Patna High Court
Lakshmi Chouhan And Anr vs State Of Bihar on 26 June, 2019
Equivalent citations: AIRONLINE 2019 PAT 791, 2019 CRI LJ 4573
Author: Partha Sarthy
Bench: Hemant Kumar Srivastava, Partha Sarthy
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.577 of 1994
======================================================
1. Lakshmi Chouhan, S/o Damodar Chouhan.
2. Omnand Chouhan @ Abhinandan Chouhan.
Son of Damodar Chouhan, both residents of village Birbanna, P.S. K.
Hat District Purnea.
... ... Appellant/s
Versus
State Of Bihar
... ... Opposite Party/ Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 584 of 1994
======================================================
Ganesh Chauhan son of Hajari Chauhan O.S Hajo Chauhan, resident of
Bairbana, P.S. K. Hat district Purena.
... ... Appellant/s
Versus
1. State Of Bihar through Sachichidanand Chauhan
2. Sachichidanand Chouhan S/o late Rameshwar Chouhan
village Bairbana P.S. K Hat Dist. Purnea
... ... Opposite Party/ Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 588 of 1994
======================================================
1. Raghubir Chauhan son of late Kishun Chauhan
2. Birj Narayan Chauhan @ Vijay Chauhan son of Sahbir Chauhan.
3. Santu Chauhan @ Sant Kumar Chauhan son of late Kishori Chauhan.
All resident of Bairbana P.S. K. Hat District Purnea.
... ... Appellant/s
Versus
State Of Bihar through Sachichidanand Chauhan
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 577 of 1994)
For the Appellant/s : Ms. Anukriti Jaipuriyar, Amicus Curiae
For the Respondent/s : Mr.
(In CRIMINAL APPEAL (DB) No. 584 of 1994)
For the Appellant/s : Ms. Anukriti Jaipuriyar, Amicus Curiae
For the Respondent/s : Mr.Durgesh Nandan, Advocate
(In CRIMINAL APPEAL (DB) No. 588 of 1994)
For the Appellant/s : Ms. Anukriti Jaipuriyar, Amicus Curiae
For the Respondent/s : Mr.
======================================================
CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
Patna High Court CR. APP (DB) No.577 of 1994 dt 26-06-2019
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and
HONOURABLE MR. JUSTICE PARTHA SARTHY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE PARTHA SARTHY)
Date : 26-06-2019
The above three Criminal Appeals have been preferred
against the judgment of conviction dated 05.10.1994 and
sentence order dated 06.10.1994 passed by the learned 5 th
Additional Sessions Judge, Purnea in Sessions Case No. 133 of
1993 whereby and whereunder the learned Additional Sessions
Judge (hereinafter referred to as 'the Trial Court'), convicted
Lakshmi Chouhan (appellant no. 1 in Cr. Appeal (DB) no. 577
of 1994), Omnand Chouhan@ Abhinandan Chouhan (appellant
no. 2 in Cr. Appeal (DB) no. 577 of 1994), Ganesh Chauhan
(sole appellant in Cr. Appeal (DB) no. 584 of 1994), Raghubir
Chauhan (appellant no. 1 in Cr. Appeal (DB) no. 588 of 1994),
Birj Narayan Chauhan@ Vijay Chauhan (appellant no. 2 in Cr.
Appeal (DB) no. 588 of 1994) and Santu Chauhan @ Sant
Kumar Chauhan (appellant no. 3 in Cr. Appeal (DB) no. 588 of
1994) all under Section 302 read with Section 34 of the Indian
Penal Code and sentenced them to undergo imprisonment for
life.
2. It may be stated here that as all the three appeals arise
out of the common judgment of conviction dated 05.10.1994
Patna High Court CR. APP (DB) No.577 of 1994 dt 26-06-2019
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and order of sentence dated 06.10.1994 passed by the 5th
Additional Sessions Judge, Purnea in Sessions Case No. 133 of
1993. As such all the three appeals were heard together and are
being decided by this common judgment.
3. By order dated 29.04.2019 Ms. Anukriti Jaipuriyar,
learned Advocate was appointed as Amicus Curiae for the
appellants. We have heard the learned Amicus Curiae for the
appellants and the learned Additional Public Prosecutor for the
State.
