Patna High Court
Vansh Narayan Yadav And Anr vs The State Of Bihar on 18 January, 2023
Author: Chakradhari Sharan Singh
Bench: Chakradhari Sharan Singh, Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.416 of 2015
Arising Out of PS. Case No.-48 Year-2012 Thana- CHAND District- Kaimur (Bhabua)
======================================================
1. Satay Narayan Yadav Son of Millu Yadav
2. Devendra Yadav @ Pintu Yadav Son of Ram Lakhan Yadav Both are
Resident of Village- Hansreon, P.S.- Chand, District- Kaimur Bhabua.
... ... Appellants
Versus
The State Of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 422 of 2015
Arising Out of PS. Case No.-48 Year-2012 Thana- CHAND District- Kaimur (Bhabua)
======================================================
1. Ram Gahan Yadav Son of Bal Kishun Yadav,
2. Shyam Narayan Yadav Son of Ramdhyan Yadav,
3. Hoshila Yadav Son of Sudama Yadav,
4. Vakil Yadav Son of Sundar Yadav,
5. Ramji Yadav Son of Sachan Yadav, Both are Resident of Village- Hansreon,
P.S.- Chand, District-Kaimur Bhabua.
... ... Appellants
Versus
The State Of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 431 of 2015
Arising Out of PS. Case No.-48 Year-2012 Thana- CHAND District- Kaimur (Bhabua)
======================================================
1. Bal Kishun Yadav Son of Late. Kaval Yadav,
2. Sunnar Yadav Son of Late. Purushotam Yadav,
3. Ram Lakhan Yadav Son of Bal Kishun Yadav,
4. Kanhaiya Yadav Son of Late. Kailash Yadav,
5. Murahu Yadav Son of Bal Kishun Yadav, All are Resident of Village -
Hansreon, P.S.- Chand, District- Kaimur Bhabua .
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
2/37
... ... Appellants
Versus
The State Of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 443 of 2015
Arising Out of PS. Case No.-48 Year-2012 Thana- CHAND District- Kaimur (Bhabua)
======================================================
1. Vansh Narayan Yadav Son of Late Hari Charan Yadav
2. Ganesh Yadav Son of Sundar Yadav Both are Resident of village - Hansreon,
P.S. Chand, District - Kaimur Bhabua
... ... Appellants
Versus
The State Of Bihar
... ... Respondent
======================================================
Appearance :
(In all Appeals)
For the Appellants : Mr. Vikramdeo Singh, Advocate
Mr. Shyameshwar Kumar Singh, Advocate
Ms. Kanchan Kumari, Advocate
For the Respondent State: Ms. Shashi Bala Verma, A.P.P.
For the Informant : Mr. Bindhyachal Singh, Senior Advocate
Ms. Suruchi Ananad, Advocate
Mr. Uday Pratap Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE MR. JUSTICE KHATIM REZA
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH)
Date : 18-01-2023
A judgment of conviction dated 21.04.2015 and the
consequent order of sentence dated 28.04.2015 passed by the
learned Additional Sessions Judge-II, Kaimur, Bhabhua, in
Sessions Trial No. 473 of 2012 (CIS No. 2603 of 2014), arising
out of Chand P.S. Case No. 48 of 2012, are under challenge in all
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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these four appeals, preferred under Section 374(2) of the Cr.P.C.,
and, therefore, they have been heard together and are being
disposed of by the present judgment and order.
2. There are altogether 14 appellants in these appeals,
who have been convicted of the offences punishable under Section
302 read with Section 149 of the IPC. The appellants Ram Gahan
Yadav (appellant No. 1 in Cr. Appeal (D.B.) No. 422 of 2015),
Murahu Yadav (appellant No. 5 in Cr. Appeal (D.B.) No. 431 of
2015), Ramji Yadav (appellant No. 5 in Cr. Appeal (D.B.) No. 422
of 2015) and Devendra Yadav @ Pintu Yadav (appellant No. 2 in
Cr. Appeal (D.B.) No. 416 of 2015) have been convicted for the
offence punishable under Section 148 of the IPC also. After
recording their conviction, learned trial court has imposed
following sentences: -
Sentence
Appellant Conviction
Number under Section Imprisonm
Fine (Rs.) In default of fine
ent
CRIMINAL APPEAL (DB) No. 416 of 2015
The sentence of life will not
be less than 20 years of
Satay Narayan 302/149 of the
imprisonment and he will
Yadav (Appellant Indian Penal For Life 50,000/-
have to serve 5 years of
No. 1) Code
rigorous imprisonment in
addition there too.
The sentence of life will not
be less than 20 years of
302/149 of the
imprisonment and he will
Devendra Yadav Indian Penal For life 10,000/-
have to serve 5 years of
@Pintu Yadav Code rigorous imprisonment in
(Appellant No. 2) addition there too.
148 of the Indian R.I. for 3
20,000/- R.I. for 6 months
Penal Code years
CRIMINAL APPEAL (DB) No. 422 of 2015
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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302/149 of the For life 50,000/- The sentence of life will not
Indian Penal be less than 20 years of
Code imprisonment and he will
Ram Gahan have to serve 5 years of
Yadav rigorous imprisonment in
(Appellant No. 1) addition there too.
148 of the Indian R.I. for 3 20,000/- R.I. for 6 months
Penal Code years
302/149 of the For life 50,000/- The sentence of life will not
Shyam Narayan Indian Penal be less than 20 years of
Yadav Code imprisonment and he will
(Appellant No. have to serve 5 years of
2) rigorous imprisonment in
addition there too.
302/149 of the For life 50,000/- The sentence of life will not
Hoshila Yadav Indian Penal be less than 20 years of
Code imprisonment and he will
(Appellant No. have to serve 5 years of
3) rigorous imprisonment in
addition there too.
302/149 of the For life 50,000/- The sentence of life will not
Vakil Yadav Indian Penal be less than 20 years of
Code imprisonment and he will
(Appellant No. have to serve 5 years of
4) rigorous imprisonment in
addition there too.
