Patna High Court
Brahamdeo Yadav And Ors vs The State Of Bihar on 10 September, 2024
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1163 of 2016
Arising Out of PS. Case No.-52 Year-1991 Thana- SIKANDRA District- Jamui
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1. Sahdeo Yadav, Son of Bhupal Yadav
2. Ramashish Yadav Son of late Dangal Yadav both Resident of Village-
Khewsar, P.S. Sikandra, Dist. Jamui
... ... Appellants
Versus
The State of Bihar
... ... Respondent
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with
CRIMINAL APPEAL (DB) No. 941 of 2016
Arising Out of PS. Case No.-52 Year-1991 Thana- SIKANDRA District- Jamui
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1. Brahamdeo Yadav, Son of Banshi Yadav
2. Yogendra Yadav Son of Brahamdeo Yadav
3. Ram Jee Yadav Son of Bale Yadav
4. Krishna Yadav son of Debu Yadav
5. Lalo Yadav Son of Jitu Yadav
6. Bale Yadav @ Baleshwar Yadav Son of Huro Yadav
7. Narayan Yadav Son of Lachho Yadav
8. Kapil Yadav Son of Horil Yadav All Resident of village-Kheosar P.S.-
Sikandra, District-Jamui
... ... Appellants
Versus
The State of Bihar
... ... Respondent
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Appearance :
(In CRIMINAL APPEAL (DB) No. 1163 of 2016)
For the Appellants : Mr. S.K. Lal, Advocate
Mr. Umesh Prasad, Advocate
For the State : Mr. Sujit Kumar Singh, APP
(In CRIMINAL APPEAL (DB) No. 941 of 2016)
For the Appellants : Mr. S.K. Lal, Advocate
Mr. Umesh Prasad, Advocate
For the State : Mr. Sujit Kumar Singh, APP
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CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE RUDRA PRAKASH MISHRA
Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024
2/52
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 10-09-2024
Both the appeals are filed under Section 374(2) of the
Code of Criminal Procedure, 1973 (hereinafter referred to as 'the
Code') against the judgment of conviction dated 01.09.2016 and
order of sentence dated 03.09.2016, passed by learned 2nd
Additional District & Sessions Judge, Jamui in Sessions Trial
No.442/1991, arising out of Sikandra P.S. Case No.52/1991 dated
28.03.1991whereby the court has convicted all the appellants for the offences punishable under Sections 147, 337, 324 and 302/149 of the Indian Penal Code and appellants Ramashish Yadav, Sahdeo Yadav and Krishna Yadav have also been held guilty for the charge under Section 148 of the Indian Penal Code and further appellants Ramashish Yadav and Sahdeo Yadav have been held guilty for the charge under Sections 3, 4 and 5 of the Explosive Substance Act and all the appellants have been sentenced to undergo R.I. for life under Section 302 read with Section 149 of the Indian Penal Code and to pay fine of Rs.2,000/- each and in default of payment of fine, they have to undergo S.I. for one month. All the appellants/convicts have further been sentenced to undergo R.I. for one year under Section 147 of the Indian Penal Code each and for the offence under Sections 337/149 of the Indian Penal Code three Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 3/52 months each and for the offence under Sections 324/149 of the Indian Penal Code, to undergo R.I. for one year. Appellants/convicts Ramashish Yadav, Sahdeo Yadav and Krishna Yadav have also been held guilty for the charge under Section 148 of the Indian Penal Code and they have further been sentenced to undergo R.I. for two years each. Appellants Ramashish Yadav and Sahdeo Yadav have also been held guilty for the charge under Sections 3, 4 and 5 of the Explosive Substances Act and they have been sentenced to undergo R.I. for five years and a fine of Rs.1000/- each under Section 3 of the Explosive Substances Act and in default of payment fine, they have to undergo S.I. for 15 days. All the sentences of all the appellants have been directed to run concurrently.
2. Learned counsel appearing on behalf of the appellants at the outset submits that appellants, namely, Sahdeo Yadav [appellant no.1 in Criminal Appeal (DB) No.1163 of 2016] and Brahamdeo Yadav [appellant no.1 in Criminal Appeal (DB) No.941 of 2016] have died.
2.1. Therefore, in view of the aforesaid statement, Criminal Appeal (DB) No.1163 of 2016 and Criminal Appeal (DB) No.941 of 2016 stand abated qua appellants, namely, Sahdeo Yadav and Brahamdeo Yadav respectively.
Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 4/52
3. The factual matrix of the present case is as under:-
3.1 Fardbeyan of Sri Yadav came to be recorded on 28.03.1991 at 09:30 hours in his house wherein the informant has stated that on 27.03.1991 at about 08:00 p.m. he, his son Daresh Yadav, brother Mishri Yadav and villagers, namely, Rambalak Yadav, Dashrath Yadav, Jitu Yadav, Dwarik Yadav, Mural Yadav, Daso Yadav etc. were sitting on the roof of his house. In the meantime, Ganouri Yadav came running to his roof in order to save himself and told that some persons were running after him.
Meanwhile, a brick pebble fell there thrown from eastern side upon which they shouted and asked the accused as to why they are throwing bricks. Thereafter Debu Yadav and Krishna Yadav (armed with pistol), Mangal Yadav (armed with pistol), Ramashish Yadav (armed with bomb), Sahdeo (armed with bomb), Bale Yadav, Ramji Yadav, Horil Yadav, Brahamdeo Yadav, Yogendra Yadav, Kapildeo Yadav, Mohan Yadav (armed with bomb), Giro Yadav (armed with bomb), Lalo Yadav, Domu Yadav, Shiva Yadav, Dani Yadav, Rajo Yadav, Mathura Yadav, Saryug Yadav, Bharat Yadav, Chharpan Yadav, Dular Yadav, Kamu Yadav and Narain Yadav surrounded his house and started throwing bricks. It is further stated in the fardbeyan that in order to save themselves, they (the informant side) also started throwing bricks upon which Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 5/52 Debu Yadav ordered to kill them by throwing bombs and Giro Yadav, Mohan Yadav and Ramashish Yadav threw bombs, as a result of which, the son of the informant sustained fatal injuries and fell down on the roof and died after sometime. It is also stated by the informant in his fardbeyan that three Chowkidars of village Sijhouri came to his house. The informant side could not go the police station for giving information about the incident as the accused persons had kept his house surrounded. In the aforesaid occurrence, Dashrath Yadav, Ganouri Yadav, Daso Yadav etc. also sustained injuries. Accused side had enmity with Hari Yadav. The informant was on visiting terms with Hari Yadav for which reason the accused persons hatching a conspiracy and after forming an unlawful assembly surrounded his house brutally killed his son. One live bomb is still lying on the roof.
3.2 After registration of the formal FIR on the basis of the aforesaid fardbeyan, the Investigating Agency started investigation. During course of investigation, the Investigating Officer recorded the statement of the witnesses, collected the documentary evidence and thereafter filed charge-sheet against the appellants.
3.3 The case was exclusively triable by court of sessions and, therefore, the learned Magistrate committed the same Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 6/52 to the concerned sessions court where the same was registered as Sessions Trial No.442/1991.
3.4 During course of trial, the prosecution had examined 9 witnesses, namely, PW-1 Dr. Satyanarain Singh, PW-2 Mural Yadav, PW-3 Rambalak Yadav, PW-4 Daso Yadav, PW-5 Dwarika Yadav, PW-6 Sri Yadav, PW-7 Dr. Prakash Chandra Verma, PW-8 Ganouri Yadav and PW-9 Mishri Yadav. Thereafter further statement of the accused under Section 313 of the Code came to be recorded. After conclusion of the trial, the Trial Court convicted the appellants for the aforesaid offences as stated hereinabove.
3.5 Against the judgment of conviction and order of sentence passed by the learned Trial Court, the appellants have filed the instant appeals.
