IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (DB) No. 298 of 2020

Arising Out of PS. Case No.-17 Year-2015 Thana- BIHPUR District- Bhagalpur

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Rinku Kunwar @ Rohit Kunwar Son of Shyam Kunwar @ Shyam Chandra

Kunwar, resident of Village- Sonewarsa, P.S.- Bihpur, District- Bhagalpur.

... ... Appellant/s

Versus

The State of Bihar ... ... Respondent/s

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Appearance :

For the Appellant: Mr. Rajendra Narain, Sr. Advocate

Mr. Sanjeev Kumar, Advocate

Mr. Ritesh Kumar Narain Singh, Advocate

Ms. Anju Narain, Advocate

Mr. Ananth Kumar Sinha, Advocate

Ms. Annapurna Sinha, Advocate

Mr. Kanya Kumar, Advocate

For the State : Mr. Sujit Kumar Singh, APP

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CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH

and

HONOURABLE MR. JUSTICE ARUN KUMAR JHA

CAV JUDGMENT

(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)

Date :20-08-2026

The present appeal under Section 374 (2) of the Code of

Criminal Procedure, 1973 (hereinafter referred to as the

“Cr.P.C.”) has been preferred by the sole appellant against the

judgment of conviction and the order of sentence dated

28.01.2020, passed by the learned Court of Additional District

& Sessions Judge-III, Naugachia, in Sessions Trial No. 297 of

2015 (arising out of Bihpur P.S. Case No. 17 of 2015) whereby

and whereunder, the appellant has been convicted under Section

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302 of the Indian Penal Code (hereinafter referred to as the

“IPC”) and he has been sentenced to undergo life imprisonment

for the rest of his life with a fine of Rs.50,000/- and in default of

payment of fine, the appellant has been further sentenced to

undergo rigorous imprisonment for six months.

2.The short facts of the case are that on 23.01.2015 at 14:30

p.m., the fardbeyan of the informant, namely Shrawan Kumar

(PW-6) was recorded by the Sub-Inspector of Jhandapur O.P.,

namely Jawahar Lal Singh (PW-15) at Naugachia Hospital. The

informant has stated in his fardbeyan that on 23.01.2015, after

finishing work at Naugachia Court, in connection with Bihpur

P.S. Case No. 753/98, four persons including the informant,

riding on two motorcycles were returning back to their home

and the motorcycle bearing Registration No.BR34B-2311 was in

the front on which his uncle Kaushal Kumar Kunwar (herein

after referred to as “Kaushal Kumar”) along with one Bambam

Chaudhary were travelling, while from behind he along with

one other person was coming on another motorcycle. As soon as

they reached 1 km. to the west of village Bagri, near Tata Brick

Kiln on N.H.-31 at about 12:45 p.m., one white colored Bolero

vehicle bearing Registration No. JH10AD-4001, on which the

accused persons were sitting, hit the motorcycle of the uncle of

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the informant, namely Kaushal Kumar from the back,

whereafter from the said Bolero vehicle 5-6 persons got down,

who were armed with weapons and then one Lali Kunwar shot

the uncle of the informant near the right ear from the weapon he

was carrying due to which he started squirming. Thereafter,

Rinku Kunwar (Appellant) and Rupesh Kunwar fired gunshot

on the head of Bambam Chaudhary @ Amit Chaudhary with

their weapon, whereafter Rahul Kunwar fired gunshot on the

body of Bambam Chaudhary with weapon being carried in his

right hand and then Vidyapati Chaudhary had fired gunshot on

his uncle. The accused persons had then turned towards the

informant and started firing on him, whereafter he started

fleeing on his motorcycle on account of fear, whereupon the

accused tried to chase the informant by the said Bolero vehicle

but while turning the said Bolero vehicle, it fell into a ditch

situated towards the south side of the road. The accused persons

then got out of the vehicle and while firing fled away through

the Banana field situated towards the south. After sometime, the

police came and took both the injured persons for treatment to Sub-

divisional Hospital, Naugachia, where his uncle Kaushal Kumar

was found dead while the other injured Bambam Chaudhary was

referred to Bhagalpur Hospital for better treatment.

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3.The aforesaid fardbeyan was read by and read over to the

informant, which he had heard and understood and upon finding

the same to be correctly written, he had put his signature upon

the same in presence of a witness, namely Rajesh Chaudhary

(PW-4), who was riding with him on a motorcycle. On the basis

of the aforesaid fardbeyan of the informant, Bihpur P.S. Case

No. 17 of 2015 was registered on 23.01.2015 at 07:30 p.m.

under Sections 326, 307, 427, 302/34 of the IPC, and Section 27

of the Arms Act, 1959 against the appellant, Lali Kumar,

Rupesh Kumar, Rahul Kumar, Vidyapati Chaudhary and one

unknown person. After investigation and finding the case to be

true qua the appellant and one Rahul Kumar, charge-sheet was

submitted by the police on 29.04.2015 under Sections

307/302/341/427/ 120B of the IPC and Section 27 of the Arms

Act, 1959. The learned Trial Court, upon consideration of the

materials on record and the charge-sheet filed by the police had

then taken cognizance vide order dt. 26.05.2015 qua the

appellant and one Rahul Kumar under Sections

307/302/341/427/120B of the IPC and Section 27 of the Arms

Act, 1959. Thereafter, the case was committed to the Court of

Sessions, vide order dated 26.05.2015 and was numbered as

Sessions Trial No. 297 of 2015.

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4.The learned Trial Court had then framed charges under

Section 326, 307, 302, 427, 341, 120B of the IPC and Section

27(1) of the Arms Act on 20.02.2017 against the appellant to

which he pleaded not guilty and claimed to be tried. It may be

pertinent to mention here that the charge framed under Section

302 of IPC was with respect to committing murder of Kaushal

Kumar, but after transfer of the case to the Ld. Trial Court for

trial, the prosecution had filed a petition for alteration of charge

as the other victim, namely Bambam Chaudhary had also died

during the interregnum period, leading to the Ld. Trial Court

passing an order dt. 25.07.2019 to alter the charges, whereafter

the charge was altered on 30.07.2019 and then the appellant had

stood charged under Sections 326, 307, 302, 427, 341, 120B of

the IPC and Section 27(1) of the Arms Act for committing

murder of both Kaushal Kumar and Bambam Chaudhary. The

said altered charges were again read over and explained to the

appellant to which he pleaded not guilty and claimed to be tried.

5.During the course of trial, 15 witnesses were examined on

behalf of the prosecution. While, PW-1 Chandan Kumar, PW-4

Rajesh Chaudhary and PW-6 Shrawan Kunwar @ Shrawan Kumar

(informant) are said to be eye witnesses to the said occurrence, PW-

10 Kishore Chaudhary is witness to the inquest report of Bambam

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Chaudhary and PW-11 Ranjeet Kumar is witness to the inquest

report of Kaushal Kumar, apart from being a witness to the seizure

list. PW-12 Bablu Kumar, PW-13 Dinesh Yadav and PW-14

Subodh Kumar Yadav are witnesses to the seizure list. PW-15

Jawahar Lal Singh had recorded the fardbeyan of the informant,

while PW-7 Dr. B.P. Singh and PW-8 Dr. Arun Kumar Sinha are the

doctors, who had conducted postmortem examination of the

deceased Bambam Chaudhary and Kaushal Kumar respectively.

PW-3 Nikky Devi is the wife of the deceased-Kaushal Kumar, PW-

5 Laxmi Devi is the aunt of the Informant and PW-2 Murari Kumar

is the brother of Bambam Chaudhary, all of whom are stated to be

hearsay witnesses. PW-9 Kaushal Kumar is the Investigating

Officer of the present case.

6.The prosecution, by way of documentary evidence, had

proved the following documents, which were marked as exhibits

during the course of the trial:-

LIST OF EXHIBITS DESCRIPTION

Exhibit No. 01 Signature of informant.

Exhibit No. 02 P.M Report of Amit Kumar Chaudhary

@ Bambam Chaudhary

Exhibit No. 02/1P.M Report of Kaushal Kumar Kunwar.

Exhibit No. X to X3Carbon copies of three Seizure List.

Exhibit No. Y to Y/1Carbon Copies of the Inquest Report.

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Exhibit No. Y/2 Inquest report of Bambam Chaudhary

and other witnesses.

Exhibit No. X to X/3Seizure List and signatures of witnesses

on Seizure List.

Exhibit No. X/4 to X/5Signature of witnesses on Seizure List.

Exhibit No. X/5 to X/7Signature of witnesses on Seizure List.

Exhibit No. Y/6 to Y/8Signature of witnesses on Inquest

Report.

7.The learned Senior Counsel for the appellant, Mr.

Rajendra Narain has submitted that the fardbeyan recorded by

PW-15 Jawahar Lal Singh is manipulated and the same contains

false and fabricated story. It is submitted that the minute details

which have been mentioned in the fardbeyan/FIR are belied

from the depositions of PW-1 Chandan Kumar, PW-4 Rajesh

Choudhary and PW-6 Sharwan Kumar. As far as PW-1 Chandan

Kumar is concerned, he is not an eye witness but a hearsay

witness as has also been substantiated by the evidence of PW-9

Kaushal Kumar. As regards PW-2 Murari Kumar, PW-3 Nikky

Devi and PW-5 Laxmi Devi, it is submitted that they are hearsay

witnesses, hence their evidence cannot be relied upon. PW-7 Dr.

B. P. Singh and PW-8 Dr. Arun Kumar Sinha are the doctors and

they had conducted the postmortem examination of Amit Kumar

Choudhary @ Bambam Choudhary and Kaushal Kumar

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Kunwar, respectively whereas PW-10, PW-11, PW-12, PW-13

and PW-14, namely Kishore Chaudhary, Ranjeet Kumar, Bablu

Kumar, Dinesh Yadav and Subodh Kumar Yadav are witnesses

to the inquest reports and seizure lists. PW-9 Kaushal Kumar

and PW-15 Jawahar Lal Singh are the Investigating Officers of

the connected criminal case. Thus, it is submitted that one is left

only with the testimony of PW-4 and PW-6.

8.The learned Senior Counsel for the appellant has

submitted that as far as PW-4 Rajesh Choudhary is concerned,

he has made contradictory statements and has stated that Rinku

had shot Kaushal. In fact, in his cross-examination, PW-4

Rajesh Choudhary has stated that Rinku had shot on the head of

Kaushal, which is contrary to the version of the informant as

recorded in his fardbeyan. As far as PW-6 Sharwan Kumar is

concerned, it has been submitted that he has stated in his

examination-in-chief that Rinku Kunwar had shot Kaushal

Kunwar whereas Rahul had shot Bambam, which is also

contradictory to the version as has been recorded in the

fardbeyan. The Ld. Senior Counsel for the appellant has further

submitted that the investigation is perfunctory and farce and the

same does not lead to any conclusion. In fact, the Investigating

Officer has admitted while deposing as PW-9 that he had not

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recorded the statement of any independent witness rather the

statement of only family members of the deceased had been

recorded. Lastly, it is submitted that the statement of the

appellant recorded under Section 313 of the Cr.P.C. would bear

it out that the circumstances which were not put to the appellant

in his examination under Section 313 of the Cr.P.C., which have

transpired during the course of evidence, have to be completely

excluded from consideration. In this regard, the learned Senior

Counsel for the appellant has relied upon a judgment rendered

by the Hon’ble Apex Court in the case of Sharad Birdhichand

Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116.

