S BHAGWANPUR v. THE STATE OF BIHAR
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL APPEAL (DB) NO.116 OF 1990 ======================================================== 1. BAUDH BIND SON OF JANKI BIND 2. DUDH NATH BIND SON OF SAHDEO BIND 3. GANGA BIND @ GANGA RAM BIND SON OF THEGARI BIND 4. CHHATU BIND SON OF JANKI BIND 5. BANGA BIND SON OF RAM BACHAN BIND 6. NATHUNI BIND SON OF RAM BACHAN BIND ALL RESIDENT OF VILLAGE- BAHERI, P.S.- BHAGWANPUR, DISTRICT- ROHTAS 7. RAM BACHAN KOIRI @ RAM BACHAN SINGH KOIRI RESIDENT OF VILLAGE- NAUHATTA, P.S.- BHAGWANPUR, DISTRICT- ROHTAS .... .... APPELLANT/S BHAGWANPUR, VERSUS THE STATE OF BIHAR ……………………...... .... RESPONDENT/S WITH CRIMINAL APPEAL (DB) NO. 117 OF 1990 ======================================================== SHEO PUJAN BIND SON OF JANKI BIND, R/O VILLAGE- BAHERI, ROHTAS P.S.- (SASARAM)…………………………………………………… APPELLANT/S VERSUS THE STATE OF BIHAR ……………………...... .... RESPONDENT/S ======================================================== Against the judgment of conviction and order of sentence dated 8th February, 1990 passed by Sri Shiv Shankar Prasad, 10th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 120/18 of 1987/87 ======================================================== DISTRICT- APPEARANCE : FOR THE APPELLANT/S : Mr. B. P. Pandey, Sr. Adv. Mr. Pramod Kumar, Adv. Mr. Pravin Kumar Sinha, Adv. FOR THE RESPONDENT/S : MR. Ajay Mishra, APP ======================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA AND HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT (PER: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) DATE: 07-03-2013 Initially Cr. Appeal (DB) No. 116 of 1990 was filed by altogether nine appellants out of whom appellants Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 2 namely, Ram Bachan Bind and Janki Bind died during the pendency of this appeal hence, appeal against them had hold (already been) abated vide order dated 4.3.2013. 2. Appellant Sheo Pujan Bind who has been found guilty for the offence punishable under section 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life while remaining appellants Baudh Bind, Dudh Nath Bind, Ganga Bind, ChhathuBind, Banga Bind, Ram Bachan Koiri, and Nathuni Bind have been found guilty for the offence punishable under sections 302/149 of the Indian Penal Code and directed to undergo rigorous imprisonment for life, all the appellants named above have further been found guilty for the offence punishable under sections 324/149, 201 of the Indian Penal Code respectively, but no separate sentence was passed there for by the learned 10th Additional Sessions Judge, Rohtas at Sasaram vide judgment dated 8.2.2990 passed in Sessions Trial No. 120 of 1987 / 18 of 1987 have filed these two appeals. 3. With the consent of the parties both the appeals have been heard together and are being disposed of by this common judgment. 4. Surendra Ram, PW 9, got recorded the Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 3 First Information Report on 21.9.1986 at about 11.30 AM (Ext. 1) alleging inter alia that on 20.9.1986 at about 7.00 PM while he was at his grocery shop which is attached with his residential house, Buchni Ram (alleged deceased) along with Ramashray Paswan were there to purchase household articles, in midst thereof, Shivdhar Bind (since deceased during course of trial) happens to be the brother-in-law of Sheopujan Bind armed with country made firearm along with another unknown person who was also armed came and inquired about his father Ram Bilash Ram. On his disclosure that his father is present at the shop itself, Shivdhar Bind had directed him to accompany him as Sheopujan Bind was calling. On refusal, it has been alleged that Shivdhar Bind assaulted with hunter over head of his father which was resisted by Ramashray Paswan by saying to bring the Farsa. Shivdhar Bind along with his companion left the place. Thereafter, Buchni Ram escaped therefrom seeing whom Banga Bind said that he is Ram Bilas, kill him and accordingly, Sheopujan Bind
Legal Reasoning
fired from gun causing instantaneous death. He along with his father after closing the shop have gone to their roof and from there in torch light they have seen Buchni Ram lying about 10-12 yards north in a Gali where Sheopujan Bind was standing along with gun. Second Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 4 shot was again made by Sheopujan Bind over Buchni Ram. He had identified Dudhnath Bind armed with country made pistol who was keeping watch, Chattu Bind armed with Garansa standing in the Gali, rest were armed with lathi. They were also threatening that whoever will come, will be murdered. Then, thereafter, Nathuni Bind, Ram Bachan Bind, Ram Bachan Singh Koiri dragged the dead body of Buchni Ram towards east near the house of Sheopujan Bind. On the other hand Janki Bind and Ganga Bind engaged themselves in washing the blood having over the earth by pouring water and, then scraping through Farsa. Thereafter, the dead body was kept in a bag and was taken away by the accused persons. Many villagers including Doma Harijan, Ram Dular Harijan, Jagarnath Ram, Ramdhani Harijan, Rama Dubey came, saw the place of occurrence as well as also inquired from him regarding the occurrence. During course thereof they have also come to know with regard to injury caused to Laxminiya Devi (PW 1) and Mina Devi (PW 11). The motive for the occurrence has been shown on account of dispute over construction of a temple. 