Thursday, 26 January 2017

Golden rules for appreciation of evidence of hostile witness

The evidence of the hostile witness is not to be rejected in its entirety.
In Rameshbhai Mohanbhai Koli vs. State of Gujarat [(2011)11 SCC 111], the
Supreme Court at paragraph 16 (SCC p.117, paras 16-17) clarified the law as
under:-
 “16. It is settled legal proposition that the evidence of a
prosecution witness cannot be rejected in toto merely
because the prosecution chose to treat him as hostile and
cross-examined him. The evidence of such witnesses
cannot be treated as effaced or washed off the record
altogether but the same can be accepted to the extent that
heir version is found to be dependable on a careful scrutiny
thereof. (Vide Bhagwan Singh v. State of Haryana,
Rabindra Kumar Dey v. State of Orissa, Syad Akbar v.
State of Karnataka and Khujji v. State of M.P.)”
Again reiterating the said proposition of law in the State of U.P. Vs.
Ramesh Prasad Misra (1996 10 SCC 360), it was held that the evidence of a
hostile witness would not be totally rejected if spoken in favour of the
prosecution or the accused but required to be subjected to close scrutiny.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.722 of 2012

 Ram Chandra Sah The State of Bihar

Criminal Appeal (DB) No. 605 of 2012

CORAM: MR. JUSTICE KISHORE KUMAR MANDAL
and
 MR. JUSTICE SANJAY KUMAR

Date: 24-01-2017

 Both the appeals arise out of Sessions Trial No. 202 of 1993
and, as such, have been heard together.
Naresh Sah is the sole appellant in Cr. Appeal No. 605 of 2012 whereas
Ram Chandra Sah and Dhirendra Paswan are the two appellants in Cr. Appeal
No. 722 of 2012.
P.W.8 lodged the Fardbeyan on 16.06.1992 at village Itahari vide
Murliganj P.S. Case N0. 81 of 1992 registered under sections 302, 201 and
379/34 IPC which gave rise to the aforesaid Sessions Trial. The learned Addl.
Sessions Judge-1, Madhepura, by his judgment dated 30th May, 2012, held all
the appellants guilty under section 302, 201 IPC and section 27 of the Arms Act
and sentenced them to undergo R.I. for life, R.I. for 05 years and R.I. for 03
years respectively, besides imposing a fine of Rs.10,000/- each with default
clause. Additionally, the appellant Ram Chandra Sah was held guilty under
section 379 IPC and sentenced to undergo R.I. for 02 years. Sentence(s) so
imposed was/were directed to run concurrently.
 In an unfortunate incident that took place on 16th June, 1992, two
persons including the cousin brother of the informant (P.W.8) were killed.
According to the Fardbeyan (Ext. 4) given by P.W.8, the maternal brother of
the informant, namely, Bisheshwar Das @ Pappu Mistri along with his covillager
Kamal Das (both deceased) had gone to see a boy in connection with the
marriage negotiation on 16.06.1992 at about 03.00 P.M. on a motorcycle, but
when his cousin brother did not return till 8.00 P.M., the informant grew
suspicious and went to Prasadi Chouk and kept waiting for them to return.
Meanwhile, a motorcycle rider came from Murliganj side and disclosed to him
that Ram Chandra Sah (one of the appellants) had killed two persons by gunshot
at village Itahari and looted the motorcycle as well. The suspicious informant
proceeded towards the village along with his uncle Vidya Sagar Das and
„Phoopha‟ Resham Lal (both not examined) and reached there at about 9.00 P.M.
