Ram Kishore Tiwari vs The State of Bihar

Appellant Ram Kishore Tiwari has been found guilty for an offence punishable under Section 304 Part-II of the I.P.C. and sentenced to undergo

R.I. for five years as well as to pay fine appertaining to Rs.5,000/- and in default thereof, to undergo R.I. for one year, additionally, under Section 27

of the Arms Act and sentenced to undergo R.I. for two years and fine of Rs.1,000/- and in default thereof, to undergo R.I. for three months,

additionally, with a further direction to run the sentences concurrently vide judgment of conviction dated 22.12.2014 and order of sentence dated

23.12.2014 passed by the 3rd Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No.262 of 2004.

Birendra Tiwari (PW-6) gave his fard-bayan on 09.07.2003 at about 12.15 hours before Officer-in-Charge of Kargahar P. S. in the open land lying

East to temple and North to the house of Ashok Narayan Tiwari disclosing therein that today i.e. 09.06.2003 at about 8.00 a.m. while he was putting

thatched roof, his father Dhanwanter Tiwari has gone to village to engage labourers for paddy plantation. At about 8.15 a.m., his neighbour Lalan

Tiwari ordered “Maro-Maroâ€, whereupon he came out from his house and saw Ram Kishore Tiwari, Pawan Tiwari and Pappu Tiwari have

assembled East to the temple armed with rifle and fired. Ram Kishore Tiwari fired from his licensee rifle aiming his father Dhanwanter Tiwari, who

was coming from East to West towards his house, who sustained bullet injury, fell down and died instantaneously. They have fired five rounds from

the rifle. Pawan Tiwari fired from the same licensee rifle causing injury over Sonu Tiwari aged about 13 years over his hand, who has been shifted to

Sasaram for treatment. Lalan Tiwari has ordered to fire. Seeing his father becoming dead after sustaining firearm injury, all of them escaped towards

Northern-Western direction. He had seen the occurrence from near the temple. It has also been disclosed that aforesaid occurrence has been

committed on account of long standing animosity. Also shown Ashok Narayan Tiwari, Binod Tiwari and others to be an eye witness to occurrence.

On the basis of the aforesaid fard-bayan, Kargahar P. S. Case No.94 of 2003 was registered followed with an investigation as well as submission

of chargesheet, facilitating the trial in a manner, the subject matter of instant appeal. It has been perceived during course of hearing that one of the

accused Pawan Tiwari was declared Juvenile, whereupon his case has been bifurcated while the learned lower Court acquitted co-accused Lalan

Tiwari as well as Pappu Tiwari.

Defence case, as is evident from mode of cross-examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete

denial of the occurrence. It has also been pleaded that there was an altercation amongst both groups over preparation of ridge by the prosecution

party encroaching over their land, whereupon Jitendra took out firearm and fired causing injury to Sonu as well as Dhanmanter Tiwari, deceased.

Furthermore, plea of alibi was also taken at the end of accused Lalan Tiwari. Three DWs have been examined as well as certain documents have

also been exhibited, but those relate with Lalan Tiwari (since acquitted).

In order to substantiate its case, prosecution had examined altogether 10 PWs, who are PW-1 Ashok Narain Tiwari, PW-2 Kamta Prasad Tiwari,

PW-3 Suresh Tiwari, PW-4 Jitendra Tiwari, PW-5 Manish Kumar @ Sonu, PW-6 Birendra Tiwari, PW-7 Dr. Umesh Chandra Srivastava, PW-8

Radhey Shyam Upadhyay, PW-9 Binod Tiwari and PW-10 Shyam Kishore Singh as well as had also exhibited Exhibit-1, signature of seizure list

witness, Exhibit-2, carbon copy of inquest report, Exhibit-3 series, injury report of Binod Tiwari and Manish Tiwari respectively, Exhibit-4, post mortem

report, Exhibit-5, formal F.I.R., Exhibit-6, fard-bayan, Exhibit-7, protest petition, Exhibit-8, power, Exhibit-9, Sanha No.180, Exhibit-10, C.C. of

Chargesheet of Kargahar P. S. Case No.50 of 1996, Exhibit-11 series, cetified copy of charge having been framed under S.T. No.6 of 1997, Exhibit-

12, C.C. of Deposition of Sudama Singh, Exhibit-13, C.C. of judgment dated 07.04.2000 passed in C-397 of 1996. Prosecution had also exhibited

material Exhibit-1, bag of cartridges. In likewise manner, defence had also examined three DWs viz. DW-1 Arun Kumar Singh, DW-2 Kameshwar

Singh and DW-3 Sudama Singh as well as had also exhibited, Exhibit-A, copy of order book dated 09.07.2003, Exhibit-B, Page No.27 thereof.

The first and foremost ground, whereupon finding of the learned lower Court has been challenged is over non-examination of the I.O. Keeping the

aforesaid deficiency in the centre point, it has been urged that same has caused prejudice to the interest of the appellant and on account thereof, the

judgment of conviction and sentence is fit to be annulled. Further, elaborating the plea, it has been submitted that there happens to be material

development in the evidence of the respective witnesses going to the root of the prosecution case, suggesting the witnesses to be liar, which on

account of non-examination of the I.O. deprived the appellant to legally brought up on the record. It has also been argued that from the evidence

available on the record, it is crystal clear that first statement was given by the injured Manish Kumar @ Sonu, whereupon the same would have been

the basis for registration of the case, which never been occurred. That being so, had there been examination of the I.O., the explanation, if any, would

have been on his score. It has further been submitted that witnesses are not at all consistent with regard to proper identification of the P.O. as the

same happens to be at two different locations and so, had there been examination of the I.O., the actual P.O. would have properly been surfaced

discrediting the evidence of the PWs. Thus, the non-examination of the I.O. is found fatal to the prosecution.

Then, it has been submitted that when the evidence of victim (PW-5) Manish Kumar @ Sonu and PW-6 Birendra Tiwari (informant) is properly

scrutinized in legal way, then in that circumstance, it is found that whatever version has come up at the end of the prosecution through the informant, is

found completely inconsistent to each other, whereupon the claim of the witnesses that they happen to be an eye witness to occurrence go out of

consideration. Apart from this, it has also been submitted that majority of the witnesses are the family members, hostile to the appellant and further,

they thrust themselves to be an eye witness to occurrence in order to have a verdict adverse to the interest of the appellant, which in the facts and

circumstances of the case, could not be relied upon and that happens to be reason behind inconsistency over genesis and manner of occurrence.

Last, but not in least, it has been submitted that on the basis of same evidence, two accused namely Lalan Tiwari and Pappu Tiwari have already

been acquitted and that being so, appellant should have also been given the same treatment by way of recording verdict of acquittal in his favour in the

background of the fact that witnesses were found untrustworthy, uncreditable, unworthy of credence.

On the other hand, learned Additional Public Prosecutor along with learned counsel for the informant have controverted the submission having

made on behalf of appellant and have submitted that falsus in uno falsus in omnibus is not the theme of the Evidence Act, whereupon the evidence

may be found suffering from paucity relating to a co-accused could be found consistent, properly identifying the other co-accused being the

perpetrator of the crime. That being so, it is not the principle that as co-accused has been acquitted, the same set of evidence would not justify

conviction and sentence relating to other co-accused. So far appellant is concerned, there happens to be consistent evidence, whereupon finding

recorded by the learned lower Court appears to be just, legal and proper and is fit to be confirmed.

Before delving over the ocular evidence first of all, evidence of doctor is to be seen. PW-7 is the doctor, who had examined the injured Manish

Kumar @ Sonu on 09.07.2003 at about 12.15 hours while he was posted as Civil Assistant Surgeon at Sadar Hospital, Sasaram and found the

following:-

I) Lacerated wound ¼â€​ in diameter over left forearm with inverted margin i.e. wound of entry.

II) Lacerated wound ½â€​ in diameter over left forearm with everted margin i.e. exit of wound.

Age of injuries within six hours of the time of examination of the victim, caused by firearm. Opinion reserved till X-ray report is received.

On the same day at about 4.45 p.m., he conducted post mortem over the dead body of Dhanwanter Tiwari and found the following:-

The following ante-mortem injuries were present.

I) Rigor mortis was present in all the fore limbs. On external examination it was found.

I) Lacerated wound ½â€​ in diameter over outer wall of left axill. Margin inverted. This is entry of wound.

II) Lacerated wound 1 ½†in diameter left shoulder joint scapular area with everted margin. This is wound of exit. Injury no.I and Injury No.II are

communicating to each other.

Dissection- chest cavity over left side of chest contained blood and blood clot, left lung lacerated. Both chambers of heart empty abdominal cavity

opened stomach contained digested food. Spleen, lever, kidney pole and anaemic. Urinary bladder contained 100 ml of urine. Cranial cavity opened.

Brain matter and ménages pale and anaemic. Time elapsed since death till post-mortem done between six to eighteen hours. Cause of death-Due to

bleeding and shock caused by above mentioned injuries by firearm. All the injuries are ante-mortem injuries.

During cross-examination, it is evident that he was tested whether on account of injury caused by rifle, the fracture injury would normally happen and

the answer happens to be according to location of the body. In likewise manner, he had also stated that he is unable to disclose the distance in

between of deceased with assailant on the basis of the nature of the injury. At Para-12, he had stated that nature of injury of Exhibit-4, post mortem

suggest down ward to upward. In Para-14, he had further stated that time elapsed since death has been estimated on the basis of the presence of

rigor mortis.

