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Rustam Khan vs The Union Of India Through Cbi on 10 May, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.21 of 2013
Arising Out of PS. Case No.-54 Year-1997 Thana- SIWAN CITY District- Siwan

Rustam Khan, son of Late Annul Haque Khan, Resident of Village-
Machkana, P.S.- Hussainganj, District- Siwan.

… … Appellant/s
Versus
The Union of India through CBI

… … Respondent/s

Appearance :

For the Appellant/s : Mr. Surendra Singh, Sr. Advocate,
Mr. Akhalesh Kumar Singh,Adv.

Mr. Ajay Kumar Thakur, Advocate.

Mr.Ramadhar Shekhar, Advocate.

Mr. Bikramdeo Singh, Advocate.

For the Respondent/s : Mr.Bipin Kumar Sinha SC, CBI

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
and
HONOURABLE MR. JUSTICE VINOD KUMAR SINHA

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA)

Date : 10-05-2019

1. Heard learned counsels for the parties.

2. The sole appellant stood convicted under Sections

302/Section149, Section307/Section149 and Section120B of the Indian Penal Code as well as

Section 27 of the Arms Act and sentenced him to undergo

imprisonment for life under Sections 302/Section149 of the Indian

Penal Code and to pay a fine of Rs. 25,000/- and in case of

default, further to undergo S.I. for one year. He has further been

sentenced to undergo R.I. for ten years under Sections 307/Section149

of Indian Penal Code and to pay a fine of Rs. 10,000/- and in
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case of default to suffer S.I. of six months. The appellant has

also been sentenced R.I. for seven years under Section 120B of

the Indian Penal Code and R.I. for five years under Section 27

of the Arms Act with a fine of Rs. 5,000/- and all sentences were

directed to run concurrently vide judgment dated 7.11.2012 and

order dated 9.11.2012 passed by Sri Choudhary B.K.Rai,

Additional Sessions Judge-14, Patna in Sessions Trial No. 948

of 2001.

3. Prosecution case is based on the fardbeyan of

Ramesh Singh Kushwaha (PW12) recorded on 31.03.1997 at

17.00 hours, stating therein, inter alia that on 31.03.1997 at 3

P.M., Shyam Narayan Yadav (deceased) and District Committee

Member of CPI (ML), Chandrashekhar Prasad (deceased)

Former President Jawahar Lal Nehru University, Bhrigurashan

Patel, a Member of CPI (ML) of Barhtharia Prakhand

Committee (PW 2) and Ramdeo Ram, a District Committee

Member, proceeded by a Tempo on a campaign for success of

Bihar Band and reached J.P. Chowk as soon as the tempo

stopped, accused appellant Dhruw Sah armed with service

revolver, accused – appellant Munna Khan armed with service

revolver, Reyazuddin Khan armed with service revolver and

Mantu Khan armed with sten gun rushed towards the said tempo
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and started indiscriminate firing and in the said firing,

Chandrashekhar Prasad died on the spot and Shyam Narayan

Yadav received severe injury, Bhrigurashan Patel (PW2) also

received firearm injury and Ram Deo Ram (PW 20) fell from

the tempo and managed to save himself. Further case of the

prosecution is that in the said firing, the passers by have also

received firearm injury. Further case of prosecution is that

deceased Chandrashekhar Prasad and injured Shyam Narayan

Yadav were taken to Sadar Hospital by same Tempo, where,

Shyam Narayan Yadav was under treatment, and Shyam

Narayan Yadav also disclosed to the informant the names of

accused-appellants in presence of Satyadeo Ram. Bhrigurashan

Patel after bringing the injured to hospital went to the party

office to inform the incident.

4. On the basis of the aforesaid fardbeyan, Town Police

Station Case No. 54/1997 was registered under Sections 302,

Section307, Section120B and Section34 of the Indian Penal Code against the appellant

and other accused persons.

5. Later on, vide notification dated 28.07.1997 of the

State Government (Ext. 17) and also vide notification dated

31.07.1997 (Ext. 18) C.B.I. was entrusted with the investigation

of the case. Accordingly, RC 2(S)/97-SCB-II/DI (Ext. 16) was
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registered against the sole appellant and other accused persons

namely Dhruv Kumar Jaiswal @ Dhrub Sah, Sheikh Munna and

Ilyas Waris @ Ilham Waris @ Mintu Kha @ Mintu. As the

appellant was absconding, his trial was separated and his case

was committed to the court of sessions by the learned Special

Magistrate, CBI, Patna on 20.12.2001. Sessions Trial No.

948/2001 was opened. It is relevant to mention here that for the

other accused persons, a separate trial being S.T.No. 213 of

2001 was also initiated.

6. In the present case, sole appellant had been charged

for the offence punishable under Sections 302/Section149, Section307/Section149 and

Section120-B of the Indian Penal Code read with Sections 302/Section307 of

the Indian Penal Code and Section 27 of the Arms Act.

7. During Trial altogether twenty witnesses were

examined on behalf of prosecution. They are:-

(i) PW-1 Satyadeo Ram, the then M.L.A. of CPI(ML)

Party, Mairwa and he claims to reach the place of

occurrence after receiving information and thereafter he

reached at the hospital and according to him, deceased

Shyam Narayan Yadav, prior to his death, named the

appellant and other accused persons as assailants.

(ii) PW-2, Bhrigurashan Patel, claimed to be eye witness
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of the occurrence and according to his evidence, he is an

injured and eye witness of the occurrence and named the

appellant and other accused persons.

(iii) PW -3 is Kaushalya Devi, mother of deceased

Chandra Shekhar Prasad. She claims that on information

she reached at Sadar Hospital and saw dead body of her

son Chandra Shekhar Prasad. She also disclosed that

Sahabuddin had threatened her to ask her son to mend his

way otherwise he would be killed.

(iv) PW-4 Chandraketu Singh is also one of the injured

and as per his evidence, while he was coming from the

Court he received gun shot injury. This witness has not

named the assailants including the appellant.

(v) PW-5, Indra Kumar, is the driver of Tempo No. B.R.

-04-A0087, who was, according to his evidence, engaged

for campaigning and he supported the factum of

occurrence and he brought the deceased persons and PW-

2 to the Hospital, but he did not name any accused

persons including appellant.

(vi) PW-6 is Dr. Lakshman Prasad, who has conducted

postmortem examination on the dead bodies of deceased

Chandrashekhar Prasad and Shyam Narayan Yadav on
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01.04.1997 and postmortem reports are marked as Ext. 2

and 2/1. This witness has also treated PW-4 Chandra Ketu

Singh and PW-7 Md. Alam Khan and their injury reports

are marked as Ext. 1 and 1/ 1. He sent information to the

police by Ext. 3.

(vii) PW-7, Md. Alam Khan, has also received injury in

the occurrence but he has not named the assailants and

appellant.

(viii) PW-8, Dr. Bimal Kumar, is the doctor who has

examined Bhrigurasan Patel (PW-2).

(ix) PW-9, Rafik Ahmad Khan, is Sub Inspector, who has

recorded the statement of Ramesh Singh Kushwaha (PW-

12) on 31.03.1997 on the basis of which fardbeyan (Ext.

4) was recorded.

(x) PW-10, Rajbanshi Baitha, is then A.S.I. of Town

Police Station and according to his evidence, while he

was coming near J.P.Chauraha, he heard sound of firing

and saw some persons fleeing, he chased them. His

evidence also disclosed that for that he has lodged FIR

being Town P.S.Case No. 55 of 1997, which is marked as

Ext. 6.

(xi) PW-11, Ram Sagar Rai, is Sub Inspector of Town
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Police Station and is the first Investigating Officer of the

case.

(xii) PW-12, Ramesh Singh Kushwaha, is the informant in

this case though this witness has turned hostile but his

evidence disclosed that the occurrence took place on

31.03.1997. His evidence further disclosed that later on,

he heard that Chandra Shekhar Prasad and Shyam

Narayan Yadav were killed on 31.03.1997 at 4 O’clock by

the accused persons at J.P.Chauraha.

(xiii) PW-13 Md. Samsuddin, who has been declared

hostile. However, his examination-in-chief disclosed that

in support of Bihar Band , meetings were scheduled to be

held at different places on 31.03.1997. In his evidence, he

also disclosed that Chandra Shekhar Prasad and Shyam

Narayan Yadav were killed on 31.03.1997 and the

occurrence took place at J.P.Chauraha.

(xiv) PW-14 is Nag Narayan Singh, the then Dy.S.P., CBI,

Special Crime Branch, New Delhi. He had received the

documents relating to Siwan Nagar P.S.Case No. 54 of

1997 in connection with RC 2(S)/97/SCB-II from Sri

Ram Sagar Rai, S.I. Guthani P.S. (PW-11) and handing

and taking over charge were prepared.

