Bhantu Rai @ Mantu Rai v. The State Of Bihar Through The Informant Nitesh Kumar

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (DB) No.589 of 2015 Arising Out of PS. Case No.-195 Year-2012 Thana- RUNISAIDPUR District- Sitamarhi ====================================================== Bhantu Rai @ Mantu Rai, son of Sri Baleshwar Rai @ Baleshwar Prasad Rai, resident of Village-Batrauli, Police Station-Runni Saidpur, District- Sitamarhi Bihar.

... ... Appellant

Versus

The State of Bihar through the Informant Nitesh Kumar ... ... Respondent ====================================================== Appearance :

For the Appellant :

Mr. Vindya Keshari Kumar, Sr. Advocate Mr. Neeraj Kumar, Advocate For the State :

Mr. Binod Bihari Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI and HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI) Date : 24-08-2023 The present appeal has been filed by the appellant/convict under Section 374(2) of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Code') against judgment of conviction dated 24.03.2015 and order of sentence dated 01.04.2015 rendered by learned Additional District & Sessions Judge-1st, Sitamarhi in Sessions Trial No. 11 of 2013/2 of 2013, whereby the present appellant has been convicted for the offences punishable under Sections 302, 148 and 120(B) of the Indian Penal Code and under Section 27 of Arms Act, arising out of Runni Saidpur PS Case No. 195 of 2012, in which he has been sentenced to undergo R.I. for life and to pay a fine

2/25 of Rs. 25,000/- and in default of payment of fine, to further suffer R.I. for 6 months for the offence punishable under Section 302 of IPC; to undergo R.I. for 2 years for the offence punishable under Section 148 of IPC and to undergo R.I. for 5 years and to pay a fine of Rs. 10,000/- and in default of payment of fine, to further suffer R.I. for 2 months for the offence punishable under Section 27 of Arms Act. The sentences have been ordered to run concurrently.

2. The case of the prosecution in a nutshell is as under:- The fardbeyan of one Nitesh Kumar was recorded by S.I., R.K. Singh of Ahiyapur police station, District-Muzaffarpur on 02.07.2012 at about 09:15 p.m. at SKMCH, Muzaffarpur emergency ward, wherein the first informant had stated that his father Kamta Rai went to Sirkhiria market for purchasing vegetables on 02.07.2012 and when he was returning to his house, one Kailash Rai and Ramanand Rai were also with him. At about 04:00 p.m., one tempo was parked in the market near the road which was going towards western side. It is alleged that Chiranjivi Bhagat, his cousin brother, Mantu Rai and Bindeshwar Bhagat while armed with pistols sneaked past the said parked tempo and thereafter Chiranjivi Bhagat opened fire

3/25 and the bullet hit on the chest of the father of informant, similarly, Mantu Rai also fired upon the father of informant and the bullet hit on his left hand wrist, the cousin brother of the Chiranjivi also fired from his pistol and the bullet hit on the left thigh of the informant's father. Thereafter, Bindeshwar Bhagat fired in air from his pistol. It is also alleged that Anil Singh, Chandrika Rai and Shyam Rai were also planning to kill the father of the first informant and they were giving threats to the father of the informant that he will be killed with the help of firearm. It is also stated that after the incident, all the accused fled away from the place of occurrence on the southern side of the market.

It is the case of the prosecution that the incident in question took place because of the land dispute which was going on between Chiranjivi Bhagat, Shayam Rai and Kailash Mahto. It is further stated that after the incident, the injured father of the first informant was taken to SKMCH by tempo. However, when they reached to the said hospital, the father of the informant succumbed to the injuries and died.

3. On the basis of the aforesaid fardbeyan given by the first informant, FIR was lodged on 03.07.2012 at about 11:30 a.m. for the offences punishable under Sections 302 read with Section 34 of the IPC against all the named accused. The

4/25 Investigating Officer thereafter started the investigation and during the course of investigation, recorded the statement of the witness and collected the documentary evidence and after investigation was over, filed the chargesheet against the present appellant. The other accused were not available and, therefore, they were shown as absconders, however, it is pertinent to note that thereafter some of the accused were arrested and separate charge-sheets were filed against the other co-accused persons. The trial against the said co-accused was also separately conducted by the concerned trial Court.