PW-5 is one of the injured namely Manish Kumar @ Sonu, who was examined approximately after five years of occurrence. On the date of

examination, he had shown his age as 21 years, so deducting five years there from, on the date of occurrence, he was approximately 16 years. He had

deposed that on the alleged date and time of occurrence, he was over the ridge of his field. Ridge was being prepared. At that very moment, Ram

Kishore Tiwari, Lalan Tiwari, Pappu Tiwari and Pawan Tiwari came at the field and forbade not to construct ridge. Then thereafter, they returned

back to their house where Pawan Tiwari took out licensee rifle while others were empty hand. Pawan Tiwari moved to temple and fired rifle there

from causing injury over his left hand. Then thereafter, he heard 5-6 rounds having been fired by Pawan Tiwari. When he came at his house along

with his father, had seen dead body of Dhanwantar Tiwari. His family members have disclosed that Ram Kishore Tiwari after taking rifle from

Pawan Tiwari shot at Dhanwantar Tiwari as a result of which, he died instantaneously. He, being injured, was shifted to Sadar Hospital, Sasaram for

treatment. His statement was recorded by the police as well as the Superintendent of Police, identified the accused.

During cross-examination at Para-7, he had shown the boundary of the land where ridge was being constructed as North-his plot, South-his plot, East-

Ram Kishore Tiwari, West-his plot. Altercation took place over Eastern flank of his land as well as Western flank of land of Ram Kishore Tiwari.

There was no dispute with regard to aforesaid ridge since before. At Para-10, he had stated that plantation of paddy was to begin at the relevant time

and for that, fields were being prepared. He reached at the ridge of the field at about 8.00 a.m. He along with his father and elder father (uncle)

Ashok Narayan Tiwari have gone to the field having spade in their hand. In Para-11, he had stated that all the four accused came empty hands at the

field ten minutes thereafter. They came and forbade not to prepare ridge and for that, there was an altercation for 2-4 minutes. None came from his

side. In Para-12, he denied the suggestion that at the time of altercation, Jitendra Tiwari (his elder brother) arrived at the spot. In Para-13, he had

stated that he sustained firearm injury while was at his field from a distance of 60 yards, approximately 75 feet. Then, there happens to be cross-

examination relating to location of Sati Asthan and then ditch adjacent thereto under Paras-14, 15, 16, 17, 18, 19. In Para-20, he had deposed that till

the time he remained at his field, he had not seen Dhanwantar Tiwari coming from Eastern direction. Then had disclosed that house of Mahendra

Tiwari lies at the Southern flank of channel. In Para-21, he had stated that at the Northern flank of channel, 2-3 bamboo clusters were. He some trees

having height of three feet were also there. It will take one and half minute to go to the house of Mahendra Tiwari from the field. His house lies

adjacent to the house of Mahendra Tiwari and the house of accused lies west to his house. He had sustained firearm injury at his left hand, but had

not sustained fracture. In Para-3, he had further stated that he had sustained injury within five minutes after the quarrel. He had not seen assault over

Dhanwantar Tiwari. In Para-24, he had stated that within five minutes of sustaining injury, he was taken to hospital. In Para-25, he had stated that his

statement was recorded at Sadar Hospital Sasaram on the date of sustaining of injuries. He, after reading the fard-bayan, had put his signature. Then

at Para-26, he had denied that he had not made statement that he had seen Dhanwantar Tiwari being dead. In Para-27, he had further stated that I.O.

had recorded his statement at his house 6-7 days after the occurrence. In Paras-28, 29, 30, there happens to be contradiction relating thereto. In Para-

31, he had further stated that he was not knowing with regard to repairing of the thatched roof of Birendra Tiwari. Then had stated that his land lies

145 feet away from his house. At Para-32, he had denied the suggestion that his land lies 3000-4000 yards away. Then had denied the suggestion that

at the time of altercation, his brother Jitendra Tiwari fired after taking position with the boundary of Mahendra Tiwari as a result of which, he along

with Dhanwantar Tiwari sustained firearm injuries. It has also been denied that on account thereof, accused persons have been falsely implicated. In

Para-35, he had further stated that age of deceased Dhanwantar Tiwari at the time of occurrence was approximately 75-80 years. On behalf of Lalan

Tiwari, he was separately cross-examined. In Para-36, he had further stated that road lies 50 feet away from his house. Temple of Thakurji is situated

west to the aforesaid road. After coming to the house of Mahendra Tiwari, the road goes towards Eastern direction and then, to Southern direction.

The distance from that Mor to the temple of Thakurji happens to be 200 feet. Hand-pipe lies 25-30 feet away from the temple of Thakurji. House of

Dhanwantar Tiwari lies 25 feet south to the aforesaid temple. House of Lalan Tiwari lies four feet east to the house of Dhanwantar Tiwari. In Para-

38, he had stated that Mor happens to be 50 feet east to the house of Mahendra Tiwari. In Para-39, he had stated that Sati Asthan lies north to the

road in between Mahendra Tiwari and Mor. Then had stated that the ridge was north to the aforesaid Sati Asthan. In Para-40, he had stated that

ridge was repaired at 3-4 places. In Paras-41,42, there happens to be cross-examination relating to presence of pond belonging to Ramdeep Singh and

further, location of the houses of respective parties there from. In Para-44, he had stated that Lalan Tiwari was Teacher at the time of occurrence.

Even on the date of his examination-in-chief, he was Teacher at Roophattha Middle School. In Para-45, he had stated that during course of

occurrence, Lalan Tiwari was residing along with his family members at Sasaram and he used to come and go there from. In Paras-46, 47, there

happens to be contradiction relating to his earlier statement. Then at Para-48, he denied the suggestion that on the alleged date and time of

occurrence, Lalan Tiwari was not present at his house. He denied the suggestion that on the alleged date of occurrence, he was at the school.

PW-1 is Ashok Narayan Tiwari, elder father (uncle) of PW-5 Manish Kumar @ Sonu. He had stated that on 09.07.2003 at about 8.15 a.m., he

along with his brother Binod Kumar Tiwari and nephew Manish Tiwari @ Sonu were at their field preparing the ridge. At that very moment, Lalan

Tiwari, Ram Kishore Tiwari, Pappu Tiwari, Pawan Tiwari came at the field out of whom, Lalan Tiwari had disclosed that you people have become

embolden after deposing against him. Then had stated that Binod Tiwari had deposed in a case instituted by Dhanwantar Tiwari against Lalan Tiwari,

Ram Kishore Tiwari and he was also to depose, whereupon they were threatened that they will not allow him to live in the village and in the aforesaid

background, Pawan Tiwari forbade them to repair the ridge. He had stated that it is time of agriculture, so ridge has to be repaired, whereupon Lalan

Tiwari said that they are to see how plantation is being carried out. Then thereafter, Pawan Tiwari took out his licensee rifle while Lalan Tiwari,

Pappu Tiwari and Ram Kishore Tiwari joined him. They stood near hand-pipe and during course thereof, Lalan Tiwari, Pappu Tiwari, Ram Kishore

Tiwari began to provoke Pawan Tiwari to kill, whereupon Pawan Tiwari fired aiming at Manish Kumar @ Sonu in order to kill causing injury below

elbow of left hand as a result of which, he fell down. He along with Binod Tiwari while were lifting Sonu to house, at that very moment, they saw

Dhanwantar Tiwari coming from Eastern side. Lalan Tiwari and Pappu Tiwari said that this person has harassed them by instituting a case. So, he be

also murdered, whereupon Ram Kishore Tiwari took rifle from Pawan Tiwari and shot Dhanwantar Tiwari causing injury over his chest as a result of

which, he fell down and died. Birendra Tiwari, Suresh Tiwari and Parmanand Tiwari came from Eastern side of Thakurji Temple. They gone near

Dhanwantar Tiwari carrying Manish Kumar till then, he was dead. Then thereafter, all the accused fled away towards Northern-Western direction.

Then, he directed Binod Tiwari to carry Manish Kumar @ Sonu to Sasaram for treatment. He had gone to the place of Chaukidar to inform police

station. He had informed Dafadar and Chaukidar, whereupon Dafadar had instructed the Chaukidar to keep vigil over the dead body as he was going

to inform the police station. Accordingly, police came, inspected the P.O., recovered three empty cartridges from the place wherefrom firing was

made, inquest was prepared, dead body was sent to mortuary, identified his signature over seizure list. Identified the accused.

During cross-examination at Para-11, there happens to be disclosure regarding family status. In Para-12, he had stated that the entrance road to

village-Sondih is from eastern side as well as from western side. He has seen the house of Dhanwantar Tiwari, who has got one house having

boundary North-sahan land of Gauri Shankar Tiwari, South-Vijay Pandey and then, house of Harkhu Singh, Markandey Singh, East-house of Lalan

Tiwari, West-sahan land of Dhanwantar Tiwari. The house of Dhanwantar Tiwari lies at Northern-Western part of the village. The darwaza of

Dhanwantar Tiwari is Eastern faced. Then had disclosed that the ingress and outgress of house of Dhanwantar Tiwari happens to be through Eastern

side and then, proceeding towards Northern direction met with the main road. Then had disclosed that Gali happens to be North to South near the

house of Dhanwantar Tiwari. At Para-17, he had stated that river flows Southern-Western flank of the village. Pond is at the Eastern side of the

village. There happens to be no bamboo cluster near the pond. Place where Dhanwantar Tiwari had fallen, there was bamboo cluster. Then had

disclosed that the plot where he was preparing ridge happens to be at Northern-Eastern corner of the pond. Then had disclosed that the Western flank

of field of Lalan Tiwari and his plot happens to be contiguous to each other. He had denied the suggestion with regard to the location of the ridge. He

had denied the suggestion that Title Suit was drawn up for the same as they have encroached upon land of Lalan Tiwari. In Para-19, he had stated

that he along with his brother Binod Tiwari were engaged in repairing ridge. Manish Kumar came later on and was standing. They have not engaged

any labourer. At that very time, there was non-presence of the farmers or labourers in the vicinity of the aforesaid land. In Para-21, he had stated that

at the time of occurrence, case was being fought amongst Dhanwantar Tiwari as well as accused persons. In Para-22, he had stated that Sati Asthan

lies at Northern flank of the village. Sati Asthan happens to be 30-35 yards away from his house at Northern-Eastern corner. Pond of Ramdeep Singh

lies East to Sati Asthan at a distance of 5-7 yards. At the bank of pond, there happens to be small plant of Teak (Sisam) having height of five feet and

some of the plant happen to be 7-8 feet. There happens to be no tree South to the Sati Asthan West to the pond of Ramdeep Singh, there happens to

be bamboo cluster and South to that bamboo cluster, dead body of Dhanwantar Tiwari was lying. It was in a Gali having 5-7 feet width. Just adjacent

to aforesaid Gali, there happens to be channel flowing East to West. At the time of occurrence, water was present. That channel happens to be knee

deep as well as 3-4 feet in width. Then had given detailed topography of the P.O. In Para-15. In likewise manner, happens to be cross-examination

relating to location of house of the accused under Paras-23, 24 and 25. In Para-26, he had stated that house of Mahendra Tiwari lies East to his house

after the Gali. Width of that Gali is about four feet. At Western-Eastern corner of the house of Mahendra Tiwari at a distance of 20-25 yards, dead

body of Dhanwantar Tiwari was lying. After going to 5-6 feet West to the place where dead body was lying, one has to move to go to the house of

informant. In Para-27, he had stated that hand-pipe lies 6-7 yards away from the darwaza of Lalan Tiwari. Temple lies 5-7 yards west to that hand-

pipe. Temple has been constructed by their ancestors. Western wall of the house of Lalan Tiwari is of mud. Its length from North to South is 20

yards. Then had stated that dilapidated house of others lies at Southern corner of the Western wall of house of the Lalan Tiwari. The darwaza of

