{"id":137019,"date":"2008-10-22T00:00:00","date_gmt":"2008-10-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gopal-singh-vs-state-of-bihar-on-22-october-2008"},"modified":"2014-12-26T17:34:24","modified_gmt":"2014-12-26T12:04:24","slug":"gopal-singh-vs-state-of-bihar-on-22-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gopal-singh-vs-state-of-bihar-on-22-october-2008","title":{"rendered":"Gopal Singh vs State Of Bihar on 22 October, 2008"},"content":{"rendered":"
Patna High Court<\/div>\n
Gopal Singh vs State Of Bihar on 22 October, 2008<\/div>\n
Author: Smt. Mridula Mishra<\/div>\n
                                 CRIMINAL APPEAL No.533 OF 2002\n                                           ---\n<\/pre>\n
                Against the Judgement and order dated 24th July 2002 passed by 1st
\n                Addl. Fast Track Court Siwan in Trial No.1\/85\/ 171 of 2001.<\/p>\n
                    RAM CHANDRA SINGH & ORS————–(Appellant)
\n                                       Versus
\n                     STATE OF BIHAR———————–(Respondents)<\/p>\n
                             CR. APP (DB) No.602 oF 2002
\n                       RAMBARAI SINGH——————-(Appellant)
\n                                       Versus
\n                       STATE OF BIHAR——————-(Respondents)<\/p>\n
                             CR. APP (DB) No.625 oF 2002
\n                       RAJENDRA SINGH——————–(Appellant)
\n                                       Versus
\n                       STATE OF BIHAR——————(Respondents)<\/p>\n
                             CR. APP (DB) No.627 oF 2002
\n                         GOPAL SINGH——————–(Appellant)
\n                                       Versus
\n                        STATE OF BIHAR—————–(Respondents)<\/p>\n
                        For the Appellant:- Mr. B.K.Singh Chauhan,Adv.\n<\/p>\n
                                           Mr. Bineet Kumar Singh,Advocate
\n                                           Mr. Sumant Singh
\n                         For the State:- Mr. Lala Kailash Bihari, A.P.P.\n<\/p>\n
                                       PRESENT<\/p>\n
                        THE HON’BLE JUSTICE SMT. MRIDULA MISHRA<\/p>\n
                     THE HON’BLE MR. JUSTICE SHAILESH KUMAR SINHA<\/p>\n
Mridula Mishra, J              All four criminal appeals have been filed against the<\/p>\n
                     judgment and order passed by the 1st Additional Sessions Judge, Fast<\/p>\n
                     Track Court, Siwan dated 24.7.2002 in Sessions Trial no.1 of 1985\/<\/p>\n
                     171 of 2001.\n<\/p>\n
                               2. Appellants Ramchandra Singh and Sakaldeo Singh (in
\n                          -2-<\/span><\/p>\n
Cr.Appeal no.533 of 2002) died during the pendency of the appeal<\/p>\n
and their death have been confirmed by the Officer Incharge of<\/p>\n
Hussainganj Police Station. Death certificates of these two appellants<\/p>\n
have also been furnished. Remaining two appellants of this appeal<\/p>\n
namely Kamla Singh and Ramesh Singh alias Rameshwar Singh<\/p>\n
have been convicted under Sections 148\/324 of the Indian Penal Code<\/p>\n
and section 147 and 435 of the Indian Penal Code respectively. They<\/p>\n
have been sentenced to undergo rigorous imprisonment for two years<\/p>\n
on each count. Rajendra Singh (in Cr.Appeal No.625 of 2002) has<\/p>\n
been convicted under Sections 302\/34 of the Indian Penal Code and<\/p>\n
sentenced to undergo rigorous imprisonment for life with fine of<\/p>\n
Rs.5000\/-, in default of payment of fine R.I. for two years. For his<\/p>\n
conviction under Section 27 of the Arms Act, sentenced to rigorous<\/p>\n
imprisonment for two years. Gopal Singh ( in Cr.Appeal no.627 of<\/p>\n
