Jharkhand High Court
Tinku Banerjee vs The State Of Bihar (Now Jharkhand) on 6 March, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
Criminal Appeal (D.B.) No. 75 of 1995 (R)
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[Against the judgment and order of conviction and sentence dated
31.05.1995 (sentence passed on 01.06.1995) passed by 1st
Additional Sessions Judge, Jamshedpur in Sessions Trial No. 54
of 1994/Sessions Trial No. 58 of 1995.
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1. Tinku Banerjee, son of Subhas Chandra Banerjee
2. Krishna Pathak son of Kashinath Pathak
3. Shankar Tanti son of Dub Raj Tanti, residents of Baridih Basti,
P.S. - Sidgora Jamshedpur, Distt. - Singhbhum (East)
... ... Appellants
Versus
The State of Bihar (Now Jharkhand) ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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For the Appellants : Mr. A. K. Kashyap, Sr. Advocate
For the Respondent : Mr. Vishwanath Roy, Spl.P.P.
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C.A.V. on 11.12.2024 Pronounced on 06.03.2025
Per Arun Kumar Rai, J.
1. Heard Mr. A. K. Kashyap, learned senior counsel appearing
on behalf of the appellants and Mr. Vishwanath Roy, learned
Spl.P.P. for the State.
2. This appeal is directed against the judgment and order of
conviction and sentence dated 31.05.1995 (sentence passed on
01.06.1995) passed by 1st Additional Sessions Judge,
Jamshedpur in Sessions Trial No. 54 of 1994/Sessions Trial No.
58 of 1995, whereby and whereunder, the appellants have been
convicted for the offence punishable under Sections 302/34 of
IPC and 27 of Arms Act and have been sentenced to undergo R.I.
for life under Sections 302/34 of IPC and no specific sentence
was passed under Section 27 of the Arms Act.
3. In nutshell, the case of prosecution is based upon the
Fardbeyan of one Ram Biyas Singh S/o Late Ram Janam Singh
resident of Baridih Basti, P.S. – Sidgora, District -East
1
Singhbhum, who happens to be real elder brother of deceased
and has stated therein that on 30.06.1992 at about 10:30 A.M.
his younger brother namely Ram Bachan Singh was taking tea by
sitting on the ground adjacent to Sahu Gumti and the informant
was near his house, he heard sound of gunshot and he came
towards the North, then he saw villager Krishna Pathak, Tinku
Banerjee, Shankar Tanty and one unknown person (who can be
identified after seeing) by taking pistol in their respective hand
surrounded the above-said Ram Bachan Singh and were firing
bullet very closely.
It has further been stated by informant that he got scared and
made commotion then all the four persons after making 4-5 bullet
shots on the person of his brother Ram Bachan Singh fled away
towards western side and villagers namely Nages Bhumij and
others came there and thereafter, his injured brother was taken
to M.G.M. Hospital where Doctor has declared him as dead. The
reason assigned for the incident is that, deceased was not
supporting the anti social elements, therefore, few persons got
dissatisfied with the deceased which resulted into killing of his
brother by four miscreants namely Krishna Pathak, Tinku
Banerjee, Shankar Tanty and one of their friend who could not be
identified.
4. On the basis of above-said Fardbeyan, an FIR being Sidgora
P.S. Case No. 52 of 1992 dated 30.06.1992 came into existence.
5. After due investigation, charge-sheet against three accused
persons who are appellants before this Court, has been
submitted and thereafter, cognizance of the offence was taken by
learned C.J.M., Jamshedpur and case was committed to the
Court of Sessions on 07.01.1994.
2
6. The charges under Sections 302/34 of the IPC and 27 of
Arms Act, have been read over to the accused-appellants to which
they denied and claimed to be innocent.
7. After trial, learned 1st Additional Sessions Judge,
Jamshedpur found all the three accused-appellants guilty and
convicted under Sections 302/34 of IPC and Section 27 of Arms
Act vide judgment dated 31.05.1995 and order of sentence dated
01.06.1995.