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(xv) PW-15 is Rashid Ahmad Khan, the then District

Magistrate-cum-Collector, Siwan, who approved the

prosecution sanction report as Ext.-11.

(xvi) PW-16 is Rajdeep Singh Rawat, who was Inspector,

CBI and also was one of the Investigating Officers and his

evidence disclosed that on the order of the Superintendent

of Police, he had issued notice to Ramesh Singh

Kushwaha (PW-12) under Section 160 Cr.P.C. which is

Ext.-9 and Ramesh Singh Kushwaha appeared before

him and Ramesh Singh Kushwaha had not told him that

his signature was obtained in plain paper.

(xvii) PW-17 is K.Nand Kumar, who was working as

Upper Division Clerk in CPWD and as per his disclosure,

statement of Dhruv Kumar Jaiswal was recorded by the

CBI in front of him, which is in the writing and signature

of Hari Kumar. This witness has identified the same and

marked as Ext. 13.

(xviii) PW-18 is Surya Bhan Sinha, who was the Dy.S.P.,

Special Crime Branch, CBI, at the time of occurrence and

he identified the writing and signature of Sri I.S. Saroha,

the then Superintendent of Police, on the FIR RC Case

No. 2(s)/97-SCB-II/CBI dated 07.08.1997 (Ext. 16) and
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also identified the Notification dated 28.07.1997 (Ext. 17)

and second Notification as Ext. 18.

(xix) PW-19 is Y.Hari Kumar, the then Inspector, CBI,

Special Crime Branch, who was entrusted with further

investigation in the CBI case.

(xx) PW-20 is Ramdeo Ram, though has turned hostile,

but his evidence-in-chief also disclosed the factum of

occurrence on 31.03.1997 and Shyam Narayan Yadav and

Chandra Shekhar Prasad and Bhrigurasan Patel were also

present and at 4:00 P.M. a meeting was to be held at

J.P.Chauraha.

8. On behalf of defence also, four witnesses have been

examined and they are:-

(i) DW-1 Satyapal Shrivastava @ Dhiraj, as per his

evidence, on 31.03.1997 he heard the sound of firing but

he has stated that Nepalis were firing. His evidence in

cross-examination disclosed that he came to know that

on 31.03.1997 at 4:00 P.M., Chandra Shekhar Prasad,

Shyam Narayan Yadav and Bhuteli Mian were killed.

(ii) DW-2 is Dharmendra Kumar Patha and his evidence

also disclosed about the occurrence of firing but stated

that Nepali Bhutias were firing. His evidence in cross-

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examination in para 4 however disclosed that Chandra

Shekhar Prasad, Shyam Narayan Yadav were died in

that firing.

(iii) DW-3 is Amit Kumar. He has admitted about the

occurrence took place on 31.03.1997 and further

disclosed that he was not summoned and Bhutias were

firing.

(iv) DW-4 is Birendra Singh. He is on the point of alibi

of Rustam Khan.

9. On conclusion of trial, the trial court, relying on the

evidence of PW-2, being the eye witness of the occurrence, and

also disclosure of deceased Shyam Narayan Yadav to PW-1 soon

before his death, convicted the sole appellant under Section

302/Section149, Section307/Section149 and Section120B of the Indian Penal Code and

Section 27 of the Arms Act.

10. Being aggrieved by, criminal appeal has been

preferred by sole appellant.

11. The impugned judgment has been assailed by Mr.

Surendra Singh, learned senior counsel appearing on behalf of

the appellant, on the ground that all witnesses have been

declared either hostile or not have identified the accused

persons, except PW-2, Bhrigurasan Patel, who claims himself to
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be eye witness of the occurrence, but his presence is doubtful in

the background of evidence of PW-8, as PW-2 was examined

on 01.04.1997 and not on 31.03.1997 i.e., the date of

occurrence, secondly, on the ground that there are contradictions

in between the evidence of PW-2 and PW-8, so far injury is

concerned and furthermore, he is highly interested witness as he

was a member of CPIML (MALE). It has been argued that in the

above background, conviction cannot be sustained on solitary

evidence of PW-2 in absence of any corroboration, relying on

the decision of SectionShivaji Sahebrao Bobade Anr. vs. State of

Maharashtra reported in AIR 1973 SC 2622 and in the case of

SectionAnil Phukan vs State of Assam reported in AIR 1993 SC 1462.

12. Further contention of learned counsel for the appellant

is that occurrence took place at J.P.Chawk at 4:00 P.M. which is

crowded place but in spite of that, no independent witness has

been examined in this case and that also makes the prosecution

case doubtful.

13. Further contention of learned counsel for the appellant

is that the prosecution has also relied upon on the oral dying

declaration of deceased Shyam Narayan Yadav made before

PW-1, Satya Deo Ram, the then M.L.A., however, prosecution

story of oral dying declaration does not appear to be reliable and
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trustworthy in the background of evidence of PW-6, Dr.

Lakshman Prasad, who has conducted postmortem examination

of deceased Shyam Narayan Yadav as his evidence in cross-

examination fully shows that Shyam Narayan Yadav was not in

a fit state of mind to make any disclosure and furthermore, in the

background of evidence of PW-7, Md. Alam Khan, that

deceased Shyam Narayan Yadav was unconscious. Further

submission is that prosecution evidence suggests that he

disclosed the name in the hospital but in spite of that there is no

certification of doctor that he was in a fit state of mind.

Referring to the decision of Hon’ble Apex Court in the case of

SectionUmakant and Anr. vs. State of Chhattisgarh reported in AIR

2014 SC 2943, it has been submitted that as per principle settled

in the above judgment, no reliance can be placed on the oral

dying declaration of deceased Shyam Narayan Yadav.

14. Further submission of learned counsel for the

appellant is that apart from that, FIR lodged by the CBI is hit

under Section 162 Cr.P.C.

15. On the above submission, it has been submitted that

the learned trial court has not considered the above discrepancy

and inconsistency in the prosecution story while convicting the

appellant as such impugned judgment cannot be sustained.
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16. Defending the impugned judgment, learned counsel

appearing on behalf of the CBI, Mr. Bipin Kumar Sinha,

submitted that in this case informant (PW-12) has been declared

hostile, but his evidence supports the prosecution case so far

date of occurrence and manner of occurrence and also about the

death of deceased Chandra Shekhar Prasad and Shyam Narayan

Yadav in the occurrence and as such even though he has been

declared hostile, his evidence cannot be washed out in toto, that

is the settled principle of law held by the Hon’ble Apex Court in

several judgments.

17. Further contention of learned counsel for the CBI is

that evidence of PW-2, PW-4, PW-7, PW-12 and PW-20

supports the prosecution case so far manner of occurrence is

concerned and evidence of PW-10 further disclosed the name of

accused persons including the appellant and the evidence of PW-

2 cannot be doubted on the ground that he is interested witness

especially in the background that he has also received injury in

the occurrence. In support of his contention, learned counsel for

the CBI referred the decision of SectionPiara Singh and Others vs.

State of Punjab reported in AIR 1977 SC 2274 and of Seeman

alias SectionVeeranam vs. State by Inspector of Police reported in 2005

Cri.L.J 2618. It has also been submitted that Dr. Bimal Kumar
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(PW-8) has also found injuries over PW-2 and evidence of

injured witness is always considered to be on high pedestral than

of other witness.

18. It has further been submitted that though Ramesh

Singh Kushwaha (PW-12) and Ramdeo Ram (PW-20) have been

declared hostile by the prosecution but they have supported the

prosecution case so far factum of occurrence and date of

occurrence is concerned and there is nothing in their cross-

examination to doubt the above evidence, as such in the light of

several decisions of Hon’bel Apex Court e.g. in the case of

Khuji alias SectionSurendra Tiwari vs. State of M.P. reported in 1991

Cri. L. J. 2653 as well as of Arjun and Anr. vs. State of

Chhatisgarh reported in (2017) 3 SCC 247, their evidence is

also admissible.

19. Further submission is that even Chandra Ketu Singh

(PW-4) injured, Indra Kumar, Tempo driver (PW-5), Md. Alam

Khan (PW-7) injured and Rajbanshi Baitha (PW-10), a police

official, who reached at the place of occurrence, have also

supported the factum of occurrence. It has also been submitted

that the aforesaid facts found corroboration from Ext.-4, the

fardbeyan, which has been lodged immediately after the

occurrence disclosing the prosecution case and showing the
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names of accused persons including appellant and further

showing that PW- 2 also received injury and Shyam Narayan

Yadav, deceased, named all the accused persons including the

appellant.

