Bhimal Yadav vs The State Of Bihar
2023 Latest Caselaw 3925 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.500 of 2015
        Arising Out of PS. Case No.-203 Year-2001 Thana- BARH District- Patna
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Bhimal Yadav, Son of late Ramjot Yadav, resident of Village Soima, P.S. Barh, Distt. Patna.

... ... Appellant/s Versus The State of Bihar.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Manoj Kumar Pandey, Advocate Mr. Bikramdeo Singh, Advocate Ms. Kumari Pallavi, Advocate For the Respondent/s : Mr. Satya Narayan Pd., APP ====================================================== CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI and HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

Date : 22-08-2023

The present appeal is filed under Section 374(2) of

the Code of Criminal Procedure, 1973 against judgment of

conviction dated 22.05.2015 and order of sentence dated

28.05.2015 rendered by 3rd Additional District & Sessions

Judge, Barh, Patna in S.T. No. 116/06, corresponding to G.R.

No. 723/2001, arising out of Barh Case No. 203/2001, by which

the concerned trial court has convicted the appellant/accused for

the offence punishable under Section 302 of the Indian Penal

Code and is ordered to undergo rigorous imprisonment for life

and a fine of Rs. 10,000/- (ten thousand) only, and in default of

payment of fine, he shall have to undergo rigorous imprisonment Patna High Court CR. APP (DB) No.500 of 2015 dt.22-08-2023

for a period of two years more. Further the appellant is

sentenced to undergo rigorous imprisonment for a period of

three years and a fine of Rs. 5000/- (five thousand) only for the

offence punishable under Section 27 of the Arms and in default

of payment of fine, he shall have to undergo rigorous

imprisonment for one year more. Both sentences run

concurrently.

2. It is the case of the prosecution that the

informant Barfi Devi, wife of late Dineshwar Yadav, proceeded

to go with her husband to her parental village. They left the

house at about 8:30 AM in the morning. When they reached near

the agriculture field of Madan Sah, the present appellant and

another accused Chhote Yadav along with two unknown persons

surrounded them and thereafter the present appellant opened fire

from his country made pistol, which hit in the right ear pit of her

husband. At the same time, another accused Chhote Yadav also

fired at the husband of the first informant, which hit in the right

ribs of the Dineshwar Yadav, as a result of which injured fell

down and immediately died. It is stated that cause of the

occurrence is land dispute between her brother-in-law Subhash

Yadav and the appellant. The first information report was

registered with Barh P.S. bearing Case No. 203 of 2001 at 4:00 Patna High Court CR. APP (DB) No.500 of 2015 dt.22-08-2023

PM. for the alleged incident which took place at 9:00 AM in the

morning.

3. After registration of the FIR, the Investigating

Agency started investigation and recorded the statement of the

witnesses, the investigating officer also collected the material

and prepared Panchnama and thereafter filed the charge-sheet

against the present appellant/accused for the offence punishable

under section 302 of the Indian Penal Code and Section 27 of

the Arms Act before the concerned Magistrate Court.

4. As the case was exclusively triable by the court

of Sessions, the learned Magistrate committed the same under

Section 209 of the Code of Criminal Procedure to the concerned

Sessions Court, where the same was registered as Sessions Trial

No. 116 of 2006.

5. During the course of trial, the charge was

framed against the present appellant/accused and the prosecution

examined 08 witnesses and also produced documentary

evidence. Thereafter, the further statement of the

appellant/accused was recorded under section 313 of the Code

of Criminal Procedure and after conclusion of the trial the trial

court passed impugned order of conviction, against which the

present appellant has preferred the present appeal. Patna High Court CR. APP (DB) No.500 of 2015 dt.22-08-2023

6. Heard learned Advocate, Mr Bikramdeo Singh for

the appellant/accused assisted by Mr. Manoj Kumar Pandey and

Ms. Kumari Pallavi and learned APP Mr. Satya Narayan Prasad

for the respondent/State.

