Patna High Court
Krishna Yadav @ Megha Yadav And Anr vs The State Of Bihar on 30 September, 2024
Author: Jitendra Kumar
Bench: Ashutosh Kumar, Jitendra Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.731 of 2018
Arising Out of PS. Case No.-99 Year-2015 Thana- PANCHRUKHI District- Siwan
======================================================
1. Krishna Yadav @ Megha Yadav, S/o- Chhabila Yadav
2. Sujit @ Sujit Kumar, S/o- Krishna Yadav @ Megha Yadav,
Both are resident of Village- Nawada, P.S.- Panchrukhi, Sarai O.P., District-
Siwan.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 791 of 2018
Arising Out of PS. Case No.-99 Year-2015 Thana- PANCHRUKHI District- Siwan
======================================================
Mukhdev Yadav @ Mukhdev Chaudhari, S/o Late Lakshmi Chaudhary, R/o
Vill.- Papaur Tole Nawada, P.S.- Sarai O.P., District- Siwan.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 798 of 2018
Arising Out of PS. Case No.-99 Year-2015 Thana- PANCHRUKHI District- Siwan
======================================================
Devendra Yadav, Son of Sri Shyam Sundar Yadav, Resident of Village-
Papaur Tole Nawada, P.S.- Sarai OP, District- Siwan.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 804 of 2018
Arising Out of PS. Case No.-99 Year-2015 Thana- PANCHRUKHI District- Siwan
======================================================
Ramakant Yadav S/o Late Wakil Chaudhary, Resident of Village- Papaur Tole
Nawada, P.S.- Sarai O.P., District- Siwan.
Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024
2/34
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 821 of 2018
Arising Out of PS. Case No.-99 Year-2015 Thana- PANCHRUKHI District- Siwan
======================================================
Harishankar Chaudhary @ Harishankar Yadav, S/o Late Sheo Mandil
Choudhary, Resident of Village Papaur Tole Nawada, P.S.- Sarai OP, District-
Siwan.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 731 of 2018)
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
Mr. Sanjay Kumar Pandey, Adv.
Mr. Bijay Prakash Singh, Adv
For the State : Mr. Satya Narayan Prasad, APP
For the Informant : Mr. Ashok Kumar Verma, Adv.
(In CRIMINAL APPEAL (DB) No. 791 of 2018)
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
Mr. Ajay Kumar Pandey, Adv.
Mr. Sandeep Kumar, Adv.
Ms. Rinki Kumari, Adv.
For the State : Mr. Abhimanyu Sharma, APP
For the Informant : Mr. Ashok Kumar Verma, Adv.
(In CRIMINAL APPEAL (DB) No. 798 of 2018)
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
Mr. Ajay Kumar Pandey, Adv.
Mr. Sandeep Kumar, Adv.
Ms. Rinki Kumari, Adv
For the State : Mr. Shivesh Chandra Mishra, APP
For the Informant : Dr. Mayanand Jha, Adv.
Mr. Sujit Kumar Singh, Adv.
Mr. Ashok Kumar Verma, Adv
(In CRIMINAL APPEAL (DB) No. 804 of 2018)
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
Mr. Ajay Kumar Pandey, Adv.
Mr. Sandeep Kumar, Adv.
Ms. Rinki Kumari, Adv.
For the State : Mr. Ashwani Kumar Sinha, APP
Mr. Abhimanyu Sharma, APP
For the Informant : Mr. Ashok Kumar Verma, Adv
Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024
3/34
(In CRIMINAL APPEAL (DB) No. 821 of 2018)
For the Appellant/s : Mr. Ajay Kumar Thakur, Adv.
Mr. Ajay Kumar Pandey, Adv.
Mr. Sandeep Kumar, Adv.
Ms. Rinki Kumari, Adv
For the State : Mr. Dilip Kumar Sinha, APP
For the Informant : Mr. Ashok Kumar Verma, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE JITENDRA KUMAR
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE JITENDRA KUMAR)
Date : 30-09-2024
All the appeals have been taken up together as they
have been preferred against the same impugned judgment of
conviction and order of sentence dated 05.05.2018 and
07.05.2018respectively, passed by learned Additional Sessions Judge-Vth, Siwan, in Sessions Case No. 475 of 2016 arising out of Pachrukhi Sarai P.S. Case No. 99 of 2015, whereby all six appellants have been found guilty for the offence punishable under Sections 148, 323/149, 324/149 and 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.1,00,000/- each under Section 302/149 of the Indian Penal Code. All the appellants have been further sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000/- each under Section 148 of the Indian Penal Code. They have been further sentenced to undergo rigorous imprisonment for eight months and to pay a fine of Rs.800/- each for offence punishable under Section Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 4/34 323/149 of the Indian Penal Code. However, no separate punishment has been passed under Section 324/149 of the IPC. In case of default to pay the fine, all the appellants have been directed to undergo an additional rigorous imprisonment for one year. All the sentences have been directed to run concurrently. By the order of sentence, fifty per cent of the fine has also been directed to pay to Santosh Kumar Singh and Sanjay Kumar Singh who are brothers of the deceased, Amit Kumar.