20. Defending the prosecution story of oral dying

declaration, it has been submitted that PW-1 has stated that

deceased disclosed the names of the appellant and other accused

persons before him when he reached at the hospital and no

suggestion has been given to PW-6, who had conducted the

postmortem examination regarding that deceased Shyam

Narayan Yadav was not in a condition to speak. None of the

witnesses including the informant (PW-12) or Bhrigurasan Patel

(PW-2) or Rafik Ahmad Khan (PW-9), who were the authors of

the fardbeyan, have been suggested that Shyam Narayan Yadav

was not in a condition to speak. In such a situation, story of oral

dying declaration cannot be disbelieved specially when it is

made immediately after the occurrence, which is admissible

under Section 6 of the Indian Evidence Act and in this

connection, learned counsel of CBI relied upon a decision of

Hon’ble Apex Court in the case of SectionGian Chand Ors. vs. State

of Haryana reported in 2013(4) PLJR SC 7.

21. Considering the arguments advanced by the learned
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counsels on behalf of the appellant as well as the CBI and on

close scrutiny of the materials available on record, it appears

that fardbeyan of PW-12, Ramesh Singh Kushwaha, has been

recorded by PW-9, Rafik Ahmad Khan, the then Officer-in-

charge of Town Police Station at 1700 Hours and occurrence is

said to be of about 1600 Hours that shows promptness in

lodging of the case. Fardbeyan disclosed that there was a call of

Bihar Band by CPIML (MALE) and both deceased along with

Bhrigurasan Patel (PW-2) and Ramdeo Ram (PW-20), who were

workers of MALE, were on campaign for Bihar Band. They

reached near J.P.Chawk at 4:00 P.M. Accused persons including

the appellant reached there and started indiscriminate firing

causing death of Chandra Shekhar Prasad and Shyam Narayan

Yadav. Bhrigurasan Patel (PW-2) received injuries and passers-

by also received injuries. Shyam Narayan Yadav disclosed the

names of accused persons in presence of Satya Deo Ram that

shows that FIR has been lodged by PW-12 showing the names

of accused persons including appellant as assailant and also

disclosed the presence of Bhrigurasan Patel (PW-2) and

Satyadeo Ram (PW-1) and also about disclosure made by

Shyam Narayan Yadav, deceased. Ramdeo Ram (PW-20) was

also shown as an eye witness in the fardbeyan.
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22. On scrutiny of evidence of PW-12, Ramashish Singh

Kushwaha, his evidence in examination-in-chief, disclosed

about the call of Bihar Band and occurrence is of 31.03.1997 at

about 4:00 P.M. It further disclosed that several Nukkar

meetings were held and there was meeting at J.P.Chawk at 4:00

P.M., which has to be addressed by deceased Chandra Shekhar,

Shyam Narayan Yadav, Bhrigurasan Patel (PW-2) and Ramdeo

Rai(PW-20). He did not have to address the meeting and he did

not have knowledge whether Chandra Shekhar and Shyam

Narayan Yadav reached there or not. Further, this witness has

proved his signature on the fardbeyan as Ext. 5, but stated that

he had made his signature on a plain paper. His evidence further

disclosed that he has not stated about the signature being

obtained in any plain paper to the party office or the CBI

officials. His evidence further disclosed that he heard later on

that Chandra Shekhar and Shyam Narayan Yadav were killed by

accused persons on 31.03.1997 at 4:00 P.M. however, his

evidence does not disclose from whom he gathered information.

This witness has been later on declared hostile and has been

cross-examined at length but there is nothing available in his

cross-examination to doubt about his evidence which supports

the prosecution case so far occurrence of 31.03.1997, meeting
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was to be held on 31.03.1997 at 4:00 P.M. and deceased were

killed on 31.03.1997. Evidence of this witness also disclosed

that earlier he was a member of the District Committee of

CPIML but thereafter he left. His attention has also been drawn

towards statements made before PW-9, Rafik Ahmad Khan and

to the statements made before C.B.I. officials though he denied

to have made such statements. PW-16, CBI officer, has been

confronted in para-6 towards the statement made by PW-12 and

he has stated that PW-12 had made such statements, as such it

appears that this witness is concealing material facts, due to fear

or he has been gained over. However, his evidence shows that

PW-2 and PW-20 were also to address the meeting at J.P.Chawk.

23. PW-9 is Officer-in-charge, who has recorded the

fardbeyan of Ramesh Singh Kushwaha (PW-12) and his

evidence disclosed that he received information about firing at

J.P.Chawk, Siwan on 31.03.1997 at 1600 hours and went to

hospital and found Chandra Shekhar dead and Shyam Narayan

Yadav, Chandraketu , Allauddin Ansari, Bhrigurasan Patel and

Buteli Mian were in injured condition. Ramesh Singh

Kushawaha (PW-12) got recorded his statement, which is in his

writing and signature and in all four pages, Ramesh Singh

Kushawaha (PW-12) put his signatures after going through it.
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Fardbeyan is Ext.-4. He prepared inquest reports and on the

basis of statement of Ramesh Singh Kushwaha, FIR was lodged,

which is Ext.-5. A suggestion has been given to him that FIR

was not recorded on 31.03.1997 rather on 01.04.1997 which he

denied. He has also identified formal FIR in the writing of Mr.

K.L.Das, the then Officer-in-charge as Ext. 15.

24. PW-16, Rajdeep Singh Rawat, has also assisted in the

investigation on behalf of CBI and stated that he has recorded

the statement of Ramesh Singh Kushwaha (PW-12) who

disclosed about the call of Bihar Band and deceased as well as

PW-2 and PW-20 were on campaign on a tempo and at 4:00

P.M., when they reached J.P. Chawk, accused persons came and

made indiscriminate firing causing death of Chandra Shekhar

Prasad and Shyam Narayan Yadav received serious injuries,

Bhrigurasan Patel also received injury and Ramdeo Ram fallen

down and did not receive any injury.

25. PW-1 is Satyadeo Ram, the then M.L.A. and FIR

(Ext.5) also disclosed about his presence at Sadar Hospital and

his evidence disclosed that for 02.04.1997, there was call of

Bihar Band and on 31.03.1997, Chandra Shekhar, Shyam

Narayan Yadav, Ramdeo Ram (PW-20) and Bhrigurasan Patel

(PW-2) were on campaign and he received information at 4:00
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P.M that there was firing on them. He came to J.P.Chawk and

came to know that they were taken to Sadar Hospital by Ramesh

Singh Kushawaha (PW-12), Ramdeo Ram (PW-20) and

Bhrigurasan Patel (PW-2), he reached hospital and found

Chandra Shekhar in dead condition and Shyam Narayan Yadav

disclosed before him the name of appellant and other accused

persons that they fired on him. In the meantime, Daroga came

and he disclosed the same to the Daroga also. He identified the

appellant and further stated that Ramesh Singh Kushawaha

(PW-12) had got his statement recorded before the Officer-in-

charge of Town Police Station on which after going through it,

PW-12 put his signature, sometime thereafterafter Shyam

Narayan Yadav became unconscious. His evidence disclosed

that Shyam Narayan Yadav and Buteli Mian both died. This

witness has been cross-examined at length about his evidence

made earlier in S.T.No. 213 of 2001 and about the expenses of

the parties. Even after his cross-examination, there is nothing in

his evidence to doubt his credibility. So far, disclosure by Shyam

Narayan Yadav is concerned, no suggestion has been made to

this witness to the extent that no such disclosure has been made

by Shyam Narayan Yadav and his evidence found corroboration

from the fardbeyan also (Ext.-4 ) about factum of disclosure
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made by Shyam Narayan Yadav to PW-1.