Birendra Tiwari, informant did not face towards the dilapidated house. The darwaza of Birendra Tiwari lies at that place having eastern front. In

Para-28, he had stated that on the date of occurrence, thatched roof was being laid. He is not knowing how much work had completed. He is not

knowing how many persons were engaged. In Para-29, he had stated that he met with informant at the place where dead body of Dhanwantar Tiwari

was lying. He had further stated that before the occurrence, there was commotion at his field. He had also said that there was no commotion at the

place where thatched roof was being laid. In Para-30, he had admitted Jitendra Tiwari to be his nephew. In Para-31, he had stated that he is unable to

say whether at the time of occurrence, Jitendra was at his house. Then had denied the suggestion that Jitendra was at his house. Then had disclosed

that Jitendra was not at his house rather in the village, but he is unable to say where he was. Then had denied the suggestion that there was

Panchayati for getting the land measured. Then had denied suggestion having at Para-33 that they were forcibly constructing the ridge, which was

resisted by the accused persons, whereupon they became adamant to kill and during course thereof, Jitendra came to his house, took out illegal firearm

and then, began to fire from near house of Mahendra Tiwari causing injury to Manish Kumar as well as Dhanwantar Tiwari, who was coming from

West to East as a result of which, he died. Because of the fact that Lalan has already been acquitted on account thereof, Paragraphs-34, 35, 36, 37,

38 are being ignored as it relates with his plea of alibi. In Para-39, he had stated that after sustaining injuries, Manish Kumar had not become

unconscious. He had fallen down. Manish was carried by him as well as Binod Tiwari. In Para-40, he had stated that his son Abhishek Tiwari aged

about 12-13 years, who was Student of Class-VIII might have hidden. In Para-41, he had stated that the field where they were and the place where

Dhanmantar Tiwari had fallen happens to be at the distance of 62 yards. He is not remembering the exact time, but might have covered 10-15

minutes. Till then, only the family members of Birendra had arrived at the P.O. In Para-43, he had stated that Binod Tiwari accompanied Manish

Kumar to his darwaza while he had gone to call Chaukidar after seeing the dead body of Dhanwantar Tiwari. In Para-44, he had stated that empty

cartridges were not found at the place where dead body of Dhanwantar Tiwari was lying. He had further stated that cartridge had passed through left

hand of his nephew. Then had stated that three empty cartridges were seized. Then had denied the suggestion that all the aforesaid empty cartridges

were recovered from the darwaza of Mahendra Tiwari. He had also stated that he had gone to Sasaram along with dead body. He had further stated

at Para-45 that he had not shown the place where his nephew had sustained injury to the Darogaji on the date of occurrence. On that day, his

statement was not recorded, only his signature was procured over the seizure list. Then had denied the suggestion at Para-45. In Para-47, he denied

the suggestion that Lalan Tiwari was present at his school being Headmaster of the School. In Para-48, he denied the suggestion that on account of

firing made by Jitendra, his nephew as well as Dhanwantar Tiwari had sustained firearm injuries.

PW-2 is not an eye witness to occurrence. He had stated that on 09.07.2003 at about 8.50 a.m., he was at his school. At about 11.00 a.m., one of

his relatives came to school and disclosed that his father has been murdered by Lalan Tiwari, Ram Kishore Tiwari, Pawan Tiwari, Pappu Tiwari.

Then thereafter, at 12.30 p.m., he proceeded with him on motorcycle to his village. After reaching at his village, he had seen dead body was being

carried to mortuary for post mortem. His signature was taken over seizure list and then thereafter, they carried the dead body to Sasaram. After

coming to village, his family members have disclosed that Lalan Tiwari, Ram Kishore Tiwari and Pappu Tiwari have provoked, whereupon Pawan

Tiwari fired from his licensee rifle causing injury over hand of Manish Tiwari. His father, who was returning after engaging labourers for paddy

plantation to his house seeing whom, Lalan Tiwari, again corrected all of them provoked over which, Ram Kishore Tiwari after taking licensee rifle

from Pawan, shot at his father Dhanmantar Tiwari causing injury over his chest as a result of which, died instantaneously, identified the accused.

During cross - examination at Para-5, he had disclosed that Dhanwantar Tiwari had four sons namely Dayashankar Tiwari, Kamta Prasad Tiwari (he

himself), Suresh Tiwari and Ravindra Tiwari. At Para-6, he had stated that accused Ram Kishore Tiwari and Lalan Tiwari happens to be cousin

brother of deceased Dhanwantar Tiwari. He had further stated that he is not knowing whether partition took place amongst them through Court, but

partition had taken place long-long ago. However, he had not seen any paper relating thereto. At Para-7, he had stated that he was informed by his

relative Sanjay Pandey. He came along with Sanjay Pandey over motorcycle. In Para-8, he had stated that Lalan Tiwari happens to be his uncle. He

is also Teacher. At the time of occurrence, he was posted at Upharta School. He had further stated that he was not knowing whether Lalan Tiwari

was residing at Sasaram since before the occurrence. Then had denied the suggestion at Para-10 that Lalan Tiwari was staying at Sasaram at the

time of occurrence. In Para-11, he had stated that main road to and fro from his village happens to be from Southern as well as Eastern side. He had

further stated that embankment lies North to the Eastern road. The embankment goes towards west to the village. There happens to be some bamboo

cluster north to the village. In Para-12, he had stated that the pond of Ramdeep Singh lies North to house of Mahendra Tiwari. Banana, Teak, ecliptus

plant are all around the pond. In Para-20, he had stated that the field of Ashok Narayan Tiwari lies Eastern-Northern corner of this pond at a distance

of 150 yards. This pond lies South to channel. House of Mahendra lies six feet south to the aforesaid channel. In Para-14, he had stated that he had

seen the dead body of his father lying by the side of channel South to the Darwaza of Ashok Narayan Tiwari. In Para-16, he had stated that he had

not seen any sign of hurt over face of his father. He had further stated that he is unable to say on which part of body, his father had sustained injuries.

Then had said that temple lies 25 meter west to the house of Mahendra Tiwari, Lalan Tiwari. Hand-pipe lies 10 meter East to the temple. Then had

stated that the aforesaid hand-pipe lies North to the house of Lalan Tiwari at a distance of 8-10 meter. In Para-17, he had stated that informant

Birendra Tiwari is his brother. They happen to be separate. They have got separate residential house. On the date of occurrence, he had gone to the

house of Birendra Tiwari, no labour was present. 2-3 rooms are of concrete (Pakka) while remaining rooms have thatched roof. Jitendra Tiwari is the

son of Birendra Tiwari. He had not met with Jitendra Tiwari. At Para-19, he had said that he is not remembering whether his signature happens to be

over seizure list. At Para-21, there happens to be contradictions. Then had denied the suggestion at Para-22 that the disputed plot over which ridge

was being constructed happens to be 150-200 yards from the hand-pipe. In Para-23, he had denied the suggestion that the aforesaid land happens to

be at a distance of 500 yards from the hand-pipe and in the background of dispute, Jitendra Tiwari had fired causing injury over his father as well as

Manish. He also denied that due to aforesaid firing made by Jitendra, his father died.

PW-3 had deposed that on the alleged date and time of occurrence, he was getting roof of his house thatched. All of a sudden, he heard loud voice

and then, there was abuse over which, he came out from his house to temple and had seen four persons Lalan Tiwari, Ram Kishore Tiwari, Pawan

Tiwari, Pappu Tiwari @ Pankaj. Pawan Tiwari was armed with rifle, which he fired causing injury over hand of Manish Kumar @ Sonu. Lalan

Tiwari, seeing his father had said that for the last 20 years, he has indulged in litigation, so he be shot at. Ram Kishore Tiwari took rifle from Pawan

and fired at his father Dhanmantar Tiwari causing injury over his chest, left side, as a result of which, he fell down and died. He had further stated

that his father had instituted Case No.06 of 1997 against Lalan Tiwari and others and this happens to be motive for commission of the occurrence.

Binod Tiwari, father of Manish Tiwari carried him to Sasaram Sadar Hospital for treatment. Police came, prepared inquest report in carbon process,

whereupon he along with Birendra Tiwari put his signature. The aforesaid inquest report was prepared by S.I. Radhe Shyam Singh (exhibited),

identified the accused. In Para-6, there happens to be cross-examination relating to sibling of late Dhanwantar Tiwari. He had further stated that he

along with Kamta Prasad Tiwari are joint while remaining two are also joint living separately from them. Then had said that Brij Nandan Tiwari is his

uncle. Then had said that all the four live separately. He resides in Southern portion of the house while Birendra Tiwari at Northern part having

independent ingress and outgress. Ingress and outgress of Birendra Tiwari happens to be Eastern front. His ingress and outgress is also Eastern front.

