Patna High Court
Mushahru Yadav vs The State Of Bihar on 12 March, 2024
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.397 of 2018
Arising Out of PS. Case No.-74 Year-2011 Thana- DHARHARA District- Munger
======================================================
Mushahru Yadav Son of Late Ramrup Yadav, Resident of Village- Kaithwan,
P.S. Dharhara, District- Munger.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 280 of 2018
Arising Out of PS. Case No.-74 Year-2011 Thana- DHARHARA District- Munger
======================================================
Rabindra Yadav S/o Bishnudeo Yadav, R/o Village- Kaithwan, P.S.- Dharhara,
District- Munger.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 397 of 2018)
For the Appellant/s : Mr. Arvind Kumar Singh, Advocate
For the Respondent/s : Mr. Satya Narayan Prasad, Addl. P.P.
(In CRIMINAL APPEAL (DB) No. 280 of 2018)
For the Appellant/s : Mr. Ajit Kumar Singh, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, Addl. P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE JUSTICE SMT. G. ANUPAMA CHAKRAVARTHY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 12-03-2024
These two appeals have been heard together and are
being disposed of by this common judgment.
2. We have heard Mr. Arvind Kumar Singh and Mr.
Ajit Kumar Singh, learned Advocates for the appellants and Ms.
Shashi Bala Verma and Mr. Satya Narayan Prasad, learned
Additional Public Prosecutors for the State.
Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024
2/21
3. The records of the learned trial court have been
received and we have perused the same.
4. These appeals are arising out of a common
judgment of conviction dated 18.01.2018 and the order of
sentence dated 24.01.2018 (hereinafter referred to as the
'impugned judgment and order') respectively. By the impugned
judgment, the appellants have been convicted for the offence
under Section 302 of the Indian Penal Code (in short "IPC") and
they have been ordered to undergo rigorous imprisonment for
life and pay a fine of Rs. 5,000/- each. The appellants have been
acquitted of the charge under Section 302/34 IPC. As far as
charge under Section 13 of the Unlawful Activities (Prevention)
Act (hereinafter referred to as the 'UAP Act') is concerned, the
learned trial court has recorded that since no sanction of
designated authority under the said Act is on the record, hence
the trial would stand vitiated and is of no consequence and
prosecution has no case under Section 13 of the UAP Act. The
appellants have also been acquitted of the charge under Section
364/34 IPC.
Prosecution Case
5. On perusal of the records, it appears that the
prosecution case is based on the fardbeyan of Binod Rai (PW-
Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024
3/21
5). According to his fardbeyan (Exhibit '1') on 02.07.2011 at
about 4:45am (morning), while the informant was going to ease
out, he saw that a tractor and a commander jeep stopped near
Bajrang Bali Sthan from which 30-35 persons dressed in police
uniform armed with A.K.47 insas etc. descended, entered in the
village and started calling Mukhiyapati Ashok Kora and then the
informant came to know that they are not police personnel but
are terrorists. Informant identified some of the accused persons.
It is further alleged that the informant tried to flee away but he
was caught and upon hearing uproar, Narayan Kora and
Congress Kora came out from their house and they were also
caught by Ranjit Yadav and Popal Yadav and were taken to
Bajrang Bali Sthan. It is alleged that in the meantime, Ramdev
Rai started fleeing towards Saradhi then Pankaj Yadav shot
Ramdeo Rai dead. The accused persons were looking for Ashok
Kora, Bhola Kora, Sunil Rai, Shivan Rai, Bindesh Sah and
started indiscriminate firing after surrounding the house of
Ashok Kora and Bhola Kora due to which the house of Bhola
and Ashok got damaged. It is alleged that about 15 culprits
caught 12 persons including Sunil Rai, Shivan Rai and Naresh
Rai and took them to Bajrang Bali Temple. It is further alleged
that at about 5:20 am indiscriminate firing started from Saradhi
Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024
4/21
side and culprits feared that the police party has reached then
they fled away and in course of fleeing Rabinda Yadav shot
Narayan Kora and Bhola Yadav shot Congress Kora due to
which both Narayan Kora and Congress Kora died near Bajrang
Bali temple. It is further alleged that the informant freed himself
and hid behind palm tree and saw the accused persons fleeing
away towards forest of Karaili Pahar and while fleeing they shot
Sunil Rai, Shivan Rai and Naresh Rai due to which Sunil and
Shivan died at the spot and Naresh Rai was badly injured. The
terrorists took eleven other accused persons with them and they
also snatched licensee gun of Naresh Rai. It is alleged that all
the accused persons while fleeing from the place of occurrence
raised slogans of "Naxali Jindabad".