where it was brought to his knowledge that two dead bodies were lying in the 
backyard (Badi) of Basudeo Sah. Along with the villagers namely Jagdish
Paswan (P.W.2), Kama Devi (P.W. 3), Prem Lata (P.W.4), Umesh Paswan (not
examined) and Raghu Nandan Paswan (P.W.1) he went to the backyard to find
the dead bodies of his maternal brother and one Kamal Sah lying there in a
pool of blood. The witnesses including Jagdish Paswan, Kama Devi, Prem Lata
and Umesh Paswan informed him that they had seen the incident when two
persons riding a motorcycle coming from Digghi side and going to Dharhara
side were stopped at about 5.00 P.M. as the appellant Ram Chandra Sah had
kept wooden log on the road near his house. When the motorcycle stopped, Ram
Chandra Sah, Naresh Sah and Dhirendra Paswan (appellants), all residents of
village Itahari, shot them as a result whereof they died and thereafter their
bodies were dragged to the backyard of Basudeo Sah and thereafter the
motorcycle was taken away by the appellant Ram Chandra Sah. The mother of
Ram Chandra Sah is said to have collected/gathered the blood-stained soil from
the place of occurrence with a view to destroy the evidence.
 The Investigating Officer (not examined) who is the Officer-in-charge
of Murliganj police station reached the village and recorded the FIR at about
10.00 P.M. at village Itahari and thereafter initiated the investigation. The I.O.
prepared the inquest reports of both the victims and thereafter sent the dead
bodies for post mortem. Upon receipt of the post mortem reports in respect of
both the dead bodies and upon conclusion of investigation, charge-sheet was laid
against the present appellants, Domi Mukhia and one Dinesh Paswan whereupon
the learned ACJM, Madhepura took cognizance of the offence and subsequently
the case was committed to the court of sessions on 20.09.1993. The learned trial
court framed the charges under the aforesaid sections of the Penal Code on
25.06.1994. From the record it appears that the co-accused Domi Mukhia
subsequently absconded. His trial was separated. The learned trial court on
appreciation of evidence produced at the trial held that the charges framed
against the appellants on the strength of evidence, particularly those of P.Ws
3,4,6 and 8(informant) have been proved beyond shadow of reasonable doubt
and convicted them in the manner indicated above.
The prosecution in order to prove the charges examined 08 witnesses
namely Raghunandan Paswan @ Raghu Paswan (P.W.1), Jagdish Paswan
(P.W.2), Kama Devi (P.W.3), Premlata Devi (P.W.4), Umesh Yadav (P.W. 5),
Dr. Nand Kishore Vidyarthi (P.W.6) Majlis Hussain (P.W.7) and Rajeshwar
Das/informant (P.W.8).
The defence also adduced oral evidence and examined Nandkishore Sah
(D.W.1) and Gulabi Devi (D.W.2). Amongst the prosecution witnesses, P.W. 1
has been declared hostile. He has proved his signature over the carbon copy of
the inquest report of the deceased Kamal Das, the inquest report of co-accused
Bisheshwar Das @ Pappu Mistri and the seizure list dated 17.06.1992 showing
recovery of Yamaha motorcycle as Ext. 1, 1/1 and 1/2 respectively. P.W. 2 has
also been declared hostile by the prosecution. This witness has, however, proved
his signature over the inquest report of the deceased Kamal Das, the inquest
report of the deceased Bisheshwar Das @ Pappu Mistri and the signature over
the seizure list dated 17.06.1992 as Ext. 1/3, 1/4 and 1/5 respectively. P.W. 5 is
a formal witness who has proved the Ext. 2 which is the formal FIR. P.W. 7 is
again a formal witness who has proved the writings of the Fardbayan (Ext.4).
P.W. 6 is the doctor who held the autopsy on the dead body of the deceased
Kamal Das and proved his post mortem report (Ext. 3). The autopsy report of
Bisheshwar Das @ Pappu Mistri held by another doctor has been proved by
P.W.6 as Ext. 3/1 (with objection). The I.O. of the case has not been examined
by the prosecution. There is no explanation therefor also. P.W. 8 is the informant
of the case who was also sought to be declared as hostile at the request of the 
prosecution and was cross-examined by the prosecution as well as the accuseds.
We have heard Mr. Rajeev Kumar Verma as well as Mr. Salauddin
Khan in support of Cr. Appeal No. 722 of 2012, Mr. Siyaram Sahi in support
of Cr. Appeal No. 605 of 2012 and Mr. S.C. Mishra, APP for the State.
P.W.6 is Dr. Nand Kishore Vidyarthi held the post mortem on the
cadaver of one of the deceaseds namely Kamal Das at 10.00 A.M. on 17.06.1992.
