Patna High Court
Madhu Kumar vs The State Of Bihar on 8 December, 2023
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.123 of 2023
Arising Out of PS. Case No.-71 Year-2014 Thana- SAHARGHAT District- Madhubani
======================================================
Hariom Kumar, male, aged about 28 years, S/o Late Shiv Shankar Prasad, R/o
Village- Kerwa, P.S.- Saharghat, Distt.- Madhubani.
... ... Appellant/s
Versus
1. The State of Bihar.
2. Kishan Kumar, male, aged about 28 years, S/o Manoj Prasad, R/o Village-
Kerva, P.S.- Saharghat, Distt.- Madhubani.
3. Manoj Prasad Sah, male, aged about 52 years, S/o Late Chandeshwar Prasad
Sah, R/o Village- Kerva, P.S.- Saharghat, Distt.- Madhubani.
4. Madhu Kumar, male, aged about 28 years, S/o Ganesh Prasad, R/o Village-
Kerva, P.S.- Saharghat, Distt.- Madhubani.
5. Amit Kumar, male, aged about 31 years, S/o Umesh Prasad, R/o Village-
Kerva, P.S.- Saharghat, Distt.- Madhubani.
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 4403 of 2022
Arising Out of PS. Case No.-71 Year-2014 Thana- SAHARGHAT District- Madhubani
======================================================
Madhu Kumar, male, aged about 28 years, Son of Ganesh Sah, R/o Village-
Kerwa, Gangaur, P.S.- Saharghat, District- Madhubani.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 182 of 2023
Arising Out of PS. Case No.-71 Year-2014 Thana- SAHARGHAT District- Madhubani
======================================================
1. Manoj Prasad Sah @ Manoj Prasad, aged about 52 years, male, S/o Late
Chandeshwar Prasad Sah;
2. Kishan Kumar, aged about 28 years, male, S/o Manoj Prasad Sah @ Manoj
Prasad.
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
2/24
R/o Village- Kerva, P.S.- Saharghat, District- Madhubani.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 123 of 2023)
For the Appellant/s : Mr. Prince Kumar Mishra, Adv.
For the Respondent Nos.2-5 : Mr. Praveen Kumar, Adv.
Mr. Jagjit Roshan, Adv.
For the State : Mr. Dilip Kumar Sinha, APP
(In CRIMINAL APPEAL (SJ) No. 4403 of 2022)
For the Appellant/s : Mr. Praveen Kumar, Adv.
Mr. Jagjit Roshan, Adv.
Mr. Om Prakash Singh, Adv.
For the Informant : Mr. Prince Kumar Mishra, Adv.
For the State : Mr. Ramchandra Singh, APP
(In CRIMINAL APPEAL (SJ) No. 182 of 2023)
For the Appellant/s : Mr. Praveen Kumar, Adv.
Mr. Jagjit Roshan, Adv.
Mr. Om Prakash Singh, Adv.
For the Informant : Mr. Prince Kumar Mishra, Adv.
For the State : Mr. Mukeshwar Dayal, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE NANI TAGIA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 08-12-2023
Hariom Kumar, the appellant in Cr. Appeal
(DB) No. 123 of 2023, seeks a re-look at the judgment
and order of conviction of appellants/Madhu Kumar,
Manoj Prasad Sah @ Manoj Prasad and Kishan Kumar
[Cr. Appeal (SJ) Nos. 4403 of 2022 and 182 of 2023],
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
3/24
for a lesser offence under Section 304(II) of the I.P.C.
instead of Section 302 of the I.P.C. The further
challenge to the judgment and order impugned is with
respect to acquittal of one of the respondents, namely,
Amit Kumar on the ground of his alibi of being located in
Gujrat at the time of the occurrence.
2. We have heard Mr. Prince Kumar Mishra,
the learned Advocate for the appellant/Hariom Kumar
[Cr. Appeal (DB) No. 123 of 2023], who is the
informant of the case, and Mr. Praveen Kumar & Mr.
Jagjit Roshan for the appellants/Madhu Kumar, Manoj
Prasad Sah @ Manoj Prasad and Kishan Kumar [Cr.
Appeal (SJ) Nos. 4403 of 2022 and 182 of 2023]
respectively. The State is represented by Mr. Dilip
Kumar Sinha, Mr. Ramchandra Singh and Mr.
Mukeshwar Dayal, the learned Addl. Public Prosecutors
respectively.