4. Heard Mr. S.K. Lal for the appellants and Mr. Sujit Kumar Singh, the learned APP for the State.
5. Learned counsel appearing for the appellants in both the appeals mainly submitted that as per the case of the prosecution, the alleged incident took on 27.03.1991 at about 08:00-08:30 P.M. However, fardbeyan was recorded on the next day, i.e., on 28.03.1991 at about 09:30 A.M., after more than 13 hours and thereafter formal FIR was registered at 10:30 A.M. Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 7/52 Learned counsel referred the copy of the formal FIR from which it has been pointed out that the FIR was in fact received by the concerned A.C.J.M. on 30.03.1991, i.e., after more than two days. Thus, it has been contended that the present appellants have falsely been implicated and the FIR is ante-dated. Learned counsel, at this stage, would submit that the investigating agency did not follow the provisions contained in Section 157 of the Code. Learned counsel has placed reliance upon the decision rendered by this Court in the case of Shiv Chandra Tiwari vs. State of Bihar, reported in 2023 (2) PLJR 940.
5.1. Learned counsel for the appellants thereafter referred the deposition of the prosecution witnesses and contended that there are major contradictions, inconsistencies and discrepancies in the deposition of the prosecution witnesses. It is submitted that PW-2 has turned hostile and he has not supported the case of the prosecution. Thereafter it has been contended that from the evidence led by the prosecution, it would reveal that as per the case of the prosecution, PW-8 Ganouri Yadav was standing in his khalihan at about 08:00-08:30 P.M. and he saw Debu Yadav, Krishna Yadav, Ramashish Yadav, Mangal Yadav, Sahdeo Yadav and Gopal Yadav. Debu Yadav, Krishna Yadav and Mangal Yadav were carrying pistols whereas Ramashish Yadav and Gopal Yadav Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 8/52 were having bombs in their hands. The aforesaid persons were saying to kill the said witness and thereafter he ran away from the said place, therefore, the aforesaid persons chased him. He, therefore, entered into the house of Sri Yadav and went to the roof where other 6-7 persons were present. It is further submitted that thereafter all the accused pelted bricks/stones and thereafter threw bombs on the roof as a result of which one person died and four persons sustained injuries. Learned counsel, therefore, submitted that as per the case of the prosecution, the intention was to kill Ganouri Yadav. However, though the accused were having pistols and bombs in their hands, they did not cause any injury to the said witness at the time of chasing him. It is also contended that the height of the house was more than 10 feet and as per the case of the prosecution, stones/bricks as well as bombs were thrown from a distance of 20 feet. However, there was dark at 08:30 P.M. and there was no source of light at the said place and, therefore, it is not believable that the witnesses have identified the accused.
5.2. Learned counsel would further submit that there were different rival groups in the village and the said fact has been admitted by the concerned witnesses. Even the FIRs. Have been filed against the informant side including certain witnesses by the concerned accused persons and the said matters were pending in Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 9/52 the court. Learned counsel, therefore, urged that the present is a case of false implication.
5.3. Learned counsel for the appellants thereafter submitted that in the present case, the Investigating Officer has not been examined by the prosecution as a result of which serious prejudice has been caused to the defence. Learned counsel submits that by putting suggestions to the witnesses, the defence has tried to bring on record the contradictions, however, when the Investigating Officer was not examined by the prosecution, the defence has lost the opportunity to cross-examine the Investigating Officer. It is further submitted that admittedly in the present case, the FIR was received by the A.C.J.M. after a period of two days and, therefore, because of the non-examination of the Investigating Officer, the defence has lost the opportunity to put certain questions to the Investigating Officer with regard to delay in sending the FIR. Thus, prejudice has been caused to the defence. Learned counsel has placed reliance upon the following decisions in support of his contention:
(i) Lahu Kamlakar Patil v. State of Maharashtra, reported in (2013) 6 SCC 417
(ii) Nagendra Singh & Ors. vs. The State of Bihar, reported in 2005 (2) PLJR 581 Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 10/52
(iii) Judgment dated 04.09.2023 rendered by a Division Bench of this Court in Criminal Appeal (DB) No.111 of 1996 (Rambilash Mahto & Ors. vs. The State of Bihar) and analogous matter.
5.4. Learned counsel would thereafter contend that while recording the further statement of the appellants-accused under Section 313 of the Code, all the material evidence led by the prosecution against the accused were not put individually to them and in fact only one general question was put to all the accused. Thus, by not putting all the relevant material evidence to the accused, prejudice has been caused to them. Learned counsel has placed reliance upon following decisions:
(i) Lalan Paswan vs. State of Bihar, reported in 2024 (2) PLJR 483
(ii) Judgment dated 04.09.2023 rendered by a Division Bench of this Court in Criminal Appeal (DB) No.111 of 1996 (Rambilash Mahto & Ors. vs. The State of Bihar) and analogous matter.
5.5. Learned counsel for the appellants further submits that as per provisions contained in Section 7 of the Explosives Substances Act, 1908, no Court shall proceed to the trial of any person for an offence committed under the said Act except with Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 11/52 the consent of the Central Government/District Magistrate. It is submitted that in the present case, consent of the Central Government was not obtained and, therefore, trial is vitiated qua the offence punishable under the said Act and the conviction recorded for commission of the offence under the said Act is to be set aside only on this ground.
5.6. Learned counsel for the appellants, therefore, urged that the prosecution has failed to prove the case against the appellants beyond reasonable doubt and, therefore, both these appeals be allowed and the impugned judgment of conviction and the order of sentence be quashed and set aside.
6. On the other hand, the learned APP for the State has opposed the present appeals. He would mainly submit that there are eye-witnesses including the injured eye-witnesses who have fully supported the case of the prosecution and, therefore, merely because there are minor contradictions and discrepancies in their version, their deposition may not be discarded. It is further submitted that medical evidence also supports the version of the eye-witnesses including the injured eye-witnesses, therefore, the prosecution has proved the case against the appellants beyond reasonable doubt. Thus, the Trial Court has not committed any error while passing the impugned judgment of conviction and Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 12/52 order of sentence.
7. We have considered the submissions canvassed by learned counsel appearing for the parties, we have also perused the materials placed on record, the evidence led by the prosecution and the defence before the Trial Court. From the materials placed on record, it transpires that the prosecution has examined nine witnesses.
8. PW-1, Dr. Satya Narain Singh is the doctor who has conducted post mortem on the dead body of the deceased. He has deposed in his examination-in-chief that on 28.03.1991, he was posted as C.A.S. in Sub-divisional Hospital, Jamui. He found following injuries on the body of the deceased:
(A) There were two lacerated injury sizes about 1/2" x 1/4" x skin deep with black margin on medial aspect of right thigh.
Same type of two injuries with about same size on calves of right leg. There was lacerated wound on left knee joint upon the paternal bone. There was separate two flaps of the skin with some subcutaneous tissues on the same petala with black margin of both skin flaps. There was some poched blood on the wound. The petala of same joint open and was dislocated on the knee joint. The whole of petala bone looking without structure. Some portion of skin of same joint laterally and medially and of the obliteral fossa Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 13/52 lacerated with blackness of margin and there was some clotted blood around that. There was an abrasion back of elbow joint of left upper extremity. There is some clotted blood in the external ear of left side. There is swelling 2" x 1" x just below the left ear of temporal bone of scalp.
(B) On dissection- there was fracture of left temporal bone with injuries of membrane of brain substance with collection of some haematoma in the middle cranial cavity. There is some fullness of interior abdominal wall.
(C) All the injuries are ante-mortem are ante-mortem in nature. The injuries mentioned in both the lower extremity due to some explosive substance and others are due to hard and blunt substance.
(D) Time since death to P.M. examination about 24 hours.
(E) The death in his opinion is due to multiple injury on body and due to shock and haemorrhage and injury to the vital organ.
8.1. During cross-examination, the said witness has stated that he has found rigor mortis developed equally in whole body.
9. Deposition of PW-2, Mural Yadav need not be Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 14/52 examined in detail as he has not supported the case of the prosecution and has been declared hostile by the prosecution.
10. PW-3, Rambalak Yadav has deposed in his examination-in-chief that the occurrence took place on 27.03.1991. At the time of occurrence, he was on the roof of Sri Yadav. At the same time, Ganouri Yadav came running there to hide himself and said that Debu Yadav, Krishna Yadav, Brahamdeo Yadav, Yogendra Yadav, Bale Yadav, Ram Jee Yadav, Horil Yadav, Kapil Yadav, Ramashish Yadav, Sahdeo Yadav, Mangal Yadav, Dharpan Yadav, Dular Yadav, Mohan Yadav, Narain Yadav and Kamo Yadav are chasing him. The accused persons surrounded the roof and started throwing bricks and stones and thereafter Mohan Yadav, Giro Yadav and Ramashish Yadav threw bombs on the roof due to which Ganouri Yadav, Dashrath Yadav, Daso Yadav and Daresh Yadav sustained injuries and Daresh Yadav died.