2002) is also convicted under Section 302\/34 of the Indian Penal<\/p>\n
Code, sentenced to R.I. for life and a fine of Rs.5,000. In default of<\/p>\n
payment of fine R.I. for two years. Both these appellants for<\/p>\n
conviction under section 148 of the Indian Penal Code and 27 of the<\/p>\n
Arms Act have been sentenced to undergo R.I. for two years on each<\/p>\n
count. Appellant Rambarai Singh (in Cr.Appeal no.602 of 2002) has<\/p>\n
been convicted under Section 302\/109 of the Indian Penal Code and<\/p>\n
sentenced to undergo R.I. for life and fine of Rs.5,000\/-. In default of<\/p>\n
fine R.I. for two years. For his conviction under section 147 of the<\/p>\n
Indian Penal Code sentenced to R.I. for two years.<\/p>\n
          3. Case of the prosecution as revealed in the fard beyan of
\n                          -3-<\/span><\/p>\n
Dhrubdeo Singh (P.W.10) is that on 18.7.1984 at 6 A.M. he was at his<\/p>\n
house in village Machkana under the Hussainganj police station in the<\/p>\n
district of Siwan. In east of his house there is a land over which his<\/p>\n
Palani, Nad and Khop are situated. This land was acquired through<\/p>\n
deed of exchange executed by Triyogi Narain Lal. In the Khop<\/p>\n
situated over this land food grains were stored. On the date of<\/p>\n
occurrence the informant with his uncle Ram Ayodhya Singh came to<\/p>\n
take out grains from the khop in order to save it from the rain. As soon<\/p>\n
as they started taking out the grains from the Khop, Madhubvan<\/p>\n
Singh (now dead) and Gopal Singh came there runningly along with<\/p>\n
Ram Barai Singh, Rajendra Singh, Hari Singh (now dead) Ramesh<\/p>\n
Singh, Ramchandra Singh,(dead) Ramjee Sintgh (dead) Shakaldeo<\/p>\n
Singh(dead) and Kamla Singh. They were armed with lathi, Bhala,<\/p>\n
Garasa   D.B.B.L. gun and country made pistol. Madhuban Singh<\/p>\n
accosted Gopal Singh to kill. He gave double barrel gun to Gopal<\/p>\n
Singh and Gopal Singh opened fire which hit Ram Ayodhya Singh<\/p>\n
on his head and he fell down instantly. Ram Barai Singh accosted<\/p>\n
Rajendra Singh and asked to kill Ram Ayodhya Singh as a result of<\/p>\n
which he fired at his neck, chest and face. Satyadeo Singh P.W.5<\/p>\n
came from his house at the place of occurrence hearing the sound of<\/p>\n
firing and tried to rescue his brother Ram Ayodhya Singh. Sakaldeo<\/p>\n
Singh instigated Kamla and on this abatement Kamla assaulted<\/p>\n
Satyadeo with Bhala and Garasa. Lady members of the informant’s<\/p>\n
family also came and they were assaulted by Ramji Singh with Farsa<\/p>\n
and Garasa on the order of Ramchandra Singh. Ramesh Singh
\n                         -4-<\/span><\/p>\n
removed three bags of wheat kept for seed and set fire to the Khop.<\/p>\n
Ram Ayodhya and other          injured were brought to Sadar hospital<\/p>\n
Siwan. Ram Ayodhya died on way to hospital. Fard beyan of<\/p>\n
Dhrupdeo Singh was recorded by S.I. Jacob of Siwan police station at<\/p>\n
Sadar Hospital Siwan. Fard beyan was dispatched to Hussainganj<\/p>\n
police station and the Officer Incharge of Hussainganj police station<\/p>\n
Ram Saran Chaudhary (P.W.12) registered formal F.I.R. on the basis<\/p>\n
of fard beyan and the F.I.R. was registered as Hussainganj P.S.Case<\/p>\n
no.134 of 1984 under Sections 147, 148, 149, 324, 435, 379, 307 and<\/p>\n
302 of the Indian Penal Code and 27 of the Arms Act.<\/p>\n
          4. After lodging of the F.I.R. investigation commenced and<\/p>\n
charge sheet (Ext.4) was submitted against seven accused persons<\/p>\n
under the different provisions of the Indian penal Code and Arms Act.<\/p>\n
The case was committed to the court of Sessions, charges were framed<\/p>\n
