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2023 DIGILAW 1278 (PAT)

Farooque Shahab @ Farooque Saheb v. State of Bihar

2023-11-28

ASHUTOSH KUMAR, NANI TAGIA

body2023
Ashutosh Kumar, J. – We have heard Mr. Devendra Kumar Singh, learned Advocate for the appellant, Mr. Manish Chandra Gandhi, learned Advocate for respondent Nos. 2 to 5 and Mr. Parmeshwar Mehta, learned APP for the State. 2. The father of the deceased, who was examined as P.W. 6 at the Trial, is aggrieved by the judgment and order of acquittal of respondent Nos. 2 to 5 dated 06.04.2023, passed by the learned Sessions Judge, Siwan, in Sessions Trial No. 142 of 2019, arising out of Siwan Town P. S. Case No. 498 of 2018, G.R. No. 4586 of 2018. 3. The FIR was lodged by P.W. 6 alleging that his son/ Feraz Ahmad, who was 18 years old and working as a compounder with Dr. Md. Shadab (P.W. 5) was shot dead while he was coming back home. The deceased died in hospital. 4. In his fardbeyan, P.W. 6 has raised suspicion on respondent Nos. 2 to 5 because of old land dispute with them. 5. A bare reading of the fardbeyan/ statement of P.W. 6 would reveal that P.W. 6 was informed about the occurrence by one Om Prakash, who has not been examined at the Trial and he had named the respondent Nos. 2 to 5 on the basis of suspicion and that also because of an old land dispute with them. 6. During the trial, P.W. 6 himself and P.Ws. 1 and 2, who are the mother and sister of the deceased have claimed to have heard from the deceased that respondent Nos. 2 to 5 were responsible for his death. 7. The Investigating Officer of this case (P.W. 8) has completely denied that witnesses had spoken during the course of investigation about their having heard from the deceased about the participation of respondent Nos. 2 to 5. 8. All the three witnesses, namely, P.Ws. 6, 1 and 2 though claimed that when they met the deceased in the hospital, the deceased was conscious but such tall claims of the afore-noted witnesses falls to the ground when their deposition is scrutinized in some detail. 9. P.W. 6 did not make a correct statement before the Trial Court, which fact becomes evident from a bare reading of the fardbeyan statement where the implication of respondent Nos. 2 to 5 was only on the basis of suspicion. 10. 9. P.W. 6 did not make a correct statement before the Trial Court, which fact becomes evident from a bare reading of the fardbeyan statement where the implication of respondent Nos. 2 to 5 was only on the basis of suspicion. 10. The Trial Court has rightly observed that a dying declaration, if uncontaminated, could be the basis for conviction but not when it replete with doubts. 11. It is normally not expected that all details would be provided by the informant in his fardbeyan but the basic facts about the source of information to him about respondent Nos. 2 to 5 was necessarily to be given in the fardbeyan, if P.W. 6 is to be believed. Had he learnt from the deceased while he was alive that respondent Nos. 2 to 5 had killed him, he would have certainly said so in the fardbeyan. 12. Even the statements of the afore-noted P.Ws. 6, 1 and 2 inter se, there are discrepancies regarding the overt act of killing the deceased. 13. Non-examination of the person who first disclosed about the deceased having been killed by a group of marauders and P.W. 5 in whose employment was the deceased shortly before he died, not knowing about any of the assailants makes the prosecution case highly doubtful. 14. It clearly appears that an attempt has been made by the informant (P.W. 6) to anyhow implicate respondent Nos. 2 to 5 with whom he has enmity. 15. We, therefore, put our imprimatur on the judgment of the Trial Court holding respondent Nos. 2 to 5 to be absolutely innocent. 16. The appeal is dismissed.