1. The sole appellant in this case is seeking setting aside of the judgment of conviction dated 19.12.2015 and the order of sentence dated 02.01.2016
passed by learned Addi-tional Sessions Judge â€" I, Gopalganj in Sessions Trial No. 370/2007/Registration No. 1974/2013 arising out of Vijaipur P.S.
Case No. 74 of 1994 dated 21.09.1994 registered for the offence under Sections 302/34, 201 and 379/34 of the Indian Penal Code (‘I.P.C.’)
read with Section 27 of the Arms Act.
2. By the impugned judgment and order the appel-lant has been convicted for the charges under Section 302/34 of the Indian Penal Code and Section
27 of the Arms Act and has been ordered to undergo life imprisonment and to pay a sum of Rs. 10,000/- as fine. On failure to deposit the fine the
appellant shall be liable to undergo an additional period of six months. For the offence under Section 27 of the Arms Act he has been sentenced to
undergo three years of imprisonment and a sum of Rs. 5,000/- as fine, in case of failure to deposit the fine he would be required to undergo
imprisonment for an additional period of three months. Both the sentences are to run concurrently.
3. The First Information Report (Exhibit-4) has been lodged on 21.09.1994 at 1:30 P.M. by one Chandrashekhar-Gupta, son of Faujdar Gupta resident
of the village- Rasulpur, P.S.-Vijaipur, District â€" Gopalganj. The Sub-Inspector cum Officer-in-Charge (P.W.8) has recorded fardbeyan at 1:30
P.M. on the alleged place of occurrence (P.O.) which is said to be ‘RasulpurSarehJogibabaAsthan’. In his fardbeyan the in-formant alleged
that at about 8:30 A.M. on the same day he along with his brother Subhash Chandra Gupta (deceased) and nephew Bhola Gupta left for his native
village Rasulpur as they heard that flood water had entered into their house. His brother Subhash Chandra Gupta was carrying his licensee ri-fle
whereas the informant was himself carrying a single bore licensee gun. At about 9:00 A.M. when they reached near ‘Ra-
sulpurSarehJogibabaAsthan’, his brother Subhash Chandra Gupta stopped there watching the fishermen who were in-dulged in fishing. At this
stage, it is alleged that in the mean-time (1) Vijay Singh, son of Jangbahadur Singh lashed with rifle (2) Vishwanath Singh son of Jangbahadur Singh
with ri-fle (3) Sanjay Singh, son of late Shivnath Singh with rifle (4) Rajesh Singh, son of Vishwanath Singh carrying a single bore gun, all resident of
village SaroopaiTolaKhape, P.S. â€" Vijaipur (5) Bharat Shahi, son of not known with rifle (6) Dharmen-draShahi, son of Bharat Shahi having one
single bore gun, resident of village â€" Saraura P.S. KotwaliDewariya, District â€" Dewariya, Uttar Pradesh (7) Ramakant Shah, son of Radha Shah
carrying single bore gun (8) Yogendra Shah, son of Radha Shah lashed with a lathi, both residents of village â€" Marar (9) MajidMiyan lashed with
lathi (10) Gorakh Ram, son of not known, village â€" Babhnauli having lathi in his hand along with 2-3 unknown persons came there. It is al-leged that
Vijay Singh said “yahi sala Subhash hai bhun dalo†and he fired from his rifle which hit his brother Subhash Chandra Gupta on his back side.
Sanjay Singh fired from his rifle which hit on the eyes of Subhash and in the meantime Vishwanath Singh, Rajesh Singh, BharathShahi, Dharmen-
draShahi, Ramakant Shah started firing from their gun and ri-fle as a result whereof the body of the brother of the informant was riddled. One
Raghubansh Singh who was an employee of Nalkoop Department was going on that way to Nalkoop, his body was also riddled and both the persons
died on the spot it-self.
4. It is then alleged that when Subhash fell down af-ter receiving the shot, one person of Vijay Singh (co-accused) went there to snatch the rifle from
Subhash but he also suf-fered the firing which hit him and the said person died on the spot. The informant (P.W.5) claims that Sanjay Singh (the ap-
pellant) picked up the rifle of the deceased brother of the in-formant. The informant alleges that because of the firings there was a terror in the
‘Sareh’. The informant and others were shouting and started fleeing away towards their village. He further claims that the dead body of his
brother was pulled away in the water by co-accused Ramakant Shah, Yogendra Shah, MajidMiyan and Gorakh Ram with an intention to con-ceal the
same. The cause of the occurrence is said to be a land dispute with the family of Vishwanath Singh which was going on for the last ten years and that
in Vijaipur market the ac-cused Vijay Singh, Sanjay Singh and Vishwanath Singh were demanding randari tax which was being opposed by the de-
ceased brother of the informant.
5. After investigation police submitted a charge-sheet bearing no. 35 of 1998 dated 12.09.1998 against Vijay Singh (absconder) and (2) Sanjay Singh
(absconder) (appel-lant). Earlier a chargesheet bearing no.71/1994 dated 28.09.1994 was filed against co-accused (i) MajidMiyan (ii) Gorakh Ram
and (iii) Ramakant Shah for the offence under Section 302/201/379/34 of the I.P.C. and Section 27 of the Arms Act. The investigation was kept
pending against the co-accused (i) Yogendra Shah (ii) Vishwanath Singh (iii) Rajesh Singh (iv) Bharat Shahi and (v) Dharmendra Shahi. Later on a
supplementary police report was filed bearing no. 95/1998 in which the police submitted a final form against the aforemen-tioned five co-accused.
Since no sufficient material could be found against them, they were not sent up for trial.
6. Cognizance was taken and upon finding sufficient material to proceed against the charge-sheeted accused the records were committed to the court
of sessions, where charges were framed against the appellant on 20.12.2011 for the offence under Sections 302/34, 201, 379/34 of the I.P.C. and
Section 27 of the Arms Act. The appellant denied the charges and claimed to be tried.
7. On behalf of the prosecution altogether nine wit-nesses were examined. P.W.-1 is Radha Krishna Kharwal who is a witness on the inquest report
of the deceased Subhash Chandra Gupta but in course of trial he denied having any in-formation with regard to dead body lying near Charakiya Math.
He says that he had not given any statement to police. He denied having said that the accused persons had taken away the dead body in which
direction. In his cross-examina-tion he says that he went to see the dead body, the body was kept at a dry place and two more dead bodies were there
which were of Raghuvansh Singh, Tubewell Operator and there was an unknown body. According to this witness, in his cross-examination he says
that people were saying that the murder has taken place at unknown place and the dead bodies were left there. The clothes on the body of the other
two dead bodies were also dry. There was no blood-stain there. P.W.-1 has been declared hostile by the prosecution.
8. P.W.-2 is Chanakaya Bhagat who has stated that he had not made any statement before the police. This witness has also been declared hostile. He
denied the suggestion of the pros-ecution with reference to his earlier statement before the police. In Paragraph ‘3’ of his cross-examination, he
says that occur-rence had not taken place in his presence and when he reached there he heard that some unknown persons had killed and thrown the
dead body. This witness says that in his presence the family members of Subhash Gupta and Chandrashekhar Gupta (PW-5) came there with police.
The dead body of the Subhash Gupta was not there. This witness is completely silent as to the place of occurrence and he is not an eye witness.
P.W.-2 has also been declared hostile.
9. P.W.-3 is Fulena Chaursiya. This witness has also been declared hostile after his statement that he had not made any statement before the police.
In his cross-examination he has stated in paragraph ‘3’ that he had not seen any accused persons from his eyes and he had not heard the name
of the accused in the murder of Subhash Gupta.