10.1. During cross-examination, PW-3 stated that besides him, Ganouri Yadav, Daso Yadav, Dashrath Yadav, Daresh Yadav, Murat Yadav, Mahendra Yadav and Dwarik Yadav were also sitting on the roof. They had been sitting on the roof for 15-20 minutes at random. The accused persons who reached there belonged to rival group. They were sitting together on the roof of Sri Yadav. They were not sitting for discussion. At the time when Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 15/52 they were sitting and Ganouri came running, the gate was open but thereafter the door was closed. Throwing of bombs and brick batting continued for one hour. They were in the middle portion of the roof at the time of throwing bombs and brick batting. Countless bombs were thrown. It is further stated by this witness in his cross-examination that they came down from the roof in presence of the accused after Daresh Yadav suffered bomb injuries and no scuffle took place after coming down the roof. The accused were throwing bombs from a distance of 20 feet and the height of roof of Sri Yadav was 10 feet. The injured sustained injuries by means of bombs. This witness further stated that Krishna Yadav also lodged Sikandra P.S. Case No.36/91 in which he was also an accused and that case is still pending. It is stated that whatever he has deposed today, the same has also been stated by him before the police also. He has admitted to have stated before the police that Ramashish Yadav, Mohan Yadav and Giro Yadav threw bombs on the roof causing injuries to Ganouri Yadav, Dashrath Yadav and Daso Yadav.
10. PW-4, Daso Yadav has deposed in his examination- in-chief that the occurrence took place ten years ago on a Wednesday at 08:00 P.M. At that time, he was sitting on the roof of Sri Yadav's house. In paragraph-1, he has disclosed names of 19 Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 16/52 accused persons who came together and started hurling bombs which hit Daresh Yadav and he died due to the same. The witness, Mahendra Yadav, Ganouri Yadav and Dashrath Yadav were injured in the incident. The witness received splinter injury in his legs for which he got himself treated. The witness identifies accused Ramashish and claims to identify others by their face.
10.1. The said witness stated in his cross-examination that it was a bright night and the bombs were hurled from a lane. They were standing in the middle portion of the roof. Bombs were hitting the roof, not the walls and one of them hit Daresh Yadav. Bombs were hurled from a distance of 8-10 cubits from the way to the roof and it continued for 10 minutes during which the prosecution side did not hurled back broken tiles on the accused persons. The family members, wife and brother of Sri Yadav were inside the house. When Ganouri Yadav advised to go to the roof, he went to the roof and he did not conceal himself inside the house as he was not in his senses. 1-2 days before the date of occurrence, Debu Yadav had some altercation with Hari Yadav and Sri Yadav. On the date of incident, nothing had happened except hurling of bombs. He has further stated that Daresh Yadav was a 14 years old child. In all 10-15 bombs were hurled. Bullets were also fired and the empty cartridges had fallen in the lane. He could not get Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 17/52 himself treated as the accused had kept them surrounded. He went to hospital next day at 07:00-08:00 hours. He first approached the police from where he was taken to the doctor. Debu Yadav had lodged a case under Section 107 before the incident. He has denied the suggestion of giving false deposition due to village politics.
11. PW-5, Dwarika Yadav has deposed in his examination-in-chief that the incident took place 11 years ago on a Wednesday at 08:00 P.M. He was on the roof of Sri Yadav's house with Sri Yadav, Mishri Yadav, Balak Yadav etc. At that time, Ganouri Yadav came to them raising alarm that accused Debu Yadav and Krishna Yadav are running after him to kill him. In the meantime, 19 named accused came and pelted bricks and then resorted to hurling bombs. Ramashish Yadav threw bombs due to which Ganouri Yadav, Mahendra Yadav, Daso Yadav and Daresh Yadav were injured. Daresh Yadav received bomb injuries on his knee and chest due to which he died. The accused kept them surrounded whole night. The witness identifies accused Ramashish Yadav and Krishna Yadav and claims to identify others by face.
11.1. During cross-examination the said witness stated that accused Krishna Yadav has lodged a case of bombing against him. He has further stated that the incident in which Daresh Yadav lost his life is an outcome of rivalry between two groups. When Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 18/52 the accused persons pelted pebbles of tiles upon them, they tried to hide themselves inside the house of Sri Yadav. They had no source of light. They continued to stay on the roof for 1-1:30 hours and got down. He had given same statement before Daroga Ji as stated above. He had stated to Daroga Ji that Ganouri Yadav came raising alarm that accused Debu Yadav and Krishna Yadav were after him for killing him. He had also informed that Ramashish had thrown bomb. He had also disclosed that Daresh had sustained injuries on his knee and chest. He has denied the suggestion that no such incident, as stated by him, had actually taken place. He has denied that he is a witness in the case lodged by Nakat Yadav and that he is an accused in 107 case lodged by Debu Yadav bearing Case No.646 M/90.
12. PW-6, Sri Yadav has deposed in his examination- in-chief that he is the informant of this case. His son has been killed. 25 named accused are involved in the crime. Krishna and Debu were having guns, Ramashish had bomb, Sahdeo, Kapil, Brahamdeo and his son had bombs in their hands and others were having bricks. It was 07:00-08:00 hours at night of Hindi month Chaitra. He was at the roof of his house with Horil, Jitu, Mahendra, Mural, Daso, Bhansu and Ganouri. Accused persons came chasing Ganouri who hid himself in his house. The accused Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 19/52 persons started pelting bricks. He forbade them to do so but they did not stop and started hurling bombs. Ramashish hurled a bomb which did not hit the target and fell on the roof. Again Ramashish hurled another bomb which hit his son and he fell down. He took his son to the ground and laid him on a cot. His son was uttering that he will not be alive and will die. Thereafter he died. He started for the police station but as the accused persons had surrounded the village, he could not go to the police station. Next morning the Chowkidar went to the police station and informed about the incident. Police came to the spot and completed the formalities. They also inspected the bombs exploded and unexploded and took the live bomb in a bucket with them. His deceased son was taken by Jamui police where his post-mortem was done. Thereafter the dead body was handed over for performing last rites. Paper work was done on which he put his thumb impression. The witness has identified accused Krishna and Ramashish present in court and claims to identify others by face.
12.1. The said witness has stated in his cross- examination that the accused persons had hurled bombs from the southern side. The three persons outside his family fled away after the incident. Only he, his son and his brother remained there. He has stated that it is his first evidence in the court. He had taken the Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 20/52 names of Shyam Lal, Domu and Ramu Yadav before the police. He has further stated that Daroga Ji came at 08-10 hours in the morning. Police was informed by the Chowkidar. Daroga Ji had visited the roof in presence of the family members. The wife of this witness was also present there. Daroga Ji remained there for two hours and came down with the bomb in a bucket and nothing else. He did not collect the blood fallen on the roof. He has denied the suggestion of giving false deposition and no such incident, as described by him, had actually taken place.
13. PW-7, Dr. Prakash Chandra Verma is the doctor who was posted as M.O. I/c P.H.C. Sikandara on 28.03.1991. The said witness treated injured Ganouri Yadav, Daso Yadav, Dashrath Yadav and Mahendra Yadav on 28.03.1991 and found following injuries on the person of Ganouri Yadav:
(i) Two cuts 1/4" x 1/4" skin deep each on the left half of chest on in posterior aspect at the level of tenth thoresic vertebra
(ii) Cut wound with sharp margin 1/2" x 1/4" x muscle deep with a tin pigment inside it at the level of interior angle of Rt.
Scapula when the arm is adducted.
(iii) Cut wound with sharp margin 1/4" x 1/4" x muscle deep on the posterior lateral aspect of chest 1/2" below and 3"
lateral to the injury no. II Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 21/52
(iv) Cut wound with sharp margin 1" x1/4" x muscle deep with one tin pigment inside it on the left buttock.
