IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (DB) No.887 of 2019 Arising Out of PS. Case No.-96 Year-2011 Thana- MUNGER MUFFASIL District- Munger ====================================================== 1. Kailu Yadav, Son of Late Lakhan Yadav, Resident of Village-Taufir Pirphar, P.S-Mufassil, District-Munger. 2. Manish Yadav, Son of Kailu Yadav, Resident of Village-Taufir Pirphar, P.S- Mufassil, District-Munger. ... ... Appellants Versus The State of Bihar ... ... Respondent ====================================================== Appearance : For the Appellant/s : Mr. Bharat Bhushan, Advocate For the State : Ms. Shashi Bala Verma, APP For the Informant : Mr. Siddharth Prasad, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD and HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD) Date : 21-01-2025 Heard learned counsel for the appellants and learned Additional Public Prosecutor for the State as also learned counsel for the informant. 2. This appeal has been preferred for setting aside the judgment of conviction dated 12.06.2019 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 18.06.2016 (hereinafter referred to as the ‘impugned order’) passed by learned Additional Sessions Judge-IV, Munger (hereinafter referred to as the ‘learned trial court’) in Sessions Trial Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 2/27 No. 39 of 2016, CIS No. 39/16 arising out of Muffasil P.S. Case No. 96 of 2011. 3. By the impugned judgment, the appellants have been convicted for the offences punishable under Section 302/149 of the Indian Penal Code (in short ‘IPC’) and under Section 27 of the Arms Act. By the impugned order, the appellants have been ordered to undergo rigorous imprisonment for life under Section 302/149 IPC with a fine of Rs. 2000/- and in default of payment of fine, they have to further undergo simple imprisonment for three months. They have also been ordered to undergo three years’ rigorous imprisonment under Section 27 of the Arms Act with a fine of Rs.2000/- and in default of payment of fine, they have to further undergo simple imprisonment for three months. Both the sentences are to run concurrently. The appellants have been acquitted of the charges under Sections 386, 387 and 342 IPC. Prosecution Case 4. The prosecution story is based on the written application of Rakesh Kumar (PW-5). In his written application, he has stated that on 18.05.2011 at 05:00 PM, the informant along with his younger brother Pintu Yadav, Vipin Yadav and Randhir Yadav were present in the khalihan. In the meantime, (1) Maheshwar Singh, (2) Ramgulam Yadav, (3) Nirodh Yadav, (4) Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 3/27 Mannu Yadav, (5) Manish Yadav, (6) Guddu Yadav, (7) Kaillu Yadav, (8) Yogendra Yadav, (9) Santosh Yadav, (10) Mastan Singh, (11) Pampam Singh, (12) Naim Khan and (13) Jaldhar Singh along with 15-20 unknown persons variously armed surrounded them and while abusing entered into his khalihan. Thereafter, Maheshwar Singh asked the informant to give Rs. 5 lakhs as rangdari and give the licensee weapon, else get ready to die and then Maheshwar Singh shot at Vipin Yadav which hit his leg and ordered other accused persons to kill all of them. On this, Mannu Yadav shot at the eye of Vipin Yadav, thereafter Manish Yadav shot at another eye of Vipin Yadav. Then Kaillu Yadav shot at the right hand of Vipin Yadav. Thereafter, Mastan Singh and Pampam Singh also shot at Vipin Yadav. In the meantime, Pintu Yadav @ Navin Kumar was also shot at but he took out his Licensee Rifle in self defence and jumped into the water and all the accused persons chased Pintu Yadav. Then, Yogendra Yadav shot at him which hit his neck and Santosh Yadav also shot at Pintu Yadav which also hit his neck. After this, Pintu Yadav got drowned in the water and licensee rifle of Pintu Yadav was captured by Guddu Yadav. Thereafter, Ramgulam Yadav, Jaldhar Singh, Nirodh Yadav, Naim Khan, Mastan Singh and Pampam Singh all, with an intention to kill Randhir Yadav, kidnapped him. Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 4/27 The informant alleged that he has suspicion that they would also kill Randhir Yadav. The informant stated that the above occurrence was witnessed by Gyani Kumar, Hindu Yadav and Sangin Yadav. 