fact is said not to be provedwhen it is neither proved nor disproved.

101. For purpose of appreciation of evidence, a court isrequired to bear in mind the setup and environment in which thecrime is committed. The witnesses may narrate the same facts indifferent way. In the case of Raj Kishore Jha vs. State of Biharand Others reported in AIR 2003 SC 4664, the Hon’ble SupremeCourt held that the fact that the name of witnesses do not appear inthe First Information Report by itself cannot be a ground to doubttheir evidence. Paragraph ‘10’ of the said judgment reads as under:- “10. A bare perusal of the judgment of the HighCourt shows that it has disposed of the appeal in arather casual manner. Most of the conclusionsarrived at by the High Court are per se not on soundfooting. The appellate court will not abjure its dutyto prevent miscarriage of justice by interferingwhere interference is imperative. Where doubt isbased on irrelevant grounds or where the courtallows itself to be deflected by red herrings drawnacross the track, or where the evidence accepted bythe trial court is rejected by the High Court after aperfunctory consideration or where the banefulapproach of the court has resulted in vital and crucial evidence being ignored or for any suchadequate reason, the court should feel obliged tosecure the ends of justice, to appease the judicialconscience, as it were. The High Court has notedthat the names of witnesses do not appear in the firstinformation report. That by itself cannot be aground to doubt their evidence as noted by thisCourt in Bhagwan Singh and Others v. State of M.P.( JT (2002) 3 SC 387), Chittar Lal v. State ofRajasthan (2003 AIR SCW 3466) and State ofMadhya Pradesh v. Man Singh and Others (2003) 6Supreme 202). There is no requirement ofmentioning the names of all the witnesses in thefirst information report. No reason has also beenindicated by the High Court as to why the evidenceof PWs 3, 8, 11, 12 and 15 was to be obliteratedmerely because they were accused in the counter-case. ….”

102. In the present case, the defence has suggested to some of the witnesses that Satyanarayan Sinha had some criminalantecedent and even those witnesses had some criminalantecedents. The respondent no. 2 has also got several criminalantecedents of serious nature including murder cases. The defencehas brought on record certified copy of the judgments passed inSessions Trial No. 1795 of 2011 in which the respondent no. 2 andfour other persons were made accused, they were charged for theoffences under Sections 307/120B and 302/120B IPC. This casewas filed for the murder of Chunnu @ Sanjay Sharma on24.10.2009 i.e., during pendency of the trial and when respondent

no. 2 was absconding. The informant was mother of ChunnuSharma who alleged that her son was an important witness againstaccused Ritlal Yadav and said Ritlal Yadav had murdered her son inconnivance with the other accused persons. She claimed in herfardbeyan that her son was also a witness in the murder case ofSatyanarayan Sinha and Ritlal Yadav was threatening her son not toadduce evidence in that case otherwise he would be killed. Afterinvestigation, Ritlal Yadav and other accused were alsochargesheeted, in the said case there were eleven witnesses onbehalf of the prosecution but in course of trial they resiled. Even theinjured witness did not identify the accused persons who werestanding in the dock. Some of the charge-sheet witnesses weredeclared hostile. The trial court though found that Chunnu Sharmawas murdered, but the accused persons were not identified and evenfather and mother of the deceased and injured have not identifiedthe accused. The certified copy of the judgment of the trial court inSessions Trial No. 657 of 2011 (Exhibit ‘A-1’) is available on therecord.

103. Section 56 under Part II of the Indian Evidence Act(now Section 51 of the Bharatiya Sakshya Adhiniyam, 2023) readsas under:- “56. Fact judicially noticeable need not beproved.––No fact of which the Court will takejudicial notice need be proved.”

104. In the case of Harendra Rai (supra), the Hon’bleSupreme Court had occasion to discuss in detail as to what wouldbe the effect of taking judicial notice of certain facts. Paragraphs‘72’, ‘73’ and ‘78’ of the judgment in case of Harendra Rai (supra)are quoted hereunder “72. We are concerned with Section 56 of theEvidence Act, which deals with the authority of acourt to accept certain facts, which are either ofcommon knowledge or from sources whichguarantee the accuracy or are a matter ofauthoritative official record or court record, withoutthe need to establish such fact. The judicial notice ofany fact is taken when the facts cannot reasonablybe doubted.

73. This Court, in its various pronouncements, hastaken support of Section 56 of the Evidence Act todo substantial justice in respective matters. Some ofthem are being reproduced hereinafter to get a betterpicture of how judicial notice is taken.

78. The law, in respect of taking judicial notice ofany fact, may be summarised in the followingmanner:

78.1. The doctrine of judicial notice, as providedunder Section 56, is an exception to general rulesof evidence applicable for proving any fact byadducing evidence in the court of law.