9.The learned APP for the State, Mr. Sujit Kumar Singh has

submitted that all the witnesses examined by the prosecution are

consistent and there is no contradiction in their evidence. PW-1

Chandan Kumar, PW-4 Rajesh Choudhary and PW-6 Sharwan

Kumar are eye witnesses to the alleged occurrence and they

have categorically stated that the appellant had fired gunshot on

the head of Bambam Chaudhary, however the defence has not

been able to elicit any contradictions while cross-examining the

said witnesses. It is further submitted that there is no infirmity in

the impugned judgment of conviction and the order of sentence

passed by the learned Trial Judge, hence this Court is not

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required to interfere with the same.

10.Besides hearing the learned counsel for the parties, we

have minutely perused both the evidence, i.e. oral and

documentary. Before proceeding further, it is necessary to

cursorily discuss the evidence brought on record.

11.PW-1 Chandan Kumar has stated in his deposition that

the occurrence took place on 23.01.2011 at 12:20 hours when he

was going to his home on a motorcycle. PW-1 has further stated

that when he reached near Baghri Bridge, his motorcycle was

hit by Bolero vehicle, whereafter people had alighted from the

Bolero vehicle and fired gunshots on Kaushal Kumar and

Bambam Kumar. The police had taken Bambam for treatment to

Siliguri but he died on the way. In paragraph no. 4 of his cross –

examination, PW-1 has stated that he had given his statement

before the Police regarding the occurrence. PW-1 has also stated

that on 23.01.2015 at 04:00 pm in the evening, he had given his

statement before the Police, which was recorded at his home

and he had given statement even at the place of occurrence. In

paragraph no. 5 of his cross-examination, PW-1 has stated that

he cannot tell about the registration number of motorcycle, since

he is uneducated. In paragraph No. 6 of his cross-examination,

PW-1 has stated that he has given statement twice before this

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occurrence, once he had deposed against Tinku and Rahul and

on the other occasion, he had testified in favour of Rupesh in

Rupesh’s case, resulting in release of Rupesh. In para no. 7 of

his cross-examination, PW-1 has stated that he was present at

the place of occurrence till 2 O’ clock, where the police was also

present and there three persons known to him, namely Chandan

Kunwar , Shravan Kunwar (PW-6) and Rajesh Chaudhary (PW-

4) were present. Amongst those who came later were Kaushal’s

wife, Kaushal’s sister-in-law Lakshmi Devi, however no body

known to him came, thereafter. Kaushal’s wife and sister-in-law

came at one o’ clock. From there Kaushal’s wife, sister-in-law

and PW-1 went home together at 2 O’ clock and at that time

there were four-five persons known to him, i.e. Murari

Chaudhary (PW-2), Lakshmi Devi (PW-5), Rajesh Chaudhary

(PW-4), Shrawan Kunwar (PW-6), and Chandan Kunwar but

apart from them no one known to him was present there.

12.In paragraph no.8 of his cross-examination, PW-1 has

stated that in Sessions Case No. 80/17, he has deposed that the

occurrence took place on 23.01.2015 at one o’ clock when he

was around Bagripur. In paragraph no. 9 of his cross-

examination, PW-1 has stated that Rinku and Rahul were on

four-wheeler. In paragraph no. 10 of his cross-examination, PW-

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1 has stated that it is not a fact that he has not said in Sessions

Case No. 80/17 that motorcycle got hit by Bolero. In paragraph

no. 11 of his cross-examination, PW-1 has stated that it is not a

fact that he was going from Naugachia to Bagripur on a

motorcycle with a person in Sessions Case No. 80/17. In

paragraph no. 12 to 14 of his cross-examination, PW-1 has

stated that it is not a fact that he did not give his statement to the

police at 2 o’ clock on the day of the occurrence i.e., 23.01.2015

and he doesn’t know the meaning of FIR. PW-1 has further

stated that it is not a fact that he told the police that he has

hearsay information about the occurrence. In paragraph no.15 of

his cross-examination, PW-1 has stated that four persons namely

Kaushal Kumar (Deceased), Bambam Chaudhary (Deceased),

Sarwan Kunwar (PW-6) and Rajesh Chaudhary (PW-4) as also

Chandan Kunwar (PW-1) had come to Naugachia court for date

on two motorcycles. Two persons were sitting on one and three

persons were sitting on the other motorcycle. They had come at

the court at 10 o'clock in the morning. He doesn’t remember in

which court the date was fixed. He doesn’t even remember in

which case he had come for date. In the case in which they had

come for date, the accused were Kaushal Kumar, Bambam

Kunwar, Rajesh Chaudhary and Sharwan Kunwar. PW-1 has

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stated that there is no case against him. The number of both

motorcycles is not known to him.

13.In paragraph no. 17 of his cross-examination, PW-1 has

stated that it is not a fact that he had given statement to the

police on the basis of hearsay information that all these five

persons, namely Lali Kunwar, Rinku Kunwar, Rupesh Kunwar,

Rahul Kunwar and Vidyapati Chaudhary had shot both the

deceased separately but only two persons had shot. In paragraph

no.18 of his cross-examination, PW-1 has stated that they had

left Naugachia court at 12 o'clock. In paragraph no. 20 of his

cross-examination, PW-1 has stated that he was towards the east

of place of occurrence. In para no. 21 of his cross-examination,

PW-1 has stated that Bolero was coming from the west and he

was going towards west and the Bolero vehicle had hit the

motorcycle from the front. PW-1 has also stated that on his

motorcycle, he along with Rajesh Choudhary (PW-4) and

Sharwan Kunwar (PW-6) were riding while Bambam

Choudhary and Kaushal Kumar were riding on the motorcycle

behind him. PW-1 had rang and called the police and when the

police came, he had filed the case. In para no. 22 of his cross-

examination, PW-1 has stated that after filing the case, he came

to Naugachia for postmortem of Kaushal Kumar. He did not

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meet anyone from the family at the place of the occurrence.

There was no one from the family at the place of the occurrence.

PW-1 has next stated that he understands the meaning of home

and he, Sharwan Kunwar (PW-6) and Rajesh Chaudhary are

family. In para no. 23 of his cross-examination, PW-1 has stated

that it is not that he was not present at the place and time of the

occurrence and that he did not witness the occurrence. PW-1 has

denied the suggestion that since Sharwan Kunwar and Rajesh

Chaudhary are his family members, he has deposed falsely. In

para no. 26 of his cross-examination, PW-1 has denied the

suggestion that there is enmity in-between Rinku Kunwar and

his family, hence he has falsely deposed against the accused.

14.PW-2 Murari Kumar has stated in his evidence that he knows

about the occurrence, which occurred between 12:00 and 1:00 pm

on 23.01.2015, however he did not see anything. When he got a call

from Bagripur, he came to Bagripur from his home in Sonvarsha

and there he came to know that his brother has been shot dead. The

people present there told him that Rinku Kunwar and Rahul

Kunwar had shot. He did not see anything there. PW-2 has further

stated that they came to Naugachia Sadar Hospital from Bagripur.

His brother Amit Kumar @ Bambam Chaudhary was soaked in

blood on account of being shot. Kaushal Kumar was also with his

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brother, who was also shot (with objection). Kaushal Kumar had

died and they had taken Bambam Chaudhary to Bhagalpur, from

where he was referred to Siliguri, however his brother died at

Siliguri. PW-2 has next stated that Rinku Kunwar is present in court

today. PW-2 was discharged, since the Ld. defence counsel refused

to cross-examine him.

15. PW-3 Nikky Devi has stated in her evidence that the

occurrence took place four and a half years ago on 23.01.2015

between 12:30 to 12:45 hours. She was at home at that time.

Sharwan Kunwar (PW-6) called her and told her that Kaushal

Kumar has been murdered and upon hearing this, she went there

and saw that Kaushal Kumar had been murdered and Bambam’s

breath was running. It is not known whether Bambam

Chaudhary was referred from Naugachia to Bhagalpur or

somewhere else. PW-3 Nikky Devi has also stated that she was

returning home after a court date, when she came to know about

the occurrence. The occurrence happened near Bagripur. She

came to know something more over the phone (with objection),

to the effect that Rahul and Rinku had committed the murder.

Rinku Kunwar is present in the court today. She has stated that

she can recognize even those who have not come, upon seeing

them. PW-3 had gone to Bagripur at 1:30 hours and had seen

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Chandan (PW-1), Rajesh (PW-4) and Sharwan (PW-6) there but

apart from them, there was dead body of Kaushal Kumar and

the police was also present there. PW-3 has stated that she

fainted after seeing her husband’s dead body at 1:30 hours. PW-

3 says that she cannot say as to when she became conscious but

she regained consciousness at home. PW-3 has further stated

that the number on which the call was received is 9934805040,

but she can't tell from which number the call came. Rupesh is

from my village. She also knows Vidyanand Chaudhary and

Lali Singh. All of them are from her village. The call came

between 12:30 and 1 o'clock. Rinku is from her village so she

recognizes him. PW-3 has stated that there were 6 persons on

the four-wheeler but did not take their names. PW-3 has also

stated that she did not see the incident happening with her own

eyes. PW-3 has stated that she does not know whether a case is

already going on against her elder brother-in-law Sudhir

Kunwar. PW-3 has stated that there was no quarrel with her

husband and there was no problem with her either. Lastly, PW-3

has stated that it is not that she is giving false testimony.

16. PW-4 Rajesh Chaudhary has stated in his evidence that

occurrence took place on 23.01.2015 at around 12:00 to 1:00

p.m. He was at the place of occurrence at that time and they

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were on two motorcycles but Bambam and Kaushal were going

ahead, while he and Sharwan were behind. A Bolero vehicle

whose number was 4001 had come from behind and hit the

motorcycle which was ahead, which fell on ground, whereafter

five to six people came out of the Bolero vehicle. Bambam got

shot by Rinku and Kaushal got shot by Rahul. They also fired

towards us and while turning the car, their car fell in the ditch,

whereupon they started firing on us and then they went away

firing, towards the south. PW-4 has also stated that thereafter,

they went to the place of occurrence and saw that Kaushal

Kumar was dead and Bambam Chaudhary was conscious. The

Police had then come and had taken Bambam and Kaushal to

Naugachia Sub-Divisional Hospital where Kaushal was declared

dead and Bambam was referred to Bhagalpur. In paragraph no. 4

and 5 of his cross-examination, PW-4 has stated that Rinku is

from his village so he recognises him and Rinku's house is half a

kilometre from his house. In paragraph no. 6 of his cross-

examination, PW-4 has stated that he has also deposed in

Sessions Trial No. 80/17 relating to the said occurrence, in

connection with which he has presently deposed. It is true that

in Sessions Trial No. 80/17 he had deposed that while the

accused were trying to turn the vehicle, it fell in the ditch and

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they ran away after entering into the banana field.