5. On the basis of this written application, Muffasil (Munger) P.S. Case No. 96 of 2011 dated 20.05.2011 was registered under Sections 147, 148, 149, 342, 323, 302, 386, 387 IPC and Section 27 of the Arms Act against 13 named including these appellants and 15-20 unknown persons. After investigation, Police submitted supplementary chargesheet bearing No. 14 of 2015 dated 23.02.2015 against these appellants under Sections 147, 148, 149, 342, 323, 302, 386, 387 IPC and Section 27 of the Arms Act keeping the investigation pending against (1) Ramgulam Yadav, (2) Mannu Yadav, (3) Santosh Yadav, (4) Mastan Singh (5) Jaldhar Singh, (6) Naim Khan. On the basis of this chargesheet, learned Chief Judicial Magistrate, vide his order dated 25.02.2015 took cognizance of the offences under above-mentioned Sections and on 04.02.2016 after making a separate file of it committed the records of these appellants to the court of sessions. After receiving the records, Sessions Trial No. 39 of 2016 was registered. Charges were read over and explained to the appellants in Hindi to which they pleaded not guilty and claimed to be tried. Accordingly, vide Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 5/27 order dated 06.04.2016, charges were framed under Sections 302/149, 386, 387, 342 IPC and Section 27 of the Arms Act. 6. In course of trial, the prosecution examined as many as eight witnesses and exhibited several documents to prove the prosecution case. The names of the prosecution witnesses and the exhibits are being shown hereunder in tabular form:- List of Prosecution Witnesses PW-1 Lukho Yadav PW-2 Sangin Yadav PW-3 Chano Yadav PW-4 Gyani Kumar Yadav PW-5 Rakesh Kumar (informant) PW-6 Dr. Prem Kumar PW-7 Satyendra Kumar (I.O.) PW-8 Dr. Rajaram Chaudhari List of Exhibits Exhibit ‘1’ Signature on the Written report Exhibit ‘2’ Inquest report of Pintu Yadav Exhibit ‘2/1’ Inquest report of Vipin Yadav Exhibit ‘3’ Post-mortem report of Randhir Yadav Exhibit ‘3/1’ Post-mortem report of Pintu Yadav Exhibit ‘3/2’ Post-mortem report of Vipin Yadav Findings of the Learned Trial Court 7. Learned trial court after considering the entire materials available on the record found that the appellants along with their associates formed an unlawful assembly of more than Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 6/27 five persons in prosecution of common object of murder, they have opened fire on the deceased. Learned trial court found that the prosecution case is supported by other witnesses and doctor. Learned trial court observed that the injuries on the body of the deceased were found in the same manner as stated in the written report and the deposition of witnesses. Learned trial court further found that the the accused persons had full knowledge and intention to kill the deceased persons. Learned trial court found that the injuries caused to all the three persons by gun shots were sufficient to cause their death in ordinary course of nature. Learned trial court, therefore, held these appellants guilty of the offences punishable under Sections 302/149 of the IPC and Section 27 of the Arms Act and sentenced accordingly as mentioned above. 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 Lukho Yadav (PW-1) is a co-villager of the informant, he has not disclosed the name of appellant no.1 in his examination-in- chief as a member of unlawful assembly or a participant in the said crime rather he alleged that Manish and Mannu shot at the deceased. Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 7/27 9. It is further submitted that Sagin Yadav (PW-2) is the brother of the deceased Pintu and Bipin, he has stated that Ramgulam, Maheshwar, Kailu, Yogendra, Manish, Mannu and others surrounded the Khalihan and started indiscriminate firing. He came to know the occurrence only on the next day, therefore, it is evident that he is not an eye witness to the occurrence. 10. It is submitted that Chano Yadav (PW-3) is not an eye witness and Gyani Kumar Yadav (PW-4) has stated that Manish shot at Bipin and Kailu also shot at him on his right hand. He was suggested that on the date of occurrence there was a police encounter for which Maheshkhut P.S. Case No.42 of 2011 was registered and Pintu, Bipin and Randhir were killed in police encounter. 11. Learned counsel submits that Rakesh Kumar (PW-5) who is informant of this case, has stated that Maheshwar Singh fired from his rifle which caused injury on the thigh of Bipin and on his order Kaillu Yadav fired which hit the hand of Bipin and Manish also fired on Bipin which hit his eye. The application was written by Girish Singh who has not been examined. He was also suggested that with regard to Maheshkhut P.S. Case No.42 of 2011. Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 8/27 12. It is submitted that PW-6 and PW-8 are the doctors who had conducted autopsy on the dead body of the Randhir Yadav, Bipin Yadav and Pintu Yadav. 13. PW-7 is the I.O. of this case, he was the investigating officer of Muffasil P.S. Case No.96 of 2011 (the present case) and has accepted in paragraph ‘7’ of his deposition that Bipin and Pintu are accused in Maheshkhut P.S. Case No.41 of 2011 and 42 of 2011. There was a police encounter and firing was made between the deceased and the police. Submissions on behalf of the informant and State 14. On the other hand, learned Addl.P.P. for the State as well as learned counsel for the informant have defended the impugned judgment and order. It is submitted that the learned trial court has examined the evidence brought by the prosecution on the record and has rightly appreciated the same keeping in view the principles of criminal jurisprudence, therefore, the reasoning and rationale provided by the learned trial court cannot be said to be perversed. Consideration 15. We have heard learned counsel for the parties and learned Addl. P.P. for the State as also perused the trial court’s records. Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 9/27 16. In this case altogether eight prosecution witnesses have been examined. Out of these eight prosecution witnesses, PW-6 and PW-8 are the doctors who had conducted autopsy on the dead body of the deceased. PW-7 is the I.O. of the case. PW-1 to PW-5 are the witnesses to the facts and circumstances of the case, therefore, we will examine their depositions in course of trial. 17. Prior to entering into the oral testimonies of the prosecution witnesses, it would be important to take note of certain important facts which are appearing from the records. In this case, the occurrence is said to have taken place on 18.05.2011 at 5.00 PM in the Khalihan of the informant Rakesh Kumar (PW-5). PW-5 claims that he was present at the place of occurrence and some other persons in the neighbourhood, namely, Gyani Kumar, Lukho, Sagin Yadav and other persons were present. It is, however, evident that neither the informant nor the persons named in the written application gave information with regard to the occurrence to the police station on 18.05.2011 or in the morning of 19.05.2011. The inquest reports of Pintu Yadav and Bipin Yadav have been brought on record as Exhibit-2 and Exhibit-2/1 respectively. A perusal of these two exhibits would show that Rakesh Kumar (PW-5) and Gaurav Kumar (not examined) are the witnesses to the inquest reports. The inquest reports have been Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 10/27 prepared on 19.05.2011 at 3.15 PM and 3.30 PM respectively but there is no mention of either any Sanha entry number or the case number on the inquest reports which make it clear that till the time of preparation of the inquest report the prosecution case as disclosed in the written application had not surfaced and the same was still in embryo state. The inquest reports were prepared in the premises of the Sadar Hospital, Khagaria. 18. The postmortem report of the deceased are Exhibit-3, Exhibit-3/1 and Exhibit-3/2 and on perusal of the same again it appears that these dead bodies were brought for postmortem by Chowkidar Kailash Yadav and Rambali Paswan but they have not been examined by the prosecution. The postmortem reports did not bear any case number. Postmortem commenced at 5.00 PM on 19.05.2011, therefore, it is further evident from the postmortem reports that till commencement of the postmortem, the police case was not registered. As regards the delay in lodging of the FIR, in the case of Meharaj Singh (L/Nk.) vs. State of U.P. with Kalu vs. State of U.P. and Others reported in (1994) 5 SCC 188, the Hon’ble Supreme Court has expressed its opinion in paragraph ‘12’ of the judgment which are being reproduced hereunder for a ready reference:- “12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 11/27 appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 12/27 been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8.” 19. In the aforementioned background, we have examined the oral testimonies of the prosecution witnesses. Lukho Yadav (PW-1) has stated that the occurrence took place about 7 ½ years ago. He was collecting the bundles in his Khalihan. At 5.00 PM from eastern side 30-35 persons came and surrounded the Khalihan of Pintu Yadav. They were demanding a rangdari of Rs.5 lacs and rifle which he did not give. On the order of Maheshwar Singh firing was made which hit Bipin Yadav. Pintu Yadav ran then Yogendra Yadav shot at him. Santosh also shot at Pintu Yadav. Pintu had jumped into the river and his rifle had fallen at the bank of the river. Mannu and Manish had shot at Bipin whereafter when all of them were going then Guddu Yadav took away the rifle of Pintu and also took away Randhir Yadav with them. It was rainy. This witness has stated that he had returned to his home, he had informed the people in the night but nobody came. Next day in the morning people came then the dead body of Bipin was found in Khalihan and the dead body of Pintu was found in the Jalkar. The dead body of Randhir was found at a distance of one Kosh. In his cross-examination, this witness has stated that in his statement made before police he had put his thumb impression. In paragraph Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 13/27 ‘2’, he has stated that he got frightened on seeing the accused persons and concealed himself in between the bundles where he remained concealed for 1 ½ – 2 hours. Rain continued for two hours whereafter he went to his house. He could not disclose the khata, kheshra and boundary of the khalihan of Pintu and his own. He was suggested that he had no Khalihan there, therefore, he was unable to say. He has stated that he is of village Taufir Diara