{"id":155580,"date":"2010-02-01T00:00:00","date_gmt":"2010-01-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kapil-sah-kapildeo-sah-vs-state-of-bihar-on-1-february-2010-2"},"modified":"2018-08-17T16:45:57","modified_gmt":"2018-08-17T11:15:57","slug":"kapil-sah-kapildeo-sah-vs-state-of-bihar-on-1-february-2010-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kapil-sah-kapildeo-sah-vs-state-of-bihar-on-1-february-2010-2","title":{"rendered":"Kapil Sah @ Kapildeo Sah vs State Of Bihar on 1 February, 2010"},"content":{"rendered":"<div class=\"docsource_main\">Patna High Court<\/div>\n<div class=\"doc_title\">Kapil Sah @ Kapildeo Sah vs State Of Bihar on 1 February, 2010<\/div>\n<div class=\"doc_author\">Author: Dharnidhar Jha<\/div>\n<pre>                         CRIMINAL APPEAL No.64 OF 2003 DB\n                                      With\n                         CRIMINAL APPEAL NO. 265 OF 2003 DB\n                                      -------\n<\/pre>\n<p>        Against the judgment and order dated 21st January, 2003 passed by Shri<br \/>\n        Baleshwar Prasad Singh, Presiding officer, Addl. Court No. 1, (Fast Track<br \/>\n        Court), Sasaram\n<\/p>\n<p>                                       &#8212;&#8212;&#8212;\n<\/p>\n<p>        Kapil Sah @ Kapildeo Sah, son of Sakhi Sah, resident of village &#8211;<br \/>\n        Mednipur, P.S. &#8211; Sasaram (M), District &#8211; Rohtas<br \/>\n                                &#8230;&#8230;Appellant (in Cr. Appeal No. 64\/2003)<\/p>\n<p>        Sudarshan Sah, son of Kapil Sah alias Kapildeo Sah, resident of village &#8211;<br \/>\n        Mednipur, P.S. &#8211; Sasaram (M), District &#8211; Rohtas at Sasaram<br \/>\n                                &#8230;&#8230;..Appellant (in Cr. Appeal No. 265\/2003)<\/p>\n<p>                                    Versus<\/p>\n<p>        The State of Bihar &#8230;&#8230;&#8230;&#8230;&#8230;. (Respondent in both the appeals.)<\/p>\n<p>                                             &#8212;&#8212;-\n<\/p>\n<pre>        For the Appellants :       S\/s Vikram Deo Singh,\n                                        Pawan Kumar Singh, Advocates\n        For the Respondents:       Shri Abhimanyu Sharma, A.P.P.\n                                          ----------\n                                       PRESENT\n\n                      THE HON'BLE SRI JUSTICE DHARNIDHAR JHA\n                                          &amp;\n                      THE HON'BLE SRI JUSTICE RAKESH KUMAR\n                                     ---------\n\n\nDharnidhar Jha\n\nRakesh Kumar, JJ.      The two appeals arise out of the judgment dated 21st January,\n\n<\/pre>\n<p>                 2003 rendered by the learned Additional Sessions Judge I -cum-<\/p>\n<p>                 Presiding Officer, FTC, Sasaram in Sessions Trial no. 92\/88 \/<\/p>\n<p>                 380\/2002 by which the two appellants, one in each of the two<\/p>\n<p>                 appeals, were found guilty of committing offence under section 302<\/p>\n<p>                 read with section 34 of the Indian Penal Code and were directed to<br \/>\n<span class=\"hidden_text\">                               2<\/span><\/p>\n<p>suffer rigorous imprisonment for life. Besides, appellant Sudarshan<\/p>\n<p>Sah who was found guilty of also committing offence under section<\/p>\n<p>27 of the Arms Act while the other appellant Kapil Sah alias<\/p>\n<p>Kapildeo Sah was acquitted of that charge, was directed to suffer<\/p>\n<p>rigorous imprisonment for three years on that account. The<\/p>\n<p>appellants have brought into question the findings recorded by the<\/p>\n<p>learned Trial Judge through these two appeals.\n<\/p>\n<p>2.    