Prosecution case
2. The prosecution case as emerging from the Fardbeyan of the informant recorded by S.I, S.N. Singh, SHO Sarai O.P. on 25.04.2015 at 23:00 O'clock at Sadar Hospital, Siwan, is that he runs tent and tea shop at village market. He was at that shop at 7:00 P.M. Some villagers of Nawada were eating Bhoonja (fried grains) from the shop of Sugriv Sah and when the shopkeeper Sugriv Sah asked for the payment of the price, they abused him. Upon this, shopkeepers from the vicinity assembled and requested them to pay the price to the poor shopkeeper. Upon this, they got angry and threatened of dire consequences and they went to their village and after half an hour, the appellants besides Ajit and Hiralal Yadav and 3-4 unknown persons came and started beating the shopkeepers and Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 5/34 villagers. Consequently, Swaminath Sah, Munna Singh, Sanjay Kumar Sah and some other persons sustained injuries. In the meantime, Amit Kumar, younger brother of the informant was coming after attending the call of nature. Seeing him, Harishankar Chaudhary stated that he is brother of the tea shopkeeper and exhorted other to finish him. Hearing this, Krishna Yadav @ Megha Yadav who was carrying Kulhari (Axe) in his hand assaulted his brother on head with intent to kill him. Subsequently, he got badly injured and fell on the road. Thereafter, they started beating him by dangerous arms in their hands. Consequently, his brother got unconscious. He took his brother to Sadar Hospital with the help of the villagers where from he was referred to Gorakhpur Hospital. On the way to Gorakhpur, in ambulance, his brother died near Gopalganj. He came back to Sadar Hospital with dead body of his brother and gave his fardbeyan. The occurrence has been seen by him besides shopkeepers and many villagers in the light of electricity.
Factual Background
3. On the basis of the Fardbeyan of the informant, Pachrukhi Sarai P.S. Case No. 99 of 2015 was registered on 26.04.2015 against 8 named accused persons including the Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 6/34 appellants herein and 3-4 unknown persons for the offence punishable under Sections 147, 148, 149, 341, 323, 324, 307, and 302 of Indian Penal Code.
4. After investigation, charge-sheet was submitted against four accused persons, namely, Krishna Yadav @ Megha Yadav, Ajit Yadav, Harishankar Choudhary and Mukhdev Choudhary keeping investigation pending against others. Consequently, cognizance was taken and the case was committed to the court of Sessions and, hence, Sessions Trial No. 475 of 2016 was instituted. Subsequently, two supplementary charge sheets were submitted against Sujit Yadav, Devendra Yadav and Ramakant Yadav giving rise to Sessions Trial Nos. 476 of 2016 and 477 of 2016 respectively. However, subsequent two Sessions Trials were amalgamated with the earlier Sessions Trial No. 475 of 2016. Charge against all the six appellants was framed under Sections 148, 149, 323/149, 324/149, 307/149 and 302/149 of the Indian Penal Code. The charges were read over to the accused which they pleaded not guilty and claimed to be tried.
5. During the trial, the prosecution examined the following nine witnesses:-
(i) P.W.-1 - Sarvanand Singh
(ii) P.W.-2 - Sanjit Raj Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 7/34
(iii) P.W.-3 - Sudama Singh
(iv) P.W.-4 - Sanjay Kumar Singh
(v) P.W.-5 - Santosh Kumar Singh (Informant)
(vi) P.W.-6 - Swaminath Sah
(vii) P.W.-7 - Dr. Pradeep Kumar
6. The prosecution also brought on record the following documentary evidences:
(i) Ext.-1 - Signature of Sanjit Rai (P.W.-2) on the fardbeyan.
(ii) Ext.-1/a- Signature of Informant on the fardbeyan
(iii) Ext.-2 - Signature of Informant on the inquest report.
(iv) Ext.-3- Injury report of Amit Kumar
(v) Ext.-3/a - Injury report of Ajit Kumar Singh
(vi) Ext.-4- Postmortem report
7. Two court witnesses namely, C.W.-1, Shambhu Nath Singh, (Investigating Officer) and C.W-2, Sugreev Sah have been also examined.
8. Following documents have been also exhibited in the evidence of the court witness No. 1:-
(i) Ext.-C-1 - Fardbeyan.
(ii) Ext.-C-1/a- Signature of SHO on the FIR
(iii) Ext.-C-1/b- Endorsement of registration on the fardbeyan.
(iv) Ext.-C-2 -Inquest report.
Statements under Section 313 Cr.PC
9. After closure of the prosecution evidence, accused persons were examined under Section 313 Cr.PC confronting them with incriminating circumstances which came in the prosecution evidence, so as to afford them opportunity to Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 8/34 explain those circumstances. During this examination, they admitted that they had heard the evidence of prosecution witnesses against them. But they did not explain any circumstance, though they claimed that the prosecution evidence is false and they are innocent. However, no evidence has been adduced in their defence.