7. Learned advocate for the appellant has referred to

the deposition given by the prosecution witnesses and also

referred to the inquest Panchnama and the post mortem report of

the deceased and thereafter, it is mainly contended that there was

a gross delay of 7 hours in lodging the FIR, wherein the present

appellant has been falsely implicated. It is submitted that though

PW-4 Sakuni Devi and PW-5 Barfi Devi have claimed that they

are the eye-witnesses to the incident in question, in fact, nobody

has seen the incident in question. It is also submitted that PW-4

Sakuni Devi did not inform the police when her statement was

recorded under Section 161 of the Code of Criminal Procedure

that she had in fact seen the occurrence in question. However, at

the time of giving her deposition before the Court, for the first

time, she had deposed that she had seen the incident in question.

Learned counsel, therefore, urged that the deposition given by

PW-4 may not be considered by this Court as an eye-witness. At

this stage, learned counsel has also referred to deposition given

by PW-5 i.e. the original first informant Barfi Devi, who is the Patna High Court CR. APP (DB) No.500 of 2015 dt.22-08-2023

wife of the diseased Dineshwar Yadav.

8. Learned advocate has pointed out the major

contradictions in her deposition and contended that as per the

case of the said witness she alongwith her husband left their

house at about 2:10 PM, whereas in the first information report

given by her, she has stated that they left the house at about 8:30

AM in the morning. Learned counsel has also referred about the

distance between the house of the complainant and the place of

occurrence. Learned counsel has also referred to paragraph 15 of

the cross-examination of the said witness and submitted that as

per the case of the PW-5, she had taken food with her husband

before they left the house in the morning. However, in the post

mortem report, it is specifically stated that food is digested.

Learned counsel therefore urged that the story put forwarded by

the prosecution may not be believed by this court, as the

prosecution has failed to prove the case against the

appellant/accused beyond reasonable doubt.

9. Learned counsel has also contended that PW-1,

PW-2 and PW-3 are not the eye-witnesses, as admitted by them

and they are mainly hearsay witnesses. Learned counsel

thereafter submitted that PW-6 is a formal witness. Learned

counsel for the appellant thereafter referred to deposition given Patna High Court CR. APP (DB) No.500 of 2015 dt.22-08-2023

by PW-7 Dr. Vikash Chand Choudhary, who had conducted the

post mortem of the deceased and thereafter submitted that

though the said witness has stated about the injury sustained by

the deceased, the prosecution has failed to prove that who had

caused the injury to the deceased and therefore the trial court has

committed an error while relying upon the deposition given by

PW-7 doctor. At this stage, learned counsel has also referred

deposition given by PW-8 Investigating Officer, after referring

to the same, it is submitted that for the first time Chaukidar

Shibu Paswan informed him about the occurrence in question,

however, he did not record the statement of Shibu Paswan. It is

further stated that during cross examination the I.O. has

admitted that he found blood stains on the soil, where the

incident took place, however, he did not collect the same and

send for necessary analysis to the FSL. Learned counsel,

therefore, urged that though the prosecution has failed to prove

the case against the appellant beyond reasonable doubt, the

learned trial Court has passed an order of conviction and

therefore, the said order be quashed and set aside.

10. On the other hand, learned APP has vehemently

opposed this appeal. It is mainly contended that, in fact, there is

no delay in lodging the FIR, as contented by learned counsel for Patna High Court CR. APP (DB) No.500 of 2015 dt.22-08-2023

the appellant. Learned APP has also referred to the deposition of

the prosecution witnesses and contended that though PW-1 to

PW-3 are not eye-witnesses, they have proved the factum of

occurrence. It is also contended that PW-4, who is daughter-in-

law of the deceased, was near the place of occurrence and

therefore she immediately reached to the spot and therefore she

is also an eye-witness to the incident in question. It is next

contended by learned APP, after referring to the deposition of

PW-5 Barfi Devi, that the presence of PW-5 was natural at the

place of incident, as she was going with her husband to her

parental village and during transit the incident in question took

place near the agricultural field of Madan Shah. It is submitted

that PW-5 can be said to be trustworthy witness and reliable

witness and though there is only one eye-witness to the incident

in question, when the medical evidence supports the case of the

said eye-witness, conviction can be recorded relying upon the

deposition given by the said eye-witness and therefore the

learned trial court has not committed any error while passing the

impugned order of conviction. Learned APP has also referred to

the inquest Panchnama of the deceased. Learned APP has also

submitted that even assuming, without the admitting, that there

is some lacuna on the part of the investigating agency in Patna High Court CR. APP (DB) No.500 of 2015 dt.22-08-2023

carrying out the investigation by not collecting the blood stains

from the place of occurrence, the benefit of the same may not be

given to the accused. Learned APP therefore urged that the

present appeal be dismissed.