4. The Investigating Officer filed the charge-sheet as observed above against the appellant before the concerned Magistrate Court. However, as the case was exclusively triable by the Court of Sessions, the learned Magistrate committed the same under Section 209 of the Code to the concerned Sessions Court.

5. During the course of the trial, the prosecution examined nine witnesses and produced the documentary evidence including the inquest report and the postmortem note of the deceased. Further statement of the appellant/accused under Section 313 of the Code was also recorded and after conclusion of the trial, the trial Court passed the impugned order

5/25 as observed herein-above. Against the order of conviction, the appellant has preferred the present appeal, which was admitted and today, the same was taken up for final hearing.

6. Heard learned Senior Counsel Mr. Vindya Keshari Kumar assisted by learned Advocate Mr. Neeraj Kumar for the appellant and Mr. Binod Bihari Singh, the learned APP for the respondent-State.

7. Learned Advocate for the appellant submitted that though the prosecution had examined six so called eyewitnesses to the incident in question, PW-2, Ganga Rai, PW-5, Ram Nandan Rai and PW-6, Ram Sakal Rai have not fully supported the case of the prosecution and therefore they were declared hostile. It is submitted that the prosecution has therefore placed reliance upon the deposition given by three witnesses namely, PW-1, Nitesh Kumar, PW-3, Kailash Rai and PW-4, Bhagya Narayan Rai. Learned counsel has referred to the deposition given by the aforesaid so-called eye-witnesses and thereafter contended that though PW-1 is the first informant and son of the deceased, he had for the first time narrated the story while giving the deposition before the Court by projecting himself as an eye-witness to the incident in question. It is submitted that in the fardbeyan given by the informant or by

6/25 giving his further statement, the said witness did not disclose the story which he had narrated before the Court for the first time while giving his deposition and therefore there is material improvement in the version given by the PW-1. It also submitted that similarly PW-3 and PW-4 are near relatives of the deceased and have not stated about the manner in which the incident took place while giving statement before the police at the time of investigation. However, for the first time, the said witnesses have narrated different story before the Court while giving their depositions. At this stage, learned counsel has referred the deposition given by PW-7, Harish Chandra Thakur, the Investigating Officer, who has carried out the investigation.

It is submitted that from the cross-examination of the said witness, it is clear that all the aforesaid so-called eye-witnesses have first time narrated different story before the Court while giving their depositions and thereby there are major contradictions in the deposition of the so-called eye-witnesses. 7.1. Learned counsel thereafter referred to the deposition given by PW-8, Dr. Bipin Kumar, who has conducted the postmortem of the deceased.

7/25 called eye-witnesses, the assailants came from the southern side and opened fire from their firearms and thereby father of the first informant sustained injuries. However, PW-8, Dr. Bipin Kumar has specifically stated that from the injury it appears that the firearms were used from the front side of the deceased. It is further submitted that as per the case of the prosecution, firing took place at a distance of about 7 - 9 feets, whereas the doctor has specifically opined that the firearms were used from close range, that is within 1 - 3 feet and the injuries on the body of the deceased will cause profuse bleeding and this type of injury in normal course, without any medical aid, will cause death within a very short time. The said doctor has further stated that exit wounds are at upper level in comparison to entry wounds.

Learned counsel therefore submitted that the version given by the doctor clearly indicates that the aforesaid 3 prosecution witnesses are though not eye-witnesses, they are projected as eye-witnesses to the occurrence. In spite of that, the Trial Court has passed the impugned order of conviction.

