Patna High Court
Biru Yadav vs The State Of Bihar on 24 September, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.4815 of 2021
Arising Out of PS. Case No.-196 Year-2010 Thana- BARBIGHA District- Sheikhpura
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1. Biru Yadav, S/o Late Jalo Yadav, R/o village- Panaypur, P.S.- Barbigha,
District- Sheikhpura.
2. Bilash Yadav, S/o Late Jalo Yadav, R/o village- Panaypur, P.S.- Barbigha,
District- Sheikhpura
3. Naresh Yadav, S/o Late Jalo Yadav, R/o village- Panaypur, P.S.- Barbigha,
District- Sheikhpura.
4. Suresh Yadav, S/o Late Jalo Yadav R/o village- Panaypur, P.S.- Barbigha,
District- Sheikhpura.
5. Adhik Yadav, S/o Bilash Yadav R/o village- Panaypur, P.S.- Barbigha,
District- Sheikhpura.
... ... Appellant/s
Versus
The State of Bihar.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate
Mr. Ritwik Thakur, Advocate
Mrs. Vaishnavi Singh, Advocate
For the Respondent/s : Mr. Anand Mohan Prasad Mehta, APP
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
CAV JUDGMENT
Date : 24.09.2024
1. The present appeal preferred by
appellants/convicts against judgment of conviction dated
28-10-2021and order of sentence dated 01-11-2021 passed by the learned Addl. District and Sessions Judge- III, Sheikhpura, passed in Sessions Trial No. 714/2011/Trial No. 33/2021 in connection with Barbigha P.S. Case No. 196/2010, whereby and Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 2/45 whereunder appellants/convicts have been convicted for the offences punishable under sections 147, 148, 323, 324, 337, 307, 149 of the Indian Penal Code and Section 27 of Arms Act and sentenced them to undergo rigorous imprisonment for seven (07) years and fine of Rs. 3,000/- (Rupees three thousand) each for Section 307 of the Indian Penal Code and in default of payment of fine, they shall ordered to undergo extra imprisonment for three months. They shall further undergo imprisonment for a period of two years for the offence under Section 147 of the Indian Penal Code. They shall further undergo rigorous imprisonment for a period of two years for the offence under Section 148 of the Indian Penal Code. They shall further undergo rigorous imprisonment for a period of one year for the offence under Section 324 of the Indian Penal Code and they shall further ordered to undergo rigorous imprisonment for a period of four years for the offence under Section 27 of the Arms Act and in default of Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 3/45 payment of fine, they shall ordered to undergo extra imprisonment for three months. All the sentences imposed to the accused persons shall ordered to run concurrently.
2. The crux of prosecution case as it appears from written information of the informant, namely, Lakhan Yadav (PW-2) that on 14.09.2010, on the date of incident, when he was sitting on his Protico (Verandah) at about 07:30 A.M. then accused/appellant Adhik Yadav and Tano Yadav came armed with country made gun and country made pistol, accused/appellant Biru Yadav also came armed with country made gun, accused/appellant Bilash Yadav also came there armed with a country made gun and they started digging his land for the purpose of fixing the peg (Khunta), when he objected for this act of accused/appellants then all accused persons started abusing him. Bilash Yadav assaulted with fists and kick and when he tried to save himself then Biru Yadav fired upon him but the bullet Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 4/45 missed him, which hit to the nearby wall of a school. Thereafter, upon hearing sound of firing Bhuso @ Bhushan Yadav and Suresh Yadav also fired upon him with country made gun but this time also bullet did not hit him, then Naresh Yadav gave a " Garasa" blow but he managed to save himself. In the meantime, Adhik Yadav, and Tano Yadav fired upon him with country made gun and country made pistol, resultantly, multiple firearm injuries caused upon his body. Later on, the wife of accused Adhik Yadav and Suresh Yadav started pelting stone on him. In the meantime, hearing the sound of firing, his relatives and family members came on the spot and they were taken him to the Barbigha Referral Hospital, at Barbigha, where his statement was recorded by Barbigha Police.
3. After investigation, police submitted charge sheet no. 11/2011 on 31.01.2011 under Sections 147, 148, 149, 323, 324, 307, 504 of the Indian Penal Code and Section 27 of the Arms Act Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 5/45 against appellants and others. Thereafter, learned C.J.M., Sheikhpura took cognizance against appellants and other co-accused under Sections 147, 148, 149, 323, 324, 307, 504 of the Indian Penal Code and Section 27 of the Arms Act and, thereafter, case was transferred to the court of learned District and Sessions Judge, Munger (Sheikhpura at that time part of Munger judgeship), later on, case was transferred in the court of F.T.C. III, Sheikhpura for trial and disposal.