against the accused persons.\n<\/p>\n
          5. The defence of the accused persons was of false<\/p>\n
implication. Their case was that the informant and his family members<\/p>\n
forming an unlawful assembly came at Plot no.1691 which is in<\/p>\n
possession of the accused persons for 25 years. The informant and his<\/p>\n
family members came fully armed to take forcible possession of land.<\/p>\n
Scuffle took place in between Rajendra Singh and Ram Ayodhya<\/p>\n
Singh. During course of scuffle the informant Dhrupdeo Singh<\/p>\n
(P.W.10) restored to firing to kill Rajendra Singh but in the mean<\/p>\n
time position of two fighting persons changed and unluckily Ram<\/p>\n
Ayodhya Singh came in the range of firing restored by the informant
\n                          -5-<\/span><\/p>\n
Dhrupdeo Singh. Rajendra Singh also received gun shot injury on<\/p>\n
account of such firing. Ramchandra Singh was also assaulted by<\/p>\n
Satyadeo Singh and      Hussainganj P.S.Case no.133 of 1984       was<\/p>\n
registered on the basis of fard beyan of Rajendra Singh recorded at<\/p>\n
Primary Health Centre, Hussainganj. In this case D.B.B.L. gun of<\/p>\n
Pashupati Singh (P.W.2) bearing no.7903349 was seized from his<\/p>\n
house, Khokha of pellets and live cartridges were also recovered and<\/p>\n
seized from the place of occurrence. Seized gun was sent to Forensic<\/p>\n
Science Laboratory for examination and to report whether firing was<\/p>\n
made from this gun. Since the gun seized belonged to the father of the<\/p>\n
informant namely Pashupati Singh (P.W.2) there is every reason to<\/p>\n
believe that Ram Ayodhya Singh died by gun shot injury on account<\/p>\n
of firing restored by P.W.10.\n<\/p>\n
          6. Prosecution in order to prove charge framed against the<\/p>\n
accused persons examined altogether 15 wiutnesses. P.W.1        Gaya<\/p>\n
Singh , P.W.2 Pashupati Singh,      P.W.5 Satyadeo Singh,      P.W.6<\/p>\n
Pratima Kumari, P.W.7 Janki Devi, P.W.8 Ajay Singh and P.W.10<\/p>\n
Dhrubdeo Singh have been examined as eye witnesses. P.W.5 6 and 7<\/p>\n
are said to be injured eye witnesses. P.W.3 Balkeshwar Prasad and<\/p>\n
P.W.4 Shivji Prasad Srivastava are formal witness who have proved<\/p>\n
the fard beyan (Ext.1) and formal F.I.R.(Ext.2) P.W.13 Ajay Kumar is<\/p>\n
deed writer and has proved Ext.10 the deed of exchange. P.W.14<\/p>\n
Sudhir Prasad is an Advocate clerk and has proved the affidavit<\/p>\n
sworn by Triyogi Narain Lal (Ext.11). P.W.15 a formal witness is<\/p>\n
also an advocate clerk and he has proved the memo of Cr.Revision
\n                          -6-<\/span><\/p>\n
no.448 of 1983( Ext.14). Dr. Nawal Kishore (P.W.9), was posted as<\/p>\n
Medical Officer at Siwan Sadar Hospital. He had          examined the<\/p>\n
injury of P.W.7 on 19.7.1984. P.W.11 Dr.R.K.Chaubey was posted as<\/p>\n
Civil Assistant Surgeon of Sadar Hospital Siwan at the relevant time.<\/p>\n
He has been examined as P.W.11. He had conducted post mortem on<\/p>\n
the dead body of deceased and also examined injuries received by<\/p>\n
P.W.5 and P.W.6. Ram Sharana Chaudhary P.W.12 was the Officer-<\/p>\n
in-charge of Hussainganj Police station at the relevant time. He<\/p>\n
investigated the case and submitted charge sheet.<\/p>\n
          7. The evidence of prosecution witnesses has made it clear<\/p>\n
that all witnesses examined as eye witnesses or injured witnesses are<\/p>\n
closely related. P.W.1,2,5, 8 and 10 have admitted that they belong to<\/p>\n
same family. Their common ancestors were two brothers Jag Narain<\/p>\n
and Nag Narain. They are living in the same house.          P.W.1 has<\/p>\n
admitted that with respect to the place of occurrence land dispute<\/p>\n