The prosecution case is contained in Ext. 1, the Fardbeyan of<\/p>\n<p>P.W. 5, Sardar Ram who happens to be the son of the deceased<\/p>\n<p>Sheo Pujan Ram. It is stated that while the informant and his family<\/p>\n<p>members were asleep in the night of 10.2.1987, he picked up the<\/p>\n<p>sound of some Kharkharahat on which, his father came out of the<\/p>\n<p>room in which he was sleeping, and found the two appellants along<\/p>\n<p>with four others to have jumped inside his Angan. Appellant Kapil<\/p>\n<p>Sah was armed with lathi whereas appellant Sudarshan Sah was<\/p>\n<p>having a pistol in his hand. The deceased cried to the informant to<\/p>\n<p>open the door of the room as appellants had come along with the<\/p>\n<p>criminals to kill him. The informant opened the doors and his father<\/p>\n<p>entered inside it in a hurry. It is alleged that accused persons,<\/p>\n<p>thereafter, hammered the doors with Silwat and Musal (both heavy<\/p>\n<p>stone and wood materials), as a result of which, the doors were<\/p>\n<p>broken and the room was opened. The two appellants along with<\/p>\n<p>four unknown are said to have entered inside it and they are further<\/p>\n<p>alleged to have hurled abuses on the informant, P.W. 5, his wife,<\/p>\n<p>P.W. 4 and the wife of his younger brother, P.W. 2 Ram Daiya<br \/>\n<span class=\"hidden_text\">                                3<\/span><\/p>\n<p>Devi    and were made to stand in the corner of the room and<\/p>\n<p>thereafter appellant Sudarshan Ram shot fire into the head of his<\/p>\n<p>father, as a result of which he fell down dead.\n<\/p>\n<p>3.     It is alleged that the two appellants threatened the informant<\/p>\n<p>and his family members not to report the matter to the police else<\/p>\n<p>they would also be liquidated and after firing a shot again in the<\/p>\n<p>Angan all culprits went away. It was alleged that an earthen pot<\/p>\n<p>which was kept inside the room, was broken during the incident.<\/p>\n<p>4.     As regards the cause of occurrence, it was alleged that the<\/p>\n<p>son of appellant Kapil Sah had been murdered and the deceased<\/p>\n<p>Sheo Pujan Ram was one of the witnesses on behalf of the<\/p>\n<p>prosecution but was not ready to depose against the accused persons<\/p>\n<p>of that case. As such, the appellant Kapil Sah had taken a vow to<\/p>\n<p>kill the deceased and also of not shaving his beards till he fulfilled<\/p>\n<p>his vow.\n<\/p>\n<p>5.     On the basis of Fardbeyan, (Ext. 1), FIR, (Ext. 6) was drawn<\/p>\n<p>up and investigation was taken up. It appears that the dead body<\/p>\n<p>was sent up for postmortem examination to Dr. A.K. Upadhyaya<\/p>\n<p>who found a semi circular penetrating wound on the right side of<\/p>\n<p>the forehead with burning of the surrounding skin and the whole<\/p>\n<p>circumference of the cranial vault broken into pieces exposing the<\/p>\n<p>cranial cavity. The brain matter was also found in pieces and part of<\/p>\n<p>the m\u00e9ninges was missing. In the opinion of P.W. 6, Dr.<\/p>\n<p>Upadhyaya, the injury was ante mortem caused by some fire arm<\/p>\n<p>and was sufficient to cause death in the normal course of nature. It<br \/>\n<span class=\"hidden_text\">                               4<\/span><\/p>\n<p>appears further that after finding sufficient material against the<\/p>\n<p>accused persons they were sent up for trial by the police, after<\/p>\n<p>which the impugned judgment was pronounced.\n<\/p>\n<p>6.    The defence of the appellants was that they had falsely been<\/p>\n<p>implicated on account of suspicion. It was further suggested to the<\/p>\n<p>witnesses that the deceased was a man of criminal antecedent, even<\/p>\n<p>being prosecuted for a charge under section 302 of the IPC and had<\/p>\n<p>earned many enemies and any of whom could have done the act. It<\/p>\n<p>was suggested to the witnesses that they had falsely implicated the<\/p>\n<p>appellants. The appellants further challenged their identification by<\/p>\n<p>the witnesses and suggested that the two were not there and the<\/p>\n<p>evidence on identification of the appellants was false and incorrect.<\/p>\n<p>7.    