Patna High Court - Orders
Abhijit Kumar @ Abhinav @ Bushi Kumar & ... vs The State Of Bihar on 2 May, 2018
Author: Ahsanuddin Amanullah
Bench: Ahsanuddin Amanullah, Madhuresh Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.237 of 2017
Along with
Inte rlocutory Application No. 763 of 2018
Arising Out of PS.Case No. -70 Year- 2014 Thana -NAYA RAM NAGAR District- M UNGER
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1. Abhijit Kumar @ Abhinav @ Bushi Kumar, Son of Sri Bhupendra
Narayan Mishra.
2. Bhupendra Narayan Mishra, Son of Late Devnandan Mishra
Both resident of Village- Farda, Police Station- Naya Ram Nagar, District-
Munger.
.... .... Appellant/s
Versus
The State of Bihar.
... .... Respondent/s
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Appearance :
For the Appellant/s :
For the Respondent/s :
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CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
and
HONOURABLE MR. JUSTICE MADHURESH PRASAD
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH)
4 02-05-2018Re.: Interlocutory Application No. 763 of 2018 Heard learned counsel for the appellants; learned counsel for the informant and learned A.P.P. for the State.
2. The present Interlocutory Application has been filed by the appellants seeking suspension of sentence and grant of bail during the pendency of the appeal.
3. This is the second attempt, as earlier such prayer with regard to appellant no. 1 was rejected on 23.06.2017 whereas by the same order, liberty was granted to appellant no. 2 to renew the prayer after eight months.
4. The appellants stand convicted under Sections Patna High Court CR. APP (DB) No.237 of 2017 (4) dt.02-05-2018 2/4 302/34/120B of the Indian Penal Code and 27 (i) of the Arms Act and sentenced to undergo imprisonment for life.
5. Learned counsel for the appellants submitted that the entire story of the prosecution is full of contradictions as no one certain sequence of events has been narrated, even as per the deposition of the witnesses. It was submitted that as per the prosecution story, P.W.-2 was the sole eye witness, who had stated that it was the appellant no. 1, who had fired from some distance and the bullet had hit the deceased, which is corroborated in the postmortem report but the same is also unreliable for the reason that despite there being an eye witness and being available at the place of occurrence, he was neither named as a witness in the written report by the informant, who is the wife of the deceased, despite there being four other witnesses named and also that he was never examined by the police and rather on the second day after being in police custody for over 24 hours, straightaway his statement under Section 164 of the Code of Criminal Procedure, 1973 has been recorded. Learned counsel submitted that the informant was also not an eye witness as she claims that she came and saw that the husband lying in a pool of blood and the appellants and three others were running away after shooting the deceased. Learned counsel submitted that the most vital aspect of the episode which is highlighted in the postmortem report is Patna High Court CR. APP (DB) No.237 of 2017 (4) dt.02-05-2018 3/4 presence of a deep lacerated wound over the left occipital area of the skull, which has not been explained or even mentioned by any of the witnesses, which clearly indicates that the story put up by the prosecution suffers from unexplained vital circumstances. It was further submitted that the informant as well as P.W.-2, who claims to be the eye witness, have stated that firing was from some distance and the informant herself came upon hearing gunshot firing and, thus, their version cannot be taken to be true. It was further submitted that even such version is falsified by the postmortem report which indicates firing at a close range, as the edge of the point of the entry wound was blackened and, thus, the contention that all the accused fired from some distance is unreliable and clearly untrue.
6. Learned counsel for the informant submitted that the informant being a lady and due to the circumstances was not in a position to give full details of the incident and further, that the eye witness has stated with regard to appellant no. 1 being the person who fired the bullet which hit the deceased and the same being corroborated by the postmortem report, leaves no doubt that he is guilty of committing the crime. Learned counsel further submitted that even the alibi of appellant no. 1 has been falsified by the Call Detail Record obtained by the prosecution.
7. Learned A.P.P. very fairly submitted that no one Patna High Court CR. APP (DB) No.237 of 2017 (4) dt.02-05-2018 4/4 version or complete logical sequence comes out from the story of the prosecution.
8. Considering the facts and circumstances of the case and submissions of learned counsel for the parties, let the sentence of appellants no. 1 and 2 namely Abhijit Kumar @ Abhinav @ Bushi Kumar and Bhupendra Narayan Mishra respectively be suspended and they be released on bail during the pendency of the appeal upon furnishing bail bond of Rs. 25,000/- (Twenty Five Thousands) each with two sureties of the like amount each to the satisfaction of the learned Sessions Judge, Munger in Sessions Trial No. 86 of 2017 arising out of Naya Ramnagar (Safiasarai) P.S. Case No. 70 of 2014. One of the bailors shall be a close relative of the appellants.
9. Interlocutory Application No. 763 of 2018 stands disposed off.
(Ahsanuddin Amanullah, J) (Madhuresh Prasad, J) Anjani/-
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