78.2. According to Section 56 of the EvidenceAct, judicial notice of any such fact can be taken by the court, which is well known to everyone,which is in the common knowledge of everyone,which is authoritatively attested, which is soapparent on the face of the record, etc.

78.3. Except in the rarest of rare cases, judicialnotice of any fact is generally not taken incriminal matters in the normal course ofproceeding, and the case is decided on the basisof oral, material and documentary evidenceadduced by the parties to find out the guilt orinnocence.”

105. Taking recourse to Section 56 of the Indian Evidence Act, we take judicial notice of the fact that while absconding in the

case, respondent no. 2 was charged for murder of one of thewitnesses of this case but all the prosecution witnesses resiled, theywere declared hostile and the benefit thereof accrued to therespondent no. 2.

106. The I.O. has stated that he had conducted raid in thehouse of respondent no. 2. Respondent no. 2 had not surrendered bythat time. He has stated that in raid several firearms were seizedfrom the place of respondent no. 2. To get the details of the firearmrecovered from the place of respondent no. 2, we have noticed therecording of the I.O. in the case diary and found that the followingfirearms and ammunition are said to have been recovered from theplace of respondent no. 2.

“ 2 dkckZbu] 2 eSxthu 9 ,e ,e dk] 15 xksyh] ,d ns'kh fiLrkSy]-315 cksj dk 3 ftUnk xksyh] 12 cksj dk ik¡p dkjrql vkfn cjken fd;k A”

107. At this stage, we would take note of Section 8 of theIndian Evidence Act. The Hon’ble Supreme Court had occasion todiscuss the said provision and the case laws in the case ofHarendra Rai (supra). Paragraphs ‘83’ to ‘88’ from the judgmentin the case of Harendra Rai (supra) are being reproducedhereunder for a ready reference:- “Issue (B) : Conduct of the accused-Section 883. In the case in hand, the conduct of the accusedis not only relevant under Section 8 of the EvidenceAct but is also one of the major circumstances toarrive at a conclusion about his guilt. Section 8 ofthe Evidence Act is being reproduced hereinafter:

“8. Motive, preparation and previous orsubsequent conduct.—Any fact is relevant whichshows or constitutes a motive or preparation forany fact in issue or relevant fact.

The conduct of any party, or of any agent to anyparty, to any suit or proceeding, in reference tosuch suit or proceeding, or in reference to anyfact in issue therein or relevant thereto, and theconduct of any person an offence against whom isthe subject of any proceeding, is relevant, if suchconduct influences or is influenced by any fact inissue or relevant fact, and whether it was previousor subsequent thereto.”

84. Illustration (e) of Section 8 throws some lighton the case in hand and is significant in the presentmatter, which is being reproduced hereinafter:

“Illustration (e) A is accused of a crime.

The facts that, either before, or at the time of, orafter the alleged crime, A provided evidence whichwould tend to give to the facts of the case anappearance favourable to himself, or that hedestroyed or concealed evidence, or prevented thepresence or procured the absence of persons who might have been witnesses, or suborned persons togive false evidence respecting it, are relevant.”

85. In a very interesting case of Anant ChintamanLagu v. State of Bombay[10] , this Court, whileholding the accused of that case guilty of murder,has touched on the aspects of relevancy of conductof the accused subsequent to the incident inquestion, and its inference by the court to decide theguilt and innocence of the accused. Relevantextracts from the aforesaid judgment[10] are quotedhereinbelow : (AIR pp. 505, 510 & 526, paras 15,31 & 76)

15. … A criminal trial, of course, is not an enquiryinto the conduct of an accused for any purpose otherthan to determine whether he is guilty of the offencecharged. In this connection, that piece of conductcan be held to be incriminatory which has noreasonable explanation except on the hypothesisthat he is guilty. Conduct which destroys thepresumption of innocence can alone be consideredas material. …

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31. … What inference can be drawn from hisconduct after the death of Laxmibai is a matter to beconsidered by us. And in this connection, we canonly say at this stage that if some prior conduct isconnected intrinsically, with conduct after death,then motive of the appellant would be very clearindeed.

***

76. These arguments, however, are of no avail, inview of the appellant's entire conduct now laid bare,which conduct has been proved to our satisfactionto have begun not after the death of Laxmibai butmuch earlier. This conduct is so knit together as tomake a network of circumstances pointing only tohis guilt.”

86. In the case with which we are dealing, there isno iota of doubt that Respondent 2-accused wasinstrumental in making all possible efforts to wipeout the evidence against him and the prosecutionmachinery as also the Presiding Officer of the trialcourt, if we may say so, was used as a tool of hishigh-handedness.