8. To prove the charges against accused-persons, prosecution
has examined as many as nine witnesses and also bring on
record Fardbeyan as Exhibit – 3, post-mortem report of deceased-
Ram Bachan Singh as Exhibit – 2 and signature of Sudama Ram
(P.W. -4) and signature of Surendra Singh (P.W. – 8) on Inquest
report as Exhibit – 1 and Exhibit 1/1 respectively.
9. From perusal of record, it transpires that P.W. -1, P.W. – 2,
P.W. – 4 and P.W. – 5 alleged to be eye-witnesses to the incident
but they resiled from their respective earlier statement recorded
under Section 161 Cr.P.C. and were declared hostile by the court
and thereafter, despite cross-examination on behalf of
prosecution nothing was elicited from the mouth of these
witnesses which could support the case of prosecution. However,
P.W. – 4 has identified his signature on Death Inquest Report and
the same has been marked as Exhibit – 1. P.W. – 8, Surendra
Singh is the son of Informant and hearsay witness who has
deposed that he reached the place of occurrence after hearing
about the incident, where he found his uncle (since deceased)
ensanguined and they removed him to Government hospital
where he was declared dead. He has also identified his signature
on Death Inquest Report which has been marked as Exhibit –
1/1.
3
10. P.W. – 3, Lallan Ram, also not supported the case of
prosecution by resiling from his own statement recorded under
Section 161 Cr.P.C. wherein he has stated that he saw the
accused-appellants while they were fleeing away from the place of
occurrence.
11. P.W. 7, Dr. Akhilesh Kumar Choudhary, who is the Doctor
and has proved the post-mortem report as Exhibit – 2 and has
opined cause of death as haemorrhage and shock caused by fire
arm injuries. During post-mortem examination, he has found
three fire arm injuries on the person of deceased; one over the
posterior surface of the right mid forearm, the other over the right
occipital scalp and the third one over the left shoulder 5 cm below
the tip of the shoulder.
12. Doctor has also found three abrasions on posterior surface
of lower back right side measuring 7cm X 5 cm, posterior aspect
of chest on the right side measuring 7cmX 6 cm and posterior
surface of right arm 15 cm X 10 cm on the person of deceased. In
cross-examination Doctor has stated that no charred mark on
any of the gunshot injury was noticed.
13. As per prosecution case, P.W. – 6, Vidyawati Devi and P.W.
– 9, Ram Biyas Singh who happens to be wife and real elder
brother of deceased Ram Bachan Singh, are the eye-witnesses of
the incident and have stated in their respective testimony that
they saw the accused-appellants fired bullet shots on the person
of deceased from very close range and after that fled away from
the place of occurrence.
14. We found that as far as death of Ram Bachan Singh is
concerned, it has not been disputed by defence and in view of the
post-mortem report (vide Exhibit – 2) and testimony of P.W. – 7
available on record, it has been established by the prosecution
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that death of Ram Bachan Singh has been caused on account of
fire arm injury on his person.
15. Learned senior counsel appearing for the appellant started
his argument by making submission that learned trial court
ought to have analyzed the evidence of alleged two eye-witnesses
i.e. P.W. – 6 and P.W. – 9 in proper perspective, keeping in mind
the fact that P.W. – 6 is the wife of deceased whereas P.W. – 9 is
the real elder brother of the deceased and they are having every
interest in securing conviction of accused persons as it has come
on record during course of cross-examination of P.W. – 6 and
P.W. – 9 that deceased and P.W. – 9 were/are persons having
criminal antecedent and there is enmity between accused side
and informant side. But learned trial court failed to do so.
16. Learned senior counsel has also pointed out that after
going through the testimonies of P.W. – 6, it appears that she had
seen the incident as she was taking his son namely Umesh
Kumar Singh to his school and when she reached near place of
occurrence, she saw all the three appellants along with one
unknown person given bullet injury that too from point blank
range which caused the demise of her husband but to falsify the
testimony of P.W. – 6 defence has brought and examined before
trial court D.W. – 1, Baneshwar Tantibai, who happens to be the
teacher of Itta Bhatta School, Baridih Basti where son of P.W. – 6
was studying at the time of incident.