4. To established its case before the learned trial court, the prosecution altogether examined total of eight witnesses, namely, PW-1 Bundela Yadav (eye- witness), PW-2 Lakhan Yadav (Informant/victim/injured eye witness), PW-3 Sanjay Yadav (eye witness), PW-4 Awadhesh Yadav (eye-witness and son of the informant), PW-5 ASI Ram Pravesh Singh (I.O. of this case), PW-6 Dr. Sunita Kumari, who examined the victim and submitted the injury report, PW-7 Kailash Yadav (co-villager declared hostile) and PW-8 Binod Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 6/45 Yadav (co-villager declared hostile).
5. The prosecution also exhibited following documents during the trial to substantiate its case which are as:-
Exhibit 1 - Fardbeyan Exhibit 2 - Signature on fardbeyan of Lakhan Yadav.
Exhibit -3 - Writing and Signature on fardbeyan of S.H.O. Exhibit -3/1- Registration order of SHO and writing and signature.
Exhibit -4- Formal FIR Exhibit -5- Injury Report Exhibit -6- X-ray report Exhibit -7- 5/a Suppl. injury report
6. On the basis of evidences, as surfaced during the trial, the appellants/convicts were examined under Section 313 of the Cr.P.C., where they denied all Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 7/45 the evidences as surfaced against them and claimed their complete innocence and false implication.
7. Total of three witnesses were examined on behalf of accused/appellants during the trial in their defence.
8. No. documentary evidence was adduced on behalf of the appellants/accused.
9. On the basis of aforesaid evidences, learned trial court convicted the appellants and passed order of sentence, as aforesaid, being aggrieved of which, appellants/convicts preferred the present appeal.
10. Hence the present appeal.
11. While opening the argument, Mr. Ajay Kumar Thakur, learned counsel appearing on behalf of the appellants submitted that there are several material aspects which were overlooked by the learned trial court while recording the judgment of conviction. In support of his submission, it is submitted by Mr. Thakur that the present occurrence took place admittedly in the Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 8/45 background of the land dispute, where, the land in issue found "Gairmajarua" land and was not belongs to the informant. It is submitted that the place of occurrence as deposed by investigating officer of this case is quite different with PW-4, who is none but the son of the informant, making entire occurrence doubtful.
12. It is further submitted by Mr. Thakur that all witnesses i.e. PW-1, PW-3 and PW-5 are the relatives/son of the PW-2/injured. They claimed to be an eye-witness of the occurrence and if their statement be taken into consideration qua occurrence, it appears that the manner of occurrence narrated by all these eye- witnesses are different, creating a big question mark qua occurrence. Moreover, these witnesses are interested being relative and son of the informant as to secure the conviction and therefore, the conviction as recorded by the learned trial court by relying upon these interested witnesses are also bad in eye of law.
13. It is further submitted that as per Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 9/45 testimony of PW-2, it appears that occurrence took place in two parts, where in first part his daughter-in-law was assaulted and his jewelry was looted by accused persons including appellants. In first occurrence, appellants were not said to be equipped with any arms, neither they were physically assaulted to the informant whereas, subsequently five accused persons/appellants were deposed to fire upon informant/PW-2. If statement of injured/PW-2 be taken into consideration, he must had seven firearm injuries but upon medical examination, only four small pellet injuries of ¼" was found, which completely falsified the occurrence. In this context, it is submitted that having all opportunity in hand and knowing the fact that gunshot injuries as caused upon informant is not sufficient to cause his death, no further firing was made by appellant no. 5, namely Adhik Yadav or by any appellants without having any intervening circumstances and therefore, it cannot be said that appellants were under intention to cause death of Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 10/45 injured/informant. All four injuries were found "simple" in nature and was not of such nature which in ordinary course of nature may cause death. In view of aforesaid medical finding, it cannot be gathered that appellants were under knowledge that their act might cause death of PW-2 and therefore, the conviction as recorded under Section 307 of the Indian Penal Code is completely bad in eyes of law. It is further submitted that a counter criminal case was also lodged against informant's side by appellants, which suggest inimical terms and, therefore, a false implication out of inimical terms cannot be ruled out straightway as to secure the conviction.
14. In support of aforesaid argument, learned counsel relied upon the legal report of Nand Lal v. State of Chhattisgarh, reported through (2023) 10 SCC 470 and Khema v. State of U.P., reported through (2023) 10 SCC 451 and also relied upon the report of Jage Ram & Others Vs. State of Haryana reported in (2015) 11 SCC 366.
Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 11/45
15. Mr. Anand Mohan Prasad Mehta, learned APP while appearing on behalf of the State submitted that informant/PW-2 specifically deposed against appellant no. 5, namely, Adhik Yadav, who caused multiple firearm injuries upon him. It is submitted that the doctor/PW-6 also found pellet injuries upon PW-2/informant and therefore, in view of said corroborations, the conviction as recorded by the learned trial court cannot be looked with tented glass. It is submitted that by taking note of nature of weapons and the body parts upon which, injuries were inflicted, it can be gathered safely that appellants were under intention to cause death of injured/PW-2. It is further submitted that as the occurrence took place near to the house of both the parties, therefore, the presence of family members appears very natural and merely on the ground that they are son or relatives of the injured/informant/PW-2, their testimony cannot be discarded being interested witness. Learned APP further Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 12/45 submitted that to convict the accused under Section 307 of the Indian Penal Code it is not essential that bodily injury which may cause death should have been inflicted and it is sufficient if intention to cause death with some overt act in execution thereof are available. It is further submitted that merely because the injuries inflicted on the victim are simple in nature it would not be correct to acquit appellants under Section 307 of the Indian Penal Code. In support of his submission, learned APP relied upon the legal report of Hari Mohan Mandal Vs. State of Jharkhand reported through 2004(3) PLJR SC 7.
16. I have perused the trial court records carefully and gone through the evidences available on record and also considered the rival submissions as canvassed by learned counsel appearing on behalf of the parties.
17. As to re-appreciate the evidence, while disposing the present appeal, it is apposite to discuss the evidences available on record, which are as under:-
Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 13/45
18. PW-1 is Bundela Yadav, who deposed that occurrence took place before one and half years, in morning at 9:00 AM. He deposed to be present near to land of Lakhan Yadav (PW.2) and saw that Naresh Yadav was inserting peg (Khunta) on that land, which was objected by Lakhan Yadav, whereafter firstly Naresh Yadav started to abuse him and thereafter, Biru Yadav, Adhik Yadav, Tano yadav, Suresh yadav, Ghoshi Yadav @ Bhushan, Bilash Yadav and also the wife of Adhik Yadav, Biru Yadav and Suresh Yadav came over there. Upon instruction of Naresh Yadav, Biru Yadav, Suresh Yadav, Adhik Yadav, Tano Yadav, Bilash Yadav opened fire by rifle and country made pistol, which hit upon right arm, neck, right chest and abdomen of Lakhan Yadav. It was the firing of Adhik Yadav and Tano Yadav, which caused gunshot injuries to the informant/PW-2. It was deposed that after receiving aforesaid injuries, PW-2 fell down to the ground and thereafter, the accused persons fled away. He alongwith others brought Lakhan Yadav Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 14/45 (PW-2) to the government hospital at Barbigha, where he was treated and his statement was recorded by police inspector. He also signed as a witness on his statement, which was identified by him and upon his identification exhibited as Exhibit No. 1. On next day informant/PW- 2 was referred to Patna Medical College and Hospital (in short "PMCH"). He also accompanied him. He identified all accused persons/appellants during the trial.
18.1. Upon cross-examination, he stated that PW-2/informant is his brother. It was stated that no land related litigation is pending between the parties but a Panchayati was conveyed. He recorded his statement with police on the date of occurrence itself. He stated to arrive at place of occurrence after 1-2 minutes of fleeing of accused persons/appellants and saw the informant in injured conditions. Several persons were present there like Sanjay Yadav, Awadhesh Yadav, Chinta Devi, Kailash, Vinod, Baleshwar Yadav. They said to be arrived at place of occurrence immediately after his arrival. It Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 15/45 was stated that Lakhan Yadav received 5-6 injuries. He stated that injuries were on right arm, abdomen, chest neck etc. Out of aforesaid injuries, one injury was found bleeding. The clothes were also stained with blood and it also dropped to the ground. He could not depose whether police visited place of occurrence or not. It was stated that total firing was of 8-10 rounds. He was in standing mode at the time of firing. All injuries were caused by bullet. He did not saw any injuries caused by lathi and rod. It was stated that pellet was removed from neck. Total of 5-7 pellets were removed from five injuries. It was stated that statement of Lakhan Yadav (PW-2) was recorded by police before him, thereafter, he never met with police. He returned after 15 days from Patna. He did not met with police in Patna. It was stated that the disputed land was also claiming by appellant's side. No gun or empty cartridges were said to be recovered from the place of occurrence.