5. On the basis of aforesaid fard-beyan Bhagwanur P.S. Case No. 101 of 1986 was registered whereupon investigation commenced and after concluding the Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 5 same chargesheet was submitted on account of which the case was committed to the Court of Sessions and ultimately the appellants have faced the trial with ultimate consequence which happens to be the subject matter of the instant appeal. 6. The defence case as is evident from the mode of cross-examination as well as from their statement recorded under section 313 Cr.P.C., is of complete denial of occurrence. They have also pleaded that on account of long standing animosity prevailing amongst the parties, they have been falsely roped in. 7. While assailing the judgment of conviction and sentence recorded by the learned trial court, it has been submitted by the learned counsel for the appellants that material witness Ramashray Paswan has not been examined nor there happens to be any sort of explanation at the hand of prosecution with regard to his non-examination. His status was that of impartial witness because of the fact that the appellants have got no grudge, therefore, in case Ramashray would have been examined, certainly the real and accurate prosecution version would have been unfolded. Withholding Ramashray suggest quite otherwise. Non-examination of Ramashray also to be taken as fatal to the prosecution case in the background of Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 6 the fact that who ever been examined on behalf of the prosecution, they all are interested, inimical and so there was every possibility at their hands to get the appellants punished on any score in the background of the fact that the appellant Sheopujan Bind had already instituted a case wherein warrant of arrest non-bailable was issue against the prosecution parties. 8. Now coming to the status of the witnesses, it has been submitted that after going through the injury report of both the injured witnesses i.e. PW 1 Laxminia Devi and PW 11 Mina Kumari, it is evident that they have sustained blackening and charring injury on account of thereof one could infer that they were assaulted from close range approximately within 2-5 feet and so, it was expected at their end to have proper identification of their assailant during course of commission of the crime. Non-disclosure by these two prosecution witnesses with regard to their assailants is subtend the fact that at least these appellants who happens to be the co- villages were not at the spot and further were not the authors of the injuries sustained by PWs 1 and 11. In likewise manner it also negates the prosecution version with regard to firing made by Sheopujan Bind leading to fatal injury over the person of Buchni, as alleged. Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 7 Then learned counsel for the appellants submitted that the identification of the appellants also happens to be the major set back to the prosecution case. The prosecution, since its inception, had claimed identification by means of torch which was flashed by PW 9 Surendra Ram (informant) from their roof but the aforesaid source of identification could not be accepted in the background of the fact that all the appellants happens to be the co-villagers and secondly the aforesaid source of identification was never produced before the Investigating authority during the course of investigation nor seized. Not only this, some of the witnesses seeing that they would not be able to substantiate the source of identification, had shown appellant Dudhnath Bind carrying a torch contrary to the initial version and while he was flashing torch, enable them to identify the culprit. Some of the witnesses have gone to the extent that at that very time the electric light was there and on account thereof that they have identified the appellants. All these things had not been found by the investigating authority during inspection of place of occurrence and so, the source of identification is found shrouded in mist. 9. Now coming to the other aspect, it has been submitted that there happens to be only one family Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 8 belonging to the informant Surendra Ram who is commanding the prosecution case as PW 7 happens to be his father, while PW 4 happens to be his mother who claimed themselves to be the eye witness to the occurrence. With regard to remaining witnesses, none of them have claimed to have witnessed the occurrence though some of them tried to support the prosecution version. 