His house has Pakka roof. He has got no land adjacent north to his house. In Para-7, he had stated that at Southern side, house of Vijay Pandey lies

while at Northern side, part land of Gauri Shankar Tiwari lies to the land over which thateched roof was being put. In the Eastern side house of Ram

Kishore Tiwari lies. Then had said that thatched roof was being constructed west to the house of Ram Kishore Tiwari. He along with Birendra Tiwari

were engaged, no labour was employed. They were preparing the same over their own land. In Para-8, he had stated that he heard sound of

commotion. At that very time, he had not heard sound of firing. It was 8.30 A.M. Then had said that two occurrence took place on that day. The first

one, there was dispute in between Pawan Tiwari and Binod Tiwari relating to ridge. First of all, there was uproar relating to the aforesaid ridge. In

Para-9, he had stated that there happens to be channel in front of house of Mahendra Tiwari lying East to West. ‘Sati Mai‟ land lies adjacent North

to aforesaid channel. This land happens to be 50 feet long from North to South. North to the land of Sati Mai lies land of Gauri Shankar Tiwari. About

25 feet East to that place, Binod Tiwari and Pawan Tiwari quarreled in the month of Aashadh. In Para-10, he had stated that there was water in the

channel outside village. He had not heard uproar relating to Binod‟s incident. In Para-11, he had stated that all the accused persons were not armed

with rifle. Five rounds were fired from the rifle. Firing was not made in front of darwaza of his house. In Para-12, he had stated that he had seen

Manish Kumar @ Sonu sustaining firearm injury. Ram Kishore Tiwari had shot at Manish Kumar. In Para-13, he had stated that at the time of

sustaining of injury by Manish, his father was present 25-30 feet North-East to him. None had fired over him, Birendra Tiwari as well as Ashok

Narayan Tiwari. Then at Para-14, he had shown the location where the dead body lied. At Para-15, he had stated that his father was returning after

making payment to the labourers for planting of paddy seedlings. There happens to be electric pole at Northern-Western corner of Mahendra Tiwari.

His father Dhanwantar Tiwari fell down 25 feet west to the aforesaid electric pole. Then had stated that South to the house of Dhanwantar Tiwari,

there happens to be Sehan of Binod Tiwari, North-channel and then bamboo cluster, East-road, West-road. At Para-17, he had stated that Jitendra

Tiwari is son of Birendra Tiwari. On the date of occurrence, he had seen him. At Para-18, he had stated that Jitnedra Tiwari, Ashok Narayan Tiwari

and Birendra Tiwari reached at the P.O. after 3-4 minute after his arrival. At that very time, they have brought up Manish Kumar. Then had said that

so many villagers arrived at the P.O. after the occurrence. Then had said Lalan Tiwari is his uncle, who happens to be Teacher at Roopharta village,

he used to attend from his village. In Paras-19, 20, 21, 22, 23, 24, 25, 26, there happens to be cross - examination relating to Lalan Tiwari. In Para-27,

he had stated that he remained with the dead body of his father from 8.30 a.m. to whole night. Dafadar Lalita Singh arrived at 10.00 a.m. Police had

arrived at 11.00-12.00 a.m. That means to say, Dafadar arrived prior to arrival of the police. At Para-28, he had stated that he is not remembering

where his statement was recorded. In Para-29, he had stated that he had seen the dead body of his father after removing cloth. In Para -30, he had

stated that he had tiled roof building. At the time of quarrel in between Manish Kumar and Pawan Tiwari, he was at the darwaza of Birendra Tiwari.

First of all, Manish was shot at, who was at his field . Five rounds of firing was done. Three rounds were fired by Pawan Tiwari. Manish had

sustained injury from first round of firing. In Para-31, he had stated that when Manish came back from field, then he saw that he had sustained

firearm injury. Before arrival of Manish, Dhanwantar had already fallen down. He had further stated that he could not know whom Dhanwantar had

paid. He along with Birendra Tiwari have gone near the dead body of Dhanwantar Tiwari. In Para-32, he had stated that accused persons fled

towards Northern-Southern side. Then had said that he had not made statement before the police in presence of Birendra Tiwari. In Para-33, he had

stated that he had made statement on the same day at about 1.00 p.m. At Para-34, 35, 36, 37, there happens to be contradiction. At Para-38, he had

stated that there was scuffle in between Binod Tiwari and Sonu @ Manish relating to construction of ridge. He had further stated that Jitendra Tiwari

is son of Binod Tiwari. Then had stated that he had not seen whether Jitendra Tiwari had fired from the house of Mahendra Tiwari causing injury

over his father resulting his instantaneous death. In Para-39, he had denied that on account of firing made by Jitendra Tiwari, Manish had sustained

injury. Then had denied the suggestion that no such type of occurrence had ever taken place rather hatching a conspiracy, got this case instituted

levelling false and frivolous allegation.

PW-4 had stated that on the alleged date and time of occurrence, while he was taking meal at his house during midst thereof, he came out from

his house after hearing noise coming from outside. As soon as, he came out, he saw Pawan Tiwari, Pappu Tiwari, Ram Kishore Tiwari, Lalan Tiwari

standing near hand-pipe outside their house. Out of whom, Pawan Tiwari was armed with rifle. Ram Kishore Tiwari, Lalan Tiwari and Pappu Tiwari

were saying shoot at-shoot at, whereupon Pawan Tiwari fired from his rifle aiming at Manish Kumar @ Sonu as a result of which, he sustained injury

below the left elbow. During midst thereof, he saw Dhanwantar Tiwari coming from East to West through Gali. As soon as accused persons saw him,

Lalan Tiwari ordered to kill, whereupon Ram Kishore Tiwari took rifle from Pawan Tiwari and shot at, whereupon Dhanwantar Tiwari died. Then

thereafter, accused persons fired indiscriminately, ran away towards Northern-Eastern corner. It has also been disclosed that Dhanwantar Tiwari had

instituted a case against the accused persons wherein his father had deposed against accused persons. In the aforesaid background, instant

occurrence has been committed, identified the accused. During cross-examination at Para-5, he had stated that deceased Dhanwantar Tiwari was his

grandfather. He had further stated that 3-4 minutes before commission of this occurrence, there was quarrel relating to preparation of ridge. Quarrel

took place about 160 feet Eastern-Northern corner of his house. At that very place, Ashok Narayan Tiwari, Binod Tiwari, Manish Kumar @ Sonu,

Pawan Tiwari, Ram Kishore Tiwari, Pappu Tiwari, Lalan Tiwari were present. In Para-6, he had stated that he had not gone there. Manish had

sustained injury at the field itself. He happens to be brother of Manish. At the time of occurrence, he had come out from his house. In Para-7, he had

stated that he had not gone to place of occurrence. He had not gone anywhere to inform regarding the occurrence. At that very time, he was studying

at Sasaram and had come to village. He had further stated that college was not closed on that day. He had further stated that he was not informed to

come to house. At Para-8, he had stated that in order to go to field, one has to cross the channel. At that very time, there was water in the channel.

This channel passes through East to West. He had further stated that there happens to be bamboo cluster, shrubs North-East to the place where

Dhanwantar Tiwari fell down after sustaining injury. Then had denied the suggestion that at Northern as well as Southern side of the channel, there

happens to be continuous bamboo cluster in a direction East to West. In Para-7, he had stated that at the time of ruckus, his father Binod Tiwari was

over his field (first P.O.). At that very time, none of the accused persons were armed. Then had stated that informant is his own uncle. At Para-8, he

had stated that he had not seen nor has got knowledge with regard to putting thatched over the house of Birendra Tiwari. In Para-9, he had stated that

ridge was being prepared at about 8.00-8.30 a.m. He had gone to the vegetable shop before 8.00 a.m., but he is unable to disclose his name. At about

7.45 a.m., he came out from his house and proceeded towards Eastern-Southern direction. Then had stated that there happens to be only one door

connecting his house. In Para-10, he had stated that he covered 250-300 feet East and then, towards Southern direction approximately covering same

distance. During midst thereof, he had not seen Dhanwantar Tiwari. At the time of occurrence, Dhanwantar Tiwari was 75-80 years old. At that very

time, no agriculture work was going on. In Para-11, he had stated that before commission of first occurrence at the place of first occurrence both the

parties were present only. Then had stated that second occurrence took place after two and half minutes from the first occurrence. In Para-12, he

had stated that at the first occurrence, none came on hulla. Even after sustaining injury by Manish Kumar none came. Ravindra Tiwari, Parmanand

Tiwari, Suresh Tiwari came at the time when Dhanwantar Tiwari was shot at. At Para-13, he had stated that Suresh T iwari happens to be son of

Dhanwantar Tiwari and happens to be his uncle.Then had denied the suggestion that he had fired during course of occurrence. He had also disclosed

that he had got no licensee firearm. At Para-16, he had stated that the place where Dhanwantar Tiwari sustained injury lies at a distance of 25 feet

from the house of Mahendra Tiwari. Then had denied the suggestion that on account of firing made by him, caused death of Dhanwantar Tiwari. He

had also denied the suggestion that the firing made by him caused injury to Manish Kumar. In Para-19, he had stated that Manish was standing about

155 feet away from the place where he was standing. Then, he denied the suggestion that after making firing, he escaped. Then at Para-22, he had

stated that when police came at the village, at that very time, neither he nor Manish Kumar was present. He had further stated that he had not made

statement before the police. Then had stated that police had recorded his statement few days after the occurrence in the village. Then, under Paras-

24, 25, 26, 27, 28, 29, 30, there happens to be contradiction as well as alibi of Lalan Tiwari on account of having his presence at the school where he

was posted. Then had denied the suggestion that no such type of occurrence had ever taken place rather he is responsible for whole misdeeds, but

hatching a conspiracy, got this case filed and has deposed falsely.