4. The prosecution case in brief is that P.W. 9
Sachchidanand Chauhan, gave his fard-e-beyan to A.S.I, S.N.
Singh, of K. Hat Police Station on 20.03.1992 at 15.30 hours in
the male surgical ward of Sadar Hospital, Purnea stating therein
that on the same day at about 11 A.M., his father Rameshwar
Chouhan, was returning from his agricultural farm in Baskhal
after engaging labourers. At this time, all of a sudden
Abhinandan Chouhan, Lakshmi Chouhan, Birj Narayan
Chauhan, Ganesh Chouhan, Sant Kumar Chauhan and Raghubir
Chouhan came out variously armed with lethal weapon and
surrounded his father. Brijnarayan Chouhan was armed with
lathi, Laxmi Chouhan with farsa, Ganesh Chouhan was armed
with garhel while other persons were also carrying different
Patna High Court CR. APP (DB) No.577 of 1994 dt 26-06-2019
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arms. The named accused persons as also 4-5 other persons
started attacking the informant's father. It is stated that at this
time the informant was going towards his agricultural field and
seeing the attack on his father from some distance, he stopped.
It is alleged that on seeing the informant, Lakshmi Chouhan
stated that both the father and son should be killed. On this, the
informant states that he ran towards his house shouting.
Thereafter, all the accused persons ran away. It is alleged that at
the time of occurrence, co-villager Chandra Shekhar Chouhan,
Rajendra Chouhan, Sarban Prasad Chouhan and others reached
the place of occurrence and saw the occurrence. It is alleged that
the accused persons thinking that the father of the informant
namely, Rameshwar Chouhan had died, went away. On
reaching, the informant found that the entire body of his father
was soaked in blood and he was still breathing. With the
assistance of the villagers, he was taken to the Sadar Hospital,
Purnea where he died in course of treatment. It is alleged that
land dispute is going on between the informant and Lakshmi
Chouhan. The informant claimed that the accused persons in a
planned and premeditated manner assaulted his father with
lethal weapon and killed him.
5. On the basis of fard-e-beyan of the informant P.W. 9
Patna High Court CR. APP (DB) No.577 of 1994 dt 26-06-2019
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Sachchidanand Chouhan, K.Hat P.S. Case No. 155 of 1992 was
registered under sections 302 and 120B of the Indian Penal
Code and, thereafter, a formal First Information Report was
drawn up against the appellants under Sections 302 and 120B of
the Indian Penal Code.
6. Sub Inspector, A.K. Singh of Marang O.P under K. Hat
Police Station took charge of the investigation and on
completion of the investigation submitted charge sheet against
the appellants under section 302 read with 34 of the Indian
Penal Code. Cognizance of the offence was taken and the case
was committed to the Court of sessions. All six appellants stood
charged for the offence punishable under section 302/34 of the
Indian Penal Code.
7. In course of trial, the prosecution examined, altogether,
10 prosecution witnesses and also got exhibited some
documents. None of the appellants adduced any evidence in
support of their defence. However, when the statement of the six
appellants were recorded, they denied the prosecution story and
claimed false implication due to land dispute. Learned Trial
Court after analyzing the prosecution evidence and mainly
relying on the testimonies of P.W. 1, P.W. 3 and P.W. 5 to P.W. 9,
convicted and sentenced the appellants as stated above.
Patna High Court CR. APP (DB) No.577 of 1994 dt 26-06-2019
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8. Learned Amicus Curiae appearing for all the appellants
assailed the impugned judgment of conviction and order of
sentence arguing that the learned Trial Court committed error in
appreciating the prosecution evidence. As per the learned
Amicus Curiae, the accused persons as also the informant
belong to the same family having common ancestors. It was
contended that there was pending land dispute between the
informant and the accused persons which at present had reached
the High Court. It was as a result of the pending land dispute
that the appellants had been falsely implicated in the case.