6. On completion of investigation, Police submitted a
charge-sheet bearing No. 121/2011 dated 24.09.2011 for the
offences under Sections 147/148/149/302/364/307/324/427/
323/341/342and 506 IPC, Section 27 of the Arms Act and Section 13 of the UAP Act against five named accused persons, out of 22 named in the fardbeyan. The learned Magistrate took cognizance of the offences and on finding that the offences are triable by the court of Sessions, committed the records to the court of Sessions vide order dated 24.10.2011. Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024 5/21
7. It has been pointed out to this Court that the learned trial court framed charges against all the five accused persons under Sections 302/34 and 364/34 IPC, Section 27(i) of the Arms Act and Section 13 of the UAP Act. The charges were explained to the accused who denied the charges and claimed to be tried.
8. Upon conclusion of the trial, the learned trial court acquitted the three accused (i) Dhirendra Kumar Yadav, (ii) Rakesh Kumar and (iii) Raja Ram Yadav but these two appellants have been convicted as stated above under Section 302 of the IPC. It is one of the contentions of learned counsel for the appellants which we will deal with at a later stage that there being no charge framed under Section 302 IPC against them, they have been convicted for the offence under Section 302 IPC to their prejudice as they had no occasion to focus their defence on the charge under Section 302 IPC.
9. On behalf of the prosecution altogether 11 witnesses have been examined and documents which are fully described hereinafter were marked as Exhibits.
Ext.-1 QnZC;ku ij viuk gLrk{kj Prosecution Without dk igpku fd;s objection 2-3-12 Ext.- QnZC;ku ij turk rqjh dk " "" ADJFTC 1/1 gLrk{kj 2-3-12 -III 2-3-12 Ext.- QnZC;ku ij misUnz iz0 "
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4/4 Report 20-5-13
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10. After recording the statement of the accused under Section 313 of the Code of Criminal Procedure (in short 'Cr.P.C.'), the defence examined one Anjani Kumar Ambasht as DW-1 who has deposed as a formal witness to Exhibit the Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024 7/21 formal FIR of Dharhara P.S. Case No. 64/09 as Exhibit 'F'.
Analysis of the prosecution evidence
11. The prosecution case is based on the fardbeyan of PW-5, therefore, we would first discuss the oral testimony of PW-5. He has stated in his examination-in-chief that on 02.07.2011 at 4:45am (morning), he was going outside his house to defecate and as soon as he reached on the road, accused Surendra Yadav (not charge-sheeted) caught hold of him. PW-5 claims that Congress Kora and Narayan Kora were also caught and taken to a place near Bajrang Bali Temple. There was a hulla in the village that extremists had come. Ramdev Rai started fleeing towards Saradhi village and while he was fleeing away, accused Pankaj Yadav shot him dead. Pankaj Yadav has not been charge-sheeted in this case. PW-5 has stated that Narayan Kora was shot dead by Ravindra Yadav (appellant) and Moka Yadav (not charge-sheeted) shot at Congress Kora. This witness states that then he ran towards baansbitti (bamboo clump) and from there he saw that his brother Naresh Rai was shot at, Sunil Rai was shot at near banyan tree and Shivan Rai was shot at near bridge, thereafter, the accused persons went away raising slogan "yky lyke ftUnkckn] ekvksoknh ftUnkokn ". All the accused persons went towards the forest in the eastern side Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024 8/21 of the village. He identified Rabindra Yadav and Mushahru Yadav who were standing in the dock in course of trial.