PW-6 had deposed that the occurrence took place on 09.07.2003 at about 8.00 a.m. At that very time, his father Dhanwantar Tiwari had gone to

village for engaging labourers for plantation of the paddy seedlings. At that very time, he along with his brother Suresh Tiwari was engaged in

preparing hut. They heard voice of Lalan Tiwari “to killâ€, whereupon he came out and gone South to the temple and saw Lalan Tiwari, Ram

Kishore Tiwari, Pawan Tiwari, Pankaj Tiwari, Pappu Tiwari present East to the temple, who were abusing and were saying “Maro-Maroâ€.

Pawan Tiwari, who was armed with licensee rifle fired towards Northern-Eastern side as a result of which, Sonu @ Manish Kumar sustained injury

over his hand. Pawan Tiwari fired 2-3 rounds. At that very moment, his father Dhanwantar Tiwari was coming from East to West. Seeing him, Lalan

Tiwari ordered to kill, whereupon Ram Kishore Tiwari took rifle from Pawan Tiwari and shot at Dhanwantar Tiwari causing injury over below the left

shoulder, fell down and died instantaneously. Then thereafter, the accused persons ran away towards Northern-Western direction. He along with

Suresh Tiwari, Parmanand Tiwari reached near the dead body. At that very moment, Jitendra Tiwari also reached. Just about a minute, Binod Tiwari,

Ashok Narayan Tiwari carrying injured Sonu @ Manish Kumar also reached at the place of occurrence. Then thereafter, Binod Tiwari took Sonu to

hospital. Ashok Narayan Tiwari rushed to inform Dafadar Lalita and Chaukidar Vikrama Singh. Then, it has been narrated that his father, deceased

Dhanwantar Tiwari had instituted case against the accused persons vide Kargahar P. S. Case No.50 of 1996. Accused persons were coercing to

compromise the case. Police came over P.O. where his fard-bayan was recorded (exhibited), prepared inquest report (exhibited), identified the

accused. At Para-13, he had stated that Radhika Nath Tiwari was his grandfather. Grandfather of accused Ram Kishore Tiwari happens to be Laxmi

Tiwari. Radhika Nath Tiwari and Laxmi Tiwari both were full-brothers. He is not knowing whether there happens to be partition through process of

the Court or not. The descendants of Laxmi and Radhika are living separately. In Para-15, he had stated that before institution of Kargahar P. S.

Case No.50 of 1996, Lalan Tiwari had instituted a criminal case against Dhanwantar Tiwari and others wherein they were acquitted. Then had stated

that save and except aforesaid case, Dhanwantar Tiwari had not drawn any other case against the accused persons. At Para-17, he had stated that at

the time of occurrence, female as well as children were inside the house. In Para-18, he had stated that he began his work at about 7.45 a.m.

Labourers were engaged in erecting the hut while he along with Suresh were repairing the roof. Then had said that at the time of construction of hut,

no outside labourers were engaged. In Para-19, 20, there happens to be cross-examination with regard to location, which had already come out from

other witnesses. Then had stated at Para-21 that there happens to be no roof over Northern side of his house and for that, the aforesaid hut was being

constructed. In Para-22, he had stated that his as well as Suresh courtyard are separate. His courtyard happens to be North to the courtyard of

Suresh. The ingress and outgress of both the brothers happen to be from Eastern side, but separately. In Para-24, he had stated that when he came

out from his house, he had seen rifle in the hand of Pawan Tiwari near the temple. When he reached near temple, none of the accused threatened him

nor attempted to assault. For 2-3 minutes, there was uproar. None came during the intervening period. In Para-26, he had stated that Manish Kumar

was not present near the temple. Binod Tiwari was also not present. Dhanwantar Tiwari was not present. In Para-28, he had stated that his father

was living with Suresh Tiwari since 1-1 ½ years. He had further stated that his father had disclosed that he is going to engage the labourers. In

Para-29, he had shown presence of labourers at a distance of 100-200 yards from his house towards Southern side. He had further stated that the

land belonging to Dhanwantar Tiwari was joint with Suresh Tiwari. Then had stated that at that very time, field was not prepared for plantation. In

Paras-32, 33, there happens to be denial at his end with regard to acquisition of licensee firearm. At Para-34, he had stated that Suresh Tiwari

happens to be issueless. In Para-35, he had further stated that they jointly purchased one Kattha land at Sasaram. In Para-36, he had stated that in

2001, they partitioned. Then had denied the suggestion under Para-38, 39 that they tried to grab the land belonging to Dhanwantar Tiwari. In Paras-40,

41, 42, 43, 44, there happens to be cross-examination relating to location, presence of accused with the firearm, house, darwaza of Ashok Narayan

Tiwari, Mahendra Narayan Tiwari, going to engage labourers by Dhanwantar Tiwari, also denied the suggestion that no construction work was going

on. In Para-47, he had stated that at second P.O. Manish Kumar was not present. Binod Tiwari was also not present. Temple has got Southern-

Eastern front. Baithka of Ashok lies 40 feet East to the temple, boundary wall of Mahendra lies 45-50 feet East to the temple. There happens to be

Sehan 40-45 feet in front of Baithka of Ashok Narayan Tiwari. Channel happens to be adjacent North to South. In Para-48, he had stated that

bamboo cluster lies North to the channel. At that very time, there was three feet water adjacent to bamboo cluster. There happens to be land of

‘Sati Mai‟. In Para-49, he had stated that the dead body of Dhanwantar Tiwari had not fallen near the bamboo cluster. At Para-50, he had stated

that hand-pipe near the temple exclusively belonged to Ram Kishore Tiwari. Dhanwantar Tiwari used to out and fro from his house through the

aforesaid road. He had further stated that accused persons have quarreled with Binod Tiwari before insuring of allocation relating to repairing of the

ridge. In Para-51, he had stated that he had not gone to the field. He had only heard uproar raising by the accused persons. Then had stated that he is

unable to say the exact time with regard to uproar raised at an earlier occasion. In Para-52, he had stated that he is unable to disclose the boundary of

the disputed land. In Para-53, he had further stated that he had not gone to see the field on the date of occurrence. In Para -54, he had stated that

there is only one licensee rifle in the family of Ram Kishore Tiwari. When he came at Darwaza, at that very time, he had heard sound of firing of

rifle. Then at Para-55, he had seen five rounds of firing having been made by accused persons, three shots by Pawan Tiwari and two shots by Ram

Kishore Tiwari after taking rifle from Pawan Tiwari. In Para-56, he had stated that Ashok Narayan Tiwari came later on. Then thereafter, he had

gone to inform Dafadar and Chaukidar. Dafadar had informed the police. At Para-57, he had stated that the police came at 12 O‟ clock. In Para-58,

there happens to be contradiction relating to F.I.R. At Para-59, he had stated that Jitendra Tiwari had come to P.O. Then had denied the suggestion

that on account of firing made by Jitendra Tiwari, Manish Kumar had sustained injury. Furthermore, he denied that from the firing made by Jitendra

Tiwari, Dhanwantar Tiwari sustained injury and died. Out of animosity, he has falsely implicated. From Paras-62 to 77, there happens to be cross-

examination relating to Lalan Tiwari (since acquitted).

PW-8 is the Part I.O., who had simply submitted chargesheet. During cross-examination, he had stated that he had not seized licensee rifle

standing in name of Ram Kishore Tiwari nor he had sent the same to the Ballistic Expert for its examination. In Para-12, he had stated that he had not

recorded statement of any of the witnesses.

PW-9 is the Binod Tiwari. He, during his examination-in-chief, had stated that on 09.07.2003 at about 8.00 a.m. he was engaged in repairing ridge

of his field along with his brother Ashok Narayan Tiwari and son Manish Kumar. A that very moment, accused Lalan Tiwari, Ram Kishore Tiwari,

Pappu Tiwari, Pawan Tiwari came and forbade them to repair the ridge, whereupon has said that now the agriculture season is going to commence on

account thereof, ridge is to be repaired. Then thereafter, all of them left the scene saying that now, they will see how you are repairing the ridge.

About 4-5 minutes thereafter, he heard commotion near a hand-pipe belonging to the accused lying east to the Thakurji Temple. He saw Lalan Tiwari,

Ram Kishore Tiwari, Pappu Tiwari, Pawan Tiwari, out of whom Pawan Tiwari was armed with rifle, other three were provoking, whereupon Pawan

Tiwari fired as a result of which, Manish Kumar, his son, sustained injury over his left hand and fell down. He along with his brother lifted towards

their house. During midst thereof, Pawan Tiwari repeated the firing towards them. At that very moment, Dhanwantar Tiwari was coming from

Eastern side. Seeing him, Lalan Tiwari and others said that he has instituted case against them so, he be murdered. Pappu Tiwari also disclosed the

same. Then thereafter, Ram Kishore Tiwari took rifle from Pawan Tiwari and shot at Dhanwantar Tiwari causing injury over his chest. He fell down

and died instantaneously. They rushed there and found Dhanwantar Tiwari dead. Son of Dhanwantar Tiwari, BirendraTiwari, Suresh Tiwari,

Parmanand Tiwari also arrived seeing whom the accused persons making indiscriminate firing fled away towards Northern-Western corner. He took

away Manish Tiwari to Sasaram Sadar Hospital where he was treated. About 3-4 days, his statement was recorded by the police at his village,

identified the accused. Also exhibited protest petition, vakalatnama. During cross-examination at Para-8, he had stated that father of Dhanwantar

Tiwari and Lalan Tiwrai were full-brothers. There was no incident of marpit before the alleged occurrence amongst both the family. Both the parties

were litigating under Section 107 of the Cr.P.C. proceeding in the Year 1992. He was also one of the parties. In Para-9, he had stated that he is not

knowing whether Dhanwantar Tiwari was separate from his sons or was living jointly with them at the time of occurrence. He was on visiting term.