and the deceased is also of Taufir Diara. Randhir is of Sonbarsa. Pintu and Bipin are of village Taufir Diara. This witness was suggested by the defence that there was an exchange of firing between Pintu and police party and in respect of that, officer in-charge Pramod of Maheshkhut police station had lodged case no.42 of 2011 dated 18.05.2011 on his own statement. Pintu, Bipin and Randhir were dreaded criminals. He could not say as to how many cases were there against Pintu and Randhir. He has stated that the accused persons had fired 100-200 rounds. He had not given information to Mukhiya, police and Sarpanch about the occurrence after reaching village because it was raining. This witness was also suggested by the defence that he had not seen the occurrence and had made false statements. 20. From the evidence of PW-1, it would appear that even though he claims himself present in his Khalihan near the Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 14/27 Khalihan of Pintu but he is unable to disclose khata, kheshra and boundary of the Khalihan. This Court is of the opinion that even a laymen in the village knows that who are there in the boundary of his Khalihan, therefore, the claim of this witness that his Khalihan is at a distance of 20 Lagga towards west from the Khalihan of the deceased is doubtful. Apart from this, it is evident from his deposition that he had concealed himself in between bundles in the khalihan and he remained concealed for 1 ½ -2 hours whereafter he went to his village. His conduct in not giving any information about the occurrence to the Mukhiya, Sarpanch and police after reaching the village creates huge doubt over the authenticity of his statement as an eye witness. He has claimed that the accused persons had fired 100-200 rounds but from the deposition of the I.O. (PW-7) it would appear that he had not found any blood or cartridge at the place of occurrence. The I.O. had not recorded in the case diary that whose Khalihans are situated in the nearby. In paragraph ‘7’ of his deposition, the I.O. has stated about the recordings in the supervision note wherein it is stated that near the place of occurrence, on the date of occurrence at 11.00 AM, Pintu and Bipin together with other accused persons had resorted to firing on the land of Maheshwar Singh and in this regard an FIR was lodged in Maheshkhut police station. He has further stated that Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 15/27 police force reached whereupon the deceased Pintu and Bipin resorted to firing and fired upon the police. In this regard also one case has been registered. Arvind Singh had handed over the father of the informant with illegal arms and ammunition to police at the place of occurrence. The deceased Bipin and Pintu were accused in Maheshkhut P.S. Case No.41 of 2011 and 42 of 2011. It is, thus, evident that what was suggested by the defence to PW-1 regarding the exchange of firing between the deceased Pintu and police party finds support in the deposition of I.O. (PW-7). 21. Sagin Yadav (PW-2) has stated in his examination- in-chief that on 18.05.2011 at 5.00 PM the occurrence took place. He was in his Khalihan. Ramgulam, Maheshwar, Kailu, Yogendra, Manish, Mannu and others surrounded the Khalihan of Pintu whereafter they started indiscriminate firing in which Pintu, Randhir and Bipin suffered the shots. All were having rifles in their hands, they all died. PW-2 has stated that the deceased Pintu and Bipin were his brothers. His Khalihan is at a distance of 10-20 Lagga from the Khalihan of Pintu and it is situated south to the Khalihan of Pintu. He could not say the Khata, Kheshra and boundary of his Khalihan. He has stated that the accused persons were in 30-35 numbers and they came from east side, they were coming firing. He had not seen whether any firing was done from Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 16/27 Pintu side. In paragraph ‘10’, he has stated that when he saw them coming firing, he got frightened and concealed himself behind the bundles in the Khalihan whereafter he became afraid and went to his house and stayed in his house overnight. He had not given any information to police officers and after taking his meal in the night he slept. He has stated in paragraph ‘11’ that next day when he went to Khalihan then he got the information of the occurrence. His statement was recorded by police after two days. He was not aware of the encounter by Maheshkhut Police Station. From the deposition of PW-2, it is evident that he is not an eye witness to the occurrence. He is closely related to the deceased and he has stated that on seeing the accused persons who were 30-35 in number he had concealed himself behind the bundles and thereafter he had gone to his village. His conduct in saying that after reaching his house he did not inform the occurrence to any police officer and did not give any information in writing to Mukhiya and Sarpanch and then his further statement that he took his meal and went for a sleep shows his conduct which is not natural. His two brothers were killed in the occurrence, still he took his meal in the house and slept during night hours. The true version of this witness may be found in paragraph ‘11’ of his deposition wherein he has stated that on the next day when he Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 17/27 went to Khalihan then he got the information of the occurrence. Thus, it is evident that this witness is not an eyewitness of the occurrence which took place on 18.05.2011. 