26. PW-2, Bhrigurasan Patel, claims to be eye witness in

this occurrence and has received injury. He has supported the

prosecution case so far date of occurrence and manner of

occurrence is concerned and his evidence disclosed that he was

on campaign for Bihar Band and at J.P.Chauk at 4:00 P.M.,

meeting was to be addressed by Chandra Shekhar Prasad ,

Shyam Narayan Yadav and Ramesh Singh Kushawaha. They

reached at J.P.Chauk at 4:00 P.M. Chandra Shekhar Prasad and

Shyam Narayan Yadav were sitting on the back seat of the

tempo and he and Ramdeo Ram (PW-20) were sitting beside the

driver and as soon as he started to address, all named accused

persons, including the appellant came and started indiscriminate

firing. His evidence also disclosed that Ramesh Singh

Kushawaha (PW-12) and Samsuddin Ansari reached by

motorcycle. His evidence also disclosed that in the firing,

Chandra Shekhar, Shyam Narayan Yadav and he himself

received injuries and Shyam Narayan Yadav became

unconscious. Ramdeo Ram did not receive any injury as he

concealed himself beneath the tempo. Ramesh Singh Kushwaha

(PW-12) and Ramdeo Ram (PW-20) took the injured to Sadar

hospital where the doctor declared Chandra Shekhar dead and he
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and Shyam Narayan Yadav were under treatment. In the

meantime, Satyadeo Ram (PW-1) reached there. His evidence

also disclosed that Ramdeo Ram (PW-20) has donated blood to

Shyam Narayan Yadav. His evidence also disclosed that police

recorded the statement of Shyam Narayan Yadav, after written

application of Ramesh Singh Kushawaha (PW-12) earlier given

to police by him. Police also recorded the statement of Ramesh

Singh Kushwaha (PW-12) and at about 6/6:30 P.M., Shyam

Narayan Yadav died and Buteli Mian also died in that

occurrence. Evidence of PW-2 also disclosed that all accused

persons are men of M.P. Shahabuddin and at his instance, they

have committed the occurrence. This witness has been cross-

examined at length. Even in his cross-examination, this witness

has stated that meeting was to be presided over by Ramesh

Singh Kushawaha (PW-12). His cross-examination also

disclosed that when he initiated speech, firing starts and there

was stamped. In his cross-examination, he has stated that bullet

hit, crossed him touching his body and there was bleeding. On

scrutiny of his entire testimony, there is nothing in his cross-

examination to doubt his evidence about the firing by accused

persons causing injuries to the deceased and him and even no

suggestion has been given to him that he had not received any
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injury and the injury report is manufactured one. A general

suggestion has been given that he has deposed falsely.

27. PW-3, Kaushalya Devi, is mother of Chandra Shekhar

Prasad (deceased) and her evidence is that her son was the

President of Student Union of Jawahar Lal Nehru University and

Shahabuddin had threatened her to ask her son to mend his way

otherwise he has to loss his life and she even went to Delhi to

advise him. There is no cross-examination to this witness on the

above point of threatening given by Shahabuddin.

28. PW-4, Chandra Ketu Singh, is one of another injured,

who has received injury in the occurrence and according to his

evidence, while coming to J.P.Chawk from Court to office, he

reached near J.P.Chawk, he saw that there was crowd and in the

meantime, he received one injury. His evidence disclosed that

he was treated by Dr. Laxman Prasad (PW-6). He had seen two

dead bodies, one of Chandra Shekhar Prasad and another of

Shyam Narayan Yadav and heard that they had gone to

campaign for Bihar Band and in that, they received firearm

injuries. This witness is an injured witness. As such his

evidence disclosed that deceased Chandra Shekhar Prasad and

Shyam Narayan Yadav received injury in such occurrence but he

has not named anybody.

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29. PW-5, Indra Kumar, is a tempo driver and as per his

evidence, tempo was hired for campaigning Bihar Band and

when they reached at J.P. Chawk, there was indiscriminate

firing, he fled away and when he returned, Chandra Shekhar

Prasad and Shyam Narayan Yadav, who were in unconscious

condition, were brought to Sadar Hospital where Chandra

Shekhar was declared dead. Shyam Narayan Yadav died after 2-

5 minutes. Even in his cross-examination, he supports the

occurrence of indiscriminate firing.

30. PW-7, Md. Alam Khan, is also one of the injured and

his evidence also disclosed that occurrence is of 31.03.1997 and

when he reached near J.P. Chawk, he received one firearm

injury. Thereafter, he was taken to hospital. His evidence also

disclosed in cross-examination that one person died at hospital

and other was not speaking anything. Both PW-5 and PW-7

though has stated that occurrence is of 31.03.1997 at about 4:00

P.M. but not named any of the accused persons.

31. PW-10, Rajbanshi Baitha, the then ASI of Town

Police Station and as per his evidence, while he was coming

from court and reached near J.P.Chawk, he heard sound of

firing. He parked his motorcycle and saw accused persons

fleeing towards Registry Office, he chased them and fired on
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them and when came back to J.P. Chawk, he saw three persons

in injured condition, who were taken to hospital. There is

nothing else in his evidence and he has not named the appellant

or any other accused persons.

32. PW-20 is Ramdeo Ram. According to evidence of this

witness and also as per FIR, he is eye witness of the occurrence.

His evidence disclosed that there was call of Bihar Band on 2 nd

April, 1997 and on 31st March, 1997, there were campaign for

that, and Shyam Narayan Yadav, Chandra Shekhar and

Bhrigurasan Patel were with him. There were several street

corner meetings held and there was an announcement that at

4:00 P.M. there would be a meeting at J.P.Chawk and Shyam

Narayan Yadav, Chandra Shekhar and Bhrigurasan Patel were

on tempo but he had not gone there and remained in the office

till 4:00 P.M. and at 4:00 P.M., receiving information of firing,

he reached there and found Chandra Shekhar has died, Shyam

Narayan Yadav had fallen and Bhrigurasan Patel also received

injury on his back and they have taken them to hospital by same

tempo and the doctor declared Chandra Shekhar dead. Shyam

Narayan Yadav was alive, he donated blood to Shyam Narayan

Yadav. His evidence also disclosed that Ramesh Singh

Kushwaha (PW-12), Bhrigurasan Patel (PW-2) and Satyadeo
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Ram (PW-1) came there. Kaushalya Devi (PW-3) also came

there after half an hour and Shyam Narayan Yadav died after 2-

3 minutes. He has also stated that his evidence was not recorded

by the police. Thereafter, this witness has been declared hostile

by the prosecution and his attention has been drawn towards the

statement made before the police which he has denied to have

made before CBI. However, from the evidence of PW-16, his

attention has been drawn towards statement made by him before

PW-16. It appears that he is suppressing the fact before the court

to shield the accused persons including appellant.

33. PW-6 Dr. Laxman Prasad, who has conducted

postmortem examination (Ext. 2) on the dead body of Chandra

Shekhar Prasad and Shyam Narayan Yadav and also examined

Chandra Ketu Singh (PW-4) and Md. Alam Khan (PW-7). His

evidence disclosed that on 31.03.1979, he was posted at Sadar

Hospital, Siwan and he has conducted postmortem of deceased

Chandra Shekhar (Ext. 2) and found one gun shot injury in the

region of back and also found several injuries caused by firearm

and on the same day at 7:20 P.M., he conducted postmortem on

the dead body of Shyam Narayan Yadav and found several

injuries caused by firearm on his body. He further examined Md.

Alam (PW-7) and Chandra Ketu Singh (PW-4) and found
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firearm injuries on their persons. In his cross-examination, this

witness has stated that in case of Shyam Narayan Yadav there

were three holes which he cannot say whether it was caused by

bullet or pellet. His cross-examination also disclosed that

massive laceration of lungs in both cases will cause immediate

haemorrhage, which will cause immediate acute respiratory

distress. Both these condition will cause loss of speech,

excessive haemorrhage laceration will cause mental imbalance.

34. PW-8, Dr. Bimal Kumar, examined Bhrigurasan Patel

(PW-2) and in his evidence, he stated that on 31.03.1997, he was

posted at Sadar Hospital and he had sent the information about

death of Shyam Narayan Yadav to the Officer-in-charge and he

examined Bhrigurasan Patel on 31.03.1997 and again on

01.04.1997 at 10:00 A.M. and found one circular injury 1cm

diameter with black margin on left lateral chest at the lebel of

sixth inter poster ribs space. The patient was advised X-ray of

chest but not submitted report. He has also stated that he has

examined the patient on request of police. This witness has been

cross-examined but there is no cross-examination on the point

that he has not examined him on 31.03.1997 rather on

01.04.1997.

35. From the above discussions of the evidence, PW-2
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appears to be eye witness, however, his evidence is doubted by

the learned counsel for the appellant on the ground of

discrepancy in his evidence in the background of evidence of

PW-8, showing that injury report disclosed that PW-2 was

examined on 01.04.1997 and as such his presence is doubtful

and his evidence in cross-examination disclosed that bullet

crossed touching his body whereas he has stated in his

examination-in-chief that he received injury on his back.

However, as discussed above, PW-8 has categorically stated in

his examination-in-chief that he examined PW-2 on 31.03.1997

and again on 01.04.1997 at 10:00 A.M. but neither PW-8 has

been cross-examined nor any suggestion has been given to him

that PW-2 has been examined on 01.04.1997 and not on

31.03.1997. So far contradiction in the evidence of PW-2 is

concerned that appears to be minor and furthermore, PW-8 has

found injury over his person and no suggestion has been given

to him that injury was manufactured one. Even though, there

are some discrepancies but that is bound to occur in his evidence

as PW-2 was deposing long time after the occurrence. On the

other hand, his name is mentioned in the fardbeyan (Ext. 4) and

though the informant (PW-12) has been declared hostile but his

evidence in his examination-in-chief also disclosed that meeting
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was to be addressed by PW-2, deceased persons and PW-20.