Time of injury- Within 24 hours Nature of injury- Simple Nature of weapon- Explosive device which comes out from the explosion of bomb, which may be tin particle. The tin particles were taken out and is now sent to S.P., Munger for the needful after sealing it and signing the packet.
This witness also examined Daso Yadav on the same day and has found following injuries on his person:
(i) Multiple blackish areas on the extension aspect of left forearm and on the lower aspect of arm with a 1/4" diameter swelling around each. It can't be scrub or rubbed.
(ii) Four blackish areas 3 c.m. in diameter with clotted blood over it on the interior and antero lateral aspect of left thigh.
(iii) Multiple blackish spots on the postero lateral aspect of left leg with small swelling around them can't be scrubbed.
(iv) One blackish spot on the marial aspect of Rt. arm in its middle and measure 2 c.m. in diameter with a swelling around it. It can't be scrubbed.
Time of Injury- Within 24 hours Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 22/52 Nature of Injury- Simple Nature of weapon- Explosive device such as particles on the explosion of the bomb.
The said witness further examined Dashrath Yadav and found following injuries on his person:
(i) Eight areas of superficial burn .2 to .4 c.m. in diameter on the lateral and posterior aspect of left thigh, swelling 1 c.m. in diameter around the burnt areas with erythma.
(ii) Lacerated injury over left knee cap 1 1/2" x 1" with a margin around in burnt.
Nature of Injury- Simple Time of Injury- Within 24 hours.
Nature of weapon- Explosive device i.e. particles come out on the explosion of a bomb.
PW-7 also examined Mahendra Yadav on the same day and found following injuries on his person:
(i) Nine areas of superficial burns .2 to .4 c.m. in diameter on the interior and antro lateral aspect of Rt. thigh with swelling and erythma around it.
(ii) Six areas of superficial burn .2 to .3 c.m. in diameter with swelling and erythma around it on the lateral aspect of lower abdomen, just above the iliac crest.
Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 23/52
(iii) Errossion 1/2" x 4" on the posterior aspect on the left 1/2 on back. There is no swelling or erythma. However the margin of skin was blacken which could not be removed by scrubbing.
Time of Injury- Within 24 hours Nature of Injury- Simple Nature of weapon- Explosive device.
13.1. The said witness has stated in his cross- examination that the substance (materials) having explosive character are called explosive substance and if all or some kind of explosive substances is mixed together then it is called explosive. Phosphorus, petro, the naturo sprit, leav clomet aluminium powder, Feric oxide are explosive or not is not known to him. It is further stated that a bomb contains penetrating substance but a cracker does not contain penetrating substance. If a bomb does not contain striking material then it will become cracker. Cracker also causes burn injury.
14. PW-8, Ganouri Yadav has deposed in his examination-in-chief that the occurrence took place in the year 1991 between 08:00-08:30 hours. PW-8 Ganouri Yadav was standing in his khalihan at about 08:00-08:30 P.M. and he saw Debu Yadav, Krishna Yadav, Ramashish Yadav, Mangal Yadav, Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 24/52 Sahdeo Yadav and Gopal Yadav. Debu Yadav, Krishna Yadav and Mangal Yadav were carrying pistols whereas Ramashish Yadav and Gopal Yadav were having bombs in their hands. The aforesaid persons were saying to kill the said witness and thereafter he ran away from the said place. Therefore, the aforesaid persons chased him. He, therefore, entered into the house of Sri Yadav and went to the roof where other 6-7 persons were present. It is further deposed that he told them that the accused are coming to kill him. Ramashish Yadav threw a piece of brick on the roof. Mishri Yadav forbade the accused from throwing bricks. Thereafter the accused persons started hurling bombs towards the roof which hit Daresh Yadav. Daresh Yadav fell down after sustaining bomb injury. It is further deposed by this witness that when they started fleeing away, the accused again hurled a bomb which hit him, Dashrath Yadav, Daso and Mahendra. The Chowkidar told them to go to Sikandara for treatment but they could not go out of fear. Daroga Ji came at about 08:00 A.M. The police interrogated him, Mishri Yadav and Sri Yadav. 18-19 persons were hiding at the scene of incident. It is lastly deposed that none of the accused persons is present today but he claims to identify them.
14.1. The said witness has stated in his cross- examination that the accused side has also lodged a case bearing Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 25/52 Sessions Case No.532/95 against him, Ram Balak Yadav, Jitu Yadav and Dwarika. Debu Yadav had lodged a case under Section 107 of the Code. Krishna Yadav had also lodged a case bearing ST 816/96 against Hari Yadav, Dwarika Yadav, Ram Balak Yadav and Dhiro Yadav. Hari Yadav had lodged a case bearing Case No. C 413/90 against Brahamdeo Yadav etc. and he deposed in the case. This witness has further stated at para-9 of his cross-examination that while he was running away from khalihan, he raised alarm for help. He did not see whether any witness came to his khalihan on his alarm or not. It is also stated that door of Sri Yadav's house was open and he entered into the house and closed the door. There was no fencing around the roof. Blood was spilled due to bomb blast. He showed the blood to Daroga. The Daroga seized the blood stained soil/earth. He did not put his signature on the seizure list. While on way to Sri Yadav's roof and after reaching the roof, he raised alarm for help. Mishri Yadav, Sri Yadav etc. were present on the roof from before. The occurrence continued for 2-5 minutes. His statement was recorded before the police on the same day at the place of occurrence. Though he had stated before the police that Dashrath Yadav had also received minor splinter injuries, he had not stated that Daso and Mahendra had also received such injuries. He has denied the suggestion to have given false Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 26/52 deposition to save his skin from Sessions Case No.532/95 instituted by the accused.
15. PW-9, Mishri Yadav has deposed in his examination-in-chief that deceased Daresh Yadav was his nephew who died of bomb injuries in the incident which took place about 13 years ago. The bombs were hurled on his house. He, his mother, his brother Sri Yadav, Daso Yadav, Mahendra Yadav, Mural Yadav, Jitu Yadav and Dwarika Yadav were sitting on the roof and were performing 'Chaiti Chhath'. Ganouri Yadav came raising alarm that he had an altercation with Debu Yadav and Horil Yadav and nobody else was involved. Bricks were pelted by unknown followed by bombs. Daresh sustained bomb injuries on both his legs and he fell down and died. Daso, Mahendra, Horil, Dashrath and Ganouri had also received bomb injuries. The accused persons also threatened them not to move outside otherwise they would hurl bombs on them. As such, they could not do anything whole night. Next morning they submitted a written complaint in the police station. Daresh was brought to Jamui for post-mortem. After post-mortem his dead body was cremated. The hurled bombs had remained there. Daroga Ji had collected splinters. He has not identified the accused present in court due to poor eye sight.
15.1. The said witness has stated in his cross- Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 27/52 examination that he is deposing voluntarily. Debu Yadav has died. He does not remember whether he was interrogated by Daroga Ji or not. He stays outside and only comes to his village for performing Chhath. Sri Yadav is his brother and no case was fought between Sri Yadav and Debu Yadav.
16. We have re-appreciated the evidence led by the prosecution before the Trial Court. We have also considered the submissions canvassed by learned counsel appearing for the parties. From the evidence led by the prosecution, it would emerge that as per the case of the prosecution, the alleged incident took place on 27.03.1991 at about 08:00-08:30 P.M. However, it is not in dispute that fardebeyan of the informant was recorded on 28.03.1991 at about 09:30 A.M., i.e., after more than 13 hours. Formal FIR was registered at 10:30 A.M. From the record, it would further reveal that the said FIR was received by the concerned ACJM on 30.03.1991, i.e., after more than two days. It is the specific contention of learned counsel for the defence that the FIR is ante-dated and the present appellants have falsely been implicated in the incident in question. At this stage, we would like to refer the decision rendered in the case of Shiv Chandra Tiwari (supra) wherein the Division Bench of this Court in paragraph-11 has observed as under:
11. "With reference to issue No. II, it would be Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 28/52 pertinent to take note that the F.I.R. in connection with the present case was lodged on 01.01.1990 at about 06:00 p.m., but it was received by the jurisdictional Magistrate on 05.01.1990 after a lapse of three days. During the course of trial, attention of P.W. 11 i.e. the investigating officer was drawn with regard to such delay in dispatching of FIR, but no explanation whatsoever has been given. Such unexplained delay of three days in dispatching FIR to the Magistrate is in teeth of section 157 of Code of Criminal Procedure, 1973 which provides that the F.I.R. must be dispatched to the area Magistrate 'forthwith'. The objective behind insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the incident and to make the investigation just and fair and to avoid any possible foul play. With the passage of time and delay in lodging of FIR, the spontaneity gets lost and there is always a chance of an exaggerated version of the incident being presented. The requirements of section 157 Cr.P.C. cannot be considered to be mere technical formalities.