17. Our attention has been drawn towards the fact that D.W. –
1, Baneshwar Tantibai, in his testimony categorically stated that
Umesh Kumar Singh, S/o Ram Bachan Singh (since deceased)
has got admitted in Itta Bhatta Primary School, Baridih Basti in
Class – II on 12.02.1992 and he was present on 30.06.1992 in his
class. The incident is said to be of 30.06.1992 at about 10:30
A.M.
5
Further submission has been made that, it is very un-
natural and improbable too for any human being (son of
deceased) that if he was present alongwith his mother and his
father was killed in broad day light by fire arm and mother
alongwith other persons removed his father to hospital where he
was declared dead, would attend his class after the incident.
Learned senior counsel further pointed out other
contradictions and tried to convince us that P.W. – 6- Vidyawati
Devi, wife of deceased, is not the eye-witness at all of the present
incident which is also very evident from the fact that she is not a
witness to the Fardbeyan given by her Baisur (P.W. -9). Whereas
other two persons were/are witness to it and even content of
Fardbeyan does not speak about her presence either at the time
of incident or in T.M.H. Hospital, Jamshedpur.
18. It has also been urged that as far as testimony of P.W. – 9
is concerned, he also claims himself to be an eye-witness who is
said to be reached at the place of occurrence after hearing the
sound of bullet and saw fire arm in hand of all the four accused
persons and they fired 4-5 bullets on his younger brother. It is
highly improbable as it is said that when P.W. – 9 reached at the
place of occurrence after hearing sound of gunshot then the
accused persons fired bullet to his younger brother from very
close range and then they fled away from the place of occurrence.
He further pointed out that P.W. – 9 has stated in his testimony
that after hearing bullet sound he went towards the place of
occurrence and 2- 3 minutes elapsed in reaching near place of
occurrence. On this version of P.W. – 9, learned Senior Counsel
submitted that had the accused persons after firing first bullet
waited for arrival of P.W. – 9, as it is said by P.W. – 9 that all the
accused persons were having firearm in their respective hand.
The fact as stated by P.W. – 9 is further falsified as the Doctor has
6
found only three uncharred gunshot injury on the person of
deceased and no empty cartridges got recovered from place of
occurrence.
19. Before concluding his argument, learned counsel drew
attention towards the impugned judgment dated 31.05.1995 and
submitted that evidence of both the alleged eye-witnesses has not
been properly appreciated by the trial court and that too in a case
of murder where court should be very careful while
scrutinizing/appreciating the evidence as the punishment for the
offence under Section 302 of IPC is very harsh.
20. Learned Spl.P.P. submitted that it is P.W. – 6 and P.W. – 9
who were/are near and dear of the deceased came forward before
Court of law for their respective testimony and there is no major
contradiction(s) in their testimony which could falsify or create
doubt about the case of prosecution. He further pointed out that
the accused-appellants and witnesses are of same place i.e.
Baridih Basti, P.S. – Sidgora, District – East Singhbhum, as such,
it could be well inferred that why independent witnesses could
not gahter courage to speak truth before court of law and
testimony of P.W. – 6 and P.W. – 9 cannot and should not be
discarded or disbelieved only on account of fact that these two
persons are interested witnesses having blood relation with the
deceased and further their testimony do not require any
corroboration from independent witness.
21. It has also been pointed out that these two witnesses saw
the accused-appellants while they fired bullet from very close
range on the person of deceased which caused three gunshot
injuries on the person of deceased consequently, Ram Bachan
Singh succumbed to gunshot injury.
7
22. Upon aforesaid premise, submission has been made that no
interference is required in the judgment of conviction dated
31.05.1995 and order of sentence dated 01.06.1995 respectively.