17.In para no. 7 of his cross-examination, PW-4 has stated

that he was at the place of occurrence from 12.30 to 12.45, two

o’ clock, whereafter the police had come. He stayed at the sub-

divisional hospital till 3 o’ clock in the day and then he went

home. PW-4 has stated that his statement was recorded by the

police with regard to the occurrence. The statement of PW-4

was recorded at the subdivision on 23.01.2015 between 2:00 to

2.30 pm, whereafter his statement has not been recorded by the

police. In paragraph no. 8 of his cross-examination, PW-4 has

stated that he was already present at the place of occurrence

when the firing took place. He had reached the place of incident

at 12:30 hours and while he was there, the police had come in-

between 1:00 to 1:30 hours. He has stated that when he had

arrived there, firing had commenced and he was 50 to 100 yards

away from place of occurrence, towards the east and those who

had died were towards his western side. In para no. 9 of his

cross-examination, PW-4 has stated that Rinku shot first,

however he cannot say as to who shot after Rinku. Before

Rinku, Rahul had shot Gautam and after Rinku, everyone

opened fire but PW-4 could not see everyone. Rinku had shot on

the head and Rahul had shot Kaushal on his temple (kanpatti)

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but PW-4 does not recognize as to who else had fired. PW-4 has

also stated that Rinku had shot on the head but he did not see as

to from where he had shot. Rahul had shot on the right side of

temple and he had shot after the deceased had fallen down.

Rinku had also shot on the head in a lying down state.

18.In para no. 10 of his cross-examination, PW-4 has stated that

the Bolero vehicle had hit the motorcycle from the southern side.

Both men fell from the motorcycle towards the south. Bolero had

turned towards the south. PW-4 had seen both the face and back of

those who had come out from the Bolero. He saw face and back of

six persons. Everyone alighted from Bolero from the southern side.

Firstly, Rinku had got down but PW-4 says that he can't say as to

who had got down last. PW-4 then says that first Rinku got down,

then Rahul got down and then the rest got down. After the Bolero

had hit the motorcycle, the motorcycle was at a distance of five-

seven feet ahead of Bolero, which was on road. Motorcycle fell in

the mud on the southern side. Both the men had fallen in the mud

beyond the road. In paragraph no. 11 of his cross-examination, PW-

4 has stated that the case pertaining to this occurrence was

registered before him at 2:30 hours and his statement was recorded

immediately after the case was registered. He had heard Sharwan's

statement. In paragraph no. 12 of his cross-examination, PW-4 has

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stated that he was riding the motorcycle of his villager namely

Suman Chaudhary and he had borrowed the motorcycle in the

morning of the said occurrence at about 8:00. In para no. 13 of his

cross-examination, PW-4 has stated that it is not a fact that he had

told the police that 6 men, armed with weapons had hit the

motorcycle by a Bolero vehicle, on which two deceased persons

were riding and that Sharwan Kunwar had moved ahead for some

distance and that he saw that Lali Kunwar was holding weapon in

his hand and with the same he had shot on the right ear of Kaushal

Kumar. He fell there and started writhing. PW-4 has stated that Lali

Kunwar is from his village.

19.In paragraph no. 14 of his cross-examination, PW-4 has

stated that in the case filed by Sharwan, the names of all the 5

accused have been mentioned, i.e Lali, Rinku, Rahul, Vidyanand

and Rupesh. PW-4 has stated that he had heard Sharwan's

statement but he does not recognize the 5 men named by

Sharwan. The Mukhiya of his village is Lali Kunwar and he

used to live in the village. In para no.15 of his cross-

examination, PW-4 has stated that he had seen the occurrence

from the pucca road. The accused were firing from the northern

direction. All the accused were firing gun shots one by one and

had not surrounded the victims. He has again said that each of

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them were firing gunshots together. In paragraph no. 16 of his

cross-examination, PW-4 has stated that no case was pending

against him on the day of occurrence and it is true that he had

given statement in Sessions Trial no. 80/17 to the effect that

after attending the court, he was going to his home at Sonvarsa.

In para No. 17 of his cross-examination, PW-4 has stated that

only 2-4 persons had arrived at the place of occurrence till he

was present there and in-between 1:00 to 1:30 p.m. only two,

four–five persons arrived there. Gautam, Chandan and

deceased’s wife along with Bino Kunwar and Amresh Kunwar

had arrived there. PW-4 has stated that he did not stay there for

more than 10-15 minutes when these people had arrived. In

paragraph No. 18 to 20 of his cross-examination, PW-4 has

stated that in Sessions Trial No. 80/17 he has deposed that

accused persons came out of Bolero and Rinku shot at Bambam

and Rahul shot at Kaushal. He has further stated that

Abhinandan Chaudhary was Mukhiya as well as ‘Pramukh’ and

Vidyanand Chaudhary is his son. In para no. 21 of his cross-

examination, PW-4 has stated that no documents regarding this

case was prepared in his presence till the time he was present at

the place of occurrence. PW-4 has stated that on the day of the

occurrence he was not having a mobile phone but Bambam,

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Kaushal and Sharwan were having mobile phones and they had

not taken out the mobile phone of Bambam and Kaushal. PW-4

has also stated that there was no enmity between Kaushal,

Bambam and the accused from before this occurrence. There

was no enmity with the family of Kaushal and Bambam but

again PW-4 has said on his own that there was enmity with the

family of Kaushal. The wife of Sudhir was Sarpanch and since

then there was a dispute. The dispute was prevailing since a year

or 1½ year before this occurrence.

20.In paragraph no. 23 of his cross-examination, PW-4 has

stated that apart from Rahul and Rinku, he does not know who

else had fired gunshots. PW-4 has stated that when Kaushal

Kunwar’s body was touched, it was neither cold nor hot.

Bambam was quivering. Kaushal’s body and hands had become

still so it was understood that he had died. In paragraph no. 24

of his cross-examination, PW-4 has stated that when they had

fired at them, they had ran 100 to 150 feet towards the east of

the road. The vehicles were passing by at the time of escape.

After running for ten minutes, they had reached the plot. In

paragraph no. 25 of his cross-examination, PW-4 has stated that

the registration number of the motorcycle is BR-10D 8470. In

paragraph no. 26 of his cross-examination, PW-4 has stated that

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Bambam Choudhary was quivering after being shot and his face

was towards the west. In paragraph no. 27 of his cross-

examination, PW-4 has stated that it is true that in Sessions Trial

No. 80/17 it has been stated that the incident is of 23.01.2015 at

12:45 hours, when he was going to his home at Sonbarsa, after

attending the court date and when he had reached near Bagri

Chowk, he saw a white coloured Bolero vehicle coming from

behind whose registration number was that of Jharkhand. Then

the motorcycle going ahead, being ridden by Kaushal Kumar

and Bambam Choudhary was hit. All five, six accused came out

of Bolero, whereafter Rinku Kunwar shot Bambam Choudhary

and Rahul shot Kaushal Kumar. They also fired at us. In para

no. 28 and 29 of his cross-examination, PW-4 has stated that

Chimney Kiln was towards the south from where he was

watching the occurrence. PW-4 has also stated that blood was

spread all over where the bullet had hit. NH is at a distance of

five to seven feet from there. In paragraph no. 30 and 31 of his

cross-examination, PW-4 has stated that he came to home

around six to seven o'clock on the day of the occurrence and

cannot tell the time when the postmortem took place, although

he went for the postmortem. The postmortem was completed in-

between five to six o’clock. After postmortem, there was a shirt

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on the body of the deceased and nothing else and took them to

Naugachia on a vehicle. PW-4 has stated that he doesn't know as

to by which vehicle both the injured were brought to Naugachia

but again he has stated that both the injured were brought in a

pickup vehicle. PW-4 has further stated that he came to

Naugachia in a police vehicle on the day of the occurrence. It

was the police who brought the bodies of Kaushal Kumar and

Bambam Choudhary to Naugachia.

21.In paragraph no. 32 of his cross-examination, PW-4 has

stated that he cannot not say as to whether Sharwan was sitting

on the police car or the pickup vehicle and he had met Sharwan

again in the sub-division. In para no. 33 of his cross-

examination, PW-4 has stated that he was in court from 10 to

11:30 hours and in his presence, the police had not seized any

articles from the place of occurrence. In paragraph no. 34 of his

cross-examination, PW-4 has stated that he did not show the

police the motorcycle on which they had gone. In paragraph no.

35 of his cross-examination, PW-4 has stated that the bullet was

shot at point blank range. PW-4 has stated that by the time both

the injured Bambam Choudhary and Kaushal Kumar were

brought to the hospital, they were bleeding. He can't say

whether there was blood on the pickup van or not and whether

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there was blood on the road or not. PW-4 has also stated that

there is no population one kilometre ahead and two kilometres

behind of the place from where he was watching the incident

and even there is no paan shop there. In para no. 36 of his cross-

examination, PW-4 has stated that it is not a fact that when he

was going after attending the court date, he saw that Rinku

Kunwar had shot Bambam Choudhary. In paragraph no. 37 of

his cross-examination, PW-4 has stated that it is not a fact that

he was following Bambam Choudhary and Kaushal Kumar on

motorcycle. In para no. 41 of his cross-examination, PW-4 has

stated that it is not a fact that he has given false testimony

against Rinku Kunwar and that he does not know anything

about the said occurrence.

22. PW-5 Laxmi Devi has stated in her evidence that the

occurrence took place 4½ years ago at 12 O'clock. She was at

home at that time. She got information about the occurrence

when Sharwan called her and told over phone that Kaushal and

Bambam have been shot. Kaushal died and Bambam was alive

and he was brought to Naugachia. Sharwan told on phone that

Rahul and Rinku had killed (with objection under Section 141

of the Indian Evidence Act). PW-5 has also deposed before this

in Rupesh's case number 80/17 which was going on in the

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second Court. Further, PW-5 has stated that in Rupesh's case,

nothing was told to the police about the occurrence. PW-5 has

next stated that her statement was made before the police. PW-5

has also deposed that when the dead body was brought, then she

met Sharwan. It was dark at that time. On the day of occurrence,

she had met Sharwan once at 10 am in the morning. PW-5 had

no conversation with Sharwan at the time of his departure. PW-

5 had met Sharwan again in the evening. PW-5 has stated that

she cannot tell the number from which Sharwan had called.

Sharwan had called on her mobile phone. PW-5 has stated that

she can't tell her mobile number, as she doesn't remember. PW-5

has next stated that since she was the only one at home so

Sharwan had called on her mobile phone. PW-5 has also

deposed that she has not seen the shooting or the occurrence

taking place, with her own eyes. PW-5 has stated that it is not a

fact that Sharwan had called and informed her that Rahul and

Rinku have shot and killed Kaushal and Bambam. Lastly, PW-5

has stated that it is not a fact that she has no knowledge about

the occurrence and she is deposing falsely.

23. PW-6 Sharwan Kunwar has stated in his evidence that he is

the informant of this case. The occurrence took place on

23.01.2015 at 12.45 pm, while he was going to Naugachia

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market with his uncle. A white Bolero vehicle with number

4001 came there by which they were hit. Kaushal Kumar and

Bambam Chaudhary were hit. Thereafter, Rinku Kunwar got

down and shot Kaushal Kumar, whereupon Rahul shot Bambam

Chaudhary. Kaushal Kumar died after being shot and Bambam

Choudhary was quivering after being shot three times. While

trying to turn the car, it got stuck in the mud. Everyone had got

down from a white Bolero vehicle and had started firing. The

people who were with Rinku Kunwar and Rahul Kunwar, ran

away into the banana field. At home he informed Lakshmi Devi

(PW5) and Nikki Devi (PW3) who are his aunts. The police

came after half an hour. After arrival of the police, the police

had loaded them on a pickup vehicle and had taken them to

Naugachia Hospital. PW-6 had then gone to Naugachia hospital

and given his statement in front of the Sub-Inspector. The

fardbeyan of PW-6, which had been recorded by the Sub-

Inspector and which was signed by him, has been recognized by

PW-6 and the same has been marked as Exhibit 1. He has

recognised Rinku Kunwar present in the court.

