Baban Ojha v. The State of Bihar

Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 3 lifted to hospital. She had further narrated physical feature of Sepoy who had shot at her husband.

3. On the basis of the aforesaid fardbeyan Mokama GRP Case No. 106 of 1984 was registered whereupon investigation was taken up and during course thereof the assailant was identified as Baban Ojha the appellant against whom chargesheet was submitted consequent thereupon after completing legal formalities the case was committed and the appellant/accused faced trial which ultimately concluded in his conviction, being subject matter of the instant appeal.

4. The defence case as appears from the mode of cross-examination as well as from the statement recorded under Section 313 of the Code Criminal Procedure is of innocence as well as complete denial of the occurrence. Side by side, it has also been pleaded that as the passengers were insisting to vacate the lady waiting room wherein the police picket was stalled, there was scuffle as the unruly mob unsuccessfully tried to snatch away the rifles and during course thereof there was an accidental firing for which the appellant/accused could not be held responsible.

5. While assailing the judgment of conviction and sentence it has been submitted on behalf of the appellant that the learned trial court has proceeded with instant trial in mechanical manner because of the fact that there Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 4 happens to be sufficient material coming from the mouth of the prosecution witnesses itself right from the fardbeyan that there was pelting of stones as well as unruly mob also tried to break open the door of the room wherein police personnels were staying which probabilised the case of the defence and also inspired confidence to that extent that during course of scuffle on account of snatching of rifle, there was accidental firing and on account thereof the deceased sustained injury for which neither any knowledge nor any sort of intention could be attributed against the appellant. Therefore, conviction under Section 302 of the Indian Penal Code is not at all maintainable. It has further been submitted that there happens to be total absence of positive and concrete evidence with regard to identity of the appellant to be assailant of the deceased because of the fact that neither the appellant was ever put on test identification parade during course of investigation nor the witnesses have any occasion to know and identify the Appellant by name. Not only this, the prosecution has not been able to place by cogent and reliable evidence that the rifle which was allotted to the appellant was ever used on the alleged date and time of occurrence. In the likewise manner, it has also been submitted that there happens to be absence of ballistic report on the record. So, it cannot conclusively be held that the rifle which was possessed by Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 5 the appellant being a Sepoy was ever used for the purpose of commission of crime.

6. Learned counsel has also submitted that save and except P.W.4, Sheoji Kumar, one of the sons of the deceased Vijay Singh, none others namely, Baidhnath Kumar as well as Pankaj Kumar have been examined nor there happens to be any sort of explanation at the end of the prosecution. It has further been submitted that whoever have been examined in this case are not genuine passengers whose presence was expected at the relevant time at the platform rather they happen to be interested, partisan and chance witnesses and their presence at the place of occurrence from their own depositions appear to be doubtful. It has also been submitted that inconsistency and variance having amongst P.Ws. is suggestive of the fact that none of the P.Ws. were actually present at the place of occurrence.

7. Further criticizing the evidence of the informant, Malida Devi, it has been submitted that her evidence is fit to be rejected in the background of the fact that there happens to be delay of six hours in recording her fardbeyan without any explanation. It has further been submitted that her presence at the platform with an explanation to have her journey to Barahiya is not at all convinciable in the background of the fact that no railway ticket was ever produced during course of Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 6 investigation nor during trial. As such, her presence along with P.W.5 and other children at the railway platform, Barh became shaky and is fit to be disbelieved. On account thereof, the ocular evidence whatsoever adduced on behalf of the prosecution is fit to be rejected.

8. It has further been submitted that on account of non-examination of the Investigating Officer there happens to be serious prejudice to the interest of the appellant on account of having material contradiction in the evidence of the P.Ws. which could have, in case properly and legally been brought up on record, demolished their status to be eye witnesses but could not be effected due to absence of Investigating Officer. In the likewise manner, it has also been argued that on account of non- examination of the Investigating Officer, the deficiencies persisting in the prosecution case with regard to place of occurrence, identification of appellant, possession of rifle, seizure of rifle etc. have not properly been brought up on record as well as delay in recording the F.I.R.