19. PW-2 is Lakhan Yadav, who is the Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 16/45 informant of this case and the most important witness of the occurrence being injured. It was deposed by him that occurrence took place on 14.09.2010 at 9:00 A.M. Naresh Yadav was forcibly inserting peg (Khunta) on his land, which was objected by him, thereafter, Naresh Yadav (appellant no. 3) ordered to kill him, whereafter Biru Yadav, Naresh Yadav, Suresh Yadav, Bilash Yadav, Ghosu @ Bhushan Yadav, Adhik Yadav, Tano Yadav, wife of Adhik Yadav, wife of Biru Yadav, wife of Suresh Yadav started pelting stones on his daughter-in-law and finally caught hold her and taken her golden jewelries of ear, golden chain, hand bangles etc., thereafter, Adhik Yadav and Biru Yadav opened fire. It was deposed that firing made by Biru Yadav, hit to the wall of a school, whereas firing of Adhik Yadav and Tano Yadav hit him. Out of which, he received several pellet injuries, which inserted on different parts of his body. One injury was caused upon his beard, two injuries on his left upper arm, one injury on his left chest and two places at his Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 17/45 abdomen. It was deposed that firing of Bilash Yadav crossed him and hit into wall. It was further deposed that firing of Suresh Yadav also crossed him, which hit to the wall. The firing of Ghoshi Yadav also crossed him without causing any injury. It was deposed that Naresh Yadav gave a "garasa" blow on his neck but it could not harm him. When he fell down to the ground, his family members like Bundela Yadav (PW-1), Sanjay (son/PW-
3), Rajju Yadav etc. brought him hospital by carrying on cot, from where doctor sent him to police station, whereafter, he came to the police station, where he gave his statement before Jamadar, which was recorded and sent him again to hospital. He identified his signature upon written information, which upon his identification exhibited as Exhibit No. 2. He also made statement regarding his daughter-in-law but same was not recorded by police. After giving his statement, he returned to the hospital, where his pellet was removed and treatment was given, on next very day, he was Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 18/45 referred to PMCH, where he remained admitted for 14 days. After returning from hospital, he met with police. Dy. S.P. also came to his village for inquiry. He identified the one of the appellant before the court, as same who opened fire first, which hit to the school wall. He also identified rest of the persons.
19.1 Upon cross-examination, it was stated that the proceeding under Section 144 of the Cr.P.C. was pending between them, whereas he denied to pending civil litigation like any suit for the title declaration. It was stated that firstly, he made his statement in police station before the police and secondly, during investigation, while he was admitted in PMCH. It was stated that he was in sense after receiving bullet injuries and immediately after receiving injuries, he sit down there. He saw gun and pistol in hand of accused/appellants before firing. It was stated that first firing was opened by Biru Yadav, which hit to the wall of a school. It was stated that Biru Yadav fired twice from Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 19/45 country made gun. It was stated that Ghusho Yadav @ Bhushan Yadav also fired upon him, which crossed him and hit on the wall. He also fired from country made gun. Tano Yadav was equipped with pistol, Adhik Yadav was equipped with country made gun. Pelting of stone was not on him, rather it was on his daughter-in-law, namely Rubi Devi, wife of Sanjay yadav (PW-3). Stones hit on arm and leg of his daughter-in-law but she was not medically examined. He denied suggestion that he is deposing falsely and his daughter-in-law did not received any injury, out of pelting of stones. It was stated that a case was also lodged by accused persons/appellant's side in his defence and they did not received any treatment and it was a case of theft. It was stated that Bundela Yadav (PW-1) was present at place of occurrence, prior to the occurrence. It was also stated that none of his relatives made attempt to save him. It was stated that from two firings, he received 6 penetrative wounds. The pellet of abdomen was removed after operation. It was Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 20/45 stated that four pellets/cartridges were removed from his abdomen, arm etc. His son was present at that time. It was caused by the firing of Adhik Yadav and Tano Yadav. The second firing was made by Tano Yadav from pistol, which was made from the distance of 10 hands. There was total of 8 firing. The single firing was made by Adhik Yadav and Tano Yadav but pellet caused injuries at several parts of his body. First firing was made by Adhik Yadav. It was stated that his " ganji", "lungi" was stained with blood and with same clothes, he went Patna, where his clothes was washed. He denied the suggestion that he received injuries as he fell down to the ground.
20. PW-3 is Sanjay Yadav, who is the son of PW-2. He claiming to be an eye-witness of the occurrence and deposed that it was the firing of Adhik Yadav and Tano Yadav, which hit on the abdomen of his father. It caused penetrative wounds at several parts of the body. Naresh Yadav gave a "garassa " blow on the Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 21/45 neck of his father but it could not hit him. It was deposed that wife of Biru, Suresh and Adhik Yadav snatched jewellery of his wife. He brought his father to government hospital, where he was treated by doctor Murari and on next day he brought him to PMCH, where he remained for 8 days.
20.1 Upon cross-examination, it was stated that firing was made from a distance of 10 hands. All accused persons came together, who were seven in numbers. Firing was made one by one. He did not received any injury during the occurrence as he kept himself hide. It was stated that Suresh Yadav, Biru Yadav, Ghoshi Yadav, Adhik Yadav and Bilash Yadav were equipped with gun, whereas Tano Yadav was equipped with pistol. Naresh Yadav was equipped with "garassa". He described place of occurrence, where he said that, in North of it, his house is located, in south, the house of Naresh Yadav and Biru Yadav is located. In East, the house of Sarju Yadav is there, whereas in West Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 22/45 there is a canal. The land was said to be purchased by him from one Kaleshwar and Vinod. His statement was said to be recorded by police after two days of the occurrence. He also accompanied his father for Patna. He remained there for four days.