10. P.W.-4 is Bhola Gupta who is son of the deceased Subhash Chandra Gupta. In the year 2011 while deposing before the learned trial court he
declared his age as 29 years. He has supported the prosecution story. P.W.-4 has stated that on 21.09.1994 at about 9.00 am he had left with his
father and un-cle for Rasulpur village after hearing that flood water had en-tered in his house. His father (deceased) was carrying a licensee rifle
whereas his uncle (PW-5) was having a licensee one single bore gun. This witness has stated that when they reached at Jogibaba Asthan they saw
that the fishermen were involved in fishing. It is stated that all three of them stood there and were looking at the fishing being going on, in the
meantime from be-hind (from eastern side) Vijay Singh, Sanjay Singh (appellant), Vishwanath Singh and Bharat Shahi all the four persons having rifle
in their hands and Rajesh Singh, Dharmendra Sahi, Ra-makant Shah all having single bore gun and Majid Miya, Gorakha Ram and Yogendra Sah
lashed with lathi together with 2-3 unknown persons came there. According to P.W.-4 on reach-ing there Vishwanath Singh and Rajesh Singh caught
hold of his uncle (PW-5) and Majid Miya snatched the licensee gun from PW-5, Vijay Singh looking at the father of P.W.-4 said “Yahi sala
subhashwa hai sale ko bhun dalo†and he having rifle in his hand fired upon the father of P.W.-4 which hit on the back side of father of P.W.-4. It is
then stated that on the father of P.W.-4 turning around Sanjay Singh (appellant) who was having a rifle in his hand fired upon the father of P.W.-4
which hit the eyes of his father and he fell down there.
11. This witness further says that thereafter all the ac-cused persons started indiscriminate firing which hit the father of P.W.-4 and one Raghubansh
Singh who died on the spot. P.W.-4 says that because of the indiscriminate firing his father died on the spot. It is further stated that from amongst
accused persons one person moved towards father of P.W.-4 and at-tempted to snatch away the rifle of his father but in the indis-criminate firing of
the accused persons he also received the bul-let and died there. It is further stated by P.W.-4 that because of the firing there were tension and the
people started fleeing away here and there. About this appellant it is stated that he picked up the licensee rifle of father of P.W.-4 even as co-accused
Ra-makant Shah, Yogendra Shah, Majid Miya, Gorakh Ram pulled away the dead body of the father of P.W.-4 towards ‘Charakhi-yaram Janki
Math’ with an intention to conceal the dead body. It is stated that the accused persons threatened the people present at the spot that if anybody
would say anything he would be mur-dered like Subhash. Regarding the motive behind the occurrence P.W.-4 says that main reason for occurrence is
that Vijay Singh, Sanjay Singh (appellant) and Vishwanath Singh were demand-ing rangdari tax from the traders of Vijaipur market which was being
opposed by his father.
12. In paragraph ‘10’ in course of his examination P.W.-4 says that one Hemraj was complaining about the demand of rangdari for about two
years prior to the occurrence and he had complained in this regard to P.W.-4 at least on four occa-sions. At this stage, P.W.-4 says that at that time
age of Hemraj was 28-29 years and the age of P.W.-4 was 10 years only. He has stated that distance of Vijaipur to Rasulpur village is one and half
kilometer. His father was carrying his rifle wherever he was going. He says that the place of occurrence is situated near Jogibaba Asthan and his
village is near to that place but as re-gards this occurrence he had not seen his uncle Prabhunath Gupta at the place of occurrence. After the
occurrence, his uncle and aunt and others came there. P.W.-4 has disclosed his date of birth as 08.08.1982 in the school from where he had appeared
in the matriculation examination.
13. In paragraph ‘21’, P.W.-4 says that road on which they were going was going through east to west and they were going towards western
direction. When they crossed Marar vil-lage then they got water and near ‘Jogibaba Sthan’ at some places the water was below the knee and
at some places it was above the knee. He says that the place where they were standing and looking at the fishing the road is passing through north-
south and about 25-30 persons were present who were looking at the fishing. P.W.-4 says that he was standing at a distance of 10-12 ft. South to his
father, his uncle was standing at a distance of 14-15 ft. North to his father. P.W.-4, however did not remem-ber that in between his place and where
his father was standing and the place in between his father and uncle the said 25-30 per-sons who were present there were standing or not. He did
not re-member that whether he remained standing when the firing was taking place and further did not remember as to in which direc-tion he fled
away. According to this witness when the assailants went away then he went towards his village Rasulpur and when he reached near his village, the
villagers had started coming. He identified his co-villager Yadav Chand Gupta. From his family his elder father/uncle namely Prabhunath Gupta came
then all of them reached at the place of occurrence. He did not remember as to what was happening at the place of occurrence when they reached
there from the village and how much time was taken in his again reaching at the place of occurrence. He did not re-member whether his uncle (P.W.-
5) was also standing at the time of indiscriminate firing at the spot.
14. P.W.-4 has stated that on both sides of road, in the fields there were flood water but he did not remember whether more flood water were there
on the Rasulpur road or in the side where the dead body of his father was being pulled away. This witness has stated in paragraph ‘30’ that he
had asked the vil-lagers to stop the accused persons from taking away the dead body but the villagers were afraid and they did not want to in-volve in
any scuffle. The accused persons who were pulling away the dead body had lathi in their hand but P.W.-4 and others did not ask them to stop. He has
further stated that the way through which the dead body was being dragged in the field there were paddy crops.
15. In paragraph ‘32’ of his cross-examination, P.W.-4 says that after about 40-45 minutes from the time of occurrence police from Vijayipur
police station reached there. According to this witness he and his uncle had told the police about the killing and snatching of the gun. The police had
recorded the statement of his uncle (P.W.-5) and thereafter the statement of P.W.-4 at the place of occurrence and both of them had signed thereon.
This witness states that Daroga Ji, his uncle (P.W.-5) and some villagers had gone towards the direction in which dead body had been taken away and
P.W.-4 remained at the place of occurrence till evening. It is stated that after recording the statement of his uncle and his own statement Daroga Ji
and Siphi were in search of dead body of his father but the dead body could not be found. The dead body was found in the evening and P.W.-4 was
not present at the place where the dead body was found. He had seen the dead body only at police station at about 7.00 pm. He did not remember
whether the clothes of his father had any hole of bullet but he had seen the hole to his stomach. This witness has further stated that at the time of
firing Raghubansh Singh was standing at a distance of 25-30 ft. North-east from the place where P.W.-4 was standing. Raghubansh Singh was
standing at a distance of 18-20 ft. North-east from the father of P.W.-4 and he received bullet after the father of P.W.-4 had already suffered the
shot. His uncle (P.W.-5) was standing at a distance of 7 ft. and Raghubansh Singh was standing 7 ft. East to P.W.-5.
16. In paragraph ‘39’ this witness says that neither he nor his uncle or any other spectator present there received any bullet. This witness was
suggested by the defence that neither he nor his uncle (P.W.5) was present at the place of occurrence. He also denied that his father and
Raghubansh Singh were running a gang and there was encounter between the gang of his father and gang of Dhanu Tiwary in which his father,
Raghubansh Singh and Dhanu Tiwary of another gang were killed. The defence also suggested that the occurrence had taken place some where else
and both the dead body had come flowing in the wa-ter. P.W.-4 also denied the suggestion that by taking police into connivance P.W.-5 had got
changed the first fardebyan and re-corded another fardbeyan with an intention to falsely implicate the accused persons.
17. P.W.-5 is Chandra Shekhar Gupta who is brother of the deceased Subhash Chandra Gupta and claims himself an eye witness. He has supported
the prosecution story and has de-posed on the line of P.W.-4 to some extent. He has stated that he and his brother had started to go Rasulpur carrying
rifle and gun for self-defence. P.W.-5 has deposed that he had cartridges in full belt and three cartridges were there in the belt cover. He did not
know as to how many cartridges were there with Subhash Chandra Gupta who was carrying rifle. In paragraph ‘10’ this witness says that all
the three of them were standing having their face towards the western direction and they were looking at the fishing. He has further stated that his
brother Subhash Chandra Gupta was standing in the middle and south to him was Bhola (P.W.-4) and north to him was P.W.-5. The ac-cused persons
came from eastern side to western side and to-gether with the accused persons the other persons who are cutting the grass were also present. On the
road where this witness was standing there were two ft. water which were flowing slowly. He says that none of the three of them had seen the as-
sailants coming before snatching of gun from him. According to this witness when they tried to flee away the accused threatened them that if he
would try to run then they would kill him. In his knowledge Subhash Chandra Gupta had suffered two shots and occurrence took place for about two
minutes. This witness says that Raghubansh Singh was standing towards east-north corner from his brother Subhash and at that place the road is
going from north to south. He further says that on moving towards Marar village Raghubansh Singh will come first then P.W.-5 and thereafter his
brother Subhash and in paragraph ‘18’ P.W.-5 says that the accused persons had come from the side of Marar village.
