IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (DB) No.972 of 2018 Arising Out of PS. Case No.-25 Year-2016 Thana- MOKAMAH District- Patna ====================================================== Nawal Rai @ Budhiya, Son of Late Dewan Rai, Resident of Village- Mekara, P.S.- Mokama, District- Patna. ... ... Appellant Versus The State of Bihar ... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 989 of 2018 Arising Out of PS. Case No.-25 Year-2016 Thana- MOKAMAH District- Patna ====================================================== Sambhu Paswan @ Samrat, Son of Late Lagan Paswan @ Ram Lagan Paswan, Resident of village- Mekara Dih, P.S.- Mokama, District- Patna. ... ... Appellant Versus The State of Bihar ... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 1042 of 2018 Arising Out of PS. Case No.-25 Year-2016 Thana- MOKAMAH District- Patna ====================================================== Indal Rai, son of Late Devan Rai, Resident of Village - Mekara, Naya Tola, Police Station - Mokama, District - Patna. ... ... Appellant Versus The State of Bihar ... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 1065 of 2018 Arising Out of PS. Case No.-25 Year-2016 Thana- MOKAMAH District- Patna ====================================================== Arun Rai, Son of Late Devan Rai, Resident of Village- Mekara, Naya Tola, Police Station- Mokama, District- Patna. ... ... Appellant Versus The State of Bihar ... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 1159 of 2018 Arising Out of PS. Case No.-25 Year-2016 Thana- MOKAMAH District- Patna ====================================================== Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 2/27 Manoj Rai S/o Ram Chnder Rai @ Chander Rai, R/o Village-Makera Ward No. 7, Nayatola, P.S. Mokama, Distt. Patna. ... ... Appellant Versus The State of Bihar ... ... Respondent ====================================================== Appearance : (In CRIMINAL APPEAL (DB) No. 972 of 2018) For the Appellant/s : Mr. Udbhav, Advocate Mr. Tej Narayan Singh, Advocate Mr. Harsh Kumar Singh, Advocate For the Respondent/s : Mr. Dilip Kumar Sinha, APP (In CRIMINAL APPEAL (DB) No. 989 of 2018) For the Appellant/s : Mr. Udbhav, Advocate Mr. Tej Narayan Singh, Advocate Mr. Harsh Kumar Singh, Advocate For the Respondent/s : Mr. Dilip Kumar Sinha, APP (In CRIMINAL APPEAL (DB) No. 1042 of 2018) For the Appellant/s : Mr. Udbhav, Advocate Mr. Tej Narayan Singh, Advocate Mr. Harsh Kumar Singh, Advocate For the Respondent/s : Mr. Dilip Kumar Sinha, APP (In CRIMINAL APPEAL (DB) No. 1065 of 2018) For the Appellant/s : Mr. Udbhav, Advocate Mr. Tej Narayan Singh, Advocate Mr. Harsh Kumar Singh, Advocate For the Respondent/s : Mr. Dilip Kumar Sinha, APP (In CRIMINAL APPEAL (DB) No. 1159 of 2018) For the Appellant/s : Mr. Udbhav, Advocate Mr. Tej Narayan Singh, Advocate Mr. Harsh Kumar Singh, Advocate For the Respondent/s : Mr. Dilip Kumar Sinha, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD and HONOURABLE MR. JUSTICE SOURENDRA PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD) Date : 28-03-2025 These appeals have been preferred for setting aside the judgment of conviction dated 17.07.2018 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 24.07.2018 (hereinafter referred to as the ‘impugned order’) passed by learned Additional District and Sessions Judge-I, Badh, Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 3/27 Patna (hereinafter referred to as the ‘learned trial court’) in Sessions Trial No. 523 of 2016 arising out of Mokama P.S. Case No. 25 of 2016. 2. By the impugned judgment, the appellants have been convicted for the offences punishable under Sections 302/34, 120B/34 and 201/34 of the Indian Penal Code (in short ‘IPC’). Further, appellants Naval Rai @ Budhiya, Manoj Rai and Shambhu Rai have been convicted for the offences punishable under Section 27 of the Arms Act. The appellants have been ordered to undergo rigorous imprisonment for life with a fine of Rs.20,000/- under Section 302/34 IPC, rigorous imprisonment for ten years with a fine of Rs. 10,000/- under Section 120B read with Section 115 IPC and rigorous imprisonment for seven years with a fine of Rs. 10,000/- under Section 201 IPC. Further, appellants Naval Rai @ Budhiya, Manoj Rai and Shambhu Rai have been ordered to undergo rigorous imprisonment for three years with a fine of Rs. 10,000/- under Section 27 of the Arms Act. In default of payment of fine, all the appellants have to further undergo rigorous imprisonment for nine months. All the sentences are to run concurrently. Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 4/27 Prosecution Case 3. The prosecution story is based on the fardbeyan of Babu Prasad Rai @ Jhotu Rai (PW-6) recorded by S.I. Shrikant Bharti (PW-9) of Mokama Police Station on 30.01.2016 at 4:00 PM near Mekra Ghat. In his fardbeyan, the informant has stated that last year in the month of September 2015, his co-villager Nawal Rai @ Budhiya shot at and injured his only son Lakad Rai for which he had filed a case against Naval Rai @ Budhiya in Mokma Police Station. After few months, Naval Rai @ Budhiya, along with his own brothers Arun Rai and Indal Rai used to come to his house regularly and started pressuring them to compromise the case and used to say that if they do not compromise, then its result will be bad. It is further alleged that on 30.01.2016, the informant was grazing buffaloes in Mekra Diara towards north of his cattle-shed and his son Lakad Rai was cutting grass towards south of the cattle-shed. Around 12.00 – 1:00 in the afternoon, Ganga Rai (PW- 1), son of late Rameshwar Rai @ Pujari Rai came to him and informed that his son Lakad Rai has been caught by Nawal Rai @ Budhiya, Manoj Rai, Shambhu @ Samrat Paswan and all the above are asking him to compromise some case and are abusing him and they have tied his hands and took him towards Ganga Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 5/27 Ghat. On hearing this, the informant quickly ran towards South Ganga Ghat and as soon as he reached near Ganga Ghat, he saw that Naval Rai @ Budhiya and with him Samrat Paswan and Manoj Rai were taking his son Lakad Rai in a boat and were going fast towards South in Ganga river. As soon as the boat reached the middle of Ganga river, three gunshots were heard. Naval Rai @ Budhiya, Shambhu @ Samrat Paswan and Manoj Rai shot and killed informant’s son Lakad Rai and threw him in Ganga river. After that all three of them fled towards South Ganga Ghat. The informant also boarded a boat and search went in for his son Lakad Rai in Ganga river, but could not find him. After that he reached Ganga Ghat towards Mekra village and informed the local villagers and then the police also reached there after getting the information. The informant believes that Nawal Rai @ Budhiya, Arun Rai, Indal Rai, Shambhu @ Samrat Paswan and Manoj Rai conspired and as a part of conspiracy, they shot dead his son Lakad Rai and threw his body in the river Ganga with the intention of hiding it. 4. On the basis of fardbeyan, Mokama P.S. Case No. 25 of 2016 dated 30.01.2016 was registered under Sections 341, 506, 302, 201 and 120B IPC and Section 27 of the Arms Act. After investigation, Police submitted chargesheet bearing No. 50 of 2016 Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 6/27 dated 29.02.2016 against all the accused, namely, (1) Nawal Rai @ Budhiya, (2) Arun Rai (3) Indal Rai (4) Manoj Rai and (5) Shambhu Paswan @ Samrat under Sections 341, 506, 302, 201 and 120B IPC and Section 27 of the Arms Act. On the basis of this chargesheet, learned Magistrate took cognizance of the offences and committed the records to the court of Sessions on 18.06.2016. After receiving the records, Sessions Trial No. 523 of 2016 was registered. On 10.11.2016, charges were framed under Sections 302/34, 120B/34, 201 and 506 IPC and Section 27 of the Arms Act against Naval Rai @ Budhiya, Indal Rai, Manoj Rai and Shambhu Paswan @ Samrat and on 11.11.2016 against Arun Rai. Charges were read over and explained to the appellants in Hindi to which they pleaded not guilty and claimed to be tried. 5. In course of trial, the prosecution examined as many as nine witnesses and exhibited several documents to prove the prosecution case. The defence also exhibited some documents. The list of the prosecution witnesses and the exhibits are being shown hereunder in tabular form:- List of Prosecution Witnesses:- PW-1 Ganga Rai PW-2 Lallu Rai PW-3 Dhanik Rai PW-4 Tuso Rai PW-5 Ramkaran Rai Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 7/27 PW-6 Babu Prasad Rai @ Jhotu Rai (informant) PW-7 Dr. Arun Kumar PW-8 Rahul Kumar PW-9 Shrikant Bharti (I.O.) List of Exhibits Ext-1 P.M. Report Ext-2 QnZC;ku Ext-2/1 QnZC;ku ij i`’Bkadu Ext-3 vkjksi i= Ext-4 vkSipkfjd izkFkfedh Ext-5 Ekksdkek Fkkuk dk.M la0 171@15 dk F.I.R dk izekf.kr izfr Ext-6 Ekksdkek Fkkuk dk.M la0& 39@14 Findings of the Learned Trial Court 6. Learned trial court after analysing all the evidences on the record found that there is prior enmity between appellants’ family and informant’s family and the accused had earlier also tried to kill the deceased Lakad Rai. Learned trial court found that first of all, the accused persons pressurised the deceased for compromising Mokama P.S. Case No. 171 of 2015 and when they failed to do so, they, with common intention, caught hold of the deceased and assaulted him, thereafter, took him in a boat, in the mid of river, they shot him dead and threw his dead body in the river which was recovered on 14.02.2016. 