12. Referring to the oral testimony of PW-5, learned counsel for the appellants have pointed out that from paragraph 10 of the cross-examination of PW-5 it would appear that he is an accused in the murder case of Shiya Saran Yadav. According to him, he had seen the dead body of Narayan and the place where Narayan had fallen down there were bloods spread on the earth and the dead body of Narayan was in the pool of blood. This witness has also stated that he had seen the mark of firing on the boundary wall of the temple from outside. In paragraph '26' of his cross-examination, he has stated that he had not read his statement given to Daroga and on the asking of Daroga Ji he had put his signature. This witness has also stated that he had seen that four fingers of Narayan were chopped off. It is pointed out that PW-5 is though claiming himself as an eyewitness but from his cross-examination it would appear that he is not an eyewitness to the occurrence and he has himself been materially inconsistent in his statement and has contradicted himself in course of cross-examination. He has stated that forest is at a distance of 2 kilometers from his village. In paragraph '46' of his cross-examination, he has stated that extremists had covered Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024 9/21 their face. Pointing out to the evidence of the I.O. (PW-8), learned counsel for the appellants submits that PW-8 has stated that there were six places of occurrence. He had not found any empty cartridges at any places of occurrence. He had also not found any blood at the place of occurrence and in paragraph '21' of his cross-examination, PW-8 has stated that nothing was found to show that death had taken place there. PW-8 had not conducted any investigation on the point of false implication due to enmity and did not record the statement of the persons who were allegedly kidnapped/abducted by the extremists and had been brought back from the forest. It is submitted that on the face of the evidence of the I.O. (PW-8) who has stated that there were six places of occurrence and further that all the extremists had covered their face as stated by PW-5 himself it cannot be believed that PW-5 can name 22 persons with their parentage and village address. Even the postmortem report of Narayan Kora did not show that his four fingers had been chopped off. Further it is pointed out that the postmortem report shows lacerated wounds with charring and blackening on the body of the deceased Narayan Kora. It means that he was shot dead from a close range but the I.O. did not find any blood at the place of occurrence where the dead body of Narayan Kora Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024 10/21 was found and the I.O. has himself doubted the place where the death has taken place.
13. As regards the manner of occurrence in which Narayan Kora was killed one Shyam Turi (PW-4) has stated in paragraph '23' of his cross-examination that he had stated to Daroga Ji that as soon as Narayan Kora and Congress Kora came out of their house, firing started. In paragraph '24', he has stated that Congress Kora and Narayan Kora received the shots near Bajrang Bali temple. He has stated in paragraph '10' of his cross-examination that in his presence 2-4 firing took place, he had fled away towards north direction. He has stated that Daroga Ji had himself seen the blood on the earth falling from the body of Narayan Kora, the blood was not seized and he had not shown the blood to Daroga Ji. Regarding the blood lying at the place where Congress Kora had fallen, this witness has again stated that Daroga Ji had himself seen the blood, he had not shown the blood and the blood was not seized by Daroga Ji. In paragraph '18' of his cross-examination, he has stated that he had made statement before the Dy. S.P. one day after the occurrence.
14. Regarding PW-1 and PW-2, it is pointed out that they cannot be an eye witness to the occurrence and it will be Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024 11/21 evident from their oral testimony. PW-1 has stated in paragraph '11' of his evidence that some of the extremists had covered their face but some of them had not covered, some of them were wearing caps. He identified one Dharmendra Yadav (not charge- sheeted). He has stated in his cross-examination that the blood was shown to Daroga Ji and it was seized but he did not remember whether any seizure list was prepared and he had put his signature on that or not. PW-1 has stated that 400-500 rounds of firing have taken place at the house of Ashok Kora and empty cartridges were lying on the earth, bullet marks were present on the wall of the house. In paragraph '12' of his evidence, PW-1 has stated that at the time of firing he was in the house of Ashok Kora, this witness again stated that at that time he was in the house of his maternal uncle Kabir Kora. The house of Kabir Kora is situated at a distance of 50 yards from the house of Ashok Kora towards eastern direction. The extremists had fired at the house of Kabir Kora around 15-20 rounds. It is evident from the statement of PW-1 that when the firing was taking place he was either inside the house of Ashok Kora or inside the house of Kabir Kora, therefore, he had not seen the place and manner of occurrence in which Narayan Kora was killed.
Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024 12/21
15. The another prosecution witness, namely, Shravan Kumar (PW-2) is the son of Narayan Kora (deceased). He has stated that it was morning time when he was sleeping on the floor, the extremists came in the police dress. He has stated that Maowadi surrounded Sunil Rai, Shivan Rai and others including PW-2 and took them to the house of Ashok Kora from where they were taken to the side of Bajrang Bali place. He has stated that firing was taking place at the house of Mukhiya Ji and when Ramdeo Rai started fleeing towards village Saradhi in western side, he was shot dead by Pankaj Yadav. This witness has then stated that Moka Yadav shot at Congress Kora. In paragraph '3' of his evidence, PW-2 states that Ravindra Yadav (appellant) shot at his father Narayan Kora and thereafter Maowadi started fleeing away. It is further stated that near Bajrang Bali temple they killed Naresh Yadav and thereafter near Banyan Tree, Sunil Rai was shot dead and further Shivan Rai was killed. In his cross-examination, PW-2 has stated that he cannot say the circumference of the village would be less than half kilometer. The extremists had surrounded all the houses and firing started whereon the villagers confined themselves and closed themselves in their houses. The attention of PW-2 was drawn towards his former statement made before the police but he Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024 13/21 denied to have made statement before Daroga Ji that Ramdeo Rai had started fleeing towards Saradhi village. He denied to have stated that Pankaj Yadav had shot at Ramdeo Rai. He also denied to have stated that Maowadi started fleeing away and at some distance they killed Naresh Yadav and then they killed Sunil Rai near Banyan tree. In paragraph '18', he had stated that he did not remember as to how many days his statement was recorded by Daroga Ji. He has stated that at the place where his father was killed near Bajrang Bali temple only small quantity of blood was there.
16. We find from the evidence of PW-2 that he claims to have been surrounded by extremists together with Sunil Rai, Shivan Rai and others. In his examination-in-chief he has given the manner of occurrence showing how Naresh Yadav, Sunil Rai, Shivan Rai and Narayan Kora were killed but in his cross- examination he has denied to have made a statement before the I.O. regarding killing of Sunil Rai, Shivan Rai and Naresh Yadav. The statement of this witness suffers from material inconsistencies and has been contradicted by the I.O. (PW-8). His statement does not find support from the evidence of PW-5. PW-5 has not stated that PW-2 was also caught by the extremists. There is yet another witness namely Manoj Rai, Son Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024 14/21 of Ramdev Rai who has been examined as PW-6. In paragraph '2' of his evidence, PW-6 has stated that the extremists had surrounded the house of Ashok Kora and had been firing indiscriminately. PW-6 has seen that the extremists took away Sunil Rai, Narayan Rai, Shivan Rai, Ramdev Rai about 6-7 persons towards Bajrang Bali Temple. This witness has not stated about the presence of PW-2. According to PW-6, Police came whereupon the extremists started fleeing away and they took away some persons out of them six persons were killed and rest were released after the Police came. In paragraph '19' of his evidence, PW-6 has stated that Sunil Rai, Narayan Rai, Ramdev and others were taken 3-4 kilometers towards eastern side, Police chased them, 2-3 persons fled away and in the said occurrence someone was killed in the field, someone was killed near the banyan tree and someone was killed near Bajranj Bali Temple. This Court finds from the evidence of PW-6 that according to him Narayan was also taken away 3-4 kilometers towards the eastern side, therefore this witness has not seen the actual occurrence of killing of Narayan and his evidence is in complete contrast to the evidence of PW-2 and PW-5 who claim their presence when Narayan was killed by Rabindra (appellant). According to PW-6, Narayan had also been taken Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024 15/21 inside the forest, therefore, to this Court it appears that the prosecution witnesses are not consistent with regard to the place of occurrence and the manner of occurrence in which six persons were killed.