8/25 they reached to the hospital, the injured succumbed to the injuries and died in the hospital. Learned Advocate referred to the relevant portion of the deposition of the witnesses and thereafter contended that the incident took place at 04:00 p.m. and the injured was brought to the hospital at about 07:00 p.m., i.e., after three hours and thereafter he died. Thus, it is impossible to believe that the injured remained alive for three hours after sustaining the injuries as narrated by the doctor. It is therefore urged that the present appeal be allowed and thereby impugned order of conviction be quashed and set aside.

8. On the other hand, learned APP appearing for the State has opposed this appeal. Learned APP would mainly submit that three eye-witnesses have fully supported the case of the prosecution and deposed before the Court the manner in which the incident had occurred. It is further submitted that the medical evidence also corroborates the version given by the eyewitnesses and therefore merely because there is some lacuna on the part of the investigation while conducting the investigation, the benefit of the same cannot be given to the appellant/convict/accused.

8.1. Learned APP thereafter submitted that the prosecution has also proved the motive on the part of the

9/25 accused in committing the alleged crime and, therefore, when the prosecution has proved the case against the appellant/accused beyond reasonable doubt, this Court may not interfere with the order of conviction passed by the Trial Court.

9. We have considered the submissions canvassed by the learned counsel appearing for the parties. We have also examined the entire evidence produced by the prosecution before the Trial Court.

10. PW-1, Nitesh Kumar is the first informant, who had given the first fardbeyan at about 09:15 p.m. on 02.07.2012 at SKMCH before the S.I., R.K. Singh of Ahiyapur Police Station, District-Muzaffarpur. PW-1, who is son of the deceased, Kamta Rai, stated in the examination-in-chief that one Raman Rai came to his house on 02.07.2012 at about 03:30 p.m. and thereafter his father went on motorcycle with the said person, meanwhile he along with his mother Sumitra Devi were sitting in the room. At that time, he heard that one Chandrika Rai who was talking on phone and said that "Madhumakkhi udtao humhu aa gaele Raman ke saath motorcycle se Sirkhiria bazaar gaela hu", immediately within 5 minutes thereafter Chandrika Rai, Krishnakant Kesari and Anil Singh left their house on motorcycle and went to Sirkhiria market. The said witness

10/25 therefore was apprehending that something untoward incident will happen and therefore he along with his cousin Munna had also gone to the market. He saw that his father, Raman Rai and Kailash Rai were buying vegetables. He, therefore, informed his father about the telephone talk of Chandrika Rai. His father took the same seriously and asked that he should now go to his house by saying that whenever he is leaving his house, Chandrika Rai, Shyam Rai and Krishna Kant Kesari are giving the same information to Chiranjivi Bhagat. His father and Raman Rai sat on the motorcycle at about 04:00 p.m. He noticed that one tempo was parked in the market on the road going towards western side.

Suddenly, Chiranjivi Bhagat, Bindeshwar Bhagat, Arun Bhagat, Mantu Rai and Rakesh Kumar sneaked past the said tempo carrying pistols and opened fire and in the said incident, his father sustained injuries and fell down. The said witness further stated that his father sustained three gunshot injuries. It is also stated that the bullet, which was fired from the pistol of Mantu Rai, hit on the left wrist of his injured father, the bullet which was fired from the pistol of Chiranjivi Bhagat hit on the left side of abdomen, whereas the bullet which was fired from the pistol of Arun Bhagat hit on the thigh.

11/25 fired on two dogs and one dog died. Thereafter, the injured father was taken by him with the help of one Kailash Rai on the motorcycle to his house and thereafter in tempo, his father was shifted to SKMCH, Muzaffarpur. During the transit, he also informed his relative on phone and, therefore, his relative brought ambulance and his father was taken to the aforesaid hospital in ambulance.

