Ayodhi Das @ Ajodhi Das vs The State Of Bihar
2023 Latest Caselaw 92 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.698 of 2014
      Arising Out of PS. Case No.-53 Year-2004 Thana- KATORIYA District- Banka
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Ayodhi Das @ Ajodhi Das S/o Late Pucho Das Resident of Village Ghaghrijor, P.S. Katoriya, District Banka.

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

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

For the Appellant/s : Mr. Baxi S.R.P. Sinha, Sr. Advocates Mr. Brajesh Prasad Gupta, Advocate Mr. Brij Nandad Prasad, Advocate For the Respondent/s : Mr. Abhimanyu Sharma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE KHATIM REZA CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)

Date : 11-01-2023

By the impugned judgment and order dated

06.06.2014/12.06.2014 passed by the learned Ist Additional

Sessions Judge, Banka in Sessions Trial No. 1018A of 2005/

Trial No. 410 of 2014, the appellant has been convicted and

sentenced as under:

  Conviction                                   Sentence
  under Section        Imprisonment       Fine (Rs.)           In default of
                                                               fine
  396 of the IPC RI for Life                       -                    -

2. A fardbeyan of the informant (PW-2) recorded by Patna High Court CR. APP (DB) No.698 of 2014 dt.11-01-2023

Sub-Inspector of Police, R.K. Baitha, Officer-in-Charge,

Katoria Police Station at 08:00 a.m. on 22.05.2004 is the basis

for registration of F.I.R. It is the prosecution's case, as disclosed

in the fardbeyan that on 20.05.2004, marriage of the informant's

brother, Kamlesh Yadav (PW-1) was solemnized whereafter the

barat had returned to the village in the morning on 21.05.2004.

In the midnight, when the ladies were singing songs 20-25

miscreants, 18 of whom were named including this appellant

entered into his village and surrounded his house from all the

sides. They started hurling abuses and asked them to handover

all the valuables to them. The informant (PW-2) and his

brothers as well as his father Resho Yadav (PW-6) protested

against their conduct on which one of the miscreants assaulted

his father on his mouth, left hand and left thigh with a sharp

edged weapon. Resho Yadav (PW-6) sustained injuries because

of which blood started oozing out from his body. The

miscreants, thereafter, looted the ornaments of the female folks

present in the house. Thereafter, the miscreants proceeded

towards the house of co-villager, Kishan Yadav for committing

crime. Kishan Yadav thereafter raised an outcry, consequent

upon which accused persons, namely, Nilkanth Mandal, Ishwar

Yadav and Naresh Mandal rushed towards Kishan Mandal. Patna High Court CR. APP (DB) No.698 of 2014 dt.11-01-2023

Kishan Mandal is said to have exclaimed, pointing towards

Ishwar Yadav, that he too was involved in such activities! It

further transpires from the fardbeyan that as Kishan Yadav had

identified Ishwar Yadav, his accomplice Nilkanth Mandal

hurled a bomb on Kishan Yadav (Mahto) to destroy evidence,

who sustained grievous injuries and died on the spot. Thereafter

the miscreants fled away towards the east and disappeared in

the forest. All the miscreants were claiming to be the members

of Naxal organisation and they were threatening the villagers of

serious consequences for not joining their organisation. From

the fardbeyan, it further appears that the deceased was a cousin

of the informant's grandfather. It also appears from the

fardbeyan that according to the informant the miscreants had

committed decoity in the house of Dhokal Yadav (PW-4) also in

the same night.

3. The police upon completion of investigation

submitted its chargesheet for commission of the offences

punishable under Sections 396 and 397 of the IPC and Section 3

and 4 of the Explosive Substances Act, 1908. As the appellant

did not appear at the trial initially, his trial was split up. On

06.08.2012, the appellant was arrested whereafter the trial

proceeded against him. Charge against the appellant was framed Patna High Court CR. APP (DB) No.698 of 2014 dt.11-01-2023

on 06.03.2013 by the learned trial court for commission of the

offences punishable under Section 396 of the Indian Penal Code

and Sections 3 and 4 of the Explosive Substances Act, 1908. As

the appellant denied the charges, he was put to trial. At the trial,

altogether seven prosecution's witnesses were examined,

including the doctor (PW-7) who had conducted the post-

mortem examination. After closure of the evidence of the

prosecution's witnesses, complying with the requirement of

Section 313 of the Cr.P.C. questions were put by the court to the

appellant eliciting his explanation regarding the circumstances

which had emerged against him in the evidence of the

prosecution's witnesses. The appellant, however, answered in

negative all the questions which were put to him.