In support of the charge, the prosecution examined seven<\/p>\n<p>witnesses and one court witness, out of whom, P.W. 7, Manik<\/p>\n<p>Chand Ram was a witness of formal character who had witnessed<\/p>\n<p>the holding of the inquest on the dead body and preparation of the<\/p>\n<p>report Ext. 4 as also seizure of two empty cartridges, one from the<\/p>\n<p>place of occurrence room and the other from Angan of the deceased<\/p>\n<p>and the preparation of seizure memo, Ext. 5. Same is the case of<\/p>\n<p>the solitary court witness, Badri Narayan Singh, who proved the<\/p>\n<p>writings of the FIR, Ext. 6. Out of the remaining witnesses, P.W. 6,<\/p>\n<p>as we have just indicated, is the doctor who held the post mortem<\/p>\n<p>examination and prepared the report Ext. 2. P.W. 1 Sheo Prasad<\/p>\n<p>Ram is a witness who had not witnessed the incident of breaking<\/p>\n<p>open the door, entering the room by the accused persons and killing<br \/>\n<span class=\"hidden_text\">                                5<\/span><\/p>\n<p>the decease but has deposed that on hearing the cries of the family<\/p>\n<p>members he came there and found that they were all weeping and<\/p>\n<p>telling that it were the two appellants who had killed the deceased.<\/p>\n<p>As regards P.W. 2, Ramdaiya Devi, she is the wife of the younger<\/p>\n<p>brother of P.W. 5 and has presented herself as eye witness to the<\/p>\n<p>occurrence like P.W. 3, Tetri Devi who is the wife of the deceased<\/p>\n<p>and mother of P.W. 5. Both Sardar Ram (P.W.5), the informant of<\/p>\n<p>the case, and his wife P.W. 4, Manbanti Devi have also given eye<\/p>\n<p>witness account of the occurrence.\n<\/p>\n<p>8.    We have heard Shri Vikram Deo Singh, learned counsel for<\/p>\n<p>the appellants who has, firstly, contended that there was no story of<\/p>\n<p>identification or any indication about the source of identification in<\/p>\n<p>the fardbeyan but after over three years of the incident, the<\/p>\n<p>witnesses, who also appeared not making such statement before the<\/p>\n<p>police, made a statement in court that there was an electric bulb<\/p>\n<p>burning in the room in question and the witnesses identified the<\/p>\n<p>appellant in light thereof. It was contended, by referring to the<\/p>\n<p>evidence of different witnesses, that the attention of the witnesses<\/p>\n<p>was drawn to their respective statements on the above point and<\/p>\n<p>they claimed to have made that statement. That fact would have<\/p>\n<p>been proved or disproved by the examination of the Investigating<\/p>\n<p>Officer. Besides, the existence of the electric bulb in the place of<\/p>\n<p>occurrence room could also have been verified by the police officer<\/p>\n<p>who had inspected it. But his non-examination has materially<\/p>\n<p>prejudiced the appellants. It was further contended that even if<br \/>\n<span class=\"hidden_text\">                                6<\/span><\/p>\n<p>assuming that it could be a circumstance which could be created by<\/p>\n<p>the evidence of witnesses, it was incumbent upon the learned trial<\/p>\n<p>judge to have put it as a question to the appellant during their<\/p>\n<p>examination under section 313 of the Code of Criminal Procedure<\/p>\n<p>but a perusal of the recorded statement of the appellants at pages 63<\/p>\n<p>and 64 of the paper book, makes it evident that no such question<\/p>\n<p>was put to either of the appellants and still the court below has held<\/p>\n<p>that there was sufficient light and the appellants were duly<\/p>\n<p>identified therein. It was contended that the whole trial appears<\/p>\n<p>vitiated and the factum of identification must not be said to be<\/p>\n<p>established.\n<\/p>\n<p>9.    