10.1. During cross-examination, the said witness has stated that his house is situated two kilometers away from the Sirkhiria market. The said witness has specifically admitted during cross-examination that the accused started firing from their pistol from the southern side and that too from the distance of five steps (around 7 - 9 feets). When the bullet hit his father who was in a sitting position on the motorcycle along with one Raman Rai, who was his pillion rider. He has also stated that the motorcycle was shown to the Investigating Officer. However, the said Investigating Officer did not seize the said motorcycle. Raman Rai was not injured in the said firing. Though, the number of persons, who were gathered there at the time of occurrence, nobody got injured in the said incident. The said witness further admitted that his father was initially taken to his house at about 04:30 p.m. However, he did not call the doctor

12/25 from the village nor any doctor was called at the market. They stayed in their house for about 10 minutes and thereafter his father was taken in the tempo. He further stated that for the first time his statement was recorded at about 09:15 p.m. on 02.07.2012. He has stated correct aspect in the said fardbeyan. Thereafter, his another statement was recorded on 03.07.2012 at about 05:00 p.m. The defence has also pointed out about the contradictions in the deposition of the said witness. These witnesses have also stated that they reached at SKMCH at about 07:00 p.m. and after reaching to the said hospital, he informed to S.P. and Runni Saidpur police station from his mobile. In the said information, he did not give name of any of the assailants and he had simply stated that his father sustained firearm injuries.

11. PW-3, Kailash Rai has stated in his examination-in-chief that on the date of the incident, at about 4:15 p.m. to purchase the vegetables in Sirkhiria market. At that time, he met Kamta Rai and Raman Rai. Both the aforesaid persons were also purchasing the vegetables. At that time, the son of Kamta Rai i.e. Nitesh Rai and cousin brother of Nitesh both came to the said place and informed Kamta Rai that after he left the house, Chandrika Rai informed on telephone to

13/25 Chiranjivi that 'bazar me madhumakhi urtau hamhu bazar awahi'. The said witness, therefore, told Kamta Rai that he should leave market immediately. Thereafter, Kamta started his motorcycle and sat on the said motorcycle along with Raman Rai. When the motorcycle was started, it was noticed that one tempo was parked in the southern side of the motorcycle at about five feet. Chiranjivi Bhagat, Arun Bhagat, Mantu Rai, Bindeshwar Bhagat and Rakesh Rai sneaked past the said tempo and started firing and in the said incident, Kamta Rai sustained injuries. Raman Rai was pillion rider jumped from the said motorcycle and fled away. At that time, Shyam Rai, Chandrika Rai, Krishnakant Kesari and Anil Singh were informing Chiranjivi about Kamta Rai.

The said witness further stated that one dog had also gone along with Kamta Rai in the market and one bullet also hit the said dog and the said dog died. Thereafter, the injured Kamta Rai was taken to his house on the motorcycle by the said witness along with Nitesh and thereafter, he was taken to Muzaffarpur Medical College in tempo. In transit, ambulance came and the injured was shifted to the said hospital in the said ambulance.

14/25 with regard to road between Chandrika and Kamta Rai. 11.1. During cross-examination, the said witness stated that at the time of occurrence, Nitesh was also standing at a distance of 5-7 steps and the assailants did not fire on Nitesh or his cousin brother nor on Raman. The said witness further stated that they did not inform the police about the incident. The said witness further stated that he stayed at the house of Kamta Rai for 5-10 minutes and, thereafter, the injured was shifted to Muzaffarpur Medical College. He further deposed that when the police came to Medical College, he did not give his statement to the police. His statement was recorded by the police on the next day at 5:00 p.m. His further statement was also recorded by the police.

12.

PW-4, Bhagya Narayan Rai had stated in his examination-in-chief that on the date of incident at about 4:00 p.m., he had gone to purchase 'gamchcha' in Sirkhiria market. At that time, he heard the sound of firing. When he saw, Kamta Rai along with Raman Rai were sitting on the motorcycle and at that time, Bindeshwar Bhagat, Chiranjivi Bhagat, Arun Bhagat, Bhantu Rai @ Mantu Rai and Rakesh Kumar came at the said place carrying pistols in their hands and started firing. In the said incident, Kamta Rai sustained injuries on his left wrist,

15/25 thigh and abdomen.