3. On the fardbeyan of Hariom Kumar, a case
vide Saharghat P.S. Case No. 71 of 2014, dated
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
4/24
15.12.2014
, was registered for investigation for the
offences under Sections 341, 323, 302, 504 and 34 of
the I.P.C. against the respondents. It was alleged by
him that at about 07:30 P.M. on 14.12.2014, while he
along with his mother/Sudha Devi (P.W. 2) was present
in his house, the deceased (his father) came back home
and narrated to him and his mother that
respondents/Kishan Kumar and Amit Kumar had
attempted to mow him down on way back home by a
motorcycle. He also disclosed that he could anyhow
save himself from being injured. While he was talking to
Hariom Kumar and his mother, all the four respondents
arrived on two motorcycles, armed with lathi and
bamboo sticks, and started abusing the deceased. Both,
he and his mother, forbade them from being so
combative, but to no avail. The deceased ran for his life
to his neighbour's house, namely, Bishwanath Prasad
(P.W. 1), who is the nephew of the deceased. The
respondents chased the deceased and assaulted him.
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
Respondent/Madhu Kumar is alleged to have caught
Hariom Kumar and respondents/Kishan Kumar, Manoj
Sah and Amit Kumar assaulted the mother of Hariom
Kumar, as a result of which she was injured. Thereafter,
all the respondents assaulted the deceased, as a result
of which he became unconscious and fell down. The
respondents, thereafter, fled away. Persons of the
neighbourhood had also witnessed the occurrence. After
the respondents had left the scene, the deceased was
taken to the clinic of Dr. Amar Nath Jha (P.W. 8), where
he was declared dead. The dead-body was then brought
back to the house of Hariom Kumar.
4. On the basis of the afore-noted fardbeyan
statement, the case was lodged, which went into
investigation, whereafter charge-sheet was submitted
and the respondents were put on Trial.
5. The Trial Court, after having examined
eleven witnesses on behalf of the prosecution and five
on behalf of the defense, acquitted respondent/Amit
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
Kumar, but convicted the rest of the respondents under
Sections 341, 323 and 304 Part-II/34 of the I.P.C. and
sentenced them to undergo S.I. for one month for the
offence under Section 341 I.P.C.; to undergo S.I. for six
months for the offence under Section 323 I.P.C. and to
undero R.I. for seven years, to pay a fine of Rs.
25,000/- each and in default of payment of fine, to
further suffer S.I. for a period of six months for the
offence under Section 304 Part-II/34 of the I.P.C. All
the sentences were directed to run concurrently.
6. Hence, the appeals on behalf of the
respondents as also the appeal on behalf of the
appellant/Hariom Kumar, who is the son of the
deceased. The appeal under Section 372 of the Cr.P.C.
has to be listed before a D.B. That is the reason for the
hearing of the appeals of the respondents also by the
D.B. Normally, the appeals on behalf of the respondents
would have been heard by a Single Bench as the
sentence imposed is less than 10 years.
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
7. In order to examine the correctness of the
allegation against the appellants, it would first be
necessary to see the deposition of appellant/Hariom
Kumar, who has been examined as P.W. 4 at the Trial.
The time, place and the manner of occurrence as
narrated by him in the fardbeyan has been reiterated at
the Trial.
8. However, we have noticed that he claims
to have informed the police about the occurrence after
the dead-body of his father was brought back home
from the clinic of Dr. Amar Nath Jha (P.W. 8). This was
sometimes before the police party had arrived at the
scene of occurrence. If he had informed the police
about the death of his father, it is expected that he
would also have spoken about the names of the
assailants as everything had happened before his eyes.
Unfortunately, the first Investigator of this case, namely,
Kumar Brajesh (P.W. 6) only claims to have learnt about
the occurrence in the night of 14.12.2014 by way of a
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
rumour. He admits in his deposition that he had
received a telephonic call, but without any details about
the caller or about the names of the assailants. This,
therefore, presupposes that either P.W. 4 had not called
the police or that he was too brief in his communication
with the police and only talked about the death of his
father and not the names of the assailants or that he did
not know by then that the respondents were the
assailants. The learned Advocates for the respondents
would therefore be justified in raising this presumption;
more so for the reason that Bishwanath Prasad (P.W. 1)
before whose house the final part of the assault had
taken place, has also admitted before the Trial Court
that P.W. 4 had informed the police about the
occurrence.
