Patna High Court
Yogendra Mahto & Ors vs State Of Bihar on 6 October, 2017
Author: Prakash Chandra Jaiswal
Bench: Prakash Chandra Jaiswal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.206 of 2002
Arising Out of PS.Case No. -25 Year- 1985 Thana -Purnahiya District- SITAMARHI
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1. Yogendra Mahto, S/o Late Gopali Mahto
2. Harindra Mahto, S/o Late Gopali Mahto
3. Nagendra Mahto, S/o Late Gopali Mahto
4. Rajendra Mahto, S/o Late Ganesh Mahto
5. Jagan Mahto, S/o Late Udan Mahto
6. Lagan Mahto, S/o Late Udan Mahto
7. Kishori Mahto, S/o Late Thaga Mahto
8. Ramashish Mahto, S/o Late Humrao Mahto
All R/o village-Kolua-Thikaha, P.S. Purnahiya, District-Sheohar
.... .... Appellant/s
Versus
State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Prasoon Sinha
For the Respondent/s : Mr. S.A. Ahmad, APP
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CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA
JAISWAL
ORAL JUDGMENT
Date: 06-10-2017 Heard learned counsel for the appellants as well as learned APP for the State and perused the record.
2. This appeal has been preferred against the Judgment and Order of conviction and sentence dated 04.04.2002 passed by the Additional Sessions Judge, Fast Track Court-2, Sitamarhi in Sessions Trial no. 158 of 1986/62 of 2002 arising out of Purnhiya P.S. Case No. 25 of 1985, whereby the learned lower court convicted the accused persons namely, Yogendra Mahto, Harendra Mahto, Rajendra Mahto, Jagan Mahto, Nagendra Mahto, Kishori Mahto, Lagan Mahto and Ram Ashish Mahto for the offence Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 2/20 punishable under Sections 147, 323, and 448 of the Indian Penal Code and further convicted the accused Ram Ashish Mahto for the offence punishable under Section 307 of the Indian Penal Code and further convicted the other seven accused persons namely, Yogendra Mahto, Harendra Mahto, Rajendra Mahto, Jagan Mahto, Nagendra Mahto, Kishori Mahto and Lagan Mahto for the offence under Section 307/149 of the Indian Penal Code and sentenced the accused Ram Ashish Mahto to undergo R.I. for ten years for the offence under Section 307 of the Indian Penal Code and also slapped him with a fine of Rs. 1,000/- and in default of payment of fine to undergo S.I. for 6 months under Section 307 of the Indian Penal Code and sentenced other seven accused persons namely, Yogendra Mahto, Harendra Mahto, Rajendra Mahto, Jagan Mahto, Nagendra Mahto, Kishori Mahto and Lagan Mahto to undergo R.I. for 10 years each under Section 307/149 of the Indian Penal Code and also slapped them with a fine of Rs. 1,000/- each and in default of payment of fine to undergo S.I. for 6 months each. All the eight accused persons were further sentenced to undergo R.I. for 3 months, for the offence under Section 147 of the I.P.C. each, 3 months R.I. for the offence under Section 323 of the I.P.C. each and 3 months R.I. for the offence under Section 448 of the I.P.C. each. All the sentences were directed to run concurrently. Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 3/20
3. The factual matrix of the case is that Purnhiya P.S. Case No. 25 of 1985 was instituted under Sections 147, 323, 448 and 379 of the Indian Penal Code against accused Jagan Mahto, Lagan Mahto, Nagendra Mahto S/o Ganesh Mahto, Gopali Mahto, Yogendra Mahto, Nagendra Mahto S/o Gopali Mahto, Harendra Mahto, Ram Ashish Mahto and Kishori Mahto on the basis of fardbeyan of Sukani Devi W/o Dhanu Mahto R/o Village-Kohaua Thikaha P.S. Purnhiya District-Sitamarhi recorded by S.I. S.N. Tiwari of P.S. Sitamarhi on 23.09.1985 at 21:00 hours at surgery ward Sadar Hospital, Sitamarhi with the allegation, in succinct that on 21.9.1985 (Saturday) at 4:00 PM, her co-villager Jagan Mahto, Lagan Mahto, Nagendra Mahto S/o Ganesh Mahto, Gopali Mahto, Yogendra Mahto, Nagendra Mahto S/o Gopali Mahto, Harendra Mahto, Ram Ashish Mahto and Kishori Mahto all armed with lathi, garasa intruded into the house of Budhan Mahto, rapping expletive and started searching her, then all the accused persons intruded