7. Learned trial court found that the charges under Sections 302/34, 120B/34, 201/34 IPC and Section 27 of the Arms Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 8/27 Act have been proved by the prosecution beyond all reasonable doubt. Hence, Nawal Rai @ Budhiya, Manoj Rai, Sambhu Paswan, Indal Rai, Arun Rai have been held guilty of the offences punishable under Sections 302/34, 120B/34 and 201/34 IPC. Accused Nawal Rai @ Budhiya, Manoj Rai and Sambhu Paswan have also been held guilty of the offence punishable under Section 27 of the Arms Act. Submissions on behalf of the Appellants 8. Learned counsel for the appellants has assailed the impugned judgment and order on various grounds. It is submitted that in this case although the prosecution has examined nine witnesses, some of the prosecution witnesses, namely, Ganga Rai (PW-1), Lallu Rai (PW-2), and Dhanik Rai (PW-3) have been declared hostile as they did not support the prosecution case. Out of these three witnesses, PW-1 happens to be a material witness as it would appear from the fardbeyan of Babu Prasad Rai @ Jhotu Rai (P-6) that it was PW-1 who came to him in Mekra Diara area and informed him that his son has been caught hold of by Nawal Rai @ Budhiya, Manoj Rai and Sambhu Paswan @ Samrat and these three persons were talking to him with regard to compromise of a case, they were abusing him and thereafter, they had tied his hands and took him towards Ganga Ghat. It is submitted that the Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 9/27 fact that PW-1 had not supported the prosecution case would prove fatal to the prosecution. 9. Learned counsel further submits that another witness namely, Tuso Rai (PW-4) is not an eye witness to the facts and circumstances of the case. He has stated that he heard while going to Mekra Dih village that Lakad Rai has been killed. Nawal Rai, Manoj and Sambhu Paswan shot him dead and fled away. Learned counsel submits that this witness claims that he has put his signature on the inquest report after the dead body was found in Bind Toli (east), he had given his thumb impression. It is submitted that the inquest report has been suppressed by the prosecution, therefore, the place from where the dead body was found has not been duly proved. 10. It is submitted that Ramkaran Rai (PW-5) claims to be an eye witness of the occurrence. He had put his left thumb impression on the fardbeyan. He claims to have seen Nawal, Manoj and Sambhu assaulting Lakad Rai and Lakad Rai was being brought from Diara area after tying his hands. He claims that Lakad Rai was taken on a boat in Gangaji towards south and in the mid water, he heard three rounds of firing. He claims that after shooting, the deceased was thrown in the water. He claims that at that time, Ram Rai and Naveen Rai (both not examined) were also Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 10/27 present. It is submitted that on bare perusal of the statement of PW-5, it would appear that he does not talk of the presence of Ganga Rai (PW-1) and Babu Prasad Rai @ Jhotu Rai (PW-6). This witness is full brother of PW-6. He has stated that four witnesses in this case are the family members. This witness has stated that he had put his thumb impression in the case which was lodged by Babu Prasad (PW-6) but he cannot say as to what were written. He has stated that prior to lodging of the case by PW-6, he had no talk with him and he had no meeting with him. Learned counsel submits that it seems highly improbable that PW-5 and PW-6 both claimed themselves eye witnesses to the occurrence and they saw three persons at the bank of river and they claimed that they had gone in search of the dead body of Lakad Rai but PW-5 and PW-6 who are full brothers had no meeting with them prior to recording of the fardbeyan. The fardbeyan was recorded after about 4-5 hours of the occurrence. 