10. PW 15 happens to be the Investigating Officer. During course of investigation it is evident that he had completely lost sight of collecting evidence which was to be procured by him by having the blood stained earth examined by the FSL at least to suggest that the blood which was seized by him from the Gali happens to be that of human being in the background of the fact that it is an admitted case of the prosecution that dead body was not at all found. So, the cumulative effect of infirmities persisting on the prosecution case did not justify the concurrence of the judgment impugned. 11. Per contra, it has been submitted by the learned Additional Public Prosecutor that evidence in its totality has to be seen. It is an admitted fact that both the parties are at loggerheads and that happens to be the motive for commission of the occurrence. PW 7 Ram Bilash was taken to a Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 9 task and for that he was being called on by Sheopujan Bind wherein they failed and in the aforesaid background under mistaken identity they have committed the murder of Buchni and during the said course Laxminiya Devi and Mina Kumari have also sustained injury. The evidence of the doctor PW 10 corroborates the same. So far occular evidence is concerned, it has been submitted that at least PW 7, PW 9 and PW 14 had categorically stated and tested themselves to be an eye witness to the occurrence and therefore, simply on the ground that the prosecution witnesses carrying animosity with the appellants, their evidence would not be discarded. It has further been submitted that other witnesses had clearly corroborated the evidence of these three eye witnesses. Hence, the finding recorded by the learned trial court is fit to be confirmed. 12. In order to substantiate its case, the prosecution had examined altogether 15 prosecution witnesses, out of whom PW 1 is Laxminiya Devi, PW 2 is Fula Devi, PW 3 is Doma Ram, PW 4 is Ramdhani Ram, PW 5 is Jagarnath Ram, PW 6 is Kaliya @ Ram Kaliya Devi, PW 7 is Ram Vilash Ram, PW 8 is Ram dular Ram, PW 9 is Surendra Kumar Ram, PW 10 is Dr. Shyam Sundar Singh, PW 11 is Mina Kumari, PW 12 is Raghunath Ram, PW 13 is Rama Dubey, PW 14 is Retri Deviand Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 10 PW 15 is Ram Suresh Sharma. The prosecution had also exhibited fard-beyan as Ext. 1, Injury reports of Mina Kumari and Laxminiya Devi are Ext. 2 series, Seizure list is Ext. 3 and blood stain earth is material Ext. 1. Side by side the defence had also exhibited Ext. A certified copy of FIR of Bhagwanpur P.S. Case No. 55 of 1986, Ext. A/1 is certified cop of Bhagwanpur P.S. Case No. 30 of 1986. However, no defence witness has been examined. 13. Now coming to the status of witnesses, PW 1 and PW 11 are injured one, out of whom PW 11 has been tendered. PWs 3, 4, 5 and 6 are the witnesses standing on hearsay category. PW 12 and PW 13 were declared hostile. PW 2 as well as PW 8 have supported the prosecution case to some extent. Therefore, now the prosecution case rest on the shoulder of PW 7 Ram Bilash Paswan father of PW 9 Surendra Ram and PW 14 Tetri Devi the wife of PW 7 and mother of PW 9. 14. Before having a glance over the evidence of PW 7, 9 and 14, the evidence of remaining witnesses should be taken first. PW 1 had stated that while she was returning from the grocery shop of Surendra Ram and was in midst of way, there was firing and during course thereof she sustained gun Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 11 shot injury at her left hand and left knee. She had not named anybody. Mina Kumari, PW 11 was tendered for cross- examination by the prosecution. Their injuries were examined by Dr. Shyam Sundar Singh (PW 10) who had found following injuries:- (A) Injury of Mina Kumari: (i) one lacerated injury on left upper eye lid ¼” x 1/6” x skin deep, there is blackening and charring mark on the skin. Age of injury within 24 hours. Simple injury caused by fire arm. (B) Injury of Laxminia Devi: (i) one lacerated injury on left arm 1 ½” x ¼” tissue deep. There is blackening and charring mark on its skin. (ii) Another lacerated injury on the left arm ½” x ¼” x wound of exit. This is connection of injury no. 1 and 2. (iii) Another lacerated injury on the back of right knee joint ½” x ¼” x tissue deep. There is blackening and charring mark on skin. Age of injury within 24 hours. All injuries are simple in nature and caused by fire arm. After going through the successive injury report (Ext. 2 and 2/1 respectively) there happens