11. We have considered the submissions canvassed by

the learned Advocate appearing for the parties. We have also

perused the materials placed on record including the deposition

given by the prosecution witnesses and the documentary

evidence produced by the prosecution before the trial court. At

the outset, it is pertinent to note that, as per the case of the

prosecution, the incident in question took place on 09.09.2001 at

about 9:00 AM in the morning near the agriculture field of

Madan Shah. It is also not in dispute that for the said incident

which took place at 9:00 PM the FIR was lodged at 4:00 PM.

Thus, there is a delay of more than 7 hours in lodging the FIR.

Though the first informant is claiming to be an eye-witness to

the incident, it is specifically stated in the FIR by the first

informant that she left her house along with her husband at

about 8:30 AM and when they reached near the agriculture field

of Madan Shah, the appellant and another accused Chhote Yadav

came at the said place with two unknown persons and the

present appellant/accused opened fire with his country made Patna High Court CR. APP (DB) No.500 of 2015 dt.22-08-2023

pistol. Accused Chhote Yadav also opened fire and the bullet hit

on the right rib of the husband of the first informant. The first

informant has stated in the FIR that nobody had come at the

place of incident and she was present alone with the dead body

of her husband till Chaukidar Shibu Paswan came there and

thereafter informed to the concerned police authority.

12. The first informant was examined by the

prosecution as PW-5. During her examination-in-chief, the first

informant Barfi Devi had deposed that she left her house with

her husband at 10:00 A.M. in the morning for going to her

parental village and when they reached near the agriculture

field, the present appellant came at the said place and thereafter

opened fire, in which her husband sustained injury and fell down

and immediately died. She has further stated that she is not

aware about the reason why the appellant had killed her

husband. She has further stated that the distance between her

house and the place of occurrence is half kilometer. She has

further surprisingly stated that she left her house at about 2:10

PM. At that time one Sakuni Devi PW-4 and Pantari Devi were

also accompanying them. During cross-examination, she had

stated that she informed immediately about the occurrence i.e.

within half an hour. She had further admitted in her cross- Patna High Court CR. APP (DB) No.500 of 2015 dt.22-08-2023

examination that when the incident in question took place, she

and her husband both were present. Except them, nobody was

present at the said place. She further deposed that she is not

aware about the land dispute between the appellant and cousin

of her husband Subhash and Uday.

13. PW-1 Hardev Yadav, who is son of the deceased,

is admittedly not an eye-witness to the incident in question and

the said witness reached to the place after he got information

about the incident in question. Thus, the said witness is a

hearsay witness. However, in his examination-in-chief, the said

witness deposed that the present appellant and Chhote Lal Yadav

are the accused in the case of murder of one Uday Yadav, who

was uncle of PW-1 and the deceased father of PW-1 was a

witness in the said case. Thus, the said witness has tried to point

out about the motive on the part of the appellant to commit the

crime in question.

14. Similarly, PW-2, Nandu Yadav, who is cousin of

the deceased is also a hearsay witness. Said witness is not an

eye-witness to the incident in question and he learnt about the

incident in question, when he reached to the place of occurrence.

15. PW-3. Anup Yadav is also relative of the deceased.

He got information about the incident from one Madan Mahto Patna High Court CR. APP (DB) No.500 of 2015 dt.22-08-2023

and after receiving the information from the said person, he

reached at the place of incident and came to know about the fact

that the present appellant and one another accused killed

Dineshwar Yadav. The said witness has specifically admitted in

cross-examination that he is not the eye-witness to the incident.

The said witness also tried to point out about the motive on the

part of the appellant to kill the deceased Dineshwar Yadav.

16. PW-4 Sakuni Devi is daughter-in-law of deceased.

During the examination-in-chief, the said witness has deposed

that she was near the village Bedhna Tal, she had gone there for

purpose of cultivation. When she reached near the agriculture

field of Madan Sah, she had seen that the appellant Bhimal

Yadav came at the place of occurrence. He was having pistol in

his hand and thereafter he opened fire on Bindeshwar i.e.