11. As regards the evidence of the informant (PW-6), it is submitted that he has changed the prosecution story in course of trial. In his fardbeyan, he has clearly stated that it was Ganga Rai (PW-1) who had come to him while he was grazing his she-buffalo towards north to his bathan in Mekara Diara area and informed him about the occurrence to the extent that his son Lakad Rai had Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 11/27 been caught hold of by the three accused persons, they had tied his hands and he was being abused. It was PW-1 who had informed PW-6 that the three accused persons had taken away Lakad Rai towards Ganga Ghat after tying his hands but in course of trial, PW-6 has not mentioned the name of Ganga Rai (PW-1). He has claimed that he was grazing she-buffalo and his son was cutting grass in the south to the Dera, the three accused persons caught hold of him and they took him assaulting towards the bank of Gangas, this witness claimed that he went from behind on which Nawal @ Budhiya told that if Budhwa will come he would be killed. Whereafter, he got frightened and stayed at some distance. The attention of this witness was drawn towards his previous statements made before Police in which he had not stated that Nawal, Manoj and Sambhu had come and all the three caught hold of his son and took him towards Gangas by assaulting and he reached from behind. The I.O. who has been examined as PW-9 has contradicted PW-6 and has stated that PW-6 had not stated before him that Nawal, Manoj and Sambhu had caught hold of him (deceased) and took him towards Gangas and he had reached from behind. The I.O. has stated that he found from the fardbeyan and in restatement of the informant that the informant had got information about the occurrence from Ganga Rai. Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 12/27 12. Learned counsel submits that there is a very important aspect of the matter which would be evident from paragraphs ‘2’ and ‘3’ of the deposition of the informant (PW-6). In his cross-examination, PW-6 has stated that on the statement which he had given before Police, he, Rahul and Ramkaran had put their thumb impression. In paragraph ‘3’, he has stated that his statement were twice recorded by Police. In the second time, on the statement, he and Ramkaran had given their thumb impression. Learned counsel submits that the present fardbeyan is the statement which was recorded in the second occasion. It bears the thumb impression of the informant and Ramkaran only. What happened to the statement which was recorded at first place and on which the informant, Rahul (PW-8) and Ramkaran (PW-5) had put their thumb impression is not known. Thus, the first version of the case has been suppressed by the prosecution. The I.O. (PW-9) has stated that information with regard to the occurrence was given to the officer incharge of the Police Station but the station diary in which the information was recorded has not been proved. In this regard, his statement in paragraphs ‘2’ and ‘3’ have been pointed out. Learned counsel submits that the I. O. has also given the description of the place of occurrence in Mekra Ghat. He has admitted in paragraph ‘4’ of his deposition that he had not Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 13/27 mentioned about the presence of any bathan in course of his inspection of the place of occurrence. The I. O. had not even investigated as to who was the owner of the boat and he had not seized the boat. The I. O. has admitted that he had not inspected the place where the deceased was said to be engaged in cutting the grass. 13. Learned counsel submits that the another witness who claims himself an eye witness to the occurrence is Rahul Kumar (PW-8). He is the brother of the deceased but he had not tried to save the deceased. He claims his presence in Mekra Diara but from deposition of PW-6 itself it would be evident that he was told about the occurrence later on by PW-6. PW-8 has stated that thousands of people are engaged in cutting of grass in Diara. He has stated that the place where he was cutting the grass was shown to Police, it was Diara and forest (jangal) south to the jangal is the river Gangas. 14. Learned counsel further submits that in this case, it appears from the evidence on the record that the murder took place somewhere else. There is no proof that the body was decomposed in water. It is also not proved that the deceased died of firearm injuries. Nobody has identified the dead body. The I. O. claimed that the dead body was identified on the basis of the pieces of Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 14/27 clothes but the learned trial court has entered into the case diary and has recorded that the fact that one of the little finger of the deceased was chopped off reveals that it was Lakad Rai who had been earlier attacked and had suffered firearm injury on his left palm. On the contrary, the Doctor did not find any injury on the palm of the deceased. It is submitted that these facts have been picked up by the learned trial court without there being any evidence adduced in course of trial. There is no independent witness of the occurrence. The fact that there was a prior enmity between the deceased and the accused persons has prevailed upon the learned trial court in passing of the impugned judgment and order. 