302/149 of the For life 50,000/- The sentence of life will not
Indian Penal be less than 20 years of
Code imprisonment and he will
Ramji Yadav have to serve 5 years of
(Appellant No. rigorous imprisonment in
5) addition there too.
148 of the Indian R.I. for 3 20,000/- R.I. for 6 months
Penal Code years
CRIMINAL APPEAL (DB) No. 431 of 2015
302/149 of the For Life The sentence of life will not
Bal Kishun Indian Penal be less than 20 years of
Yadav Code imprisonment and he will
50,000/-
(Appellant No. have to serve 5 years of
1) rigorous imprisonment in
addition there too.
302/149 of the For Life 50,000/- The sentence of life will not
Indian Penal be less than 20 years of
Sunnar Yadav Code imprisonment and he will
(Appellant No.2) have to serve 5 years of
rigorous imprisonment in
addition there too.
302/149 of the For Life 50,000/- The sentence of life will not
Ram Lakhan Indian Penal be less than 20 years of
Code imprisonment and he will
Yadav (Appellant have to serve 5 years of
No. 3) rigorous imprisonment in
addition there too.
Kanhaiya Yadav 302/149 of the For Life 50,000/- The sentence of life will not
(Appellant No. 4) Indian Penal be less than 20 years of
Code imprisonment and he will
have to serve 5 years of
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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rigorous imprisonment in
addition there too.
302/149 of the For Life 50,000/- The sentence of life will not
Indian Penal be less than 20 years of
Code imprisonment and he will
Murahu Yadav have to serve 5 years of
(Appellant No. 5) rigorous imprisonment in
addition there too.
148 of the Indian R.I. for 3 20,000/- R.I. for 6 months
Penal Code years
CRIMINAL APPEAL (DB) No. 443 of 2015
302/149 of the For Life 50,000/- The sentence of life will not
Indian Penal be less than 20 years of
Vansh Narayan
Code imprisonment and he will
Yadav (Appellant
have to serve 5 years of
No. 1)
rigorous imprisonment in
addition there too.
302/149 of the For Life 10,000/- The sentence of life will not
Indian Penal be less than 20 years of
Ganesh Yadav Code imprisonment and he will
(Appellant No. 2) have to serve 5 years of
rigorous imprisonment in
addition there too.
3. We have heard Mr. Vikramdeo Singh, learned counsel
appearing on behalf of the appellants, Ms. Shashi Bala Verma,
learned Additional Public Prosecutor representing the State and
Mr. Bindhyachal Singh, learned Senior Counsel appearing on
behalf of the informant in all these appeals.
4. The wife of the victim, Rajkumari Devi (PW 8) is
the informant, based on whose fardbeyan recorded by the S.H.O.
of Chand Police Station in the district of Kaimur, F.I.R. came to be
registered giving rise to Chand P.S. Case No. 48 of 2012. In her
fardbeyan, recorded at 6.45 PM on 22.07.2012, the informant
disclosed that her husband Arjun Yadav (the deceased) was
returning home on foot from Hatta Bazar. When he was hardly 100
yards away east from his house, his co-villagers, Ram Gahan
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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Yadav (appellant no.1 in Cr.Appeal (D.B.) No. 422/15), Murahu
Yadav (appellant no.5 in Cr.Appeal (D.B.) No. 431/15), Ram
Lakhan Yadav (Appellant no. 3 in Cr.Appeal (D.B.) No. 431/15),
Kanhaiya Yadav (Appellant no.4 in Cr.Appeal (D.B.) No. 431/15),
Devendra Yadav @ Pintu Yadav (Appellant no. 2 in Cr.Appeal
(D.B.) No.416/15), Ramjee Yadav (Appellant no. 5 in Cr.Appeal
(D.B.) No.422/15), Shyam Narain Yadav (Appellant no. 2 in
Cr.Appeal (D.B.) No.422/15), Vakil Yadav (Appellant no. 4 in
Cr.Appeal (D.B.) No.422/15), Ganesh Yadav (Appellant no. 2 in
Cr.Appeal (D.B.) No.443/15), Hosila Yadav (Appellant no. 3 in
Cr.Appeal (D.B.) No.422/15), Satya Narain Yadav (Appellant no.
2 in Cr.Appeal (D.B.) No.422/15), Vansh Narain Yadav(Appellant
no. 1 in Cr.Appeal (D.B.) No.433/15) and Sunar Yadav (Appellant
no. 2 in Cr.Appeal (D.B.) No.416/15), who were variously armed
with lathi, ballam and gandasa were waiting for the deceased and
the moment the deceased reached near the site of the Bank of a
pond, the appellant Ram Gahan Yadav exhorted others to encircle
him and kill him, whereupon all the aforesaid persons started
assaulting the deceased with lathi, ballam and gandasa
indiscriminately. At the time of occurrence, informant was
working in a nearby vegetable field and upon seeing her husband
being assaulted by the accused persons, she rushed to save him and
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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in that course, she lay her body on her husband, the deceased, so as
to cover him and thus protect him from assault. Thereafter, the
appellants Ram Gahan Yadav, Murahu Yadav, Ramji Yadav and
Devendra Yadav @ Pintu Yadav injured her by assaulting her with
lathi, and by holding her hands and legs, they threw her nearly 10
yards away in a swamp. She kept on making desperate attempts to
save her husband, but all the accused persons killed her husband
by giving blows with lathi, ballam and gandasa. She further
disclosed that her agnates Chandra Bhushan Yadav (PW 5), Ram
Dayal Yadav (PW 1) and Ashok Singh Yadav (PW 7), who lived
nearby, also rushed to rescue the deceased, but they had to beat a
retreat as the accused persons chased them also. The genesis of the
occurrence, as disclosed in the FIR, was land dispute between
Ashok Kumar Yadav and the agnates of the deceased and the
persons named in the FIR.