17. Attention of this Court has also been drawn towards the charge framed against the appellants. It has been shown that both the appellants were charged for the offences under Sections 302/34, 364/34 IPC, Section 27(i) of the Arms Act and Section 13 UAP Act. The learned trial court has acquitted both the appellants from all these charges but the learned trial court proceeded to convict them for the substantive offence of Section 302 IPC. Learned counsel submits that if no substantive charge under Section 302 IPC was framed, the conviction of the appellants for the offense under section 302 IPC would be completely vitiated for the reason that the conviction had been imposed without there being any ingredients of the culpable homicide amounting to murder as defined under Section 299 IPC and the appellants had no opportunity to defend themselves against the offences punishable under Section 302 IPC. We find substance in the submissions of learned counsel for the appellants. A bare perusal of the charge memo present on the record would show that the Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024 16/21 charge under Section 302/34 reads as under:-
"Schedule XLIII-High Court (M) 59 [Old Criminal Process No. 33] CHARGES WITH TWO HEADS
------------------------------
[FORM No. 32 (II) SCHEDULE II, АCT 2, 1974)
-------------------------------
(Sections 211, 212, 213, Code of Criminal Procedure)
-------------------------------
Name and Office of Magistrate, etc. I * Sri V.K. Singh, A.D.J. (F.T.C.) III, Munger.
hereby charge you S.T. No. 681 of 2011 Name of accused persons as follows:- (i) Rabindra Yadav, (ii) Dhirendra Kumar Yadav, (iii) Rakesh Kumar, (iv) Raja Ram Yadav, (v) Mushahru Yadav.
Firstly - That you/of all on or about the 2 nd day of July 2011 at 5:00 A.M. at village Karaili near Bajrangbali Temple (side of Road) P.S. Dharhara, District-Munger in furtherance of common intention committed murder intentionally and knowingly of Ramdeo Ray, Narayan Kora, Congress Kora, Sunil Ray, Sivan Ray & Naresh Ray with firearms and thereby committed an offence punishable under Section 302/34 of the Indian Penal Code, and within my cognizance. Secondly-That you/of all on or about the same day of same at same time at same place abducted (kidnapped) to Sunil Ray, Siban Ray and others in order that they might be murdered in furtherance of common intention. and thereby committed an offence punishable under Section 364/34 of the Indian Penal Code, and within my cognizance. And I hereby direct that you be tried by me on the said charge.
Magistrate/Judge"
18. It is evident from the charge under Section 302/34 Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024 17/21 IPC that it talks of murder of Ramdev Rai, Narayan Kora, Congress Kora, Sunil Rai, Shivan Rai and Naresh Rai in furtherance of common intention. This charge has not been proved. There was no charge under Sections 302/149 and further there is no substantive charge under Section 302 IPC against these two appellants, therefore, convicting them for the offence under Section 302 IPC has taken place without affording them appropriate opportunity to defend themselves against the charge under Section 302 IPC. This has caused them prejudice. The charge does not even mention that Rabindra (one of the appellants) had killed Narayan Kora, it is not mentioned that the another appellant, Musharu Yadav, was even a member of the unlawful assembly as no charge under Sections 141 and 149 was framed. There is no evidence at all that appellant (Musharu Yadav) appellant in Criminal Appeal (DB) No. 397 of 2018 had committed any overt act. We are, therefore, of the opinion that the learned trial court has grossly erred in convicting the appellants under section 302 IPC.
