Bambam Chaudhary And Anr vs The State Of Bihar
2023 Latest Caselaw 4660 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                      CRIMINAL APPEAL (DB) No.674 of 2015
          Arising Out of PS. Case No.-247 Year-2011 Thana- BIHPUR District- Bhagalpur
     ======================================================

Lali Chaudhary son of Dinesh Chaudhary resident of Village - Gonoul, P.S. - Bihpur Bhawanipur District - Bhagalpur.

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

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 690 of 2015 Arising Out of PS. Case No.-247 Year-2011 Thana- BIHPUR District- Bhagalpur ======================================================

1. Bambam Chaudhary and Anr. son of Dinesh Chaudhary.

2. Shankar Chaudhary, son of Yadu Nandan Chaudhary. Both are resident of Village- Ganoul, P.S. Bihpur Bhawanipur District Bhagalpur

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

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

(In CRIMINAL APPEAL (DB) No. 674 of 2015) For the Appellant/s : Mr.Manoj K. Srivastava, Adv.

Mr. Sanjeev Kumar, Adv.

For the Respondent/s : Mr.Ajay Mishraapp (In CRIMINAL APPEAL (DB) No. 690 of 2015) For the Appellant/s : Mr. Manoj K. Srivastava For the Respondent/s : Mr. Ajay Mishra, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 18-09-2023

1. We have heard Shri Manoj K. Srivastava assisted

by Mr. Sanjeev Kumar, the learned Advocates for Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

appellant/ Lali Chaudhary in Criminal Appeal (DB) No.

674 of 2015.

2. There is no appearance on behalf of the

appellants / Bambam Chaudhary and Shankar

Chaudhary, the appellants in Criminal Appeal (DB) No.

690/2015, who have only been convicted and

sentenced for two years for the offence under Sections

323 and 341 of the IPC. However, their appeal has

been placed before the Division Bench because in the

same transaction, appellant/Lali Chaudhary has been

convicted and sentenced for life.

3. On our request, Mr. Manoj K. Srivastava,

the learned Advocate for the appellant / Lali

Chaudhary has assisted us for Bambam Chaudhary

and Shankar Chaudhary, appellants in Criminal Appeal

(DB) No. 690/2015 also.

4. We have also heard Mr. Ajay Mishra, the

learned APP for the State in both the appeals.

5. The appellant/Lali Chaudhary has been Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

convicted under Section 323, 341, 302 of the I.P.C

and 27 of the Arms Act and has been sentenced to

undergo imprisonment for life, to pay a fine of Rs.

10,000 and in default of fine further imprisonment of

three months for the offence under Section 302 IPC;

imprisonment for six months under Section 323 of the

IPC; S.I. for one month for the offence under Section

341 IPC and S.I. for three years for the offence under

Section 27 of the Arms Act vide judgment of

conviction and order of sentence dated 31.07.2015

and 07.08.2015 respectively passed by the learned 2 nd

Additional Sessions Judge, Naugachia in Sessions Trial

No. 1288 of 2012, arising out of Bihpur P.S Case No.

247 of 2011.

6. By the same judgment, the

appellants/Bambam Chaudhary and Sankar Chaudhary

have been convicted under Sections 323 and 341 of

I.P.C and have been sentenced to undergo S.I. for six

months for the offence under Section 323 IPC and S.I. Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

for one month for the offence under Section 341 IPC.

The sentences with respect to all the appellants have

been directed to run concurrently.

7. The deceased of this case is one Mantu

Yadav whose wife is the informant of the case and has

been examined as P.W-4. She has alleged in her

fardbeyan, which was recorded by the Sub-Inspector

of police of Bhawanipur O.P, namely, Sudin Ram (P.W.

6) on 03.08.2011, alleging that the deceased had

come back from Delhi about 3 to 4 days ago and on

the same day, he went to his aunt's house for

demanding Rs. 10,000, which he had given as an

accomodation loan to her. On 03.08.2011 at about 1

'O' clock in the day, she was informed on her mobile

telephone by Ranvijay Kumar Yadav (P.W. 3) that the

appellants have assaulted the deceased as a result of

which he has been seriously injured. The occurrence

according to her information, was witnessed by Arjun

Chaudhary, Mato Chaudhary and Mintu Chaudhary, Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

none of whom have been examined at the Trial.