24. In paragraph no. 6 of his cross-examination, PW- 6 has

stated that as soon as the Sub-Inspector came, he asked

everyone’s name. The Sub-Inspector took the statement in the

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hospital itself. Again it is stated that the Sub-Inspector met PW-

6 near the dead body but the Sub-Inspector did not take his

statement in front of the dead body. PW-6 has next stated that

when Sub-Inspector arrived, they had loaded Bambam

Choudhary and Kaushal Kumar on a pick-up vehicle and

brought them to the hospital. PW-6 had also come to the

hospital on a motorcycle with the Sub-Inspector. Both of them

had reached the hospital almost at the same time. Kaushal

Kumar was dead and Bambam Chaudhary was quivering.

Kaushal Kumar died on the spot. In paragraph no. 7 of his cross-

examination, PW- 6 has stated that he did not inform the Sub-

Inspector, as he didn’t have his number. Sub-Inspector came

simultaneously. Bambam Choudhary and Kaushal Kumar did

not have mobile phones. In paragraph no. 8 of his cross-

examination, PW- 6 has stated that he has also deposed

regarding this occurrence in the adjacent court in Sessions Trial

No. 80/17. In paragraph no. 9 and 10 of his cross-examination,

PW- 6 has stated that he has read the fardbeyan. PW-6 has also

stated that he does not remember that he has stated in his

statement made before the Court in Sessions Trial No. 80/17

that Rahul Kunwar had shot Kaushal Kumar. He has stated that

he does not remember that Bambam Chaudhary was shot by

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Rinku Kunwar as also he doesn’t remember that when they

reached there, they were quivering. In paragraph no. 11 of his

cross-examination, PW- 6 has stated that when they reached,

they saw that they had fallen after being shot. Both men were

lying on their sides and facing west. The foot was towards the

east. The bodies of both were East and West. There was a

distance of two to three feet between both persons. In paragraph

no. 12 of his cross-examination, PW- 6 has stated that the name

of Mukhiya Ji of his village is Lali Kunwar who used to live in

the village as well as outside. He has not met Mukhiya ji since

childhood. In paragraph no. 13 of his cross-examination, PW- 6

has stated that Mukhiyaji’s house is half a kilometre away from

his house towards south. Rupesh’s house is in the same locality.

25.In paragraph no. 16 of his cross-examination, PW- 6 has

stated that it is not a fact that he has stated in his Fardbeyan that

Lali Kunwar S/o Chalo Kunwar shot his uncle Kaushal Kumar

on his right ear with the weapon in his hand. He has stated that

Rinku Kunwar, with his weapon had shot Bambam Chaudhary

@ Amit Chaudhary and Rupesh Kunwar, with the weapon in his

hand, had shot on the body of Bambam Chaudhary’s. In para no.

17 of his cross-examination, PW- 6 has stated that it is true that

he has stated in his fardbeyan that Rahul Kunwar S/o Shyam

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Kunwar, with the weapon he was holding in his right hand, had

shot Bambam Chaudhary’s on his body. In paragraph no. 18 of

his cross-examination, PW- 6 has stated that it is not a fact that

he has stated in his Fardbeyan that Vidyanand Chaudhary S/o

Abhinandan Chaudhary had shot his uncle with the weapon in

his hand. In para no. 19 of his cross-examination, PW- 6 has

stated that Naugachia market is at a distance of 12 to 13

kilometres from Tata Chimni Bhatta and Naugachia market is

towards the east of Tata Chimney Bhatta. In para no. 20 of his

cross-examination, PW- 6 has stated that he does not remember

as to whether he has stated in Sessions Trial No. 80/17 that

Bambam Chaudhary was shot thrice and he was quivering. In

paragraph no. 21 to 24 of his cross-examination, PW- 6 has

stated that on the day of the occurrence, he had reached his

home at four in the evening. He has stated that he did not go to

the police station and he was in the hospital from 1 o’clock to 3

o’clock. After 3 o’clock he went home. The police had met PW-

6 in the hospital at 1 o’clock. He has stated that neither he nor

his family has any previous enmity with Rinku. PW-6 has also

stated that apart from him, there were people from his family in

the hospital, namely Nikki Devi, Lakshmi Devi and his Uncle

Rajesh Chaudhary (PW-4) and Vinod Kunwar. In para no. 25 of

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his cross-examination, PW- 6 has stated that it is not a fact that

he has again said in his statement to the police that such an

occurrence was carried out due to old enmity. In paragraph no.

26 of his cross-examination, PW- 6 has stated that there is no

previous criminal case against him and no civil case is pending

since the day of the incident.

26.In para no. 27 of his cross-examination, PW- 6 has stated

that the occurrence took place for about ten minutes. In

paragraph no. 29 of his cross-examination, PW- 6 has stated that

Tata Chimni Bhatta is at a distance of ½ kilometre from Bagadi

village and it is on the south side of Bagadi village. In para no.

32 of his cross-examination, PW- 6 has stated that it is not a fact

that he has not seen the incident happening with his own eyes.

In paragraph no. 33 of his cross-examination, PW- 6 has stated

that it is not a fact that Rinku Kunwar has not shot his uncle

Kaushal Kumar. In para no. 34 of his cross-examination, PW- 6

has stated that it is not a fact that he has falsely implicated

Rinku Kunwar in this occurrence due to old enmity. In para no.

35 of his cross-examination, PW- 6 has stated that it is not a fact

that he has falsely deposed in this trial.

27. PW-7 Dr. B.P. Singh has stated in his evidence that on

26.01.2015, he was posted as Medical Officer at Sub-divisional

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Hospital, Naugachia and on that day at 08:30 a.m., he had

conducted the postmortem examination of the dead body of

Amit Kumar Chaudhary @ Bambam Choudhary (male), aged

about 35 years, S/o Late Ganesh Chaudhary and had found the

following antemortem injuries:-

Injury No. (1) Lacerated wound ½”x ½” communicating

over, Frontal bone scalp, Margin inverted – Tattooing

mark with blackening around the wound. The wound of

entry.

(2) Lacerated wound – ¾” x ½” x communicating in front

of

right ear – margins inverted – wound of exit.

(3) Lacerated wound – 1” x ½” x bone deep over frontal

bone scalp, margin inverted tattooing and blackening

around the wound.

(4) Lacerated wound – 1” x ½” x skin deep over right

forearm.

(5) Lacerated wound – 1” x ½” x through and through

over left hand between thumb and index finger over

dorsum aspect.

(6) Lacerated wound – 1” x ½” x through & through over

palmer aspect of left hand between thumb and index

finger.

On Dissection of above noted injuries cranial

cavity found full of dark blood. Clotted blood found

underneath the tissues. Fracture of frontal bone of skull

detected, fracture of Zygomatic bone (Rt.) found

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fractured.

Brain matter – found lacerated.

Cause of Death – In my opinion death occurred due to

haemorrhage and shock as a result of above noted

injuries caused by firearm.

Distance of fire – Within 4 feet.

Time elapsed since death – Within 24 hours of P.M.

Examination.

28. PW-7 has identified the postmortem report, which has

been prepared in his pen and signature and the same has been

marked as Exhibit-2. In cross-examination, PW-7 has stated that

he is still in service and working as a medical officer and has

jurisdiction to conduct postmortem as a medical officer. He has

stated in paragraph no.15 and 16 of his cross-examination that

direction of injury has not been mentioned in his postmortem

report, moreover the time elapsed since death within 24 hours

means that the death occurred in between 25.01.2015 from

08:30 a.m to 26.01.2015 at 08:30 a.m. In paragraph no.17, he

has stated that on the direction of Dy. Superintendent of S.D.H

Naugachia, he had conducted postmortem examination. In

paragraph no.21 of the cross-examination, he has been

questioned as to in which part of the body rigor mortis was

found and in reply to the same he has answered that it was

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found in the whole body and not in any particular part. In

paragraph no. 24 and 25 of his cross–examination, PW-7 has

stated that the Injury No.2 which is wound of exit, may be exit

of Injury No.1 and 3 both, moreover he has further stated that

this explanation has not been mentioned by him in the P.M

report. In paragraph no. 27 and 28 of his cross–examination,

PW-7 has stated that the postmortem report was prepared and

filed after conducting the postmortem examination, as all

relevant observations are initially recorded in a register prior to

the preparation of the report and then based on that findings are

mentioned on the report. In paragraph no. 29 and 30 of his

cross–examination, PW-7 has stated that he does not remember

whether he has deposed in Sessions Trial No. 80/17 in the

adjacent court, however after seeing the documents, he has

stated that he has also deposed in Sessions Trial No. 80/17. In

para no. 31 of his cross–examination, PW-7 has stated that he

had found four injuries on the body of the deceased and has

again stated that Injury No. 1 to 6, are all of firearms. PW-7 has

further opined that the time of death is between zero to 24

hours. In paragraph no. 33 to 36 of his cross–examination, PW-7

has stated that there is possibility that exit wound of Injury No.

3 and 2 is same and that the exit wound of Injury No. 1 and

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Injury No. 3 is the exit wound no. 2. PW-7 has next deposed that

there is no wound on right or left knee as also there is no

tattooing or blackening of Injury nos. 4, 5 and 6. In paragraph

no. 37 of his cross – examination, PW-7 has stated that though it

is true that he has deposed in Sessions Trial No. 80/17 but he

doesn’t remember whether he has stated in para no. 2 that he

was known to the deceased from before.

29. PW-7, in paragraph no. 38 and 39 of his cross-examination

has stated that Injury No. 1 and 3 are injuries of gunshot and rest

other injuries may be from hard and blunt substance and that is

why he did not find any mark of tattooing and blackening

except on injury No. 1 and 2. PW-7 has next submitted that he

was posted on deputation at Naugachia Sub-Divisional Hospital

at the time he had prepared this P.M report. In para no. 41 to 43

of his cross–examination, PW-7 has stated that he did not find

any metallic substance in the dead body during postmortem and

he did not see any mark on the dead body to suggest that his

treatment had taken place elsewhere. Lastly, PW-7 has stated

that it is not a fact that postmortem report is false and he has

done only table work.

30. PW-8 Dr. Arun Kumar Sinha has stated in his evidence

that that on 23.01.2015, he was posted as Medical Officer at

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Sub-divisional Hospital, Naugachia and on that day at 04:20

pm, he had conducted the postmortem examination of dead

body of Kaushal Kumar Kunwar S/o Late Chinti Kunwar and

found the following antemortem injuries:-

(1) about half inch oval lacerated wound just in front of

right pinna with charring around adjacent area.

(2) Wound of Exit – Irregular oval lacerated wound 1” x

½” on left side of forehead, Rt. Eye ball protruded.