started since the date when alleged deed of exchange was executed<\/p>\n
by Triyogi Narain Lal in favour of Nag Narain Singh on 8.6.1983.<\/p>\n
P.W.1 in his evidence admitted that within fifteen days of the<\/p>\n
execution of deed of exchange Hari Shankar ( one of the accused,<\/p>\n
now dead)had instituted case on 13.6.1983 against P.W.1 and others<\/p>\n
alleging that his Nad, Khuta and other things have been forcibly<\/p>\n
uprooted by the accused persons. It has also been admitted by the<\/p>\n
prosecution witnesses P.W.1, 2, 5 and 10 that a proceeding under<\/p>\n
section 144 Cr.P.C. was initiated with respect to the P.O. land. P.W.1<\/p>\n
in paragraph 5 and 6 of his evidence has admitted that after disposal of
\n                          -7-<\/span><\/p>\n
144 Cr.P.C. proceeding a petition was filed for delivery of possession.<\/p>\n
It has not come in the evidence of prosecution witnesses that on the<\/p>\n
basis of this petition possession was delivered in favour of members<\/p>\n
of the first party (prosecution side).   This admission on the part of<\/p>\n
P.W.1 goes to show that in the year 1983 prosecution party did not<\/p>\n
come in possession of the land after execution of deed of exchange<\/p>\n
P.W.12 in paragraph 15 of his evidence has stated that in 144 Cr.P.C.<\/p>\n
proceeding police had reported possession of accused persons. In<\/p>\n
144 Cr.P.C. proceeding no order was passed for delivery of possession<\/p>\n
of the land in favour of members of first party. Members of second<\/p>\n
party (accused) persons remained in possession of the land. During<\/p>\n
investigation and supervision of Hussainganj P.S.Case no.133 of 1984<\/p>\n
also the accused persons were found in possession of the land and they<\/p>\n
remained in possession. It has also been stated by p.W.12 in his<\/p>\n
evidence that in paragraph 45, 46, 47 and 48 of the case diary it is<\/p>\n
mentioned that the occurrence took place as prosecution party went<\/p>\n
over the P.O. land to take forcible possession.\n<\/p>\n
          8. Counsel for the appellants has submitted that considering<\/p>\n
the admission on the part of prosecution witnesses that they all<\/p>\n
belonged to same family, the dispute relating to possession of the land<\/p>\n
is persisting since 1983, supported by the evidence of P.W.1 that a<\/p>\n
petition was filed for delivery of possession in the proceeding under<\/p>\n
Section 144 Cr.P.C. and also the evidence of P.W.12 the Investigating<\/p>\n
Officer on the point of possession. It is very much clear that the<\/p>\n
prosecution party was aggressor. Occurrence took place because they
\n                           -8-<\/span><\/p>\n
went on the land of the accused persons for taking forcible possession<\/p>\n
of the land. Entire prosecution case in this background is nothing but<\/p>\n
false and fabricated.\n<\/p>\n
          9. Counsel for the appellants has also stated that in course of<\/p>\n
trial the prosecution did not examine a single independent eye<\/p>\n
witnesses though their names have been mentioned in the evidence of<\/p>\n
P.W.1, P.W.6 and P.W.10. These witnesses have admitted that near<\/p>\n
the place of occurrence there are houses of several persons. These<\/p>\n
witnesses have also mentioned specific names of Ram Pukar Tiwary,<\/p>\n
Sakaldeo Singh and Ramji Singh and admitted that they were present<\/p>\n
at the time of occurrence. Name of Rameshwar Lal and Shiv Narain<\/p>\n
have also been mentioned who witnessed the occurrence. Inspite of<\/p>\n
that no one has been examined except the closely related family<\/p>\n
members. It is a fact that the evidence of closely related persons or<\/p>\n