At that very time, wife of Dhanwantar Tiwari was not alive. His sons were providing food. He is not knowing whether Dhanwantar Tiwari had

partitioned. He is unable to say whether Dhanwantar Tiwari was looking after his affairs independently. In Para-11, he had stated that the field of

Dhanwantar Tiwari lies at Sonadih as well as Kutubpur, but he is unable to disclose the actual area. Dhanwantar Tiwari was his uncle. Then at Para-

12, he had stated that he has got no knowledge with regard to the fact that Dhanwantar Tiwari had not given share to his sons relating to the land lying

at village-Kutubpur and for that, they were on strained relationship. In Paras-13 and 14, there happens to be repetition of cross -examination with

regard to mode of ingress and outgress from the village, location of the temple, presence of hand-pipe, pond. In Para-15, he had stated that there was

no dispute since before relating to the land over which ridge was being prepared. No Panchayati ever took place. He is unable to disclose the Khata

Number and Khesra Number, but shown boundary as East-Lalan Tiwari, West-he himself, North-he himself, South-he himself. Then, there happens to

be cross-examination relating to location of ‘Sati Mai‟ under Paras-16, 17. In Para-18, he had stated that water has come in the channel as work of

cultivation was to begin. He is unable to say whether cultivation of adjoining plots began or not. In Para-19, he had stated that he along with Ashok

Narayan Tiwari and Sonu @ Manish Kumar had gone to field. At that very time, Sonu was aged about 12 years. He was a helping hand. Then had

stated that Ashok is not the informant of the case rather Birendra Tiwari, who happens to be his cousin brother. His grandfather as well as

grandfather of Ashok Narayan Tiwari were brothers. He along with Ashok came from their house. He had not met with Birendra Tiwari. He had not

gone to the place of Birendra Tiwari before coming to field. He had not gone to the place of Birendra Tiwari even after the occurrence. House of

Birendra Tiwari lies 30-35 yards away from the hand-pipe. He had not gone near hand-pipe on the alleged date of occurrence. In Para-21, he had

stated that Jintendra Tiwari is his son, who happens to be elder to Manish. He was present in the village, but had not come to field. Then had denied

the suggestion that Jitendra Tiwari had gone to his field and aforesaid event has purposely been concealed by them. In Para-22, he had stated that

Manish had sustained firearm injury at the field. From the place of occurrence to Southern end of channel, blood had fallen. They had carried Manish

by giving support from both sides. He had sustained injury over his left hand. There was blood spot over his cloth also. House of Mahendra Tiwari lies

in between. In Para-23, he denied the suggestion that Jitendra Tiwari was also present on the alleged date and time of occurrence at the field. For the

purpose of preparing of ridge, there was dispute in between Manish and Pawan Tiwari, whereupon Jitendra Tiwari came to his house and after taking

position of boundary wall of Mahendra Tiwari, fired indiscriminately. In Para-24, he had admitted that in two other cases also, he had deposed against

Lalan Tiwari and Rameshwar Tiwari. He had also disclosed that he resides jointly with Ashok Tiwari in the same house. He had further stated that

his Baithka and darwaza have Northern front. The village lane passes through in front of his Baithka. Dead body of Dhanwantar Tiwari was lying.

The lane wherein dead body of Dhanwantar Tiwari was lying proceeding 10-15 yards west divert towards southern side and goes to the house of

Birendra Tiwari. After proceeding towards Western direction, it again diverts towards Southern side where temple lies, temple happens to be west to

the Gali. Hand-pipe is 20-25 feet east to the temple. It has been sunk in the land of Lalan Tiwari. At Para-25, again there happens to be cross-

examination relating to the house of Birendra Tiwari as well as accused persons. In Para-26, he had stated that he had not gone to the temple on the

alleged date of occurrence. He knew Lalan Tiwari. He was in service on the alleged date of occurrence. He happens to be Teacher. Then at Para-

27, he had denied the suggestion that Lalan Tiwari along with his family members resides at Sasaram and used to visit his place of posting there from.

In Para-28, he had admitted that Lalan Tiwari constructed house at Sasaram. In Para-29, he had stated that his son had sustained rifle injury.

Cartridges have passed through, but having no fracture of bone. In Para-30, he had stated that there was 4-5 rounds of firing on the alleged date of

occurrence. He had not informed police station. He immediately rushed to Sasaram along with his son. So, he is unable to say whether Dafadar and

Chaukidar came or not. In Para-31, he had stated that there was no dispute since before with the accused persons relating to preparation of ridge. In

Para-33, he had stated that he reached at the 2nd P.O. after falling of Dhanwantar Tiwari. Family members of Dhanwantar Tiwari, namely Birendra

Tiwari, Suresh Tiwari, Parmanand Tiwari were present since before. Then thereafter, he arrived. Whether villagers came or not, he is unable to say.

He met with Jitendra Tiwari, who was at his house. He had gone to see Dhanwantar Tiwari. At that very time, he was not along with him. After two

hours, he came to Sasaram. In Para-34, he had stated that he returned back to his house from Sasaram after 5-6 days. Statement of his son Manish

Tiwari was recorded at the Sasaram Hospital on the same day at about 11.00 a.m. by the Officer-in-Charge of the Sasaram P.S. His statement was

not recorded at Sasaram. Then had denied the suggestion that on account of firing made by Jitendra Tiwari, Manish Tiwari became injured.

Dhanwantar Tiwari also sustained injury, who succumbed, but on account of animosity, this false case has been instituted leveling false, frivolous

allegation. Then, there happens to be contradiction under Para-37.

PW-10 is the Constable, who had produced Sanha No.180 dated 09.07.2003 relating to Kargahar P. S. Case No.94 of 2003 dated 09.07.2003,

which has been exhibited. He had also produced three empty cartridges seized from the place of occurrence having endorsement as Kargahar P. S.

Case No.94 of 2003 dated 09.07.2003. During cross-examination, he had stated at Para-3 that Sanha was not entered in his presence nor he had got

personal knowledge with regard thereto. In likewise manner, the empty cartridges were not sealed in his presence.

DW-1, DW-2, DW-3 have been examined relating to alibi of accused Lalan Tiwari (since acquitted) and on account thereof, need no further

discussion.

From the evidence available on the record, it is apparent that defence had not controverted the manner of occurrence as well as place of

occurrence. In other words, firearm injuries having sustained by Manish Tiwari at his field has not been challenged and in likewise manner, regarding

sustaining of firearm injury by Dhanwantar Tiwari, who succumbed instantaneously at the place suggested by the prosecution. So, the finding recorded

by the doctor (PW-7) is not under controversy. The only question happens to be with regard to proper identification of author of the injuries. As per

suggestion, the appellants gave an alternative theory that it was Jitendra Tiwari, who being aggrieved on account of an altercation having over field

regarding preparation of ridge, came to his house, took out firearm, taken position against the boundary wall of house of Mahendra Tiwari wherefrom

made indiscriminate firing caused injury to Manish @ Sonu as well as Dhanwanter Tiwari, who died instantaneously. On the other hand, there

happens to be allegation at the end of prosecution that at former part, it was Pawan Tiwari, who fired at Manish and then, seeing Dhanwantar Tiwari,

Ram Kishore Tiwari took rifle from Pawan Tiwari and then, fired at Dhanwantar Tiwari causing his death.

I.O. has not been examined. As stated above, neither the place of occurrence (field/ near hand-pipe) are under dispute nor the injuries having

sustained by Manish, deceased Dhanwanter Tiwari caused by firearm. Then, the only event which, on account of non-examination of I.O. remained

unresolved whether during course of investigation, rifle was seized or not and if so seized, was examined by Ballistic Expert and further, over nature

of development in the evidence of PWs.

It is also manifest from the record that protest petition has been made an exhibit. On the other hand, it is also evident that in spite of having

specific, distinct assertion in the fard -bayan identifying activities of accused Pawan Tiwari as well as Ram Kishore, to be assailant of Manish as well

as Dhanwanter, respectively by means of rifle, on that score, attention of majority of witnesses have been drawn. Whether such kind of deficiency

really exhausted which could not be tested due to non-examination of the main I.O. thereof, it is surprising affair that in spite of clarity at the end of

prosecution through its initial version, even the further statement of informant is found suffering from such kind of deformity. Due to non-examination

of I.O., it could not be brought on record whether, due to collusiveness of I.O., such event cropped up.

From the evidence of PW-5, Manish, it is evident that during course of cross-examination, in spite of having disclosure at his end that his statement

was recorded by the Sasaram Police, had not been examined relating thereto nor his statement, which happens to be part and parcel of C.D., was

ever tried to be an exhibit of the record. Furthermore, the same happens to be inadmissible in the eye of law being hit by Section 162 of Cr.P.C. and

so, was available for contradiction which was never cared of.

Be that as it may, it is needless to say, whatever is deposed by a witness before a Court, happens to be substantial evidence, and its veracity,

reliability, admissibility is to be tested on so many factors, and so far criminal case are concerned, it is to be seen on the evidence whatever been

deposed before the Court, subject to consideration of development which the Court perceives during consideration of the same, whether it happens to

be material one affecting root of the prosecution version. However, probability visualizing there from is also to be seen.