21. PW-4 is Awadhesh Yadav, who is also the son of informant/PW-2. He almost narrated the occurrence in same manner as it was deposed by PW-3. It was deposed by him that firstly, he brought his father/PW-2 to thana and met with Bada Babu/SHO, whereafter he was sent to government hospital, where his father received treatment and pellets from his body were removed and on next day he was referred to PMCH.
21.1 Upon cross-examination, he said to be present at place of occurrence but did not received any injury. He did not make any attempt to save his father. It was stated that all witnesses saw the occurrence from a distance and not witnessed the occurrence from close Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 23/45 range. It was stated that Rajju Yadav, Pradeep Yadav, Sanjay Yadav (PW-3), Bundela Yadav (PW-1), Awadhesh Yadav went near to the place of occurrence. He denied the suggestion that he was not present at place of occurrence.
22. PW-5 is I.O. of this case, who is S.I. Ram Pravesh Singh, who was posted on 14.09.2010 in Barbigha police station, where he received charge of investigation of this case i.e. 196/10 on same day. After receiving charge, he went to the hospital and recorded re-statement of PW-2. At that place only, he recorded statement of Sanjay Yadav, Awadhesh Yadav, Bundela Yadav (PW-1). He recorded the statement of Chinta Devi at Panaypur, thereafter, he visited place of occurrence, which is a "Gairmajarua" land, where he found a peg (khunta) inserted in land, for which occurrence took place. He also found one " Nad" there. He described boundary of place of occurrence as in south, house of Naresh Yadav (accused/appellant no. 3). Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 24/45 In north, the house of Lakhan Yadav (PW-2), in West, one public passage and Tati river and in East, the land of Lakhan Yadav (PW-2). He recorded statement of Kailash Yadav, Vinod Yadav, Kaleshwar Yadav on 16.09.2010. He obtained injury report from PMCH and submitted charge sheet. The statement of PW-2 said to be recorded in handwriting of ASI Shashi Bhushan Kumar, which he identified during trial and upon his identification, same was exhibited as Exhibit No. 3. Endorsement for lodging case is also in handwriting and under signature of Shashi Bhushan Srivastava, which upon his identification exhibited as Exhibit No. 3/1. FIR is in handwriting of Thana Munshi supported by the signature of Shashi Bhushan Srivastava, then police station in-charge, which upon his identification exhibited as Exhibit No. 4.
22.1 Upon cross-examination, it was stated by him that he did not collect blood stained soil from place of occurrence. It was stated that near to the place of Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 25/45 occurrence, only the house of appellants/accused and informant are located. He did not find any mark of bullet in any wall. He did not even recovered any empty cartridge from place of occurrence. He did not find even any blood on soil. He did not even given any pellet/cartridge by doctor. X-ray plate was also not deposited with him. Till date he did not submit x-ray plate and x-ray report before the court. He identified the injury report of PW-2, which upon his identification was marked as "X". It was said that report was issued from PMCH. He was not aware about its content. Same was also not prepared before him. He received it by post.
23. PW-6 is Dr. Sunita Kumari, who examined the injured/informant, namely, Lakhan Yadav on 24.04.81 at about 12:00 PM and found the following injuries on his person:-
1. (i) Small penetrating wound over epigastric region of abdomen size ¼"
circular charring around wound, red in colour small foreign body substance in palpable near Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 26/45 wound x-ray suggested.
(ii) Penetrating would of ¼" size in ancillary region of chest wall, red in colour small hard foreign body substance as palpable near wound x-ray suggested.
(iii) Penetrating wound of size ¼"
circular, red in colour on mid portion of left arm. Small hard foreign body substance palpable near wound X-ray suggested.
(iv) Penetrating wound on front of chest wall of size of ¼" red in colour. Hard foreign body substance palpable near wound X-ray suggested.
Opinion reserved caused by fire are injury.
MI a scar mark on lower leg left side.
Time of injury- less than 06 hours.
This injury is in pen and signature.
Mark at 5.
Injured was referred to PMCH.
In cross-examination, she stated following:-
Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 27/45
2. Blood clot was not found in any wound. Gun powder was also not present, blood started clotting after sometime in injury. So, it may be presumed that injury may be within one to two hours. No any bullet or pellet seen by naked eye in the injury.
3. She advised the X-ray, but no any X-ray report or x-ray plate produced before her, she had not prepared any supplementary injury report after this injury report. Injury report does not disclose specific foreign particles. There is no foreign particles before her in the count. Opinion reserved till today.