9. It has further been urged on behalf of the appellant that there happens to be inconsistency amongst the ocular evidence with medical evidence because of the fact that there happens to be consistent prosecution version regarding assault by rifle from point blank range while the doctor, P.W.9, during course of conduction of Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 7 post mortem (Ext.2) had not found any charring, blackening or tattooing mark in or around the injury and on account thereof belied the prosecution version with regard to manner of assault so suggested. So, it has been urged that in the aforesaid background as well as the deficiency persisting in the prosecution case this appeal is fit to be allowed.

10. On the other hand, learned Additional P.P. while supporting the finding arrived at by the learned trial court has submitted that there was no necessity for holding Test Identification Parade in the background of the fact that soon after the occurrence, the appellant was pin pointed to be assailant of the deceased. The witnesses who come across named the appellant soon after the occurrence and named the appellant during course of their statement recorded under Section 161 of the Code of Criminal Procedure. It has further been submitted that the evidence adduced during course of trial happens to be substantive piece of evidence and during course thereof all the witnesses have categorically stated and claimed identification in court which the appellant failed to impair. It has further been submitted that from Ext.5 series, production-cum-seiuzrelist it is evident that the rifle allotted and possessed by the appellant was also seized and was sent for ballistic examination. Unfortunately, appellant a Sepoy Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 8 sympathetically treated by his brother colleague and in the aforesaid background, as it appears, in spite of having a large number of police personnels including the Investigating Officer shown as chargesheet witnesses failed to turn up and on account thereof, the relevant report could not be brought up on record. It has further been submitted that P.W.10, Ramchandra Singh, Assistant Station Master who was on duty at the relevant date and time at Barh Railway Station had categorically supported the occurrence as well as apprehension of the appellant. Now coming to the ocular evidence, it has been submitted that apart from others, P.W.5 and P.W.6 have shown their presence at the time of occurrence in natural way and proved themselves as sterling witness.

11. Coming to the inconsistencies having amongst ocular as well as medical evidence, it has been submitted that there happens to be no controversy in between. There was a single shot and post mortem report confirms the same. Absence of charring, blackening or tattooing mark in or around the injury is of no consequence of the fact that the deceased was not bare or naked rather it was expected being at Station to be properly dressed and on account thereof, rightly there happens to be absence of smoke in or around the injury. It has further been submitted that there happens to be consistent evidence adduced on behalf of the prosecution and consequent Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 9 thereupon, the finding arrived at by the learned trial court is fit to be confirmed.

12. Before coming to give our anxious look towards the prosecution version, the record speaks presence of altogether 11 witnesses examined on behalf of the prosecution, out of whom, P.W.1 is Arjun Ram, P.W.2 is Satyendra Prasad Singh, P.W.3 is Vijay Kuamr, P.W.4 is Bhuneshwar Singh, P.W.5 is Sheoji Kumar, P.W.6 is Malida Devi, P.W.7 is Vijay Kumar Singh, P.W.8 is Satyendra Prasad Yadav, P.W.9 is Dr.Digamber Jha, P.W.10 is Ramchandra Singh and P.W.11 is Tripit Narayan Singh. Side by side also exhibited Ext.1 series, signatures of the witnesses over relevant documents, Ext.2 is post mortem report, Ext.3 is Station Master‟s diary dated 03.10.1984, Ext.4 is fardbeyan, Ext.5 series are different production-cum-seizurelist and Ext.6 is entry of Station Diary dated 03.10.1984.