interested witnesses cannot be thrown away simply because they are<\/p>\n
interested and related but a duty is cast upon the prosecution to<\/p>\n
examine independent witnesses also whose names have been referred<\/p>\n
in the evidence of the witnesses as well as in the charge sheet. It is the<\/p>\n
duty cast upon the prosecution to explain the reason for their non<\/p>\n
examination. Simply by making statement in course of deposition that<\/p>\n
they have been gained over or they are dead is not enough and<\/p>\n
responsibility of the prosecution do not come to an end. In this regard<\/p>\n
the prosecution is required to file a petition before the trial court<\/p>\n
showing reason for their non examination and only then the<\/p>\n
prosecution can    be relieved from its responsibility. In case of with
\n                           -9-<\/span><\/p>\n
holding independent witnesses inference should be drawn against the<\/p>\n
prosecution under Section 114 (G) of Evidence Act that independent<\/p>\n
witnesses were with held intentionally so that the real facts may not<\/p>\n
be revealed during trial. Benefit of this should go to the defence and<\/p>\n
the case of the prosecution is liable to be disbelieved.<\/p>\n
          10. Mr. Lala Kailash Bihari counsel appearing for the State<\/p>\n
on the other hand has submitted that the prosecution is not duty bound<\/p>\n
to examine each and every witnesses. The concept of examining<\/p>\n
independent witnesses is changing with the changed time. Now a days<\/p>\n
very few witnesses think that it is their legal obligation to depose<\/p>\n
during trial even though they have witnessed the occurrence for so<\/p>\n
many reason. In the present case eye witnesses who are injured have<\/p>\n
supported the prosecution case and there is nothing to disbelieve.<\/p>\n
They are material witness and their presence cannot be disbelieved<\/p>\n
only because they are family members.\n<\/p>\n
          11. On scrutiny of the evidence of the witnesses claiming to<\/p>\n
be the eye witnesses it transpires that P.W.1, P.W.2, P.W.5, P.W.6,<\/p>\n
P.W.7, P.W.8 and P.W.10 have repeated same prosecution story. In<\/p>\n
the evidence of P.W.1 it has come that the adjacent to the khop land<\/p>\n
which is the P.O. land there is house of Hari Shankar. Houses of<\/p>\n
Madhuban and Rambarai are         situated north west to the khop land.<\/p>\n
P.W.2 has also admitted that near the place of occurrence houses of<\/p>\n
accused persons are situated. This has been admitted by P.W.5, P.W.6,<\/p>\n
P.W.10 as well as P.W.12 the Investigating Officer. It is not the case<\/p>\n
of the prosecution that the house in which they all are residing is next\n<\/p>\n
                         – 10 –\n<\/p>\n
to the place of occurrence land. All the prosecution witnesses have<\/p>\n
admitted that at 6 A.M. when P.W.10 and the deceased had gone to<\/p>\n
take out grain from khop no other witness accompanied them.<\/p>\n
P.W.1,2,5,6,7,8 and 10 have admitted that after firing was over P.W.5<\/p>\n
was the first person to run towards the place of occurrence which is at<\/p>\n
the distance of 20-25 lagga from his house. Thereafter P.W.6 went to<\/p>\n
the place of occurrence and P.W.7 followed her. P.W.7 was the last<\/p>\n
one to come at the place of occurrence. So far P.W. 8 is concerned<\/p>\n
his name has not been mentioned by any of the prosecution witnesses<\/p>\n
that he also went to the place of occurrence hearing the sound of<\/p>\n
firing. He himself has admitted that his statement was recorded after<\/p>\n
one month of the occurrence.       That is also   corroborated by the<\/p>\n
evidence of P.W.12       Investigating Officer.    Considering    own<\/p>\n