into the room and dragged her out in the courtyard and Ram Ashish Mahto assaulted on her head by means of lathi, sustaining injury she fell down on the ground, then all the accused persons assaulted her by means of lathi. She received injury in her left gassa by the assault made by Ram Ashish Mahto. When her daughter-in-law and Budhan Mahto rushed in her rescue, the accused persons assaulted Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 4/20 her daughter-in-law by means of lathi, fists and slap and assaulted Budhan Mahto by means of lathi blaming him the root cause of all disputes. Sustaining injury Budhan Mahto fell senseless. Therefore, Jagan Mahto took out a box containing attire and money from the room of Budhan Mahto and all the accused persons left the scene. The witnesses, Darab Lal Rai, Sitaram Rai, Rameswhar Singh, Habib Ansari and others witnessed the occurrence. The bone of contention is that earlier, the accused persons had assaulted the informant, Budhan Mahto and her daughter-in-law. Regarding the said occurrence, the criminal case is pending against them in the court and the accused persons were mounting pressure upon them to lift the said case, but she and Budhan Mahto had not obliged them.
4. The aforesaid case was investigated by the police and on conclusion of the investigation, I.O. submitted chargesheet against the accused namely, Lagan Mahto, Kishori Mahto, Nagendra Mahto, Jagan Mahto, Gopali Mahto, Rajendra Mahto, Harendra Mahto, Ram Ashish Mahto and Yogendra Mahto under Sections 147, 148, 149, 307, 324, 323, 307 and 448 of the Indian Penal Code.
5. On receiving the chargesheet and the case diary and perusing the same, the learned Magistrate took cognizance of the offence against the accused persons and committed the case to the court of sessions and on transfer finally the case came in seisin of Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 5/20 the Additional Sessions Judge, Fast Track Court-2, Sitamarhi for trial. During the course of trial accused Gopali Mahto passed away, hence, the proceeding was dropped against him. Thus, eight accused persons faced the trial.
6. Charge against accused Ram Ashish Mahto was framed under Sections 307, 148, 323 and 448 of the Indian Penal Code while charge against accused Lagan Mahto, Kishori Mahto, Nagendra Mahto, Jagan Mahto, Gopali Mahto, Rajendra Mahto, Harendra Mahto and Yogendra Mahto was framed under Sections 147, 307/149 323 and 448 of the Indian Penal Code. Charges were read over and explained to them to which they pleaded not guilty and claimed to be tried.
7. To substantiate its case, in ocular evidence, the prosecution has been able to examine altogether eight prosecution witnesses namely, Rameshwar Singh as PW-1, Nagendra Rai as PW-2, Fulmati Devi as PW-3, Sitaram Rai as PW-4, Habib Ansari as PW-5, Darab Lal Rai as PW-6, informant Sukani Devi as PW-7 and Dr. Awadh Kishore as PW-8. Out of the aforesaid witnesses, PW-2 (Nagendra Rai) happens to be formal witness who has proved the formal F.I.R. marked as Ext-1 and fardbeyan marked as Ext-2 while PW-6 (Darab Lal Rai) in a tendered witness. In documentary evidence, the prosecution has filed and proved certain documents. Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 6/20
8. The statement of the accused persons was recorded under Section 313 of the Code of Criminal procedure. The case of the defence is complete denial of the occurrence claiming themselves to be innocent. In buttress of its case, the defence has neither adduced any ocular nor documentary evidence.
9. After hearing the parties and perusing the record, the learned trial court passed the impugned Judgment and Order of conviction and sentence as detailed in the earlier paragraph.
10. Being aggrieved and dissatisfied with the aforesaid Judgment and Order of conviction and sentence, the convicts have preferred the present Criminal Appeal.
11. The point for consideration in this case is, as to whether the prosecution has been able to bring home the charges levelled against the appellants beyond all reasonable doubts or not.