23. Before analyzing the evidence of two eye-witnesses P.W. – 6
(wife of deceased) and P.W. – 9 (elder brother of deceased), it is
required to be noted that it is trite law that evidence of close
relative of the deceased cannot and should not be disbelieved and
thrown out on account of fact that there is every reason for those
witnesses to secure the conviction of accused-appellants but at
the same time it is duty of the Court to appreciate and analyze
the evidence of these witnesses with full of circumspection.
24. Hon’ble Supreme Court in the case of Laltu Ghosh v.
State of W.B.,reported in (2019) 15 SCC 344 has held that the
testimony of a witness in a criminal trial cannot be discarded
merely because the witness is a relative or family member of the
victim of the offence. In such a case, court has to adopt a careful
approach in analysing the evidence of such witness and if the
testimony of the related witness is otherwise found credible
accused can be convicted on the basis of testimony of such
related witness. Relevant paragraphs of the judgment are referred
herein –
“12. As regards the contention that the eyewitnesses are
close relatives of the deceased, it is by now well-settled
that a related witness cannot be said to be an “interested”
witness merely by virtue of being a relative of the victim.
This Court has elucidated the difference between
“interested” and “related” witnesses in a plethora of
cases, stating that a witness may be called interested only
when he or she derives some benefit from the result of a
litigation, which in the context of a criminal case would
mean that the witness has a direct or indirect interest in
seeing the accused punished due to prior enmity or other
reasons, and thus has a motive to falsely implicate the
accused (for instance, see State of
Rajasthan v. Kalki [State of Rajasthan v. Kalki, (1981) 2
SCC 752 : 1981 SCC (Cri) 593] ; Amit v. State of
U.P. [Amit v. State of U.P., (2012) 4 SCC 107 : (2012) 2 SCC
(Cri) 590] and Gangabhavani v. Rayapati Venkat
8
Reddy [Gangabhavani v. Rayapati Venkat Reddy, (2013)
15 SCC 298 : (2014) 6 SCC (Cri) 182] ).
13. Recently, this difference was reiterated
in Ganapathi v. State of T.N. [Ganapathi v. State of T.N.,
(2018) 5 SCC 549 : (2018) 2 SCC (Cri) 793] , in the
following terms, by referring to the three-Judge Bench
decision in State of Rajasthan v. Kalki [State of
Rajasthan v. Kalki, (1981) 2 SCC 752 : 1981 SCC (Cri)
593] : (Ganapathi case [Ganapathi v. State of T.N., (2018)
5 SCC 549 : (2018) 2 SCC (Cri) 793] , SCC p. 555, para 14)
“14. “Related” is not equivalent to “interested”. A witness
may be called “interested” only when he or she derives
some benefit from the result of a litigation; in the decree in
a civil case, or in seeing an accused person punished. A
witness who is a natural one and is the only possible
eyewitness in the circumstances of a case cannot be said
to be “interested”….”
14. In criminal cases, it is often the case that the offence is
witnessed by a close relative of the victim, whose presence
on the scene of the offence would be natural. The evidence
of such a witness cannot automatically be discarded by
labelling the witness as interested. Indeed, one of the
earliest statements with respect to interested witnesses in
criminal cases was made by this Court in Dalip
Singh v. State of Punjab [Dalip Singh v. State of Punjab,
(1953) 2 SCC 36 : 1954 SCR 145 : AIR 1953 SC 364 :
1953 Cri LJ 1465] , wherein this Court observed: (AIR p.
366, para 26)
“26. A witness is normally to be considered independent
unless he or she springs from sources which are likely to
be tainted and that usually means unless the witness has
cause, such as enmity against the accused, to wish to
implicate him falsely. Ordinarily, a close relative would be
the last to screen the real culprit and falsely implicate an
innocent person.”