5. It is noted, at this juncture, that the appellant Bal
Kishun Yadav was not named in the FIR and his name surfaced
during the course of investigation as one of the participants of
commission of the offence.
6. An inquest report (exhibit 7) of the dead body of the
deceased was prepared. The informant was given medical
treatment as she had sustained injuries.
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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7. The police, upon completion of investigation,
submitted its charge-sheet against all the 13 persons named in the
FIR, who are appellants herein as well as Bal Kishun Yadav, who,
as has been noted, is appellant No. 1 in Cr. Appeal (D.B.) No. 431
of 2015, for the offences punishable under Sections 147, 148, 149,
3423, 235, 307, 302, 504 and 120B of the IPC. Thereafter,
cognizance was taken by the learned Magistrate on 18.10.2012.
The case was subsequently committed to the court of Sessions for
trial. The trial court thereafter framed charges of the appellants for
commission of the offences under various provisions of the IPC as
under: -
Charges framed under Section
Appellant
CRIMINAL APPEAL (DB) No. 416 of 2015
All charged u/s 302/149 & 504 of the Indian
Satay Narayan Yadav (Appellant No. 1)
Penal Code
Devendra Yadav @ Pintu Yadav (Appellant No. U/s 302/149, 307, 323, 325, 147, 148, 504 of
2) the Indian Penal Code
CRIMINAL APPEAL (DB) No. 422 of 2015
Charged u/s 302/149, 307, 323, 325, 147,
Ram Gahan Yadav (Appellant No. 1) 148 & 504 of the Indian Penal Code
Charged u/s 302/149 & 504 of the Indian
Shyam Narayan Yadav (Appellant No. 2) Penal Code
Charged u/s 302/149 & 504 of the Indian
Hoshila Yadav (Appellant No. 3) Penal Code
Charged u/s 302/149 & 504 of the Indian
Vakil Yadav (Appellant No. 4) Penal Code
Charged u/s 302/149, 307, 323, 325, 147,
Ramji Yadav (Appellant No. 5) 148 & 504 of the Indian Penal Code
CRIMINAL APPEAL (DB) No. 431 of 2015
Charged u/s 302/149 & 504 of the Indian
Bal Kishun Yadav (Appellant No. 1) Penal Code
Charged u/s 302/149 & 504 of the Indian
Sunnar Yadav (Appellant No.2) Penal Code
Charged u/s 302/149 & 504 of the Indian
Ram Lakhan Yadav (Appellant No. 3) Penal Code
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
9/37
Charged u/s 302/149 & 504 of the Indian
Kanhaiya Yadav (Appellant No. 4) Penal Code
Charged u/s 302/149, 307, 323, 325, 147
Murahu Yadav (Appellant No. 5) 148 & 504 of the Indian Penal Code
CRIMINAL APPEAL (DB) No. 443 of 2015
Charged u/s 302/149 & 504 of the Indian
Vansh Narayan Yadav (Appellant No. 1)
Penal Code
Charged u/s 302/149 & 504 of the Indian
Ganesh Yadav (Appellant No. 2) Penal Code
8. As the appellants pleaded not guilty, they were put to
trial.
9. At the trial, altogether 11 witnesses were examined
including the Investigating Officer Ram Rahan Singh (PW 11), Dr.
Kanhaiya Singh (PW 10), who had treated the injured informant
and Dr. Kanhai Mahto (PW 9), who had held the postmortem
examination. Other prosecution witnesses 1 to 8 claim to be the
eyewitness to the occurrence.
10. Before adverting to the evidence of the
prosecution's witnesses, it is considered useful to take note of the
evidence of the of the Doctor (PW 9), who had conducted the
postmortem examination and the Doctor (PW 10), who had
examined the injured informant. The Doctor proved following
antemortem injuries on the dead body of the deceased: -
"1. Lacerated wound 3"x1/2"x scalp
deep found over vault of skull centrally placed
longitudinal in direction.
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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2. Sharp cut wound 2 1/2"x1/2"x scalp
deep over left parietal region of skull.
3. Sharp cut wound 3" x3/4"x scalp
deep over left parietal region ½" below the injury
no. 2.
4. Incised wound right elbow joint
posterially 1" x 1/2"x1/2".
5. Incised wound right wrist joint
1/2"x1/4"x1/4".
6. Sharp cut penetrating wound over
right ankle joint ¾" x ¼" x bone deep.
7. Multiple matted wound bruise of
various shape and sizes over back of chest.
8. Diffused swelling with deformity
present over right lower leg. Fracture of both
tibia and fibula lower end.
On dissection - Skull depressed
fracture of middle of head bone. Brain matter and
meninges found lacerated. Collection of dark
blood in cranial cavity present. Chest cavity -
Both lungs found pale and intact. Heart both
chamber found empty and intact. Stomach
contained digested food particle. Small intestine
contained small amount of food and gases. Large
intestine contained fiscal matter gases of food and
gases large intestine contained faecal matter
gases spleen, liver and both kidneys found pale
and intact. Urinary bladder contain 100 ml
urine."
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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11. He deposed in his examination in chief that the
cause of death was shock and hemorrhage caused by the above
mentioned injuries. He further deposed that the injury No.1, 7 and
8 were caused by hard and blunt substances and the injuries No. 2,
3, 4 and 5 were caused by sharp cutting weapon and injury No. 6
was caused by a sharp pointed weapon. The postmortem
examination was conducted at 11.30 AM on 23.07.2012. PW 9
testified that the time elapsed since death was between 12-24
hours.
12. PW 10 proved following injuries on the person of
the injured informant: -
"(i) Swelling over wrist joint of left
hand 2"x1". X-Ray. A.P. view/ Lateral view.
(ii) Swelling over back 2"x2".
(iii) Complain of pain whole body.
Opinion:- Injury No. 2 & 3 are simple
in nature caused by hand and blunt substances.
Injury No. 1 reserved for X-Ray.
Age of injury :- Within 6 hours."