12. It is submitted by the learned counsel for the appellants that the occurrence is said to be on 21.09.1985 at 4:00 PM, but FIR has been lodged on 23.09.1985 at 9:00 PM i.e. after two days of the occurrence and the prosecution has not assigned any reason about the aforesaid delay in filing the FIR though the P.S. is located at a distance of barely 4 Km. from the place of occurrence which creates serious doubt about the prosecution case. The independent witnesses namely, PW-1 (Rameshwar Singh), PW-4 Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 7/20 (Sitaram Rai) and PW-5 (Habib Ansari) are chance witnesses and they were not present at the place of occurrence, at the time of occurrence and had not witnessed the occurrence rather as per the account of the said witnesses, they had arrived at the place of occurrence after culmination of the occurrence. There is vital contradiction between the prosecution case and the statement of the informant (Sukani Devi) regarding the place of occurrence. As as per the prosecution case, the occurrence took place in the courtyard of Budhan Mahto while as per account of PW-7 (informant), it took place in her courtyard which is located after 3-4 houses of Budhan Mahto and I.O. of the case has also not been examined by the prosecution to substantiate the place of occurrence. Thus, the place of occurrence does not stand established by the prosecution. It is further submitted that there is vital contradictions between the statement of PW-1 (Rameshwar Singh) regarding witnessing of the occurrence given before the court and that given before the I.O. under Section 161 of the Cr.P.C and the I.O. of the case has also not been examined by the prosecution to confirm and corroborate the aforesaid contradiction, hence great prejudice has been caused to the defence due to non-examination of the I.O. It is further submitted that admittedly, both parties are on inimical terms, hence, the accused persons have falsely been implicated in the case due to Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 8/20 animosity. The prosecution has utterly and miserably failed to substantiate the prosecution case against the appellants beyond all reasonable doubt by adducing trustworthy and reliable evidence. Hence, the impugned Judgment and Order of conviction and sentence passed against the appellants by the learned lower court is liable to be set aside.
13. On the other hand, learned APP advocating the correctness and validity of the impugned Judgment and Order of conviction and sentence, submitted that the injured PW-3 (Fulmati Devi) and PW-7 (Sukani Devi) have supported the occurrence and the independent witnesses examined by the prosecution has also supported the occurrence and rightly appreciating the facts and evidence on record, the learned lower court has passed the impugned Judgment and Order of conviction and sentence, and the same is liable to be upheld and this appeal has no substance in it and is liable to be dismissed.
14. On perusal of record, it appears that PW-1 (Rameshwar Singh), PW-4 (Sitaram Rai) and PW-5 (Habib Ansari) are F.I.R. named witnesses. As per the fardbeyan of the informant, the aforesaid witnesses arrived at the place of occurrence, at the time of occurrence and witnessed the occurrence. The aforesaid witnesses have also made an abortive bid to support the prosecution Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 9/20 case claiming themselves to be an eye witnesses of the occurrence by stating in their examination-in-chief that on the date and time of occurrence while they were regressing to their house from the field and arrived near the house of Budhan Mahto, they listened hulla. They arrived at the house of Budhan Mahto and witnessed the accused persons assaulting the informant, her daughter-in-law (Fulmati Devi) and Budhan Mahto by means of lathi and fists, sustaining injury Budhan Mahto fell senseless. But PW-3 (Fulmati Devi) who happens to be one of the injured of the case has stated in paragraph 2 of her examination-in-chief that Darab Lal Rai, Sitaram Rai, Rameshwar Singh and Habib Ansari arrived at the place of occurrence and chided the accused persons, uttering that they have done great injustice, then the accused persons left the scene and PW-7 (informant) has stated in paragraph 4 of her examination-in- chief that all the accused persons left the scene on arrival of witnesses, Darab Lal Rai, Sitaram Rai, Rameshwar Singh and Habib Ansari. The aforesaid statement of the PW-3 and PW-7, rules out witnessing of the occurrence of assault by the said witnesses. As the accused persons not assaulted the victims before them rather left the scene on arrival of the aforesaid witnesses and chiding by them. Moreover, PW-1 (Rameshwar Singh) in paragraph-3 of his examination-in-chief has stated that when he arrived at the house of Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 10/20 Budhan Mahto, he witnessed Budhan Mahto lying senseless in the courtyard and two ladies were moaning sustaining injury, then the accused persons left the scene. The aforesaid statement of PW-1 also rules out witnessing of the occurrence by the said witness. As as per his aforesaid account, when he arrived at the place of occurrence, he witnessed the Budhan Mahto lying senseless and other two ladies moaning sustaining injury, meaning thereby no occurrence of assault upon the aforesaid victims took place before him. PW-5 (Habib Ansari) has stated altogether different story in quite contradiction to the prosecution case as in paragraph 1 of his examination-in-chief, he has stated that when he arrived on the road located near the house of Budhan Mahto at the time of occurrence, he witnessed the wife of Budhan Mahto and that of Jagan Mahto quarreling, he intervened the brawl, in the meantime, accused persons armed with lathi arrived there and committed the occurrence, but, there is no such case of the prosecution regarding quarrelling between the wife of Budhan Mahto and Jagan Mahto preceding to the occurrence. Thus, in the aforesaid facts and circumstances of the case, it appears that the PWs-1, 4 and 5 are not the eye witness of the occurrence as they have not witnessed the occurrence of assaulting the victims by the accused persons.