The second point which was raised before us, was the belated<\/p>\n<p>receipt of the first information report by the court below. It was<\/p>\n<p>contended that the FIR, having been drawn on 11.2.1987 and the<\/p>\n<p>place of occurrence being away by 12 kilometers from the court<\/p>\n<p>premises, it creates suspicion as to how it took two days to travel<\/p>\n<p>12 kilometers which is a distance covered by macadamized road<\/p>\n<p>and railways also. The possibility of concoction, due to deliberation<\/p>\n<p>and preparation of the document after consultation, may not be<\/p>\n<p>ruled out. It was contended by drawing our attention towards Ext. 2,<\/p>\n<p>the post mortem examination report, that the dead body was<\/p>\n<p>received at 2 P.M. on 11.2.1987 and the P.W. 6, the doctor, started<\/p>\n<p>the post mortem examination at around 4 P.M. but curiously<\/p>\n<p>enough, there is no case number or any reference as to in what<\/p>\n<p>connection the dead body had been received in the mortuary<br \/>\n<span class=\"hidden_text\">                                7<\/span><\/p>\n<p>specially when the FIR had been drawn up on 11.2.1987 at 11.15<\/p>\n<p>A.M. It was contended in this connection that assuming that the<\/p>\n<p>Investigating Officer of the case who dispatched the dead body to<\/p>\n<p>the mortuary might not have mentioned the number of the case but<\/p>\n<p>he must have at least mentioned about the fardbeyan of the<\/p>\n<p>informant as a reference material for dispatching the dead body. It is<\/p>\n<p>contended that these two circumstances are so telling as to creating<\/p>\n<p>the biggest deficiency in the prosecution case and it was onerous<\/p>\n<p>upon the court below to have considered them and to have given<\/p>\n<p>benefit of doubt to the appellants.\n<\/p>\n<p>10.   Shri Abhimanyu Sharma, learned A.P.P. for the state has<\/p>\n<p>done the best he could under the circumstances of the case to<\/p>\n<p>convince us that even if the story of presence of an electric light at<\/p>\n<p>the place of occurrence is overruled, there could be sufficient<\/p>\n<p>evidence appearing from the prosecution case to hold that the<\/p>\n<p>prosecution witnesses had the opportunity of seeing the appellants<\/p>\n<p>and identifying them. Sri Sharma drew our attention towards the<\/p>\n<p>evidence of P.W. 5 in which he has stated that it was a moon lit<\/p>\n<p>night and has further submitted that the appellants were very closely<\/p>\n<p>standing by the witnesses, while the witnesses were being made to<\/p>\n<p>stand in the corner of the room and the appellants being villagers,<\/p>\n<p>they must have been picked up by the witnesses correctly. It was<\/p>\n<p>further contended that while they had arrived at the scene of the<\/p>\n<p>occurrence, they had been observed by the witnesses and that could<\/p>\n<p>have given sufficient opportunity to them for identifying them<br \/>\n<span class=\"hidden_text\">                               8<\/span><\/p>\n<p>correctly. It was contended that the doctor found the corresponding<\/p>\n<p>injuries and the consistency is there in the evidence of witnesses<\/p>\n<p>and it was under the above circumstances that the learned trial judge<\/p>\n<p>was perfectly writing his judgment. It was contended, lastly, by<\/p>\n<p>Shri Sharma that not putting the circumstance of identification of<\/p>\n<p>the appellant in electric bulb might not be a circumstance which<\/p>\n<p>could be as important as to vitiate the judgment of conviction.<\/p>\n<p>11.   While hearing the present set of two appeals, we were taken<\/p>\n<p>through the evidence of witnesses, specially, P.Ws 1, 2, 3, 4 and 5<\/p>\n<p>who are not only the family members and the very close relatives of<\/p>\n<p>the deceased, but appeared also residing under the same roof of the<\/p>\n<p>house. It could not be very easy for a court to reject their evidence<\/p>\n<p>by holding that their presence at the place of occurrence could be<\/p>\n<p>doubtful. It was the dead of night. They were sleeping after having<\/p>\n<p>taken their meals and it could be reasonable for any one to assume<\/p>\n<p>that when any such exigency, as has been stated by the informant in<\/p>\n<p>his fardbeyan, would have appeared to them, they could have<\/p>\n<p>flocked together and there was no wonder that they had flocked<\/p>\n<p>together in the place- of- occurrence room. Their competence on<\/p>\n<p>that account, we do not doubt, except that they have given up the<\/p>\n<p>important part of the story while naming the appellants. They have<\/p>\n<p>named and also attributed specific overt acts to the two appellants,<\/p>\n<p>but did not whisper a single word as to what had happened of the<\/p>\n<p>four unknown persons who were accompanying the two appellants.