Patna High CourtFarooque Shahab @ Farooque Saheb vs The State Of Bihar on 28 November, 2023Author:Ashutosh KumarBench:Ashutosh KumarIN THE HIGH COURT OF JUDICATURE AT PATNA\n                      CRIMINAL APPEAL (DB) No.572 of 2023\n          Arising Out of PS. Case No.-498 Year-2018 Thana- SIWAN CITY District- Siwan\n     ======================================================\n     Farooque Shahab @ Farooque Saheb, Son of Late Saiyad Zahir Hussain\n     Resident of village - Kutub Chapra, P.S. - Hussainganj, Distt. - Siwan\n                                                                  ... ... Appellant/s\n                                        Versus\n1.    The State of Bihar\n2.   Yamini Mohib, Son of Mohibul Haque Resident of village - Kutub Chapra\n     P.S. - Hussainganj, Distt. - Siwan\n3.   Nami @ Arif, Son of Mohibul Haque Resident of village - Kutub Chapra\n     P.S. - Hussainganj, Distt. - Siwan\n4.   Shamshad Ali, Son of Hasan Imam Resident of village - Purani Kila\n     Pokhra, P.S. - Siwan town, Distt. - Siwan\n5.    Firoz, Son of Md. Serajuddin Resident of village - Purani Kila Pokhra, P.S. -\n      Siwan town, Distt. - Siwan\n                                                               ... ... Respondent/s\n     ======================================================\n     Appearance :\n     For the Appellant/s     :       Mr. Devendra Kumar Singh, Advocate.\n                                     Mr. Ajay Kumar Tiwari, Advocate.\n     For the Respondent/s   :        Mr. Parmeshwar Mehta, APP.\n     For the Respondent Nos. 2 to 5: Mr. Manish Chandra Gandhi, Advocate.\n                                     Mr. Navin Kumar, Advocate.\n                                     Mr. Himanshu Ranjan, Advocate.\n     ======================================================\n     CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR\n             and\n             HONOURABLE MR. JUSTICE NANI TAGIA\n     ORAL JUDGMENT(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)\n\n      Date : 28-11-2023\n\n\n                 We have heard Mr. Devendra Kumar Singh,\n\n     learned Advocate for the appellant, Mr. Manish Chandra\n\n     Gandhi, learned Advocate for respondent Nos. 2 to 5 and\n\n     Mr. Parmeshwar Mehta, learned APP for the State.2. The father of the deceased, who was\n\n     examined as P.W. 6 at the Trial, is aggrieved by the\n Patna High Court CR. APP (DB) No.572 of 2023 dt.28-11-20232/5judgment and order of acquittal of respondent Nos. 2 to 5\n\n       dated 06.04.2023, passed by the learned Sessions Judge,\n\n       Siwan, in Sessions Trial No. 142 of 2019, arising out of\n\n       Siwan Town P. S. Case No. 498 of 2018, G.R. No. 4586\n\n       of 2018.3. The FIR was lodged by P.W. 6 alleging that\n\n       his son/ Feraz Ahmad, who was 18 years old and working\n\n       as a compounder with Dr. Md. Shadab (P.W. 5) was shot\n\n       dead while he was coming back home. The deceased died\n\n       in hospital.4. In his fardbeyan, P.W. 6 has raised suspicion\n\n       on respondent Nos. 2 to 5 because of old land dispute\n\n       with them.5. A bare reading of the fardbeyan/ statement of\n\n       P.W. 6 would reveal that P.W. 6 was informed about the\n\n       occurrence by one Om Prakash, who has not been\n\n       examined at the Trial and he had named the respondent\n Patna High Court CR. APP (DB) No.572 of 2023 dt.28-11-20233/5Nos. 2 to 5 on the basis of suspicion and that also\n\n       because of an old land dispute with them.6. During the trial, P.W. 6 himself and P.Ws. 1\n\n       and 2, who are the mother and sister of the deceased\n\n       have claimed to have heard from the deceased that\n\n       respondent Nos. 2 to 5 were responsible for his death.7. The Investigating Officer of this case (P.W. 8)\n\n       has completely denied that witnesses had spoken during\n\n       the course of investigation about their having heard from\n\n       the deceased about the participation of respondent Nos. 2\n\n       to 5.8. All the three witnesses, namely, P.Ws. 6, 1\n\n       and 2 though claimed that when they met the deceased in\n\n       the hospital, the deceased was conscious but such tall\n\n       claims of the afore-noted witnesses falls to the ground\n\n       when their deposition is scrutinized in some detail.9. P.W. 6 did not make a correct statement\n\n       before the Trial Court, which fact becomes evident from a\n Patna High Court CR. APP (DB) No.572 of 2023 dt.28-11-20234/5bare reading of the fardbeyan statement where the\n\n       implication of respondent Nos. 2 to 5 was only on the\n\n       basis of suspicion.10. The Trial Court has rightly observed that a\n\n       dying declaration, if uncontaminated, could be the basis\n\n       for conviction but not when it replete with doubts.11. It is normally not expected that all details\n\n       would be provided by the informant in his fardbeyan but\n\n       the basic facts about the source of information to him\n\n       about respondent Nos. 2 to 5 was necessarily to be given\n\n       in the fardbeyan, if P.W. 6 is to be believed. Had he\n\n       learnt from the deceased while he was alive that\n\n       respondent Nos. 2 to 5 had killed him, he would have\n\n       certainly said so in the fardbeyan.12. Even the statements of the afore-noted\n\n       P.Ws. 6, 1 and 2 inter se, there are discrepancies\n\n       regarding the overt act of killing the deceased.Patna High Court CR. APP (DB) No.572 of 2023 dt.28-11-20235/513. Non-examination of the person who first\n\n                    disclosed about the deceased having been killed by a\n\n                    group of marauders and P.W. 5 in whose employment\n\n                    was the deceased shortly before he died, not knowing\n\n                    about any of the assailants makes the prosecution case\n\n                    highly doubtful.14. It clearly appears that an attempt has been\n\n                    made by the informant (P.W. 6) to anyhow implicate\n\n                    respondent Nos. 2 to 5 with whom he has enmity.15. We, therefore, put our imprimatur on the\n\n                    judgment of the Trial Court holding respondent Nos. 2 to\n\n                    5 to be absolutely innocent.16. The appeal is dismissed.(Ashutosh Kumar, J)\n\n\n                                                                               (Nani Tagia, J)\nmanoj/saurav-AFR/NAFR                NAFR\nCAV DATE                NA\nUploading Date          29.11.2023.\nTransmission Date       29.11.2023.