statement of the prosecution witnesses except P.W.10 no other<\/p>\n
prosecution witnesses have claimed to have witnessed the occurrence<\/p>\n
which took place before they reached at the place of occurrence land.<\/p>\n
They all have reached the place of occurrence land after firing was<\/p>\n
over as such the evidence of prosecution witnesses regarding<\/p>\n
accostation of Rajendra, Gopal and Ramji for firing or assault, could<\/p>\n
not have been witnessed by them. They cannot claim to be eye<\/p>\n
witness to this part of the occurrence, as such their evidence so far<\/p>\n
first part of the occurrence     is concerned, can only be treated as<\/p>\n
hearsay evidence and not as evidence of an eye witness.<\/p>\n
          12. The distance of the house of the prosecution witnesses<\/p>\n
from the place of occurrence has come in their own evidence that in\n<\/p>\n
                         – 11 –\n<\/p>\n
between the place of occurrence land there is a village road. It has<\/p>\n
also come that the old bricks were stacked at the place of occurrence<\/p>\n
land and the house of the prosecution witnesses is surrounded by a<\/p>\n
brick wall up to chest length. In this situation from their own house<\/p>\n
which is at a distance of 20-25 lagga as per evidence of P.W.5 they<\/p>\n
cannot either hear the conversation going in between the accused and<\/p>\n
the deceased as well as witness. The happenings        going on at the<\/p>\n
place of occurrence.\n<\/p>\n
          13. Other aspect which is apparent from the evidence that<\/p>\n
with regard to same occurrence two cases were instituted, Hussainganj<\/p>\n
P.S.Case no.133 of 1984 was instituted by the accused persons and<\/p>\n
Hussainganj P.S.Case no.134 of 1984 by the prosecution. In<\/p>\n
Hussainganj P.S.Case no.133 of 1984 Rajendra Singh and Ram<\/p>\n
Chandra Singh have received injury. Injury received by Rajendra was<\/p>\n
gun shot injury and injury received by Ramchandra was caused by<\/p>\n
sharp edge weapon. In this case on the date of occurrence itself<\/p>\n
licensed D.B..L. gun of Pashupati Singh P.W.2 bearing no.7903349<\/p>\n
was seized from his house and a seizure list was prepared (Ext.8).<\/p>\n
Same day house of accused persons was also searched but nothing<\/p>\n
incriminating was found. From the house of Madhuban Singh a brush<\/p>\n
and other things used for cleaning the barrel of the gun was seized<\/p>\n
and a seizure list was prepared (Ext.8\/2). The I.O. recovered five wads<\/p>\n
and one live cartridges from the place of occurrence and prepared<\/p>\n
seizure list. These wads and live cartridge were of D.B.B.L. gun<\/p>\n
which belonged to Pashupati Singh. The I.O. had sent seized gun for\n<\/p>\n
                          – 12 –\n<\/p>\n
its examination by Forensic Science Laboratory. On 28.7.1984. one<\/p>\n
Maheshwar Prasad had produced D.B.B.L. gun of Madhuban Singh<\/p>\n
bearing no.A\/3 1558 with 20 live cartridges. It was also seized and<\/p>\n
sent for its examination to Forensic Science Laboratory. The I.O.<\/p>\n
made recommendation for cancellation of license of both the licensed<\/p>\n
guns. The defence has exhibited Ext.”C” which is report sent by<\/p>\n
Forensic Science Laboratory with regard to gun of P.W.2. The report<\/p>\n
is that immediately after the occurrence it was in functioning position<\/p>\n
and recently firing was made from this gun.\n<\/p>\n
          14. Counsel appearing for the appellants has submitted that<\/p>\n
in the evidence of I.O. it has come that the report with regard to gun of<\/p>\n
Madhuban Singh was not received. Prosecution witnesses have also<\/p>\n
admitted seizure of gun from their houses. From their         evidences<\/p>\n