In his deposition, he has stated that on 17.06.1992 while posted at Sadar Hospital
Madhepura, he conducted the post mortem at 10.00 A.M on the body of Kamal
Das duly identified by the Chaukidar Liakat Hussain and Kamleshwari Paswan
and found the following anti mortem injury:-
 “1. One lacerated wound over the left side of the chest
anteriorly 3” away from midline in second inter-coastal
space measuring ¾”x ½” going deep into chest cavity.
Morgin of the wounds was charred and inverted.
 2. Lacerated wound over the left infra scapular region ¾”x
1/2”x communicating from the chest cavity and Morgin of
wound everted. On opening the chest there was diffuse
hematoma in the subcutaneous and inter mascular plane
around the wounds. Injury no.1 was directed downwards,
backwards and posteriorly penetrating the chest wall, left
lung and communicating with the injury no.2. Rigor mortis
was present.”
According to the doctor, the cause of death was shock and
haemorrhage due to above injuries caused by fire-arms. Time elapsed since the
death was about 20 hours. He proved his post mortem report (Ext.3).
At the request of the prosecution, the post mortem report of another
deceased namely Bisheshwar Das @ Pappu Mistri prepared by another doctor has
been marked as Ext. 3/1 (with objection). The trial court has, however, not
referred to and relied upon the said post mortem report as the same was not 
legally proved at the trial.
On perusal of the evidence of the doctor in the light of the prosecution
case developed at the trial, it is not much in dispute that the deceased Kamal Das
died on account of receiving one gunshot injury sustained by him. It is further
established that he (Kamal Das) received the wound of entry at his chest and the
wound of exit at the back of the body as those two injuries were
communicating to each other.
The trial court mainly relied on the evidence of the doctor, the
informant(P.W.8), Kama Devi (P.W. 3) and Premlata Devi (P.W.4) in order to
fasten the guilt on the accuseds/appellants. Indisputably, the informant (P.W.8)
is not the eye-witness to the occurrence. The prosecution presented P.Ws 3 and 4
as the eye witnesses to the actual assault on the two deceaseds. The Court has to
consider the intrinsic worth of their evidence.
Mr. Rajeev Kumar Verma, learned Sr. Counsel has contented that it is
a case where neither the time of occurrence nor the place of occurrence or the
manner of occurrence has been proved/established firmly by the prosecution. The
relevant evidence(s) have been withheld by the prosecution. The uncle and
Phoopha of the informant with whom the informant (P.W.8) travelled to village
Itahari from Prasadi Chauk has not been examined in the case. P.W.8, the
informant, too, at the request of the prosecution, was declared hostile and was
cross-examined. His evidence in Court even after being declared hostile can be
looked into and appreciated by the court. The relevant witnesses produced by the
prosecution to prove the guilt of the accused de hors the natural human conduct.
Non-examination of the Investigating Officer without there being any plausible
explanation has gravely prejudiced the defence. Although the ocular evidence of
the prosecution suggests that in the occurrence the co-victim Bisheshwar Das @
Pappu Mistri was also killed but the prosecution failed to establish/substantiate 
the same by not legally proving his post mortem report. He has severely
criticized the impugned judgment wherein the learned trial court relied upon the
Fardbeyan and few paragraphs of the case diary in order to hold that the time,
place and the manner of occurrence have been established.
Mr. Khan who appeared on behalf of one of the appellants in Cr.
Appeal No. 722 of 2012 would urge that even in case of the death of the victim
Kamal Das, the manner of occurrence as stated by P.W.3 (Premlata Devi) is not
established. Her ocular narration of the case stands contradicted by the objective
finding of the doctor (P.W.6).
Mr. Siyaram Sahi, the counsel appearing for the appellant Naresh
Sah in Cr. Appeal No. 605 of 2012, while adopting the submissions made by
Mr. Verma and Mr. Khan, submitted that the conviction of the appellants is
contrary to the evidence on record produced by the prosecution and thus stands
vitiated in law.