12.1. During cross-examination, the said witness stated that the deceased Kamta Rai was his step-brother. After the firing was over, he reached at the place of occurrence. When he reached at the place of occurrence, he had seen that Kamta Rai was lying in injured condition. The said witness resides next to the house of Kamta Rai. His statement was recorded by the police on the next day at about 4-5 p.m.

13. PW-2, Ganga Rai, PW-5, Rama Nand Rai and PW-6, Ram Sakal Rai have not fully supported the case of the prosecution and, therefore, they were declared hostile.

14. PW-7, Harish Chandra Thakur, who had carried out the investigation, has stated in his examination-in-chief that on 02.07.2012, he was working as S.H.O. (Station House Officer) of Runni Saidpur Police Station. At that time, he received the information at about 17:00 hours (5:00 p.m.) that one person is shot dead in Sirkhiria Market. He, therefore, entered the said information in the station diary and, thereafter, proceeded to the place of occurrence. When he reached in the village-Sirkhiria, the persons, who were present at the said place informed him that one Kamta Rai, son of late Tejnarayan Rai of village-Sirkhiria is shot dead by the assailants and for treatment,

16/25 the said person is taken to SKMCH, Muzaffarpur. He, therefore, sent one person to the said hospital and the said witness remained at the place of occurrence. On the next day, i.e. 03.07.2012, one person came from SKMCH, Muzaffarpur with fardbeyan and, therefore, the same was registered as FIR with the concerned police station. Thereafter, he has taken over the investigation. He further deposed that he had inspected the place of occurrence. When he reached at the place of occurrence, he also found the bloodstains at the place of occurrence. However, he did not collect the same. Thereafter, he had recorded the statement of the witnesses, collected postmortem report and after investigation, he filed the charge-sheet against Mantu Rai. 14.1.

During cross-examination, he had stated that in case diary he had not written station diary number. He reached at Sirkhiria village in jeep within one hour. At the place of occurrence, the persons, who have gathered, informed him that Kamta Rai had sustained injuries in the firing made by the assailants and he has mentioned about the same in the case diary. He remained at the place of occurrence during entire night and he received fardbeyan at 9:00-9:30 a.m. on the next day. Thereafter, he has carried out inspection of place of occurrence at about 15:30 hours (3:30 p.m.)

17/25 statement of the witnesses. In the cross-examination, the said witness has specifically stated that witness Nitesh had not stated in his statement recorded by the police about the manner in which the incident took place, which he had stated before the court in his deposition. Similarly, the said Investigating Officer has further stated that witness, Kailash Rai has also not stated in his statement recorded by the police about the manner in which the incident took place, which now he has deposed before the court. Similarly, in the cross-examination, witness Bhagya Narayan Rai has also not stated in his statement recorded on 03.07.2012, which now, he has deposed before the court. The Investigating Officer further admitted that he had not collected the blood from the place of occurrence nor he had found the bullet or empty cartridges or the pellets. The said witness has also stated that the motorcycle on which Kamta Rai was sitting was not seized by him nor anybody had produced the said motorcycle before him.

15. PW-8, Dr. Bipin Kumar is a witness, who had conducted the postmortem on the dead body of the deceased Kamta Rai. The said doctor has found following injuries:- "(i) One oval wound 1" x 1⁄2" x cavity deep over left upper part of abdomen 2"

lateral and 5" below to the left nipple

18/25 margins were inverted and surrounded by blackening - entry wound of fire arms.

(ii) One oval wound 11/2" x 1" over left middle of back of chest with everted margins - exit wound.

On Dissection:

Injury No. 1 and 2 were continuous to each other the projectile in its course pierced the liver, left lung fractured the posterior rib and finally made exit through wound no. 2. Both cavity filled with blood.

3. One oval wound 1" x 1/2" x muscle deep over left fore-arm. With inverted margins and surrounding blackening 5"

above right joint. - Entry wound.