15. Learned counsel submits that even at the stage of Section 313 Cr.P.C., all the incriminating circumstances have not been put to the accused. Though the appellants Arun Rai and Indal Rai were not present in the boat but during their statement under Section 313 Cr.P.C., they were also put the same and one question. 16. According to learned counsel, the FIR is anti-dated and anti-timed. It is not known how the dead body reached the village Brahpur Bind Toli. Learned counsel has relied upon the judgment of the Hon’ble Supreme Court in the case of Syed Ibrahim versus State of A.P. reported in (2006) 10 SCC 601 to Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 15/27 submit that the I.O. has contradicted the material witnesses and as such, conviction of the appellants relying upon the evidence of the prosecution witnesses who are not only closely related to each other but are highly inimical to the accused, would not be safe. Submission on behalf of the State 17. Learned Additional Public Prosecutor for the State has submitted that the prosecution case has been supported by the informant (PW-6) and there are at least two eye witnesses, namely, PW-5 and PW-8 who have come in support of the prosecution. It is submitted that the testimony of the related and inimical witnesses cannot be completely thrown out and discarded, though they are required to be considered with all circumspection and care. 18. Towards the end of his submissions, learned Additional Public Prosecutor for the State accepts that in his deposition, the informant has stated in paragraph ‘2’ that he, Rahul and Ramkaran had put their thumb impression on the statement made before Police. This statement has not been brought on record in course of trial. The fardbeyan (Ext. 2) is the second statement on which the informant and Ramkaran had put their thumb impression. Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 16/27 Consideration 19. Having heard learned counsel for the appellants, learned Additional Public Prosecutor for the State and upon perusal of the trial court records, we find that in this case the fardbeyan (Ext. 2) which is the basis of the present case has been recorded by S.I. Srikant Bharti on 30.01.2016 at 16:00 hours (4:00 pm) at near Mekra Ghat. On this fardbeyan, there are two thumb impressions. In the right hand side the thumb impression is said to be of Babu Prasad Rai @ Jhotu Rai (PW-6) whereas in the left hand side the thumb impression is said to be of Ramkaran Rai. Nobody has identified the thumb impression. The I. O. (PW-9) has stated that on receiving information that one person has been murdered and his dead body has been thrown in the river Gangas in Mekara, he reached with the police force where he recorded the fardbeyan of Babu Prasad Rai @ Jhotu Rai (PW-6). Several villagers met there. PW-9 has stated that on the fardbeyan, he had taken thumb impression of the Gotiya of PW-6. At his instance the fardbeyan has been marked Exhibit-2 and the endorsement made thereon has been marked Exhibit ‘2/1’. In his cross-examination, PW-9 has stated that information with regard to the occurrence was received by the Officer incharge of the police station on his mobile and the name of the criminals were also disclosed but the Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 17/27 person who disclosed the name of the accused persons to the Officer incharge, about him the I. O. did not inquire anything. He did not try to find out the mobile number and address of the person who had given information to the officer incharge of the police Station. This Court finds that the I. O. claimed that the information was recorded in the station diary by the officer incharge of the Police Station but neither the officer incharge of the police station has been examined nor the station diary has been proved in evidence. 