Finding of the Trial Court
10. Learned Trial Court after appreciating the evidence on record and considering the submissions of the parties, passed the impugned judgment of conviction and order of sentence whereby all the appellants have been found guilty and sentenced accordingly.
Submissions of the parties
11. We have heard learned counsel for the appellants and learned APP for the State and learned counsel for the informant.
12. Learned counsel for the appellants submit that the learned Trial Court has not properly appreciated the evidence on record and erroneously passed the impugned judgment of conviction and order of sentence. Very genesis of the occurrence is not proved. Sugriv Sah as Court Witness has already deposed that no altercation had taken place on 25.04.2015 at his bhunja Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 9/34 shop. He is also not aware of death of Amit Kumar caused by beating. They have further submitted that there was no previous enmity between the accused persons/appellants and the deceased Amit Kumar and his family members. They have also submitted that most of the non-official witnesses are related with the deceased. Moreover, there are material contradictions, omissions and improvements in the evidence of the prosecution witness. They have also submitted that no blood was found on the place of occurrence. On behalf of the appellant, Mukhdev Yadav, there is additional submission that he was suffering from glaucoma and he was not able to see.
13. However, learned APP for the State and learned counsel for the informant have defended the impugned judgment and order submitting that there is no illegality or impropriety in the impugned judgment. The prosecution has proved its case beyond all reasonable doubts and the appellants have been appropriately sentenced. Evidence of related witnesses cannot be discarded solely on the ground of their relationship with the deceased. Moreover, P.W.-1 and P.W.-4 are independent witnesses, not being related with the deceased. There is no major contradictions in the evidence of the prosecution witnesses on material particulars. Minor Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 10/34 discrepancies are natural in the evidence of truthful witnesses. There is consonance between ocular and medical evidence. Motive takes backseat if there is direct evidence of trustworthy eye-witnesses in regard to culpability of the accused persons. Sugriv Sah has failed to support prosecution case on account of fear of backlash of the accused persons/appellants.
14. We have thoroughly perused the material on record including the evidence and given thoughtful consideration to the submissions advanced by all the parties.
Some Principles of Appreciation of Evidence
15. In view of the submissions of the parties it would be imperative to refer to some principles of appreciation of evidence before we proceed to discuss the evidence on record.
16. It is settled principle of law that the evidence of any relative or family members cannot be discarded only on account of his or her relationship with the deceased. The evidence of such witnesses has to be weighed on the touchstone of truth and at most the court is required to take care and caution while appreciating their evidence. In this regard, one may refer to the following judicial precedents:
(i) Abhishek Sharma Vs. State (NCT of Delhi), 2023 SCC OnLine SC 1358;
(ii) Yogesh Singh Vs Mahabeer Singh & Ors;
(2017) 11 SCC 195;
(iii) Mano Dutt and another Vs. State of UP;
Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 11/34 (2012) 4 SCC 79;
(iv) Daulatram Vs. State of Chhattisgarh, 2009 (1) JIJ 1;
(v) State Vs. Saravanan, (AIR 2009 SC 152);
(vi) State of U.P. v. Kishanpal, (2008) 16 SCC 73;
(vii) Namdeo Vs. State of Maharashtra, (2007) 14 SCC 150;
(viii) State of A.P. Vs. S. Rayappa,. (2006) 4 SCC 512;
(ix) Pulicherla Nagaraju Vs. State of A.P., (2006) 11 SCC 444;
(x) Harbans Kaur Vs. State of Haryana;
(2005) 9 SCC 195;
(xi) Hari Obula Reddy and Ors. Vs. State of AP, (1981) 3 SCC 675
(xii) Piara Singh and Ors. Vs. State of Punjab, (1977) 4 SCC 452
17. It is also settled principle of law that prosecution case cannot be thrown out or doubted on the sole ground that the independent witnesses have not been examined because as per experience, civilized people are generally insensitive when a crime is committed in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. The Court is therefore required to appreciate the evidence of even related witnesses on its own merit, instead of doubting the prosecution case for want of independent witnesses. (Refer to Appabhai and another Vs. State of Gujarat, 1988 Supp SCC 241).
18. This is also settled principle of law that minor discrepancies, contradictions, improvements, embellishments or omissions on trivial matters not going to the root of the prosecution case should not be given undue importance. But if Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 12/34 they relate to material particulars of the prosecution case, the testimony of such witnesses is liable to be discarded. In this regard, one may refer to the following judicial precedents:
(i) C. Muniappan & others Vs. State of T.N., (2010) 9 SCC 567;
(ii) State of U.P. Vs. Krishan Master, (AIR 2010 SC 3071);
(iii) Appabhai & Anr. Vs. State of Gujrat, AIR 1988 SC 696;
(iv)Shivaji S. Bobade & Anr Vs. State Of Maharashtra, (1973 AIR 2622);
(v) Sanjay Kumar Vs. State of Bihar, 2019 SCC OnLine Pat 1077;
(vi) State of Madhya Pradesh Vs. Dal Singh, (2013) 14 SCC 159;
(vii) Smt. Shamim Vs. State (GNCT of Delhi), 2018 (4) PLJR 160;
(viii) S. Govidaarju Vs. State of Karnataka, 2013 (10) SCALE 454
(ix) Narotam Singh vs. State Of Punjab And Anr.
