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[Cites 4, Cited by 0]

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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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

         06.10.1994

passed 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/-

AFR/NAFR                       AFR
CAV DATE                       07.05.2019
Uploading Date                 28.06.2019
Transmission Date              28.06.2019