20. This Court further finds that in the fardbeyan, the informant claimed that he was informed by Ganga Rai (PW-1) about the occurrence in which the three accused persons had caught hold of the deceased, had tied him by his hands and they were taking him towards Ganga Ghat. PW-1 has not supported the prosecution case and hence, he has been declared hostile but in course of trial, the informant (PW-6) has changed the prosecution story. He has not mentioned the name of PW-1 in his examination-in-chief and has come forward as an eye witness of the entire occurrence but the I.O. has contradicted him in paragraph ‘23’ of his deposition. The I. O. has stated that PW-6 had not stated before him that Nawal, Manoj and Sambhu all the three had come and had caught hold of him (deceased) and took Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 18/27 him assaulting towards the bank of Gangas and that he had reached there from behind. The I. O. (PW-9) has further stated that the informant (PW-6) had also not said that the accused persons told that if budhwa will come, he will be killed and he had also not stated that they had taken away Lakad in a boat, killed him in the mid of river and threw his dead body and fled towards north Mekra Dih. We, therefore, find that the I. O. has contradicted the informant (PW-6) on material aspect of the matter. This leads to a highly doubtful situation with regard to the presence of the informant (PW-6) in the Mekra Diara. 21. We find from the evidence of Ramkaran Rai (PW-5) that he claims his presence sitting at the north end of Gangas from where he had seen the occurrence which was taking place in Diara. He claims that he was involved in the search of the dead body and police came at 4 O’clock. According to him, the cause of occurrence is the murder of his son which took place in the year 2014. Lakad Rai was shot at by Nawal and in the said case, Indal Rai, Arun Rai and Nawal Rai were pressurizing for a compromise. He has stated that police inquired from him and his brother Babu Prasad. This witness has stated that he was the informant in the murder case of Gulla Rai but who killed Gulla and why, he cannot say. This Court finds that PW-5 had given his thumb impression Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 19/27 on the case lodged by PW-6 but he claims that prior to lodging of the case, he had no talk with Babu Prasad (PW-6) and he had no meeting with him. In paragraph ‘11’ of his deposition, he has stated that at 4 O’clock police had come, there were several people from the village but he was not present. 22. This Court finds that his thumb impression is present on the fardbeyan recorded at 4:00 pm on 30.01.2016. Statement of PW-5 is that when police had come at 4 O’clock, there were several villagers but he was not present, in such circumstance presence of his thumb impression (not identified by anyone) on the fardbeyan becomes doubtful. The contention of learned counsel for the appellants that the FIR seems to be ante-dated and anti- timed cannot be ignored. PW-5 has not said about the presence of PW-6 either in Mekra Diara in the southern side of the bank of the river Gangas at the time of occurrence. Thus, to this Court, the presence of PW-5 as well as PW-6 at the bank of river Gangas and their claim to have seen the occurrence as eye witnesses become highly doubtful. 23. This Court finds from the evidence of PW-6 that his first version before Police on which he, Rahul and Ramkaran had put their thumb impression has been suppressed. In paragraph ‘2’ of his deposition, PW-6 has stated that on the statement which he Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 20/27 has given before police, he, Rahul and Ramkaran had put their impression. In paragraph ‘3’ of his deposition, he has again stated that statement before police was recorded twice. In the second statement, he and Ramkaran had given thumb impression. It is, therefore, evident that the prosecution has not only failed to bring on record station diary entry which was recorded by the Officer-in- Charge of the police station on the basis of the telephonic call received by him from someone in which the name of the criminals were disclosed, as claimed by the I.O., even the first version of the informant (PW-6) has not been brought on record. This approach of the prosecution would create huge doubt over the authenticity of the prosecution story and the possibility of ante-dating and ante- timing of the fardbeyan is very much present. 