22. Chano Yadav (PW-3) is another witness who has stated that on 18.05.2011 at 5.00 PM he was in his house. This witness has stated that after hearing the sound of firing from the side of Jalkar he came outside his house and went towards the Jalkar. He had seen 30-35 persons armed with weapons. He has stated that he got frightened and returned back to his home. Next day, when he went to the place of occurrence, he found the dead body of Pintu, Bipin and Randhir. He claimed that he had identified Maheshwar Singh, Guddu Yadav, Naeem Khan, Ramgulam Yadav, Jaldhar Yadav, Mastan Singh, Pampam Singh etc. who were armed with rifle and gun. Later on, he came to know that Maheshwar Singh and his gang had demanded a sum of Rs.5 lacs as rangdari from Rakesh and due to non-payment of the said rangdari the occurrence had taken place. In his cross-examination, this witness has stated that when he returned home in the evening he had not given any oral or written information of the occurrence to Mukhiya or any other person. He has stated that information regarding the killing of the persons had come at the home. He had not given any information to police officer. Information was given Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 18/27 to Muffasil Police Station on 20th. The defence suggested that on 19th he remained in discussion and deliberations as to who are the persons to be implicated in this case. His statement was recorded after two days of the occurrence. In paragraph ‘12’ of his deposition, this witness has stated that he had not stated before police that there were 30-35 persons and he identified Maheshwar Singh, Guddu Yadav, Naeem, Ramgulam, Jaldhar, Mastan and Bambam and in their hand there were rifles and guns. In paragraph ‘13’, he has stated that in his statement before police, he had not said to have identified Yogendra Yadav, Kailu and Manish. In paragraph ‘14’ of his deposition, he has clearly stated that he had not seen the occurrence from his own eyes. 23. Gyani Kumar Yadav (PW-4) is the cousin brother of Pintu. He has stated that on 18.05.2011 at 5.00 PM he was in his khalihan. He had seen 30-35 criminals came from east side with refile and demanded rangdari from Rakesh Yadav. Rakesh was in his plot and Pintu, Randhir and Bipin were with him. He has stated that on not giving the rangdari, firing started in which Bipin, Randhir and Pintu received the shots. Rakesh was also present there. He has stated that Manish had fired on Bipin, Kailu had fired on the right hand of Bipin. This witness had concealed himself and was watching the occurrence. In his cross- Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 19/27 examination, this witness could not give the khata, khesra and boundary either of his own Khalihan or that of the khalihan of Pintu. In paragraph ‘4’, he has stated that he had concealed himself behind the bundles in the Khalihan and was watching the occurrence from behind at a distance of 25-30 Lagga. He could not say that how many rounds of firings had taken place. According to him, Pintu and Bipin died in Khalihan. At this stage, it may be found that the statement of PW-4 that Pintu and Bipin died in the khalihan materially differs with the statement of PW-1, PW-2 and PW-3. Some of them have stated that Pintu died in the pond and his dead body was found in the Jalkar. This witness was suggested by the defence that on the said day there were exchange of firing between Pintu gang and police which this witness denied. This witness was suggested in paragraph ‘13’ that on the said day there was exchange of firing between police and Pintu for which Maheshkhut P.S. Case No.42 of 2011 has been registered. This witness was not present in Khalihan at the time of occurrence and he had not seen the encounter. This witness denied the suggestion. In paragraph ‘16’ of his deposition, he has stated that he had not said before police that Randhir Yadav had also received the shot. On perusal of the evidence of PW-4 once again it would be evident that he is not an eye witness to the occurrence. He could not say Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 20/27 about the boundary of his own Khalihan and that of Pintu and has stated that after being frightened of the criminals who were 30-35 in numbers, he had concealed himself behind the bundles in the Khalihan. His conduct in going back to his house in the village and not informing to police about the occurrence crates huge doubt over the authenticity of his statement. 