Dineshwar. She had also seen Chhote Yadav, who also opened

fire and in the said incident Dineshwar Yadav sustained injury.

It is pertinent to note that the aforesaid aspect was not

stated by her when the Investigating Officer recorded her

statement under Section 161 of the Code of Criminal Procedure.

17. PW-6 Ravindra Prasad is the formal witness

whereas PW-7 Dr. Vikash Chand Choudhari is a doctor, who had

conducted post mortem on the dead body of the deceased Patna High Court CR. APP (DB) No.500 of 2015 dt.22-08-2023

Dineshwar Yadav. The said witness found following external

injuries on the dead body of the deceased:-

External Injuries:

(a) Lacerated oval wound with inverted margin 1/2"x1/2" radius right perital area of skull.

(b) One lacerated oval wound with everted margin 1"x1" on left temporal area of skull below left ear.

(c) One lacerated oval wound with inverted margin on seventh intercostal space at anti axillary linei on left side of chest, size of wound 1/2"X1/2".

(d) One lacerated oval wound with everted margin in the fifth right intercostal space in mid-Calvication line on right side of chest.

2. On dissection skull:-

Cmmuted fracture of left perital and right perital bone-meninges and brain tissues illegible and mutilated. One metallic foreign body was lodged in left temporal region which was removed. Sealed in a glass vial and handed over the accompanying police.

Chest:-

Right lung ruptured left lung pale, heart empty.

Abdomen:-

Liver pale. Kidney Pale. Spleen congested stomach contains digested food. Small intesting. Full of gas and foccal matters Time since death 24 to 36 hours.

Patna High Court CR. APP (DB) No.500 of 2015 dt.22-08-2023

Cause death:-

Hemorrhage shock due to above injuries cause by fire arms.

This is the carbon copy of original post mortem report prepared with same process by him and it contains my signature. The same is hereby marked by ex hint-X.

From the aforesaid deposition given by the doctor, it

is revealed that the deceased sustained injuries by firearms and

he died because of haemorrhage shock due to the injuries

sustained by him.

18. PW-8 Neti Lal Bharti was the Investigating

Officer, who had carried out the investigation of the first

information report lodged by PW-5 Barfi Devi. The said witness

has stated in the examination-in-chief that after getting

information about the incident in question, he reached to the

place of occurrence and recorded the complaint given by Barfi

Devi. The place of occurrence as shown by the said witness is

the agriculture field of Madan Sah. The said witness has also

stated that he had obtained the signature of independent

witnesses Jayram Yadav and Shatrughan Yadav while preparing

the inquest report. Thereafter, the dead body of deceased was

sent for post mortem. During course of investigation, the said

witness recorded statement of witnesses Anup Yadav, Patiya Patna High Court CR. APP (DB) No.500 of 2015 dt.22-08-2023

Devi, Sakuni Devi, Pantari Devi, Nandu Yadav and Haridev

Yadav.

During the cross-examination, PW-8 has stated that

Chaukidar Shibu Paswan informed him about the incident in

question and therefore he reached to the place of incident.

However, he did not record the statement of Shibu Paswan. He

has also admitted that he did not prepare seizure list nor he had

collected the blood stained soil from the place of occurrence. In

paragraph 14 of the said cross-examination the said witness has

admitted that there is no eye-witness to the incident in question

and except the first informant, all the witnesses are hearsay

witnesses.

19. We have also gone through the inquest

Panchanama and the post mortem report of the deceased.

20. From the aforesaid evidence produced by the

prosecution before the concerned trial court, it would emerge

that for the alleged incident which had taken place at about 9:00

AM in the morning on 09.09.2001, the FIR was registered at

4:00 PM on the same date. Thus, there is gross delay of seven

hours in lodging the FIR. It would further emerge from the

record that in the first information report, the first informant

Barfi Devi PW-5 has stated that she was alone from 9:00 AM up Patna High Court CR. APP (DB) No.500 of 2015 dt.22-08-2023

to 4:00 PM at the place of occurrence with the dead body of her

husband and, in the meantime, no body had come at the place of

occurrence. Chaukidar Shibu Paswan was informed about the

occurrence and thereafter he had gone to the police station for

giving information. Even PW-4 Sakuni Devi had not stated in

her statement given before the police under Section 161 of the

Code of Criminal Procedure that she is an eye-witness to the

incident and for the first time she had deposed in her

examination-in-chief before the court that she had also seen the

incident in question.