8. On the basis of aforenoted fardbeyan

statement of P.W. 4 (wife of the deceased), a case

vide Bihpur P.S Case No. 247 of 2011 dated

03.08.2011 was registered initially for investigation for

offences under Sections 147, 148, 149, 323, 341 and

307 of the I.P.C. However, later, with the death of

the deceased, Section 302 was added on 04.08.2011.

9. The police after investigation submitted

chargesheet against the appellants and four others,

namely, Yadunandan Chaudhary, Manish Chaudhary,

Dinesh Chaudhary and Bulo Chaudhary, who have

since been acquitted.

10. The Trial Court after examining seven

witnesses on behalf of the prosecution, convicted and

sentenced the appellants as aforesaid.

11. Assailing the judgment and order of

conviction and sentence, Mr. Srivastava, the learned

Advocate for the appellants has submitted that four of Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

the witnesses examined at the trial are relatives of the

deceased and have spoken complete lie before the

Court, which stands demonstrated from a bare reading

of their deposition. He has further submitted that the

Trial Court completely misdirected himself in not taking

into account the developments which led to the lodging

of the Bihpur P.S case No. 246 of 2011 before the

subject F.I.R, in which conviction has been recorded

and in which case, the deceased also was one of the

accused persons who was caught hold of by the

accused persons of the present case and had been

handed over to the police as also the judgment and

order of conviction in the aforenoted case from the

Court of S.D.J.M, Naugachia, Bhagalpur holding two of

the cousins of the deceased of the present case to be

guilty under the offences for Sections 447/34 of the

I.P.C and Section 25 (1)(b)a read with 35 of the Arms

Act.

12. It has also been argued that the Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

occurrence had taken place on 03.08.2011 at the

house of co-accused Yadunandan Chaudhari (since

acquitted) where the deceased along with his two

cousins had come and all of them were variously

armed. They were chased away but Mantu (Deceased)

was overpowered. He received some injuries in the

process. Mr. Srivastava has further pointed out that

had it not been for the deceased and his two cousins

being the aggressors, the accused persons of the

present case would not have called the police at their

own house to turn him in.

13. Lastly, it has been submitted that even

though P.W. 5/the Doctor, who conducted the

postmortem on the dead body of the deceased found

one of the injuries, namely, a stitched wound to have

been caused because of gun shot but that injury was

found on the left cheek of the deceased and it

appeared that the bullet went through the cheek and

got stuck up in the maxilla. Taking clue from the Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

nature of gun shot injury suffered by the deceased, Mr.

Srivastava has argued that the eye-witness account of

P.Ws. 1, 2 and 3 has been rendered completely

untrustworthy. Three minor injuries on the body of the

deceased which was admitted by the accused persons

in F.I.R No. 246 of 2011 and one accidental gun shot

injury in the cheek clearly reflects that such injury

must have caused while the deceased made attempts

to extricate himself and run away from the house of

co-accused Yadunandan Chaudhary.

14. In this context, Mr. Srivastav has drawn the

attention of this Court to the deposition of the related

witnesses, namely, P.W's 1 to 4.

15. We have examined the evidence of all the

witnesses in detail.

16. Fekni Devi (P.W. 1) is the aunt of the

deceased who has narrated a weird and a lopsided

story which from the start of it, appears to be wholly

unreliable. She has admitted during trial that she had Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

dispute with the accused persons with respect to ten

kathas of land, the details of which, though, she could

not provide. She has further admitted that the

deceased had come to her house for recovering Rs.

10,000/- which was given by him as loan amount.

While she was bathing in river Ganges, the deceased

had come with fish. It was at that time, P.W. 1 has

alleged, that the accused persons, namely, the

appellants caught hold of him and brought him to the

house of Yadunandan Chaudhary, where he was

assaulted and later, on the orders of appellant/Sankar

Chaudhary, appellant/Lali Chaudhary fired from his

weapon, hitting in his left eye. The occurrence was

witnessed by P.W-1 while she was still bathing in the

river. The topography of the houses and the place

where the occurrence according to her had taken place,

makes her evidence absolutely untrustworthy. The

falsity of the claim appears from two circumstances.