Mr. S.C. Mishra, counsel for the State, on the other hand, supported
the impugned judgment of conviction. It is submitted that at least P.Ws. 3 &4
supported the prosecution case as eye witness and narrated the manner in which
the motorcycle on which the two victims were riding was intercepted and the
appellants resorted to firing on them causing their death instantaneously
whereafter the dead bodies were dragged from the road to the nearby backyard of
one Basudeo Sah (not examined) from where the dead bodies were recovered by
the Investigating Officer. Even though the I.O. has not been examined in this case
but the ocular evidence of P.W.s 3, 4 & 8 proved that the two bodies were found
in the backyard of Basudeo Sah wherefrom they were dispatched for the
autopsy. The inquest over the dead bodies carried by the I.O. has been proved by
P.Ws 1 and 2.
We shall now examine in the context of the evidence on record 
whether the prosecution has proved the charges beyond the periphery of any
doubt. In doing so we would exclude the evidence of P.Ws. 1,2, 5 & 7 as they
do not throw much light on the prosecution case. They are formal in nature. P.Ws
1 and 2 have also been declared hostile. P.W. 8 is the informant who is the cousin
brother of one of the victims namely Bisheshwar Das @ Pappu Mistri. According
to him, the Fardbayan, noticed at the outset, was recorded at 10.00 P.M. at
village Itahari. The cousin brother of the informant left home on a motorcycle
along with the co-villager Kamal Das (another victim) for village Sikarhatti.
When he did not return by 8.00 P.M. in the evening, the informant along with
few co-villagers went to Prasadi Chauk and started waiting for him. In the
meantime, one motorcyclist came from Murliganj side and informed him that the
appellant Ram Chandra Sah had killed two persons in village Itahari and took
away the motorcycle. The informant proceeded towards village Itahari along
with his uncle Vidya Sagar Das and Phoopha Resham Lal Das (both not
examined) and reached there at 9.00 P.M. and received information about the
dead bodies lying in the backyard of Basudeo Sah. Along with Jagdish Paswan
(P.W.2), Kama Devi (P.W.3), Premlata Devi (P.W.4), Umesh Paswan (not
examined) and Raghunandan Paswan @ Raghu Paswan (P.W.1) he went to the
backyard and identified the dead body of his cousin brother and that of Kamal
Das. The witnesses present there narrated him about the manner in which the two
deceaseds were done to death by the appellants. He has also stated about the
motive in the Fardbayan. Apparently, the Fardbyan was made by him at 10.00
P.M. before the officer-in-charge of Murliganj police station at village Itahari.
The informant, in his examination-in-chief, has stated that on 16.06.1992 the two
victims had left the place at about 9/10 A.M. in the morning but did not return.
The following night at about 3 o‟ clock, the officer-in-charge of Murliganj police
station came to his house and awoke him and enquired as to whether someone in

his family had gone outside. It was disclosed by him that Bisheshwar Das @
Pappu Mistri along with another co villager had gone to village Sikarhati in the
day but he had not returned. The officer-in-charge then informed him that his
cousin brother was murdered and he was instructed to go to the police station and
identify the dead body. Along with his uncle Vidya Sagar Das (not examined)
and the officer-in-charge, he went to the police station and identified the dead
body of his cousin brother who had received gunshot injury. The officer-incharge
informed him that one Domi Mallah had killed the victims. Thereafter he
made statement at the police station itself. He has not disclosed the name of any
accused except Domi Mallah as the killer of his brother. His signature on the
Fardbayan recorded at village Itahari has been proved. Seeing his evidence in
complete contradiction of the Fardbayan, he was declared hostile and was crossexamined
by the prosecution as well as the accused(s). In his cross-examination,
he has stated that seeing the dead body of his brother he lost his mental balance
and, as such, cannot say whether he put his signature on a blank paper. He is,
however, specific that the Fardbayan made by him was not read over/explained
to him. On going through his evidence, it is found that he has completely
negated his statement made in the Fardbayan which creates a serious doubt
about the prosecution case. That apart, even if the Fardbayan made by him is
taken into consideration for whatever worth it may be, we find that the same is
contrary to the normal human conduct. Why should he wait at the Prasadi
Chauk? How did the motorcyclist pick him up at Prasasi Chouk to inform about
the killing of the two victims? Who was he? Did the informant thereafter actually
travel to village Itahari with his uncle and Phoopha? All these relevant
questions remain unanswered/unexplained. We would notice, at this juncture,
that the evidence of the I.O. could have explained many of the aforesaid
circumstances but unfortunately the prosecution failed to produce him as a
witness for no plausible reason.