19. An another contention which has been raised before this Court is also required to be noticed. It has been pointed out that that at the stage of Section 313 Cr.P.C. all the incriminating materials which came in the prosecution evidence Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024 18/21 were not pointed out to the accused/appellants, therefore a valuable right conferred upon an accused by virtue of Section 313 Cr.P.C. to explain themselves has been taken away. We have perused the statement under Section 313 Cr.P.C. and find substance in the submissions of learned counsel for the appellants. At the stage of Section 313 Cr.P.C., the learned trial court seems to have put one common question to both the appellants and we reproduce the same for a ready reference:-
iz"u%& D;k vkius xokgksa dk C;ku lquk \ mRrj%& th gkaA iz"u%& vkids fo:) vkjksi ,oa lk{; gS fd fnukad 02-07-2011 le; djhc lqcg 4-45 cts vki rFkk vU; yksx iqfyl onhZ igu dj lkeku mn~ns"; ,oa vk"k; ls djSyh xkWo esa ctjaxoyh eafnj ,oa mlds bnZ fxnZ ukjk;.k dksM+k] jkenso jk;] dkaxzsl dksM+k] lqfuy jk;] f"kou jk;] ujs"k jk; dks gfFk;kj ls xksyh ekj dj gR;k dj fn;s ,oa jktks dksM+k rFkk vU; xzkfe.kksa dk gR;k djus ds mn~ns"; ls vigj.k dj fy;s rFkk Hkkxrs&Hkkxrs uDlyh ftUnkckn yky lyke ftUnkckn] ekvksoknh ftUnkokn iqfyl ds leFkZdksa gks"k essa vkvks dk ukjk yxkrs gq, Hkkx x;s\ mRrj%& th ughaA iz"u%& lQkbZ esa D;k dguk gS\ mRrj%& funksZ'k gw¡A
20. We find that the attention of the appellants were not drawn towards the statement of the prosecution witness, particularly PW-2 and PW-4, who claimed that they had seen the occurrence and it was Rabindra Yadav who killed Narayan Kora. A perusal of the statement under Section 313 Cr.P.C. only shows that it has been couched in form of charge framed against the appellants. This is not in consonance with the principles of Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024 19/21 Section 313 Cr.P.C. Reference in this regard may be made to the judgment of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116 (paragraph 135) and another judgment of the Hon'ble Supreme Court in the case of Kalicharan and Others vs. State of Uttar Pradesh reported in (2023) 2 SCC 583.
21. In fact, in course of submissions, Ms. Shashi Bala Verma, learned Additional Public Prosecutor for the State, does not dispute that both at the stage of framing of charge as well as at the stage of the statement under Section 313 Cr.P.C., the learned trial court has grossly erred. At the first instance, no charge was framed under Section 302 IPC and then, at the stage of recording of the statement of the accused-appellants, their attention was not drawn towards the incriminating materials brought by the prosecution in course of evidence.
22. We have carefully examined the entire materials on the record and the judgment of the learned trial court. We do not agree with the finding of the learned trial court that the prosecution has proved the identity of the accused, the place of commission of offence and the manner of occurrence. We find that the prosecution witnesses have failed to provide a consistent manner of occurrence, most of them have themselves Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024 20/21 stated that they were inside the house when the firing was taking place. Regarding killing of Narayan Kora also, the evidence of PW-4 is highly doubtful, as it cannot be believed that once he was caught by the maoists, he could make an escape from their clutch and saw the occurrence. PW-2 has tried to project himself as an eyewitness but we are of the view that his oral testimony is not trustworthy. The I.O. (PW-8) has given six different places of occurrence and he has stated that he had visited the place of occurrence but he did not find any empty cartridge or blood lying at the place of occurrence. In paragraph '21' of his evidence, PW-8 has categorically stated that during inspection of all the places of occurrence he could not find any material on the basis of which it will be said that at the place of occurrence death had taken place. The entire manner of occurrence has been rendered doubtful by PW-6 as well as PW-8.
23. In the light of the discussions made hereinabove, we are of the considered opinion that the prosecution is not able to prove the guilt of the appellants beyond all reasonable doubts.
The appellants could not have been convicted for the offence under Section 302 IPC as no charge was framed under that Section.
24. In result, the impugned judgment of conviction Patna High Court CR. APP (DB) No.397 of 2018 dt.12-03-2024 21/21 dated 18.01.2018 and the consequent order of sentence dated 24.01.2018 passed by learned Additional Sessions Judge-II, Munger in Sessions Trial No. 681 of 2011 arising out of Dharhara P.S. Case No. 74 of 2011 in both the appeals are liable to be set aside and are accordingly set aside. The appellants are acquitted of the charges giving them benefit of doubt. The appellants are in custody, hence they are ordered to be released forthwith if not wanted in any other case.
25. Both the appeals are allowed.
(Rajeev Ranjan Prasad, J) (G. Anupama Chakravarthy, J) Rishi/Arvind-
AFR/NAFR CAV DATE Uploading Date 29.03.2024 Transmission Date 29.03.2024