18. This witness further says that within 55-60 minutes of the alleged occurrence police reached there. Within half an hour of the occurrence villagers
had also come there at the place of occurrence and P.W.-5 as well as P.W.-4 had also come back. In paragraph ‘20’ P.W.-5 admits that police
had taken his oral statement there but had not recorded the same on paper. He did not remember that police had prepared inquest report of the two
dead bodies lying there or not. This witness says that the police had gone in search of the dead body of his brother but after not finding the same again
came to the place of occurrence and recorded his statement. It is then stated that P.W.-5 had also gone with the police in search of dead body and
after a search of 2-3 hours they returned. He states that after about half an hour of recording of his statement at the place of occurrence he had left
for his Vijaipur house. In paragraph ‘23’ P.W.-5 admits that after giving his statement he came to know about the name of Raghubansh Singh
and he came to know after his first statement before search of the dead body. The people assembled had told him about his name as he did not know
him and they were of another village. In paragraph ‘25’, this witness says that he heard it from the police that one of the dead body is that of
Raghubansh Singh. He did not remember whether police had recorded the statement of any villager regarding identifica-tion of the dead body of
Raghubansh Singh in his presence. P.W.-5 did not know whether any trader of Vijaipur market has lodged any case against the accused persons
alleging demand of rangdari. He admits that neither he nor his brother Subhash Chandra Gupta had lodged any case against the accused persons for
the alleged demand of rangdari. He admits that he had not lodged any case in Vijaipur police station saying that because he and his brother were
opposing the accused persons in demand-ing rangdari, they were under threat to their life. They had also not lodged any case saying that because of a
land dispute with the family of Vishwanath Singh they had any threat to their life.
19. P.W.-5 is aware that in course of investigation po-lice had not submitted chargesheet against some of the co-ac-cused and police had discharged
co-accused Vishwanath Singh, Rajesh singh, Bharat Shahi, Dharmendra Shahi and Yogendra Shah. In paragraph ‘28’ P.W.-5 says that when
the police again went in search of the dead body then he was also accompanying him but there was no other member of the family. He denied the
suggestion of the defence that in his house where he was living with his brother Subhash Chandra Gupta criminals were assem-bling and both the
brothers were protecting the criminals and they had formed a gang. P.W.-5 denied that he had any informa-tion that unknown person Dhanu Tiwary
was a criminal. He denied the suggestion that on 20.09.1994 during night hours there was any encounter between two gangs of Subhash Chandra
Gupta and Dhanu Tiwary in which firing had taken place. P.W.-5 has further stated in paragraph ‘22’ that in course of investigation police had
seized a gun and he had made an application in the court for release of the said gun in his favour but the same was not released in his favour. He had
not challegend the order of the court either in the sessions court or in the Hon’ble High Court. The said gun was released in favour of Ra-jendra
Singh (DW-1). P.W.-5 has further stated that he did not remember his fardbeyan that from the eastern side the accused persons had come. He
denied the suggestion that by taking po-lice in connivance a false case has been lodged and that P.W.-5 was not present at the place where the dead
body of Dhanu Ti-wary and Raghubansh Singh were lying. In paragraph ‘35’ it is stated that it is not a fact that on 21.09.1994 in the evening
po-lice had traced the dead body and brought the same to the police station where he himself went and got wrong fardbeyan recorded.
20. P.W.-6 is Dr.Tirthanand Singh who was posted as Orthopedic Surgeon at Sadar Hospital, Gopalganj and on 22.09.1994 at 2.00 pm he had
conducted the postmortem exami-nation on the dead body of Subhash Chandra Gupta. He has proved the postmortem report and he has found the
following anti-mortem injuries on the person of the deceased:-
“(i) ½†diameter oval aperture with inverted blackened margin of wound on the back of right lumber region into deep to ab-dominal cavity i.e
wound of entrance. 1½ diameter circular wound with everted margin of wound and protruding outside the omentum and loop of intestine on front of
abdomen above umblicus i.e. wound of exist.
(ii) ½†diameter oval aperture with inverted margin of wound on outer canthus of left eye i.e. wound of entrance and 1¼†oval aperture with
everted margin of wound on back of right ear (the wound of exit). Orbital bone, frontal bone on left side and temporal and mastoid bone on right side
were found fractured, left side of eye ball evicerated.
(iii) Lacerated wound on front and back of left hand 2 ½â€x1â€x deep to bone.
On P.M. Dissection- Abdominal cavity and pelvic flour was full of blood and blood clotts, small gut, large gut were found lacerated, Mesentric vessels
were lacerated wound of exist and wound of entrance was in continuation. There were comminuted fracture of orbital fossa, valt of skull, frontal bone
on left side and temporal bone with Mastoid process on Rt. Side. Brain tissue were lacerated and intermingled with blood and blood clotts. Wound of
en-trance and exist were in continuation.
Hence the death was due to shock and hemorrhage arising out of above mentioned both injuries caused by firearm (rifle). â€
21. In his cross-examination this witness says that he cannot say as to which injury out of the three injuries was caused at first on the person of the
deceased. Injury no.(i) and (ii) may be caused at different time and not at a time. If the in-jury no.1 is caused at first deceased will be fallen on earth.
It is not neccessary that deceased will fall on the ground facing front portion. P.W.-6 has further opined that blackening of skin around the wound
margin may be possible when the body of de-ceased is at the distance of 6 ft. Or less from exit point of firearm. He did not find any sign of drowning
the body into wa-ter and the time elapsed since death is within 36 hours. Regard-ing the rigor mortis present on the person of the deceased it is stated
that it may start from 2.00 am in the night of 20/21-9-94. The postmortem report of Subhash Chandra Gupta has been proved as Ext.-3.
22. P.W.-7 is Dr.Janak Lal Sharma. He had conducted the postmortem examination on the dead body of the deceased Raghubansh Singh and had
found anti-mortem injuries on the body of the deceased as under:-
“(i) one big zig-zag lacerated wound with sacrifice of whole skull, Nasal bone, orbit of eye (Eyes were intact), cervical ver-tebrae Mandible,
Trachea, Larynx were lacerated
(ii) one 1†oval lacerated wound on left iliac region of ab-domen with profusion of large gut entry wound and abdominal tissue lacerated on
Dissection wound of entry.)
(iii) One 1½†oval lacerated wound on back just parallel to injury no.(ii) â€" wound of exit
In my opinion death was due to shock and haemorrhage caused by injury nos.(i) and (ii). Injury No.(i) caused by explosive and injury no.(ii) by
firearm.â€
23. About injury no.1 P.W.7 states in his opinion that injury no.(i) was caused by explosive and injury no.(ii) was caused by firearm. The postmortem
report has been marked as Ext.3/1. The time elapsed since death in this case has been recorded as within 24 hours. In his cross-examination, P.W.-7
says that injury nos.(ii) and (iii) of deceased Raghubansh Singh are the injuries caused by one shot. His injury nos.(i) and (ii) are very serious in nature.
The doctor has opined that after sustain-ing either injury no.(i) or injury no.(ii) person will not remain stand on his leg rather he would be fallen down.
The doctor had not recorded in his report as to whether there was any mark of blackening which was caused by firearm. It means shot was fired
from long range. The doctor has stated that on the basis of police requisition he had mentioned in his report that dead body of deceased Raghubansh
Singh was found near Nalkup at vil-lage Vijaipur. He had further deposed that injury no.(i) of de-ceased Raghubansh Singh and injury no.(i) of
unknown de-ceased are most similar in nature. The injury of the unknown de-ceased has been found as under:-
“(i) one big zig-zag lacerated wound of size 6â€x 4†cavity deep spreaded on lefft sub Mandibular region to lefft side of skull. Left Mandible,
Teeth, upper palate, Nasal bone, left eye orbit, pari-etal bone of skull with brain matter sacrificed
(ii) Small abrasion 3â€x3†on front left side of chest
(iii) one abrasion 3â€x3†on left hypo chondrium
In my opinion death was due to shock and haemorrhage caused by injury no.(i) which was caused by firearm.â€
24. The postmortem report of unknown body has been marked as Ext.3/2. In his cross-examination the doctor says that ‘Zig-zag lacerated wounds
were found over dead bodies of both the deceased but their size were different and no size possible by explosive substance. He has not mentioned the
nature of injury no.(ii) and (iii) of unknown deceased. These injuries may be possible by fallen hard substance.