The evidence of the hostile witness is not to be rejected in its entirety.
In Rameshbhai Mohanbhai Koli vs. State of Gujarat [(2011)11 SCC 111], the
Supreme Court at paragraph 16 (SCC p.117, paras 16-17) clarified the law as
under:-
 “16. It is settled legal proposition that the evidence of a
prosecution witness cannot be rejected in toto merely
because the prosecution chose to treat him as hostile and
cross-examined him. The evidence of such witnesses
cannot be treated as effaced or washed off the record
altogether but the same can be accepted to the extent that
heir version is found to be dependable on a careful scrutiny
thereof. (Vide Bhagwan Singh v. State of Haryana,
Rabindra Kumar Dey v. State of Orissa, Syad Akbar v.
State of Karnataka and Khujji v. State of M.P.)”
Again reiterating the said proposition of law in the State of U.P. Vs.
Ramesh Prasad Misra (1996 10 SCC 360), it was held that the evidence of a
hostile witness would not be totally rejected if spoken in favour of the
prosecution or the accused but required to be subjected to close scrutiny.
Keeping in mind the aforesaid settled proposition of law we examined
the evidence of P.W.8. In paragraph 2 of his cross-examination he has stated in
the manner his Fardbayan was recorded including the immediate motive for the
occurrence as exchange of hot words between the appellant Ram Chandra Sah
and the deceased Bisheshwar Das @ Pappu Mistri few days before whereafter
threats were held out by him. In paragraph 3 he categorically states that the
contents of the Fardbayan was not read over and explained to him. Referring to
the contents of the Fardbayan allegedly made by the informant at village Itahari
and recorded by the officer-in-charge we find that the same is contrary to the
normal human behaviour. On appreciation of his entire evidence, we find several 
fundamental discrepancies which cast serious doubt over the prosecution case.
Having said so, we proceed to examine the ocular evidence of P.Ws 3
and 4 on whom the prosecution has heavily relied in order to sustain the
conviction of the appellants. P.W. 3 is the wife of Dukhi Paswan and resident of
village Itahari. According to her, she was at the flour mill of Kulo Sah situated
by the side of the road at the evening. The house of the appellant Ram Chandra
Sah is on the other side of the road. She noticed a wooden log kept on the road
when from the northern side one motorcycle arrived and stopped whereafter the
accused Naresh Sah fired at the person who was driving the motorcycle
whereafter the appellant Ram Chandra Sah also fired at him. The victim sitting
on pillion started fleeing away whereafter the appellant Dhirendra Paswan fired
from his country-made pistol at him. Both the victims died. The accused persons
thereafter dragged them towards the north. The appellant Ram Chandra Sah along
with his father removed the motorcycle from the place of occurrence. The mother
of appellant Naresh Sah removed the blood-stained soil by scratching from the
place of occurrence. On going through her cross-examination, it is found that
this witness has stated that at and around the place of occurrence 20-30 persons
were seen including the appellants Naresh Sah, Ram Chandra Sah, Dhirendra
Paswan and the co accused Domi Mallah. Premlata Devi (P.W.4) was also
present at the flour mill when she was there. In paragraph 8 this witness is
specific that after the gunshot was fired she left the flour mill and thereafter she
heard the sound of third gunshot fire. On perusal of her statement made in para
12 and 13, it is found that one of her sons was killed in dacoity whereas her
husband was an accused in a murder case in which he was convicted. He was
also accused in another case. To sum up, the witness is unable to state the actual
time and manner of occurrence. It becomes doubtful from her evidence as to
whether she witnessed the entire episode as she herself stated that when she left 
the place the sound of third gunshot firing was heard by her. It is also not
deciphered from her evidence who, out of the two deceaseds, was driving the
motorcycle and who was sitting as pillion. Her family members including the
son and husband were involved in serious criminal cases inasmuch as one of her
sons was killed while committing dacoity. We find difficulty and unsafe to
wholly rely on her evidence.