to be specific finding of the doctor that the injuries were carrying charring and on Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 12 account thereof, close proximity of the assailant happens to be fully supported. It is needless to remind that all the appellants are co-villager. Presence of PW 1 has not been co-related either by the First Information Report or from the evidence of PW 7 as well as PW 9. Not only this, this PW 1 had not disclosed that there was any light in the Gali or coming out from the houses situated by its side or adjacent thereto. Admittedly she had sustained injury while she was in the Gali where the occurrence as stated was committed where the prosecution alleges murder of Buchni. Therefore, source of light as developed by prosecution is found to be shaky one. 15. Another set of witness happens to be that of PW 6 Kaliya @ Ram Kaliya Devi who is the wife of deceased. She had simply stated that after hearing the sound of firing she had gone to Darwaja and found her husband having gun shot injury. She further stated that she came to know that accused persons were intending to murder somebody else than her husband. After death of her husband she became unconscious. Again she said that she came to know that Sheopujan Bind had murdered her husband. From her examination-in-chief alone, it is evident that she is not an eye witness to the occurrence. Side by side it has contradicted the Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 13 version of the prosecution that the deceased had sustained injury in Gali and from there the dead body of the deceased was lifted away by the appellants because of the fact that she had seen her husband at Darwaja where he died. That is not the case of the prosecution. 16. Now the third set of witness on this score happens to be PW 2. She had narrated that while she was inside her house, she had closed her door after hearing the successive firing sounds followed with uproar. She had seen the occurrence from a hole having in her darwaja and identified Sheopujan Bind armed with double barral gun, Chhatu with Garansa, Baudh with double barral gun, Banga with gun and Dudhnath with country made pistol. She had further disclosed that at that very time the lantern was not lit but in paragraph 3 of her examination-in-chief she narrated that there was light of bulb wherein she had seen. After completion of the occurrence she had gone to shop of Ram Bilash where she came to know that Buchni was murdered. From her cross- examination, it is evident that she had admitted pendency of case since before institution of the instant case by Sheopujan Bind against her husband and others. From paragraph 7 of the cross-examination it is also Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 14 evident that she had claimed to have shown the hole to the investigating authority. In paragraph 8 she had admitted that it was electric light. But she had herself demolished her own evidence subsequently by adding that after departure of accused the electric bulb lit out. At the time of occurrence it was dark night. In paragraph 9 she has disclosed that these persons along with outsiders had committed the murder. In paragraph 12 she had admitted that she had not seen the dead body of Buchni. Therefore, this witness by her own admission had shown the identification of the accused improbable. PW 3 happens to be another witness who had come at the road after hearing the sound of firing from his house where Sheopujan Bind had aimed upon him. He escaped from there. After some time he again appeared but was fired by Banga Bind. Then he has named the other accused who were speaking that they will not allow Harizan to remain there. He also saw Chattu, Nathuni, Baudh, Janki and Ram Bachan Koiri carrying the dead body towards eastern direction. Thereafter, Janki Bind carried water near the house of Ram Bilash and then all the accused persons left the place. Subsequently Surendra Ram had narrated them that the accused persons have committed murder of Buchni. He had seen the blood stain earth as well as Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 15 sign of washing of the blood from the earth. During cross- examination at paragraph 7 he had admitted that he had not seen the occurrence. He had further admitted that it was a dark night. In paragraph 8 he had admitted the pendency of case since before instituted by Sheopujan Bind against them. In paragraph 9 he had said that he had not seen any body injured at the road during course of firing contrary to the evidence of PW 1 and PW 11. 