Further contention was that from perusal of the depositions of
P.W. 9 which has been supported by P.W. 1, P.W. 3 and P.W. 7, it
would transpire that none of the four prosecution witnesses i.e.,
P.W. 1, P.W. 3, P.W. 7 or the informant P.W. 9 are eye-witness to
the occurrence. It was contended that there was serious
differences between the medical and ocular evidence, no
independent witness had been examined on behalf of the
prosecution and non-examination of the Investigating Officer
had led to serious prejudice to the case of the defence as the
place of occurrence had also not been established.
9. On the other hand, the learned Additional Public
Prosecutor while supporting the impugned judgment of
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conviction and order of sentence argued that in course of trial,
not only P.W. 9 the informant but P.W. 1, P.W. 3 and P.W. 7,
who were also eye-witness to the occurrence, had also supported
the prosecution case. All the four prosecution witnesses had
witnessed the assault on the father of the informant and their
evidence had been supported by P.W. 8, the Doctor who
conducted the postmortem examination. It was further submitted
that it was a deed of gift executed by the grand mother of the
informant in favour of the deceased, father of the informant,
which was the cause of occurrence and the prosecution had
successfully proved the time, the place and the manner of
occurrence and, therefore, there was no need to interfere in the
impugned judgment of conviction and order of sentence.
10. Having heard the rival contentions of the parties, I
went through the record along with the lower court records. On
perusal of the evidence it transpires that a total of 10 witnesses
were examined on behalf of the prosecution and a number of
documents were got exhibited which included the postmortem
report (Ext.1), the fard-e-beyan (Ext. 3), certified copy of gift
deed (Ext. 11), certified copy of the charge sheet in K. Hat P.S.
Case No. 218 of 1987 (Ext. 15) and certified copy of FIR in
K.Hat P.S. Case No. 218 of 2018 (Ext. 16). No. witness was
Patna High Court CR. APP (DB) No.577 of 1994 dt 26-06-2019
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examined on behalf of the defence. Out of the 10 prosecution
witnesses, P.W. 9 Sachchidanand Chauhan happens to be the
informant of K.Hat P.S. Case No. 55 of 1992 and also son of the
deceased Rameshwar Chouhan. The deposition of this witness
is said to be supported by P.W. 1 Bhubneshwari Devi, P.W. 3
Sarban Prasad Chouhan and P.W. 7 Bhola Kumar Chouhan,
who all claim to be eye-witnesses.
11. Besides the above P.W. 2 Rajendra Chouhan and P.W.
4 Nawal Kishore Chouhan, were both tendered. P.W. 5
Balkrishna Kumar Chouhan, was the 10 years old minor son of
P.W. 2. P.W. 6 Upendra Chouhan, is a hersay witness and son of
P.W. 1. P.W. 8 Dr. D.K. Patel, was the doctor who held the
postmortem examination on the body of deceased Rameshwar
Chouhan. P.W. 10 Bimal Kumar Mondal, was a formal witness.
It may be stated here that the Investigating Officer of this case
was not examined.
12. P.W. 9 Sachchidanand Chauhan, who happens to be
the informant, supported the case of the prosecution claiming to
be an eye-witness. He stated that when he was going from his
house to the peas farm, he saw the accused persons variously
armed. They came and surrounded his father. Lakshmi was
carrying farsa, Ganesh had garhel, Sant Kumar was carrying a
Patna High Court CR. APP (DB) No.577 of 1994 dt 26-06-2019
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bhala while others were carrying lathi. They started to assault
his father. It is stated that Lakshmi Chauhan, on seeing the P.W.