24. The another aspect which is evident from the statement of the informant (PW-6) is that according to him, in paragraph ‘7’ of his deposition, the dead body was found in river Ganges. He has further stated in paragraph ‘8’ that the dead body was not decomposed, then he has stated in paragraph ‘9’ that some fish had eaten the dead body. Contrary to his claim in the examination-in-chief that Lakad was caught hold of by all the three accused, he was tied and then was being taken towards the bank of Ganges assaulting him and thereafter he was made to Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 21/27 board a boat and in the middle of the river he was shot dead and his dead body was thrown in Ganges, in the cross-examination (paragraph ‘10’), the informant says that at the place of occurrence he had seen ‘Hkkx nkSM+’. Lakad was fleeing. Budhiya and Naval caught hold of him. He says that three rounds of firing had taken place and his son suffered three shots, in that condition. The informant has further stated that Ramkaran (PW-5) has continuous enmity with the accused persons for last one year. In paragraph ‘22’ of his deposition, he has stated that Bulla Rai was his nephew but he was not aware that Bulla had murdered the nephew of Lakhinder. The defence suggested to this witness that he had not seen the occurrence and the occurrence has not taken place at the place given by him. 25. This Court finds that when the I.O. (PW-9) was examined in course of trial, he has given a statement that he got the dead body on 14.02.2016 (evening) in village Barahpur. The dead body was identified on the basis of some pieces of clothes of the shirt and pant. His little finger was found cut and both the hands of the dead body were tied behind. I.O. had prepared the inquest report but the same has not been exhibited in course of trial. There is no seizure list of the pieces of clothes and the rope (jLlh). The I.O. had not prepared any najri naksha of the place of Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 22/27 occurrence. He has stated that as per paragraph ‘24’ of the case diary, in course of his inspection on 30.01.2016, he had not found any hut whereas PW-6 has stated about a cattle shed in his fardbeyan. The dead body was decomposed which he had recorded in the case diary. He did not find the identity mark godana (tattoo) on the dead body of the deceased. The I.O. had not recorded any statement of the witnesses either in the fardbeyan or in their statements regarding the age of the deceased. He has stated that the witness Jhotu Rai @ Babu Prasad Rai (PW-6) had not stated before him that Nawal, Manoj and Shambhu had caught hold of him and had taken him towards Ganges river assaulting and he reached from behind. He had also not stated that cq<+ok vk;sxk rks ekj nsaxs. He had also not stated that they had taken Lakad in the boat, killed him in the middle of the river and threw him then fled away towards North Mekara Dih. The I.O. has further stated that in his statement, the informant had not stated that Ramkaran, Rahul and Ravinder were present there. 26. The I.O. had been suggested that he had suppressed the first version, the dead body was not of Lakad Rai and the place of occurrence described is not the actual place of occurrence and that is the reason why he did not find any evidence of occurrence Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 23/27 at the so-called place of occurrence. PW-9 denied the suggestions of the defence. 27. To this Court, it appears from a combined reading of the evidence of the informant (PW-6) and the I.O. (PW-9) that while the informant has stated in his examination-in-chief that he had been searching the dead body of Lakad but did not find, in his cross-examination (paragraph ‘7’), he has stated that the dead body was found in river Ganges. He has stated that he had informed the Mokama Police Station after finding of the dead body. PW-6 has clearly stated that regarding the occurrence, he had informed Sarpanch, Mukhiya Upender and Suresh Sahni. He has also stated that he informed the members of the family Ramkaran, Bipin, Russo, Rahul and Ravi. Contrary to this claim, the I.O. has stated that he got the dead body in village Barahpur on 14.02.2016. According to the informant, the dead body was not decomposed but he has stated that the body was eaten by some fish. It is very much clear from the evidence on the record that the dead body which was found in village Barahpur was not duly identified as that of Lakad Rai. Neither the inquest report has been brought on record nor the pieces of the clothes and ropes were seized. The age of the deceased was not known and no independent witness has come to say that it was the dead body of Lakad Rai. The place Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 24/27 from where the dead body was recovered is highly doubtful as there are two different versions of the place from where the dead body was found. 