Rather, the procedural requirements are the procedural safeguards provided to prevent excesses by the police machinery. Non-compliance with such procedural requirements per se amounts to failure of justice." 16.1. Thus, from the aforesaid decision rendered by the Hon'ble Supreme Court, it can be said that the the requirements of section 157 Cr.P.C. cannot be considered to be mere technical formalities. Rather, the procedural requirements are the procedural safeguards provided to prevent excesses by the police machinery. Non-compliance with such procedural requirements per se amounts to failure of justice. The unreasonable delay casts dark clouds of suspicion and is fatal to the case of prosecution. Keeping Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 29/52 in view the aforesaid decision, if the facts of the present case are examined, we are of the view that there was a delay of more than two days in dispatching the FIR to the concerned ACJM for which no explanation has been rendered by the prosecution. In fact, in the present case, the Investigating Officer has not been examined and, therefore, also the defence has lost the opportunity to cross- examine the said Investigating Officer on the aforesaid aspect. Thus, we are of the view that in the present case non-compliance with the aforesaid procedural requirements made under Section 157 of the Code amounts to failure of justice and such delay casts dark clouds of suspicion and is fatal to the case of prosecution.
17. PW-1 is the doctor who had conducted the post- moretem on the dead body of the deceased. As per the opinion given by the said doctor, the death is due to multiple injuries on body and due to shock and hemorrhage and injuries to the vital organ. PW-2 has not supported the case of the prosecution. PW-3 has deposed that the said witness along with other persons were sitting on the roof. At that time, Ganouri came running and the gate of the house was open but thereafter the door of the house was closed. It is specific case that throwing of bombs and brick batting continued for one hour and countless bombs were thrown. The said witness further deposed that the accused were throwing Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 30/52 bombs from a distance of 20 feet and the height of roof of the house was 10 feet. However, at this stage, if the cross-examination of PW-4 is carefully examined, it is revealed that the said witness has stated that bombs were hurled from a distance of 8-10 cubits from the way to the roof and it continued for 10 minutes. He further said that in all 10-15 bombs were hurled, bullets were also fired and the empty cartridges had fallen in the lane. Further, PW-5 has stated during cross-examination that the incident in which Daresh Yadav lost his life is an outcome of rivalry between two groups. When the accused persons pelted pebbles of tiles upon them, they tried to hide themselves inside the house of Sri Yadav. There was no source of light. PW-6 Sri Yadav, the informant has deposed that the police came to the spot on the next day and completed the formalities. The Investigating Officer inspected the bombs exploded and unexploded and took the live bomb in bucket with them. The said witness further stated that Daroga Ji collected the blood fallen on the roof. PW-8 Ganouri Yadav specifically stated during cross-examination that blood was spilled due to bomb blast. He showed the blood to Daroga. The Daroga seized the blood stained soil/earth. However, he did not put his signature on the seizure list. He further stated that occurrence continued for 2-5 minutes.
Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 31/52 17.1. Thus, from the aforesaid deposition of the prosecution witnesses, it can be said that there are major contradictions, inconsistencies and discrepancies in the deposition with regard to the manner of occurrence and with regard to collection of the blood from the place of occurrence as well as with regard to the empty cartridges found in the lane.
18. Thus, in the aforesaid background, it is required to be noted that in the present case, the prosecution has failed to examine the Investigating Officer and it is specific case of the appellants-accused that because of non-examination of the Investigating Officer, they lost the opportunity to cross-examine him and prejudice has been caused to them.
19. In the case of Rambilash Mahto & Ors. (supra), the Division Bench of this Court has observed in paragraph-13 as under:
"13. So far, the second issue is concerned, it is a matter of record that the Investigating Officer of the present case has not been examined. It is a trite principle of law that mere non-examination of the Investigating Officer would not entail any benefit to the accused unless it is shown that such non-examination has caused prejudice to the case of the accused. However, in the facts of the present case, none of the prosecution witnesses have stated in their depositions that the Investigating Officer (I.O.) had inspected the place of occurrence. Remarkably, the judgment records at para-6 that the I.O. did the inspect the place of occurrence and recorded Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 32/52 the statement of witnesses. Further, PW 5 in his deposition has stated that blood was present at the scene of incident. Thus, it becomes relevant to examine the I.O. of the case to elicit the incriminating material, which has been gathered against the appellants during investigation and the mode thereof. Also, during the trial, prosecution witnesses admitted that the appellants had filed a counter case relating to the same occurrence against them. However, they consistently denied that the appellants had suffered any injuries during the occurrence. Thus, the examination of the Investigating Officer was necessary to ascertain the truthfulness of the incident, as he could have provided crucial information regarding the details of the counter-case and whether the appellants sustained injuries during the same transaction. Further, Due to non- examination, the appellants have also been deprived of the opportunity to bring on record the material contradictions and improvement made by the witnesses in their depositions. Therefore, in such circumstances, the examination of the Investigating Officer becomes important as he would have been the most competent witness to throw light on the manner in which the investigation was carried out and to explain the entire gamut of evidence brought on record. However, the prosecution has, without any explanation, not examined the Investigating Officer of this case which has caused prejudice to the case of the defence and is fatal to the case of prosecution. At this stage we would gainfully rely on the case of State of Karnataka versus Bhaskar Kushali Kotharkar And Ors., (Cr. Appeal no. - 498 of 1998) wherein the Hon'ble Supreme Court while highlighting the importance of examination of Investigating Officer, observed:
"It is true that as a part of fair trial the investigating officer should be examined in the trial cases especially when a serious sessions trial was being held against the accused. If any of the prosecution witnesses give any evidence contrary to Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 33/52 their previous statement recorded under Section 161 Cr.P.C. or if mere is any omission of certain material particulars, the previous statement of these witnesses could be proved only by examining the investigating officer who must have recorded the statement of these witnesses under Section 161 Cr.P.C."
We also put reliance on the decision rendered by Hon'ble Supreme Court in the case of Ravishwar Manjhi v. State of Jharkhand, reported in (2008) 16 SCC 561, wherein the Hon'ble Apex Court in paragraph 27 has held as follows:
"27. The investigating officer in a case of this nature should have been examined. His examination by the prosecution was necessary to show that there had been a fair investigation. Unfortunately, even no site plan was prepared. There is nothing on record to show as to the exact place where the occurrence had taken place. It is stated that the house of the parties is divided by a road. If that be so, it was all the more necessary to pinpoint the exact place of occurrence to ascertain who was the aggressor."
Therefore, applying the aforesaid proposition of law as held by the Hon'ble Supreme Court in the given facts of the case, we reach to the conclusion that in the present case, the non-examination of the Investigating Officer undeniably prejudiced the defence of the appellants, as the actual place of occurrence remains unverified, and the appellants have been deprived of the opportunity to challenge the credibility of the prosecution witnesses through questioning of the Investigating Officer. Therefore, in our considered opinion, the failure to examine the Investigating Officer in this case constitutes a significant flaw that has resulted in prejudice to the case.
Accordingly, the Issue No. II is decided in affirmative."
19.1. Keeping in view the aforesaid decisions, if the Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 34/52 facts of the present case are examined, it is revealed that in the present case, contradictions have been brought on record and there is a delay of more than two days in dispatching the FIR to the concerned ACJM. Further, some of the witnesses said that blood was collected by the Investigating Officer from the roof whereas the informant himself has stated that the Investigating Officer did not collect any blood from the roof. In such a situation, non- examination of the Investigating Officer has caused prejudice to the defence.