9 said that both father and son should be killed and then they
would see as to who cultivates the land. It was stated by P.W. 9
that out of fear, he went shouting towards his house and returned
to the place of occurrence with others. By this time the accused
persons had run away. He took his injured father, who was still
breathing but was unconscious, to the Sadar Hospital, where his
father died in course of treatment. It was further stated by P.W. 9
that the land dispute between Lakshmi Chauhan and
Abhinandan Chouhan, has been going on since prior to the
occurrence. It was stated that the grand father of P.W. 9 namely,
Sudama Chouhan had two sons, namely, Damodar Chouhan and
Rameshwar Chouhan (deceased). The accused Lakshmi
Chouhan and Omnand Chouhan@ Abhinandan Chouhan are
both sons of Damodar Chouhan. On the other hand, P.W. 9
happens to be the son of Rameshwar Chouhan (deceased). It
was, further, stated by P.W. 9 that in the pending land dispute,
the father of P.W. 9 had filed C.W.J.C. No. 1508 of 1988 in the
High Court wherein Lakshmi Chouhan, Abhinandan Chouhan
besides others were respondents. It was stated that the witnesses
had been gained over and a protest petition had been filed by
Patna High Court CR. APP (DB) No.577 of 1994 dt 26-06-2019
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P.W. 9. In his cross-examination P.W. 9 stated that the cause of
dispute was a deed of gift executed by his grand mother
whereby she had gifted land measuring an area of 4.5 acres on
10.10 1985 to his father. It was stated that the Chakbandi matter
relating to the gifted property was the subject matter of the
dispute/case pending in the High Court. In Paragraph 15 of his
cross examination, P.W. 9 stated that no accused person moved
towards him but Lakshmi Chouhan on seeing him said that both
father and son should be killed. As a result of the threat, P.W. 9
became nervous and ran towards his house. He soon returned to
the place of occurrence. In paragraph 17, he states that on
returning from the village to the place of occurrence he did not
see any accused person.
13. P.W. 1 Bhubneshwari Devi, who happens to be a
labourer working in the land of the deceased, claims herself to
be an eye-witness to the occurrence. She states that she was
working on the field and on hearing hulla she ran towards the
place where the assault was taking place. Lakshmi was carrying
a farsa, Santu had a bhala, Ganesh had a garhel while the
remaining three accused persons were carrying lathi in their
hand. Rameshwar Chouhan, had fallen down as a result of the
assault and had become unconscious. It was stated that besides
Patna High Court CR. APP (DB) No.577 of 1994 dt 26-06-2019
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her, Kripanand Chouhan, Bhola Chouhan, Rajendra Chouhan
(P.W. 2), Sarban Chouhan (P.W. 3), Prasad Chouhan and
Sachchidanand Chauhan (P.W.9) also reached there. Rameshwar
Chouhan, was taken to the hospital where he died. In her cross
examination, she has stated that her son Upendra Chouhan(P.W.
1), is also a prosecution witness in the case. She, further, states
that her daughter is married to Sitaram Chouhan, brother of
Sarban Chouhan (P.W.3). She, states, that she had never
plucked peas on earlier occasion in the said land. In paragraph 3
of her cross examination, she, categorically, states that other
persons had also reached there but by the time she reached, the
assailants had run away from the place of occurrence. She states
that wife of Rameshwar Chouhan had come with her. In
paragraph 9 of her cross-examination, she states that she cannot
say whether any accused person was carrying a pistol or not.
She, thereafter, states that she had told the police that Santu had
a pistol in his hand.
14. P.W. 3 Sarban Prasad Chouhan happens to be the
brother of son-in-law of P.W. 1 Bhubneshwari Devi. P.W. 3
states that on hearing hulla she saw Lakshmi assaulting
Rameshwar with a farsa. Thereafter, it is stated that other
accused persons assaulted him with lathi, bhala, garhel and
Patna High Court CR. APP (DB) No.577 of 1994 dt 26-06-2019
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farsa. It is stated that Lakshmi was carrying a farsa and Ganesh
a garhel while others were carrying lathi. P.W. 3 states that on
their reaching the place of occurrence the accused persons ran
away. They took Rameshwar to the hospital where he died on
the same day. In his cross examination, he states that the
statement of his father was not recorded in his presence. There
has been enmity with Lakshmi since prior to the occurrence. It
is stated that the land where P.W. 3 was going, belonged to his
father. It is stated that at the place of occurrence 30-40 persons
had come there. He states that he saw Lakshmi assaulting with
farsa, while others assaulting with Bhala. As a result of the
severe assault, the father of the informant was seriously injured.
It is stated by P.W. 3 that when he reached there, Rameshwar
had fallen down on the land.
15. P.W. 7 Bhola Kumar Chauhan happens to be the son
of P.W. 2 and co-villager of the deceased Rameshwar Chauhan.