15. PW-4 (Sitaram Rai) has stated in paragraph 1 of his Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 11/20 examination-in-chief that he got sent the injured to the hospital by bullock cart after the occurrence and PW-5 (Habib Ansari) has stated in paragraph 1 of his examination-in-chief that after the occurrence, the people rushed the injured to Sadar Hospital, Sitamarhi to accord them medical aid and PW-3 (Fulmati Devi) has stated in paragraph 4 of her examination-in-chief that after the occurrence, she, her husband and mother-in-law were rushed to the Sitamarhi hospital on bullock cart while as per injury report, the injured were rushed to the hospital on the third day of the occurrence i.e. on 23.09.1985. The said contradiction between the statement of the witnesses and the injury report creates serious doubt about the sanctity of the aforesaid witnesses.
16. From perusal of the testimony of the PW-1 as recorded in paragraph 6 of his cross-examination, it appears that his attention was drawn by the defence regarding contradiction between his statement given before the court and that given before the I.O. under Section 161 of the Cr.P.C. regarding witnessing of the occurrence by him as eye witness. But, the I.O. of the case has not been examined by the prosecution to confirm and corroborate the aforesaid contradiction. From perusal of the case diary, it appears that the said witness has stated before the I.O. that he arrived at the place of occurrence after culmination of the occurrence and seen the Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 12/20 accused persons stepping out of the house of Budhan Mahto armed with lathi and learnt the occurrence from PW-3 (Fulmati Devi) and PW-7 (Sukani Devi). While, he has claimed himself to be eye witness of the occurrence before the court. Thus, the said witness has taken altogether different stand before the court.
17. When the I.O. of the case is not examined by the prosecution and the attention of the witness has already been drawn towards his earlier statement and the Investigating Officer could not be brought to give his evidence, then in my considered opinion, the Court can peruse the case diary and find out as to whether or not the attention of the witness towards his previous statement was correctly drawn and to satisfy itself as to whether or not he had given similar statement before police. There are two parts of the case diary. First part contains such portion of the diary in which the Police Officer has recorded statement of the witnesses, about the incident or about other relevant facts which to that Police Officer, would be hearsay. The second part of the case diary contains that portion in which the Police Officer has himself seen or heard a particular fact and has recorded a fact out of his own perception. To this category would come recording about the inspection of place of occurrence making of seizure of certain incriminating articles or in some cases, when the Police Officer reaches the place of occurrence where the Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 13/20 occurrence has not finished and he sees himself whole or part of the occurrence, recording of that. The latter part of the case diary cannot be used by the Court unless the Investigating Officer is examined because that would amount to using that portion of the case diary as evidence. Only the Investigating Officer can tell the Court in witness box as to what were his findings out of his own perception, so that he can be put to cross-examination over that. However, the first part of the case diary consists, as already noted, the statement recorded by the witnesses. If the Investigating Officer comes to the Court for evidence and if he is asked to confirm those portion of the statement of the witnesses to which the attention of the witnesses was drawn, the Investigating Officer will say only what he has recorded as his statement in the case diary and cannot go beyond that. Now, the question is, whether that portion of the case diary can be looked into by the Court & used in the trial to aid the Court in reaching at a correct decision when the Investigating Officer is not brought before the Court. Sub-section (2) of Section 172 of Cr.P.C. provides that the Court cannot only call for the case diary but may also use such diary to take aid in such trial. If the Court only has the power to look into the case diary & whatever it peruses to keep it only in mind and then to proceed to record the judgment keeping such impression only in mind that, in my opinion, cannot be the Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 14/20 intention of the legislation. In my considered opinion, if the Court peruses any such things and uses it to its aid in trial, this must go in black and white as part of the judgment. The only limitation is that the Court cannot use any portion of the case diary as evidence. In view of the aforesaid proposition of law and in view of the contradiction between the statement of PW-1 as recorded before the Court and that given before the I.O. under Section 161 Cr.P.C., the testimony of the said witness given before the Court do not inspire my confidence to hold the conviction of the appellants relying upon the same.