4. One court witness, namely, Promod Kumar Mandal

was examined who proved the handwriting of R.K. Baitha who

had recorded the fardbeyan of the informant. The trial court

acquitted the appellant of the charge of commission of offence

punishable under Sections 3 and 4 of the Explosive Substances

Act, 1908 in the absence of the requisite sanction order for

prosecution, issued by the competent authority. However, based

on analysis and scrutiny of the evidence on record, the trial

court concluded that there were number of impelling Patna High Court CR. APP (DB) No.698 of 2014 dt.11-01-2023

circumstances which depicted that this appellant was one of the

persons who had conjointly committed murder while

committing decoity and accordingly held him guilty of the

offence punishable under Section 396 of the Indian Penal Code

and sentenced him to undergo imprisonment for life, which

judgment and order are under challenge in the present appeal.

5. We have heard Mr. Baxi, S.R.P. Sinha, learned

senior counsel appearing on behalf of the appellant and Mr.

Abhimanyu Sharma, learned Additional Public Prosecutor for

the State.

6. Mr. Baxi, S.R.P. Sinha, learned senior counsel

appearing on behalf of the appellant has submitted that in the

present facts and circumstances of the case, non examination of

the Investigating Officer has seriously prejudiced the appellant's

case, inasmuch as, he did not have the opportunity to draw the

attention of the I.O. towards the apparent contradictions in the

evidence of the prosecution's witnesses. He has further

submitted that PW-1 is apparently the only eye-witness to the

occurrence and no other person identified this appellant as one

who had participated in the commission of the offence. He has

submitted that in view of apparent contradictions in the

evidence of the informant (PW-2) at the trial, his evidence does Patna High Court CR. APP (DB) No.698 of 2014 dt.11-01-2023

not appear to be trustworthy. He has submitted that finding of

conviction recorded by the trial court of the charge under

Section 396 of the IPC against the appellant is unsustainable

and accordingly requires interference by this Court. He has also

submitted that in any event, the conviction of the appellant of

the charge under Section 396 of the IPC is wholly unjustified as

he was apparently not a party to the murder of Kishan Yadav

which is attributable only to the accused Ishwar Yadav and

Nilkanth Mandal. He has also submitted that the prosecution

witnesses have claimed to have identified the appellant with the

aid of the petromax which, according to the prosecution, was

burning at the time of occurrence. The said petromax was not

seized. Further, according to the prosecution's case, most of the

miscreants had concealed their faces but this appellant had not,

and therefore, he was identified by them. Such narration of the

occurrence is highly improbable and unbelievable.

7. Learned Additional Public Prosecutor appearing on

behalf of the State has, on the other hand, submitted that non-

examination of I.O. cannot be said to be fatal for the

prosecution's case, inasmuch as, the appellant has not been able

to demonstrate any actual prejudice caused to him because of

non-examination of I.O.. He has also submitted that this Patna High Court CR. APP (DB) No.698 of 2014 dt.11-01-2023

appellant was identified by PW-2 as one of the miscreants who

had jointly committed the offence of decoity. He has contended

that minor contradictions in the evidence of the prosecution's

witnesses are immaterial for considering the culpability of the

accused.

8. We have perused the impugned judgment and order

of the trial court and have given our thoughtful consideration to

the rival submissions advanced on behalf of the parties. It is

considered apt, in the facts and circumstances of this case, to

notice the evidence of PW-2 (the informant) first. In his

examination-in-chief he deposed that when he was sleeping at

his door, 25 persons came. They were hurling abuses and had

hurled a bomb. Kishan Yadav died of the injuries caused by

explosion of the bomb. He identified co-accused Ishwar Yadav

and this appellant with the light emanating from a petromax. In

his cross-examination, he deposed in paragraph-10 that he

awoke from sleep after hearing the sound of bomb. He further

deposed that the women folks in the house were crying and he

(PW-2) escaped from the house and returned only after the

miscreants had left. He had seen his father in injured condition

and his grandfather, dead. From the evidence of PW-2 it is

evident that he knew this appellant from before. He also Patna High Court CR. APP (DB) No.698 of 2014 dt.11-01-2023

deposed that the splinters of the bomb had hit his father Resho

Yadav (PW-6) and Kishan Yadav(deceased). Kishan Yadav died

on the spot because of the injuries sustained by bomb. This

witness identified the appellant, who, according to him, was

present at the time of occurrence.

9. PW-1, Kamlesh Yadav, is the full brother of the

informant. While supporting the prosecution's case he deposed

at the trial that the accused persons had hurled bomb which had

hit Kishan Yadav, who died on the spot. He also deposed that

this appellant was armed with lathi at the time of occurrence. In

his cross-examination, he deposed that none of the miscreants

had concealed their faces. It is significant to note that he

deposed in his cross-examination that he had not told the police

that the appellant was armed with lathi. He further deposed that

after hearing the sound of explosion of bomb he ran away from

his house and returned to his house after the occurrence had

taken place.