36. The Hon’ble Apex Court, in a case of SectionSmt. Shamim v.

State (NCT of Delhi) reported in 2019 Cri.L.J. 732 SC, has

considered the aspect of discrepancies in the evidence of

witnesses, para-12 of the judgment reads as follows:-

“12. While appreciating the evidence of a witness,
the approach must be whether the evidence of the
witness read as a whole inspires confidence. Once
that impression is formed, it is undoubtedly
necessary for the court to scrutinise the evidence
more particularly keeping in view the deficiencies,
drawbacks and infirmities pointed out in the
evidence as a whole and evaluate them to find out
whether it is against the general tenor of the
evidence and whether the earlier evaluation of the
evidence is shaken as to render it unworthy of
belief. Minor discrepancies on trivial matters not
touching the core of the case, hypertechnical
approach by taking sentences torn out of context
here or there from the evidence, attaching
importance to some technical error without going to
the root of the matter would not ordinarily permit
rejection of the evidence as a whole. Minor
omissions in the police statements are never
considered to be fatal”.

37. Further, in the case of SectionSohrab and Anr. vs. State of

M.P. reported in AIR 1992 SC 220, the Hon’ble Apex Court has

also considered the evidence of injured witnesses and held that

merely because there have been discrepancies and contradictions

in the evidence of some or all the witnesses, the same does not
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mean that entire evidence of prosecution has to be discarded. It

is only after exercising caution and care shifting the evidence to

separate the truth from untruth, exaggeration, embellishment and

improvement, the Court had come to the conclusion that what

could be accepted implicated the appellants and convicted

them as the Court has held that falsus in uno falsus in

omnibus. is not a sound rule for the reason that hardly any one

comes across witness whose evidence does not contain a grain

of untruth or at any era some exaggeration or embellishment.

38. Further in the case of SectionMukesh and Anr. vs. State of

NCT of Delhi reported in 2017 Cri.L.J. 4365, the Hon’ble Apex

Court, while considering the evidence of injured witness, taking

into consideration several judgments of the Apex Court,

observed that “the evidence of injured witness is entitled to a

greater weight and the testimony of such a witness is considered

to be beyond reproach and reliable. Firm, cogent and convincing

ground is required to describe the evidence of injured witness. It

is to be kept in mind that the evidentiary value of an injured

witness carries great weight”.

39. Further, in the case of SectionState of Maharashtra vs.

Tulshiram Bhanudas Kamble reported in AIR 2007 SC 3042 has

observed that the evidence of an eye witness, who is also an
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injured witness, cannot be doubted merely on the ground that he

is inimical to the respondents and held in paragraph 29, which

reads as follows:-

“29. Each of the reasoning assigned by the High
Court, in our opinion, is contrary to the well-settled
legal principle. The witnesses examined on behalf
of the prosecution, apart from being eye-witnesses,
were injured witnesses. Their presence at the place
of occurrence, therefore, cannot be doubted. Only
because they were inimical to the respondents, the
same by itself cannot be a ground to discard their
evidences. Although in accepting the same, some
amount of caution is required to be maintained.

40. Learned counsel for the appellant also assailed the

judgment on the ground that on the evidence of solitary eye

witness and that too, when his evidence suffers from

discrepancies and his presence is doubtful, conviction cannot be

based and in this case, there is no other evidence available on

record to support the prosecution case. So far number of

witnesses to be examined in a trial to prove its case, Section

134 of Indian Evidence Act, provides that; no particular

number of witnesses shall in any case be required for the

proof of any fact.

41. Hon’ble Apex Court in the case of SectionVadivelu Thevar vs

The State of Madras reported in AIR 1957 SC 614, has also

considered the same and held in para 11 and 12, which read as
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follows:-

“11. In view of these considerations, we have no
hesitation in holding that the contention that in a
murder case, the court should insist upon plurality
of witnesses, is much too broadly stated. Section
134 of the Indian Evidence Act has categorically
laid it down that “no particular number of witnesses
shall in any case be required for the proof of any
fact.” The legislature determined, as long ago as
1872, presumably after due consideration of the
pros and cons, that it shall not be necessary for
proof or disproof of a fact, to call any particular
number of witnesses. In England, both before and
after the passing of the SectionIndian Evidence Act, 1872,
there have been a number of statutes as set out in
Sarkar’s ‘Law of Evidence’ – 9th Edition, at pp.
1100 and 1101, forbidding convictions on the
testimony of a single witness. The Indian
Legislature has not insisted on laying down any
such exceptions to the general rule recognized in s.

134 quoted above. The section enshrines the well
recognized maxim that “Evidence has to be
weighed and not counted”. Our Legislature has
given statutory recognition to the fact that
administration of justice may be hampered if a
particular number of witnesses were to be insisted
upon. It is not seldom that a crime had been
committed in the presence of only one witness,
leaving aside those cases which are not of
uncommon occurrence, where determination of
guilt depends entirely on circumstantial evidence. If
the Legislature were to insist upon plurality of
witnesses, cases where the testimony of a single
witness only could be available in proof of the
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crime, would go unpunished. It is here that the
discretion of the presiding judge comes into play.

The matter thus must depend upon the
circumstances of each case and the quality of the
evidence of the single witness whose testimony has
to be either accepted or rejected. If such a
testimony is found by the court to be entirely
reliable, there is no legal impediment to the
conviction of the accused person on such proof.
Even as the guilt of an accused person may be
proved by the testimony of a single witness, the
innocence of an accused person may be established
on the testimony of a single witness, even though a
considerable number of witnesses may be
forthcoming to testify to the truth of the case for the
prosecution. Hence, in our opinion, it is a sound
and well-established rule of law that the court is
concerned with the quality and not with the
quantity of the evidence necessary for proving or
disproving a fact. Generally speaking, oral
testimony in this context may be classified into
three categories, namely :

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

12. In the first category of proof, the court should
have no difficulty in coming to its conclusion either
way – it may convict or may acquit on the
testimony of a single witness, if it is found to be
above reproach or suspicion of interestedness,
incompetence or subornation. In the second
category, the court, equally has no difficulty in
coming to its conclusion. It is in the third category
of cases, that the court has to be circumspect and
has to look for corroboration in material particulars
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by reliable testimony, direct or circumstantial.
There is another danger in insisting on plurality of
witnesses. Irrespective of the quality of the oral
evidence of a single witness, if courts were to insist
on plurality of witnesses in proof of any fact, they
will be indirectly encouraging subornation of
witnesses. Situations may arise and do arise where
only a single person is available to give evidence in
support of a disputed fact. The court naturally has
to weigh carefully such a testimony and if it is
satisfied that the evidence is reliable and free from
all taints which tend to render oral testimony open
to suspicion, it becomes its duty to act upon such
testimony. The law reports contain many precedents
where the court had to depend and act upon the
testimony of a single witness in support of the
prosecution. There are exceptions to this rule, for
example, in cases of sexual offences or of the
testimony of an approver; both these are cases in
which the oral testimony is, by its very nature,
suspect, being that of a participator in crime. But,
where there are no such exceptional reasons
operating, it becomes the duty of the court to
convict, if it is satisfied that the testimony of a
single witness is entirely reliable.We have,
therefore, no reasons to refuse to act upon the
testimony of the first witness, which is the only
reliable evidence in support of the prosecution”.

42. In the case of Shivaji Sahebrao Bobade (supra), the

Hon’ble Apex Court has held that “even if the case against the

accused hangs on the evidence of a single eye-witness it may be

enough to sustain the, conviction given sterling testimony of a
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competent, honest man, although as a rule of prudence courts

call for corroboration. It is a platitude to say that witnesses have

to be weighed and not counted since quality matters more than

quantity in human affairs”.

43. Further, in the case of Anil Phukan (supra), it has

been held by Hon’ble Apex Court that “conviction can be based

on the testimony of a single eye-witness and there is no rule

of law or evidence which says to the contrary provided the

sole eye witness passes the test of reliability. So long as the

single eye-witness is a wholly reliable witness the courts

have no difficulty in basing conviction on his testimony

alone. However, where the single eye- witness is not found to be

a wholly reliable witness, in the sense that there are some

circumstances which may show that he could have an interest in

the prosecution, then the courts generally insist upon some

independent corroboration of his testimony, In material

particulars, before recording conviction. It is only when the

courts find that the single eye-witness is a wholly unreliable

witness that his testimony is discarded in toto and no amount of

corroboration can cure that defect”.