10. 1959 SCC OnLine SC 21 : AIR 1960 SC 500

87. The obvious question pops up in the mind ofany prudent person, as to why he was instrumental,when he was not guilty of the offence to which hewas being tried. The obvious answer to this wouldreasonably come to mind of any prudent person thathis guilty mind was fearful about the result. Allthese aspects leave no room for doubt that thesubsequent conduct of Respondent 2 is one of themajor circumstances pointing towards his guilt forthe incident that occurred at 9 a.m. on 25-3-1995.88. We may quote a Latin maxim which aptlymeans that a person who receives advantage mustalso bear the burden, “qui sentit commodum, sentiredebit et onus”.”

108. We are of the opinion that in the present case also, the conduct of respondent no. 2 must be noticed. The firearms andammunition recovered from the place of respondent no. 2 are suchthat it may be easily appreciated as to what kind of reputation therespondent no. 2 could have and would have and how that would bea relevant fact. Under illustration (e) of clause 2 of Section 3 of theIndian Evidence Act, it is provided as under:- “(e) that a man has acertain reputation is a fact.”

108. The word “relevant” has been defined as:- “One factis said to be relevant to another when the one is connected with theother in any of the ways referred to in the provisions of the Actrelating to the relevancy of facts.”

109. In ultimate analysis, we find that the learned trialcourt has committed a gross error by ignoring several material evidences and aspects of the matter. We are conscious of theprinciples governing an appeal against acquittal.

110. In the case of Ganesha (supra), the Hon’ble Supreme Court has observed inter alia as under:-

“11.… where the finding of acquittal is recorded onaccount of misreading of evidence or non-consideration of evidence or perverse appreciationof evidence, nothing prevents the High Court fromsetting aside the order of acquittal at the instance ofthe informant in revision and directing freshdisposal on merit by the trial court. In the event ofsuch direction, the trial court shall be obliged toreappraise the evidence in light of the observationof the Revisional Court and take an independentview uninfluenced by any of the observations of theRevisional Court on the merit of the case. ... ”

111. In the present case, since we have noticed that the trial court has not only failed to ensure that the exhibits are to be properlymarked but has also mistaken Sanjay Kumar (PW-4) as an injuredwitness and has drawn adverse inference from his deposition, for thevarious reasons which we have discussed hereinabove, we are of theconsidered opinion that the judgment of the trial court in this case isonly a cut and paste judgment of Sessions Trial No. 246 of 2006.Paragraph ‘20’ of this judgment is verbatimly the same and one asthat of paragraph ‘22’ of the judgment in Sessions Trial No. 246 of2006. The impugned judgment is, therefore, apparently in the natureof a routine and mechanical judgment without properly appreciatingthe evidences on the record. We have discussed the evidences andhave given some observations hereinabove only for pointing out how the learned trial court has missed out in appreciation of the evidenceson the record.

112. This Court sets aside the impugned judgment andremits the matter to the trial court once again for fresh considerationafter taking on the records the documents which have already beenmarked exhibit but not placed on the record of the trial court or therecords which are there on the record, signatures thereon have beenmarked exhibits but the whole document has not been marked.

113. The learned trial court shall hear the parties anddispose of the matter as early as possible. This Court would place onrecord that earlier the trial of this case has already been delayed,therefore, all endeavours and efforts be made to decide the matterwithout granting unnecessary adjournments. It is expected that thetrial court would decide the matter preferably within a period of fourmonths from the date of receipt of this order with the trial courtrecords.

114. The trial court shall reappraise the evidences and takean independent view uninfluenced by any of the observations of thisCourt on merit.

115. While parting with this judgment, this Court wouldexpress its anguish on the manner in which the records of the casehave been maintained. We have noticed that a number of importantdocuments are lying on the record in torn condition and are getting destroyed. This Court would, therefore, direct the learned RegistrarGeneral of this Court to issue appropriate direction to the concernedSection/Office of this Court to get the records properly arranged andsafely preserved. The documents which are getting damaged anddestroyed be preserved in digital form.

116. Let this exercise be done within a period of twoweeks from today and thereafter the trial court records with a copy ofthe judgment be sent to the court of learned Additional SessionsJudge-III-cum-Special Judge MP/MLA Court through a specialmessenger.

117. The accused-private respondent shall surrender in thetrial court within two weeks from today, if he is on bail, then the trialcourt shall obtain fresh bail bond from the accused-privaterespondent.

118. It is made clear that the observations of this Courthereinabove shall not cause prejudice to the case of the either parties.

119. The appeals are allowed to the extent indicatedhereinabove.

(Rajeev Ranjan Prasad, J)

(Ashok Kumar Pandey, J)

Rishi/-

AFR/NAFRCAV DATE03.07.2025Uploading Date25.09.2025Transmission Date25.09.2025