25. P.W.-8 is Ram Pavitra Singh who is the I.O. of this case. He has proved the fardbeyan recorded by him in his own pen and had drawn the formal
F.I.R. The formal F.I.R. has been proved as Ext.4. He has proved his signature on the fardbeyan as Ext.1/2 and the seizure list as Ext.2/1. This
witness has proved the inquest report of Raghubansh Singh as Ext.5, the in-quest report of unknown dead body as Ext.5/1 and the inquest report of
Subhash Chandra Gupta as Ext.5/4. In course of cross-examination in para ‘2’, P.W.-8 states that he had received in-formation through rumour
about the alleged occurrence at the place of occurrence which is situated at a distance of two kilo-meter from the police station. He claims to have
recorded the same as Sanha entry but did not write the name of the person who gave the information. The I.O. (P.W.-8) claims that he started at 9.30
am for the place of occurrence and after chasing accused persons he came at the place of occurrence at about 1.30 pm. He has specifically stated in
paragraph ‘3’ of his cross-examination that he had not reached the place of occurrence prior to 1.30 pm and in his case diary he had not
recorded that after leaving the police station he had conducted raid in search of the accused persons. He met the infformant (P.W.-5) at the place of
occurrence at about 1.30 pm.
26. P.W.-8 prepared the inquest report of Raghubansh Singh and unknown dead body at 2.30 pm and 2.45 pm respec-tively. Neither the witness
Chandrashekhar nor Bhola Gupta are inquest report witness of these two dead bodies. P.W.-8 did not find any sign of fishing at the place of
occurrence. He further deposed in paragraph ‘9’ that the dead body of Raghubansh Singh was identified by Sitaram Sah and Phulan Prasad
Srivas-tava. The I.O. had not recorded in the diary that the dead body of Raghubansh Singh was identified by informant Chan-drashekhar Gupta
(P.W.-5) or his nephew Bhola Gupta (P.W.-4). In Paragraph ‘10’ this witness says that he had recovered the dead body of Subhash Chandra
Gupta from inside the water but he did not record in the case diary as to whether the clothes on the body of Subhash Chandra Gupta were dry or wet.
He had not recorded whether the dead body was swollen in the water or it was normal. P.W.-8 has not recorded as to whether the dead body or the
clothes of the Subhash Chandra Gupta had got any mark/sign of dragging. Regarding identification of the unknown dead body P.W.-8 states that he
got to know about Dhanu Ti-wary only at the police station. This witness has denied sugges-tion that the fardbeyan of this case is anti-time and anti-
dated. It is denied that in connivance with the informant he had recorded the fardbeyan at the Vijaipur police station. He has denied the suggestion of
the defence that his investigation is faulty and one sided.
27. P.W.-9 is one Sachitan @Sachita Yadav who claims that he had seen the alleged occurrence as an eye wit-ness. This witness has stated in
paragraph ‘21’ that Subhash Chandra Gupta was standing at about 15-20 ft. North to Jogibaba Sthan which was a dry place. He has further
stated in paragraph ‘22’ that the accused persons had come through road and moving in the water. The road could be seen from the dis-tance
of half kilometer towards east side. In paragraph ‘28’ this witness says that the accused persons had caught hold of Chandrashekhar Gupta
(P.W.-5) for about 3-4 minutes and snatched his gun but did not try to kill him. This witness has fur-ther stated that when the accused persons were
snatching the gun of Chandrashekhar Gupta at that time Subhash Chandra Gupta was standing with his rifle at a distance of 15-20 ft. Subhash
Chandra Gupta did not fire to save the gun of Chandrashekhar Gupta. In paragraph ‘31’ this witness says that the place where Subhash
Chandra Gupta was shot at there was no flood water and some rain water were there. Firing was tak-ing place from east and south direction. This
witness says that he went away after firing upon the three persons and came back after 15-20 minutes. Police had not reached there by this time. He
had not gone to the police station to give information. This witness says that along with him P.W.-4 and P.W.-5 had left to the village and there they
told the villagers about the alleged oc-currence. In paragraph ‘36’, this witness says that the villagers had come to the place of occurrence,
about 25-30 people had as-sembled and all were from his village. He stayed there for about 1-1.15 hours and thereafter he went to his house. He
went after the police came. In paragraph ‘37’, P.W.-9 has stated that police had not asked him anything. On the date of occurrence P.W.-4
and P.W.-5 had not disclosed the name of P.W.-9 as an eye wit-ness. In paragraph ‘38’ this witness admits that he had not told
Chandrashekhar Gupta (P.W.-5) that he had seen the alleged oc-currence. He told after 6-7 months to P.W.-5 that he had seen the occurrence and
would depose as witness. He further states that during 6-7 months he had not gone to the police station and he had gone to make statement before the
police after 6-7 months. He did not remember whether his statement was recorded by Daroga. In paragraph ‘41’ this witness says that when
his state-ment was taken P.W.-4 and P.W.-5 were present and his state-ment was recorded at the place of occurrence. It was the month of
December but he did not remember the month exactly. He says it was winter season.
28. The statement of the appellant was recorded under Section 313 Cr.P.C. The questions put to him and answer given by the appellant under Section
313 Cr.P.C. are being repro-duced hereunder for a ready reference:-
Defence Evidence
29. On behalf of the defence four witnesses were ex-amined. The defence witness no.1 is one Rajendra Singh whose gun was seized by the police in
course of investigation alleging that the said gun was snatched by the criminals in connection with Vijaipur P.S.Case No.74/1994. D.W.-1 has proved
that gun seized by the police belonged to him and the informant and of-ficer in-charge of the police station had connived in seizure of the gun of D.W.-
1 to show that the gun is the same which was snatched from P.W.-5 in Vijaipur P.S. Case No.74/1994. The gun was sent to FSL, Patna for
examination on the request of D.W.-1 and on finding that the gun is of the same number of which D.W.-1 is holding the license, the learned C.J.M.
called for a re-port and later on released the gun in favour of D.W.-1.
30. D.W.-2 and D.W.-3 are the two fishermen who have deposed that no such occurrence had taken place on that day at Jogibaba Sthan where they
were involved in fishing. D.W.-2 and D.W.-3 had not given any statement to police in course of investigation. D.W.-4 is a resident of village Rasulpur
who says that on 21.09.1994 from 7.00 am to 4.00 pm he had taken his she-buffalo for grazing near Jogibaba Sthan. At that time, there was no flood
water and no occurrence had taken place near Jogibaba Sthan. This witness had been suggested that he had deposed on behalf of the appellant
because the wife of co-accused Vijay Singh was the Zila Parishad Chairman and she had engaged him for some work in which he was getting some
honorarium.
Submission on behalf of the appellant
31. Learned counsel for the appellant has submitted that in this case neither place of occurrence nor manner of oc-currence has been proved by the
prosecution. It has been argued that P.W.-3 who is an inquest report witness has denied having any information regarding the dead body. According
to him, the dead body was kept at a dry place and two more dead bodies were there which were of Raghubansh Singh, Tubewell Oper-ator and there
was an unknown body. He has stated that the clothes on the body of the other two dead bodies were also dry. He has been declared hostile. It is
further submitted that in his fardbeyan recorded on 21.09.1994 at 13.30 hours the informant (PW-5) has taken the name of Raghubansh Singh, it
means Raghubansh Singh was well known to P.W.-5 but in paragraph ‘25’ of his deposition P.W.-5 says that he heard the name of
Raghubansh Singh from police. Contrary to that in paragraph ‘9’ of his deposition the I.O. (P.W.-8) says that the dead body of Raghubansh
Singh was identified by inquest witness Sitaram Sah and Fulan Prasad Srivastava (both not examined). P.W.-8 had not written in the diary that the
dead body of Raghubansh Singh who was an employee of Nalkup Department was identi-fied by the informant or his nephew Bhola Gupta.