<\/p>\n<p>Besides, what has struck us the most was that it could not be that<br \/>\n<span class=\"hidden_text\">                               9<\/span><\/p>\n<p>the deceased was a good Samaritan. The materials available to us<\/p>\n<p>on record indicate as if he could be facing criminal charges of<\/p>\n<p>committing various offences. One person, as per the statement of<\/p>\n<p>P.W. 2, Ramdaiya Devi, had lodged the case of arson against him<\/p>\n<p>and the deceased was also facing a murder charge in the court of<\/p>\n<p>law. Ramdaiya Devi is the daughter in law of the deceased who was<\/p>\n<p>married to his younger son. It is true that the witnesses have denied<\/p>\n<p>that the deceased was not facing criminal charges, but we find it<\/p>\n<p>coming from the evidence that the deceased was facing multiple<\/p>\n<p>criminal charges in more than two criminal cases. He had been an<\/p>\n<p>accused indulging in a case of arson in a dwelling house and he had<\/p>\n<p>also been    charged for committing the murder of one of his<\/p>\n<p>villagers. Besides, P.W. 5 also appears being an accused in a case<\/p>\n<p>under the Arms Act as may appear from his own evidence in<\/p>\n<p>paragraph 10 though he has stated that the case was dismissed.<\/p>\n<p>Cases are dismissed on account of various reasons but the<\/p>\n<p>fundamental thing remains that one had been an accused for<\/p>\n<p>committing criminal act. As we find from the record, the possibility<\/p>\n<p>may be that the deceased could be having animus with many others.<\/p>\n<p>This is the most important aspect of the case which we have kept in<\/p>\n<p>our mind while considering and evaluating the evidence of the<\/p>\n<p>witnesses.\n<\/p>\n<p>12.   In the above background, we have proceeded to consider the<\/p>\n<p>evidence of identification. It was rightly submitted that Ext. 1 does<\/p>\n<p>not contain a whisper about any source of identification being<br \/>\n<span class=\"hidden_text\">                                  10<\/span><\/p>\n<p>available at the site of incident. In fact, there is no statement in Ext.<\/p>\n<p>1 as to how the appellants or the accused persons were seen and<\/p>\n<p>identified. It was after more than three years when the witnesses<\/p>\n<p>were being examined in court that P.W. 5 in paragraph 2 of his<\/p>\n<p>deposition stated that an electric bulb was burning in his room and<\/p>\n<p>he identified the two appellants in the light thereof. His attention<\/p>\n<p>appears drawn to the above fact by suggesting to him that he had<\/p>\n<p>not made such statement to the Investigating Officer of the case and<\/p>\n<p>he was further cross-examined that he had shown the bulb to the<\/p>\n<p>Investigating Officer. Similarly, the attention of P.Ws. 2, 3 and 4<\/p>\n<p>was drawn to the above statement of theirs that they had not made<\/p>\n<p>such statements to the police.\n<\/p>\n<p>13.   We have appreciated the argument of learned counsel for the<\/p>\n<p>appellants and also that of the learned counsel for the state and<\/p>\n<p>perused the relevant paragraph 5 of the case diary, which contains<\/p>\n<p>the description of the place of occurrence and we find that there is<\/p>\n<p>no mention of finding of any electric bulb hanging or being fitted in<\/p>\n<p>the room in which the occurrence had taken place. All P.Ws have<\/p>\n<p>stated in their evidence that except the room in question other two &#8211;<\/p>\n<p>three rooms of the house had no such electric light fitted. Thus, we<\/p>\n<p>find that the witnesses had improved upon on the most material part<\/p>\n<p>of the prosecution story as regards the identification. We further<\/p>\n<p>perused the statement of these witnesses and we found that no such<\/p>\n<p>statement was recorded in the case diary and we could safely say<br \/>\n<span class=\"hidden_text\">                                11<\/span><\/p>\n<p>that there was quite some improvement made by the witnesses as<\/p>\n<p>regards the identification of the accused persons in the light.