18. As per prosecution case as alleged in the fardbeyan, the accused persons intruding into the house of Budhan Mahto were making search of informant (Sukani Devi). But in quite contradiction of the aforesaid prosecution case, PW-3 (Fulmati Devi) has stated in paragraph 1 of her examination-in-chief that all accused persons intruding into her house were making search of her husband Budhan Mahto. As per the prosecution case and the statement of the informant intruding into the house of Budhan Mahto, first of all accused persons assaulted the informant (Sukani Devi) then Fulmati Devi and thereafter Budhan Mahto who rushed in the rescue of the informant. But in quite contradiction to the aforesaid prosecution case and statement of the informant PW-3 Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 15/20 (Fulmati Devi) has stated in paragraph 14 of her cross examination that all injured were assaulted simultaneously. As per the statement of PW-3 given in paragraph 1 of her examination-in-chief, Ram Ashish Mahto assaulted in the gassa of the informant (Sukani Devi) by means of lathi, but doctor has not found injury in the gassa of the informant inflicted by means of lathi rather by sharp cut weapon. PW-7 (Sukani Devi) has stated in her examination-in-chief that the accused persons armed with lathi and phatta, intruded into the house of Budhan Mahto and uttered to eliminate her, then she entered into her house scaringly, then all the accused persons intruded into her house, dragged her out in her courtyard, Ram Ashish Mahto assaulted her there and when Fulmati Devi and Budhan Mahto rushed in her rescue, they were also assaulted by the accused persons. Such statement of PW-7 happens to be in quite contradiction to the prosecution case as alleged in the fardbeyan and statement of PW-3. As as per the prosecution case and statement of PW-3, entire occurrence took place in the courtyard of Budhan Mahto and not in the courtyard of the informant (Sukani Devi) which is located after 3-4 houses of Budhan Mahto as per the statement of PW-3, recorded in paragraph 19 of her cross- examination. Thus, from the perusal of the statement of the aforesaid two injured, it appears that their statement happen to be in Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 16/20 quite contradiction to the prosecution case and their statement inter se regarding the occurrence, manner of occurrence, place of occurrence, weapon used and the assault etc. The injured Budhan Mahto has not been examined by the prosecution.
19. The said witnesses namely, PW-3 (Fulmati Devi) and PW-7 (Sukani Devi) happen to be highly interested witnesses of the case being the daughter-in-law of the informant and the informant respectively. It is the settled principle of law that the testimony of the interested witness should not be discarded outrightly rather should be scanned cautiously and carefully. On careful and cautious scanning and scrutiny of the testimony of the aforesaid witnesses, it appears that their testimonies are full of contradictions from the prosecution case and their testimonies inter se regarding the occurrence, manner of occurrence, place of occurrence, weapon used and assault and in view of the aforesaid contradictions, the statement of the said witnesses do not appear to be trustworthy, reliable and worth credence and do not inspire my confidence to hold the conviction of the appellants relying upon the same.