17. PW 4 has stated that on the alleged date and time of occurrence, he came to the Gali after hearing the sound of uproar and identified only Sheopujan. Then he had gone to the place of occurrence where Surendra Ram had narrated that accused persons were in search of his father but he had not met so, Buchni was murdered. Surendra Ram had also disclosed the names of other accused persons. He had not seen the dead body of Buchni at the place of occurrence. He also came to know that the dead body of Buchni was taken away by the accused persons. Therefore, from the examination- in-chief of this witness alone, it is evident that he had shown presence of Ram Bilash (PW 7) doubtful. So far as his claim as an eye witness is concerned. He had not found any body save and except Sheopujan Bind and that also happens to be the Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 16 contrary to the prosecution case and on going near the house of Surendra Ram from where he came to know the names of other co-accused but not Sheopujan Bind as an assailant so, narrated by PW 9 Surendra Ram. 18. PW 5 while was coming from Nawadah bazar heard sound of firing and on account thereof, hidden himself. He had seen Sheopujan Bind armed with gun, Bagan with gun, Dudhnath with country made firearm, Chattu with Garansa, Ram Bachan Bind, Baudh Bind, Ram Bachan Koiree, Shivadhar, Nathuni Bind, Banga Bind among others who were standing at the road. Janki Bind was washing the blood. Dead body was being carried by Chattu and Baudh and during that course they were saying that it is the dead body of Buchni and not of Ram Bilash. He had rushed to the place of Surendra and from whom he came to know that instead of his father, Buchni was murdered. At paragraph 11 he said that at that time darkness had fallen, electric light were lit. In paragraph 12 he had categorically stated that he had seen the occurrence then he controverted that he had not seen the occurrence. He had said that Sheopujan had committed the murder. In paragraph 15 he had admitted presence of litigation since before. Therefore, after scrutiny of the evidence of aforesaid witness, it Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 17 is evident that none of them happens to be the eye witness to the occurrence apart from the fact that by their conduct they have made presence of so called eye witnesses doubtful at the relevant time of occurrence as suggested by them. In this line the evidence of PW 8 should also be considered. During his examination in chief he had said that after hearing sound of firing he proceeded from his house and during course thereof he hidden in gali as again firing had resorted. When hue and cry was over, he came to the place of occurrence, which happens to be Darwaja and shop of Ram Bilash Ram where Surendra Ram had disclosed that Chattu Bind, Ganga Bind, Janki Bind, Ram Bachan Bind, Shiv Pujan Bind, Baudh Bind, Dudhnath Bind, Shivdhar Bind, Ram Bachan Koiri, Nathuni Bind along with others have caused murder of Buchni Ram and took away his dead body. He had also seen the blood stain. The dead body of Buchni Ram was not located. During cross-examination at paragraph 11, he had categorically stated that he had not seen any dead body on the road. At paragraph 12 he had stated that he arrived at the shop of Surendra Ram alone. Surendra Ram and his father were present at the shop. After that Surendra Ram said nothing. In paragraph 17 it has been disclosed that the place of occurrence Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 18 was slippery and there was sign of foot steps. 19. Now coming to evidence of so called eye witnesses. First of all the evidence of Tetri Devi PW 14 is dealt with. She had deposed that Buchni Ram was murdered on the alleged date and time of occurrence. She was in her room adjacent to her shop. Shivdhar Bind along with other had come to her shop who were armed with country made pistol and inquired about her husband who was present there. Her son was also there. Buchni and Ramashray Ram were also there. Shivdhar Bind directed her husband to accompany which was refused and on account thereof Shivdhar Bind assaulted her husband with hunter. Then, thereafter, Shivdhar and his companion came out from the shop. Buchni went along with the articles which he had purchased. After closing the shop, her husband as well as her son went over roof having torch while she began to see from the hole having in the door. At that very time Banga Bind had ordered to kill followed by firing made by accused Sheopujan Bind which struck Buchni as a result of which he fell down. Sheopujan had said that still he is alive and then another firing was made by him. Sheopujan also fired 4-5 rounds. Dudhnath was carrying country made pistol as well as torch, rest were also armed accordingly. She had witnessed the Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 19 occurrence in the torch light flashed by Dudhnath Bind. Thereafter, Chattu Bind taken away the dead body of Buchni Ram. Janki Bind poured water at the place of occurrence as well as also scraped the same. Laxminiya and Mina Kumri have also sustained gun shot injury. Dead