20. It is also revealed from the record that the prosecution has admitted that there are two different groups in the village and PW-5 specifically admitted during cross-examination that the incident in which Daresh Yadav lost his life is an outcome of rivalry between two groups. It is also revealed from the deposition of the prosecution witnesses that one of the accused, namely, Krishna Yadav also lodged Sikandra P.S. Case No.36/91 in which PW-3 is shown as an accused. Further, PW-4 has also admitted during cross-examination that Debu Yadav had lodged a case under Section 107 of the Code before the incident. Similarly, PW-5 has denied the suggestion that he is a witness in the case lodged by Nakat Yadav and he is an accused in 107 case lodged by Debu Yadav bearing Case No.646 M/90. Further, PW-8 Ganouri Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 35/52 Yadav had also admitted during cross-examination that the accused side has also lodged a case bearing Sessions Case No.532/95 against him, Ram Balak Yadav, Jitu Yadav and Dwarika. Debu Yadav had lodged a case under Section 107 of the Code. Krishna Yadav had also lodged a case bearing ST 816/96 against Hari Yadav, Dwarika Yadav, Ram Balak Yadav and Dhiro Yadav. Hari Yadav had lodged a case bearing Case No. C 413/90 against Brahamdeo Yadav etc. Thus, from the aforesaid deposition of the prosecution witnesses, it can be said that the accused side has also filed various cases against the informant side and, therefore, there are all chances of false implication of the present appellants.
21. Further, as per the case of the prosecution, Ganouri Yadav was standing in his khalihan and at that time he saw Debu Yadav, Krishna Yadav, Ramashish Yadav, Mangal Yadav, Sahdeo Yadav and Gopal Yadav. Debu Yadav, Krishna Yadav and Mangal Yadav were carrying pistols whereas Ramashish Yadav and Gopal Yadav were having bombs in their hands. The aforesaid persons were saying to kill the said witness and thereafter he ran away from the said place. The other accused chased him. However, surprisingly, though the accused were having pistols as well as bombs in their hands, they did not fire from the same nor throw Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 36/52 bomb on Ganouri Yadav and surprisingly when he reached on the roof of Sri Yadav, the accused started pelting stones/bricks and hurled bombs on the roof. Further, it is admitted by the prosecution witnesses that there was no source of light at the said place and, therefore, it is difficult to believe that the prosecution witnesses have identified the accused from a distance of 20 feet and more particularly when they were standing on the roof at the height of 10 feet. The alleged incident took place at about 08:00-08:30 P.M. Thus, we are of the view that the prosecution has failed to prove the case against the accused beyond reasonable doubt.
22. At this stage, we would like to refer the decision rendered by a Division Bench of this Court in the case of Lalan Paswan (supra) wherein the Division Bench observed in paragraphs-36 to 38 as under:
"36. Yet another aspect of the matter remains to be discussed. It appears that when the statements of the accused were recorded under Section 313 Cr.P.C., their attention was not drawn towards all the incriminating circumstances and the materials which were brought by the prosecution against them. All the accused were asked the same and one question repeatedly. For the sake of ready reference, this Court would reproduce one sample copy of the statement under Section 313 Cr.P.C. as under:-
"iz"u %& D;k xokgh dk cs;ku lquk gS\ mŸkj %& th gk¡A iz"u %& vkiyksxksas ds fo:) lk{; gS fd fnukad 27-3-97 dh jk=h esa vkse izdk"k ik.Ms; mQZ eUVq Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 37/52 vius xk¡o esa Mªkek ns[kus x;k Fkk ,oa Mªkek ns[kdj jkf= lqcg 2½-3 cts fnukad 28-3-97 dks ?kj okil vk;k rks vkiyksx ,d lkekU; vk"k; ls vxzlj.k esa mldk vigj.k dj fn;k rFkk fQjkSrh dh ekW¡x djus yxs\ mŸkj %& th ughaA iz"u %& ;g Hkh lk{; gS fd iqfyl }kjk vkse izdk"k ik.Ms; mQZ eUVq dks yyu ikloku ds ?kj ls dqN vigj.kdrkZvksa ds lkFk cjken fd;k x;k\ mŸkj %& th ughaA iz"u %& lQkbZ esa dqN dguk gS\ mŸkj %& "
37. From a bare reading of the statement under Section 313 Cr.P.C. put to the accused, it would appear that many incriminating circumstances were not at all put to them. For example, in case of Rabindra Chaubey, PW-7 has stated that he had heard the kidnappers talking about him that he had done everything fine. This incriminating circumstance was not put to Rabindra Chaubey. Similarly, while putting question no. 2, a vague question was put to the accused persons saying that Om Prakash Pandey @ Mantu was recovered from the house of Lalan Paswan with some kidnappers. Who is that Lalan Paswan and who were those kidnappers said to have been arrested from his house are not disclosed. While putting question to Lalan Paswan of Village- Turki, again a stereotype question was put to him and he was told that Om Prakash Pandey @ Mantu has been recovered from the house of Lalan Paswan with some kidnappers. If it was his house from where the recovery was made, the prosecution would have clearly informed him that it was his house from where the recovery was made but that was not done. The circumstance that Shiva Nand Bind was arrested from the house while recovering PW-7 and the Police had also seized one gun and three cartridges were not put to the accused persons.
38. The Hon'ble Supreme Court as well as this Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 38/52 Court has repeatedly highlighted the importance of a statement under Section 313 Cr.P.C. and the purpose behind giving that opportunity to an accused. In this regard, the Hon'ble Supreme Court in the case of Sukhjit Singh vs. State of Punjab reported in (2014) 10 SCC 270, has, while putting emphasis on the compliances with the requirement of Section 313 Cr.P.C., observed in paragraph '12' and '13' as under:-
"12. In Hate Singh Bhagat Singh v. State of Madhya Bharat1 Bose, J. speaking for a three-Judge Bench highlighting the importance of recording of the statement of the accused under the Code expressed thus: (AIR pp. 469-70, para8) "8. Now the statements of an accused person recorded under Sections 208, 209 and 342, Criminal Procedure Code are among the most important maters to be considered at the trial. It has to be remembered that in this country an accused person is not allowed to enter the box and speak on oath in his own defence. This may operate for the protection of the accused in some cases but experience elsewhere has shown that it can also be a powerful and impressive weapon of defence in the hands of an innocent man. The statements of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box."
13. The aforesaid principle has been reiterated in Ajay Singh v. State of Maharashtra 5, in following terms: (SCC pp. 347-48, para 14) "14. The word 'generally' in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 39/52 any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give."
23. In the case of Rambilash Mahto & Ors. (supra), the Division Bench of this Court has observed in paragraphs-10 to 12 as under:
"10. With reference to the first issue as formulated above, we have given out anxious consideration to the examination of the accused persons under Section 313 of Cr.P.C. It is trite law that the examination of accused under this section should not be held in a perfunctory manner. The accused must be afforded reasonable opportunity to explain the circumstances appearing against him. Therefore, while examining the accused, trial Court should be mindful of the object underlying this provision. The Hon'ble Supreme Court, through a series of judgments, has consistently underscored the significance of Section 313 of the Cr.P.C., which grants accused individuals a valuable right to establish their Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 40/52 innocence. In the case of Reena Hazarika v. State of Assam, reported in (2019) 13 SCC 289, the Hon'ble Apex Court has held the following:
"19. Section 313 CrPC cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to es- tablish his innocence and can well be consid- ered beyond a statutory right as a constitu- tional right to a fair trial under Article 21 of the Constitution, even if it is not to be consid- ered as a piece of substantive evidence, not be- ing on oath under Section 313(2) CrPC...."
Further, in the case of Jai Prakash Tiwari vs. State of Madhya Pradesh reported in 2022 SCC OnLine SC 966, the Hon'ble Supreme Court has observed the following:
20. This Court in the case of Satbir Singh v.
State of Haryana, (2021) 6 SCC 1, while em-
phasising upon the significance of Section 313 CrPC, has delineated the duty of the trial Court and held thus:
"22. It is a matter of grave concern that, often, trial courts record the statement of an accused under Section 313 CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defence. It ought to be noted that the examination of an accused under Section 313 CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness. This provision incorporates the valuable principle of natural justice -- "audi alteram partem", as it enables the accused to offer an explanation for the incriminatory material appearing against him. Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 41/52 Therefore, it imposes an obligation on the part of the court to question the accused fairly, with care and caution. The court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defence, since the inception of the trial, with due caution..."