She has admitted that many persons were bathing in Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

the river at that time and when the deceased was

overpowered, she called for help, attracting many of

the villagers. Had it been true, some of them would

have been brought to the witness stand to support the

prosecution case. Secondly, the house of Yadunandan

Chaudhary, where the appellant was fired at, is at

some distance which may not be in the line of vision of

any person bathing in the river.

17. The motive suggested by the P.W. 1 was

that since she and her family had dispute over 10

Kathas of land with the accused persons, the accused

persons perhaps were of impression that since the

appellant was related to the family, he had come to

their aid and, therefore, harming him would have

really troubled the family.

18. In this context, we have examined the

deposition of the father of the deceased, namely, Jang

Bahadur Yadav (P.W. 2). He has made even more

weird claim of being a witness to the occurrence of Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

firing while he was tending his buffaloes near the other

bank of the river. He has admitted that his son

(deceased) had gone to his aunt's place about three

days ago for recovering Rs. 10,000/- but on

03.08.2011, while tending buffaloes, he saw that the

appellants killed the deceased. Same reason has been

given as has been narrated by P.W. 1 about the motive

for killing his son. What is important to note is that he,

at least, admitted that he did not tell the police, a day

after the occurrence when his statement was

recorded, that when he had met the deceased in the

hospital, he was still in a position to talk and that he

spilled out the names of the appellants and others as

his assailants.

19. The wife of the deceased, namely, Baby

Devi (P.W. 4) though has supported the prosecution

case as narrated by her in her fardbeyan, but few of

her statements before the Trial Court make her

deposition absolutely unbelievable. She claims to have Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

learnt on mobile telephone that the appellants and

others had assaulted the deceased. When she received

such information, her father-in-law (P.W. 2) at his

house only who was informed by her only about the

occurrence. On the same day, she reached the village

of occurrence and first saw the deceased having fallen

on the darwaza of the accused persons. At that time,

Ranvijay (PW3), who had given her the information

about the occurrence was not present. Her husband

(deceased) was conscious at that time and whatever

he stated in such injured condition, was narrated by

her in the fardbeyan. She has though expressed her

ignorance about any case lodged against the deceased

and his cousins but she admitted of having

accompanied her father-in-law to the place of

occurrence.

20. We have already noted that the father-in-

law of PW4, does not claim to have gone to the village

but had witnessed the occurrence from the other side Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

of the bank of the river.

21. Both of them, therefore, had given

complete lie to the Court.

22. In order to test the correctness of the

deposition of Ranvijay Kumar Yadav (PW3) who has

wholly been relied upon by the Trial Court for

convicting the appellants, we have found that he too

has not made a correct statement before the Trial

Court. However, his admission of the fact that the

deceased was handed over in an injured condition to

the police by the accused persons of this case

completely confirms that the deceased along with his

two cousins had gone to the house of the appellants

for threatening them against their opposition to the

claim of the land by the family of the aunt of the

deceased. During the trial, he has stated in his

examination-in-chief that the accused persons had

called the police and after putting a weapon in the

hands of the deceased, he was given to the police for Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

being prosecuted.

23. The deceased was first treated in Govt

Hospital whereafter he was sent to Mayaganj Hospital

from where he was referred to Patna but on way he

died. The dead body was brought to Mayaganj Hospital

again, where the postmortem was conducted. The

inquest also was held there.

24. According to this witness, the cause of

occurrence was the dispute over the land in question

but two days prior to the occurrence i.e. on

01.08.2011, Mithilesh Yadav, a cousin of the deceased

had fought with Yadunandan Chaudhary (one of the

accused persons of this case, who has been acquitted).

Since the deceased was a cousin of aforesaid Mithilesh

Yadav, he was killed by the accused persons. He claims

to have seen the occurrence from a near distance and

has also lamented that on his call for help, nobody had

arrived. He went to the place where the deceased had

fallen down as the first visitor and only thereafter, Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

others had come. If he is to be believed, then the wife

of the deceased (PW4) cannot even be said to have

visited the house of the accused persons, which she

claims to have done when she had heard her husband

speak in an injured condition.