44. Further the Hon’ble Supreme Court in the case of

Piara Singh (supra) relied upon by the CBI, has observed that
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“evidence of interested or inimical witnesses is to be scrutinised

with care but cannot be rejected merely on the ground of being a

partisan evidence. If on a perusal of the evidence the Court is

satisfied that the evidence is creditworthy there is no bar in the

Court relying on the said evidence”. Similar view has also been

taken by the Hon’ble Apex Court in the case of Seemon alias

SectionVeeranam v. State through Inspector of Police reported in 2005

CriLJ 2618″.

45. In the background of above settled law, on close

scrutiny of evidence, it appears that, so far factum of occurrence,

place of occurrence, date of occurrence and manner of

occurrence is concerned, PW-4, PW-5 and PW-7 also support

the prosecution case in their evidence, as discussed above, and

their evidence also shows that occurrence has taken place and on

the date of occurrence deceased Chandra Shekhar Prasad and

Shyam Narayan Yadav received injuries and both of them died.

46. Apart from that PW-12, who is the informant in this

case, no doubt he has been declared hostile, but, as discussed

above, his evidence disclosed the time of occurrence, place of

occurrence and factum of occurrence of firing and his evidence

also disclosed that at J.P.Chawk at 4:00 P.M., meeting was to be

addressed by deceased Chandra Shekhar Prasad, Shyam
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Narayan Yadav, Bhrigurashan Patel (PW-2) and Ramdeo Ram

(PW-20) though this witness has turned hostile but his evidence

further disclosed that he heard that Chandra Shekhar Prasad and

Shyam Narayan Yadav were killed by accused persons on

31.03.1997 at 4:00 P.M. and he has proved his signature on the

fardbeyan also and attention of this witness has been drawn

towards statement made before the police as well as to the CBI

which he has denied but PW-16, CBI Officer, has been

confronted with the statement of PW-12, and he has stated that

PW-12 has disclosed about Bihar Band and deceased persons as

well as PW-2 and PW-20 were on campaign and accused

persons came and made indiscriminate firing. Considering the

fact as stated above, it appears that PW-12 is not coming with

true fact and is concealing the same. In the present case,

occurrence is at 16:00 hours and FIR has been lodged

immediately after the occurrence at 17:00 hours in which all

accused persons are named and there is also mention of

disclosure made by Shyam Narayan Yadav (deceased) and

further, disclosed that PW-2 and PW-20 were present at the time

of occurrence and as such lodging of prompt FIR rules out the

possibility of manipulation and addition in FIR. The Hon’ble

Apex Court also considered this aspect of matter in a decision in
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the case of SectionRavinder Kumar Anr. v. State of Punjab reported

in AIR 2001 (SC) 3570 and observed that ” of course, a prompt

and immediate lodging of F.I.R. is the ideal as that would give

the prosecution a twin advantage. First is that it affords

commencement of the investigation without any time lapse.

Second is that it expels the opportunity for any possible

concoction of a false version”.

47. PW-13 and PW-20 have also been declared hostile in

this case, but evidence of PW-13 has also disclosed that Chandra

Shekhar Prasad and Shyam Narayan Yadav were killed on

31.03.1997 at J.P.Chawk and evidence of PW-20 also disclosed

the presence of deceased Shyam Narayan Yadav, Chandra

Shekhar Prasad and PW-2 at J.P.Chawk at 4:00 P.M. in

connection with Bihar Band and he, receiving information of

firing, reached there and saw Chandra Shekhar Prasad had died

and Shyam Narayan Yadav had fallen and PW-2 received injury

on his back. According to this witness (PW-20), he has also

donated blood to Shyam Narayan Yadav. His attention has also

been drawn towards the statement made before the CBI and the

CBI officer (PW-16) has also been confronted with the same and

that disclosed, he is suppressing the material fact and that

appears to be liar. Hence, his evidence is of no help to the
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appellant. On the other hand, their evidence supports the

prosecution case about the factum of occurrence, date of

occurrence and place of occurrence and also about the fact that

deceased persons received injuries and died in the occurrence.

48. It is well settled principle that evidence of such

witness cannot be treated as effaced or washed off the record

altogether, but the same can be accepted to the extent his version

is found to be dependable on a careful scrutiny thereof (reported

in Khuji alias Surendra Tiwari (supra) and Arjun (supra).

49. Hence, from the discussions made above, it is evident

that PW-12, PW-13 and PW-20 tried to conceal the material fact

with the purpose of shielding and protecting the appellant, may

be due to fear or they might have been gained over and for that

appellant will not be allowed to get any benefit.

50. Apart from that in the case of SectionHemudan Nanbha

Gandhi vs. State of Gujarat reported in 2019 Cri.L.J 736,

wherein the prosecutrix-informant has been declared hostile, the

Hon’ble Apex Court, considering the judgment in the case of

SectionState vs. Sanjeev Nanda reported in (2012) 8 SCC 450, has

observed that “…if a witness becomes hostile to subvert the

judicial process, the court shall not stand as a mute spectator and

every effort should be made to bring home the truth. Criminal
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justice system cannot be overturned by those gullible witnesses

who act under pressure, inducement or intimidation. Further,

Section 193 IPC imposes punishment for giving false evidence

but is seldom invoked” and further held in paras 9 and 10 of its

judgment, which reads thus:-

“9. A criminal trial is but a quest for truth. The
nature of inquiry and evidence required will depend
on the facts of each case. The presumption of
innocence will have to be balanced with the rights
of the victim, and above all the societal interest for
preservation of the rule of law. Neither the accused
nor the victim can be permitted to subvert a
criminal trial by stating falsehood and resort to
contrivances, so as to make it the theatre of the
absurd. Dispensation of justice in a criminal trial is
a serious matter and cannot be allowed to become a
mockery by simply allowing prime prosecution
witnesses to turn hostile as a ground for acquittal,
as observed in Zahira Habibullah Sheikh vs. State
of Gujarat, (2006) 3 SCC 374 and Mahila Vinod
Kumari vs. State of Madhya Pradesh, (2008) 8 SCC

34. If the medical evidence had not confirmed
sexual assault on the prosecutrix, the T.I.P. and
identification therein were doubtful, corroborative
evidence was not available, entirely different
considerations may have arisen.

10. It would indeed be a travesty of justice in the
peculiar facts of the present case if the appellant
were to be acquitted merely because the prosecutrix
turned hostile and failed to identify the appellant in
the dock, in view of the other overwhelming
evidence available. SectionIn Iqbal vs. State of U.P., 2015
Patna High Court CR. APP (DB) No.21 of 2013
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(6) SCC 623, it was observed as follows:

“15. Evidence of identification of the
miscreants in the test identification parade is
not a substantive evidence. Conviction cannot
be based solely on the identity of the dacoits
by the witnesses in the test identification
parade. The prosecution has to adduce
substantive evidence by establishing
incriminating evidence connecting the
accused with the crime, like recovery of
articles which are the subject matter of
dacoity and the alleged weapons used in the
commission of the offence.”

51. Considering the same, it appears that even though

PW-12 and PW-20 have been declared hostile but their evidence

also supports the prosecution case so far date of occurrence,

place of occurrence and manner of occurrence are concerned, as

such their such evidence3 can be used for coming to just

decision of the case.

52. One of the arguments of learned counsel for the

appellant is that no independent witness has been examined in

the present case in spite of the occurrence taken place in a

crowded place, however, this court cannot shut its eyes towards

the situation prevailing in the society where witnesses are not

willing to come forward to support the prosecution case. The

Hon’ble Apex Court, in the case of SectionRamesh and others v. State

of Haryana reported in 2017 Cri. L.J. 352 SC, has observed this
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fact in paras 35 and 36 of the judgment, which reads as follows:-

“35. We find that it is becoming a common
phenomenon, almost a regular feature, that in
criminal cases witnesses turn hostile. There could
be various reasons for this behaviour or attitude of
the witnesses. It is possible that when the
statements of such witnesses were recorded under
Section 161 of the Code of Criminal Procedure,
1973 by the police during investigation, the
Investigating Officer forced them to make such
statements and, therefore, they resiled therefrom
while deposing in the Court and justifiably so.
However, this is no longer the reason in most of the
cases. This trend of witnesses turning hostile is due
to various other factors. It may be fear of deposing
against the accused/delinquent or political pressure
or pressure of other family members or other such
sociological factors. It is also possible that
witnesses are corrupted with monetary
considerations.

36. In some of the judgments in past few years, this
Court has commented upon such peculiar behaviour
of witnesses turning hostile and we would like to
quote from few such judgments. SectionIn Krishna Mochi
v. State of Bihar, this Court observed as under:

“31. It is matter of common experience that in
recent times there has been sharp decline of
ethical values in public life even in developed
countries much less developing one, like
ours, where the ratio of decline is higher.