P.W. 7 states that on hearing the hulla he went towards the place
of occurrence and saw Lakshmi Chauhan, Omnand Chauhan,
Ganesh Chauhan, Brijnarayan Chauhan, Santu Chauhan and
Raghuveer Chauhan variously armed with lathi, farsa, garhail
and bhalla running away in south direction. He states that on
going to the land of Bhim Manjhi, he saw Rameshwar Chauhan
Patna High Court CR. APP (DB) No.577 of 1994 dt 26-06-2019
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in a seriously injured condition. He was taken to Purnea
Hospital where he died in course of treatment. In his cross-
examination he states that on coming out of his agricultural land
he saw the accused persons running in the south direction. He
further states that on reaching the place of occurrence he saw 3-
4 persons i.e. P.W. 5, P.W. 3, P.W. 1 and P.W. 4.
16. As stated above, the witnesses P.W. 2 Rajendra
Chauhan and P.W. 4 Naval Kishore Singh were tendered by the
prosecution for cross-examination. P.W. 6 Upendra Chauhan is
admittedly a hearsay witness. P.W. 10 Vimal Kumar Mandal is a
formal witness who has identified that paragraph nos. 1 to 87 of
the case diary of K-Hat P.S. Case No. 155 of 1992 to be in the
hand of Daroga Ajay Singh, paragraph no. 5, 88 to 107 of the
case diary to be in the hand of Daroga Chandra Kumar and the
inquest report to be in the hand A.S.I., S.N. Singh. He states that
he has worked with the three of them in Police Station and
recognizes their handwriting.
17. P.W. 5 Balakrishna Kumar Chaudhary who is also son
of P.W. 2 and brother of P.W. 7 is a 10 year old boy. From
perusal of the evidence of this witness, it would be clear that the
learned trial court did not take any steps to test the capacity of
this minor witness to testify. As per the principles of the voir
Patna High Court CR. APP (DB) No.577 of 1994 dt 26-06-2019
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dire test ('oath to tell the truth'), a judge must ascertain and
verify the competency of the child to testify in court. From the
records of the case, it being apparent that the learned trial court
not having carried out any such test, we are not entering into the
details of his deposition.
18. Besides the above, the only remaining prosecution
witness is P.W. 8, Dr. D.K. Patel who was posted as Civil
Assistant Surgeon at Purnea Sadar Hospital and conducted post-
mortem examination on the body of Rameshwar Chauhan. He
states that Rameshwar Chauchan was admitted in the Sadar
Hospital on 20.03.1992 at 1.00 P.M. and died in course of
treatment on the same day at 1:35 P.M. P.W. 8 admitted the
patient in emergency and thereafter transferred him to another
ward under Dr. M.K. Singh (not examined). He further states
that the patient was conscious. He conducted the post-mortem
examination and in his opinion the cause of death was shock
due to the injuries mentioned in the post-mortem report.
19. From perusal of the records of the case and
submissions of the parties, it would transpire that the
prosecution has mainly relied on the deposition of the informant
P.W. 9 who claims himself to be an eyewitness and further that
the prosecution case is supported by the evidence of three other
Patna High Court CR. APP (DB) No.577 of 1994 dt 26-06-2019
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eye witnesses i.e. P.W. 1, P.W. 3, P.W. 7.
20. So far as the informant P.W. 9, Sachidanand Chauhan
is concerned, although initially he claims to have seen the
occurrence, but at the same instance he states that while he was
watching from some distance, Lakshmi Chauhan referring to
him said that both father and son, meaning the deceased and
P.W. 9, should be killed and then he would see as to who
cultivates the land. P.W. 9, categorically, admits that out of fear
he ran away towards his house and on returning to the place of
occurrence, he saw that by this time all the accused persons had
run away. This witness narrates about taking his injured father
for treatment to the Sadar Hospital where he died. He also
admits about both the sides having common ancestors, pending
land disputes leading to cases up to the High Court and cause of
land dispute being a deed of gift executed with respect to 4.45
areas of land by his grandmother in favour of his father. From
perusal of the deposition of this witness, it is clear that he is not
an eye-witness to the actual occurrence.