20. From perusal of record, it appears that the occurrence is said to be on 21.09.1985 at 4:00 PM, but fardbeyan was recorded on 23.09.1985 at 9:00 PM i.e. after two days of the Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 17/20 occurrence though the P.S. is located barely 4 Km. from the place of occurrence, and the F.I.R. was sent to the court on 4.10.1985 i.e. after 11 days of the occurrence. No explanation has been assigned by the prosecution for the aforesaid delay in giving the fardbeyan and inordinate delay in sending the F.I.R. to the court giving sufficient time and hiatus for manipulation of the case against the accused persons by the prosecution which creates serious doubt regarding the prosecution case.
21. As per the prosecution case and witnesses account, injured Budhan Mahto fell senseless sustaining injury in the occurrence and as per the statement of PW-3 (Fulmati Devi) recorded in paragraph 7 of her cross-examination, her husband Budhan Mahto regained sense after 1-1 ½ months. But, on perusal of the injury report, it appears that the injured including the Budhan Mahto was rushed to the hospital on 23.09.1985 i.e. after 2 days of the occurrence which is against natural course of conduct and creates serious doubt about the prosecution case. As had the Budhan Mahto become senseless sustaining injury in the occurrence why he was kept in the house for two days without according any medical aid and was rushed to the hospital after two days of the occurrence. The natural course of conduct is that in case of person falling senseless sustaining injury, he is immediately rushed to the hospital Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 18/20 to accord him medical aid, to save his life and not to retain in the house unattended without according him proper and adequate medical aid putting his life at stake. As per the statement of PW-3 (Fulmati Devi) recorded in paragraph 9 of his cross-examination, her husband remained in the hospital for two months, but no bed- head-ticket or indoor patient register etc. has been brought on record by the prosecution in substantiation of the aforesaid statement of the PW-3 which also creates serious doubt about the prosecution case.
22. As per prosecution case as alleged in the F.I.R., the aforesaid occurrence took place as the accused persons had assaulted the informant, her daughter-in-law and Budhan Mahto earlier and regarding the said occurrence, the criminal case is pending and the accused persons were mounting pressure upon the informant and Budhan Mahto to lift the said case, but they did not oblige them. PW-3 (Fulmati Devi) has also stated in paragraph 3 of her examination-in-chief that her daughter-in-law has filed case of assault against accused persons four months back and accused persons have committed the said occurrence out of the said grudge. PW-7 (Sukani Devi) in paragraph 4 of her examination-in-chief has stated that the case regarding assaulting her daughter-in-law by all the accused persons is pending and the accused persons were insisting to get the said case compromised and committed the Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 19/20 occurrence due to not obliging them. The aforesaid prosecution case and statement of witnesses indicate that the accused persons and PW-3 (Fulmati Devi) and PW-7 (Sukani Devi) are on inimical terms. The animosity cuts both the edges. But, in view of the aforesaid contradiction between the prosecution case, statement of witnesses, not corroboration of the statement of PW-3 and PW-7 and prosecution case by the independent witnesses, delay in giving the fardbeyan and in sending the F.I.R. to the court, I am constrained to observe that the accused persons have been falsely implicated in this case by the prosecution party due to aforesaid animosity.
23. As per prosecution case and statement of PW-7 as discussed by me hereinabove, there is difference in place of occurrence as as per the prosecution case, the place of occurrence is courtyard of Budhan Mahto while as per account of PW-7, it is the courtyard of the informant located after 3-4 houses of Budhan Mahto, but the I.O. of the case has not been examined by the prosecution, thus, the place of occurrence does not stand established by the prosecution.
24. In the aforesaid facts and circumstances of the case, I find and hold that the prosecution has utterly and miserably failed to bring home the charges levelled against the appellants beyond all Patna High Court CR. APP (SJ) No.206 of 2002 dt.06-10-2017 20/20 reasonable doubts by adducing convincing, cogent, consistent and wroth credence ocular and documentary evidence. Hence, the impugned Judgment and Order of conviction and sentence passed by learned lower court is set aside and the appellants are acquitted of the charges levelled against them. As the appellants are on bail, they are discharged from the liability of the bail bonds. Accordingly, this Criminal Appeal is allowed.
(Prakash Chandra Jaiswal, J) rohit/-
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