4. One oval wound 11/2" x 1" over posterior part of left fore- arms 6" above left wrist joint with everted margins. - Exit wound.

5. One oval wound 3⁄4" x 1⁄2" x muscles deep over lateral interior part of left thigh, with inverted margin and surrounding blackening entry wound.

6. One oval wound 1" x 1⁄4" x 1" over posterior part of left thigh with everted margins. - Exit wound".

The said witness further stated that the deceased died due to haemorrhage and shock as a result of the aforesaid injuries and the injuries were caused by firearms like, rifle, gun

19/25 and pistol or any firearms.

15.1. During cross-examination, the said witness has specifically stated that only three firearm injuries were found and the other three were the exit wounds of those injuries. He had further stated that looking to the injuries, it can be said that firing took place from very close range i.e. within 1-3 feet. He also stated that from the injuries, it appears that firearm was used from front side of the deceased and the injuries on the body of the deceased will cause profuse bleeding. This type of injury, in normal course, without any medical aid, will cause death within very short time. Lastly, the said witness had stated that exit wounds are at upper level in comparison to entry wounds.

16. PW-9, Ramchandar Singh was working at Ahiyapur Police Station. The said witness recorded fardbeyan of Nitesh, son of the deceased in emergency ward of SKMCH, Muzaffarpur on 02.07.2012 at 9:15 p.m. He has recorded the said fardbeyan in his own handwriting.

17. From the aforesaid evidence led by the prosecution before the Trial Court, it can be said that PW-1, PW-3 and PW-4 are projected as eye-witnesses by the prosecution. However, PW-2 Ganga Rai, PW-5 Rama Nand Rai and PW-6 Ram Sakal Rai have not supported the case of the

20/25 prosecution and they were declared hostile. Thus, the deposition given by the so-called eye-witnesses are required to be examined minutely.

18.

It is pertinent to note that PW-1 Nitesh Kumar is son of the deceased, whereas PW-3 Kailash Rai is near relative of the deceased. Similarly, PW-4 Bhagya Narayan Rai is also near relative of the deceased. Thus, all the three witnesses, who have supported the case of the prosecution are interested and related witnesses and, therefore, as observed hereinabove, that their deposition are required to be examined minutely. 19.

If the deposition of PW-1 is read along with the fardbeyan given by the said witness before the police, it is revealed that, for the first time, the said witness has narrated story before the court that when his father left the house and gone to the market, he was present in the house with his mother and after his father left the house, he heard the conversation made by Chandrika Rai on telephone and, thereafter, he left his house with his cousin brother Munna. They went to the market and informed Kamta Rai i.e. father of Nitesh about the telephone talk made between Chandrika Rai and another. The said aspect is also not disclosed by the said witness when his further statement was recorded by the police during

21/25 investigation. The Investigating Officer (PW-7), Harish Chandra Thakur also confirmed the same during his cross-examination. 19.1. Similarly, PW-3 Kailash Rai, PW-4 Bhagya Narayan Rai have also stated certain aspects for the first time before the court. The Investigating Officer also confirms the same in his cross-examination.

20.

Thus, from the aforesaid, it is clear that the aforesaid witnesses have improved their version and stated new story for the first time before the court. The defence has also able to prove the major contradictions in the deposition of the said witnesses. Thus, it can be said that there is an improvement and contradiction in the deposition of the prosecution witnesses, who are claimed to be eye-witnesses 21.

From the deposition of so-called eyewitnesses, it is further revealed that as per the version of the said eye-witnesses, firing took place from the left side of the motorcycle on which Kamta Rai was sitting with Raman Rai and the said firing took place from distance of 7-9 feet. However, if the deposition given by PW-8, Dr. Bipin Kumar and postmortem report are examined, it is revealed that as per the said witness, the injuries sustained by the deceased, it can be said that firearms were used from close range i.e. within 1-3 feet

22/25 and the firearms were used from the front side of the deceased. It is further revealed that the injuries on the body of the deceased can cause profuse bleeding and if the medical aid is not given, looking to the injuries, in normal course, death will cause within very short time. It is also revealed that exit wounds are at upper level in comparison to entry wounds. 21.1. Thus, from the medical evidence produced by the prosecution, it can be said that the medical evidence does not corroborate the version given by the ocular witnesses. 22.