4. Such type of injuries may not be possible by broken glass. And this type of injury also not possible by iron rod.
5. It is not the fact that she has not found any foreign particles of firearm and she prepared injury report with the collusion of the informant.
6. Further, it is pertinent to mention that this witness further re-
examined. After recall under Section 311 Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 28/45 Cr.P.C. in which she stated that this supplementary report was prepared by me on 12.07.2012 this report was prepared on the basis of X-ray report of radiologist.
7. This report is in continuation of injury report of Lakhan Yadav, S/o Late Parmeshwar Yadav who has been examined earlier by me on 14.09.2010 and for the injuries for whom had kept her opinion reserved for X-ray examination are as below.
X-ray report was produced before me. X-ray done at Nalanda X-ray Hatia More Barbigha, Sheikhpura dated 14.09.2010 reported by Dr. Birendra Kumar. O.M.R.D. P.H.C. Sheikhpura.
(i) X-ray chest A.P. view.
(a) No bony lision seen. Lungs fields are clear.
(b) There are three radio opaque round shadow simulating metallic pellets in the left side of chest. One in mid portion, one in periphery and one in the abdominal area below left diaphragm. Whether there is superficial or deep, it cann't be said.
(ii) X-ray plain abdomen (erect Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 29/45 position)
(a) No bony lision seen. No evidence of gas shadow under right dome of diaphragm.
(b) There are two radio opaque shadow (round) simulating metallic pellets in the left side. One left side of abdomen and below the left done of diaphragm. Pellets are superficial or deep, it cannot be said.
In my opinion no bony injuries. No evidence of gas shadow under right done of diaphragm. Hence all injuries are simple in nature caused by fire arm.
8. This report is in my pen and signature.
9. In cross- examination, she stated that on the injury report of Nalanda X- ray by Dr. Upendra Kumar Signed on 12.06.2012, her report is fully based on X- ray and report of radiologist.
10. Decree of Doctor Birendra Kumar D.M.R.D. is not known to me. I do not know that he was a competent radiologist or not. A competent radiologist must have the Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 30/45 degree of M.B.B.S.
11. Dr. Birendra Kumar is posted at P.H.C. Sheikhpura, it located far away from Sheikhpura Sadar Hospital.
12. Lakhan Yadav had already been examined by me at Referral Hospital, Barbigha.
13. Nalanda X ray, Barbigha is a private x-ray clinic.
14. I cannot say about the delay of this x-ray report.
15. It is not in x-ray report and in report of radiologist that pellets of firearms were found.
16. Metallic pellets were not ejected/removed from the body of injured at the time of first examination.
17. It is not the fact that this x-
ray report is not proper and my supplementary report is also not proper and just.
24. PW-7 is Kailash Yadav and PW-8 is Vinod Yadav, both these witnesses turns hostile during trial, Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 31/45 where PW-7 categorically stated that he is not aware about anything regarding this occurrence and he never made any statement before the police. Upon cross- examination by State, nothing appears substantial, out of his deposition, which may use for the purpose of contradiction or corroborating the testimony of other prosecution witnesses, who supported the case of prosecution. PW-8 though in his examination-in-chief supported the occurrence but he stated that he was not present there. It was deposed that he came to know that some altercation took place between the family of Lakhan Yadav (PW-2) and accused/appellant Naresh Yadav. He was never inquired by police. Upon his cross- examination by State nothing appears substantial as to contradict or corroborate with the evidence of other prosecution witnesses who supported the occurrence. On cross-examination by defence, it was deposed by him that he did not saw any occurrence.
25. It would be apposite to reproduce the legal Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 32/45 provisions as available under Section 307 of the Indian Penal Code for better understanding of fact and position of law, which is as under:-
"307 Attempt to murder.--
Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts.-- When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death".
26. It would further be apposite to reproduce para nos. 12, 13 and 14 of the Jage Ram' case (supra), which reads as under:-
"12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 33/45 accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc.
13. In State of M.P. v. Kashiram [State of M.P. v. Kashiram, (2009) 4 SCC 26 : (2009) 2 SCC (Cri) 40 : AIR 2009 SC 1642] , the scope of intention for attracting conviction under Section 307 IPC was elaborated and it was held as under: (SCC pp. 29-30, paras 12-13) "12. ... '13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 34/45 accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.
14. This position was highlighted in State of Maharashtra v. Balram Bama Patil [State of Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28 : 1983 SCC (Cri) 320] , Girija Shankar v. State of U.P. [Girija Shankar v. State of U.P., (2004) 3 SCC 793 : 2004 SCC (Cri) 863] and R. Prakash v. State of Karnataka [R. Prakash v. State of Karnataka, (2004) 9 SCC 27 : 2004 SCC (Cri) 1408] .
16. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is the intention or knowledge, as the case may be, and not the nature of the injury.' See State of M.P. v. Saleem [Saleem case, (2005) 5 SCC 554 : 2005 SCC (Cri) 1329] , SCC pp. 559-60, paras 13-14 and 16.
Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 35/45
13. '6. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N. [Sevaka Perumal v. State of T.N., (1991) 3 SCC 471 : 1991 SCC (Cri) 724] ' (Saleem case [Saleem case, (2005) 5 SCC 554 : 2005 SCC (Cri) 1329] , SCC p. 558, para 6)"
14. Having regard to the weapon used for causing the head injuries to Sukhbir, nature of injuries, situs of the injuries and the severity of the blows, the courts below recorded concurrent findings convicting the second appellant under Section 307 IPC. In our considered view, the conviction of the second appellant Rajbir alias Raju under Section 307 IPC is unassailable."
27. It would further be apposite to reproduce para nos. 32 and 33 of the Nand Lal's case (supra), which reads as under:-
"32. Undisputedly, the present case rests on Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 36/45 the evidence of interested witnesses. No doubt that two of them are injured witnesses. This Court, in Vadivelu Thevar v. State of Madras [Vadivelu Thevar v. State of Madras, 1957 SCC OnLine SC 13 : 1957 SCR 981 :
AIR 1957 SC 614] , has observed thus : (AIR p. 619, paras 11-12) "11. ... Hence, in our opinion, it is a sound and well-established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial."
33. It could thus be seen that in the category of "wholly reliable" witness, there is no difficulty for the prosecution to press for conviction on the basis of the testimony of such a witness. In case of Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 37/45 "wholly unreliable" witness, again, there is no difficulty, inasmuch as no conviction could be made on the basis of oral testimony provided by a "wholly unreliable" witness. The real difficulty comes in case of the third category of evidence which is partly reliable and partly unreliable. In such cases, the court is required to be circumspect and separate the chaff from the grain, and seek further corroboration from reliable testimony, direct or circumstantial."
28. It would further be apposite to reproduce para no. 31 of the Khema's case (supra), which reads as under:-
"31 From the perusal of the evidence as well as the findings of the trial court itself, it is clear that Omveer (PW 1) cannot be said to be an eyewitness. Though, Inder (PW 2) is an injured eyewitness, there are serious discrepancies and inconsistencies with regard to time of the injuries sustained and time at which he was medically examined. Dr Anoop Kumar (PW 6), in his evidence, has changed his stance on several occasions. His testimony is totally contrary to that of Omveer (PW 1) and Inder (PW 2). As held by us, it will not be safe to base the conviction on the sole testimony of Inder (PW 2) though he is an injured witness. The corroboration sought by the prosecution with regard to alleged recoveries of the weapons used in the crime is also not free from doubt. Neither the station diary entry with regard to telephonic Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 38/45 intimation given by Vijay Singh at 9.05 a.m. has been brought on record nor has Vijay Singh been examined. Though independent witnesses were available, the prosecution has failed to examine them. We therefore find that this is a case wherein the appellants are entitled for benefit of doubt."
29. The most important witness of this occurrence is injured/PW-2 Lakhan Yadav, it appears from his deposition that he is the only injured witness of this occurrence, who received bullet injuries during the occurrence fired by appellant no. 5, namely Adhik Yadav. From his testimony, it appears that he narrated a different version during trial what he narrated through his written information i.e. Exhibit-3. It appears from his written information that his statement was recorded in referral hospital, Barbigha, where he did not make any statement regarding the occurrence of pelting stones by accused persons and also snatching of jewelries from his daughter-in-law, namely Ruby Devi. From his testimony, it further appears that his statement was recorded by police at police station, where no such allegation raised. Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 39/45 It appears from his testimony that appellant no. 3, namely, Naresh Yadav gave a "garassa blow" on his neck but it could not hit him. Firing made by rest of the accused/appellants either missed him or hit to the wall, where during investigation, I.O. of this case i.e. PW-5 did not find any bullet mark on the wall, which he visited on the same day of the occurrence i.e. 14.09.2010.
30. In view of the testimony of PW-2, the statement which was made before the police was not brought on record. The written information was appears to be drawn at hospital by A.S.I., Shashi Bhushan Srivastava, who could not examined during the trial to prove the contents, which was recorded by him.