9. Not taking the names of the assailants on
telephone appears to us to be rather strange.
10. The respondents are the co-villagers. If
they had assaulted the informant (P.W. 4), his mother
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
(P.W. 2) and had killed the deceased, it was imperative
for the informant to have told the police about them so
that they could have been nabbed without letting them
have sufficient time to escape.
11. Apart from this, it has been argued on
behalf of the respondents that there are other serious
fault-lines in the prosecution version, which make the
case redolent with doubt and suspicion. If the deceased
was attempted to be trammeled down by two of the
respondents and he could save his life and come back to
his house, the most normal conduct of the family
members would have had to usher him inside the house.
More so, when P.W. 2, during his deposition, claims that
while he was talking to his father in front of his house,
he saw the respondents coming on two motorcycles
armed with bamboo sticks and lathi and he also
harboured an apprehension that some occurrence might
take place. But even then, he did not go inside the house
or take his mother and father inside the house and close
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
the gate from inside.
12. A person who is being chased would first
look for cover in his own house, if he is in front of his
house. Going to his nephew's house situated nearby,
appears to be rather strange but then, impulsive
decisions are taken by people under times of distress.
Even if this be given, in between the houses of the
informant and Bishwanath Prasad (P.W. 1), the house of
one Hare Krishna was situated, which had an iron grill.
If the intention was to save themselves, the best way
out was to get inside the iron grill-door. It has also to be
kept in mind that none of the respondents were armed
with any firearms or lethal weapons. If there were four
of them, there were as many number of people who
could have taken up the gauntlet and prevented the
respondents from committing the attack. All this, then,
appears to be cringe-worthy.
13. Going forward, P.W. 4 has further stated
that in the past, there was some dispute with respect to
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
clientele of the flour-mills belonging to the deceased and
respondent/Manoj Sah. Incidentally, the flour-mill of
Manoj Sah is situated in the house of Hare Krishna, a
person who is directly related to the deceased and the
informant. Because of such dispute, a panchayati was
held some two months' ago in which the appellant was
made to expiate for the wrongs committed by him. One
of the members of the panchayat was Umesh, who is the
father of Amit Kumar, who had been made accused in
this case, but acquitted by the Trial Court on his alibi.
14. With this background fact and the reason
ascribed for the respondents to have come to the house
of the deceased to attack him, one wonders what would
have been the immediate cause or the casus belli for the
attack. The parties had been residing in the village after
the panchayati. The assault, if at all it had taken place,
cannot be said to be the fall out of that earlier
commercial dispute and the afore-noted panchayati to
resolve such dispute. Something must have happened
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
for conflagrating the issue and the respondents to have
come to the house of the deceased to attack him.
15. The gaps, therefore, remain wide open
for anyone to speculate.
16. In this context, non-examination of one
Babloo, brother of Bishwanath Prasad (P.W. 1), assumes
importance. According to P.W. 4, the deceased, after
being assaulted in front of the house of P.W. 1, was
taken to Dr. Amar Nath Jha on the vehicle of Babloo. It
is expected that the same vehicle would have been used
to bring him back home after his death. Babloo has
conveniently been left out from the list of prosecution
witnesses. The inside of the vehicle of Babloo would
have had blood stains. It appears that the Investigator
completely forgot about checking that vehicle in which
the injured was taken to the doctor and was brought
back home dead.
17. Was the deceased really taken to the
clinic of Dr. Amar Nath Jha (P.W. 8)?
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
18. There are doubts for the reason that Dr.
Amar Nath Jha has only talked about his having
examined the wife of the deceased in the night
intervening between 14th and 15th of December, 2014.
He had found a number of simple injuries on her person.
Had he declared the deceased dead sometimes before he
had examined P.W. 2, he would have said that in his
examination-in-chief. Dr. Jha not mentioning anything
about his declaring the deceased dead in the night, really
puts a question mark on the truth in the narration of
events by the prosecution.
19. The daughter of deceased, namely,
Bandana Kumari (P.W. 3) has also alleged at the Trial
that the respondents assaulted the deceased, her mother
and Hariom Kumar.
20. Be it noted that Hariom Kumar alleges
that he too was injured and was treated by a village
doctor, but no injury report has been brought on record.
The doctor, who had examined him, also has not been
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
brought to the witness-stand.