15. In case of a related witness, the Court may not treat
his or her testimony as inherently tainted, and needs to
ensure only that the evidence is inherently reliable,
probable, cogent and consistent. We may refer to the
observations of this Court in Jayabalan v. State (UT of
Pondicherry) [Jayabalan v. State (UT of Pondicherry),
(2010) 1 SCC 199 : (2010) 2 SCC (Cri) 966] : (SCC p. 213,
para 23)
“23. We are of the considered view that in cases where the
court is called upon to deal with the evidence of the
interested witnesses, the approach of the court while
appreciating the evidence of such witnesses must not be
pedantic. The court must be cautious in appreciating and
accepting the evidence given by the interested witnesses
but the court must not be suspicious of such evidence. The
primary endeavour of the court must be to look for
consistency. The evidence of a witness cannot be ignored
or thrown out solely because it comes from the mouth of a
person who is closely related to the victim.”
9
25. P.W. – 6, Vidyawati Devi, is the wife of deceased who stated
in her testimony that she is having one son namely Umesh
Kumar Singh and two daughters and she used to reside in the
house along with these children and the deceased-husband. She
has further stated that on the day of incident i.e. on 30.06.1992
at around 10:30 A.M. she was going with her son Umesh Kumar
Singh to drop him to school and when she reached near Sahu Tea
shop then she saw her husband was coming out of Tea Shop then
accused-appellants namely Krishna Pathak, Tinku Banerjee and
Shankar Tanty and one another person whom she could not
identify caught hold of her husband and fired bullet from very
close range and after receiving bullet injury her husband fell
down and in the meanwhile her Baisur Ram Biyas Singh and
other villagers assembled there and injured was removed to
hospital in a auto where Doctor has declared injured as dead.
From the testimony of P.W. – 6 it is clear that the very presence of
P.W. – 6 at the place of occurrence was on account of fact as she
was going to drop her son to school.
26. From trial court record it transpires that to falsify the
presence of P.W. – 6 at place of occurrence, defence has got
examined one teacher of Itta Bhatta Primary School, Baridih Basti
as D.W. – 1, who has stated in his testimony that Umesh Kumar
Singh, S/o of Late Ram Bachan Singh, Permanent Address :-
Village – Laxmipur, P.O. – Laxmipur, Balia; present address :-
Baridih Basti, P.S. – Sidgora, District – East Singhbhum is
student of his school since 12.02.1992 and to this effect he has
proved one certificate issued by him as Exhibit -A.
27. D.W. – 1 has also brought on record admission register
where at page 64 serial No. 38, name of Umesh Kumar Singh has
been written which speaks about his admission on 12.02.1992
10
and he has identified the signature and hand writing of the then
Principal Dilip Kumar Singh of Itta Bhatta Primary School,
Baridih Basti and same has been marked as Exhibit – B. He has
also brought along with him attendance sheet of Class – II for the
month June, 1992 and has stated that it is in the handwriting of
Jag Kandulna who was class teacher of Class – II and the said
page has been marked as Exhibit – C and on the basis of said
attendance sheet (vide Exhibit – C) it is apparent that Umesh
Kumar’s Roll No. is 26 and was present in his class on
30.06.1992.
28. In his cross-examination D.W. – 1 has stated that he had
not received any notice from the court to bring admission Register
and attendance Register and he had given Father’s name of
Umesh and his address on the basis of Admission Register. He
has also stated that Kandulnaj is still working in his school.
29. Learned trial court disbelieved the testimony of D.W. – 1 on
three counts, firstly on account of fact that admission register
Exhibit – B does not disclose the present address of Umesh
Kumar Singh, secondly, D.W. – 1 has brought before court the
above-said document(s) without any notice from the court upon
which learned trial court found interestedness of D.W. – 1 with
the accused persons and thirdly, the learned trial court noticed
the suggestion given to P.W. – 6 at the time of her cross-
examination and as it was not suggested to P.W. – 6 that Umesh
Kumar Singh was a student of Itta Bhatta Primary School,
Baridih rather it was suggested by defence that he was student of
Vikash Vidhalay, Baridih Basti.