(3) Injury no. (1) and (2) was communicating to each

other. There was fracture of frontal bone on both sides.

(4) On dissection – Cranial cavity was filed with blood

and clots with laceration of brain matter particularly of

frontal lobe. All viscera were pale.

(5) Cause of death – Intracranial haemorrhage and shock

due to gunshot injury within range of 6 feet. Direction –

right to left.

(7) Time elapsed since death – within 6 hours of P.M.

examination.

31.PW-8 has identified the postmortem report, which has

been prepared in his pen and signature and the same has been

marked as Exhibit-2/1. In cross-examination, PW-8 has stated

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that he has written his designation in postmortem report as

MBBS, DO. DO means diploma in ophthalmology. He has

written his designation as civil assistant surgeon. In para no. 11

to 13 of his cross – examination, PW- 8 has stated that he had

conducted the postmortem of the dead body on the request of

Naugachia police officer, and he has even deposed in Sessions

Trial No. 80/17, before the Ld. court of ADJ-II. In para no. 14 of

his cross–examination, PW- 8 has stated that he cannot ascertain

as to what kind of food was present in the dead body. In

paragraph no.15 and 16 of his cross–examination, PW- 8 has

stated that he had filled up column no.1 and page no.1 of

postmortem report first and then he had filled up the columns at

page no. 2. In para no. 17 of his cross – examination, PW- 8 has

stated that no rigor mortis had begun. In paragraph no. 18 and

19 of his cross – examination, PW- 8 has stated that with respect

to column no. 7, 9 and 10, he has not mentioned as to in which

column he has mentioned details, as all details are available in

column no. 33. In paragraph nos. 20 to 23 of his cross-

examination, PW- 8 has stated that entry in column no. 5 was

made before the start of postmortem, then he says that he had

conducted the postmortem first. During the postmortem

necessary details are written in separate paper from which help

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is taken to prepare a final postmortem report. In paragraph no.

25 of his cross-examination, PW- 8 has stated that it is not

possible for him to give an opinion whether the deceased was

shot while standing, sitting or in a sleeping posture.

32.In paragraph no. 26 of his cross–examination, PW- 8 has

stated that he has not mentioned about the exact location of the

exit wound on the head. In para no. 27, PW-8 has stated that he

has not mentioned the nature of injury on the scalp by words as

through and through and instead he has used the term

communicating injury. In paragraph no. 28 to 31 of his cross –

examination, PW- 8 was questioned about meaning of “within

six hours of postmortem examination” and in reply thereof he

has stated that rigor mortis begins within four to six hours from

the time of death but it depends upon the prevailing season, as

he has conducted the postmortem during winter season. Rigor

mortis will depend upon the location of body, i.e. whether it was

kept in open field or within closed door. During the winter

season if the body is kept in an open field, then the rigor mortis

may take more time to set in. In paragraph no. 32 and 33, PW-8

has next submitted that he has not used the term firearm in the

description of injury, rather he has used the term gunshot injury

and gun means “Gun”. Lastly PW-8 has stated that it is not a

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fact that he has prepared a false postmortem report and it is also

not a fact that that he has prepared a table report.

33. PW-9 Kaushal Kumar has stated in his evidence that on

23.01.2015 he was posted as S.H.O. Jhandapur and on that day

he had assumed charge of investigation of Bihpur (Jhandapur)

P.S. Case No. 17/15. He had received fardbeyan written by S.I.

Jawahar Lal Singh, thereafter he had received the inquest report

from S.I. Jawahar Lal Singh. He had then prepared the seizure

list, whereupon more seizure lists were prepared. Three seizure

lists and one memo cum seizure list were prepared by him.

(With objection, for identification of exhibits) PW-9 has stated

that there are three seizure lists and one memo cum seizure list

in carbon copy, which bears his signature and are in his

handwriting. The same have been marked for identification as

X, X/l, X/2, X/3. PW-9 had then gone to the place of occurrence

and started investigation as also had recorded the description of

the place of Occurrence and its boundaries. PW-9 had then

recorded the statement of the informant, whereafter a seizure list

was prepared again. The statement of witness Nikky Devi (PW-

3) was then recorded and written in the case diary, whereafter

the statement of Chandan Kunwar (PW-1) and Lakshmi Devi

(PW-5) was recorded. PW-9 has stated that thereafter, (with

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objection, regarding identification of the exhibit) the carbon

copy of the inquest report of the deceased Amit Kumar @

Bambam Choudhary, which is available on record, was

inscribed in the diary. PW-9 has also stated that the carbon copy

of the second inquest report of Kaushal Kumar is available on

record which is in his handwriting and bears signature of

Jawahar Lala S.I., which he has identified. Both inquest reports

were marked as “Y” and “Y/l” respectively for identification.

PW-9 had then recorded the statement of Rajesh Chaudhary

(PW-4). Thereafter, postmortem report of Kaushal Kumar was

obtained and recorded in the case diary and then postmortem

report of Amit Kumar @ Bambam Chaudhari was received and

mentioned in the case diary. PW-9 had then recorded the

statement of Murari Chaudhary (PW-2). Then PW-9 had

arrested the accused and charge sheet bearing no. 19/15 was

submitted against Rinku Kunwar and Rahul Kunwar U/s. 341,

307, 302, 427, 120-B of IPC and Section 27 Arms Act. PW-9

has recognized Rinku Kunwar, who is present in the court.

34.In paragraph no.11 of his cross-examination, PW-9 has

stated that investigation of this case started on 23.01.2015 at

17:30 hours, after receipt of the fardbeyan. The fardbeyan was

received at Jhandapur police station from S.I. Jawahar Lal Singh

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(PW-15). At that time Jawahar Lal Singh was in-charge of the

police station. Jawahar Lal Singh had brought fardbeyan to the

police station. The page number was inscribed on the fardbeyan

by Jawahar Lal Singh at Naugachia Hospital and he had

forwarded the Fardbeyan to Bihpur Police Station under

Jhandapur Police Station. In paragraph no. 1 of the case diary,

PW-9 has written the date and time of assuming the charge of

investigation as 23.01.2015 at 17:30 hours. In paragraph no. 14

of his cross-examination, PW-9 has stated that it is clear from

what has been mentioned in paragraph 9 of the case dairy that

he had gone to the place of occurrence upon information

received on mobile and had taken the injured to the sub-

divisional hospital for treatment but he did not get to know the

names of the injured and the accused person. In paragraph no.

15 of his cross-examination, PW-9 has stated that in para no. 9

of the case diary, he has not mentioned either about the time of

going to the hospital or the time of going to the place of

occurrence or the time of taking the injured from the place of

occurrence to the hospital. Moreover, there is no mention of

number and date/time of registering Sanha. It has also not been

mentioned as to how many people were injured in the

occurrence.

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35. PW-9 has further stated that Jawahar Lal Singh (PW-15)

was authorised in writing to record the fardbeyan, whereafter

three seizure lists and memo cum seizure list were prepared by

him in his handwriting and the same bears his signature. In

paragraph no. 18 of his cross – examination, PW9 has stated

that FIR regarding this occurrence was registered at 17:30 hours

but he does not remember when the case was registered at

Bihpur police station. Possibly, the case was registered at Bihpur

police station at 17:30 hours. In paragraph No. 19, PW9 has

stated that during the investigation, he had recorded the

statement of Murari Chaudhary (PW2), who is a witness to the

memo cum seizure list but had not recorded the statement of any

other witness to the seizure lists. In para no. 20, PW9 has stated

that the statement of Murari Chaudhary was recorded, who is a

witness to the inquest report of Amit Kunwar @ Bambam

Chaudhary. In paragraph no. 21 of his cross-examination, PW-9

has stated that he had not recorded the statement of S.I. Jawahar

Lal Singh who had written the Fardbeyan. In para no. 22 of his

cross-examination, PW-9 has stated that Murari Chaudhary has

not stated in his statement about making any inquest report and

seizure list. In para no. 23, PW9 has stated that he had himself

obtained the postmortem report at the police station, as is

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mentioned in para nos.46 and 47 but the name of such special

messenger who had brought both postmortem reports as also the

time is not mentioned in para no. 46 & 47. These 2 reports were

of both the deceased persons, however he did not go to

Naugachia Hospital for verification. PW9 has stated that he does

not remember as to when Bihpur P.S. Case no. 17/15 was

registered. In para no. 1 of case diary at page no. 1, Jhandapur

P.S. case no. 17/15 has been mentioned by PW9 and he had

written the diary at 17:30 hours but till then he was not aware

about Jhandapur P.S. case number 17/15.

36.In paragraph no. 26 and 27, of his cross-examination,

PW-9 has stated that he had met Bambam Choudhary @ Amit

Kumar Choudhary after the incident but the same has not been

mentioned in the CD and after the death of Bambam Chaudhary,

during the course of investigation he did not collect any papers

regarding the place where Bambam Chaudhary was treated and

as to who had treated him. In paragraph no. 27, PW9 has stated

that on 23.01.2015, both the injured persons were brought to

Naugachia Hospital for treatment in police jeep. In para no. 30

of his cross-examination, PW-9 has stated that while writing

Para 9, he had met the families of the injured but in Para 9 he

has not written the name of the injured persons, however he has

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mentioned their name in Para 1. In paragraph no. 31 of his

cross-examination, PW-9 has stated that he had inspected the

place of occurrence at 18:45 hours on 23.01.2015. In paragraph

no. 32 to 34 of his cross-examination, PW-9 has stated that

while investigating the case, he had read the fardbeyan of this

case. PW-9 has stated that it is true that he has deposed in

Sessions Trial No. 80/17 and it is also true that he has stated in

para no. 1 of his deposition in Session trial no. 80/17 that on

23.01.2015, he was posted as SHO Jhandapur. He does not

remember saying in para no. 1 that he had recorded fardbeyan of

Shravan Kunwar that day. He even does not remember whether

he has deposed in para no. 2 to the effect that an inquest report

and a seizure list were recorded by him.

37.In paragraph no. 35 of his cross-examination, PW9 has

stated that he has not inquired about owner or driver of the

Bolero vehicle bearing registration number JH10AD4001,

which was used in the occurrence. In paragraph no. 36, PW9 has

stated that only after completing the entire process, fardbeyan

was forwarded to the police station and everything was sent

with the fardbeyan. PW-9 has also stated that after completion

of all the processes like preparation of seizure list, dead body

challan, copy of Mufassil command, inquest report along with

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fardbeyan, FIR was registered formally and subsequently, the

same was forwarded to the Bihpur police station for registration

of FIR. In paragraph no. 38, PW-9 has stated that it is not a fact

that he did not receive any fardbeyan at Naugachia Hospital and

instead the same was prepared at Jhandapur OP after

deliberations, whereafter the same was sent to Bihpur PS for

registration of a case as also for this reason the fardbeyan was

sent for being forwarded from Naugachia Hospital. In paragraph

no. 39, PW-9 has stated that no injury report of both the injured

persons, namely Kaushal Kumar Kunwar and Bambam

Choudhary was prepared and sent to the doctor. In paragraph no.

40 of his cross- examination, PW-9 has stated that both the

injured persons were treated at Naugachia Hospital and he did

not take any paper related to this from the hospital. The register

of both the injured was maintained in the hospital but the papers

relating to it were not received. PW-9 has stated that he does not

remember at what time Kaushal Kumar was declared dead and

at what time Bambam Choudhary was referred to Bhagalpur.