occular as well as documentary it is apparent that the wad and live<\/p>\n
cartridges recovered from the place of occurrence belonged to the gun<\/p>\n
which was seized from the house of P.W.2. Forensic Science<\/p>\n
Laboratory report also corroborated that recently firing was made<\/p>\n
from the gun. This evidence creates a doubt whether the story of<\/p>\n
prosecution regarding firing by Gopal from the licenced gun of<\/p>\n
Madhuban Singh and firing by Rajendra Singh from his country made<\/p>\n
pistol is correct or the defence story of firing made by P.W.10 from<\/p>\n
the licenced gun of P.W.2 aiming Rajendra but on account of missing<\/p>\n
of target hitting Ram Ayodhya is correct. Once a doubt is created its<\/p>\n
benefit should always go to the accused and not to the prosecution.<\/p>\n
          15.Counsel for the appellants has submitted that one more\n<\/p>\n
                          – 13 –\n<\/p>\n
evidence which needs consideration is the medical evidence of the<\/p>\n
doctor P.W.11 compared with the evidence of prosecution witnesses.<\/p>\n
Case of prosecution is that the Gopal fired from the licenced D.B.B.L.<\/p>\n
gun of Madhuban Singh which hit at the head of Ram Ayodhya Singh<\/p>\n
and he immediately fell down. Thereafter Rajendra fired from his<\/p>\n
country made pistol causing injury at neck, chest and face of Ram<\/p>\n
Ayodhya Singh. P.W.1,2,5, 6,7,8 and 10 all have stated consistently<\/p>\n
that there was only two firing.      Dr. R.K. Chaubey P.W.11 found<\/p>\n
altogether 8 fire arm injury on the person of the deceased. All injuries<\/p>\n
with charred margin. In paragraph 17 of his evidence he has said that<\/p>\n
the deceased received injury from more than one shot, but it is not<\/p>\n
possible from one shot. He said that I cannot give exact number of gun<\/p>\n
shot fired. Even one injury is possible by one shot. If this is believed<\/p>\n
then number of injuries on the person of the deceased could not have<\/p>\n
been caused only by two firings. It seems that the real story has not<\/p>\n
been disclosed by the prosecution. If only two fires were made one by<\/p>\n
Gopal and another by Ramchandra’ who fired causing six injuries<\/p>\n
which are all sufficient to cause death. This shows       concealment of<\/p>\n
real story and that in itself is sufficient to give benefit of doubt to the<\/p>\n
accused.\n<\/p>\n
           16. Regarding injured witnesses and their trustworthiness I<\/p>\n
find that P.W.5 and 6 were examined by P.W.11 on the date of<\/p>\n
occurrence itself. The injury on the person of both the injured were<\/p>\n
simple in nature. P.W.6 in her evidence has stated that she was<\/p>\n
hospitalized and remained their for four weeks but that has been\n<\/p>\n
                         – 14 –\n<\/p>\n
denied by P.W.11. P.W.7 was examined by P.W.9 on the next day in<\/p>\n
the evening. The original injury report was not received in court.<\/p>\n
P.W.9 has stated that it was not available as such true copy of the<\/p>\n
injury report Ext.3 was produced. True copy was not on the form but<\/p>\n
issued on a plain paper on oral request of Officer-in-Charge. P.W.9<\/p>\n
has stated that regarding the issuance of true copy there is no entry in<\/p>\n
the register. P.W.9 has also stated that on taking risk of pain such<\/p>\n
injury as found on the person of P.W.7 can be manufactured. So injury<\/p>\n
on the person of P.W.7 is not properly proved as original injury report<\/p>\n
was not produced. True copy was issued on the request of Officer-in-<\/p>\n
charge without any permission from the competent authority.<\/p>\n
          17. Counsel for the appellant has also submitted that the<\/p>\n
judgment of conviction by the trial court was passed without giving<\/p>\n