13. According to him, injury No.1 was grievous in
nature based on the x-ray report, which depicted fracture of first
metacarpal bone of the left hand. He deposed that the injury report
was based on examination of x-ray plate.
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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14. The informant (PW 8) fully supported the
prosecution's case, as was disclosed by her in her fardbeyan, and
included the name of the appellant Bal Kishun Yadav (appellant
No. 1 in Cr. Appeal (DB) No. 431 of 2015), who, according to her,
was carrying a gandasa. According to her, appellants Ram Gahan
Yadav, Bal Kishun Yadav, Vakil Yadav, Hosila Yadav, Ramji Yadav
and Shyam Narain Yadav were carrying gandasa and appellants
Murahu Yadav, Devendra Yadav @ Pintu Yadav and Satya Narain
Yadav were carrying ballam, whereas other appellants, namely,
Ram Lakhan Yadav, Kanhaiya Yadav, Vansh Narain Yadav, Sunnar
Yadav and Ganesh Yadav were carrying lathi. She further
supported the prosecution's case that other persons had rushed to
the place of occurrence after hearing the noise including Anil
Singh Yadav (PW 3), Baljeet Yadav (PW 2), Ram Dayal Yadav
(PW 1), Ashok Kumar Yadav (PW 7), Guddu Yadav (PW 6) and
Chandar Bhushan Yadav (PW 5). Eyewitnesses PWs 1, 5, and 7
fully supported the prosecution's case as regards the place and
manner of occurrence.
15. Upon completion of examination of the
prosecution's witnesses, in order to afford the accused persons
opportunity to explain the circumstance appearing in the evidence
against them, the trial court questioned them, in compliance with
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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the requirement under Section 313 of the Cr.P.C.. The appellants
denied the said circumstances against them. No defence witness
was produced at the trial.
16. The trial Court, upon appreciation, analysis and
scrutiny of the evidence adduced at the trial has found these
appellants guilty of the offences and has sentenced them to
imprisonment and fine as noted above by its impugned judgment
and order.
17. Mr. Vikramdeo Singh, learned counsel appearing
on behalf of the appellants has submitted that it is evident from the
fardbeyan itself that according to the informant there was dispute
between the appellants and Ashok Singh Yadav (PW 7), which,
according to her, was the reason behind the occurrence. He has
submitted that for a dispute with said PW 7, Ashok Singh Yadav,
there would have been no occasion for these appellants to have
assaulted the deceased. He has accordingly submitted that the
prosecution has miserably failed to establish the motive behind the
occurrence. He has further submitted that the deposition of the
informant (PW 8) is not fully reliable as, in the fardbeyan, she had
asserted that Ram Gahan Yadav (appellant No. 1 in Cr. Appeal
(DB) No. 422 of 2015) had instigated the others to kill the
deceased, whereas this fact does not emerge from her deposition at
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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the trial. He has argued that there is no specific attribution of use
of particular weapon to either of the appellants in order to establish
a case under Section 302 of the IPC. According to him, the
witnesses do not appear to be truthful, and their evidence is belied
by the medical evidence. He has referred to the evidence of the
prosecution's witnesses extensively in order to convince this Court
that they are not consistent on the point of the nature of weapon,
which the appellants were carrying and had used to assault the
deceased. Referring to the evidence of PW 5, he has submitted that
though according to said witness, he too was assaulted by the
appellants on his wrist, but there is no medical report or proof of
his treatment to corroborate his evidence. He has further
submitted, questioning the correctness of the manner of the
occurrence as disclosed in the fardbeyan that the informant was
thrown away in a swamp at a distance of nearly 10 yards from the
place of occurrence when she had gone to save her husband. He
contends that the depositions of PW 3 and PW 4 contradict the
evidence of other witnesses inasmuch as they have stated that the
informant was dragged to the swamp. He has further argued that
Guru Dayal Singh Yadav (PW 4) has not named Sunnar Yadav and
Kanhaiya Yadav. Further, PW 5 has not named Kanhaiya Yadav as
one of the assailants. He has further submitted that on careful
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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scrutiny of the evidence of the prosecution's witnesses, the place
of occurrence itself has become doubtful. He has also submitted
that according to PW 8, the informant, the deceased had gone to
Hatta Bazar for purchasing articles for Puja for the Pachaia
festival. In her cross examination (para 14), she deposed that she
had not seen any article brought by the deceased. He further
submits that on one hand the informant claimed that she was
pushed/thrown away in the nearby swamp ditch, PW 1, in his
deposition, has stated that there was no swamp in the field. He has
also contended, referring to the deposition of the Investigating
Officer in paragraph 11 that no mud on the clothes of the deceased
was found. He has further submitted that on one hand the
informant (PW 8) deposed that a ditch of swamp was shown to the
Investigating Officer (PW 11), the PW 11, in his deposition, has
stated that he had not seen any ditch of swamp. Further, no article
was found near the dead body though according to the
prosecution's case, the deceased had gone to purchase articles and
was coming back with the articles. He would argue that the
prosecution failed to prove the genesis of occurrence. He contends
that according to the case of the prosecution, the land dispute was
going on between PW 7 Ashok Singh Yadav and the appellants.
The deceased was only a witness in the said case. Ashok Singh
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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Yadav was present at the place of occurrence. In such
circumstance, there would have been no reason why, instead of
killing Ashok Singh Yadav, they would have killed the deceased
with whom there was no dispute. He has further argued that it is
evident from the evidence of PW 3 that the accused persons and
the informant's family have common lineage. In any view of the
matter, the prosecution did not establish as to what was the
immediate cause behind the occurrence as the civil cases pending
between said Ashok Singh Yadav and the accused persons were of
2008.