Turning to the evidence of Premlata Devi (P.W.4), it is seen that she,
too, claimed to be at the flour mill from where she witnessed the co accused
Domi Mallah and the appellants putting up a wooden log on the road on which
she queried. In the meantime, one motorcycle from the northern side came and
stopped. The appellant Naresh Sah fired from his gun at the one who was driving
the motorcycle whereafter the appellant Ram Chandra Sah also fired at him.
Specifially she has stated that when the pillion rider was running away from the
place of occurrence the appellant Dhirendra Paswan fired at him as a result
whereof both the persons died. Accused Naresh Sah, Dhirendra Paswan and Domi
Mallah took away the dead bodies of the deceased. In her cross-examination she
has admitted that P.W.3 is her agnate. The appellant Dhirendra Paswan is her
neighbour. A case under section 107 Cr. P.C. was going on from before between
the appellant Ram Chandra Sah and her husband. The prosecution suggested her
that she was an imposter and not the wife of Vilaxan Paswan which was denied
by her. In paragraph 15 of her cross-examination this witness has stated that after
finishing her work in the field she came to the house and cooked food for which
she had gone to the shop to purchase rice and thereafter she remained
continuously (Barabar) at her house. The Court, at this stage, would notice the
evidence of D.W.2 where she stated that the name of the wife of Vilaxan Paswan
who is a co villager is Dularman Devi and not Premlata Devi. He had only one
wife called Dularman Devi. On carefully analyzing her evidence the Court finds 
material contradictions and discrepancy in her evidence. Firstly, she has stated
that the dead bodies were lifted and taken away whereas P.W. 3 has stated that
the two dead bodies were dragged by the accused to the nearby backyard of
Basudeo Sah. On her own evidence serious doubt is created as to whether this
witness had again gone to the flour mill at the time of sunset when the
occurrence is said to have been committed. The Court does not find her evidence
inspiring confidence to prove the guilt. The Court further finds vital contradiction
in the evidence of P.Ws 3 and 4 itself on the point of collecting blood-stained soil
from the place of occurrence. P.W. 4 at para 2 has stated that the mother of
appellant Ram Chandra Sah (appellant of Cr. Appeal No. 722/12) collected bloodstained
soil from the place of occurrence whereas P.W. 3 at para 2 has stated that
the mother of Naresh Sah (Appellant of Cr. Appeal No. 605/12) had colleted the
blood-stained soil from the palace of occurrence.
To top it all, the non examination of the I.O. without there being any
explanation therefor has given a fatal blow to the prosecution case. True it is that
in all cases such non-examination of the I.O. would not be fatal but considering
the attending circumstances if it is found that the same has seriously prejudiced
the case of the prosecution then only the Court can justifiably infer that non
examination of the I.O. is a blow to the prosecution case which is fatal. We have
seen the evidence of the informant wherein he has categorically stated that the
contents of the Fardbayan recorded in the present case at the place of occurrence
was not read over and explained to him before his signature/LTI was obtained. In
his cross-examination, it is stated that at the dead of night of the day of
occurrence the SHO, Murliganj had come to his house to enquire about his
family members who might have gone out of the house and did not return.
Thereafter he disclosed to him that two dead bodies are lying at the police
station and he should go and identify them. Along with the SHO, he and 
another family member (not examined) went to the police station and identified
the dead body of Bisheshwar Das @ Pappu Mistri. Whether the Fardbayan was
recorded immediately after the occurrence at about 10.00 P.M. at village Itahari as
claimed by the prosecution or in the wee hours of 17.06.1992 at the police station
itself could have been explained by the I.O. as the informant has materially
contradicted himself.