13. Before coming to the evidence, it is to be noted down that out of 30 witnesses, named in the chargesheet containing large number of police personnels including Havildar posted/deputed on the relevant date at Barh Railway Station none have been examined save and except the public witnesses as disclosed above. In likewise manner, although there happens to be so many relevant reports including ballistic report available on the case diary, the reason best known to the prosecution, those Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 10 documents have also not been brought up on the record. Admittedly, there also happens to be non-examination of the Investigating authority. In the aforesaid backdrop of eventuality, now let us examine the medical evidence at first instant. The following ante-mortem injuries were found on the person of the deceased: (i) Small circular penetrating wound with clean and inverted margin on the right lateral side of chest, just right to the lower end of scapula - 1 cm in diameter, chest cavity deep-The wound was bleeding. (ii) Lacerated penetrating wound of 3x4” diameter with everted and ragged margin as the left side of chest wall over the fourth inter costal space near anterior axillary fold. The post mortem was conducted on 03.10.1984 at 4.30 P.M. and the time elapsed since death has been estimated as about 3 hours. That means to say it covers time, the alleged time of occurrence. During cross-examination, the defence could not be able to shake his finding. Not only this, no cross-examination was ever made on the issue of absence of blackening, tattooing or charring around the injury from the doctor; as a result of which the plea raised on behalf of the appellant has no leg to stand by.

14. Now coming to the evidence of ocular witness, apart from having the suggestion given to P.W.6 at paragraph 9 Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 11 wherein the theme of accidental firing has been introduced and further death of the deceased on account thereof has been admitted, also being confronted by P.W.5, her son, virtually lend to an assurance at the end of appellant admitting death of deceased by means of fire arm at his end. Now keeping the aforesaid theme in the background, although this event is not going to exonerate the prosecution from liability to prove its case, as such, we proceed ahead to scrutinize the evidence. It is evident from deposition of P.W.6 that she had stated and reiterated the prosecution version whatever she had narrated during course of her fardbeyan. She in paragraph 2 of her examination-in chief had further claimed identification identity accused/appellant in dock. Surprisingly, when her cross- examination has been gone through the appellant has not challenged claim of identification made by the informant P.W.6. When her cross-examination on other aspect including presence of P.W.5 along with her other family members has been gone through, she had categorically stated in paragraphs 5 and 6 of her cross-examination. Therefore, the defence could not be able to demolish her either on the material point or on the point of identification.

15. P.W.5 happens to be son of informant P.W.6 as well as deceased who had also accompanied along with other Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 12 family members and was in way to Barahiya: his „Mamhar . ’ In examination-in-chief he had categorically stated that after sitting on a Bench by the side of waiting room at the platform while deceased had gone to bring ticket her sister had unfortunately gone near the waiting room where Sepoy were present and who, on that very score scolded them. Thereafter one constable who was armed with rifle came and directed them to leave the place. Till then his father came after obtaining ticket who had disclosed that just now train is coming so they will automatically leave the place. Thereafter, the constable began to abuse resulting in an altercation and during said course constable aimed at his father and fired causing injury to his father resulting instantaneous death. Then he had narrated the subsequent event wherein the police personnel influenced by their fuddle and fierce action also caused murder of one lady passenger who was sitting in a bogie as well as caused injury to one male passenger having inside bogie by indiscriminate firing. He also claimed identification of the accused by name and face. This witness has been cross-examined at length on behalf of the appellant conspicuously he has not been cross-examined on the factum of identification. Apart from this, this witness even being minor faced rigor of cross-examination on all material aspect bravely and shown his status as sterling one, at least supported with paras 6,8 and 9. Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 13

16. There is no reason to discard testimony of P.W.5 and P.W.6 only on the ground that they are family members when they stood firm to defence to have their natural presence at Barh Railway Station along with deceased. This issue has been tested times without number by the Hon‟ble Apex Court and in the case of Namdeo V.State of Maharashtra reported in (2007) 14 SCC 150: (2009) 1 SCC(Cri)773 has been held as follows: “28. From the aforesaid discussion, it is clear that Indian legal system does not insist on plurality of witnesses. Neither the legislature (Section 134 of the Evidence Act, 1872) nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eyewitness, therefore, has no force and must be negatived.