PW-9 has also stated that he does not remember as to which

doctor had referred Bambam Chaudhary to Bhagalpur for

treatment. PW-9 has next stated that due to lack of time,

statement of Rajesh Chaudhary was recorded at the Hospital.

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PW-9 has also stated that it is not a fact that no fardbeyan was

recorded at the hospital and instead everyone was called at the

police station and their statement was recorded there.

38.In paragraph no. 43 of his cross-examination, PW-9 has

stated that the inquest report was prepared at the sub-divisional

hospital on 26.01.2015 and at that time, he was the I.O. of this

case. In para no. 44 of his cross-examination, PW9 has stated

that he had given a formal order to prepare the inquest report as

he was not aware of giving any written orders and he has read

the inquest report of Bambam Chaudhary. PW9 has next

submitted that no item relating to this case is present in the court

as exhibit today. In paragraph no. 49 of his cross-examination,

PW9 has stated that he was not aware that if the case has been

registered then the PS case number will be mentioned in column

no. 1 of the inquest report, otherwise the written application or

fardbeyan of the informant of' the case, the name of the

informant, date and time will be filled. In paragraph no. 50,

PW9 has stated that it is not a fact that no statement of Shravan

Kumar was recorded till the time the inquest report of Kaushal

Kumar was prepared, hence for this reason column no. 1 of the

inquest report was kept blank. PW9 has further stated that

Naugachia Sub-Divisional Hospital is not under his jurisdiction

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and he had neither taken help of Naugachia police station nor

informed them. In paragraph no. 52 and 53 of his cross

examination PW9 has stated that it takes 20 to 25 minutes to

reach Naugachia Sub-Divisional Hospital by vehicle from the

place of occurrence. In paragraph no. 54 of his cross-

examination, PW9 has stated that he does not remember from

what time till what time he was at the place of occurrence. On

23.01.2015 he went to the place of occurrence thrice. He doesn’t

remember when he went for the first time but he went at 15:45

hours for the second time and at 18:45 hours for the third time.

39.PW-9 has further stated that both the seizure lists were

prepared at the place of occurrence and there was no

information about P.S. case no. 17/15 till both the seizure lists

were prepared at the place of occurrence. In paragraph no.55 he

has stated that, it is not a fact that the seizure list was prepared

after the case was registered. PW-9 has next stated that he does

not remember whether the object which was seized by him at

the time of preparing the second seizure list at 15:45 hours on

23.01.2015 was present at the place of occurrence at the time of

making the first seizure list at 13:30 hours. To a question as to

why he did not inspect the place of occurrence when he had

prepared the first seizure list, PW-9 has stated that the articles

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which were found during the course of preliminary inspection

were confiscated and the injured persons were taken to the sub-

divisional hospital for treatment. In para no.58 and 59 of his

cross–examination, PW-9 has deposed that he had not prepared

the sketch map of the place of occurrence and after conducting

inspection of the place of occurrence, he did not mention in his

inspection report/investigation report, details such as where the

two injured persons were found, where was bolero vehicle,

where was motorcycle, the names of the injured persons whose

blood stains were found on the soil as also in which state the

deceased was found at the place of occurrence. In paragraph no.

60 of his cross-examination, PW-9 has stated that the incident

took place on the paved road of NH-31.

40.In paragraph no. 61, PW-9 has stated that he had not

obtained any information regarding the Motorcycle used by the

informant on the day of occurrence. In paragraph no.63 and 64,

PW-9 has stated that the blood mentioned in the third seizure

list, which he had prepared on 24.01.2015, is the blood stains of

both the injured, which he could not mention in the earlier

seizure list. In paragraph no. 65 of his cross-examination, PW-9

has stated that in para 7 he has mentioned about inspection of

the place of occurrence but he has not mentioned about the

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blood stained earth in the seizure list. He had sealed the blood

stained earth but it was not mentioned in the diary. He does not

remember as to how many people had accompanied him with

the injured person from the place of occurrence to the hospital

in the government jeep but officer Jawahar Lal Singh was

present, however he cannot say as to who all were present there

when the injured were being taken to the government hospital in

a government jeep. After receiving information about the

occurrence, he does not remember as to at what time he had

reached the place of occurrence and for how long he had stayed

at the place of occurrence. In paragraph no. 66, PW-9 has stated

that he does not remember when he met Rajesh Chaudhary for

the first time on the day of the occurrence. In paragraph no. 69

to 71 of his cross examination, PW-9 has stated that he was

already acquainted with Shravan Kunwar and due to team work,

he did not take the statement of Shravan Kunwar but when he

met Shravan Kunwar at the hospital, he was in position to give

his statement. PW-9 has next stated that he did not consider it

appropriate to take the re-statement of the informant before

inspecting the place of occurrence. In paragraph no.73 of his

cross-examination, PW-9 has stated that he has not written in

para-9 regarding the mobile on which he received the

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information and from which mobile the information was

received and at what time. In paragraph no.74 of his cross-

examination, PW-9 has stated that he had made inquiries from

the owner of Bolero vehicle as to whether his car was stolen or

someone had taken it but it was not mentioned in the diary. PW-

9 has stated that he did not go on his own to interrogate the

vehicle owner, rather he had inquired from an informer. In para

no.75 of his cross-examination, PW-9 has stated that M.V.I of

motorcycle was conducted but Bolero’s M.V.I. was not done,

hence on account of inspection report of motor vehicle being not

available, the same has not been mentioned in the diary.

41.In paragraph no. 76 of his cross-examination, PW-9 has

stated that he has not recorded the statement of Jawahar Lal

Singh (PW-15), who had recorded the Fardbeyan. In paragraph

no. 77 and 78 of his cross-examination, PW-9 has stated that he

was not in Jhandapur OP when he received information about

the occurrence on Mobile, since he was in court and he had

informed Bihpur police station about the occurrence through

mobile from the court itself. PW9 has stated that the date and

time of receipt of information at the police station, which has

been mentioned in Column 3 (ख) of the formal FIR as 14:05

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hours, has been mentioned on his information leading to

registration of the FIR, however he has not mentioned the same

in para no. 9 of the diary. In para no. 80 of his cross-

examination, PW9 has stated that he did not take photographs of

Bolero vehicle and Motorcycle. In para no. 82 to 85 of his cross-

examination, PW-9 has stated that he does not remember the

time when the re-statement of the informant was recorded and

when the statements of witnesses Lakshmi Devi, Nikky Devi

and Chandan Kunwar were recorded. PW-9 has also stated that

he did not record the statement of any independent witness

rather he had recorded the statement of only family members of

the deceased.

42. In paragraph No. 87 of his cross-examination, PW-9 has

stated that the statement of witness Chandan Kunwar (PW1)

was not recorded on 23.01.2015. Chandan Kunwar had given a

statement which is hearsay, since he is not an eyewitness to the

occurrence and he has stated in his hearsay statement that Lali

Kunwar, Vidyapati Chaudhary, Rinku Kunwar, Rahul Kunwar

and Rupesh Kumar had fired shots one by one. In paragraph no.

88 of his cross-examination PW-9 has stated that in Para no. 41,

Rajesh Chaudhary (PW4) has given statement in his presence to

the effect that six persons were armed with weapons and by

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Bolero vehicle they had hit motorcycle, which was being ridden

by both the deceased persons, however he and Sharvan had

moved ahead for some distance and then they saw that Lali

Kunwar, with the weapon in his hand had shot Kaushal Kumar

Kunwar on his right leg, leading to him having fallen down

there and he started quivering, whereafter Rinku Kunwar had

fired gunshot on the head of Bambam Chaudhary, Rahul

Kunwar had fired gunshot on the body of Bambam Chaudhary

and Rupesh Kunwar had also fired gunshot on the body of

Bambam Chaudhary as also Vidyapati Choudhary had shot

Kaushal Kumar Kunwar with the weapon being held by him in

his hand. In paragraph no. 89 of his cross-examination, PW-9

has stated that re-statement of Sharwan Kunwar (PW-6) has

been recorded in which Sarwan Kunwar has stated that the

occurrence in question has been given effect to on account of

old enmity. In paragraph no. 90 to 92 of his cross-examination,

PW9 has stated that he did not verify as to whether it is true that

Sarwan Kunwar is an accused in Bihpur police station case

number 753/98 or not. PW-9 has stated that he cannot say as to

in what context Sarwan Kunwar has mentioned about Bihpur PS

Case No. 753/98. PW-9 has denied the suggestion that Rohit

Kunwar @ Rinku Kunwar is not involved in the occurrence and

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that he has not conducted proper investigation, rather during the

course of investigation, at the instance of the informant, he has

given the name of Rinku Kunwar in this case. Lastly, PW-9 has

denied the suggestion that he has falsely deposed.

43. PW-10 Kishor Chaudhary has stated in his evidence that

the inquest report is of Bambam Chaudhary, which is made in

carbon copy and bears his signature and it has been marked as

Exhibit Y/1 with objection. It has already been marked in the

past as Y for identification. Apart from his signature, it also

bears the signature of Murari Kumar, whom he recognizes and

the same has been marked as Exhibit Y/2 with objection. In

paragraph no. 2 of his cross-examination PW-10 has stated that

he understands the meaning of preparation by carbon copy

method. It was made by putting carbon sheet below. PW-10 has

stated that the document was signed by him at the behest of the

police station in-charge. It has signature of two persons and he

had signed at only one place. PW-10 has stated that this is not

the paper on which he had signed. After the postmortem, the

Sub-Inspector had made him sign this paper. PW-10 has

identified the signature of Murari Kumar but he states that he

cannot say as to whether he signed it first or Murari Kumar had

signed it first. PW-10 has further stated that he doesn’t know as

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to whether the signature of Murari Kumar, which he has

identified is original or not. In para no. 3 of his cross-

examination, PW-10 has stated that this is not the paper on

which he and Murari Kumar had signed and it does not bear his

or Murari Kumar’s signature. Lastly PW-10 has stated that it is

not a fact that he has falsely deposed.

44. PW-11 Ranjeet Kumar has stated in his evidence that the

seizure list prepared using carbon method bears his signature

which he has recognized (with objection) and the same also

bears the signature of Gautam Chaudhary, which he has

recognized. (with objection), which has already been marked for

identification as X/1, along with signature of Ranjit Kumar as

X/2 and signature of Gautam Choudhary as X/3 for being

marked as exhibits. PW-11 has recognized the inquest report of

Kaushal Kumar which has been prepared by carbon process and

the same bears his signature and the signature of Sudhir

Kunwar. This inquest report has already been marked as Y/5 for

being exhibited. The signature of Ranjit Kumar is marked as

Y/6 and that of Sudhir as Y/7 for identification with objection.

In Cross-examination, PW-11 has stated that he is witness to the

seizure list. He doesn’t remember the time of signing the seizure

list and even doesn’t remember the date on which it was signed.

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In paragraph no. 4 of his cross-examination, PW-11 has stated

that earlier he had signed the paper containing the seizure list.