(AIR 1978 SC 1542)
(x) Leela Ram Vs. State of Haryana, (1999) 9 SCC 525;
(xi) Subal Ghorai and Ors. Vs. State of WB, (2013) 4 SCC 607;
(xii) Yogesh Singh Vs. Mahabeer Singh & Ors., (2017) 11 SCC 195.
19. It is also relevant to point out that Hon'ble Supreme Court in Narender Kumar Vs. State (NCT of Delhi), (2012) 7 SCC 171, has held that the prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 13/34 record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt.
20. Hon'ble Apex Court in Dilavar Hussain Vs. State of Gujarat, (1991) 1 SCC 253 has further held that acquittal or conviction depends on proof or otherwise of the criminological chain which invariably comprises of why, where, when, how and who. Each knot of the chain has to be proved, beyond shadow of doubt to bring home the guilt. Any crack or loosening in it weakens the prosecution. Each link, must be so consistent that the only conclusion which must follow is that the accused is guilty.
Prosecution Evidence
21. Now coming to the prosecution evidence, we find that the informant/Santosh Kumar Singh has been examined as P.W.-5. He, in his examination-in-chief, has deposed in consonance with his fardebayan. In his cross-examination, he has deposed that the occurrence had taken place due to altercation between the accused persons with shopkeeper Sugriv Sah, but neither he nor his deceased brother had any previous enmity with the accused persons. He has also deposed that his brother was not attacked by pistol. His house is situated at 1-1.5 Kilometer away from his shop. His brother lived at his house Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 14/34 and sometimes he used to attend the shop also. He has denied the suggestion that the place where his brother had gone for attending the call of nature, the ladies of the village also used to go that place. He has also denied the suggestion that his brother used to follow the ladies and on account of which his brother was killed by unknown persons and he has implicated the appellants falsely. He has further deposed that he has no enmity with the residents of Nawada village. His shop is situated at the distance of 100 feet to the east from Bhunja shop. The place where altercation started, was 20 feet away from his shop. When he saw his brother Amit, he found that he was being assaulted by accused persons. He himself had gone to the shop of Sugriv Sah. Witness Sudama Singh is his uncle. Witness Sanjit Raj is his younger brother. Witness Sanjay Kumar Singh is a co- villager. He reached near Amit when he was being assaulted by the accused persons. He had received injury on his head and arms. He was also bleeding. His right forearm was swollen. There was also spot of blood on his clothes. He was wearing red T-shirt, banyan and trousers. His clothes were torn. He does not remember whether blood has fallen on the ground. Blood soaked soil was not seized by the police. He had shown the place of occurrence to the police. Prior to the occurrence, he had Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 15/34 no enmity with Krishna Yadav, Ramakant Yadav and Sujit Kumar.
22. P.W.-1 is Sarvanand Singh. He has deposed in support of the prosecution case. In his examination-in-chief he has deposed that at 7:00 P.M. on 25.04.2015, he was at the shop of Sugriv Sah. In his examination-in-chief, he has also deposed in consonance with the fardbeyan of the informant. In his cross- examination, he has deposed that his house is situated adjoining the place of occurrence and it is surrounded by small shops. Sanjay Singh and Munna Singh @ Ajit Singh are his nephews. About 15-20 people were at the place of occurrence when the occurrence was taking place. After the occurrence, 5-7 persons came from the village. There was no previous enmity with his family members and the family of Mukhdev Chaudhary. Mukhdev Chaudhary is the resident of Nawada village. All the accused are of Nawada village. The place of occurrence is away at the distance of 200-300 feet from the place where altercation regarding payment of bhunja had taken place. He has further deposed that initially all the accused assaulted individually and thereafter, they started assaulting indiscriminately. He could not count the number of lathi blows Amit Kumar had received. Blood had fallen on the place of occurrence. Blood had got Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 16/34 thickened in the area of 1.5 feet. The accused persons were about 12 in number and they were carrying arms and they had come in group. First of all, they assaulted Amit near the peepal tree by rod in the school campus. When Amit was being assaulted, he was standing facing north direction and the accused persons were facing west direction. He was at the distance of 10 feet. The assault continued for 15-20 minutes. Amit had received injuries at about 10-12 places on his body. His clothes had got soaked in blood. Blood had fallen on the ground also. The police was informed immediately after the occurrence and they had reached the place of occurrence within 15-20 minutes. In his efforts to save Amit, he received minor injuries. However, he was not treated. Munna Singh @ Ajit had also received injuries and he got treatment also. After receiving the injuries, Amit had become unconscious. The place of occurrence is surrounded by road to the north, School field to the South, pole and peepal tree to the East. When he had gone to the shop of Sugriv Sah, altercation was going on and after taking bhunja, he had come back to his shop. He has denied the suggestion that he has deposed falsely.