21. The I.O. of this case appears to have
given a short-shrift to the statement made by P.W. 3
and stated that she did not give the details of the attack
by the respondents.
22. It further appears from the records of the
case as also from the judgment of the Court below that
respondent/Amit Kumar had taken the plea of alibi. He
was at Gujrat (Surat) and was undergoing treatment for
his illness. The records, however, indicate that
respondent/Amit Kumar did not ever present himself for
medical examination before the Board which was
especially constituted for the purpose.
23. That Hariom Kumar was confronted with
a tape-record of his talks with the father of Amit Kumar
and his agreeing for compounding the case if ten lacs
rupees was given in return, is not backed by any tangible
and admissible evidence.
24. We find that the Trial Court rightly did
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
not accord any weightage to such statement recorded in
a chip and played in the open Court.
25. Then, where was the justification of the
Trial Court to have accepted the alibi of respondent/Amit
Kumar?
26. On that account, we find fault with the
Trial Court's reasoning and its extreme reliance on the
deposition of defense witnesses with respect to Amit
Kumar not being present at the time of the occurrence.
But then, if his presence at the scene of occurrence is
confirmed by the deposition of the witnesses, we do not
find any overt act attributed to him, except for general
allegation of all the accused persons/respondents
assaulting the deceased, his wife and his son.
27. Mr. Mishra, the learned Advocate for the
appellant/Hariom Kumar has taken us to the deposition
of the eye-witnesses to the occurrence and has
submitted that even the I.O. of this case has found
blood stains in front of the house of P.W. 1.
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
28. However, we have found from the
records and the deposition of the Investigator (P.W. 6)
that even though the blood stained earth was seized, but
was not never sent for any chemical examination.
29. This has taken the investigation to
nowhere.
30. True it is that for the ineptitude and the
cavalier approach of the Investigator, the entire case
cannot be discarded; but in the present set of facts,
when the entire genesis of occurrence is doubted, such
lapses weaken the prosecution case.
31. Mr. Mishra has then submitted that the
principles relating to interference in appeals against
acquittal are trite and well settled. The entire evidence
has got to be reviewed by the Court and the Court has
to arrive at its own conclusions. If there are strong
reasons based on evidence, which can dislodge the
findings arrived at the Trial Court, which was the basis
for the acquittal of respondent/Amit Kumar, the same
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
must be gone into in a dispassionate manner and not be
left like that on the plea that due importance has to be
given by the High court to the conclusions of the Trial
Court.
32. Lastly, it has been submitted that it
would be a matter of strange coincidence that the
deceased would receive two injuries on his person
caused by hard and blunt substance, one of which
proved to be fatal and his wife also, simultaneously,
would receive injuries, though simple in nature.
33. An occurrence must have then taken
place in front of the house of the deceased and of P.W.
1 and the afore-noted minor lapses in the investigation
ought not to be over-exaggerated or given undue
importance.
34. As opposed to the afore-noted
contentions, Mr. Praveen Kumar assisted by Mr. Jagjit
Roshan, the learned Advocates has submitted that the
post-mortem report and the evidence of the Doctor
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
(P.W. 7), who conducted the autopsy, would certify that
there was one injury on the person of the deceased
which was on the head and as a result of such injury the
frontal/parietal bone had been fractured and the
meninges were lacerated. The prosecution case however
is of the deceased having been assaulted a number of
times by four able-bodied respondents.
35. A poser, therefore, has been put before
us. viz., that with the evidence on record that the brick
enclosure of a tree, in front of the house of the deceased
was found to have been demolished and scattered and
the deceased having received only one injury on his head
and another, perhaps, on his eyes which was not fatal,
would the chances of the deceased having received
injury by a fall could be totally side-lined or ignored?
36. It has thus been argued that it would not
be completely off-line to suggest that some occurrence
might have taken place in front of the house of the
deceased or P.W. 1 and in the process, the deceased
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
might have fallen down on the brick enclosure, hurting
himself and his wife also got injured.
37. It has further been submitted that this
would only be in the realm of imagination; but looking at
the other background facts, such a possibility can be
thought of. The respondents were not at all armed with
any fire-weapons or any lethal/sharp weapons of any
kind. They could well have been kept at bay, if so many
people were present at the place of occurrence.
38. There is yet another aspect to it. There
would have had been no intention of the respondents to
kill the deceased with bamboo sticks. What was the
immediate cause of the anger and the fallout skirmish
also remains unknown.