31. Coming to the deposition of PW-6, Dr. Sunita Kumari, who was posted at Barbigha Referral Hospital and examined PW-2 on the date of occurrence, found only four penetrative wounds, all was of size ¼"
and found "simple" in nature and was not of such nature, which may likely to cause death in ordinary Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 40/45 course of nature. Admittedly, firing, which hit to the injured/informant/PW-2 was made by two accused persons i.e. by appellant no. 5, namely, Adhik Yadav and Tano Yadav (who is not the appellant). The pellet which was alleged to be removed by the doctor was not collected by PW-5/I.O. During investigation, I.O. did not find any blood spot on the ground or collected any blood stained clothes from informant/PW-2 in support of his allegation. No empty cartridges were recovered from the place of occurrence. PW-1, namely, Bundela Yadav categorically stated that during the occurrence, garassa, rod and lathi were not used but PW-2 stated that the appellant no. 3, namely Naresh Yadav gave a "garassa"
blow on his neck but same could not hit him. It also appears from his deposition that he returned from Patna after 15 days. PW-2/injured stated that he remains admitted for 14 days in PMCH, whereas PW-3 Sanjay Yadav categorically stated in his examination-in-chief that he also accompanied his father (PW-2) for PMCH, Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 41/45 Patna where his father remains for 8 days only in connection with his treatment. All such contradictions creates a doubt regarding trustworthiness of the injured witness/PW-2 qua occurrence.
32. Interestingly, PW-2/injured during his cross-examination, while identifying accused persons, identified one accused by saying that he was the first person, who opened fire, which hit to the school wall and he identified other accused persons in general manner. If it was the appellant no. 5, namely, Adhik Yadav, whose firing hit on his abdomen, he must be identified in the same manner as he identified the accused, who made first firing upon him, which hit to the school wall. It appears from his statement that he immediately sit down after receiving bullet. He is silent that he sat down after receiving the first bullet as deposed to be fired by appellant Adhik Yadav or after hitting second bullet as deposed to be fired by Tano Yadav (who is not appellant before this Court). His this statement making a doubt Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 42/45 regarding receiving injuries out of specific firing of appellant no. 5, which deposed to be hit on his abdomen. He also stated that a counter case of this occurrence was lodged by appellants.
33. It appears highly surprising that when during the occurrence, the wife of PW-3 and daughter- in-law of PW-2 was assaulted and her valuable golden jewelleries were snatched, her husband (PW-3), his brother-in-law (PW-4) and also PW-1 and PW-2, who are cousin father-in-law and father-in-law respectively, could not came forward to rescue her. Even PW-1, PW-3 and PW-4 who are none but the own brother and son of PW-2 did not came forward to rescue him during the occurrence despite of such close relation. PW-4 stated in his cross-examination that none of the witnesses saw the occurrence from near and they saw it from a distance. It was stated by PW-3 that during occurrence, he kept himself hide. All such testimonies make a doubt whether PW-1, PW-3 and PW-4 are the eye-witnesses of the real Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 43/45 occurrence.
34. Coming again to the testimony of PW-2, it appears that immediately after the first occurrence when his daughter-in-law was assaulted by pelting stones and her jewelleries were looted by all accused persons, he did not witnessed any firearm or " garassa"
in hand of accused/appellants. Nothing appears from his deposition that after the first occurrence, the appellants/accused went to their home and came equipped with "garassa" and firearms, therefore, this question remains unanswered that how the alleged firearms and garassa came to the hands of accused/appellants, when all of them at first instance were not found equipped with any firearm injuries. PW-
2, further deposed that on second occasion, he was examined by police at PMCH, Patna but I.O./PW-5 deposed that re-statement of PW-2 was recorded at Barbigha Hospital. I.O./PW-5 did not given any pellet removed from the body of PW-2. PW-6/doctor also Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 44/45 deposed that no pellet was removed at the time of first examination at Barbigha hospital contrary to the deposition of PW-2. All such facts makes a serious doubt regarding testimony of PW-2, despite of the fact that he is the injured witness of the occurrence.
35. In view of aforesaid, it can be said safely that prosecution failed to answer certain important questions, which was must to be answered to prove its case beyond reasonable doubts qua appellants during the trial. The benefit of such doubts must be extended to accused/appellants. Thus all above named appellants are hereby acquitted from their charges by giving benefit of doubts.
36. Hence, appeal stands allowed.
37. Accordingly, the impugned judgment dated 28-10-2021 and order of sentence dated 01-11- 2021 passed by the learned Addl. District and Sessions Judge-III, Sheikhpura, passed in Sessions Trial No. 714/2011/Trial No. 33/2021 in connection with Patna High Court CR. APP (SJ) No.4815 of 2021 dt.24-09-2024 45/45 Barbigha P.S. Case No. 196/2010 is hereby set aside/quashed.
38. Appellant nos. 1 to 4 are on bail. Their bailors stands discharged from their sureties and liabilities.
39. Appellant No. 5, namely, Adhik Yadav is in custody in connection with this case, he is directed to be released forthwith, if not required in any other case.
40. Fine if any, paid by appellants be returned to them immediately.
41. Let a copy of this judgment be sent to learned trial court immediately alongwith T.C.R., if any.
(Chandra Shekhar Jha, J) veena/-
AFR/NAFR AFR CAV DATE 17.09.2024 Uploading Date 24.09.2024 Transmission Date 24.09.2024