32. It is further submitted that in course of his evid-ence the doctor (P.W.-7) has stated that he had conducted the postmortem over the dead body of
the deceased Raghubansh Singh whose body was found near Nalkup in village Vijaipur. In cross-examination this witness says that on the basis of
police requisition he had mentioned in his report that the dead body of the deceased Raghubansh Singh was found near Nalkup at vil-lage Vijaipur.
When the attention of the I.O. (P.W.-8) was drawn towards this he denied that the dead body of Raghubansh Singh was found near Vijaipur Nalkup
and he had prepared the inquest report there and sent the dead body for postmortem. Learned counsel submits that there is a contradiction in the
statement of the P.W.-7 and P.W.-8 on this point.
33. Learned counsel further submits that inquest re-port of Raghubansh Singh (Ext.-5), the unknown dead body (Ext.5/1) and the inquest report of
Subhash Chandra Gupta (Ext.5/2) would show that paragraph ‘6’ and ‘7’ in all these in-quest reports required an information to be
furnished with re-gard to “manner in which and weapons (if any), by which injuries appeared to have been inflicted†and “circumstances, if
any, which give rise to suspicion of foul play†but save and except to say that “rifle evam banduk ki goli lagne se jakhm hona para-tit hota haiâ€
neither the manner in which injuries have been caused nor the circumstances were informed to the I.O. (P.W.-8) by the informant (P.W.-5) and his
nephew (P.W.-4). In fact the very presence of P.W.-4 and P.W.-5 at the time of preparation of requisition of inquest report of Raghubansh Singh and
the un-known dead body becomes highly doubtful. In paragraph ‘22’ of his deposition, P.W.-3 says that after about 30-45 minutes from the time
of giving these statements before police he left the place of occurrence and reached his Vijaipur house. In para-graph ‘21’ he specifically says
that he cannot say whether the in-quest report of the two dead bodies were prepared in his pres-ence or not. In paragraph ‘23’, P.W.-5 says
that after giving statement to police he came to know about the name of Raghubansh Singh. He further says that he came to know this after giving his
statement prior to searching the dead body. Learned counsel, therefore, submits that P.W.-5 has confirmed in his evidence that prior to searching of
the dead body he had given his fardbeyan to police but that was not recorded and after the dead bodies were found his statements were recorded by
the police and on that basis this FIR has been lodged. Learned coun-sel for the appellant has, thus, submitted that the fardbeyan on the basis of which
FIR has been recorded is not earliest version of the prosecution and the earliest version has been apparently suppressed.
34. Learned counsel further submits that from the evidence on the record, it is clear that as per two FIR named eye witnesses namely Bhola Gupta
(P.W.-4) and Chandrashekhar Gupta (P.W.-5) police arrived at the place of occurrence imme-diately after the occurrence within one hour and both
gave their statement to the police, but the I.O.(P.W.-8) has not at all sup-ported this version of P.W.-4 and P.W.-5. P.W.-8 has categoric-ally stated
that he reached for the first time at the place of occur-rence at 1.30 (afternoon). It is submitted that from the evidence of P.W.-4 and P.W.-5 it is
apparent that their statements made before the police at the so-called place of occurrence has been purposely withheld by the prosecution, if the
informant was not knowing the name of Raghubansh Singh it could not have been possible for him to describe him in so detail saying that he was an
employee of Tubewell Department and was going to sun-pipe Nalkup and according to learned counsel this itself goes to show that the present
fardbeyan was not recorded at 1.30 pm but in the evening at the police station the fardbeyan was recorded after recovery of all the three dead bodies
and this was done with due deliberation.
35. Learned counsel further submits that there is one more reason to say that the prosecution has purposely sup-pressed the earlier version which was
allegedly given to the po-lice at about 10.00 am in which name of none of the accused was mentioned. It is submitted that had the name of the
accused been mentioned by the informant or his nephew police may have gone in that direction in which accused allegedly fled away and had the
accused been named the police would have conduc-ted raid on their respective houses but in absence of this inform-ation the I.O. had not recorded
that after leaving the police sta-tion when he started searching the accused what are those places where he conducted the raid. Learned counsel has
submitted that it is highly doubtful that P.W.-4 and P.W.-5 were actually ac-companying the deceased Subhash Chandra Gupta as claimed by them. It
is submitted that that both witnesses have talked about indiscriminate firing as a result of which the body of Subhash Chandra Gupta and Raghubansh
Singh got riddled with bullets and one accused who was among the assailants had re-ceived injury and died but it is unbelievable that P.W.-4 and
P.W.-5 who claimed that they were also standing at some dis-tance did not receive even a scratch on their body. It is submit-ted that story of
indiscriminate firing and snatching of rifle of Subhash Chandra Gupta by this appellant have already been dis-believed by the learned trial court as the
police after investiga-tion did not find sufficient materials to proceed against some of the co-accused, they were discharged and not sent up for trial.
Similarly, the learned trial court has held that rifle was not in ex-istence and appellant has been acquitted from the charge under Section 379/34 I.P.C.
36. Learned counsel has also adopted the arguments of Mr. Surendra Prasad Singh, learned senior counsel who has argued in Cr.Appeal (DB0
No.123 of 2016 on the point that in this case the prosecution case is so interwoven and inextricably connected that it is not possible to believe one part
of the pro-secution story and reject the another part of the story. It is fur-ther submitted that the postmortem report of all the three injured completely
falsify the allegations. The doctors who conducted the autopsy have been examined as P.W.-6 and P.W.-7. P.W.-6 had conducted the postmortem of
the dead body of Subhash Chandra Gupta on 22.09.1994, he has explained the three injur-ies on the dead body but did not find that the body of
Subhash Chandra Gupta was riddled with bullets. P.W.-6 has stated that the time elapsed between the death and the postmortem of Subhash Chandra
Gupta was within 36 hours. According to him the injury no.(i) and (ii) may be caused at different time and not at a time. If the injury no.(i) is caused at
first the deceased will be fallen on the earth and it is not necessary that the deceased will fall on the ground facing front portion. This witness had
stated that he did not find any sign of drowning the body into water and it is important to note that he had calculated the time elapsed since then i.e.
within 36 hours on the basis of rigor mor-tis present on the person of the deceased which may start from 2.00 am in the night of 20/21-9-94.
37. P.W.-7 has conducted autopsy of dead body of Raghubansh Singh and unknown dead body. P.W.-7 has stated that injury no. (i) on the body of
Raghubansh Singh was caused by explosive. He has proved the postmortem of Raghubansh Singh as Ext.3/1 and again the postmortem report of the
un-known dead body as Ext.3/2. Injury No.(i) of unknown dead body was found almost similar to injury no.(i) of Raghubansh Singh.
38. This Court finds that P.W.-6 and 7 are full-fledged prosecution witnesses and they have not been declared hostile by the prosecution. The learned
Public Prosecutors have not confronted P.W.-6 and P.W.-7 on the question that both the deceased i.e. Raghubansh Singh and unknown person having
re-ceived injury by bomb.
39. Learned counsel further submits that there is an-other fact which will go to show that the present fardbeyan was recorded after the recovery of all
the three dead body and P.W.-4 and 5 were not present at the place of occurrence. It is submitted that both P.W.-4 and 5 have stated in their
examination-in-chief that the dead body of Subhash Chandra Gupta was dragged by Ramakant Sah, Majid Mian and Gorakh Ram for concealing the
same in northern side towards Charkhia Math but the inquest re-port of Subhash Chandra Gupta shows that the same was found at a distance of 200
yards from Charkhia Math whose hand was tied with Langota from a mujz. The inquest report was prepared on 21.09.1994 at 17.45 pm. It is
submitted that if P.W.-4 and P.W.-5 have stated that the dead body was allegedly dragged to-wards Charkhia Math and the distance of said Charkhia
Ram Janki Mandir from the place of occurrence is half kilometre (para 28 of P.W.-4), it is strange why such delay occurred in tra-cing out the dead
body of Subhash Chandra Gupta. It shows that much after recovery of all the three dead bodies, the fardbeyan was recorded. Learned counsel
further submits that non-production of Sanha in this case would give rise to an adverse inference against the prosecution.