21. Thus, we are of the view that PW-4 is not the eye-

witness of the occurrence and therefore her deposition cannot be

accepted as an eye-witness.

22. At this stage, it is pertinent to note that as per case

of PW-8 Investigating Officer, he got the information from

Chaukidar Shibu Paswan and thereafter he immediately reached

to the place of occurrence, however, surprisingly, the

investigating officer had not recorded the statement of the said

witness nor he has been examined as a prosecution witness. It is

also relevant to note that PW-3 Anup Yadav stated in his

examination-in-chief that he got the information from one

Madan Mahto about the occurrence in question. The Patna High Court CR. APP (DB) No.500 of 2015 dt.22-08-2023

Investigating Officer has not recorded statement of the said

witness Madan Mahto, who had gone to the place of incident

immediately after the occurrence took place. Even, as per the

case of prosecution, PW-1 to PW-3 are not an eye-witness to the

incident in question and, therefore, the deposition of PW-5, who

is claimed to be an eye-witness to the occurrence, is required to

be examined carefully by this Court.

23. We have perused the deposition given by the PW-

5, first informant, from which it is revealed that in her

examination-in-chief, she had stated that she left her house with

her husband at 10:00 AM whereas in FIR she had stated that

they left their house at about 8:30 AM. As per the first

information report, the incident took place at 9:00 AM. Whereas

in the examination-in-chief, it is her case that they left the house

at 10:00 AM at one place she had stated that the distance

between her house and place of occurrence is half kilometer and

she left her house at about 2:10 PM alongwith her husband,

Sakuni Devi and Pantaro Devi. It is pertinent to note at this stage

that Investigating Officer recorded statement of Patiya Devi,

Pantaro Devi and Pantari Devi. The said witnesses have not

been examined by the prosecution at the time of trial. The said

witness in her cross-examination stated that she alongwith her Patna High Court CR. APP (DB) No.500 of 2015 dt.22-08-2023

husband had taken meal i.e. rice, curd and dal and thereafter

they left their house in the morning. However, in the post-

mortem report and the deposition given by PW-7, Dr. Vikash

Chand Choudhari, it is stated that stomach contains digested

food. Thus, it is difficult to believe the story put forwarded by

the so-called eye-witness Barfi Devi.

24. It is true that even if there is one eye-witness, who

is trustworthy and reliable and if the case of the eye-witness is

corroborated by the medical evidence, the conviction can be

recorded relying upon the sole eye-witness. However, as

discussed hereinabove, there are major contradictions and

omissions in the deposition given by the prosecution witnesses

and we are of the view that PW-5 Barfi Devi, who is the first

informant and who is wife of the deceased, cannot be termed as

trustworthy witness or reliable witness, looking to the overall

evidence produced by the prosecution before the learned trial

court.

25. Thus, we are of the view that the prosecution has

failed to prove the case against the appellant/accused beyond

reasonable doubt. In spite of that, trial court has wrongly

recorded the order of conviction.

26. In view of the aforesaid discussion, we are Patna High Court CR. APP (DB) No.500 of 2015 dt.22-08-2023

inclined to allow this appeal. Accordingly, this appeal is

allowed.

27. The judgment of conviction dated 22.05.2015

and order of sentence dated 28.05.2015 rendered by 3 rd

Additional District & Sessions Judge, Barh, Patna in S.T. No.

116/06 corresponding to G.R. No. 723/2001 arising out of Barh

P.S. Case No. 203/2001 are quashed and set aside. The appellant

is acquitted of the charges levelled against him. He is directed to

be set at liberty forthwith, unless his detention is required in any

other case. Fine, if any paid by the appellant, be returned to him

immediately.

(Vipul M. Pancholi, J)

( Chandra Shekhar Jha, J) veena/archana-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          28.08.2023
Transmission Date       28.08.2023