39. It does not appear to be plausible that for
a panchayati which had taken place two months' ago,
the respondents would conspire to avenge the enmity
and would come to the house of the deceased to attack
him. This does not reflect any planning, if at all it were
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
there.
40. Would it then be completely illogical to
suggest that because the deceased died unfortunately as
he had received a grievous injury on his head, it was the
most convenient thing for the informant to blame their
commercial adversaries including Amit Kumar, whose
father was part of the panchayati.
41. We do reckon that under normal human
conduct, it is not expected that the real assailants would
not be named and only in order to avenge the enmity,
persons with whom the informant is at loggerheads
would be named as the assailants. That the wife of the
deceased also simultaneously received injuries,
convinces us that for some reason or the other, for an
immediate cause, an occurrence had taken place at the
place which has been suggested by the prosecution.
42. That there is no record of the deceased
having been taken to a Doctor where he was declared
dead and non-examination of the person, who had
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
carried the deceased in an injured condition to the
Doctor, provides space for anyone to speculate that the
occurrence may not have taken place in the manner
suggested by the prosecution.
43. We do not find it necessary to examine
the deposition of the defense witnesses for the reason
that the reasoning given by the Trial Court for acquitting
respondent/Amit Kumar can be faulted by the very
nature of evidence which has been collected in this case;
but, at the same time, we are of the view that the Trial
Court was not at all justified in convicting the other
respondents under Section 304 Part-II of the I.P.C.
44. As noted by us, there does not appear to
be any foreseeable intention of killing the deceased,
much less harming him in such a manner which would
kill him. The weapon used was bamboo stick; the
medical testimony is not at all in sync with the ocular
version of the deceased having been assaulted a number
of times. There is no gainsaying that even one assault
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
on the vital portion on the deceased would clearly attract
the mischief of Section 302 of the I.P.C., but then, the
attendant circumstances and the background facts would
be important to be noted.
45. Under such circumstances, we set aside
the judgment of the Trial Court, acquitting
respondent/Amit Kumar [Cr. Appeal (DB) No. 123 of
2023] and convicting and sentencing the rest of the
respondents under Section 304 Part-II of the I.P.C.
46. We convert the conviction of
appellant/Kishan Kumar [Cr. Appeal (SJ) No. 182 of
2023] to one under Section 325 of the I.P.C. as he has
consistently been described as the person who gave the
fatal blow on the deceased and the other respondents
under Section 323 of the I.P.C.
47. Appellant/Kishan Kumar is, accordingly,
sentenced to undergo R.I. for one year. We have been
informed that he is in custody post-conviction for one
year and prior to that, he was in jail for seven months.
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
48. Appellants/Manoj Prasad Sah @ Manoj
Prasad [Cr. Appeal (SJ) No. 182 of 2023] and Madhu
Kumar [Cr. Appeal (SJ) No. 4403 of 2022] are
sentenced to undergo R.I. for six months for the offence
under Section 323 of the I.P.C.
49. Both of them are stated to be in jail for
the last one year.
50. Respondent/Amit Kumar [Cr. Appeal
(DB) No. 123 of 2023] is convicted and sentenced to
undergo R.I. for four months for the offence under
Section 323 I.P.C. About him, it has been informed at
the Bar that he has also remained in jail for more than
six months during the period of investigation, which
stands set-off against the sentence now imposed upon
him.
51. All the appeals are thus disposed off
accordingly.
52. The appellants, viz., Manoj Prasad Sah @
Manoj Prasad & Kishan Kumar [Cr. Appeal (SJ) No. 182
Patna High Court CR. APP (DB) No.123 of 2023 dt.08-12-2023
of 2023]; Madhu Kumar [Cr. Appeal (SJ) No. 4403 of
2022] and respondent/Amit Kumar [Cr. Appeal (DB) No.
123 of 2023] have already served out their sentences.
They, thus, are directed to be released forthwith from
jail, if not required or detained in any other case.
53. Let a copy of this judgment be dispatched
to the Superintendent of the concerned Jail forthwith for
compliance and record.
54. The records of these appeals be returned
to the Trial Court forthwith.
55. Interlocutory application/s, if any, also
stand disposed off accordingly.
(Ashutosh Kumar, J)
(Nani Tagia, J)
Praveen-II/Manoj
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 11/12/2023
Transmission Date 11/12/2023