29. It was then contended that the only eyewitness, PW 6 Sopan was none other than the son of the deceased. He was, therefore, “highly interested” witness and his deposition should, therefore, be discarded as it has not been corroborated in material particulars by other witnesses. We are unable to uphold contention. In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised as “interested”. The term “interested” postulates that the witness has some direct or indirect “interest” in having the accused somehow or the other convicted due to animus or for some other oblique motive.‟ (emphasis in original) 27. It will be useful to make a reference of another judgment of this Court, in Satbir Singh v. State of U.P., where this Court held as under: (SCC p. 799, para 26) Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 14 „26. It is now a well-settled principle of law that only because the witnesses are not independent ones may not by itself be a ground to discard the prosecution case. If the prosecution case has been supported by the witnesses and no cogent reason has been shown to discredit their statements, a judgment of conviction can certainly be based thereupon. Furthermore, as noticed hereinbefore, at least Dhum Singh (PW 7) is an independent witness. He had no animus against the accused. False implication of the accused at his hand had not been suggested, far less established.‟ 28. Again in a very recent judgment in Balraje v. State of Maharashtra this Court stated that: (SCC p. 679, para 30) „30. … When the eyewitnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically. The court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed towards the accused. But if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same.‟”

17. Now coming to remaining eye witnesses that means to say P.W.1, P.W.2, P.W.3, P.w.4, P.W.7 and P.W.8 it is evident that there happens to be slight variance amongst them over activities prior to the commission of occurrence and that is not found to be relevant for the purpose of proving the fact in issue that means to say the murder of deceased Vijay Singh in no way found to be stenched nor it could be found adverse to prosecution case, as presence of these witnesses at the platform. However, with regard to actual occurrence wherein deceased Vijay Singh was done to death, their evidences are found coherent, prepotent Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 15 and in likewise manner happens to be over the factum of identification of appellant Baban Ojha.

18. The evidence of P.W.10, the Station Master, additionally put panache over prosecution case as he contended that while he was on duty on 03.10.1984 at about

2.15 P.M. he heard sound of firing. Few minutes thereafter a mob had come to his office and disclosed that one of the constable of BMP had shot at one person belonging to village Berhana and in the aforesaid background he had informed all the official concerned including GRP Mokama, SDO, Mokama, Dy.S.P. Mokama and GRP Barh. At about 2.20 P.M. 328 down passenger train arrived at the station. Local police officials are arrived. Then he heard another sound of firing and thereafter came to know with regard to death of a female passenger who was traveling from the aforesaid 328 down passenger train as well as sustaining of fire arm injury by a male passenger inside a bogie. He had also found the dead body of one person lying in front of GRP outpost. He had also found the dead body of a female passenger kept at the platform. He had noted all the events in his diary and the same happens to be Ext.3. He had also disclosed that the investigating authority had seized blood stained earth as well as had also seized rifle for which seizure list was prepared over which he had put his signature and exhibited the same. During cross-examination, defence has failed to Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 16 elicit adverse to prosecution version.

19. With regard to status of the witnesses, it has been settled at rest by a catena of decisions identifying three categories of witness: (a) wholly reliable (b) wholly unreliable and (c) partly reliable and partly not reliable. This third category virtually gives obligation upon the shoulder of the court by way of shifting the grain from chaff that means to say separating the truth from falsehood. The aforesaid principle has been made applicable while considering the evidence of the witnesses whose version is found embodied with contradiction and embellishment. Having the evidence of P.Ws. scrutinized through aforesaid rigor, nothing abnormal has been found to discredit the same.

20. Although no cross-examination has been made on behalf of the appellant on the score of identification. Identification in court, for the first time and its relevance, has been taken into consideration by the Hon‟ble Apex Court taking into account the earlier pronouncement in the case of Shyamlal Ghosh.Vrs.The State of West Bengal reported in (2012) 7 SCC paged 646. The relevant paragraphs 78,79,80 and 81 are as follows: contended “78. On behalf of accused Shyamal, it was identification parade being held, he was not identified by the witnesses and also that the identification parade had been held after undue delay and even when details about the incident had already been telecasted on the television. Thus, the Court should not rely despite Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 17 upon the identification of the accused persons as the persons involved in the commission of the crime and they should be given the benefit of doubt.

79. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. agency accused Failure identification

80. It is equally correct that CrPC does not oblige investigating necessarily hold the test identification parade. identification police parade custody, does not by itself render the evidence inadmissible or unacceptable. There have been numerous identified by the witnesses in the court for the first time. One of the views taken is that identification in court for the first time alone may not form the basis of conviction, but this is not an absolute rule. The purpose of the test identification parade is to test and strengthen the trustworthiness accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence is however subjected to exceptions. Reference can be made to Munshi Singh Gautam v. State of M.P.18 and Sheo Shankar Singh v. State of Jharkhand 8. evidence. It

81. Identification parade is a tool of investigation and is used primarily to strengthen the case of the prosecution on the one hand and to make doubly sure that persons named as the accused in the case are actually the culprits. The identification parade primarily investigation by the police. The fact that a belongs Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 18 particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in court. Thus, it is only a relevant consideration which may be examined by the court in view of other attendant circumstances and corroborative evidence with reference to the facts of a given case.”

21. Basing thereupon, in the case of Ravi Kumar.Vrs.State of Rajasthan reported in (2012) 9 SCC page 284, the Hon‟ble Apex Court in paragraph 37 held as follows: ”37. In our considered view, it was not necessary to hold the test identification parade of the appellant for two reasons. Firstly, the appellant was already known to the passers-by who had recognised him while driving the bus and had stated his name and, secondly, he was duly seen, though for a short but reasonable period, when after parking the bus, he got down from the bus and ran away.”

22. A faint argument has been made, as discussed above, with regard to discrepancy having in between the ocular as well as medical evidence. More particularly, as per ocular evidence, the entry injury has been shown towards left side while exit happens to be on right side. On the other hand, the doctor had found wound of entry through right side having corresponding injury of exit at left side. Apart from the fact that when there happens to be discrepancy in between the ocular evidence has got primacy but, being the totality of the event is not going to affect the prosecution case, then in that event it cannot be construed that there happens to be inconsistency in Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 19 between nor it could be treated as irreconciliable. After all the injury happens to be at both the end. The aforesaid ticklish question has been taken up and explained in the case of Kuriya and another.Vrs.The State of Rajasthan (2012) 10 SCC page 433. The relevant paragraphs 19,20 and 21 are as follows: “19. This Court has consistently taken the view that except where it is totally irreconcilable with the medical evidence, oral evidence has primacy. In Abdul Sayeed v. State of M.P.2 this Court held as under: (SCC p. 274, paras 38-40) “38. In State of U.P. v. Hari Chand3 this Court reiterated the aforementioned position of law and stated that: (SCC p. 545, para 13) „13. ... In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy.‟

39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-(cid:224)-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.

40. In the instant case as referred to hereinabove, a very large number of assailants attacked one person, thus the witnesses cannot be able to state as how many injuries and in what manner the same had been caused by the accused. In such a fact situation, discrepancy in medical evidence and ocular evidence is bound to occur. However, it cannot tilt the balance in favour of the appellants.”

20. A similar view was taken by this Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 20 Court in Baso Prasad v. State of Bihar4 wherein this Court held as under: (SCC p. 74, paras 27-28) “27. In some cases, medical evidence may corroborate the prosecution witnesses; in some it may not. The court, however, cannot apply any universal rule whether ocular evidence would be relied upon or the medical evidence, as the same will depend upon the facts and circumstances of each case. No hard- and-fast rule can be laid down therefor.

28. It is axiomatic, however, that when some discrepancies are found in the ocular evidence vis-(cid:224)-vis medical evidence, the defence should seek for an explanation from the doctor. He should be confronted with the charge that he has committed a mistake. Instances are not unknown where the doctor has rectified the mistake committed by him while writing the post-mortem report.” held as under: (SCC pp.

21. In Krishnan v. State5 this Court 62-63, paras 18 & 20-21) “18. The evidence of Dr Muthuswami (PW 7) and Dr Abbas Ali (PW 8) do not run in any way contrary to the ocular evidence. In any event, the ocular evidence being cogent, credible and trustworthy, minor variance, if any, with the medical evidence is not of any consequence.