30. We have very carefully gone through the Exhibits – A, B
and C. Exhibit – B is the sheet of admission register of Itta Bhatta
Primary School, Baridih where at serial number 38 name of
student is written as Umesh Kumar Singh, father’s name as Sri
11
Ram Bachan Singh and apart from column of profession, caste
one column is of permanent address and other one is of present
address. At serial no. 38, column of permanent address speaks
about Village – Laxmipur, P.O. – Laxmipur, District – Balia
whereas present address has been shown as Village – Baridih
Basti, P.O. – Baridih, District – East Singhbhum and all the
columns are filled up. From perusal of the impugned judgment
dated 31.05.1995, it appears that learned trial court has not
doubted the genuineness of this piece of paper (Admission sheet)
rather, on account of allegedly not finding the present address in
Exhibit – B doubted the identity of Umesh Kumar Singh as the
son of deceased.
31. As discussed above, Exhibit – B carries both permanent
address as well as present address of the student-Umesh Kumar
Singh but we find that inadvertently, learned trial court has not
noticed the present address mentioned in Exhibit – B. As far as
Exhibit – C is concerned, it is a matter of common prudence that
attendance register does not carry the parentage and residential
address of the students rather it carries the roll number and
name of student only.
32. Again, we find that genuineness of attendance sheet for the
month of June, 1992 of Itta Bhatta Primary School, Baridih Basti
has also not been doubted by learned trial court and at serial
number (Roll No.26), it is shown that on 30.06.1992, Umesh
Kumar was present in the school. As far as Exhibit – A is
concerned, it has been certified by D.W. – 1 that Umesh Kumar
Singh, S/o Late Ram Bachan Singh permanent Address Village –
Laxmipur, P.O. – Laxmipur, District – Balia and present address:-
Village – Baridih Basti, P.O. – Baridih, District – East Singhbhum
is studying since 12.02.1992 in this school.
12
33. To verify issuance/non-issuance of notice to bring
Admission/attendance Register of said school, we find that order
dated 26.09.1994 of trial court reveals that one application has
been filed/moved on behalf of the accused persons for securing
presence of principal of Itta Bhatta Primary School, Baridih which
has been allowed by the learned trial court and accused persons
were directed to deposit Rs. 150/- for the same and same was
deposited by accused persons.
34. From the above-said order, it is crystal clear that prayer
has been made on behalf of accused persons to secure the
presence of principal of Itta Bhatta Primary School, Baridih Basti,
as such, nothing is suspicious in the testimony of D.W. – 1
wherein, he has stated that no notice of court has been received
by him as the notice must have been sent to principal of the said
school who in turned made available all those
documents/registers to D.W.- 1.
35. As far as, suggestion on behalf of accused persons are
concerned, it is true that while cross-examining P.W. – 6, accused
persons have given suggestion that her son was studying in
Vikash Vidyalaya and not in Hindustan Mitra Mandal but P.W. –
6 has voluntarily stated that Vikash Vidyalaya is closed since
long. While cross-examining D.W. – 1, we found that nowhere this
witness has been given suggestion on behalf of State that Umesh
Kumar Singh was not studying in Itta Bhatta Primary School,
Baridih Basti and the documents i.e. admission
register/attendance register and certificate brought by D.W. – 1
are false and fabricated, one. Rather, State has given suggestion
to D.W. – 1 that he is having no personal knowledge whether
Umesh is student of some other school apart from your school. By
looking at this suggestion, it is clear that State is not denying the
fact that Umesh is student of school of D.W. – 1.
13
36. In the judgment rendered by Hon’ble Apex court in case of
Anand Ramachandra Chougule v. Sidarai Laxman
Chougala, reported in (2019) 8 SCC 50, wherein the court has
stated that defence has only to create a doubt about the
prosecution case and the probability of its defence, as it is not
required to establish or prove his defence beyond all reasonable
doubt, unlike the prosecution. Relevant paragraph reads as under
–
10. The burden lies on the prosecution to prove the allegations beyond
all reasonable doubt. In contradistinction to the same, the accused has
only to create a doubt about the prosecution case and the probability
of its defence. An accused is not required to establish or prove his
defence beyond all reasonable doubt, unlike the prosecution. If the
accused takes a defence, which is not improbable and appears likely,
there is material in support of such defence, the accused is not
required to prove anything further. The benefit of doubt must follow
unless the prosecution is able to prove its case beyond all reasonable
doubt.