23. P.W.-2 is Sanjit Raj. He has also deposed in support of the prosecution case. In his examination-in-chief, he Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 17/34 has testified in consonance with the fardebayan. In his cross- examination, he has deposed that the deceased Amit is his own brother. His tea shop is situated at the distance of 150 gaj to the west. At bhunja shop, about 10-15 persons were eating bhunja and they were from different villages. Altercation took place there for 5-10 minutes. However, this altercation was only with the resident of Nawada village. When the people came from Nawada village second time, they had seen him, but he was not attacked by them. Voluntarily, he has deposed that he was at his shop. The deceased Amit has no previous enmity with the accused persons. The shopkeeper of the bhunja shop was not assaulted. Informant/Santosh Kumar is his eldest brother. About 5-6 injuries were found on the body of the deceased Amit. The accused were also carrying pistol, but they had not fired by the pistol. They were also not carrying bhala or farsa, but they were carrying dab (a weapon of offence made of iron). He has stated about the number of injuries by rough estimation. He saw these injuries when Amit was brought near him. His clothes had spot of blood. He was not present at the time of fardebayan. He put his signature on the fardebayan when he was in the hospital. He again deposes that his signature was taken on home. Santosh Kumar Singh, Sudama Singh and he himself are one family. Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 18/34 Sanjay Kumar Singh belongs to Badka village and he belongs to the same caste. Sarvanand Singh also belongs to another village, but belongs to the same caste. He has denied the suggestion that he had not seen the occurrence. When he had gone to bhunja shop, his uncle Sudama Singh and Amit Kumar were sitting at his shop. The place where Amit was fallen on the ground was surrounded by road to the north, school field to the south, house of Sarvanand Singh to the east and land of someone to the west. At the time of occurrence, there were about 8-10 persons including himself and after the occurrence, many persons had arrived. He has denied the suggestion that the accused/appellant are innocent and they have not falsely implicated the appellants. He has denied the suggestion that he has not stated to the police that Hari Shankar had assaulted Amit with dab.
24. P.W.-3 is Sudama Singh. He has also supported the prosecution case. In his examination-in-chief he has deposed when Amit tried to flee away, Sujit and Ajit assaulted him on his head by iron rod and when he fell down on the ground, Harishankar Yadav assaulted him by dab and the rest accused were beating him by lathi and danda When he and others rushed near him, Mukhdev assaulted by lathi and Ramakant fired his pistol. When Munna ran, Harishankar Yadav Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 19/34 assaulted on the head by dab resulting into fracture in his head. Munna is also known as Ajit. In his cross-examination he has deposed that he has no child but he has brought up Amit and he calls him as son. He is my nephew. Morning and evening are the time of attending the call of nature. Around the occurrence, the deceased had gone for easing himself to the West of school. The school is open from West and East sides. It is spread over one bigha. There is one latrine in the school. The dead body was outside the school compound at the road. From the Medical Report, he came to know that Amit had no injury of firearm. He did not ask Amit about the occurrence because he was lying unconscious. He has also voluntarily deposed that when he saw the occurrence himself, where was the need for him to ask Amit. Neither he nor Amit Kumar had any concern with the shopkeeper of bhunja, except the fact that he was also a shopkeeper. He has denied the suggestion that Amit Kumar and Munna were flirter and in that process he was killed. At the time of occurrence, he and other persons had reached the place of occurrence together. They hardly took 5 seconds to reach the place of occurrence. At that time, the sun was just setting and electric bulb was burning. The occurrence took just about five minutes. The persons, including him, who reached the place of Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 20/34 occurrence at the time of occurrence, were 10-12 in number. They were all shopkeepers. Initially, he saw that Amit was coming after easing himself. When he saw that he was being assaulted, at that time he was at a distance of 15 feet. The persons who were along with him tried to save Amit and being old he was crying to save Amit. When he was standing, he was assaulted by tangi (Axe) and when he fell down, he was assaulted by rod. After falling to the ground, he had become unconscious.
25. P.W.-4 is Sanjay Kumar Singh. He also claimed to be eye-witness and deposed in support of the prosecution case. In his examination-in-chief, he has deposed in consonance with the fardebayan. In his cross-examination, he has deposed that he is not nephew of the informant but nephew of Sarvanand Singh and he has no concern with the deceased Amit. At the place of occurrence, there were 6-7 persons including himself. At the time of boarding Amit in tempo to take to hospital, there were about 20-25 persons including himself, Sarvanand Singh, Santosh Kumar Singh, Sudama Singh, Sanjay Kumar Singh, Sanjeet Kumar Singh, Swaminath Sah and others. He had also received minor injury. However, he had not got any treatment. Amit did not live in the village. Only 5-6 days ago, he had come Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 21/34 to village on the day of occurrence, for the first time, he had gone for easing himself in that direction. He has denied the suggestion that Amit was of flirting nature and hence, he was killed by unknown persons. When the accused persons had come back for the second time, he was sitting at his shop. At that time, the appellants had come in group. At the time of occurrence, he was at the place of occurrence. First of all, they came to his corridor (Dalan). At that time, they did not assault anybody. They did not assault any shopkeeper either, nor did they cause damage. From his shop, they did not got to the shop of any shopkeeper. They voluntarily returned. Amit was coming after easing himself. The accused persons reached the field. He also went to the compound within a minute. After discussing among themselves, then made accused. He has further deposed that the shop of Sudama Singh was at the distance of 100-150 feet. The accused appellant Hari Shankar Chaudhary is less than 60 years of age. He is not old. He had seen that blood was coming out from the head of Amit. After receiving injury in his head, Amit sat down holding his head. After 1-2 minutes, he fell unconscious. The occurrence had taken place for 2-3 minutes. The accused persons were beating Amit very badly. At the time of altercation at the shop in regard to payment for bhunja, Amit Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 22/34 was not there. That altercation had taken place between the shopkeeper and the villagers of Nawada.