18. He has lastly made his alternative submission that
in any view of the matter, considering the nature of antemortem
injuries said to have been sustained by the deceased, at the
maximum a case may be said to be made out under Section 304
(Part-II) of the IPC and not under Section 302 of the IPC. In
support of this contention, he has submitted that Dr. Kanhai Mahto
(PW 9), in his deposition, has stated that injuries No. 1, 2 and 3
were caused on a vital part, i.e., skull of the deceased's body by a
sharp cutting weapon, but the depth of the injuries have been
found to be only scalp deep. Referring to the Modi Medical
Jurisprudence 25th edition, he has submitted that scalp is the skin,
covering the cranium and, therefore, had it been the intention of
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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the appellants to cause death of the deceased, they could have
caused more severe injuries than what is said to have been caused
by them. He has also submitted that all other injuries have been
found to be on non-vital parts of the body, not specifically
attributed to any appellant. Further, PW 9, the Doctor, who had
held the postmortem examination did not depose that the injury
was sufficient in the ordinary course of nature to cause death.
19. He has placed reliance on the Supreme Court's
decision in the case of Chuttan and Others v. State of M.P. (1994
AIR SCW 1746 : 1994 Cr. L.J. 2097) in support of his
submission that considering the nature of the antemortem injuries
said to have been caused by the appellants, their conviction for the
offence punishable under Section 302 of the IPC is not justified
and that the trial court ought to have convicted the appellants for
the offence punishable under Section 304 (Part-II) of the IPC,
instead. He has also placed reliance on another Supreme Court's
decision in the case of State of Punjab vs. Tejinder Singh and
Another, reported in 1996(1) PLJR 15 with reference to
paragraph 8 thereof, to bolster his contention.
20. He has also submitted that from the evidence of
Investigating Officer (PW 11), it appears that after having learnt
about the occurrence, he had proceeded to the place of occurrence,
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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but the nature of information, which was received by him has been
withheld by the prosecution, which also creates a reasonable doubt
on the veracity of the prosecution's case.
21. Ms. Shashi Bala Verma, learned Additional Public
Prosecutor appearing for the State has argued that the
prosecution's witnesses have been consistent in their depositions to
the effect that the deceased was assaulted by all these appellants
using different weapons. The place of occurrence has been proved
by the Investigating Officer and other prosecution witnesses. She
further submits that it emerges from the evidence of the Doctor,
who had conducted the postmortem examination that the deceased
was brutally assaulted, indiscriminately by deadly weapons
leading to his death. She accordingly submits that the finding of
conviction recorded by the trial court does not suffer from any
infirmity requiring this Court's interference.
22. Mr. Bindhyachal Singh, learned Senior Counsel
appearing on behalf of the informant rejoining the submissions
advanced on behalf of the appellants has submitted that the
prosecution's witnesses No. 1, 5, 7 and 8 have fully supported the
time, date and the manner of the occurrence. He has argued that
there is no significant variation in the evidence of the prosecution's
witnesses as to the kind of the weapons which they were carrying.
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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He has further submitted that the prosecution's witnesses No. 1, 4,
5, 6, 7, 8 and 11 have consistently deposed that they had noticed
rain water near the place of occurrence. The Investigating Officer
(PW 11), in his deposition, clearly deposed that he had seen
presence of rain water near the adjacent south field of one
Kishwant Patel, but he had mistakenly failed to mention the said
fact in the case diary. He has placed reliance on a recent decision
of Supreme Court in the case of Bhagchandra v. State of Madhya
Prasad, reported in [2022(2) BLJ (SC) 143] : 2021 SCC OnLine
SC 1209, to submit that minor variations, if any, in the
prosecution's evidence, insignificant in nature, cannot have any
effect on the prosecution's case, there being overwhelming
incriminating evidences adduced at the trial to establish guilt of
these appellants. He has submitted that as the prosecution's
narrative in the FIR is fully supported by ocular evidence adduced
at the trial and the ocular evidence is corroborated by the medical
evidence, no interference is warranted by this Court in the present
set of appeals.
23. We have carefully perused the impugned judgment
and order of the trial court as well as the evidence adduced at the
trial, which are available with the lower court records. We have
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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given our thoughtful consideration to the rival submissions
advanced on behalf of the parties.
24. It emerges from the evidence on record that the
fardbeyan was recorded at 6.45 PM on 22.07.2012. The
occurrence is of 4.30 PM of the same date, as disclosed in the FIR.
The distance of the police station from the place of occurrence has
been shown in the FIR as 10 Kms.. The postmortem examination
was conducted at 11.20 AM on the next day, i.e., 23.07.2022 as is
evident from the postmortem report (exhibit-2) wherein time
elapsed since the death of the deceased has been recorded as
between 12-24 hours. Eyewitnesses have, in their depositions,
narrated the weapons used for assaulting the deceased. According
to their deposition, sharp cutting weapon (gandasa), sharp cutting
pointed weapon (ballam) and hard and blunt weapon (lathi) were
used to assault the deceased by all the persons put to trial. The
postmortem report corroborates the nature of assault made by the
appellants, with the use of weapons as deposed by the
prosecution's witnesses in their evidence at the trial. On closer
scrutiny of the evidence adduced at the trial, we notice that the
eyewitnesses PW 1, PW 5, PW 7 and PW 8 have consistently
deposed that the appellants of Cr. Appeal (DB) No. 422 of 2015
and appellant No. 1 of Cr. Appeal (DB) No. 431 of 2015 were
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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carrying gandasa. The appellants of Cr. Appeal (DB) No. 443 of
2015 and appellants No. 2, 3 and 4 were carrying lathis, the
appellants of Cr. Appeal (DB) No. 416 of 2015 and appellants of
Cr. Appeal (DB) No. 431 of 2015 were carrying ballams. Further,
the eyewitness to the occurrence are consistent in their deposition
that all the appellants, after creating an unlawful assembly for the
purpose of killing the deceased, had assaulted him. Further, PW 3,
in his evidence, while supporting the prosecution's case as an
eyewitness, has explained the motive behind killing of the
deceased. He deposed that Arjun Yadav (the deceased) used to
make pairvi in the title suit and was an intelligent and effective
person and, therefore, he was killed. This aspect has been
supported by PW 5 in his deposition.