any credence to the evidence of P.W.12 the Officer Incharge for the<\/p>\n
reason that P.W.10 in his evidence stated that Inspector Maheshwari<\/p>\n
Prasad who supervised the case was friend of Kalindra Singh Sub<\/p>\n
Inspector son of accused Sakaldeo. Due to this reason the<\/p>\n
investigation is biased and it has not been done properly. P.W.12 in<\/p>\n
his evidence has stated that the supervision of the case was not done<\/p>\n
by any police Inspector. It was supervised by the Superintendent of<\/p>\n
Police.   In this view the evidence of P.W.12 who is the I.O. of the<\/p>\n
case could not have been brushed aside, specially on the pointof place<\/p>\n
of occurrence and possession of parties over the P.O. land.<\/p>\n
          18. On consideration of entire evidence oral as well as<\/p>\n
documentary I find that the case of prosecution that they were in\n<\/p>\n
                                               – 15 –\n<\/p>\n
                     possession of the P.O. land i.e. Plot no.1691 has not been supported<\/p>\n
                     by any evidence oral or documentary. Oral evidence only show that<\/p>\n
                     there was a deed of exchange executed by one Triyogi Narain lal but<\/p>\n
                     since the date of execution of deed dispute relating to possession is<\/p>\n
                     continuing. The evidence of P.W.1 and 12 indicates that the<\/p>\n
                     possession was never delivered inspite of execution of deed of<\/p>\n
                     exchange. The accused persons were in possession of the P.O. land, if<\/p>\n
                     that is the evidence, going over the land by the deceased and P.W.10<\/p>\n
                     and taking out grains from khop can be termed as an act of aggressor.<\/p>\n
                     The occurrence took place because they went over the land for taking<\/p>\n
                     possession. The charges framed against the accused persons in this<\/p>\n
                     background can not sustain and conviction is liable to be set aside.<\/p>\n
                               19. Accordingly the Judgment of conviction passed by the<\/p>\n
                     trial court i.e. First Additional Fast Track Court, Siwan in Sessions<\/p>\n
                     Trial no.1 of 1985 \/171 of 2001 dated 24th July 2002 convicting the<\/p>\n
                     appellants for different offences of the Indian Penal Code is set aside.<\/p>\n
                     All the accused persons are acquitted of the charges. The appellants<\/p>\n
                     are on bail they are relieved from the liability of bail bond.<\/p>\n
                                                   (Mridula Mishra, J)<\/p>\n
                I agree<\/p>\n
                                               (Shailesh Kumar Sinha, J)
\nPatna High Court
\nThe22nd day of oct.2008
\nN.A.F.R.\/sss\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Gopal Singh vs State Of Bihar on 22 October, 2008 Author: Smt. Mridula Mishra CRIMINAL APPEAL No.533 OF 2002 — Against the Judgement and order dated 24th July 2002 passed by 1st Addl. Fast Track Court Siwan in Trial No.1\/85\/ 171 of 2001. RAM CHANDRA SINGH & ORS————–(Appellant) Versus STATE OF BIHAR———————–(Respondents) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-137019","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nGopal Singh vs State Of Bihar on 22 October, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gopal-singh-vs-state-of-bihar-on-22-october-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gopal Singh vs State Of Bihar on 22 October, 2008 - 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