21. With respect to the deposition of P.W. 1 Bhuneshari
Devi it would be evident that she was not named as an eye-
witness in the FIR by the informant P.W. 9. In paragraph no. 3
of her cross-examination she has stated that on hearing hulla,
Patna High Court CR. APP (DB) No.577 of 1994 dt 26-06-2019
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she came towards the place of occurrence, but by the time she
reached, the accused persons had run away. Thus, she is also not
an eye-witness to the occurrence.
22. P.W. 3 Sarban Prasad Chauhan happens to be the
brother of son-in-law of P.W. 1. He in paragraph no. 1 of his
deposition has stated that the accused persons ran away on their
reaching the place of occurrence. He proceeds to give a vivid
deposition of the 2-3 farsa blows, blows by bhalla and over
hundred lathi blows. Besides his statement that on his reaching
there the accused persons ran away, in our opinion P.W. 3 also is
not an eye-witness for the reason that the description of the
assault given by him does not corroborate with the evidence of
P.W. 8 Dr. D. K. Patel who conducted the post-mortem
examination. From perusal of the post-mortem report (Exhibit-
1) it would transpire that out of the 6 injuries, except injury
no.4, all are on non-vital part of the body. Injury no. 4 is a bruise
on left lower portion of the chest. Further neither the post-
mortem report nor the deposition of the Doctor P.W. 8 mentions
about the nature of the arms which could cause the injury as
found on the body of the deceased.
23. With respect to the deposition of P.W. 7 Bhola Kumar
Chauhan, it is stated that in clear terms he has stated that as soon
Patna High Court CR. APP (DB) No.577 of 1994 dt 26-06-2019
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as he came out of his agricultural land, he saw the accused
person running away. Thus, in unequivocal terms he admits not
having seen the actual occurrence and of not being an eye-
witness.
24. That further from perusal of the record it transpires
that the investigating officer of the case S.I., A.K. Singh has not
been examined as a prosecution witness which caused great
prejudice to the case of the defence. As a result of non-
examination, the contradictions in the statement of the
witnesses, their improving on their case as also non-
establishment of the time, place and manner of occurrence could
not be put to the Investigating Officer thus causing great
prejudice and consequently the benefit of which would go to the
defence.
25. From the facts stated and the evidence of the
prosecution witnesses dealt with herein above, it would be
evident that there is admitted land dispute between the parties,
no independent witness has been examined on behalf of the
prosecution, there is large variance between the ocular and
medical evidence and none of the four prosecution witnesses i.e.
P.W. 9, P.W. 1, P.W. 3 and P.W. 7 are eye-witnesses to the actual
occurrence, as claimed. The benefit of all this will have to go to
Patna High Court CR. APP (DB) No.577 of 1994 dt 26-06-2019
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the accused appellant herein. Accordingly, giving benefit of
doubt to the appellants, it is held that the prosecution has not
been able to prove the charges beyond all shadows of reasonable
doubts. Thus, it is an appropriate case where the appeals
preferred by all the appellants be allowed.
26. In view of the above facts and circumstances I,
hereby, allow all the three appeals and set aside, the judgment of
conviction dated 05.10.1994 and order of sentence dated
06.10.1994passed in Sessions Case No. 133 of 1993 against the six appellants namely, Lakshmi Chauhan, Omnand Chauhan, Ganesh Chauhan, Raghubir Chauhan, Brijnarayan Chauhan alias Vijay Chauhan and Santu Chauhan alias Sant Kumar Chauhan. Accordingly, all the above stated appellants are acquitted of the charge. The appellants are on bail. Hence, they are discharged from the liability of their bail bonds.
27. All the three appeal stands allowed.
28. I appreciate the assistance rendered by learned Amicus Curiae Ms. Anukriti Jaipuriyar, Advocate and I think it proper to direct the Legal Services Committee, High Court Patna to ensure the honorary payment of Rs. 2000/- to Ms. Anukriti Jaipuriyar.
29. Let a copy of first and last page of this judgment be Patna High Court CR. APP (DB) No.577 of 1994 dt 26-06-2019 19/19 handed over to Ms. Anukriti Jaipuriyar, learned Amicus Curiae so that she could make claim before the above stated authority as per direction of this Court.
( Partha Sarthy, J) (Hemant Kumar Srivastava, J):-I agree.
(Hemant Kumar Srivastava, J) Prakash/-
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