Even in ordinary cases, witnesses are not
inclined to depose or their evidence is not
found to be credible by courts for manifold
reasons. One of the reasons may be that they
Patna High Court CR. APP (DB) No.21 of 2013
43/56

do not have courage to depose against an
accused because of threats to their life, more
so when the offenders are habitual criminals
or high-ups in the Government or close to
powers, which may be political, economic or
other powers including muscle power.

53. In the case of SectionAppabhai and another vs. State of

Gujarat reported in AIR 1988 SC 696, the Hon’ble Apex Court

has also considered this aspect of the matter and has observed in

para 36, which reads as follows:-

” 36. It is no doubt true that the prosecution has not
been able to produce any independent witness to
the incident that took place at the bus stand. There
must have been several of such witnesses. But the
prosecution case cannot be thrown out or doubted
on that ground alone. Experience reminds us that
civilized people are generally insensitive when a
crime is committed even in their presence. They
withdraw both from the victim and the vigilante.

They keep themselves away from the Court unless
it is inevitable. They think that crime like civil
dispute is between two individuals or parties and
they should not involve themselves. This kind of
apathy of the general public is indeed unfortunate,
but it is there everywhere whether in village life,
towns or cities. One cannot ignore this handicap
with which the investigating agency has to
discharge its duties. The court, therefore, instead of
doubting the prosecution case for want of
independent witness must consider the broad
spectrum of the prosecution version and then search
for the nugget of truth with due regard to
probability if any, suggested by the accused. The
Patna High Court CR. APP (DB) No.21 of 2013
44/56

Court, however, must bear in mind that witnesses to
a serious crime may not react in a normal manner.
Nor do they react uniformly. The horror stricken
witnesses at a dastardly crime or an act of
egregious nature may react differently. Their,
course of conduct may not be of ordinary type in
the normal circumstances. The Court, therefore,
cannot reject their evidence merely because they
have behaved or reacted in an unusual manner. SectionIn
Rana Pratap v. State of Haryana 1988 (3) S.C.C.
327 O. Chinnappa Reddy J. speaking for this Court
succinctly set out what might be the behaviour of
different persons witnessing the same incident”.

54. Besides that, this Court is aware of the fact that in the

present case, earlier deceased Chandra Shekhar Prasad’s mother

was threatened and thereafter while he along with others were

campaigning for Bihar Band, they have been killed at a crowded

place at J.P.Chawk and as such if the witnesses turned hostile or

not named the accused persons, the Court cannot ignore the fact

that due to fear or any gainful means, some of the witnesses

have turned hostile and others have not come forward with truth.

55. Considering the above facts, the evidence of PW-2,

on discussion, is found to be wholly reliable and that has also

been corroborated by the evidence of PW-4, PW-5, PW-7, PW-

10 as well as PW-12 and PW-20 ,so far date of occurrence, place

of occurrence and factum of occurrence is concerned, in which

deceased persons were shot dead and PW-2 has received injuries
Patna High Court CR. APP (DB) No.21 of 2013
45/56

and PW-5 and PW-7 have also received injuries. The evidence

of PW-6 and PW-8, who are doctors, also corroborates the

evidence of PW-2 and other witnesses, as they found the injuries

over the persons of PW-2, PW-5, PW-7 and PW-8, and PW-6

conducted the postmortem examination on the dead body of

deceased persons.

56. Besides that, PW-1, though not an eye witness of the

occurrence, but he reached at the place of occurrence and the

hospital immediately after the occurrence and his evidence

disclosed that deceased Shyam Narayan Yadav disclosed him the

names of accused persons including the appellant and that part

of the evidence of PW-1 appears to be in relation to the fact in

issue and part of the same transaction. Hence, that appears to be

relevant under Section 6 of the Indian Evidence Act. However,

the evidence of PW-1 was assailed by the learned counsel for the

appellant, firstly, on the ground that the evidence of PW-6 does

not show that deceased Shyam Narayan Yadav was in a fit state

of mind and secondly, on the ground that though the evidence of

PW-1 and PW-2 shows that oral dying declaration has been

made in presence of police officials, but there is no such

evidence of police officials available on record.

57. On scrutiny of evidence of PW-1, it appears that when
Patna High Court CR. APP (DB) No.21 of 2013
46/56

he reached hospital, Chandra Shekhar Prasad had died and

Shyam Narayan Yadav was in injured condition, he was uttering

something and officer-in-charge of Town Police Station also

reached there and Shyam Narayan Yadav disclosed that

appellant and other accused persons fired at them. Even in his

cross-examination, PW-1 has stated that whatever Shyam

Narayan Yadav was telling, same was listened by others also and

further after statement of PW-12, deceased became unconscious.

Evidence of PW-2 also disclosed recording of statement of

Shyam Narayan Yadav by the Officer-in-charge and Satyadeo

Ram (PW-1), Ramesh Singh Kushwaha (PW-12) and Samsuddin

Mian (PW-13) were present there. Though there is slight

variation in the evidence of PW-1 and PW-2, but as discussed

above, some discrepancies are bound to occur as the power of

observation differs from person to person and what one may

notice another may not and they can only be recalled the version

and it is unrealistic to expect a witness to depose like a parrot.

58. Apart from that, Officer-in-Charge (PW-9) has not

been cross-examined. So far evidence of PW-6 is concerned, no

doubt he was cross-examined about the state of deceased Shyam

Narayan Yadav to show that he was not in a position to speak

but his cross-examination clearly disclosed that he has stated in
Patna High Court CR. APP (DB) No.21 of 2013
47/56

case of Shyam Narayan Yadav, there were three holes of

wounds, which he cannot say whether it was caused by bullet or

pellet, massive laceration of lungs in both case will cause

immediate haemorrhage, which will cause immediate acute

respiratory distress. Both these condition will cause loss of

speech. However the aforesaid opinion of doctor is suggestive

only and no suggestion was given to doctor that deceased was

not in a condition to speak at the time of admission whereas

there are oral evidence of PW-1 and PW-2 available on record,

which has been corroborated by the fardbeyan (Ext. 4) that

shows that deceased Shyam Narayan Yadav has named the

appellant.

59. So far submission of learned counsel for the appellant

that there is no certification by the doctor, the Hon’ble Apex

Court in the case of SectionState of Madhya Pradesh v. Dal Singh

reported in AIR 2013 SC 2059, has considered this aspect and

held in para 14, which reads as follows:-

14. The law on the issue can be summarised to the
effect that law does not provide who can record a
dying declaration, nor is there any prescribed form,
format, or procedure for the same. The person who
records a dying declaration must be satisfied that
the maker is in a fit state of mind and is capable of
making such a statement. Moreover, the
requirement of a certificate provided by a Doctor in
Patna High Court CR. APP (DB) No.21 of 2013
48/56

respect of such state of the deceased, is not
essential in every case.

Undoubtedly, the subject of the evidentiary
value and acceptability of a dying declaration, must
be approached with caution for the reason that the
maker of such a statement cannot be subjected to
cross-examination. However, the court may not
look for corroboration of a dying declaration,
unless the declaration suffers from any infirmity.

So far as the question of thumb impression is
concerned, the same depends upon facts, as regards
whether the skin of the thumb that was placed upon
the dying declaration was also burnt. Even in case
of such burns in the body, the skin of a small part of
the body, i.e. of the thumb, may remain intact.
Therefore, it is a question of fact regarding whether
the skin of the thumb had in fact been completely
burnt, and if not, whether the ridges and curves had
remained intact”.

60. The Hon’ble Apex Court in case of Pothakamuri

Srinivasulu alias SectionMooga Subhaiah v. State of Andhra Pradesh

reported in AIR 2002 SC 2780, while dealing with the similar

facts observed in para -8 of its judgment, reads as follows:-

“8 It was submitted by Ms. Nanita Sharma, the
learned counsel for the appellant that for several
reasons the dying declaration cannot be believed.
She submitted that looking to the nature of the
injuries suffered by the deceased possibly she could
not have spoken and must have become
unconscious instantaneously. However, no such
suggestion has been made to any of the witnesses
including the two doctors who respectively
conducted the medico-legal examination and post-

Patna High Court CR. APP (DB) No.21 of 2013
49/56

mortem examination of the victim. On the contrary
the three eye-witnesses have positively stated that
the deceased was speaking when they had met her
soon after the incident. The victim had died tow
days after the incident. We cannot in the face of this
positive evidence just assume that the injured must
have become unconscious and speechless because
of the injuries and discard on such assumption the
dying declaration deposed to by independent
witnesses corroborated by the promptly lodged
FIR.