25. The reason for our saying so is that PW4

was very particular in telling the Court that when she

saw her husband in front of house of one of the

accused persons, PW3 was not present there. He came

only an hour later.

26. This takes us to the deposition of the

Doctor (PW5), who has found three lacerated injuries;

one being on the vital occipital region of the deceased

but the injuries are not of such dimensions as to reflect

any intention of killing the deceased. The fourth of the

wound found by PW5 was a stitched wound,

suggesting surgical interference which on opening was

found to be of the dimension ¼ x ¼ on the left cheek.

As noted above, the projectile had entered and had Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

broken the right maxilla, which had also pierced the

brain tissue and the bullet was found embedded in the

cerebellum. One metal bullet was recovered, which was

handed over to the police in sealed cover.

27. This definitely was the cause of death of

the deceased.

28. That we have disbelieved PWs 1 to 4 not

only for the reason that they have talked about the

deceased having been hit in his left eye instead of his

cheek but primarily for the reason that none of them

have seen the occurrence, which appears clearly from

their deposition.

29. The investigator of this case (PW6) has

said nothing which can convince us that he had

investigated the case properly. He was handed over

the investigation of the case on 03.08.2011 after

lodging of the First Information Report. He had sent

the deceased for treatment to the Primary Hospital,

Narayanpur through a Chowkidar, namely, Kurban Ali Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

(not examined at the trial), who had telephonically

informed him that for better treatment, the deceased

was taken to Mayaganj Hospital at Bhagalpur and

from there to Patna for higher treatment but on way

the deceased died. The place of occurrence was

inspected by him, which was in front of the house of

Yadunandan Chaudhary (one of the accused) in an

open field which was used for tying cattle also. He had

received the injury report of the deceased from the

Primary Health Centre, Narayanpur and had also

obtained the referral slip issued by Mayaganj Hospital,

referring the deceased to Patna.

30. Surprisingly, PW6 has stated before the

Court that he did not mention about any firearm injury

in the diary but has only referred to a bleeding injury.

What is regrettable is that he is the same Investigator,

who had investigated Bihpur P.S. Case No. 246/2011,

which has been taken to its logical conclusion of

conviction of the cousin of the deceased, in which case, Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

the deceased was handed over an injured condition to

the police with the allegation of his having

accompanied his cousins to the house of the accused

persons with firearm weapons.

31. He ought to have been truthful before the

Trial Court. We have no hesitation in commenting

adversely upon the slipshod investigation which he

conducted in this case reflecting an unprofessional

approach towards resolving cases.

32. We have also examined Exhibits 'B' and 'C',

namely, the F.I.R. of Bihpur P.S. Case No. 246/2011

and the judgment of the S.D.J.M. Naugachia in T.R.

2097/2013 dated 26.06.2013 in which two of the

cousins of the deceased, namely, Mithilesh Yadav and

Sanjeev Yadav have been convicted.

33. Thus we have come to the conclusion that

the deceased died of gun shot injury but the accusation

against the appellant / Lali Chaudhary of having fired

the fatal shot is rendered very doubtful. Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

34. The accusation against the other appellants

also with respect to offences under Sections 323 and

341 of the IPC, has not been proved at all.

35. We thus have no option but to set aside the

judgment and order of conviction and acquit the

appellants.

36. All the three appellants in two appeals

stand acquitted of all charges.

37. Appellant / Lali Chaudhary in Criminal

Appeal (DB) No. 674/2015 is in custody. He is

directed to be released from jail forthwith, if not

required or detained in any other case.

38. The appellants / Bambam Chaudhary and

Shankar Chaudhary are on bail. Their liabilities under

the bail bonds are cancelled.

39. Both the appeals are allowed.

40. Let a copy of this judgment be

communicated to the Superintendent of concerned jail

for record and compliance.

Patna High Court CR. APP (DB) No.674 of 2015 dt.18-09-2023

41. The records of this case be also returned to

the concerned Trial Court forthwith

(Ashutosh Kumar, J)

( Alok Kumar Pandey, J) sunilkumar/-

AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          20.09.2023
Transmission Date       20.09.2023