40. In this regard, he relies upon a judgment of the Hon’ble Supreme Court in the case of Arjun Marik Vs. State of Bihar reported in 1994 Supl.
(2) SCC 372. Further on the point of suppression of the first version, learned counsel has re-lied upon the judgment of the Hon’ble Supreme Court
in the case of State of Madhya Pradesh Vs. Ratan Singh & Ors. re-ported in (2020) 12 SCC 630 It is submitted that in the facts of the present case,
there is not only a delay in lodging of the FIR which remains unexplained but there is also a wilful suppression of the actual first information received
by the police.
41. As regards the evidence of P.W.-9 Sachintan @ Sachida Yadav it has been argued that he is not a reliable wit-ness. He has himself stated that he
had not disclosed to P.W.-5 that he was an eye witness. After about 6-7 months, he claims to have told P.W.-5 that he had seen the occurrence and
would de-pose as a witness. He has relied upon a judgment of the Hon’ble Supreme Court in the case of Ram Lakhan Singh and Others Vs State
of U.P. reported in AIR 1977 SC 1936 to submit that in a case of grave charge of this nature it will not be proper to place reliance upon a witness
who never figured during the in-vestigation.
Submission on behalf of the State and informant
42. Mr. Dilip Kumar Sinha, learned Additional Public Prosecutor assisted by Mr. Ajay Kumar learned counsel for the informant has opposed the
appeal and defended the judgment of the learned trial court. Learned counsel for the informant has opposed the appeal on identical grounds on which
he opposed the Cr.Appeal (DB) No. 123 of 2016 (Vijay Singh Vs. the State of Bihar). In fact both the appeals were heard one after another in
continuity. According to the prosecution, the I.O. (P.W.6) en-tered the information regarding the killing of Subhash Chandra Gupta and two others in
the station diary being SDE No. 301 and proceeded for the place of occurrence in order to locate the dead body and to apprehend the accused
persons. It is submitted that the delay has been well explained and would not be fatal for the prosecution as the F.I.R. was duly transmitted to the
learned court on the very next day without delay. Reliance in this regard has been placed on the judgment of Hon’ble Supreme Court in the case
of Bhajan Singh @ Harbhajan Singh & Ors. v. State of Haryana reported in AIR 2011 SC 2552. The judgments cited on behalf of the appellant have
been sought to be distin-guished on the facts of those cases. It is submitted that in AIR 1981 SC 1230 the conduct of the SHO was highly doubtful as
the sanha diary entry was not produced even after the order of the court. Regarding the judgments on the delay in lodging of the F.I.R. learned Addl.
P.P. for the State has stated that in AIR 2004 SC 3055 the I.O. was present at the P.O. but none claimed himself as an eye witness, after 1:00 - 1:30
hours a person came and claimed as eye witness, during trial there were major con-tradictions so the court accepted the submissions of the defence
on the point of delay in lodging of the F.I.R.
43. Learned Additional Public Prosecutor further sub-mits that the exoneration of five accused persons cannot be a ground to discard the version of
the eye witnesses. With refer-ence to a judgment of the Hon’ble Supreme Court reported in 2022 Live Law (SC 137) Criminal Appeal No. 339-
340 of 2014 (Rajesh Yadav and Another etc. v. State of U.P.) it is submitted that a final report is nothing but a piece of evidence. It forms a mere
opinion of the investigating officer on the mate-rials collected by him. It takes note of the offence and thereafter, conducts an investigation to identify
the offender, the truth of which can only be decided by the court.
44. On the point of eye witness contradicted by the medical evidence, it is submitted that oral evidence has to be given primacy since medical
evidence is only corroborative. It is submitted that the doctor has explained injury no. 1 of Raghubansh Singh caused by explosive and injury no. 1 of
un-known deceased caused by fire-arm but during cross examina-tion the doctor has opined that injury no.1 of Raghubansh Singh and injury no. 1 of
unknown deceased are most similar in nature and, therefore, the inference could be drawn that the injury no. 1 of Raghubansh Singh may be caused
by fire-arm as there is no other sign of explosive either on the body or through any other evidence which could suggest the use or presence of
explosives in the area and the medical jurisprudence supports such injury by fire-arm.
45. The prosecution relies upon the judgment of the Hon’ble Supreme Court in Bhajan Singh @ Harbhajan Singh & Ors. V. State of Haryana
reported in AIR 2011 SC 2552 (paragraph 23) to submit that ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence,
when med-ical evidence makes the ocular testimony improbable, that be-comes a relevant factor in the process of the evaluation of evi-dence.
Regarding the fact that the arm was released in favour of Rajendra Singh, it is submitted that the prosecution had never claimed that the gun was
seized at the place of occurrence, rather it was seized much after the occurrence for which Vi-jaipur P.S. Case No. 78 of 1994 dated 03.10.1994
under Section 414 I.P.C. And Section 25(1-b) of Arms Act was lodged. As number of gun was tampered, therefore, it was sent to F.S.L. Patna who
vide it’s report being F.S.L. No. 627/95 dated 01.11.1995 reported that tampering was done, thereafter the Of-ficer-in-Charge of Vijaipur Police
Station vide it’s letter dated 28.11.1995 written a letter to learned Chief Judicial Magistrate, Gopalganj that the recovered gun is the same gun
which was snatched in Vijaipur P.S. Case No. 74/94 and therefore, prayed for stay of the order of release dated 24.11.1995, however this fact was
not brought during the trial. It is submitted that it was an omission on the part of the I.O. and the conducting counsel.
46. Regarding the evidence of Sachitan Yadav (P.W.7), again it is submitted that his statement was recorded in supplementary case diary but it was
not brought to the notice of the learned trial court due to omission on the part of the I.O. and the conducting counsel. In this regard, reliance placed by
the de-fence on the judgment of the Hon’ble Supreme Court in the case reported in AIR 2019 SC 3727 and AIR 1975 SC 1962 is of no relevance.
47. Relying upon the judgment of the Hon’ble Supreme Court in the case of Rajesh Yadav & Anr. Etc. v. State of U.P. relying on C. Muniappan
v. State of Tamil Nadu reported in (2010) 9 SCC 567; learned counsel submits that even if there are some omissions, contradictions and discrepan-
cies, the entire evidence cannot be dis-regarded. Reliance has been placed on the judgment of the Hon’ble Supreme Court in the case of State of
Rajasthan v. Kishore reported in (1996) 8 SCC 217 and Rajendra Prasad v. Narcotic Cell reported in (1999) 6 SCC 110. It is submitted that every
irregularities and illegalities in investigation will not thereby render prosecution case untrustworthy.
Consideration
48. I have heard learned counsel for the appellant, learned Additional Public Prosecutor for the State and learned counsel for the Informant as also
perused the records.
(i) On the Point of place of occurrence
49. On the point of place of occurrence, I find that Bhola Gupta (P.W.-4) has stated that when he along with his father and uncle (P.W.-5) reached
near Jogibaba Sthan they saw that fishermen were involved in fishing, all three of them stood there and were looking at the fishing being done there.
P.W.-4 says that in the meantime from behind (from eastern side) all the accused persons arrived and then he narrates the manner of oc-currence.
As regards the place of occurrence this witness says that the road on which they were going is going through east to west and they were going
towards western direction. When they crossed Marar village then they got water and near Jogibaba Sthan at some places the water was below the
knee and at some places it was above the knee. He says that the place where they were standing and looking at the fishing the road is passing through
north to south and about 25-30 persons were present there. He further narrates that on both sides of road, in the fields there was flood water but he
did not remember whether more flood water was there on the Rasulpur road or in the side where the dead body of his father was being pulled away.