25. Much emphasis has been laid on the subsequent
inclusion of the name of the appellant Bal Kishun Yadav
(Appellant No.1 in Cr. Appeal (DB) No. 431 of 2015) by the
prosecution during the course of investigation, whose name did not
figure in the fardbeyan, in order to make out a case that his
implication is apparently an afterthought and is false. It has been
argued that subsequent false implication of the said appellant casts
a shadow of doubt on the entire case of the prosecution. The said
submission does not convince this Court. We will, however,
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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address the question of conviction of the appellant Bal Kishun
Yadav, later as his name was not originally mentioned in the FIR.
Considering the consistent ocular evidence of the prosecution's
witnesses, who have withstood the test of cross-examination, in
our opinion, minor discrepancies in their evidence cannot affect
the prosecution's case as the prosecution's witnesses do not appear
to be untrustworthy. PW 8, the informant herself had sustained
injuries. The fact that she had sustained injuries has been proved
by the Doctor.
26. We must not, at this juncture, fail to notice the
submission made on behalf of the appellants to the effect that the
prosecution has failed to prove, as to the use of which weapon is
attributable to which of the appellants and similarly causation of
which injury is attributable to which of them and for the said
reasons also the finding of guilt recorded by the trial court requires
interference by this Court. The said submission is not acceptable to
this Court since all the appellants have been convicted of the
offence punishable under Section 302 read with Section 149 of the
IPC.
27. Unlawful assembly has been defined under Section
141 of the IPC as an assembly of five or more persons, if the
common object of the persons composing that assembly is to
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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commit, inter alia, an offence. It is trite that the common object
has to be inferred from the facts and circumstances of each case.
The common object is to be discerned from the membership of the
assembly, the weapons used, the nature of injuries caused and
other surrounding circumstances.
28. Section 149 of the IPC ordains that if an offence is
committed by any member of an unlawful assembly in prosecution
of the common object of that assembly or such as the members of
that assembly knew to be likely to be committed in prosecution of
that object, every person, who, at the time of committing of that
offence, is a member of the same, is guilty of that offence.
29. In the present case, as has been discussed above, all
the appellants had created an unlawful assembly within the
meaning of Section 141 of the IPC to commit an assault on the
deceased. Be it noted that an assembly, which might not be
unlawful, when it assembled, may subsequently become an
unlawful assembly. It has been consistent case of the prosecution
that all the appellants had assaulted the deceased variously with
deadly weapons. The deceased was brutally assaulted by the
appellants with the use of various weapons. The submission
advanced on behalf of the appellants, with reference to the nature
of injuries that there was no intention to kill the deceased even if
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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the prosecution's case of assault is accepted, is untenable for the
reason that it emerges from the evidence of the prosecution's
witnesses that the deceased was given repeated blows in his skull.
Injuries No. 2 and 3 in the skull and left parietal region have been
found to have been caused by sharp cutting weapon. In the other
parts of the body, antemortem injuries caused by the sharp pointed
weapons have been found on the person of the deceased. The
postmortem report, duly proved by the Doctor, goes to suggest that
different weapons were used simultaneously to assault the
deceased, which corroborates the case of the prosecution as
unfolded in the fardbeyan and set out at the trial by way of
evidence.
30. Section 300 of the IPC defines murder as under: -
"300. Murder.--Except in the cases
hereinafter excepted, culpable homicide is
murder, if the act by which the death is caused is
done with the intention of causing death, or--
2ndly.--If it is done with the intention
of causing such bodily injury as the offender
knows to be likely to cause the death of the
person to whom the harm is caused, or--
3rdly.--If it is done with the intention
of causing bodily injury to any person and the
bodily injury intended to be inflicted is sufficient
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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in the ordinary course of nature to cause death,
or--
4thly.--If the person committing the act
knows that it is so imminently dangerous that it
must, in all probability, cause death or such
bodily injury as is likely to cause death, and
commits such act without any excuse for
incurring the risk of causing death or such injury
as aforesaid."
31. It is evident on a plain reading of Section 300 of the
IPC that there are four circumstances when a culpable homicide
amounts to murder, except in the cases excepted in the said
provision. The four circumstances are : - (i) if the act by which the
death is caused is done with the intention of causing death; (ii) if it
is done with the intention of causing such bodily injury as the
offender knows to be likely to cause death of the person; (iii) if it
is done with an intention to cause any bodily injury to any person
or the bodily injury intending to be inflicted is sufficient in the
ordinary course of action to cause death; and (iv) if the person
committing the act knows that it is so imminently dangerous that it
must, in all probabilities, cause death or such bodily injury as is
likely to cause death and cause such act without any excuse for
incurring the risk of causing death or such injury as aforesaid.
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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32. In the present case, the appellants, according to the
ocular evidence, had assaulted the deceased simultaneously with
sharp cutting weapons, pointed weapons and lathi etc. The assaults
were made on vital parts of the body of the deceased, i.e., his skull
and parietal region with sharp cutting weapon. It is unlikely that
they would not know that the said act was so imminently
dangerous that that would cause death or such bodily injuries as in
probability cause death. In our considered opinion, thus, the joint
act of these appellants fall under Section 300 of the IPC
punishable under Section 302 of the IPC and not under Section
304 (Part-II).
33. In the present case it is not an individual act of one
of the appellants, which led to death of the deceased, rather it was
committed by all of them with a common object. The Conviction
of the appellants by the trial court for the offence punishable under
Section 302 of the IPC is with the aid of Section 149 thereof.
Section 149 of the IPC reads as under: -
"149. Every member of unlawful assembly
guilty of offence committed in prosecution of
common object: If an offence is committed by any
member of an unlawful assembly in prosecution of
the common object of that assembly, or such as the
members of that assembly knew to be likely to be
committed in prosecution of that object, every person
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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who, at the time of the committing of that offence, is
a member of the same assembly, is guilty of that
offence."