After this he had signed the inquest report. PW-11 has signed

one paper at the hospital and the other paper was signed in front

of the police. In paragraph no. 5, PW-11 has stated that he

understands the meaning of carbon process, i.e. whatever is

written on the carbon paper is the carbon process. In Paragraph

no. 6, PW-11 has stated that Sudhir Kunwar had signed in front

of him. Sudhir Kunwar had signed first and the time when

Sudhir had signed, it was written on the paper. He had signed

only once on the paper signed by Sudhir Kunwar and on the

second paper also he had put his signature once and he had put

his signature in the day time.

45.PW-11 has next stated that this is the same paper on

which he put his signature at the beginning of the day and the

same bears his original signature. In paragraph no. 7, PW-11 has

stated that the signature he had put with Gautam Chaudhary is

not his original signature as Gautam had signed first. In

Paragraph no. 8 of his cross-examination, PW-11 has stated that

the paper he and Gautam had signed is called the seizure list and

the paper which he and Sudhir had signed is called the inquest

report. Inquest report was signed after the postmortem was

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conducted. It was the inquest report of Kaushal Kumar. He came

to the hospital when he came to know about Kaushal Kumar’s

death and then he stayed back at the hospital. In para no. 9, PW-

11 has stated that it is not a fact that Gautam and Sudhir have

not signed the seizure list and inquest report with him. In

paragraph no. 10 of his cross-examination, PW-11 has stated

that it is not a fact that no paper was prepared in front of him

and he signed it at the request of the police and this is not the

paper about which he has said.

46. PW-12 Bablu Kumar has stated in his evidence that search

cum seizure list which was prepared through carbon process

bears his signature, which he has recognized. Apart from him, it

was signed by one Ayush Kumar. A bullet was recovered in his

presence in the glass container and its seizure list was prepared.

With objection, for identification Exhibit X/3 has been marked

from before and now for identification with objection, Bablu

Kumar's signature is marked as Exhibit X/4 and Ayush Kumar's

signature is marked as exhibit X/5. In paragraph no. 4 of his

Cross-examination, PW-12 has stated that he had signed

voluntarily. When the sub-inspector showed the items, he put his

signature then. This is not his original signature but he again

says that it is carbon copy. In para no.5 of his Cross-

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examination, PW-12 has stated that the bullet was shown to him

first. He knows when Ayush was shown the bullet as he was

shown the bullet later. Ayush was shown the bullet after two

minutes. The sub-inspector has kept the bullet in a glass

container nearby. He signed on 26.01.2015. He does not know

since when sub-inspector was in possession of the bullet kept in

a glass container. In paragraph no. 6, PW-12 has stated that in

the seizure list, the subject was written as bullet in glass

container and the name of the deceased was written as Amit

Kumar. He had read it by himself. He had signed at Sub-

Divisional Hospital Naugachia. In para no. 7, PW-12 has stated

that it is not a fact that nothing was recovered in front of him

and he had signed it at the behest of the sub-Inspector. Further,

he has stated that it is not a fact that he has falsely deposed.

47. PW-13 Dinesh Yadav has stated in his evidence that he had

not made thumb impression on any seizure list. This witness has

been declared hostile by the prosecution.

48. PW-14 Subodh Kumar Yadav has stated in his evidence

that he recognizes his signature which is present on the seizure

list made by carbon process. Exhibit has been marked as X/2

from before (With objection for identification). The same is now

marked as X/3 for identification. PW-14 has stated that nothing

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was recovered in front of him. In Cross-examination, PW-14 has

stated that this is not his signature which is on the original paper

and it is true that this is not the paper on which he had put his

signature.

49. PW-15 Jawahar Lal Singh has stated in his evidence that

the fardbeyan is in his handwriting and bears his signature.

Rajesh Chaudhary (PW-4) had signed it in front of him and

Shravan Kunwar (PW-6) has also signed on it. This has already

been marked as exhibit. Jawahar Lal Singh’s signature and

entire fardbeyan have been marked as Exhibit-1/2 and signature

of Rajesh Chaudhary has been marked as Exhibit-1/3. Shravan

Kunwar (PW-6) has also signed in front of him, which he

recognizes and the same has already been marked as Exhibit-1.

PW-15 has stated that the Inquest report is in his handwriting

and bears his signature as also the signatures of Murari Kunwar

(PW-2) and Kishore Chaudhary (PW-10) and the same has

already been marked as Y/l and Y/2 and Jawahar Lal Singh’s

signature and complete inquest report in carbon copy (with

objection) are marked as Ex. Y/3. PW-15 has stated that he has

prepared the inquest report of Kaushal Kumar (with objection

for identification). The same bears the signature of Sudhir

Kunwar and Ranjit Kunwar (PW-11) and it has already been

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marked Ex. Y/7 and Y/6. The entire inquest report and signature

of Jawahar Lal Singh have been marked as Exhibit Y/8.

50. In paragraph no. 4 of his cross-examination, PW-15 has

stated that the fardbeyan which he had taken at Naugachia

Hospital was not within his jurisdiction but S.H.O, Kaushal

Kumar (PW-9) had authorized him for recording fardbeyan,

however he did not give any written paper. In paragraph no. 5 of

his cross-examination, PW-15 has stated that the dead body of

the deceased was brought to Naugachia hospital for

postmortem. He and Kaushal Kumar (PW-9) had come together

from the place of occurrence and before that they were at

Jhandapur OP. Both of them had come together from Jhandapur

OP on a police jeep. The inquest report of the deceased was not

made on the spot because life of another injured person was to

be saved. The deceased had a private vehicle and there was a

pick up van too. When PW-15 and other police personnel had

reached the place of occurrence, they had brought the deceased

and another injured person to the hospital in a pickup van. No

paperwork was done in his presence. PW-15 states that he does

not remember as to who all came with the jeep from the place of

occurrence to Naugachia Hospital. He doesn’t remember as to

who all came with the deceased and the injured in the pickup

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van. In paragraph no. 6 of his cross-examination, PW-15 has

stated that in the afternoon, information was received by SHO

Kaushal Kumar at Jhandapur OP. He does not remember as to at

what time Kaushal Kumar had received such information at

Jhandapur OP. PW-15 has stated that they got information in

afternoon that shots have been fired.

51.In paragraph no.7 of his cross-examination, PW-15 has

stated that his statement regarding this case was taken by SHO

Kaushal Kishore on 23.01.2015 but he doesn't remember the

time as his statement was taken at Jhandapur OP. In paragraph

no. 8 and 9 of his cross-examination, PW-15 has stated that the

inquest report was prepared after recording of fardbeyan and he

had no prior acquaintance with the person whose fardbeyan was

recorded by him and he had seen the said person on the day of

the incident at 01:30 hours as also the information regarding his

name was given at 14:30 hours on 23.01.2015. The informant’s

name and address were not verified before or after his

statement. The names and addresses of witnesses to the

fardbeyan were not verified as also the names and addresses of

the two witnesses to the inquest report were not verified. In

paragraph no. 10 of his cross-examination, PW-15 has stated

that two papers were made at the hospital, one on 23

rd

and the

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other on 26

th

and the same were made at Naugachia Sub-

Divisional Hospital. Both the papers are called inquest report.

PW-15 has stated that the second inquest report was made on

26.1.2015 but at that time he was not the Investigating Officer

of this case. PW-15 has also stated that he was at the Sub-

Divisional hospital Naugachia from 14:00 to 16:00 hours on

23.01.2015. There was a Chowkidar with him, whose name he

doesn’t remember as also one police officer, namely

Barmeshwar Singh was there who is an ASI. At the time of

preparation of inquest report on 26.01.2015, he, Chowkidar and

Police force were there, i.e. at Naugachia Hospital from 6 a.m.

to 10 a.m. PW-15 has stated that he had prepared the inquest

report as per the verbal orders of the police station in-charge,

although he was not the I.O. of this case. On 26.01.2015 at 5:30

a.m., on the verbal orders of the police station in-charge the

inquest report was prepared at Jhandapur OP and at that time, he

was aware that the I.O. of this case is Jhandapur O.P. police

station in-charge, Kaushal Kumar.

52. In paragraph no. 11 of his cross-examination, PW-15 has

stated that custody of the body of the deceased has not been

taken after the postmortem was done. The custody of the dead

body of the person whose inquest report was made on

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26.01.2015 was also not taken. On 23.1.2015 & 26.01.2015, he

had left Naugachia Hospital after postmortem of both the

deceased had been conducted and he had come to know from

the doctor that postmortem of both the deceased had been

completed. PW-15 has stated that he was informed by the doctor

at 16:30 hours upon completion of postmortem of the deceased

on 23.01.2015 and on 26.01.2015, he was informed by the

doctor at 9:00 hours about completion of postmortem of the

other deceased. In paragraph no. 12 his cross-examination, PW-

15 has stated that he doesn’t know as to whom the pick-up

vehicle belong to, by which the deceased and the injured were

brought, however he has stated that when the deceased was

loaded on the pickup vehicle, his body was bleeding and the

injured person was also bleeding and blood might have fallen on

the pickup vehicle as well but the same was not marked as

exhibit. The injured person was admitted at Naugachia hospital

at around 14 o'clock on 23.01.2015. The injured was referred on

the same day, i.e. on 23.01.2015. The injured person was kept

for about ten to fifteen minutes at the Naugachia hospital. In

paragraph no. 13 and 14 of his cross-examination, PW-15 has

stated that on 23.01.2015, he had admitted the injured at

Naugachia Hospital but he had not issued his injury report. PW-

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15 has stated that he had signed on the originals of both the

inquest reports. In paragraph no. 15, PW-15 has stated about the

boundaries of the place of occurrence. PW-15 has stated that

Tata Chimney was at a distance of half a kilometre south from

the place of occurrence.

53.In para no. 18 of his cross-examination, PW-15 has stated

that when he reached the place of occurrence, he does not

remember which way the head, legs and hands of the deceased

and the injured were situated, however both were bleeding. He

does not remember at what time he reached the place of

occurrence after the occurrence. The deceased and the injured

were loaded on a pickup vehicle between 1 to 1:30 hours. In

paragraph no. 19, PW-15 has stated that when he touched the

heartbeat of deceased Kaushal Kumar, he found him to be dead.

In para no. 20, PW-15 has stated that after the occurrence on

23.01.2015, when he reached the spot, there was no traffic on

the road. PW-15 has also stated that he was not previously

acquainted with the people whose signatures were taken on the

paper. In paragraph no. 24 to 28, PW-15 has deposed that it is

not a fact that informants’ statement was not taken at Sub-

Divisional Hospital Naugachia at 14:30 hours. PW-15 has also

stated that it is not a fact that he had not taken the signature of

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any witness on the papers. PW-15 has further stated that it is not

a fact that no action was taken by him and the members of his

police station at the sub-divisional hospital. PW-15 has stated

that it is not a fact that he is deposing falsely.

54.After closing the prosecution evidence, the learned Trial

Court recorded the statement of the appellant on 21.09.2019

under Section 313 of the Cr.P.C. for enabling him to personally

explain the circumstances appearing in the evidence against

him, however he claimed himself to be innocent and denied the

same.

55.We have perused the impugned judgement of the learned

Trial Court, the entire materials on record, as also the evidence

adduced at the trial and have given our thoughtful consideration

to the rival submissions made by the learned counsel for the

appellant as well as the learned APP for the State.