<\/p>\n<p>14.   In the light of the serious challenge as we have discussed<\/p>\n<p>presently, we feel that it was important circumstance which was<\/p>\n<p>necessary to be explained by the accused and the court below ought<\/p>\n<p>to have put the circumstance so as to elicit explanation of the two<\/p>\n<p>appellants in their respective statements under section 313 of the<\/p>\n<p>Code of Criminal Procedure. The non-compliance of the provision<\/p>\n<p>of section 313 of the Code of Criminal Procedure on the above<\/p>\n<p>point, in our considered opinion, vitiates the trial and the finding of<\/p>\n<p>the court below as regards the identification of the appellants.<\/p>\n<p>15.   While perusing the case diary, we are also alive to another<\/p>\n<p>aspect of the appeal and the submission also, that the doors of the<\/p>\n<p>room were broken by being smashed by some heavy stone material.<\/p>\n<p>We may point out that the description of the place of occurrence as<\/p>\n<p>mentioned in paragraph 5 of the case diary does not find any<\/p>\n<p>mention in the evidence of the witnesses. There is no mention of<\/p>\n<p>the fact that the I.O. had found the door broken or any such material<\/p>\n<p>on the place of occurrence which could be matching in description<\/p>\n<p>with that which was allegedly utilized in smashing the door so as to<\/p>\n<p>break them open. Witnesses have sated in their evidence that as<\/p>\n<p>soon as the deceased and they all had closeted themselves into the<\/p>\n<p>room in question, the accused persons hammered the doors to break<\/p>\n<p>them open with Silwat and Musal. These are vital facts which<br \/>\n<span class=\"hidden_text\">                               12<\/span><\/p>\n<p>appear materially touching upon the prosecution evidence<\/p>\n<p>adversely.\n<\/p>\n<p>16.   As regards other the argument on the belated receipt of the<\/p>\n<p>FIR, Ext. 6, by the magistrate, it was rightly submitted by the<\/p>\n<p>learned APP that the evidence of the I.O. could have been material<\/p>\n<p>in clarifying as to what was the reason under which the FIR could<\/p>\n<p>be dispatched and as such, was received belatedly by the magistrate.<\/p>\n<p>But, was not it the duty of the prosecution to call the witness for<\/p>\n<p>putting on this explanation and the explanatory material on the<\/p>\n<p>record of the case? Could it take advantage of its own laches<\/p>\n<p>specially when we have some satisfactory material to hold that for<\/p>\n<p>quite some time the police did not even know as to what was the<\/p>\n<p>case registered on that behalf and might be that it was still groping<\/p>\n<p>in dark as to what was the story to be placed before a court after<\/p>\n<p>satisfying its conscience as regards murder inside the house. Thus,<\/p>\n<p>we can say on various grounds and one that some basic record did<\/p>\n<p>not bear the number of the case. Inquest report and seizure memo<\/p>\n<p>were prepared much ahead of the time the FIR was drawn up but<\/p>\n<p>after the recording of Fardbeyan (Ext.1). But, what could be the<\/p>\n<p>explanation when one finds that the reference column in both<\/p>\n<p>Inquest Report and the postmortem examination report at their top<\/p>\n<p>do not bear any reference, even that to the fardbeyan of Sardar Ram.