23. On this score, it also appears to be useful to refer Kalu Alias Amit.Vrs. State of Haryana with Joginder and another Vrs. State of Haryana reported in (2012) 8 SCC page 34. The relevant paragraph 14 is as follows: “14. It was also urged that PW 5 Ram Chander Yadav has stated that a bandage was put on the deceased but the evidence does not bear out the statement. This is really a minor discrepancy, which does not affect the prosecution case. So far as discoveries made at the instance of the accused are concerned, it was argued that they are shrouded in suspicion because the earlier statements were Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 21 retracted by the accused. This submission has no merit. The trial court as well as the High Court has rightly noted that the accused had tried to mislead the investigating agency by making false statements. No fault could be found with the discoveries. There is nothing unusual in the accused jumping over the wall and running away. They are young. They can easily cross over the wall by jumping.”

24. Non-examination of Investigating Officer could not be treated as deficiency persisting in the prosecution case and on that very score it cannot be universally accepted for rejection of the prosecution case unless and until a serious prejudice has been shown. In this case, nothing could be traced out, more particularly, with regard to material contradiction, fixing of place of occurrence as well as lapses, if any, during conduction of investigation.

25. At the present juncture, one should not loss sight of the statement recorded under Section 313 of the Code of Criminal Procedure wherein the appellant had at one occasion denied his presence at the place of occurrence while answering to question : dgk tkrk gS fd djhc 10&15 feuV ckn vkiyksxksa us Hkhrj ls ,d “ gksdj njoktk [kksyk vkSj vkids lkfFk;ksa us jkbZQy ls nks Qk;j fd;s vkSj vki lHkh ogk¡ ls fudydj IySV QkeZ ds xsV ls ckgj fudy Hkkxsa A vkidk D;k dguk gS \** he had admitted his presence and further disclosed that his other companions fled away from the platform while he remained there up to 11.00 P.M. After having the situation pacified, he came out from there. Therefore, his Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 22 presence by such admission is found at the time of commission of the occurrence. However, the appellant did not opt to stick over the suggestion whatever been given to P.W.5 as well as P.W.6 with regard to accidental firing. So far legal sanctity of statement is concerned, the same has fully been explained under Section 313 Cr.P.C. Moreover, sub-section (4) of Section 313 Cr.P.C. permits the court to use the disclosure made by the accused during course thereof.

26. This has been plea raised on behalf of the appellant relating to delay in institution of case. This issue has been magnified by learned counsel in a way that had there been presence of P.W.6, informant, at the station, she could not be allowed to sit there for such long duration without having proper care at the hands of administration. So it appears that she was brought from her house and then set up as an informant.

27. This question finds properly answered by the facts and circumstances of the case as well as from the evidence of P.W.10. It is an admitted fact that after shouting incident there was commotion, mob came to P.W.10, who informed the administration as well as G.R.P. Mokama who had jurisdiction, as such, from the evidence available on the record, the delay finds plausible explanation.

28. Thus, after analyzing and crystallizing the evidences on record it is found and held that the Patna High Court CR. APP (DB) No.252 of 1990 dt.10-01-2013 23 prosecution has succeeded in proving its case beyond all reasonable doubt against the appellant. Consequent thereupon, the appeal is found to be devoid of merit and is accordingly, dismissed. The appellant is on bail. Hence his bail bond is cancelled with a direction to surrender before the learned lower court to serve out the remaining part of sentence.

29. It will be unfair on our part if we do not appreciate the assistance rendered by Sri Ranbir Singh, learned Amicus Curiae appearing for the appellant.

30. Let copy of first page and last page of this judgment be given to Mr. Ranbir Singh, Advocate so that he may get his prescribed fee from High Court Legal Services Committee, Patna. (Shyam Kishore Sharma, J) (Aditya Kumar Trivedi, J) Patna High Court, Patna Dated, the 10th January, 2013 Tahir/-(NAFR)