61. As discussed above, PW-9, who has recorded the

statement of deceased, has not been cross-examined on the point

whether deceased Shyam Narayan Yadav was able to speak,

even no suggestion has been given to that witness and no

suggestive has also been given to PW-1 and PW-2 that deceased

Shyam Narayan Yadav was not in a fit state of mind to speak, as

cited by learned counsel for the CBI, held in case of SectionGian

Chand Others v. State of Haryana reported in 2013 (4) PLJR

(SC) 7, in para-11 and 12 which reads as follows:

11. The effect of not cross-examining a witness on
a particular fact/circumstance has been dealt with
and explained by this Court in Laxmibai (Dead)
Thr. SectionL.Rs. Anr. v. Bhagwanthuva (Dead) Thr.
L.Rs. Ors., AIR 2013 SC 1204 observing as
under:

“31. Furthermore, there cannot be any dispute
with respect to the settled legal proposition, that
if a party wishes to raise any doubt as regards
the correctness of the statement of a witness, the
Patna High Court CR. APP (DB) No.21 of 2013
50/56

said witness must be given an opportunity to
explain his statement by drawing his attention to
that part of it, which has been objected to by the
other party, as being untrue. Without this, it is
not possible to impeach his credibility. Such a
law has been advanced in view of the statutory
provisions enshrined in Section138 of the
Evidence Act, 1872, which enable the opposite
party to cross-examine a witness as regards
information tendered in evidence by him during
his initial examination in chief, and the scope of
this provision stands enlarged by Section 146 of
the Evidence Act, which permits a witness to be
questioned, inter-alia, in order to test his
veracity. Thereafter, the unchallenged part of his
evidence is to be relied upon, for the reason that
it is impossible for the witness to explain or
elaborate upon any doubts as regards the same,
in the absence of questions put to him with
respect to the circumstances which indicate that
the version of events provided by him, is not fit
to be believed, and the witness himself, is
unworthy of credit. Thus, if a party intends to
impeach a witness, he must provide adequate
opportunity to the witness in the witness box, to
give a full and proper explanation. The same is
essential to ensure fair play and fairness in
dealing with witnesses.”

12. The defence did not put any question to the
Investigating Officer in his cross-examination in
respect of missing chits from the bags containing
the case property/contraband articles. Thus, no
grievance could be raised by the appellants in this
regard.

62. Learned counsel for the appellant has also referred
Patna High Court CR. APP (DB) No.21 of 2013
51/56

to a decision in the case of Umakant (supra)with respect to

dying declaration, wherein, Hon’ble Supreme Court has laid

down certain guidelines in para-20 of the said judgment which

also disclosed that where the court is satisfied that declaration is

true and voluntarily, it can base its conviction without further

corroboration. In the present case, as discussed above, evidence

of PW-2 disclosed that deceased Shyam Narayan Yadav

disclosed the names of assailants including appellant and that

has also found mentioned in fardbeyan (Ext.4) lodged promptly

after occurrence. In that background, this oral dying declaration

appears to be reliable and trustworthy. Now the question arises,

as to whether statement made by deceased Shyam Narayan

Yadav before his death is relevant in determining the cause of

death of deceased Chandra Shekhar Prasad or not. The said

question was considered by the Hon’ble Apex Court in the case

of SectionTejram Patil v. State of Maharashtra reported in 2015

Cri.L.J.1829 in which the Hon’ble Apex Court after considering

Sections 6 and Section32 of the Indian Evidence Act as well as several

other pronouncements of Hon’ble Apex Court including the

cases SectionKashiram Tukaram Jadhav v. State of Maharashtra

reported in 1984 Cri.L.J. 1447 (Bom), of Ratan Gond v. State of

Bihar reported in AIR 1959 SC 18, of Sharad Birdhi Chand
Patna High Court CR. APP (DB) No.21 of 2013
52/56

SectionSarda v. State of Maharashtra reported in (1984) 4 SCC 116 as

well as in the case of SectionPakala Narayan Swami v. Emperor

reported in AIR 1939 PC 47, has held in para 25 of the judgment

that “it is thus clear that the DD is admissible not only in

relation to the cause of death of the person making the statement

and as to circumstances of the transaction which resulted in his

death, if the circumstances of the said transaction relate to death

of another person, the statement cannot be held to be

inadmissible when circumstances of “his” death are integrally

connected to the circumstances of death of such other person.”

In the present case, the statement made by the Shyam Narayan

Yadav before his death is not only relates to circumstances of

the present case resulting in his death but it also shows the

transaction resulting in death of deceased Chandra Shekhar

Prasad and as such his evidence is admissible with regard to

circumstances of transaction resulting in his death as well as the

death of deceased Chandra Shekhar Prasad.

63. Learned counsel for the appellant also argued that FIR

lodged by the CBI is the second FIR, as already FIR has been

lodged by the Bihar police on the statement of PW-12 as such

second FIR is hit under Section 162 Cr.P.C. However, from

perusal of record, it appears that FIR lodged by the CBI is
Patna High Court CR. APP (DB) No.21 of 2013
53/56

nothing else but reiteration of statement made by PW-12 and on

that basis investigation continued and even charge sheet has

been submitted by the CBI but no such objection was raised

before the trial court as such trial cannot be vitiated on that

ground specially when there are enough cogent and reliable

materials available on record.

64. Apart from that, defence has also examined 04

witnesses and even according to Dws-1,2 and 3, occurrence of

firing took place on 31.03.1997 though those witnesses has tried

to develop that some Bhutias were firing and there is evidence

of DW-4 on the point of alibi of appellant, but their evidence

clearly disclosed that they have not depose earlier before the

police or CBI during investigation and for the first time, they are

appearing before the court and taking such plea. Besides that,

the evidence of DW-1 and DW-2 also disclosed that deceased

Shyam Narayan Yadav and Chandra Shekhar Prasad died in that

occurrence.

65. The statement of appellant recorded under Section 313

Cr.P.C. also disclosed that he has not taken any plea of alibi in

his statement.

66. So far motive of occurrence is concerned, the

evidence available on record disclosed that local M.P. was not
Patna High Court CR. APP (DB) No.21 of 2013
54/56

happy with the deceased persons and he had threatened Chandra

Shekhar Prasad earlier. As per evidence of PW-3, appellant and

other accused persons are men of local M.P. and as such while

the deceased persons and others were campaigning for Bihar

Band and addressing the meeting, they were killed in broad day

light in a crowded place as such there are materials to prove the

motive behind the occurrence.

67. The appellant was convicted under Sections 302/Section149,

Section307/Section149 and Section120B of the Indian Penal Code as well as under

Section 27 of the Arms Act, however, learned counsel for the

appellant has also assailed his conviction under Section 120B on

the ground that there is no evidence available on record to show

that accused persons conspired with someone to kill the

deceased.

68. The Hon’ble Supreme Court in the case of Yogesh

alias SectionSachin Jagdish Joshi vs. State of Maharashtra reported in

(2008) 10 SCC 394 has considered the said aspect of the matter

and it is manifest that meeting of mind of two or more persons

for doing an illegal act by illegal means is sine qua non of the

criminal conspiracy but it may not be possible to prove the

agreement between them by direct proof. Nevertheless,

existence of the conspiracy and it objective can be inferred from
Patna High Court CR. APP (DB) No.21 of 2013
55/56

the surrounding circumstances must form a chain of events from

which a conclusion about the guilt of the accused could be

drawn. It is well settled that an offence of conspiracy is

substantive offence and renders the mere agreement to commit

an offence punishable even if an offence does not take place

pursuant to the illegal agreement, as such, this Court does not

find force in the argument of learned counsels for the appellant

that no case under Section 120B of the Indian Penal Code is

made out against the appellant.

69. Considering the entire discussions made, we find that

PW-2 is an injured and eye witness and his evidence found to be

reliable and trustworthy, he supported the prosecution case so

far date of occurrence, place of occurrence, manner of

occurrence and named the appellant and other accused persons

as assailants and the same has been corroborated by oral dying

declaration of deceased Shyam Narayan Yadav, just after the

occurrence, further been corroborated in part by other evidence

as discussed above. As such there are sufficient cogent and

reliable evidence available on record against the appellant.

70. We, thus, find no infirmities in the impugned

judgment and order. As such conviction and sentence of the

appellant under Sections 302/149, 307/149 and 120B of the
Patna High Court CR. APP (DB) No.21 of 2013
56/56Section

Indian Penal Code and Section 27 of the Arms Act is upheld.

71. Accordingly, this appeal is dismissed.

( Vinod Kumar Sinha, J)

Aditya Kumar Trivedi, J I agree.

(Aditya Kumar Trivedi, J)

sujit/-
AFR/NAFR NAFR
CAV DATE 26.02.2019
Uploading Date 10.05.2019
Transmission Date 10.05.2019

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