<\/p>\n<p>If the F.I.R. had not been drawn up by 2 P.M. or before 2 P.M., it<\/p>\n<p>would have been expected that the officer who was dispatching the<\/p>\n<p>dead body to the mortuary for postmortem examination, could have<br \/>\n<span class=\"hidden_text\">                                13<\/span><\/p>\n<p>put down in the reference column of the dead body challan and the<\/p>\n<p>inquest report, the fardbeyan of Sardar Ram and it could have been<\/p>\n<p>sufficient compliance to the requirements of law and we could have<\/p>\n<p>also got sufficiently satisfied about its compliance. The very<\/p>\n<p>postmortem report, which is available on the record and also a copy<\/p>\n<p>of which is placed at pages 61 and 62 of the paper book, indicates<\/p>\n<p>that the dead body had been received from Sasaram Mufassil Police<\/p>\n<p>station in connection with a case, number of which has not been<\/p>\n<p>mentioned. The dead body was received at 2 P.M., as indicated<\/p>\n<p>above,   the same was seen by P.W. 6 at 3.30 P.M. and the<\/p>\n<p>examination started at 4 P.M. The very non-mentioning of the case<\/p>\n<p>number at the top right hand corner of the postmortem examination<\/p>\n<p>report creates a doubt that before 2 P.M. there was no FIR which<\/p>\n<p>had been shown drawn up at that time. This could be the reason that<\/p>\n<p>we find that the requirement of section 157 of the Code of Criminal<\/p>\n<p>Procedure had not been complied with as the copy of the document,<\/p>\n<p>Ext. 6, does not appear to be sent to the magistrate &#8216;forthwith&#8217;. We<\/p>\n<p>do not want to burden this judgment by citation on the importance<\/p>\n<p>of dispatching a copy of the FIR to the magistrate for the purpose<\/p>\n<p>of eliminating any possibility of concoction or of false implication.<\/p>\n<p>17.   We find it admitted that the deceased had been cited as<\/p>\n<p>witness in a criminal trial which was probably going on for the<\/p>\n<p>murder of the son of one of the appellants Kapil Sah. The deceased<\/p>\n<p>had refused to depose in the trial. It is alleged that the deceased had<\/p>\n<p>been threatened by the appellants. The purpose to state these facts<br \/>\n<span class=\"hidden_text\">                               14<\/span><\/p>\n<p>is that it is a case purely based on suspicion that it could be the<\/p>\n<p>appellant Kapildeo      and his son Sudarshan who could have<\/p>\n<p>committed the murder of Sheopujan though the possibility exists<\/p>\n<p>that it could be many persons who could be settling their personal<\/p>\n<p>scores against the deceased for the reasons we have indicated just<\/p>\n<p>now.\n<\/p>\n<p>18.    After having discussed the evidence and the probabilities and<\/p>\n<p>the defect which afflicts the prosecution case,      we are of the<\/p>\n<p>considered view that it was a case in which benefit of doubt ought<\/p>\n<p>to have been given to the appellants. Accordingly, we extend the<\/p>\n<p>benefit of doubt to them. The Judgment of conviction passed by the<\/p>\n<p>learned trial judge and sentence inflicted on the appellants are set<\/p>\n<p>aside. The two appellants are acquitted after being given the benefit<\/p>\n<p>of doubt. Appellant Kapil Sah is on bail. He shall be discharged<\/p>\n<p>from the liabilities of his bail bond. Appellant Sudarshan Sah is in<\/p>\n<p>custody. He shall be released from custody if not wanted in any<\/p>\n<p>other case.\n<\/p>\n<\/p>\n<p>                            (Dharnidhar Jha, J.)<\/p>\n<p>                            (Rakesh Kumar, J.)<\/p>\n<p>Patna High Court,<br \/>\nThe 1st February,2010<br \/>\nNAFR\/Anil\/\n <\/p>\n","protected":false},"excerpt":{"rendered":"<p>Patna High Court Kapil Sah @ Kapildeo Sah vs State Of Bihar on 1 February, 2010 Author: Dharnidhar Jha CRIMINAL APPEAL No.64 OF 2003 DB With CRIMINAL APPEAL NO. 265 OF 2003 DB &#8212;&#8212;- Against the judgment and order dated 21st January, 2003 passed by Shri Baleshwar Prasad Singh, Presiding officer, Addl. Court No. 1, [&hellip;]<\/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-155580","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Kapil Sah @ Kapildeo Sah vs State Of Bihar on 1 February, 2010 - Free Judgements of Supreme Court &amp; 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\/kapil-sah-kapildeo-sah-vs-state-of-bihar-on-1-february-2010-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kapil Sah @ Kapildeo Sah vs State Of Bihar on 1 February, 2010 - Free Judgements of Supreme Court &amp; 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