37. In view of the aforesaid discussions, it is very difficult for us
to agree with the reasoning assigned by the learned trial court for
disbelieving the testimony of D.W. – 1 and discarding Exhibit – A,
Exhibit – B and Exhibit – C. We found that when P.W. – 6 alleged
that she accompanied injured to the hospital then why P.W. – 9
had not stated this fact either in his Fardbeyan (vide Exhibit -3)
or in his testimony before learned trial court. In the backdrop of
above stated fact i.e. bringing on record the testimony of D.W. – 1
and Exhibits – A, B and C, defence has created doubt about the
veracity of the version of P.W. – 6 that she was going with her son
Umesh Kumar Singh at about 10:30 A.M. on 30.06.1992 to drop
him to school and when she saw the incident as it is very
unnatural and improbable conduct of human being (son of P.W. –
6 herein) that if father of a boy got murdered in broad day light by
fire arm and his mother allegedly accompanied injured father to
hospital then the boy would go to school and attend the class on
that day.
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38. Now, coming to evidence of P.W. – 9, we find that he
claimed himself to be the eye-witness to the present incident and
has deposed that after hearing the gunshot he came out of his
house at 10:30 A.M. and ran towards Sahu hotel then he saw
Krishna Pathak, Shankar Tanti and Rinku Banerjee and one
unidentified person were firing bullets by putting pistol close to
neck of the deceased then he made commotion then Nogin
Bhumij, Ludu Lohar and others came thereafter seeing them the
above-said accused prsons fled away towards Western side and
he saw the incident just 10-15 steps away from the place where
incident took place.
39. It is the case of prosecution that after hearing sound of
gunshot P.W. – 9 came out of his house and ran towards the
place of occurrence and when he reached place of occurrence all
the accused persons by keeping fire arm and surrounding
deceased were firing bullets very closely, But this fact is
contradictory to what stated by P.W. – 9 in his Fardbeyan as he
has stated in Fardbeyan (vide Exhibit – 3) that at the time of firing
of bullet he was near the house. P.W. – 9 has stated that he
would have reached place of occurrence in three-four minutes by
running and there is one house of Kapil Choubey in between his
house and place of occurrence. Further, he has stated in his
cross-examination that there is a shop in the house of Kapil
Choubey and there is two shops in between Kapil Choubey’s
house and place of occurrence. Whereas, P.W. – 6 has stated in
her cross-examination at Para – 6 that in between her house and
place of occurrence, there are about eight houses and house of
Ram Biyas Singh (P.W. – 9) is also at about same distance from
the place of occurrence and there might be 5-10 number of shops
in between his house and place of occurrence.
15
40. It has stated by P.W. – 9 in his testimony that all the four
accused-appellants were firing bullets by putting pistol close to
neck of deceased and this fact find corroboration from his
Fardbeyan. But as per post-mortem report three bullet injuries
received by the deceased. P.W. – 9 has also stated that bullet was
fired from very close range but his fact has not been found
corroboration from the testimony of Doctor who has been
examined as P.W. – 7 in the present case who has stated that
there is no charred mark found on the person of deceased.