At this stage, it is also pertinent to note that as per the case of the eye-witnesses, the injured Kamta Rai was taken on the motorcycle by two prosecution witnesses to his house where they stayed for 10-15 minutes. Thereafter, the injured was taken to the Medical College, Muzaffarpur initially in tempo and, thereafter, in ambulance. The injured succumbed to the injuries when he reached to the hospital at about 7:00 p.m. Thus, from the evidence produced by the prosecution, it can be said that injured Kamta Rai died after three hours from the time of occurrence. At this stage, it is to be recalled that as per the case of the first informant, incident took place at 4:00 p.m. and he succumbed to the injuries at 7:00 p.m. Once again, at this stage, if the deposition given by the doctor (P.W.8) is once again

23/25 examined, it is clear that looking to the injury sustained by the deceased that there would be profused bleeding and the death, in normal course, would occur within very short time, if medical aid is not given. In the present case, it is revealed that the medical aid was not given to the injured during these three hours.

23. It would further emerged from the record that the Investigating Officer (PW-7) had stated that he got the information about the incident on telephone and, therefore, the said aspect was recorded in the station diary and, thereafter, he reached at the place of incident around 6:00 p.m. He remained there during entire night. When he reached to the place of occurrence, from the people gathered, he came to know about the name of the injured and the manner in which the incident took place. The said aspect he had mentioned in his case diary. However, it is pertinent to note that nobody had disclosed the name of present appellant or the other assailants. Thus, the Investigating Officer was aware about the commission of the cognizable offence committed by unknown persons in which one person sustained injury by firearms. The name of injured was also disclosed to him. In spite of that, the said information was not considered as first information report.

24/25 24.

It further transpires that PW-7, Harish Chandra Thakur, the Investigating Officer of the case though noticed certain blood stains at the place of occurrence, he did not collect the blood-stained soil for the purpose of necessary analysis. The said witness also admitted during crossexamination that he did not find any empty cartridges, bullet or pellet at the place of occurrence.

25. Thus, the prosecution has tried to contend that because of the land dispute, an enmity between Chiranjivi and Kamta Rai and because of the dispute with regard to the road between Chandrika Rai and Kamta Rai (deceased), the accused have killed Kamta Rai. However, the prosecution has failed to prove the same by leading cogent evidence. Even otherwise, when the version given by so-called eye-witnesses is not required to be believed in view of the medical evidence and other circumstances discussed hereinabove, the aforesaid aspect is not very relevant. Even otherwise also, when there is enmity between the parties, there are chances of false implication. 26.

In view of the aforesaid discussions, we are of the view that the prosecution has failed to prove the case against the appellant beyond reasonable doubt and, therefore, the learned Trial Court has committed grave error while passing

25/25 the impugned judgment and order.

27.

The appeal is allowed. The impugned judgment of conviction dated 24.03.2015 and the order of sentence dated 01.04.2015 passed by the learned Adhoc Additional District and Sessions Judge-1st, Sitamarhi in Sessions Trial No. 11 of 2013/ 2 of 2013 arising out of Runnisaidpur P.S. Case No. 195 of 2012 is set aside.

28.

The appellant, namely, Bhantu Rai @ Mantu Rai is acquitted of the charges levelled against him. Since he is in jail, he is directed to be set at liberty forthwith, if his appearance is not required in any other case. 29.

The amount of fine paid by the appellant be returned to him.

(Vipul M. Pancholi, J.) (Chandra Shekhar Jha, J.) Sanjeet/- Shahnawaz/- AFR/NAFR NAFR CAV DATE NA Uploading Date 30-08-2023 Transmission Date 30-08-2023