body of Buchni Ram could not be traced. So, from her examination-in-chief, it is evident that she had not disclosed the source of identification by a torch light flashed by her husband as well as by her son from the roof rather she claimed identification from the torch light flashed by one of the appellants Dudhnath Bind. During cross- examinations she had categorically stated that she had not gone on the roof till there was presence of accused persons. There happens to be a hole in the door of her shop which was shown to the Investigating Officer during course of inspection and from that hole she had witnessed the occurrence. She has further stated that she had opened the door of her shop after departure of the accused persons. She had further shown the place of occurrence to be at a distance of 2-3 hands from her shop. 20. PW 7 is the person who was being called on by Sheopujan and for whose appearance, Shivdhar along with other had gone to his shop. He during examination- Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 20 in-chief had deposed that on the alleged date and time of occurrence while he along with Surendra Ram (his son) was inside the shop, Ramashray Ram and Buchni Ram came. Buchni Ram had come to purchase potato while Ramashray had come to sale the rice. At that very time Shivdhar Bind and one more duly armed with country made pistol came and directed Surendra to come to temple of Shivjee which was refused by him on the plea of darkness. On call by Ramashray to bring Garansa, Shivdhar along with other came out from his shop. Then, thereafter, Ramashray and Buchni left the shop. Thereafter, they have closed the shop and have gone to roof with a torch. They have seen that Banga had enticed Sheopujan to kill Buchni to be Rambilash over which Sheopujan fired causing injury upon the person of Buchni. He fell down. Sheopujan again fired on account of which Buchni died. At that very time Banga was armed with single barrel gun. He had identified Dudhnath Bind armed with country made pistol along with torch, Nathuni Bind armed with country made pistol, Ram Bachan Bind with lathi, Ram Bachan Koiri with lathil, Baudh Bind with lathi, Janki Bind with lathi and Chattu Bind with Country made pistol. Sheopujan Bind and Banga Bind were standing near the dead body of Buchni. Thereafter, Ram Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 21 Bachan Bind, Ram Bachan Koiri and Nathuni lifted the dead body of Buchni and Baudh and Janki engaged in washing of blood. The accused persons caused disappearance of the dead body of Buchni. The accused persons also fired indiscriminately to terrorize the local inhabitants. On account of construction of temple there was a rift in between two groups resulting commission of the instant offence. Hectic search was made to trace out the dead body of Buchni by the Chowkidar and Dafadar but failed. During cross-examination at paragraph 19 he had stated that at the time of occurrence lantern was burning. As the accused persons have come to apprehend him, so he became very much apprehensive. In paragraph 21 he had stated that he had seen the occurrence in the torch light. He had flashed the torch for about half an hour. The accused persons had fired at the time of flashing of the torch light. In paragraph 22 he had stated that Sheopujan and Banga were in Gali and some of the accused persons were dragging the dead body. Some were engaged in washing the blood. He had seen the accused persons in a torch light. In paragraph 24 he had deposed that the Investigating Officer had not directed him to produce the torch but he had stated before the Police that he had identified the accused in a torch light. The Police had said Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 22 that keep the torch. Although during cross-examination he had narrated regarding identification in flashing of torch but from his examination-in-chief, it appears that he had not stated like so. He had not stated in his examination-in-chief that accused Shivdhar Bind had assaulted him with hunter. 21. PW 9 happens to be the informant Surendra Ram. He had stated that on the alleged date and time of occurrence while he was in his shop, Ramashray and Buchni came. His father was also present in the shop. Thereafter, Shivdhar Bind, who happens to be the brother-in-law of Sheopujan Bind, along with one unknown person came duly armed with a country made pistol and inquired about his father over which he disclosed that he is present here. Shivdhar directed his father to accompany him to Shankar Asthan as there was call by Sheopujan Bind which was refused by his father. Shivdhar assaulted his father with hunter. Ramashray and his father made call to bring Gransa over which both of them came out from the shop. After some times Buchni had also left and then, after closing the shop they have gone over roof along