In R. Shaji vs. State of Kerala reported in 2013(2) P.L.J.R. 145 (S.C.), it has been held:-

 “14. Evidence given in a court under oath has great sanctity, which is why the same is called substantive evidence. Statements under Section

161 Cr.P.C. can be used only for the purpose of contradiction and statements under Section 164 Cr.P.C. can be used for both corroboration and

contradiction. In a case where the magistrate has to perform the duty of recording a statement under Section 164 Cr.P.C., he is under an obligation to

elicit all information which the witness wishes to disclose, as a witness who may be an illiterate, rustic villager may not be aware of the purpose for

which he has been brought, and what he must disclose in his statements under Section

164 Cr.P.C. Hence, the magistrate should ask the witness explanatory questions and obtain all possible information in relation to the said case.â€​

In Mukesh and another vs. State for NCT of Delhi and others reported in 2017 (3) P.L.J.R. 248 (S.C.), it has been held:-

 “82. The trial court judgment was fortified by the decisions of this Court in Pudhu Raja and another v. State Represented by Inspector of

Police[(2012) 11 SCC 196], Jaswant Singh v. State of Haryana[(2000)4 SCC 484] and Akhtar and others v. State of Uttaranchal[(2009) 13 SCC 722]

on the law of material omissions and contradictions. Concurringly, the High Court too observed that the defence had failed to demonstrate from the

informant’s testimony such discrepancies, omissions and improvements that would have caused the High Court to reject such testimony after

testing it on the anvil of the law laid down by this Court:

 “325. ...Their throbbing injuries and the rigors of the weather coupled with the state of their minds must have at that point of time brought forth

their instinct of survival and self preservation. The desire to have apprehended their assailants and to mete out just desserts to them could not have

been their priority. ...â€​

In this context, we may fruitfully reproduce a passage Patna High Court CR. APP (SJ) No.39 of 2015 48

 “10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a

ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the

deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of

the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies

on trivial matters not touching the core of the case, hyper- technical approach by taking sentences torn out of context here or there from the evidence,

attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit

rejection of the evidence as a whole. …â€​

In Harijana Thirupala v. Public Prosecutor, High Court of A.P.[(2002) 6 SCC 470], it has been ruled that:

 “11. …. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the

evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise

of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it

by the yardstick of probabilities, its intrinsic value and the animus of witnesses.â€​

In Ugar Ahir v. State of Bihar[AIR 1965 SC 277], a three-Judge Bench held:

 “7. The maxim falsus in uno, falsu in omnibus (false in one thing, false in everything) is neither a sound rule of law nor a rule of practice. Hardly

one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is,

therefore, the duty of the court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. But, it

cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the

rest.â€​

In Krishna Mochi v. State of Bihar[(2002) 6 SCC 81], the Court ruled that:

 “32. …. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic

approach by sitting in an ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an

order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is

bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case

discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt

to jump over the same. These days when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and

responsibilities of the courts have become much more. Now the maxim “let hundred guilty persons be acquitted, but not a single innocent be

convicted†is, in practice, changing the world over and courts have been compelled to accept that “society suffers by wrong convictions and it

equally suffers by wrong acquittalsâ€​. I find that this Court in recent times has conscientiously taken notice of these facts from time to timeâ€​.

In Inder Singh (supra), Krishna Iyer, J. laid down that: “Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get

away with it because truth suffers some infirmity when projected through human processes.â€​

In the case of State of U.P. v. Anil Singh[1988 (Supp.) Patna High Court CR. APP (SJ) No.39 of 2015 51 SCC 686], it was held that a Judge

does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape.

One is as important as the other. Both are public duties which the Judge has to perform.

In Mohan Singh and another v. State of M.P.[(1999) 2 SCC 428], this Court has held:

 “11. The question is how to test the veracity of the prosecution story especially when it is with some variance with the medical evidence. Mere

variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story.

Efforts should be made to find the truth, this is the very object for which courts are created. To search it out, the courts have been removing the chaff

from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long as chaff, cloud and

dust remain, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely

conclude and leave the case the moment suspicions are created. It is the onerous duty of the court, within permissible limit, to find out the truth. It

means on one hand, no innocent man should be punished but on the other hand, to see no person committing an offence should get scot-free. If in spite

of such effort, suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. For this, one has to comprehend

the totality of the facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of

eyewitnesses including the medical evidence, of course, after excluding those parts of the evidence which are vague and uncertain. There is no

mathematical formula through which the truthfulness of a prosecution or a defence case could be concretised. It would depend on the evidence of

each case including the manner of deposition and his demeans (sic), clarity, corroboration of witnesses and overall, the conscience of a judge evoked

by the evidence on record. So courts have to proceed further and make genuine efforts within the judicial sphere to search out the truth and not stop

at the threshold of creation of doubt to confer benefit of doubt.â€​

Furthermore, it is apparent from the L.C. Record that initial version of prosecution is found deflected upon during course of statement having at

the end of respective witnesses, even during course of further statement of the informant, which is found duly streamlined during course of evidence

before the Court and on account thereof, attention of respective witnesses have been drawn over the same. Unfortunately, I.O. has not been

examined and on account thereof, accused could not be able to bring those material on record in accordance with law, side by side prosecution also

failed to suggest the dubious activity of the I.O. whereunder statement of witnesses have not correctly been noted down.

In Krishnegowda and others vs. State of Karnataka by Arkalgud Police reported in 2017(3) P.L.J.R. 145 (S.C.), it has been held:-

 “27. It is settled law that mere latches on the part of Investigating Officer itself cannot be a ground for acquitting the accused. If that is the

basis, then every criminal case will depend upon the will and design of the Investigating Officer. The Courts have to independently deal with the case

and should arrive at a just conclusion beyond reasonable doubt basing on the evidence on record.â€​

In Bihari Nath Goswami vs. Shiv Kumar Singh and others reported by (2004) 9 SCC 186, it has been held:-

 “9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of prosecution version, when the

entire evidence is put in a crucible for being tested on the touchstone of credibility.â€​

From the statement recorded under Section 313 Patna High Court CR. APP (SJ) No.39 of 2015 54 Cr.P.C., it is apparent that the appellants have

clearly denied the occurrence inconsistent of the case what was suggested to the witnesses during course of cross-examination that it was Jitendra,

who fired causing injury to Manish as well as causing death to Dhanwanter Tiwari. Such kind of inconsistent plea has been taken into consideration in

Baleshwar Mahto an another vs. State of Bihar andanother reported in (2017) 3 SCC 152, it has been held:-

 “8. We may mention, in the first instance, that in the statement of the appellants recorded under Section 313 of the Code of Criminal Procedure

(Cr.P.C.), the defence taken was that of the total denial of the occurrence. It was stated that because of the long standing land dispute they were

falsely implicated in this case. On the contrary, according to these appellants, they were attacked by the complainant party for which the accused

party had got P.S. Case No. 117/1982 registered against them and the case in-question was nothing but a counter blast. This defence is not only

against the record but not even argued or pleaded by the counsel for the appellants. On the contrary, the entire focus of the appellants' argument is

that on the basis that due to the land dispute, a sudden quarrel and scuffle took place between the two parties wherein both were injured. This is

clearly contrary to the stand taken by the appellants in their statements given under Section 313 of Cr.P.C. where they completely denied the

occurrence

itself.â€​

PW-5, Manish @ Sonu is the injured. It is apparent from his evidence that his statement was recorded by the Sasaram Police Officials where he

was admitted and to that extent, his attention was not drawn up. On the other hand, his attention has been drawn up towards his statement recorded

by the I.O. of this case, whose conduct has already been taken into consideration. However, so far evidence of an injured witness has to be

considered in Baleshwar Mahto (supra), it has been dealt with in following

manner:-

 “12. Here, PW-7 is also an injured witness. When the eye-witness is also an injured person, due credence to his version needs to be accorded.

On this aspect, we may refer to the following observations in Abdul Sayeed v. State of Madhya Pradesh [JT 2010 (10) SC 259]:

The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been

extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is

generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is

unlikely to spare his actual assailant(s) in order to falsely implicate someone. ""Convincing evidence is required to discredit an injured witness."" [Vide

Ramlagan Singh v. State of Bihar [1973 (3) SCC 881 : 1973 SCC (Cri) 563 : AIR 1972 SC 2593], Malkhan Singh v. State of U.P. [1975 (3) SCC 311 :

1974 SCC (Cri) 919 : AIR 1975 SC 12], Machhi Singh v. State of Punjab [1983 (3) SCC 470 : 1983 SCC (Cri) 681], Appabhai v. State of Gujarat [JT

1988 (1) SC 249], Bonkya v. State of Maharashtra [JT 1995 (7) SC 194], Bhag Singh [JT 1997 (7) SC 654], Mohar v. State of U.P. [JT 2002 (7) SC

293, Dinesh Kumar v. State of Rajasthan [JT 2008 (9) SC 148], Vishnu v. State of Rajasthan [JT 2009 (12) SC 395], Annareddy Sambasiva Reddy v.

State of A.P. [JT 2009 (5) SC 617] and Balraje v. State of Maharashtra [JT 2010 (6) SC 133]

While deciding this issue, a similar view was taken in Jarnail Singh v. State of Punjab [JT 2009 (11) SC 682] , where this Court reiterated the

special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments held as under:

Darshan Singh (PW 4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had

given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappa v. State of

Karnataka [JT 1994 (5) SC 444] this Court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for

rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in

case it is proved that he suffered the injury during the said incident.

In State of U.P. v. Kishan Chand [JT 2004 (6) SC 535] a similar view has been reiterated observing that the testimony of a stamped witness has

its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he

was present during the occurrence. In case the injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his

testimony, it should be relied upon (vide Krishan v. State of Haryana [2006 (12) SCC 459 : 2007 (2) SCC (Cri) 214] ). Thus, we are of the considered

opinion that evidence of Darshan Singh (PW 4) has rightly been relied upon by the courts below.

The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a

consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not

want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the

injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and

discrepancies therein.

From the L. C. record, it is apparent that both the parties are close agnate and are on inimical terms. However, the witnesses are sons of

deceased as well as close one. The Apex Court had occasion to see the evidence of such kind of witness and in Yogesh Singh vs. Mahabeer Singh

and others reported in 2017 CRI.L.J. 291, it has considered the same and explained in following way:-

Testimony of Interested/Inimical Witnesses

 “24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh Vs. State of Punjab, AIR 1953 SC 364 = 1954 SCR 145, is

one of the earliest cases on the point. In that case, it was held as follows:

 “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. It is true, when feelings run high and there is personal cause for enmity, that there is a

tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and

the mere fact of relationship far from being a foundation is often a sure guarantee of truth.â€​

Similarly, in Piara Singh and Ors. Vs. State of Punjab, AIR 1977 SC 2274 = (1977) 4 SCC 452, this Court held:

 “It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground

of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying

on the said evidence.â€​

In Hari Obula Reddy and Ors. Vs. The State of Andhra Pradesh, (1981) 3 SCC 675, a three-judge Bench of this

Court observed:

 “.. it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting

or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless

corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses

should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or

inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon.â€​

Again, in Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, the following observations were made by this Court: “The requirement of law

is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be

thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It

can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical

witnesses with due caution and diligence.â€​

A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related

witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given

case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the

evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai Vs. State of Bihar,

(2001) 7 SCC 318; State of U.P. Vs. Jagdeo Singh, (2003) 1 SCC 456; Bhagalool Lodh & Anr. Vs. State of U.P., (2011) 13 SCC 206; Dahari & Ors.