28. At this stage, we would also take note of the evidence of the Doctor (PW-7) who conducted the autopsy on the dead body on 15.02.2016 at 7:30 AM. The findings of PW-7 are recorded as under:- “External – Mouth was open, eyes closed, body decomposed. The whole body decomposed One whole like injury over front of chest below right nipple size 1”x1/2” hole like injury medium side of front of chest right side blow nipple 1”x1/2” Two hole over back below chest 2”x1/2” and 2½”x1/2” The body was decomposed, hairs over head, eye lashes were not present, devoid of little finger of left hand Flushes from body were not present. Abdomen – distended. Cause of death- hemorrhage and shock due to cardio failure. Cause of death- gun shot injury Time since death :- more than 48 hours” 29. In his cross-examination, PW-7 has stated that he had not found blackening or tattooing or charring around the wound. Injury no.1 and 2 both were adjacent to each other. He has stated that the injury found on the back was the injury of exit. Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 25/27 Most importantly, the Doctor has stated that the dead body was wholly decomposed which could not have been identified easily but it is not said that the dead body was decomposed in water. The Doctor had not found any injury on the palm of the deceased. From the postmortem report (Exhibit ‘1’), it is evident that there were two injuries which were adjacent to each other. This does not corroborate the claim of the informant (PW-6) that three rounds of firing were made on the deceased while fleeing away, this Court would, therefore, conclude that in this case, the prosecution has failed to prove the place of occurrence and the manner of occurrence. The informant (PW-6) and his brother Ramkaran (PW- 5) are highly inimical witnesses and their testimonies are self- contradictory which do not inspire confidence of the Court. In view of the statement of the informant in paragraph ‘6’ of his deposition, he had informed about the occurrence to the members of his family namely Ramkaran, Bipin, Russo, Rahul and Ravi, therefore, the claim of Ramkaran (PW-5) and Rahul (PW-8) that they are eyewitnesses to the occurrence cannot be believed. 30. At this stage, we also find that the learned trial court while recording the statement of the accused-appellant under Section 313 CrPC put same and one question to all the accused. Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 26/27 We reproduce the Section 313 CrPC statement of Arun Rai as under:- “iz”u %& lkf{k;ksa dk lk{; vius lquk gS\ mŸkj %& th gkWA iz”u %& lkf{k;ksa dk dFku gS fd fnukad 30 tuokjh 2016 dks le; yxHkx 12%00 cts fnu esa ydM+ jk; dks vkius vU; vfHk;qDrksa ds lkFk ,djk; gksdj ,oa ‘kM;U= jpdj xkyh&xykSt ,oa ekjihV djrs gq, xzke&esdjkMhg] Fkkuk eksdkek] ftyk & iVuk fLFkr xaxk unh ds e/;e esa uko }kjk ys tkdj xksyh ekj dj gR;k dj fn;k ,oa lk{; feVk us ds fu;r ls yk”k dks xaxk unh esa Qsad fn;kA mŸkj %& th ughA iz”u %& lQkbZ esa D;k dguk gS\ mŸkj %& funksZ’k gw¡A” 31. It is nowhere the prosecution’s case that Arun Rai and Indal Rai were present at the time when Lakad Rai was shot dead and his dead body was thrown in river Ganges. The allegation was that Arun Rai and Indal Rai had been also pressurising the deceased to enter into a compromise in an earlier case. Despite this, Arun Rai and Indal Rai both were asked the same and one question which clearly shows that the accused- appellants were not put to explain all the incriminating circumstances brought by the prosecution against them. 32. In the light of the discussions made hereinabove, we are of the considered opinion that the learned trial court has completely erred in appreciation of the evidences on the record. The prosecution has failed to establish it’s case beyond all Patna High Court CR. APP (DB) No.972 of 2018 dt.28-03-2025 27/27 reasonable doubts and the appellants have made out a case for acquittal giving them benefit of doubt. 33. In result, all these appeals are allowed. The impugned judgment and order of the learned trial court is set aside and they are acquitted of the charges giving them benefit of doubt. 34. The appellants in Cr. Appeal (DB) No. 1042 of 2018, Cr. Appeal (DB) No. 1065 of 2018 and Cr. Appeal (DB) No. 1159 of 2018 are on bail, they and their sureties are discharged from the liability of bail their bonds. The appellants in Cr. Appeal (DB) No. 989 of 2018 and Cr. Appeal (DB) No.972 of 2018 are in jail, they shall be released forthwith, if not wanted in any other case. 35. The trial court records together with a copy of the judgment shall be sent down to the trial court. SUSHMA2/- (Rajeev Ranjan Prasad, J) (Sourendra Pandey, J) AFR/NAFR CAV DATE Uploading Date 08.04.2025 Transmission Date 08.04.2025