(emphasis supplied)
26. The purpose of Section 313 CrPC is to provide the accused a reasonable opportunity to explain the ad- verse circumstances which have emerged against him during the course of trial. A reasonable opportunity en- tails putting all the adverse evidences in the form of questions so as to give an opportunity to the accused to articulate his defence and give his explanation.
27. If all the circumstances are bundled together and a single opportunity is provided to the accused to explain himself, he may not able to put forth a rational and in- telligible explanation. Such, exercises which defeats fair opportunity are nothing but empty formality. Non- fulfilment of the true spirit of Section 313 may ulti- mately cause grave prejudice to the accused and the Court may not have the benefit of all the necessary facts and circumstances to arrive at a fair conclusion."
Now, we will apply the principles enunciated in the aforementioned legal precedents, to the facts of the present case. Learned counsel for the appellants contended that the charge framed by the learned Court below was improper and defective, and even worse, when the Court was examining the appellants. Before we address this contention, it is imperative for us to review the charges framed under section 302/34 and 302/149 I.P.C. against the appellants by the learned court be- low.
Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 42/52 CHARGE UNDER SECTION 302/34 I.P.C.
"That you, on or about the 29th day of August, 1980 at village- Dumra, tola Dhalia, P.S.- Andhratharhi, within district- Madhubani, in furtherance of common intention did commit murder by intentionally or knowingly causing the death of Mahant Mahto."
CHARGE UNDER SECTION 302/149 I.P.C.
"That you, on or about the 29th day of August, 1980 at village- Dumra, tola Dhalia, P.S.- Andhratharhi, within district- Madhubani, were members of an unlawful assembly, and in the prosecution the common object of which, viz in as- saulting Hareram Mahto (the informant), Dovi Mahto S/o Lukhai Mahto, Fekan Yadav, Udai Chandra Mahto, Kusiahi Paswan, Dovi Mahto S/o Girdhari Mahto, and to cause the murder of Mahant Mahto, accused Ramdeo Mahto, Ramasis Yadav and Bhagwat Mahto who were members of the unlawful assembly, committed the murder of the said Mahant Mahto and you are thereby under section 149 I.P.C. guilty of causing the said offence of murder punishable under section 302 I.P.C."
11. As is evident from the reading of the above indicated charges that there is conspicuous absence of any weapons with which the accused persons had intentionally and knowingly caused the death of Mahant Mahto and assaulted others. Thus, charges under sections 302/34, 302/149, 323, 325/34 and 147 of the Penal Code fail to clarify whether the appellants were accused of using the same weapon, different weapons, or no weapon at all in committing the offense. Con- cerning the other charges, namely those under section 324 I.P.C. and section 148 I.P.C., they mention the use of Gadasa and Bhala as weapons. However, on turning our attention to the questions posed to the appellants during their examination under Section 313 of the Cr.P.C. by the learned trial Court, we have found that the statements of the appellants were simulta- Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 43/52 neously recorded, and the same set of questions were posed to all the appellants. The whole of the questions put to the ac- cused Ramashis Yadav is extracted herein below:
EXAMINATION OF ACCUSED RAMASHIS YADAV i~j"ku& xokgksa dk c;ku gS dh fnukad 29&08&80 dks vki vU; eqnky;ksa ds lkFk uktk;t etek cukdj naxk Qlkn fd;k rFkk egUFk egrks dh gR;k dj Mkyh vkSj gjs jke egrks] Mkseh egrks] Qsdu ;kno bR;kfn dks ekjk ihVkA vkidks bl laca/k esa dqN dguk gS\ mŸkj& ugha i~j"ku& lQkbZ esa vkidks dqN dguk gS\ mŸkj& fy[kdj nsaxsA
12. From the analysis of the questions posed, it appears that the suggestions which have been put forth show a general and omnibus allegation on the appellants in regard to the commission of offence and no suggestions have been put to the appellants with respect to their individual act in the com- mission of offence for which they have been charged and con- victed. Additionally, the questions completely omit any men- tion of the weapons the appellants were purportedly involved with in committing the offenses. Upon the conjoint reading of the charges and the questions posed under section 313 Cr.P.C., it is sufficiently clear that neither the charges under sections 302/34, 302/149, 323, 325/34 and 147 of the Penal Code nor the questions put forth in examination under section 313 Cr.P.C. specify the weapons used by each of the appellants. Secondly, the charges under section 148 and section 324 of the penal code did specify the Gadasa and Bhala to be the only weapons used, but the question put forth in the examination under section 313 Cr.P.C. make no mention of any assault weapons. Thus, it could never be said that appellants were suf- ficiently informed about what they were required to explain re- garding the circumstances that could have appeared against each of them. Hence, the questions framed by the trial court do Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 44/52 not serve the intendment of Section 313 of the Code. The coor- dinate bench of this court in Baleshwar Sah vs. The State of Bihar reported in 2010 SCC OnLine Pat 139 has held in para- graph 16 of the judgment as follows:
"16. We have already extracted the de-
scription of charge no. 1 and whole of question no. 2 put to appellants Baleshwar Sah during his examina- tion under Section 313 Cr. P.C. We could, in one line, say that the two did not go hand in hand as was re- quired by the Supreme Court in the case of Hate Singh Bhagat Singh (Supra). The charge, firstly, does not specify that appellant Baleshwart Sah had intentionally and knowingly committed the murder of Kalhi Devi by assaulting her with Dabia. The charge rather reads as if Dabia had been used by all the four appellants and thereby Kalhi Devi had been murdered. As against the above, when appellants Baleshwar Sah or other appel- lants were being examined under Section 313 Cr. P.C. question no. 2 was intentionally put to each of them and as may appear from the extracted question already quoted above, that the weapon Dabia did not appear in that question rather it was lathi and bhala which were the weapons said to have caused the murder of Kalhi Devi which was put to appellant Baleshwar Sah as be- ing used in causing her death. The question was com- pletely in infraction of the charge framed against the accused generally and appellants Baleshwar Sah par- ticularly. We do not have any hesitation in upholding the contention of Shri Kumar that the whole exercise was not only misconceived but completely in arrogance of the decision of the Supreme Court. It could never be said that it was sufficient for the appellants to know clearly as to what they were required to explain as to the circumstances which could have appeared against Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 45/52 each of them or any of them on evidence adduced by the prosecution. The result of the faulty examination under Section 313 Cr. P.C. could be that the accused could be acquitted. The Court may also record that the trail has been vitiated because the examination of the accused at the end of the trial really prejudiced the ac- cused in conveying to him or to them as to what was required by them to be explained. The above defect, in our opinion, entitles the appellants to acquittal in spite of the fact that the evidence on record appears com- plete and acceptable."
Even if we assume that the defect or irregularity could be rectified, the crucial consideration arises: Can the ap- pellants-accused be reasonably expected to elucidate the men- tioned circumstance at this juncture? Over 42 years have elapsed since the incident occurred. Given the significant pas- sage of time, it would be unjust to compel the appellants, at this advanced stage, to revisit the case and provide further statements under Section 313 of the Cr.P.C. Considering the specifics of the case, it is unreasonable to demand answers per- taining to an event that transpired 42 years ago. Therefore, in the light of law laid down by the Hon'ble Supreme Court and from appreciation of evidence on record, this Court has come to the conclusion that the appellants have been denied a fair opportunity to defend their case and thereby a prejudice has been caused to the appellants, that would be no doubt a serious infirmity.
Accordingly, the issue no. I is decided in affir- mative."