34. Once the Court reaches the conclusion that the
ingredients of Section 149 of the IPC are fulfilled, every person,
who, at the time of committing the offence, was a member of
assembly, has to be held guilty of the offence. The Supreme Court
in the case of Joseph v. State, reported in (2018) 12 SCC 283, has
held that after such finding, it would not be open to the court to see
as to who actually did the offensive act nor would it be open to the
court to require the prosecution to prove which of the members of
the assembly did which of the ingredients of Section 149 of the
IPC. It is true that before recording the conviction under Section
149 of the IPC, essential ingredients of Section 141 of the IPC
must be established.
35. In the case of Rajendra Shantaram Todankar v.
State of Maharashtra, reported in (2003) 2 SCC 257, the Supreme
Court has dealt with two parts underlying Section 149 of the IPC
for invoking the vicarious liability under the said section and has
held in paragraph 14 as under: -
"14. Section 149 of the Penal Code,
1860 provides that if an offence is committed by
any member of an unlawful assembly in
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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prosecution of the common object of that assembly,
or such as the members of that assembly knew to
be likely to be committed in prosecution of that
object, every person who at the time of the
committing of that offence, is a member of the
same assembly is guilty of that offence. The two
clauses of Section 149 vary in degree of certainty.
The first clause contemplates the commission of an
offence by any member of an unlawful assembly
which can be held to have been committed in
prosecution of the common object of the assembly.
The second clause embraces within its fold the
commission of an act which may not necessarily be
the common object of the assembly, nevertheless,
the members of the assembly had knowledge of
likelihood of the commission of that offence in
prosecution of the common object. The common
object may be commission of one offence while
there may be likelihood of the commission of yet
another offence, the knowledge whereof is capable
of being safely attributable to the members of the
unlawful assembly. In either case, every member of
the assembly would be vicariously liable for the
offence actually committed by any other member of
the assembly. A mere possibility of the commission
of the offence would not necessarily enable the
court to draw an inference that the likelihood of
commission of such offence was within the
knowledge of every member of the unlawful
assembly. It is difficult indeed, though not
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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impossible, to collect direct evidence of such
knowledge. An inference may be drawn from
circumstances such as the background of the
incident, the motive, the nature of the assembly, the
nature of the arms carried by the members of the
assembly, their common object and the behaviour
of the members soon before, at or after the actual
commission of the crime. Unless the applicability
of Section 149 -- either clause -- is attracted and
the court is convinced, on facts and in law, both, of
liability capable of being fastened vicariously by
reference to either clause of Section 149 IPC,
merely because a criminal act was committed by a
member of the assembly every other member
thereof would not necessarily become liable for
such criminal act. The inference as to likelihood of
the commission of the given criminal act must be
capable of being held to be within the knowledge
of another member of the assembly who is sought
to be held vicariously liable for the said criminal
act. These principles are settled. Applying these
tests to the facts found proved beyond reasonable
doubt, Accused 1 to 5 can be held liable for the
offence under Sections 302/149 IPC for the assault
resulting in the death of Gopikrishna while
Accused 6 and 7 can be held liable for their
individual acts of assault committed on Sanjay
Patil."
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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36. It would be useful to take note of yet another
Supreme Court's decision in the case of Allauddin Mian v. State
of Bihar, reported in (1989) 3 SCC 5, wherein the Supreme Court
has laid down the essential requirement in order to fasten vicarious
responsibility on any member of an unlawful assembly and has
held that the prosecution must prove that the act constituting an
offence was done in prosecution of the common object of that
assembly or the act done is such as the members of that assembly
knew to be likely to be committed in prosecution of the common
object of that assembly. Every member of an assembly renders
himself liable for the criminal act or acts of any other member or
members of that assembly provided the same is/are done in
prosecution of the common object or is/are such as every member
of that assembly knew to be likely to be committed. Relevant
portion of paragraph 8 of the decision in case of Allauddin Mian
(supra) is being reproduced hereinbelow: -
"8. ......Therefore, in order to fasten
vicarious responsibility on any member of an
unlawful assembly the prosecution must prove
that the act constituting an offence was done in
prosecution of the common object of that
assembly or the act done is such as the members
of that assembly knew to be likely to be committed
in prosecution of the common object of that
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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assembly. Under this section, therefore, every
member of an unlawful assembly renders himself
liable for the criminal act or acts of any other
member or members of that assembly provided
the same is/are done in prosecution of the
common object or is/are such as every member of
that assembly knew to be likely to be committed.
This section creates a specific offence and makes
every member of the unlawful assembly liable for
the offence or offences committed in the course of
the occurrence provided the same was/were
committed in prosecution of the common object or
was/were such as the members of that assembly
knew to be likely to be committed. Since this
section imposes a constructive penal liability, it
must be strictly construed as it seeks to punish
members of an unlawful assembly for the offence
or offences committed by their associate or
associates in carrying out the common object of
the assembly. What is important in each case is to
find out if the offence was committed to
accomplish the common object of the assembly or
was one which the members knew to be likely to
be committed. There must be a nexus between the
common object and the offence committed and if
it is found that the same was committed to
accomplish the common object every member of
the assembly will become liable for the same.