10. PW-3, though supported the case of the

prosecution and that he knew the appellant, he deposed that he

could not see any of the accused persons as his (PW-3) face was

covered with a bed-sheet by the miscreants.

11. PW-4 also supported the prosecution's case of the Patna High Court CR. APP (DB) No.698 of 2014 dt.11-01-2023

miscreants entering into his house and looting ornaments and

clothes. He also supported the fact that a bomb was hurled

which had hit his father who died on the spot. He, however,

deposed that he could not identify the accused persons as there

was no source of light.

12. PW-5, though supported the prosecution's case to

the extent that the occurrence in question had taken place, he

did not identify the appellant.

13. It is noteworthy that according to the evidence of

PWs, 1 and 2, father of the informant (PW-2) Resho Yadav @

Kesho Yadav (PW-6) had sustained injuries. PW-6 in his

deposition at the trial stated that his face was covered by the

miscreants. He had not heard any outcry. He did not identify the

appellant who was present in the dock.

14. PW-7, the doctor proved the handwriting of the

doctor who had conducted the postmortem examination.

15. It is evident on close scrutiny of the evidence of

the prosecution's witnesses that out of six witnesses to the

occurrence, four have not at all identified the appellant. PW-1 in

his evidence has mentioned that none of the miscreants had

covered their respective faces whereas PW-2 in his deposition

has stated that most of the miscreants had covered their faces, Patna High Court CR. APP (DB) No.698 of 2014 dt.11-01-2023

but some of them, including this appellant had not covered their

faces. It must be noted that the fardbeyan of the informant gives

a detailed description of the occurrence and discloses the names

of 18 miscreants with their parentage. PW-2, the informant,

claims to be an eye-witness to the occurrence. According to

him, his father Resho Yadav (PW-6) was assaulted by the

miscreants with a sharp edged weapon. Resho Yadav (PW-6) in

his evidence has not supported the prosecution's case that he

had sustained any injury. No injury report showing injury on the

person of PW-6 has been proved. It further appears from the

fardbeyan that after committing the crime in the house of PW-2

(the informant) the miscreants had proceeded towards the house

of deceased Kishan Yadav and when Kishan Yadav identified

Ishwar Yadav, the accused Nilkanth Mandal had assaulted the

deceased with a bomb. It is noticeable, at this juncture, that PW-

2 in his cross-examination deposed that he was sleeping at the

time of occurrence and he got up from his sleep only after

hearing the sound of bomb. It thus appears from the evidence of

PW-2 that he was not an eye-witness to the occurrence. Further,

there is substantial contradiction in the evidence of PW-1 and

PW-2 on the point as to whether the miscreants had put on

something to conceal their faces or not.

Patna High Court CR. APP (DB) No.698 of 2014 dt.11-01-2023

16. Further, PW-6 has not supported the prosecution's

case that he had received any injury caused by a sharp edged

weapon. PWs. 1 and 2 in their depositions have stated that after

hearing the sound of explosion of bomb they had fled away

from the house. It was PW-2 who awoke PW-1, who too was

sleeping when the bomb had exploded. Further, for the first

time, PW-1 deposed at the trial that the appellant was found

carrying a lathi when the occurrence had taken place, which

vital fact he had apparently not disclosed before the police

during the course of investigation.

17. Considering the evidence of the prosecution's

witnesses, in the Court's opinion, PW-1 and PW-2 do not appear

to be eye-witnesses to the presence of this appellant as one of

the dacoits who had come to their house to commit dacoity. In

our considered view, in the facts and circumstance discussed

hereinabove it would be unsafe to uphold the conviction of the

appellant based on the evidence of PW-1 and PW-2 as noticed

above.

18. Accordingly, the impugned judgment and order of

the trial court dated 06.06.2014/12.06.2014 passed by the

learned Ist Additional Sessions Judge, Banka in Sessions Trial

No. 1018A of 2005/ Trial No. 410 of 2014 are set aside.

Patna High Court CR. APP (DB) No.698 of 2014 dt.11-01-2023

Appellant is acquitted of the charge of commission of the

offence punishable under Section 396 of the IPC by extending

him benefit of doubt.

19. This appeal is accordingly allowed.

20. The appellant is in custody. Let him be released

forthwith, if not required in any other case.

(Chakradhari Sharan Singh, J)

(I agree) Khatim Reza, J

( Khatim Reza, J) gauravkr/Rajesh-

AFR/NAFR                NAFR
CAV DATE                30.11.2022
Uploading Date          12.01.2023
Transmission Date       12.01.2023