26. P.W.-6 is Swaminath Sah. He has not supported the prosecution case. He was declared hostile. In his cross- examination by learned APP, he has denied that he had supported the prosecution case in his statement before the police. In his cross-examination on behalf of the accused appellants, he had deposed when he was going to his home alone from the side of school, he saw an injured man who was crying. Nobody was present there. When he reached near him, he identified him as Amit Kumar @ Munna. Then he raised hulla at market. Thereafter, people rushed there including Santosh Kumar Singh, Sudama Singh, Sanjeet Raj, Sanjay Kumar Singh and Sarvanand Singh. They boarded Amit in tempo and took him to hospital.
27. P.W.-7 is Pradeep Kumar, who was posted at Sadar Hospital, Siwan on 25.04.2015. He had examined the injured Amit Kumar at 8:30 P.M. and he had also examined the injured Ajit Kumar Singh. Subsequently, when Amit Kumar had died, he was also a member of the Medical Board who conducted the postmortem on the dead body of Amit Kumar. On examination of the injured Amit Kumar, he had found the Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 23/34 following injuries:
"Lacerated injury of about 4" x ½ x bone deep over left parietal region. lacerated injury of about 2" x "x muscle deep over frontal region. About 3" x 4" x bone deep lacerated injury on the right parietal region. About 3"
x 4" x muscle deep over vertex. Swelling of about 4" x 3"
on the right forearm and fracture of radius noted at cited swelling."
28. He had also advised CT scan of brain and X-ray of the right forearm. The injury was caused in his opinion by hard blunt substance and all the injuries were found grievous. He had also examined another injured, Ajit Kumar Singh and on his examination, he found swelling and tenderness on the right forearm of the size 4" x 2". Lacerated injury size 1" x 1/2". 1/2"
muscle deep over frontal region was also found. The injury was also caused by hard-blunt substance. The Medical Board comprising the present witness as one of the members has found as follows on postmortem of the dead body of the deceased, Amit Kumar :
"Rigour mortis absent. Mouth and eye closed. External examination- Stitched injury of about four inch over left parietal region. A two inches sized stitched injury over frontal region. Three inches stitched injury over right parietal region. Apart three inches stitched injury over vertex. Swelling of about 4" x 3" in the right forearm and fracture of radius noted at site of swelling. On Dissection- Head and brain all the above mentioned injuries and blood clot present on the scalp region. Blood and clots present in cranial cavity in good amount above brain surface and also in brain. Neck- intact. Chest- Lungs- both intact and congested. Heart - right side chamber filled with blood and left side chamber is also filled with blood. Abdomen - stomach intact and contains semi digested food. Liver and Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 24/34 spleen- intact. Kidneys- both intact and pale. Intestine- intact. Urinary bladder filled with urine amount of about five 500 ml."
29. The cause of death was found to be shock and hemorrhage due to the aforesaid mentioned injuries caused by hard-blunt substance. In his cross-examination he has deposed that only head injury was responsible for the death of Amit Kumar. Clotting of blood in brain could be also the cause of death.
Evidence of the Court Witnesses
30. Two Court witnesses, C.W.-1 Shambhu Nath Singh, who is Investigating Officer of this case himself and C.W.-2 is Sugreev Sah.
31. C.W.-1, in his examination-in-chief, has deposed that when he was on patrolling duty in the evening on 25.04.2015, he got information that in the Badka Gaon market, marpit (physical assault) was going on between the residents of Badka Gaon and Nawada resulting into some injuries to some of them. When he reached there, he came to know that 3-4 persons had been badly injured who had been sent to Sadar hospital for treatment. Thereafter, he reached Sadar hospital. Injured Amit Kumar was already referred to Gorakhpur for better treatment and he died en-route. After the death, the dead body was brought back to the Siwan hospital. In the night itself, the dead Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 25/34 body was sent for postmortem. Fardebayan of Santosh Kumar who is brother of the deceased Amit Kumar was recorded. Thereafter, inquest report was prepared and after postmortem, the dead body was handed over to his family members. At 08.40 AM, on the next day, he visited the place of occurrence and inspected the P.O. situated in Badka Gaon market in front of tent and tea shop of the informant where the FIR named accused persons had committed mar-pit (assault) causing injuries by lathi and danda. Near the P.O., lies one peepal tree. The P.O. is surrounded by field of Ayodhya Agarwal, Sanatan High School to the south Siwan Malmaliya main road to the north and tent and tea shop of the informant, soil road and peepal tree to the east and sweets shop of Swaminath Sah. Thereafter, he recorded the statement of witnesses. Restatement of the informant was also recorded and after completion of the investigation, charge- sheet was submitted. In his cross-examination on behalf of the appellants, he has deposed that he had not found any blood on the place of occurrence. At the place of occurrence, there were generator light. But he has not mentioned it in the diary.