Vs. State of U. P., (2012) 10 SCC 256; Raju @ Balachandran & Ors. Vs. State of Tamil Nadu, (2012) 12 SCC 701; Gangabhavani Vs. Rayapati

Venkat Reddy & Ors., (2013) 15 SCC 298; Jodhan Vs. State of M.P., (2015) 11 SCC 52).

In Yogesh Case (Supra), the Apex Court had occasion to see lapses at the end of I.O. and explained the same in following way:-

Lapses in Investigation

In C. Muniappan and Others vs. State of Tamil Nadu, (2010) 9 SCC 567, this Court explained the law on this point in the following manner:

 “There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether

due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be

a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the

faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the

investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the

prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to

whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal

trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.â€​

Discrepancy in the evidence has also been taken into consideration and opined as follows in Yogesh Case (Supra):-

Discrepancies in Evidence

It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of

view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be

accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and

ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take

place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the

prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the

truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but

not every contradiction or omission. (See Rammi @ Rameshwar Vs. State of M.P., (1999) 8 SCC 649; Leela Ram (dead) through Duli Chand Vs.

State of Haryana and Another, (1999) 9 SCC 525; Bihari Nath Goswami Vs. Shiv Kumar Singh & Ors., (2004) 9 SCC 186; Vijay @ Chinee Vs.

State of Madhya Pradesh, (2010) 8 SCC 191; Sampath Kumar Vs. Inspector of Police, Krishnagiri, (2012) 4 SCC 124; Shyamal Ghosh Vs. State of

West Bengal, (2012) 7 SCC 646 and Mritunjoy Biswas Vs. Pranab @ Kuti Biswa and Anr., (2013) 12 SCC 796).

 36. In Kameshwar Singh v. State of Bihar and other with Tarkeshwar Singh and others v. State of Bihar reported in AIR 2018 SC 1916, it has been

held:-

 “17. The maxim falsus in uno, falsus in omnibus (false in one thing, false in everything) is not being used in India. Virtually, it is not applicable to

the Indian scenario. Hence, the said maxim is treated as neither a sound rule of law nor a rule of practice in India. Hardly, one comes across a

witness whose evidence does not contain a grain of untruth or at any rate exaggerations, embroideries or embellishments. It is the duty of the Court to

scrutinise the evidence carefully and, in terms of felicitous metaphor, separate the grain from the chaff. But, it cannot obviously disbelieve the

substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest. Efforts should be made to

find the truth. This is the very object for which Courts are created. To search it out, the Court has to disperse the suspicious cloud and dust out the

smear of dust, as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with this protective layer to

receive the benefit of doubt. So, it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is

the onerous duty of the Court, within permissible limits to find out the truth. It means, on one hand that no innocent man should be punished, but on the

other hand to see no person committing an offence should go scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large,

benefit of doubt has to be credited to the accused. The evidence is to be considered from the point of view of trustworthiness and once the same

stands satisfied, it ought to inspire confidence in the mind of the Court to accept the evidence.â€​

How, the criminal proceeding has to be dealt with and what are the principle to be followed during conduction of trial has elaborately been

discussed and conclusively laid down in following manner in Yogesh Case (Supra):-

 “15. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubts. However, the

burden on the prosecution is only to establish its case beyond all reasonable doubt and not all doubts. Here, it is worthwhile to reproduce the

observations made by Venkatachaliah, J., in State of U.P.

Vs. Krishna Gopal and Anr., (1988) 4 SCC 302:

 “25. … Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than

truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of

the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary,

trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case.

The concept of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many

of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and

the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately on the trained intuitions of the

judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of

trivialities would make a mockery of administration of criminal justice.†[See also Krishnan Vs. State, (2003) 7 SCC 56; Valson and Anr. Vs. State

of Kerala, (2008) 12 SCC 24 and Bhaskar Ramappa Madar and Ors. Vs. State of Karnataka, (2009) 11 SCC 690].

Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the

evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused

should be adopted. [Vide Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180;

Chandrappa & Ors. Vs. State of Karnataka, (2007) 4 SCC 415; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain &

Ors. Vs. State of Assam and Anr., (2015) 11 SCC 242].

However, the rule regarding the benefit of doubt does not warrant acquittal of the accused by resorting to surmises, conjectures or fanciful

considerations, as has been held by this Court in the case of State of Punjab Vs. Jagir Singh, (1974) 3 SCC 277:

 “A criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and fantasy. It concerns itself with the question

as to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of

interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court

has to judge, the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have

to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time

reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures.â€​

Similarly, in Shivaji Sahebrao Bobade & Anr. Vs. State of Maharashtra, (1973) 2 SCC 793, V.R. Krishna Iyer, J., stated thus:

 “The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched

morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go

but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice

will then break down and lose credibility with the community.â€​

Now, coming to the finding recorded by the learned lower Court regarding conviction and inflicting sentence for an offence punishable under

Section 304 Part-II of the I.P.C. is concerned, the same has been discussed under Para-30. After going through the same, it is apparent that the

learned lower Court did not appreciate the evidence in consonance with the ingredient of the Section.

From the evidence, it is crystal clear that dispute over preparation of ridge was not with Dhanmanter Tiwari, he was not at all present at the site.

While he was coming from the place otherwise than the plot where an altercation took place, he was shot at. That means to say, he was not the

person involved therewith. He was empty hand. In Surinder Kumar vs. Union Territory Chandigarh reported in (1989) 2 SCC 217, it has been held:-

 “7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act

was done in a heat of pas-sion; and (iv) the assailant had not taken any undue advan- tage or acted in a cruel manner. The cause of the quarrel is not

relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive

factor but what is impor- tant is that the occurrence must have been sudden and unpre- meditated and the offender must have acted in a fit of anger.

Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the

moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided

he has not acted cruelly. In the present case, the deceased and PW 2 had entered the room occupied by Sikander Lal and his family members and had

demanded vacant possession of the kitchen. When they found that the appel- lant was disinclined to handover possession of the kitchen, PW 2

quarrelled and uttered filthy abuses in the presence of the appellant's sister. On the appellant asking him to desist he threatened to lock up the kitchen

by removing the utensils, etc., and that led to a heated argument between the appellant on the one side and PW 2 and his deceased brother on the

other. In the course of this heated argument it is the appellant's case that PW 2 took out a knife from his pant pocket. This part of the appeIIant's case

seems to be probable having regard to the antecedents of PW 2. It is on record that PW 2 was convicted at Narnaul on two occa- sions under Section

411, IPC and his name was registered as a bad character at the local police station. It was presuma- bly because of this reason that he had shifted

from Narnaul to Chandigarh a couple of years back and had started to live in the premises rented by PW 4. When the appellant found that PW 2 had

taken out a pen knife from his pocket he went into the adjoining kitchen and returned with a knife. From the simple injury caused to PW 2 it would

scuffle must have ensued on Nitya Nand intervening to help his brother PW 2 in which two minor injuries were suffered by the deceased on the left

arm before the fatal blow was inflicted on the left flank at the level of the 5th rib about 2"" below the nipple- It may incidentally be mentioned that the

Trial Court came to the conclusion that the injury found on the neck of PW 2 was a selfinflicted wound and had therefore acquitted the appel- lant of

the charge under Section 307, IPC, against which no appeal was carried. We have, however, proceeded to examine this matter on the premise that

PW 2 sustained the injury in the course of the incident. From the above facts, it clearly emerges that after PW 2 and his deceased brother entered the

room of the appellant and uttered filthy abuses in the presence of the latter's sister, tempers ran high and on PW 2 taking out a pen knife the appellant

picked up the knife from the kitchen, ran towards PW 2 and inflicted a simple injury on his neck. It would be reasonable to inter that the deceased

must have intervened on the side of his brother PW 2 and in the course of the scuffle he received injuries, one of which proved fatal. Taking an

overall view of the inci- dent we are inclined to think that the appellant was enti- tled to the benefit of the exception relied upon. The High Court

refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused

to the deceased it could be said that he had acted in a cruel and unusual manner. Under these circumstances, we think it proper to convict the accused

under Section 304, Part I, IPC and direct him to suffer rigorous imprisonment for 7 years,â€​

In Arumugam vs. State reported in (2008) 15 SCC 590, it has been held:-

 “9. The substantive plea relates to the applicability of Exception 4 of Section 300 IPC. For bringing in its operation it has to be established that

the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue

advantage and not having acted in a cruel or unusual manner.

 “18. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having

taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within

Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the `fight' occurring in Exception 4 to Section 300 IPC is not defined

in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties

have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether

with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and

whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient

to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or

acted in cruel or unusual manner. The expression `undue advantage' as used in the provision means `unfair advantage'.

In the aforesaid facts and circumstances, the finding recorded by the learned lower Court convicting the appellant for an offence punishable under

Section 304 Part-II of the I.P.C. is not all found in accordance with law, who ought to have been convicted and sentenced for an offence punishable

under Section 302 of the I.P.C. and Section 27 of the Arms Act for which he along with others were charged. In likewise manner, the lower Court

overlooked the charge under Section 307/ 34 I.P.C. relating to a firearm injury over Manish and that happens to be reason behind absence of finding

thereupon. That being so, office is directed to issue show-cause upon the appellant, why not he be convicted and sentenced for an offence punishable

under Section 302 of the I.P.C., Section 307/ 34 of the I.P.C. and Section 27 of the Arms Act, and place the matter before the Division Bench after

taking permission from Hon‟ble the Chief Justice as the matter attracts sentence for more than 10 years is to be heard and decided by the Division

Bench.