23.1. Now, keeping in view the aforesaid decisions, if the further statement of the accused recorded under Section 313 of the Code is examined, the following questions were put to Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 46/52 them:
"iz"u%& D;k vkius xokgu dk c;ku lquk\ mRrj%& th gk¡ iz"u%& xokgu dk dFku gS fd vkius fnukad& 27-03-1991 dks 8%30 cts jkf= esa eqnbZ Jh ;kno is0& rjax ;kno] lkfdu& [kslj] Fkkuk& fldUnjk] ftyk&teqbZ ds ?kj dks ?ksj dj bZaVk pykus yxs rFkk ce Qsds] ftlls Jh ;kno dk iq= njs"k ;kno dh e`R;w gks x;hA mRrj%& th ugha iz"u%& D;k lQkbZ esa dqN dguk gS\ mRrj%& thA lQkbZ lk{; nsaxsA"
23.2. It is relevant to note that the aforesaid questions were asked to all the appellants-accused. Thus, we are of the view that all the material evidence was not put to the accused while recording the statement under Section 313 of the Code. Thus, it cannot be said that appellants were sufficiently informed about what they were required to explain regarding the circumstances that could have appeared against each of them. Hence, the ques- tions framed by the trial court do not serve the intendment of Sec- tion 313 of the Code. Thus, the appellants have been denied a fair opportunity to defend their case and thereby a prejudice has been caused to the appellants, that would be no doubt a serious infir- mity.
24. Another contention taken by learned counsel for the appellants is that in the present case, the prosecution has Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 47/52 failed to obtain the consent of the Central Government/District Magistrate as per Section 7 of Explosives Substances Act and, therefore, trial is vitiated qua the commission of the offence pun- ishable under the said Act. In support of the said contention, learned counsel has referred the impugned judgment and pointed out that the aforesaid contention was taken before the Trial Court however, the same has not been dealt with by the Trial Court. Learned APP has also verified the Trial Court record and fairly submitted that the prosecution has failed to obtain the consent of the Central Government/District Magistrate before proceeding with the appellants before the Trial Court.
24.1. At this stage, we would like to refer the provi- sions contained in Section 7 of the Explosives Substances Act which provides as under:-
"7. Restriction on trial of offences.- No Court shall proceed to the trial of any person for an offence against this Act except with the consent of the 1[District Magistrate]."
24.2. From the aforesaid provision, it can be said that no Court shall proceed to the trial of any person for an offence against this Act except with the consent of the District Magistrate. (It is relevant to note that prior to amendment made on 1-2-2002, the word Central Government was used in place of District Mag- istrate). In the present case, admittedly no such consent was ob- Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 48/52 tained from the Central Government.
24.3. At this stage, we would also like to refer the de- cisions on this point. In the case of State of T.N. versus Sivarasan alias Raghu alias Sivarasa & Ors., reported in (1997) 1 SCC 682 wherein the Hon'ble Supreme Court has ob- served in paragraph-28 as under:
"28. With respect to the finding regarding sanc- tion we are of the opinion that the learned Sessions Judge was not right in treating it as not legal and valid. Section 7 does not require a sanction but only consent for prosecuting a person for an offence under the Explosive Substances Act. The object of using the word "consent" instead of "sanction" in Section 7 is to have a purely subjective appreciation of the matter before giving the necessary consent. To prove the consent the prose- cution had examined PW 52 Balachandran who was then act- ing as the PA of the District Collector. He has deposed about the requisition sent by the investigating officer and the reports and other documents sent along with it and consideration of the same by the District Collector before giving his consent. In his cross-examination he stated that he had not noticed in the relevant file statements of witnesses. Relying upon this answer given by the witness the learned Sessions Judge held that in absence of such statements the District Collector cannot be said to have applied his mind properly to the facts of the case before granting the sanction. From the evidence of the witness and the copy of the proceedings of the Collector it appears that the Inspector of Police had sent his report regarding the evi- dence collected by him together with a copy of the FIR, the re- ports of the Forensic Department and other connected record. Thus, the Mahazars under which the "explosive substances"
recovered and seized by the police from different accused were Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 49/52 placed before the Collector and on consideration of all that ma- terial the Collector had given his consent. We do not think that for obtaining consent of the Collector for prosecuting the ac- cused for the offence punishable under the Explosive Sub- stances Act it was necessary for the investigating officer to submit the statements of witnesses also, who had deposed about the movements of the accused and their activity of man- ufacturing bombs and grenades. We, therefore, hold that the consent given by the Collector was quite legal and valid." 24.4. In the aforesaid case, the Hon'ble Supreme Court has observed with regard to the object of using the word "consent" inspite of "sanction" in Section 7 of the Act. In the said case, prior consent was obtained and, therefore, it was held that consent given by the Collector in the said case was quite legal and valid.
24.5. A Division Bench of this Court in Cri. Appeal No. 111 of 1995 in the case of Shobrati Mian and Ors. Vs. The State of Bihar has observed in paragraph-3 as under:
"3. So far as the conviction of the appellant No. 1 under Section 3 of the Explosive Substances Act is con- cerned, the same is non-est for the reason that no proper sanc- tion for prosecution of this appellant was accorded, as required by Section 7 of the Explosive Substances Act. In this case con- sent for his prosecution was given by the District Magistrate of Godda who is not competent to grant sanction. It is clear from Section 7 of the Explosive Substances Act, 1908 that consent for prosecution is to be granted by the Central Government or by the State Government by virtue of the powers delegated by this Act. This question was considered by the Punjab High Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 50/52 Court in AIR 1971 Punjab 246 and 1982 Cr.L.J. 2020. A learned Single Judge of this Court in the case of Jagat Narayan Upadhya v. State of Bihar (MANU/BH/0349/1992 : 1993 (1) PLJR 235 : 1993 (1) BLJ 473, has also taken the same view. The conviction of this appellant No. 1 under the Explosive Substances Act is, therefore, non-est. and without jurisdiction and the same is accordingly quashed."
24.6. In the case of National Investigation Agency versus Vinay Talekar and Others, reported in 2021 Cri LJ 23 a Division Bench of High Court of Bombay at Goa observed in paragraphs-66 and 67 as under:
"66. In this case, the learned Special Court, has adverted to the provisions of Section 7 of the Explosive Sub- stances Act, 1908, which provided that no Court shall proceed to the trial of any person for an offence against this Act except with the consent of the District Magistrate. The consent from the District Magistrate was a requirement introduced by way of Amendment Act No. 54 of 2001 which entered into force w.e.f. 1/2/2002. Prior to this amendment, the consent of the Central Government was contemplated.
67. In the present case, admittedly, there was no consent of the District Magistrate produced by the prosecution on record. The prosecution has however relied upon the so called consent from the Central Government. In these circum- stances, the view taken by the learned Special Judge that no trial was warranted against the accused persons for offences in the Explosive Substances Act, 1908, cannot be said to be a view which was vitiated by any perversity."
25. Keeping in view the aforesaid decisions, if the facts of the present case, as observed hereinabove, are examined, Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 51/52 we are of the view that in the present case, no consent of the Cen- tral Government was obtained and, therefore, also the trial qua commission of the offence punishable under Section 7 of the Ex- plosives Substances Act is vitiated.
26. In view of the aforesaid discussions on various counts, the impugned judgment of conviction and order of sen- tence rendered by the Trial Court is not sustainable in the eye of law and when the prosecution has failed to prove the case against the appellants/accused beyond reasonable doubt, this Court has no option but to quash and set aside the judgment of conviction and order of sentence.
27. Accordingly, both the appeals stand allowed. The common impugned judgment of conviction dated 01.09.2016 and order of sentence dated 03.09.2016, passed by learned 2nd Addi- tional District & Sessions Judge, Jamui in Sessions Trial No.442/1991, arising out of Sikandra P.S. Case No.52/1991 dated 28.03.1991 are quashed and set aside. The appellants, named above, are acquitted of the charges levelled against them by the learned trial court.
27.1. Since the appellant, namely, Ramashish Yadav is in jail, he is directed to be released from jail custody forthwith, if his presence is not required in any other case.
Patna High Court CR. APP (DB) No.1163 of 2016 dt.10-09-2024 52/52 27.2. Since appellants, namely, Yogendra Yadav, Ram Jee Yadav, Krishna Yadav, Lalo Yadav, Bale Yadav @ Baleshwar Yadav, Narayan Yadav and Kapil Yadav are on bail, they are discharged from the liabilities of their respective bail bonds.
(Vipul M. Pancholi, J.) (Rudra Prakash Mishra, J.) Sanjay/-
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