with torch. In torch light he had seen Banga Bind armed with single barrel gun who directed Sheopujan to kill Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 23 over which Sheopujan shot at Buchni causing injury on account of which he fell down. Sheopujan repeatedly fired over Buchni. Chattu Bind was armed with Garansa and was standing in Gali. Dudhnath Bind was shouting running armed with country made pistol. Baudh Bind was running with lathi and rest accused persons were causing firing. All these things were witnessed by him in a torch light. Nathuni Bind, Ram Bachan Bind and Ram Bachan Koiri dragged the dead body while Janki Bind, Ganga Bind were engaged in removing the blood. Accused persons then, gone to the place of Sheopujan Bind where they have kept the dead body in a bag and took it away. Mina Kumari and Laxminiya Devi have also sustained gun shot injury. He had disclosed the event to the villagers. On account of dispute over construction of temple, instant occurrence has been committed. During cross-examination, at paragraph 12 he had stated that after seeing Shivdhar Bind and one more person they became apprehensive to the extent that the accused persons may commit murder of his father. In paragraph 24 he had deposed that he was on the roof for half an hour. The firing was made at some interval. In paragraph 26 he had disclosed that the Police had come in the night itself along with Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 24 Chowkidar Butan and Dafadar. He had narrated the event to the Police. Again in paragraph 27 he had disclosed that his statement was taken at Police Station. The Police had also inquired from Chowkidar and Dafadar. In paragraph 28 he had also stated that he had already disclosed the source of identification. In paragraph 29 he had stated that Ramashray had come to his shop at the time of occurrence and first of all Buchni had gone from his shop and then, Ramashray. Again the aforesaid thing has been controverted in paragraph 30 disclosing the that Ramashray and Buchni had left his shop jointly. Then had again said that he had seen Buchni and Ramashray going towards his house. Therefore, he had contradicted over status of other eye witnesses. He had not stated that as soon as he flashed light, accused had fired at him. In likewise manner, he had not shown Dudhnath possessing torch. He had not stated that he had placed torch before the Investigating Officer. Further more, there was presence of Police official at the night itself. 22. PW 15 happens to be the Investigating Officer. In chief he had stated that on 21.9.1986 at about. 11.30 AM Surendra Ram along with two injured came at the Police Station and gave his fard-beyuan on the basis of Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 25 which after registration of the case he took up the investigation. He had recorded further statement of the informant, sent the injured Laxminiya Devi and Mina Kumari to hospital after preparation of injury report as well as after recording their statements. Then, proceeded towards the place of occurrence along with informant and had inspected the place of occurrence which happens to be the shop as well as the residential house of Surendra Ram and further the place, Gali 10-12 yards away from the house of Surendra Ram. He had found blood at the place of occurrence as well as had also found the place having sign of sprinkling of water as well as scraping of soil. He had seized the blood stain earth in presence of seizure list witnesses. He had also seen the roof duly fenced by iron sheet up to 2-3 feet height and one could very well see all around even during daytime as well as night. He had arrested Ram Bachan Singh Koiri. Recorded statement of witnesses, procured injury report of two injured Laxminiya Devi and Mina Kumari and tried to search out the dead body but could not find and then he endorsed the previous statement of witnesses Raghunath Ram as well as Rama Dubey who were declared hostile. He also visited the place where construction of temple was going on and then after concluding the investigation, he submitted Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 26 chargesheet. During cross-examination at paragraph 38 he had stated that he had not seen hole having over the door of the respective witnesses through which they have claimed to have witnessed the occurrence. He had also narrated in paragraph 41 that witness Ram Bilash Ram had not claimed before him identification through torch. 