Therefore, any offence committed by a member of
an unlawful assembly in prosecution of any one
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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or more of the five objects mentioned in Section
141 will render his companions constituting the
unlawful assembly liable for that offence with the
aid of Section 149, IPC."
xxx xxx xxx
It is not the intention of the legislature
in enacting Section 149 to render every member
of an unlawful assembly liable to punishment for
every offence committed by one or more of its
members. In order to invoke Section 149 it must
be shown that the incriminating act was done to
accomplish the common object of the unlawful
assembly. Even if an act incidental to the common
object is committed to accomplish the common
object of the unlawful assembly it must be within
the knowledge of other members as one likely to
be committed in prosecution of the common
object. If the members of the assembly knew or
were aware of the likelihood of a particular
offence being committed in prosecution of the
common object they would be liable for the same
under Section 149, IPC." In the instant case,
however, the members constituting the unlawful
assembly had gone to the house of PW 6 to kill
him. That was the common object of the unlawful
assembly. For accomplishing that common object
it was not necessary to kill the two girls who were
not an hindrance to accused 1 and 2
accomplishing their common object. We are,
therefore, of the opinion that accused 3 to 6
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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cannot be convicted for the injuries caused to the
two minor girls by accused 1 and 2 with the aid of
Section 149, IPC. We, therefore, set aside the
conviction under Section 326/149, IPC, and also
the sentence imposed on accused 3 to 6 on that
count. We, however, hold accused 3 and 4 guilty
under Sections 447 and 148, IPC, and confirm the
sentences awarded to them on those counts. So
also we hold accused 5 and 6 guilty under Section
447 and 147, IPC and confirm their sentences for
the said offences."
37. It is also settled position of law that whether the
members of the unlawful assembly really had a common object to
cause the murder of the deceased has to be decided in the facts and
circumstances of each case, nature of weapons used by such
members, the manner and sequence of attack made by those
members on the deceased and the circumstances under which the
occurrence took place. It is an inference to be deduced from the
facts and circumstances of each case [see: Lalji v. State of U.P.,
reported in (1989) 1 SCC 437; Sk. Ishaque v. State of Bihar,
reported in (1995) 3 SCC 392 and Joseph (supra)].
38. In the background of the discussions hereinabove
with reference to Section 141 read with 149 of the IPC, we are
required to examine the legality of the finding of conviction
recorded by the trial court in its impugned judgment. From the
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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evidence of the prosecution's witnesses, we notice that all these
appellants were armed with weapons and all of them were
assaulting the deceased, who died at the place of occurrence. In
such view of the matter, in our considered opinion, Section 149 of
the IPC has been rightly invoked by the learned trial court for
holding them guilty of the offence punishable under Section 302
thereof. Their common intention can be inferred from their
common act, which, in the Court's opinion, stood proved by the
injured eye witness (PW 8), i.e., the informant, supported by other
eyewitnesses. Learned trial court has rightly rejected the case of
the defence that though there was accusation against 14 persons of
having assaulted the deceased only eight injuries were found and,
therefore, the prosecution's case was not trustworthy. The trial
court has rightly held all the members of the unlawful assembly to
be guilty of the offence punishable under Section 302 of the IPC
even if few of them had not, in fact, given any blow. Accordingly,
in our opinion, conviction of the appellants for commission of the
offence punishable under Section 302/149 of the IPC does not
require any interference by this Court.
39. Further, the appellants appellants Ram Gahan Yadav
(appellant No. 1 in Cr. Appeal (D.B.) No. 422 of 2015), Murahu
Yadav (appellant No. 5 in Cr. Appeal (D.B.) No. 431 of 2015),
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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Ramji Yadav (appellant No. 5 in Cr. Appeal (D.B.) No. 422 of
2015) and Devendra Yadav @ Pintu Yadav (appellant No. 2 in Cr.
Appeal (D.B.) No. 416 of 2015) have been convicted of the
offences punishable under Section 148 of the IPC. Section 148 of
the IPC reads as under: -
"148. Rioting, armed with deadly
weapon.--Whoever is guilty of rioting, being
armed with a deadly weapon or with anything
which, used as a weapon of offence, is likely to
cause death, shall be punished with imprisonment
of either description for a term which may extend
to three years, or with fine, or with both."
40. Rioting has been defined under Section 146 of the
IPC as under: -
146. Rioting.--Whenever force or
violence is used by an unlawful assembly, or by
any member thereof, in prosecution of the
common object of such assembly, every member
of such assembly is guilty of the offence of
rioting."
41. Considering the finding that these appellants were
armed with deadly weapons and being member of an unlawful
assembly used force/violence, in our considered view, their
conviction under Section 148 of the IPC by the trial court is also
justified.
Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023
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42. In view of the above mentioned discussions, we are
of the view that the impugned judgment of conviction dated
21.04.2015and a consequent order of sentence dated 28.04.2015 passed by the learned Additional Sessions Judge-II, Kaimur, Bhabhua, in Sessions Trial No. 473 of 2012 (CIS No. 2603 of 2014), arising out of Chand P.S. Case No. 48 of 2012, does not require any interference, except in case of the appellant, Bal Kishun Yadav of Criminal Appeal (DB) No. 431 of 2015.
43. Now, coming to the finding of conviction as regards the appellant Bal Kishun Yadav of Cr. Appeal (DB) No. 431 of 2015 is concerned, we cannot lose sight of the fact that the FIR in the present case contains detail description of the manner of occurrence and participation of the persons named in the FIR in commission of the offence. Absence of this appellant's name in the FIR and his subsequent implication after substantial delay can be said to be upon deliberation amongst the prosecution witnesses. In our considered opinion, in the facts and circumstances of the case, benefit of doubt can be given to the appellant No. 1 Bal Kishun Yadav of Cr. Appeal (DB) No. 431 of 2015.
44. Accordingly, the appellant No. 1 Bal Kishun Yadav of Cr. Appeal (DB) No. 431 of 2015 stands acquitted of the Patna High Court CR. APP (DB) No.416 of 2015 dt.18-01-2023 37/37 charges. He is on bail. He is discharged from the liability of the bail bonds and the sureties, if any.
45. The appellants of Cr. Appeal (D.B.) No. 422 of 2015 and rest of the Cr. Appeal (D.B.) No. 431 of 2015 are on bail. Their bail bonds stand cancelled. They are directed to surrender before the court below for them to be sent to jail for serving the remaining sentence.
(Chakradhari Sharan Singh, J)
Khatim Reza, J: I agree.
(Khatim Reza, J)
Pawan/-
AFR/NAFR NAFR
CAV DATE 11.10.2022
Uploading Date 25.01.2023
Transmission Date 25.01.2023