56.The foremost aspect which is required to be adjudged is

as to whether any ocular evidence is available on record to

prove the guilt of the aforesaid appellant for the offence with

which he has been charged and as to whether the date, time,

mode and manner of occurrence have stood proved on the basis

of ocular evidence led by the prosecution or not. Now coming to

the ocular evidence, we find that PW-1 Chandan Kumar, PW-4

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Rajesh Choudhary and PW-6 Sharwan Kumar are stated to be

eye witnesses to the occurrence while PW-2 Murari Kumar, PW-

3 Nikky Devi and PW-5 Laxmi Devi are family members of the

deceased, nonetheless they have categorically stated that they

have not seen the alleged occurrence, hence we do not propose

to rely on the testimony of the said witnesses. PW-7 Dr. B. P.

Singh and PW-8 Dr. Arun Kumar Sinha are the doctors who

have conducted the postmortem examination of Bambam

Chaudhary and Kaushal Kumar on 26.01.2015 at 8:30 a.m. and

on 23.01.2015 at 4:20 p.m. respectively. As far as PW-10, PW-

11, PW-12, PW-13 and PW-14, namely Kishore Chaudhary,

Ranjeet Kumar, Bablu Kumar, Dinesh Yadav and Subodh Kumar

Yadav are concerned, they are witnesses to the inquest reports and

seizure lists prepared during the course of investigation. PW-9

Kaushal Kumar and PW-15 Jawahar Lal Singh are the Investigating

Officers of the connected criminal case.

57.In view of the fact that PW-1 Chandan Kumar, PW-4

Rajesh Choudhary and PW-6 Sharwan Kumar are stated to be

eye witnesses to the occurrence, we will now deal with their

evidence. PW-1 Chandan Kumar has stated in his testimony that

the occurrence dates back to 23.01.2011 at 12:20 p.m. when he

was going home on a motorcycle along with PW-4 and PW-6,

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who were riding on his motorcycle while Bambam Chaudhry

and Kaushal Kumar were coming on another motorcycle. PW-1

has further stated in his deposition that when he had reached

near Baghri Bridge, his motorcycle was hit by Bolero vehicle,

whereafter the accused persons had alighted from Bolero

vehicle and fired gunshots on Kaushal Kumar and Bambam

Chaudhry. On the contrary we find that PW-4 and PW-6 have

not stated about PW-1 Chandan Kumar accompanying them on

their motorcycle apart from the fact that the statement of PW-1

to the effect that his motorcycle was hit by Bolero vehicle is not

supported by the ocular evidence on record. In fact, all the

prosecution witnesses have stated in their evidence that Bolero

vehicle had hit the motorcycle which was being driven by the

deceased persons, namely Bambam Chaudhry and Kaushal

Kumar. We also find from the deposition of PW-9 (I.O.) that he

has stated in paragraph no.87 of his cross-examination that he

had not recorded the statement of PW-1 on 23.01.2015 and he

had given a statement based on hearsay as also he is not an eye-

witness to the occurrence. Thus, as far as PW-1 is concerned we

find from the evidence on record that firstly, he is not an eye-

witness to the alleged occurrence and secondly, his testimony is

full of contradictions, hence his testimony cannot be relied upon

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for the purposes of upholding the conviction of the appellant.

58.The other eye witness to the occurrence is stated to be

PW-4 Rajesh Choudhary, hence we now proceed to examine his

testimony. PW-4 has stated in his evidence that the occurrence

dates back to 23.01.2015 at around 12:00 hours while he was at

the place of occurrence. At that time, they were travelling on

two motorcycles, however Bambam (deceased) and Kaushal

(deceased) were going ahead on one motorcycle while he and

Sarwan Kumar (PW-6, i.e. the informant) were following from

behind but in the meanwhile one Bolero vehicle had arrived

there and hit the motorcycle which was ahead, leading to the

said motorcycle falling on the ground and then 5-6 people came

out of the said Bolero vehicle. Thereafter, the appellant i.e.

Rinku Kunwar had shot Bambam Chaudhary and Rahul had

shot Kaushal Kumar. PW-4 has stated that he was present at the

place of occurrence when the firing had taken place. PW-4 has

further stated that the appellant had shot on the head of Bambam

Chaudhary (deceased). In fact, PW-4 has also stated that he has

deposed in Session Trial No.80 of 2017 to the effect that the

accused persons had alighted from Bolero vehicle, whereafter

Rinku had shot Bambam and Rahul had shot Kaushal. In

paragraph no.21 of his cross-examination, PW-4 has stated that

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a dispute was existing from 1-1½ years prior to the incident. In

paragraph no.23 of his cross-examination, PW-4 has stated that

apart from one shot having been fired by Rahul and one shot by

Rinku, he does not know as to who else had fired gunshots. In

paragraph no.29 of his cross-examination, PW-4 has stated that

blood was spilled all over the spot where gunshots were fired on

the deceased. In paragraph no.35 of his cross-examination, PW-

4 has stated that the bullet was shot at point blank range.

59.At this juncture itself, it would be relevant to point out

that Kaushal Kumar (PW-9, i.e. the Investigating Officer) has

stated in his evidence, in paragraph no.88 thereof that PW-4 has

made a statement before him, as has been recorded in paragraph

No. 21 of the case diary, to the effect that six persons armed

with weapons had hit the motorcycle which was being ridden by

both the deceased persons by Bolero vehicle, while he and PW-

6 had moved ahead a bit but they saw that Lali Kunwar had shot

Kaushal Kumar Kunwar on his right leg with the weapon he

was holding in his hand, leading to him falling down on the

ground, whereafter Rinku Kunwar (appellant) had fired gunshot

on the head of Bambam Chaudhary and then Rahul Kunwar as

also Rupesh Kunwar had fired gunshot on the body of Bambam

Chaudhary whereupon, Vidhapati Chaudhary had shot Kaushal

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Kumar Kunwar with the weapon being held by him in his hand.

Thus, we find that the evidence of PW-4 also stands

corroborated by the testimony of Investigating Officer, i.e. PW-

9 and moreover, there is no contradiction much less variance in

the evidence of PW-4 and his statement made before the police

under section 161 of the Cr. P. C.

60.Now coming to the evidence of PW-6 Sharwan Kunwar,

who is the informant of this case, we find that he has stated in

his evidence that the occurrence took place on 23.01.2015 at

12:45 p.m., when the Bolero vehicle came and hit the

motorcycle on which Kaushal Kumar and Bambam Chaudhary

were travelling, whereafter Rinku Kunwar (appellant) and Rahul

had got down from the Bolero vehicle and had fired gunshot

resulting in both the deceased persons sustaining firearm injury

and while Kaushal Kumar died on the spot but Bambam was

quivering after being shot three times. The fardbeyan of PW-6

was recorded by the Sub-Inspector, Jawahar Lal Singh (PW-15)

at Naugachia Hospital. In paragraph no.16 of his cross-

examination, PW-6 has stated that Rinku Kumar (appellant)

with the weapon which he was holding in his hand had shot

Bambam Chaudhary (deceased) and Rupesh Kunwar, with the

weapon in his hand, had fired gunshot on the body of Bambam

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Chaudhary. In paragraph no.32 of his cross-examination, PW-6

has stated that it is not a fact that he has not seen the incident

happening with his own eyes.

61.At this juncture itself, it would be relevant to point out

that Kaushal Kumar (PW-9, i.e. the Investigating Officer) has

stated in his evidence, in his examination-in-chief that he had

recorded the statement of the informant, whereafter seizure lists

and inquest reports were prepared and then the statements of

other witnesses were recorded by him. PW-9 has also deposed

that he had also recorded the restatement of PW-6. Thus, we

find that PW-9 has not disputed either the fardbeyan or the

restatement of PW-6 in his testimony.

62.Having considered the entire prosecution evidence and

upon its careful analysis, we find that the evidence of

prosecution witnesses, especially PW-4 and PW-6 apart from

the evidence of Investigating Officers i.e. PW-9 and PW-15 as

also the doctors i.e. PW-7 and PW-8 are cogent, convincing,

creditworthy and reliable. We find that the date, time, mode and

manner of occurrence have stood proved from the testimony of

PW-4 and PW-6, inasmuch as there is no dearth of ocular

evidence so as to make the same a basis for proving the guilt of

the appellant beyond all reasonable doubt apart from the fact

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that the ocular evidence also stands fully corroborated from the

medical evidence adduced by PW-7 and PW-8, the evidence of

PW-7 being relevant in the present case in as much as the

appellant had shot Bambam Chaudhary. PW-7 upon having

conducted the postmortem examination of the dead body of

Bambam Chaudhary @ Amit Kumar Chaudhary, has found

several ante-mortem injuries, including firearm injury and he

has opined that the death has occurred due to hemorrhage and

shock as a result of the noted injuries caused by firearm which

goes to substantiate the mode and manner of occurrence

depicted by the eye-witnesses, i.e. PW-4 and PW-6 in their

evidence adduced before the learned Trial Court.

63.We also find that no contradictions have been elicited

much less drawn by the defence while cross-examining the

aforesaid witnesses. Thus, there is no reason to doubt the

genuineness of the testimony of the aforesaid witnesses on the

basis of which the learned Trial Court has convicted the

appellant. We further find that the ocular testimony of witnesses

stands corroborated by the medical evidence and the evidence

led in the present case would show that the medical evidence in

fact supports the injuries which have been caused upon the

deceased in the manner alleged, hence the ocular evidence

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cannot be thrown away. In this regard, reference be had to a

judgment rendered by the Hon’ble Apex Court report in the case

of Solanki Chimanbhai Ukabhai v. State of Gujarat, reported

in (1983) 2 SCC 174.

64.Considering the facts and circumstances of the present

case and the evidence which have been brought on record to

prove the allegations levelled against the appellant beyond pale

of any reasonable doubt as well as considering the credibility

and trustworthiness of the evidence of the prosecution which

has not been discredited during the course of cross-examination

coupled with the postmortem report and for the foregoing

reasons, we find that there is nothing to create any doubt in our

minds. We have examined the materials available on record and

do not find any apparent error in the impugned judgment of

conviction and the order of sentence, hence the same does not

require any interference.

65.We may now advert to the submission of the learned

Senior Counsel for the appellant to the effect that all the

circumstances which have emerged during the course of

recording the evidence of prosecution witnesses were not put to

the appellant while recording his statement under Section 313 of

the Cr.P.C., hence the same cannot be used against the appellant.

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We are of the view that a bare perusal of the statement of the

appellant dated 21.09.2019, recorded by the learned Trial Court

under Section 313 of the Cr.P.C. would show that all the

circumstances which can be culled out from the evidence of

prosecution witnesses have been put to the appellant, hence we

do not find any merit in the said argument advanced by the

learned Senior Counsel for the appellant.

66.Accordingly, the present criminal appeal, i.e. Criminal

Appeal (DB) No. 298 of 2020 stands dismissed. The appellant

Rinku Kunwar @ Rohit Kunwar, who is already in custody, is

directed to serve out the remaining sentence.

I agree.

Arun Kumar Jha, J:-

kanchan

(Mohit Kumar Shah, J)

(Arun Kumar Jha, J)

AFR/NAFR AFR

CAV DATE 02.04.2026

Uploading Date 20.08.2026

Transmission Date 20.08.2026