24. Rakesh Kumar (PW-5) is the informant of this case. He claims his presence on the date and time of occurrence. He is the brother of the Pintu @ Navin. He claims his presence along with three deceased and other labourers at the place of occurrence. The informant claims that all the accused persons had entered into his khalihan armed with rifle and they were hurling abuses and Maheshwar Singh demanded a rangdari of Rs. 5 lacs and the licensee rifle from his brother Pintu otherwise he threatened him to get ready to die. Thereafter, Maheshwar Singh fired from his rifle which hit Bipin on his thigh and on his order, Kailu Yadav fired which hit on the hand of the Bipin. Manish fired which hit Bipin into his eyes and the firing by Mannu hit into the eyes of Bipin. Pintu ran with his licensee rifle towards Jalkar but he was chased by Santosh Yadav who fired at him. Yogendra also fired at Pintu and Pintu died there. His rifle had fallen into the water which was taken away by Guddu Yadav. In his cross-examination, this witness Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 21/27 has not stated the khata and khesra number of his Khalihan. He has stated that the entire plot was his and it was 40 bighas and he claims that he can produce the papers relating to the land. In course of trial, however, PW-5 has not brought on record the papers of the land and the same has not been exhibited. This witness has stated in paragraph ‘9’ of his deposition that in past he had not given any written information about demand of rangdari. In paragraph ‘11’, he has stated that he had fled away and had concealed himself after seeing the accused persons but Pintu, Bipin and Randhir could not conceal themselves. Contrary to this claim of PW-5, PW-4 has stated to have seen that Rakesh Kumar (PW-5) was standing in the Khalihan when criminals arrived and started firing. Thus, the statement of PW-4 and PW-5 as to this fact are materially different. In paragraph ‘13’ of his deposition, PW-5 has stated that after the occurrence when the accused persons had gone then he came outside. In paragraph ‘14’, he has stated that his house is at a distance of 3 kilometers from the place of occurrence and he cannot say whether he had given information of the occurrence to the police station or not. He has further stated in paragraph ‘15’ that he reached his house during night hours in between 7.00-8.00 PM and remained in his house for the whole night. On 19th , in the morning between 9.00-10.00 PM he went to Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 22/27 his Khalihan with others. In the meantime, he had not given any information with regard to this occurrence to Sarpanch. He has stated that he lodged the case on 19th in between 2.00-3.00 PM. In hospital, Daroga had taken away the dead body for postmortem. On 18th no other occurrence had taken place. He was suggested by defence that he was suppressing the fact that there was an encounter between the deceased and the police in which deceased were killed. In paragraph ‘20’, he has stated that the forest is one kilometer towards the west and the accused persons had dragged for 2-4 Lagga and thereafter they had taken away lifting by hands but he did not know whether any mark was caused. This witness was suggested by the defence that he had not seen the occurrence and was falsely deposing. 25. PW-6 and PW-8 who are the doctors have conducted the autopsy on the dead bodies. They have proved the postmortem report of the deceased. The injuries noted in the postmortem report are as under:- “External Examination :- Hair black, mouth open, tooth was intact, tongue was not protuted, left eye protuted, Right eye was absent from the eye socket, Left side of temporal region shows entry wound approx. 2 cm x 2 cm in size with inversion of muscle, skin and hair of the fractured temporal part of the wound. Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 23/27 Right side of temporal region of skull show fractured bone approx. 4 cm x 3 cm with exposed fractured bone along protrusion of brain matter and blood - A lacerated wound approx 1 ½ cm x 1 ½ cm in the left side of chest wall near third intercostal space with charring noted over the wound side. - Left hand of the palmer surface, muscle was exposed 4 cm x 4 cm. - Right hand of palmer surface muscle was exposed 3 cm x 3 cm. - 5 cm x 4 cm in size of lacerated wound was found near left parietal bone. Internal Examination :- -Mouth tongue, oesophagus, small intestine, large intestine, rectum and anal canal was intact. - Pharynx larynx, trachea, was found intact liver was pale in colom, Kidney spleen, bladder were found normal. - Left chamber heart was empty, Right chamber of heart 250 c.c. blood. - Both lung was collapsed and left lunge shows lacerated injury approx. 