23. Now having conjoint reading of the evidence of the witnesses, it is abundantly clear that there happens to be embellishment over manner of identification. True it is that appellants are co-villages of the prosecution witnesses and on account thereof, identification in the torch light appears to be not a sole source rather from their voice, appearance, gait it was expected at the ends of the prosecution witnesses to have identification of the accused persons. Contrary to it, as it is evident that some of the witnesses claimed to have identified the accused bulb in electric light, some had claimed identification though flashing of torch by one of the accused Dudhnath while PW 7 and PW 9 have claimed identification through the torch which they carried up to the roof from where they claimed to have witnessed the occurrence. As is evident from the evidence of the investigating officer PW 15, he had negatived the assertion of the informant on this very Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 27 score that the torch was ever produced by the informant or by PW 7, his father or PW 14, his mother. That means to say the source of identification still shrouds in mist and on account thereof, the identification as claimed by the prosecution witnesses became doubtful. 24. As stated above, from the nature of evidences, it is evident that save and except own family members of informant Surendra Ram (PW 9) no others have supported the case of the prosecution in the manner as deposed by them. It also appears to be an admitted fact that there happens to be strain relationship amongst the parties on account of construction of temple. Moreover, the cases filed on behalf of appellant Sheopujan Bind since before the occurrence also happens to be there wherein the family members of PW 9 are actively involved. In the case of Kartik Mallah Vs. The State of Bihar reported in 1996 Criminal Law Journal 889 as well as Rakesh and Anr. Vs. State of Madhya Pradesh JT 2011 (10) SC 525 it has been held; appreciating the evidence of witness considering him as the interested witness, the court must bear in mind that the term „interested‟ postulates that the witness must have direct interest in having the accused somehow or the other convicted for some other reason”. From Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 28 the nature of evidence, it is manifest that witnesses whoever been examined on behalf of the prosecution, particularly the family members of informant PW 9 fell in the aforesaid category and on account of their admission on that very score is suggestive of the fact that they are bent upon to get the appellants convicted. In Shyamal Ghosh Vs. The State of West Bengal reported in 2012 Cr. Law Journal page 3825 at paragraph 34 it has been held that “it is a settled principle of law that the Court should examine the statement of witness in its entirety and read the said statement along with the statement of other witnesses only to arrive at the rational conclusion. No statement of a witness can be read in part and/or in isolation.” Following the aforesaid principle when the evidence of the prosecution witnesses whoever been examined is taken together, it clearly indicate that none others have claimed to be an eye witness to occurrence and whatever they gathered as hear say evidence, came from the mouth of informant whose evidence in connection with his own family members or is found inconsistent as well as contradictory. Apart from this, the evidence of prosecution witnesses are found full of snip so far source of identification is concerned. Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 29 25. At the present moment, deficiency of investigation has also to be noted down. The I. O., PW 15, had categorically stated that he had seized the blood stain soil from the place of occurrence but it was never sent to FSL to find out whether the blood happens to be of a human being. Further more, from the evidence of the witnesses, it is apparent that the accused persons have dragged the dead body towards the house of Sheopujan but from the objective finding of the I. O. as incorporated in paragraph 8, it is apparent that he had not mentioned presence of dragging mark at the place of occurrence or arrow towards the house of Sheopujan Bind. He also failed to disclose whether he had examined Choukidar and Dafadar. In like wise manner there happens to be absence of Chaukidar and Dafadar during trial as a witness without cogent explanation. 26. Thus, taking into account entire material available on the record as well as having minute observation thereof, it is apparent that the prosecution had miserably failed to substantiate its case so far as identification of the appellants during the course of commission of alleged crime is concerned. Consequent thereupon, we are unable to concur with the finding arrived at by the learned trial court. Hence, the same is set aside. Both the appeals are allowed. Patna High Court CR. APP (DB) No.116 of 1990 dt.07-03-2013 30 Appellants of both the appeals are on bail, hence, they are discharged from the liabilities of their bail bonds. (Shyam Kishore Sharma, J.) (Aditya Kumar Trivedi, J.) Patna High Court Patna Dated the 7th March, 2013 Avin.