32. He has further deposed that Sanjeet Raj (P.W.-2) had not stated to him that at 7 P.M. on 25.04.2015 he was along with his brother, Santosh Kumar at his shop. He had Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 26/34 also not stated to him that he had seen Sujit Yadav, Ajit Yadav, Krishna Yadav and Ramakant Yadav had eaten bhunja, but had not paid for it.
33. He has further deposed that Sudama Singh (P.W.-3) had not stated to him that the accused, Krishna Yadav @ Megha Yadav, Ramakant Yadav and Sujit ate bhunja at the shop of Sugriv Sah and did not pay for it. He had also not stated to him that altercation had taken place at the shop of bhunja. He had also not stated to him that there was any firing by pistol.
34. He has further deposed that Sanjay Singh, (P.W.-4) had not stated to him that occurrence had taken place at 7 P.M. on 25.04.2015. He had also not stated to him that he was at the shop of Sugriv Sah at the time of occurrence. He had also not stated that Krishna @ Megha, Sujit and Ramakant Yadav were doing altercation at the shop of Sugriv Sah.
35. He has also deposed that Santosh Kumar Singh (P.W.-5) had not stated to him that he was at the sweet and tea stall. He had also not stated to him that he had heard sound of altercation at the shop of Sugriv Sah and he along with his brother Sanjeev went to the bhujna shop of Sugriv Sah. He had also not stated to him that he had seen altercation between Sugriv Sah and accused Krishna, Sujit and Ramakant in regard Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 27/34 to payment of bhunja.
36. He has further deposed that Sarvanand Singh (P.W.-1) had not stated to him that he was at the shop of bhunja at the time of occurrence. He had also not stated to him that ten persons including Krishna Yadav, Sujit, Ramakant Yadav and other accused persons ate bhunja and did not pay for it. Sudama Singh (P.W.-3) had not stated to him that there was firing on the P.O.
37. He has also deposed that he had not recovered any lota or other utensil from the P.O. He has denied the suggestion that he had recorded the FIR ante date and ante time in connivance with the informant.
38. C.W.-2 is Sugreev Singh. In reply to Court questions, he has deposed that at Bada Gaon market, he has shop of Bhunja (fried grains). However, on 25.04.2015, no occurrence had taken place from morning till 08.08 PM. He also does not know anything about the death of Amit Kumar caused by beating. He was not cross-examined either by the prosecution side or by the defence side.
Appreciation of evidence and findings of this Court
39. From perusal of the evidence on record, we find that six out of seven prosecution witnesses are non-official Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 28/34 witnesses and four out of them are closely related with the deceased. The sole official witness is the doctor who had examined the injuries of the deceased Amit Kumar, before his death. He was also a member of the Medical Board, which had conducted postmortem examination on the dead body of the deceased Amit Kumar.
40. We further find that P.W.-6 Swaminathan Sah (one of the non-official prosecution witnesses) has not supported the prosecution. He was declared hostile.
41. We further find that the Investigating Officer of the case has been examined as a Court Witness, and not as a prosecution witness. Sugriv Sah who is one of the most relevant and natural witnesses as per the prosecution case has been also examined as a Court Witness and has not supported the prosecution case.
42. We further find that five witness-P.W-1, P.W.-2, P.W.-3, P.W.-4 and P.W.-5 have claimed to be the eye-witnesses to the occurrence. But their presence at the place of occurrence has been strongly disputed by the appellants.
43. We further find that there is no dispute regarding post occurrence facts and circumstances. As per Medical Evidence, Amit Kumar met with death on account of grievous Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 29/34 injuries caused on his head by hard and blunt substance and died on way to Gorakhpur Hospital.
44. We further find that the only dispute is whether the appellant had caused the death of the victim Amit Kumar. In this context, the case of the prosecution is based on the evidence of P.W.-1 to P.W.-5 who have been projected as eye-witnesses.
45. Now, question is whether the prosecution has proved its case against the appellants beyond all reasonable doubts.
46. We find that P.W-6 Swaminath Sah, who was examined on behalf of the prosecution, has negated the presence of P.W.-1 to P.W.-5 at the place of occurrence. As per testimony of P.W.-6, we find that P.W.-1 to P.W.-5 had reached near injured Amit Kumar after the occurrence had taken place. As per testimony of P.W.-6, when he was passing through, he saw injured Amit Kumar crying and no one was there and only after he raised hulla in the market, people came there, including Santosh Kumar Singh (Informant), and other prosecution witnesses- Sudama Singh, Sanjeet Raj, Sanjay Kumar Singh and Sarvanand Singh.