41. Hon’ble Supreme Court in the case of Nath Singh v. State
of U.P.,reported in (1980) 4 SCC 402 has held that;-
28. ……….. The medical evidence shows that there was
charring around the gunshot wounds of entry found on the
dead bodies of Prakash Singh and Nek Singh. The
charring is an indication that these fatal gunshots were
fired at the deceased persons from a very close range……
42. Also, in case of Subhash v. State of U.P., reported in
(1976) 3 SCC 629 has held that –
“13. While we are on the medical evidence it would be
appropriate to mention that there was no tattooing or
charring on any of the firearm injuries which, according to
the doctor, shows that the firing was done from a distance
of more than 4 feet. In the first information report Bal
Kishore has stated that as soon as he, his father and
sister, reached the culvert, Subhash “touching the chest” of
Ram Sanehi “with the barrel of his gun” said that he shall
not leave him alive; Shyam Narain thereupon exhorted
Subhash not to delay and fire immediately; Subhash then
fired three shots in quick succession, one of which
misfired. The trend of the FIR is that Subhash fired the
first two shots at Ram Sanehi from a point-blank range, in
which event, indisputably, there would have been
tattooing and charring around the injuries. Bal Kishore has
attempted to offer an explanation that what he meant to
say in his complaint was that Subhash trained his gun
“towards” Ram Sanehi’s chest and not “on” his chest. This
explanation is an afterthought and, in the circumstances,
difficult to accept. Thus, in another important respect, the
medical evidence falsifies the case of the prosecution.”
43. The above precedents have been reiterated in case of Baso
Prasad v. State of Bihar, reported in (2006) 13 SCC 65 and it
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has categorically held that charring is caused when the shot is
fired from a very close range. Relevant para of the judgment is
quoted hereunder: –
“26. So far as the contention in regard to distance of firing
is concerned, it is true, ordinarily, charring would take
place, if firing is done from a distance of less than four
feet, as has been noticed in some of the judgments of this
Court in Subhash v. State of U.P. [(1976) 3 SCC 629 : 1976
SCC (Cri) 483] , Nath Singh v. State of U.P. [(1980) 4 SCC
402 : 1980 SCC (Cri) 968] , State of Punjab v. Wassan
Singh [(1981) 2 SCC 1 : 1981 SCC (Cri) 292]
and Sidharth v. State of Bihar [(2005) 12 SCC 545 : (2006)
1 SCC (Cri) 175]”.
44. P.W. – 9 has deposed that he came out of his home after
hearing the sound of bullet and reached place of occurrence in
three-four minutes and saw the firing of bullet by accused
persons from close range on the person of deceased appears to be
a bit improbable on account of time lag because after hearing
gunshot as per version of P.W. – 9, 3-4 minutes taken by him to
reach place of occurrence then one question which cropped up in
our mind that why accused persons would have taken a pause
for above-said time after firing of first bullet and that too when
every accused persons were having fire arm in their respective
hand.
45. By going through the cross-examination, it is apparent that
P.W. – 9 is also having criminal antecedent and accused persons
have tried to bring on record the inimical relation between
accused side and informant side on account of the fact that P.W.
– 9 has stated that he does not know in murder case of Uma Pado
Sarkar deceased was accused and sister of one of the appellant-
Krishna Pathak was witness and other accused Shankar Tanti
was relative of Uma Pado Sarkar. We find that no one from Tea
Shop has been made witness in the present case and even I.O.
has also not been examined in the present case.
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46. Considering the above stated discussions especially the
uncorroborated testimony of P.W. – 9 does not inspire confidence
to believe the case of prosecution in toto and under these
circumstances, we are of considered view that appellants are
entitle for benefit of doubt.
47. As a result, we set aside the judgment and order of
conviction and sentence dated 31.05.1995 (sentence passed on
01.06.1995) passed by 1st Additional Sessions Judge,
Jamshedpur in Sessions Trial No. 54 of 1994/Sessions Trial No.
58 of 1995, whereby and whereunder, the appellants have been
convicted for the offence punishable under Sections 302/34 of
IPC and 27 of Arms Act and have been sentenced to undergo R.I.
for life.
48. This appeal is allowed.
49. Since the appellants are on bail, they are discharged from
the liability of their respective bail bond.
(Rongon Mukhopadhyay, J.)
(Arun Kumar Rai, J.)
High Court of Jharkhand at Ranchi
Dated, the 6th day of March, 2025.
Umesh/-N.A.F.R.
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