The legal principle in this regard has been aptly clarified by the Apex
Court in Lahu Kamlakar Patil v. State of Maharashtra since reported in
2013 6 SCC 417 where the Apex Court observed as under in paragraph 18:-
 “18. Keeping in view the aforesaid position of law, the
testimony of PW 1 has to be appreciated. He has admitted
his signature in the FIR but has given the excuse that it
was taken on a blank paper. The same could have been
clarified by the investigating officer, but for some reason,
the investigating officer has not been examined by the
prosecution. It is an accepted principle that nonexamination
of the investigating officer is not fatal to the
prosecution case. In Behari Prasad v. State of Bihar, this
Court has stated that non-examination of the investigating
officer is not fatal to the prosecution case, especially when
no prejudice is likely to be suffered by the accused. In
Bahadur Naik v. State of Bihar, it has been opined that
when no material contradictions have been brought out,
then non-examination of the investigating officer as a
witness for the prosecution is of no consequence and under
such circumstances, no prejudice is caused to the accused.
It is worthy to note that neither the trial Judge nor the High
Court has delved into the issue of non-examination of the
investigating officer. On a perusal of the entire material
brought on record, we find that no explanation has been
offered. The present case is one where we are inclined to
think so especially when the informant has stated that the
signature was taken while he was in a drunken state, the 
panch witness had turned hostile and some of the evidence
adduced in the court did not find place in the statement
recorded under Section 161 of the Code. Thus, this Court
in Arvind Singh v. State of Bihar, Rattanlal v. State of J &
K and Ravishwar Manjhi v. State of Jharkhand has
explained certain circumstances where the examination of
inv instigating officer becomes vital. We are disposed to
think that the present case is one where the investigating
officer should have been examined and his nonexamination
creates a lacuna in the case of the
prosecution.”
On a critical analysis of the relevant evidence, we find that the
prosecution mainly relied on the evidence of P.Ws. 3 and 4 to prove the guilt of
the appellants. Having appreciated the same, the Court carefully perused their
evidence in Court. P.W. 3 cannot be totally relied on. She has stated that while
the pillion rider started fleeing away a shot was fired at him by the appellant
Dhirendra Paswan. We find from the evidence of the doctor (P.W.6) that the
wound of entry on the person of Kamal Das was found on the left side of the
chest and the wound of exit was over the left infra scapular region. Although the
prosecution has miserably failed to demonstrate as to who was driving the motor
cycle on the fateful evening and who was the pillion rider, but the Court
deducing from the Fardbayan as well as the evidence of the informant finds that it
was his cousin brother who had gone out on the relevant date on his own
motorcycle with one co-villager (another deceased). In all probability, it was
Bisheshwar Das @ Pappu Mistri who was driving the motor cycle on the relevant
date whereas Kamal Das (another deceased) was along with him. It was thus
Kamal Das, who, on seeing the firing on the motorcycle driver, started fleeing
away from the place of occurrence and was fired at by one of the appellants if the
evidence of P.W. 3 is to be believed to that extent. As observed, her evidence to 
this effect runs contrary to the objective findings of the doctor and discredits her
evidence
It thus becomes a case where neither the place of occurrence nor the
manner of occurrence has been established by cogent evidence.
In the light of the discussions made above and the conclusions arrived,
the Court finds it not safe to uphold the judgment of conviction recorded by the
trial court against the appellants. Many aspects of the prosecution case remained
shrouded in mystery. The evidence of P.Ws 3 and 4 who have postured
themselves as eye witnesses to the occurrence are not free from serious doubts.
Granting the appellant the benefit of doubt, we are inclined to acquit them of all
the charges for which they were tried and convicted.
Resultantly, both the appeals succeed and the judgment of conviction
dated 30th May, 2012 and the order of sentence dated 1st June, 2012 passed
against the appellants by the learned trial Judge is/are set aside. Since the
appellants, namely, Ram Chandra Sah & Dhirendra Paswan (Cr. Appeal No.
722/12) and Naresh Sah (Cr. Appeal No. 605/12) are in custody, they are directed
to be set at liberty forthwith, if not wanted in any other case.
HR/-
(Kishore Kumar Mandal, J)
(Sanjay Kumar, J)

 DATE 12.01.2017

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