47. We further find that Sugriv Sah was running bhunja shop where the occurrence had allegedly taken place. Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 30/34 But his testimony negates the very genesis of the occurrence. He has testified as C.W.-2 that on 25.04.2015 no occurrence had taken place at his shop and he was not aware of anything about the death of Amit Kumar.
48. We further find that as per the testimony of C.W.- 1, Shambhunath Singh (Investigating Officer) of the case that Sanjeet Raj (P.W.-2) and Sudama Singh (P.W.-3) had not stated to him regarding eating of bhunja by the appellants and not paying for it. Sudama Singh (P.W.-3) had also not stated to him regarding any altercation taken place at the shop of bhunja or any firing by pistol.
49. We further find in the testimony of C.W.-1 that P.W.-5, Santosh Kumar (Informant) had not stated before him that on the date of occurrence, he was sitting at his tea stall and he had heard sound of altercation taking place at the shop of Sugriv Sah and about his subsequent visit to the shop of Sugriv Sah. He had also not stated to him about any altercation taken place between Sugriv Sah and the appellants.
50. We further find in the testimony of C.W.-1 (I.O of the case) that P.W.-1, Sarvanand Singh had also not stated to him that at the time of occurrence, he was at the shop of bhunja of Sugriv Sah and about eating of bhunja by the appellants and Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 31/34 not paying for it. He had also not stated about any firing at the P.O.
51. We further find that the I.O. (C.W.-1)had not recovered any lota or any other utensils from the place of occurrence which also makes a serious dent into the prosecution case because as per the allegation, the deceased was coming back after attending call of nature carrying lota in his hand.
52. We also find that admittedly, there was no previous enmity of the informant or his brother (deceased Amit Kumar) with the accused persons/appellants. Moreover, as per testimony of P.W.-2 (Sanjeet Raj) and P.W.-4 (Sanjay Kumar Singh) themselves, the appellants had not assaulted any shopkeeper, nor had they caused any damage to their shops. It shows that the appellants had no ill-will or grudge against the shopkeepers including the informant (P.W.-5) who was also running a shop near the bhunja shop of Sugriv. Hence, there is the question of any grudge against brother of the informant, Amit Kumar (deceased). He was no way even connected with the altercation regarding non-payment of price for the consumed bhunja. Hence, we find complete absence of any motive of the appellants to cause death of Amit Kumar. Hence, it is very difficult to believe the version of the prosecution witnesses that Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 32/34 he was assaulted by the appellants because he was brother of the informant (shopkeeper). The testimony of P.W.-6 further nullifies the claim of prosecution witnesses that they had seen the appellants killing the victim Amit Kumar, because as per the testimony of P.W.-6, Swaminath Sah, he saw injured Amit Kumar crying alone at the place of occurrence. Nobody was there along with him. Only after his hulla in the market, the people including the informant and other prosecution witnesses arrived there. Such evidence shows that none of the prosecution witnesses had seen the occurrence taking place.
53. In such background, material contradictions in the statements of the prosecution witnesses regarding manner of offence assume importance. P.W.-1, Sarvanand Singh has deposed that the appellants assaulted the victim by rod. But, P.W.-2 has deposed that the appellants were carrying dab (a weapon of offence made of iron). But as per testimony of P.W.- 2, the appellants were also carrying pistols. Again as per P.W.-3, the victim was attacked by tangi (Axe) and rod. Such contradictory statements makes serious doubts about the presence of the projected eye-witnesses at the place of occurrence. We also find that the prosecution witnesses who have claimed to be eye-witnesses have not stated specific roles Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 33/34 played by the appellants. As per these witnesses, the appellants were carrying pistols also. But there is no firearm injury received by the deceased.
54. We also find that as per testimony of P.W.-4- Sanjay Kumar Singh, the names of the accused persons were given after discussion and deliberation amongst the family members. It shows that there is concoction and embellishment in the prosecution case.
55. Considering the aforesaid facts and circumstances, it is very difficult for this Court to uphold the judgment of conviction and the order of sentence. There are reasonable doubts in the prosecution case against the appellants entitling them to get benefit of doubts. Accordingly, the impugned judgment of conviction and order of sentence are set aside. The appellants stand acquitted of the charges levelled against them.
56. The appeals stand allowed.
57. Since all the appellants are in jail, they are directed to be released forthwith if they are not required in any other case.
58. Let a copy of this judgment be dispatched to the Superintendent of the concerned Jail forthwith for compliance and record.
Patna High Court CR. APP (DB) No.731 of 2018 dt.30-09-2024 34/34
59. The records of the case be returned to the Trial Court forthwith.
60. Interlocutory application/s, if any, also stand disposed of.
(Jitendra Kumar, J.) I agree.
(Ashutosh Kumar, J.) Chandan/Shoaib/ Ravishankar/ S.Ali-
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