3cm x 2cm in size was the middle lob. -Large vessels was collapsed. Skull part:- -A wound of entry noted on he left temporal region with charring with fractured temporal bone approx 2 cm x 2 cm in size along with inversion of skin muscle and hair. - A wound of exit noted on the right temporal Region with protrusion of brain matter and blood with size of 4 cm x 3 cm and exposed temporal Region. Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 24/27 Cause of death- haemorrahagic shock leads to cardio pulmonary arrest caused by arm injury. Times elapsed since death – within 48 hours of postmortem examination External Examination :- (1)lacerated wound 2” behind middle point of right pinna directing horizontally towards left ear size of 1” x 4” x 4 into muscle deep margin inverted blackening and charring which is wound of entry. (2) Lacerated wound 1” behind injury no-1 size ¼” x ¼” present behind right pinna about 3” margin inverted blackening and charring. Which is wound of entry. (3) Wound of exit oval in ½” in diameter margin inverted present about 3” behind lower part of right pinna Injury no- 1& 2 was communicating with injury no. 3 Internal examination :- (1) Fracture of left temporal bone (2) Fracture of occipital bone fracture of Right temporal bone. Brain was lacerated, skull cavity a fall of blood. Both lunge was pale, heart was empty, liver spleen pale, semidigestive food in about 2 ounce. Cause of death :- C.R. failure due to shock and hemorrhage due to fire arm injury.” 26. Satyendra Kumar (PW-7) is the I.O. of the case who had registered the present case. He had received the written application from Khagaria Chitragupta Nagar Police Station on 20.05.2011 at 2.05 PM. He had received the inquest report from Chitragupta Nagar Police Station, Khagaria. The police officers Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 25/27 who received the written application in Chitragupta Nagar Police Station and the officer who prepared the inquest reports have not been examined. PW-7 reached the place of occurrence after receving the written application. He has stated in his cross- examination that he had not found any blood mark at the place of occurrence. He has stated in his cross-examination that he had received the supervision note from the Superintendent of Police and had conducted the investigation as per his direction. He had recorded in paragraph ‘19’ that in course of investigation it has come in the light that on the date of occurrence between 10.00 AM and 5.00 PM three occurrences had taken place near the place of occurrence in respect of which three separate cases were registered in Maheshkhut police station. He has stated that Chano Yadav (PW-1) had not stated that firing was taking place upon Pintu and Bipin and Maheshwar had fired upon Bipin. He has also stated that Gyani had said that his khalihan is beside the place of occurrence but he had not stated that Maheshwar had shot at Bipin which hit his leg. In paragraph ‘12’ of his deposition, PW-7 has stated that at the place of occurrence he had not found any cartridge. 27. On perusal of the entire evidence on the record, this Court is of the considered opinion that there is no eyewitness of this occurrence. There is an inordinate delay in lodging of the FIR Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 26/27 and the evidence of the I.O. suggests that on 18.05.2011 prior to this occurrence, three other occurrences had taken place near the place of occurrence for which three FIRs being Maheshkhut P.S. Case No. 41 of 2011, Maheshkhut P.S. Case No. 42 of 2011 and Maheshkhut P.S. Case No. 43 of 2011 were registered. There was also an exchange of firing between police and Pintu gang. It is own case of the prosecution that Pintu was armed with a rifle. The trial court has disbelieved the story of demanding rangdari by Maheshwar Singh. 28. The accused Manish Yadav and Kailu Yadav both have stated in their statement under Section 313 CrPC that all the deceased were killed in police encounter. Kailu Yadav has gone on to say that he is innocent and administration had falsely implicated him. According to him, the deceased were killed in police encounter. 29. This Court is of the considered opinion that the learned trial court has miserably failed to appreciate the evidences available on the record and has convicted the appellants without any legal evidence on the record. 30. The appellants have made out a case for interference. The impugned judgment and order are, therefore, set aside giving benefit of doubt to the appellants. Patna High Court CR. APP (DB) No.887 of 2019 dt.21-01-2025 27/27 31. The appellant namely no.1, Kailu Yadav is said to be in custody, hence he is ordered to be released forthwith, if not wanted in any other case. 32. The appellant no.2, namely, Manish Yadav is on bail. He and his sureties are discharged from the liability of the bail bonds. Rishi/arvind- (Rajeev Ranjan Prasad, J) ( Ramesh Chand Malviya, J) AFR/NAFR CAV DATE Uploading Date 21.02.2025 Transmission Date 21.02.2025