According to this witness, he was standing at a distance of 10-12 ft. South to his father, his uncle was standing at a distance of 14-15 ft. North to his
father. He did not remember whether anybody else was standing in between his place and where his father was standing or in between his father and
uncle. He did not remember whether 25-30 persons who were present there were standing or not. According to this witness, Vijay Singh was having
rifle had identified Subhash (deceased) and had fired from his rifle upon him which hit him on the back side. If evidence of P.W.-4 is carefully
scrutinized it may be found that on a road passing from north to south this witness, his father and uncle were standing having their face towards
western side and according to him the accused persons came from behind. He does not say that the road where they were standing having their back
to-wards eastern side was connected by a road from eastern side. This witness says that Raghubansh Singh who happened to be an employee of
Nalkup Department had also received shot in course of indiscriminate firing being done by all the accused persons. P.W.-4 says that as a result of the
indiscriminate firing the body of his father was riddled with bullets but the post-mortem report (Ext.-5) shows three fire-arm injuries on the body of
Subhash. P.W.-4 could see the third injury only at the police station. He has attributed two injuries on the body of his father to Vijay and this appellant
respectively, it means in the alleged indiscriminate firing by all the accused persons, the father of P.W.-4 got only one injury that too on his left hand.
A perusal of the postmortem report of the father of P.W.-4 shows that in the column showing place from where the dead body was sent for
postmortem, doctor (P.W.-6) has recorded “Samho Tola, Vi-jaipurâ€. Similarly as regards Raghubansh Singh it has been found by doctor (P.W.-7)
that his injury no.1 was not having any entry or exit wound and the kind of injury was a result of use of explosive substance. The doctor (P.W.-7) who
conducted the autopsy on the body of Raghubansh Singh and proved the post-mortem report of Raghubansh Singh as Ext.5/1 has stated that he had
recorded the place from where the dead body was brought as “near Nalkup, Vijaipur†on the basis of the requisi-tion received from police. I have
perused the postmortem report of Raghubansh Singh and found that in the column showing place from where dead body was recovered it was earlier
recor-ded “near Nalkup, Vaijaipurâ€, but it has been cutdown/penned-down by some one and has been written afresh at the top as Jo-gibaba place,
Rasulpur. Who has cut down and penned down entry in the postmortem report and why another place of recov-ery of dead body has been shown
seems mysterious. The atten-tion of doctor (P.W.-7) was rightly drawn towards this fact and he has stated that he had recorded the place as near
Nalkup, Vaijaipur on the basis of requisition received from police with the dead body.
50. In course of evidence, P.W.-4 has stated that he did not remember except Sachitan Yadav of his village as to who others were present at the
place of occurrence. He did not remember that when firing started he remained standing there or ran towards any direction. He says that the dead
body of his father Subhash was being dragged away towards north-western direction of Charkhia Ram Janki Mandir. He was not present at the place
where the dead body of his father was found. This witness says that Sachitan Yadav and Harihar Gupta had told him that name of the one of the
deceased was Raghubansh Singh who was Nalkup Operator.
51. As regards place of occurrence, P.W.-5 who has proved the fardbeyan (Ext.1) says that the place of occurrence he along with his brother
Subhash Gupta (deceased) and nephew Bhola Gupta (P.W.-4) were standing. His brother Subhash was standing in the middle. South to Subhash was
standing P.W.-4 and this witness was standing north to his brother Subhash and all were looking towards western direc-tion. He says that the accused
persons came from east side to west side and with them apart from the accused persons the labourers engaged in cutting of grass were also coming.
It seems highly unbelievable that in a flood situation labourers engaged in cutting of grass would be visiting the place. P.W.-5 says that the place
where they were standing on the road there was two ft. water and water was flowing slowly. When the fir-ing started this witness wanted to flee
away but the accused persons told that if he would run then they would kill him. In paragraph ‘17’ he says that to his knowledge, Subhash had
suffered two fire-arm shots. P.W.-5 says that he did not know about Raghubansh Singh earlier, he was standing at the east-north corner of his brother
Subhash. At this stage, this witness says that the place where occurrence took placce road is going from north to south and on coming from village
Marar it will be Raghubansh Singh whose place will come first thereafter the place of P.W.-5 and then that of his brother Subhash. In paragraph
‘18’, P.W.-5 clearly says that the accused persons had come from the side of Marar village.
52. An analysis of the evidence of P.W.-5 further shows that the place where the occurrence took place road was passing through north to south and
on that road Raghubansh Singh was standing at the east-north corner. This witness has not stated that there was any road coming from east side
connecting the place of occurrence. To me it appears that neither P.W.-4 nor P.W.-5 is able to prove the place of oc-currence in this case.
53. P.W.-5 has stated that the police arrived at the place of occurrence within 55-60 minutes and from his evid-ence it is clear that by the time police
arrived at the place of occurrence this witness and other people from the village had assembled at that place. In paragraph ‘20’ this witness
says that the police had taken his oral statement but that was not reduced in writing and police went in search of the dead body of his brother
Subhash. When the dead body was not found then police came back and thereafter again P.W.-5 gave his statement which was recorded by the
police. In paragraph ‘20’, P.W.-5 says that he had also gone in search of the dead body with police and had been searching the dead body of
his brother towards north and west corner from ‘Jogibaba Sthan’. He had been involved in search of the dead body for about 2-3 hours. He did
not remember whether any police personnel was left at the place of occurrence or not. In paragraph ‘22’, this witness says that after 30-45
minutes of giving his state-ments he left the place of occurrence to his Vijaipur house and he did not remember whether police had recovered any
cart-ridge or explosive substance after searching the place of oc-currence. In paragraph ‘23’, P.W.-5 says that after giving statement to police
he came to know about the name of Raghubansh Singh. This witness states that he came to know the name after giving his statement to police before
searching out the dead body. People told him about his name but he did not know those persons as they belong to another village.
54. At this stage when I scrutinise the evidence of P.W.-5 he seems to be totally inconsistent in his statement par-ticulary when it is compared with
the statement of P.W.-4 and the I.O. (P.W.-8). The statement of doctor (P.W.-7) clearly suggests that the dead body of Subhash was sent for post-
mortem with requisition showing the place name from where the dead body was sent. It was recorded as “Samho Tola, Vi-jaipurâ€. The dead
body of Raghubansh Singh was found near Nalkup, Vijaipur and accordingly it was entered in the post-mortem report. From the alleged place of
occurrence if the dead body of Subhash had been dragged towards north-west-ern side of Charkhia Janki Mandir which is situated at a dis-tance of
one kilometer approximately then there is no reason as to why police would not be able to search the dead body of Subhash within 2-3 hours. It is, at
this stage, it becomes im-portant to note that the dead body of Subhash was found at Samho Tola, Vijaipur and not near Charkhia Janki Mandir. P.W.-
5 is trying to conceal material facts would also be evid-ent from his statement that he firstly says that he came to know about the name of
Raghubansh Singh from the people after his first statement and before searching out the dead body. He later on says in paragraph ‘5’ that he
had heard it from police that out of the two dead bodies one dead body is that of Raghubansh Singh, but he did not remember whether police had
recorded the statement of any villager with regard to identity of Raghubansh Singh. The statement of P.W.-5 in paragraph ‘23’ would go a long
way to show that after first statement of P.W.-5, police recorded another fardbeyan of P.W.-5 and this time when all the dead bodies had already
been recovered, the farbdeyan was recorded belatedly and in the nature of the crime the delay would prove fatal to the pro-secution.
55. In my opinion, the place of occurrence in this case could not be proved by the prosecution beyond all reas-onable doubts.
(ii) Manner of Occurrence
56. Regarding the manner of occurrence as well, I find that the prosecution witnesses are quite inconsistent and they have made contradictory
statements. The evidence of P.W.-5 categorically shows that when police arrived within 55-60 minutes he had made statement before police but that
statement of P.W.-5 has been suppressed and fardbeyan has been recorded at 1.30 P.M. The I.O. (P.W.-8) has not proved the Sanha entry which he
claims to have made at about 9.30 am, thus, Sanha entry has also been withheld and this would give rise to an ad-verse inference against the
prosecution.
