Insufficient evidence for conspiracy and murder conviction justifies bail for certain appellants.

CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH and HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA ORAL ORDER (Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)

3 22-12-2025 Heard learned counsel for the appellants, Mr. Pratik Mishra as also learned APP for the State, Mr. Ajay Mishra.

2. At the outset, the learned counsel for the appellants seeks not to press the prayer for suspension of sentence and grant of bail qua the appellant No.1 namely Pawan Kumar Mandal, however submits that liberty be reserved to the appellant No.1 to file appropriate petition for suspension of sentence and grant of bail as and when advised.

3. The learned APP for the State has got no objection to the aforesaid prayer made by the learned counsel for the appellants.

4. Accordingly, the prayer for suspension of sentence and grant of bail qua the appellant No.1 namely Pawan Kumar Mandal is dismissed as not pressed for the present, however liberty is reserved to him to file a fresh petition for suspension of sentence and grant of bail as and when advised.

5. The present appeal has been filed against the judgment of conviction and order of sentence dated 04.03.2025 and 7.3.2025 passed by the Ld. Court of District and Additional Sessions Judge III, Banka in Sessions Case No. 256 of 2022, C.I.S. No. 256 of 2022 (arising out of Shambhuganj P.S. Case No. 03 of 2022) whereby and whereunder appellants have been convicted under Section 302 /34 of the Indian Penal Code (hereinafter referred to as the ‘I.P.C.’) and sentenced to undergo imprisonment for life with fine of Rs. 25,000/- each and in the event of non-payment of the same, the appellants have been further directed to undergo one-year simple imprisonment.

6. The records of this appeal have been placed before this Court to consider the prayer of the appellants No. 2 and 3 for suspension of their sentence and release on bail during the pendency of the appeal.

7. The short facts of the case, according to the fardbeyan of the informant namely Mausam Kumari (PW-4), who is the daughter of the deceased Meena Devi is that on 08.01.2022 at about 8:30 am in the morning, her mother, who was posted as ANM (Nurse) at Primary Health Center, Phullidumar Hospital, was going to the hospital like any other day and at about 10:00 am in the morning she received information that near Kaliya Bridge, Gopalpur, her mother has been killed by gunshot firing while she was going to the hospital on a Tempo rikshaw. The informant has further stated that she has full belief that Pawan Kumar Mandal (appellant No.1), Himalaya Kumar, Nandu alias Nandlal Mandal (appellant No.2) and Sulochana Devi (appellant No.3) have conspired and killed her mother. The informant has also stated that earlier in the month of March, 2021, Pawan Kumar Mandal and Himalaya Kumar had fired gunshot on her mother for which one case was lodged at Bath Police Station, Bhagalpur. On the basis of the aforesaid fardbeyan of the informant, Shambhuganj P.S. Case No. 3 of 2022 was registered on 8.1.2022 against the appellants herein and one Himalaya Kumar under Section 302 /120 B/34 of the I.P.C. and under Section 27 of the Arms Act .

8. The learned counsel for the appellants No. 2 and 3 has submitted that in all seven witnesses have been examined on behalf of the prosecution. As far as PW-1, namely Rajesh Kumar Mehta is concerned, he is the brother of the deceased and though he has claimed to be an eye-witness but in his evidence he has stated that firing was made by the appellants and one Himalaya Kumar and in paragraph No.7 and 9 of his cross-examination, he has stated that he was at a distance of half kilometer behind the auto rickshaw on which her sister was travelling as also he had stated before the police that when her sister was shot, he had seen the same from a distance of half kilometer. It is submitted that though PW-1 has alleged that all the appellants and one Himalaya Kumar had fired gunshots on the deceased, however the doctor has found only one entry wound and one exit w