57. The postmortem reports of the deceased which have been proved by P.W.-6 and P.W.-7 do not corroborate the manner of occurrence as claimed
by P.W.-4 and P.W.-5. On the body of Subhash, P.W.-6 has found inverted blackened margin of wound on the back of right lumber. In his cross-
examination, he says that blackening of skin around the wound margin may be possible when the body of the decased is at the distance of 6 ft. or less
from exit point of firearm. P.W.-6 did not find any sign of drowning the body into water and he further says that injury no.(i) and (ii) may be caused at
different time and not at a time. He has also noticed that time elapsed since death was within 36 hours and this relates back to the night of 20/21-9-94.
58. As regards the injury of Raghubansh Singh, P.W.-7 has stated that Injury no.(i) has been caused by explos-ive substance. The perusal of injury
no.1 shows that this in-jury has no entry or exit wound and it is in the nature of a big zig-zag lacerated wound with sacrifice of whole skull, Nasal
bone, orbit of eye, cervical vertebrae etc. P.W.-7 has further stated that injury no.(ii) and (iii) of Raghubansh Singh are the injuries caused by one
shot. P.W.-4 and P.W.-5 both have stated about only one shot received by Raghubansh Singh as a result whereof he fell down. Both the witnesses
are silent as to the circumstances under which injury no.(i) was caused.
59. The injury no.(i) of the unknown deceased has been found almost similar to injury no.(i) of Raghubansh Singh. Regarding injury no.(i), P.W.-7 has
said that injury no. (i) was caused by firearm and in cross-examination he has stated that zig-zag lacerated wounds were found over the dead body of
both the deceased but their size were different and no size is possible by explosive substance. The evidence of P.W.-7 further goes to suggest that
injury no.(i) of Raghubansh Singh which was having no size was possibly caused by ex-plosive substance. Thus, the postmortem reports of
Raghubansh Singh and the unknown dead body which has been later on identified as of Dhanu Tiwary rules out the ocu-lar evidence of P.W.-4 and
P.W.-5 to a great extent.
60. I have further noticed that P.W.-8 has stated in his evidence that he went to the place of occurrence at 1.30 PM. He has thus contradicted P.W.-
4 and P.W.-5 who claim that P.W.-8 had arrived at the place of occurrence within one hour i.e. up to 10.00 am. Further P.W.-8 has stated in para-
graph ‘6’ that at the place of occurrence he did not find any evidence of fishing by fishermen but he had not mentioned this fact in the case
diary. He had also not found any live or empty cartridges of gun or rifle from the place of occurrence. He says that after inspection of the place of
occurrence and taking statement of the witnesses he returned to the police sta-tion. Contrary to this, P.W.-5 has claimed that he had gone with the
police in search of the dead body and had returned to the place of occurrence with the police after 2-3 hours. P.W.-8 says that he had not recorded in
his case diary as to whether the clothes of the Subhash Chandra Jha were dry or wet. He had not found any explosive substance at the place of
occur-rence as according to him the explosive substance might have flowed away in the water. In paragraph ‘12’ of his evidence, he says that
he had noticed that in the postmortem report of Raghubansh Singh the doctor had mentioned about one injury caused by explosive substance. He has
further stated that in the supervision note the then Superintendent of Police, Gopal-ganj had recorded about the deceased Subhash Chandra Gupta
belonging to the gang of Bachha Rai. This witness has stated that the place of occurrence is situated at a distance of two kilometer from the police
station, he had heard rumour about the occurrence and had also recorded a Sanha in the station di-ary but has not recorded that who had given the
information. In paragraph ‘3’ he categorically says that he had not reached the place of occurrence before 1.30 pm and he had not recor-ded in
the case diary as to the places where he conducted raid in search of the accused persons. From the evidence of P.W.-8 it is crystal clear that he is
trying to suppress the first state-ment of P.W.-5.
61. I further find that evidence of Sachitan Yadav @ Sachida Yadav (P.W.-9) is not trustworthy. He is not a charge-sheet witness and much after
the alleged occurrence he has been introduced in this case. From his evidence itself it is evident that he contradicts P.W.-4 and P.W.-5 as regards the
condition of the place of occurrence. In paragraph ‘21’ of his evidence, he says that there were some dry places at about 15-20 ft. North from
Jogibaba Sthan and it is the said place where Subhash Gupta was standing. In paragraph ‘22’ he says that about half kilometre from the place
of occurrence it was visible to see anybody and the accused persons had come through road moving in water. If the statement of P.W.-9 is be-lieved
for a moment he is found contradicting P.W.-4 and P.W.-5 as regards the place of occurrence. In paragraph ‘34’ of his evidence, he says that
he had not gone to police station to give information regarding the occurrence. In paragraph ‘35’ he does not say that the dead body of Subhash
Chandra Gupta was being dragged away and in paragraph ‘38’ he says that his name was not told by Bhola Gupta and Chandrashekhar Gupta
as witness on the date of occurrence. After about 6-7 months he told Bhola Gupta and Chandrashekhar Gupta that he had seen the alleged
occurrence and will depose as a wit-ness. In paragraph ‘41’ he says that it was the month of December when the occurrence took place. He
had not gone to police station for 6-7 months to record his statement.
62. In the aforementioned circumstance, it would not be safe to rely upon the statement of Sachitan Yadav (P.W.-9).
63. I find from the inquest reports which are Ext.5, 5/1 and 5/2 that in column no.6 and 7 which require recording of information with regard to the
manner in which and the weapons (if any), by which injuries appeared to have been in-flicted and the circumstances, if any, which give rise to suspi-
cion of foul play the only statement recorded is that “rifle evam banduk ki goli ka fire hone se jakhm hona jisse mrityu hui†and “rifle evam
banduk ki goli lagne se zakhm hona paratit hota haiâ€. The inquest report witness of Raghubansh Singh and the unknown dead body have not deposed
in course of trial and Chandrashekhar Gupta (P.W.-5) who is one of the inquest report witness of his brother Subhash Chandra Gupta’s dead body
had also not explained the circumstances and the manner in which the injuries were inflicted on the dead body of the deceased Subhash Chandra
Gupta. One of the inquest report witness of Subhash Chandra Gupta has de-posed as P.W.-1 who has been declared hostile.
64. I further find that the story of indiscriminate fir-ing could not be substantiated in course of investigation and at least five named accused persons
against whom there were al-legations of indiscriminate firing were not sent up for trial and that has not been challenged by the prosecution. I also find
that the fact that prosecution case in its entirety is so inter-woven and inextricably mixed up that it is not possible to sep-arate one part of the
prosecution story from the whole prosec-ution case.
65. On perusal of the 313 Cr.P.C. statement of the appellant, again I find that the attention of the appellant was not drawn towards incriminating
materials which were brought against him by the prosecution. In the name of statement under Section 313 Cr.P.C. only some questions were put to
him. The very first question which was put to this appellant is that there were evidence against him that he along with co-accused had hatched
conspiracy and they had shot dead Subhash Chandra Gupta, Raghubansh Singh and Dhanu Tiwary. Here it is important to note that attention of the
appel-lant was not drawn towards the specific materials which had come through the witnesses against him as regards the allega-tion that he had fired
at the eyes of Subhash Chandra Gupta. The allegation of indiscriminate firing by all other accused could not be substantiated and they were not sent
up for trial. The appellant has explained that the allegations and the state-ments against him were false. Subhash Chandra Gupta was a person having
criminal antecedent and he was member of a gang. He suffered injuries in the encounters which he had with the gang of Dhanu Tiwary. He also
stated that the I.O. was in connivance with the informant and he had seized the gun of Rajendra Singh (D.W.-1) to show that it was the gun of the
informant (P.W.-5) but later on the said gun was released in favour of D.W.-1 by the court.
66. From the discussions hereinabove, I find that the prosecution has failed to prove the guilt of the appellant beyond all reasonable doubts and it would
not be safe to convict him on the shaky kind of evidences which have been found in course of trial. I, therefore, set aside the judgement of convic-tion
dated 19.12.2015 and the order of sentence dated 02.01.2016 which are impugned in the present appeal and ac-quit the appellant. The appellant shall
be released forthwith, if he is not wanted in any other case.
