Patna High Court
Ajay Kumar @ Ajay Sharma vs State Of Bihar on 23 January, 2024
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.369 of 2003
Arising Out of PS. Case No.-165 Year-1981 Thana- DANAPUR District- Patna
======================================================
Binay Kumar, son of Late Parmanand Sharma, R/o- Danapur P.S.- Danapur
Dist- Patna. ... ... Appellant/s
Versus
The State of Bihar. ... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (SJ) No. 429 of 2003
======================================================
Ajay Kumar @ Ajay Sharma, Son of Late Gorakh Prasad, resident of
Danapur, P.S. Danapur, District- Patna. ... ... Appellant/s
Versus
State of Bihar. ... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (SJ) No. 369 of 2003)
For the Appellant/s : Mr. Sabal Kumar Jha, Advocate
For the Respondent/s : Mr. A.M.P. Mehta, APP
(In CRIMINAL APPEAL (SJ) No. 429 of 2003)
For the Appellant/s : Mr. Sabal Kumar Jha, Advocate
For the Respondent/s : Ms. Anita Kumari Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 23-01-2024
Cr. Appeal (SJ) No.369 of 2003
1. The present appeal preferred by appellant/convict
Binay Kumar against judgment of conviction and order of
sentence dated 23.07.2003 rendered by learned Presiding
Officer, Additional Court no. 1, Patna, Adhoc Sessions Judge,
Fast Track Court no. 1, Patna, in Session Trial Case No. 176/517
of 1982/2002, whereby and whereunder appellant/convict Binay
Kumar has been convicted for the offence punishable under
Sections 307/149 and 148 of the Indian Penal Code and against
conviction for the offence under Section 307 of the Indian Penal
Patna High Court CR. APP (SJ) No.369 of 2003 dt.23-01-2024
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Code, appellant/convict was ordered to undergo rigorous
imprisonment of seven years, whereas for the offence under
Section 148 of the Indian Penal Code, appellant/convict was
sentenced for two years rigorous imprisonment, where both
sentences were ordered to run concurrently.
2. The crux of prosecution case as springs through
fardbeyan of informant namely, Tipan Rai (not examined) that
on 24.04.81 at about 5.30 AM, 40-50 persons came on five
Tamtam. Out of them, he identified Gorakh, Kripanand and
Parmanand, both were cousin of Gorakh and Ajay Sharma.
They, immediately after arriving place of occurrence, started
uproot the hut and after breaking the lock of the room, took
away bedding, buckets etc. and Rs. 600/- and fled away.
Thereafter, informant, Balbir Rai, Anandi Rai, Mathura Rai,
Gobardhan Mahto, Jagu Paswan, Samta Rai, Chandgovind
Thakur and Yogendra Rai, who were also residing as tenant in
the house of Gorakh, surrounded them, on which Gorakh,
Parmanand Sharma, Kripanand Sharma and Ajay Sharma fired
by their pistol, four to five rounds upon them, as a result of
which, informant received injuries by firing caused by Ajay
Sharma. They also assaulted Anandi Rai with fists. Thereafter,
informant and others fled away towards west and went to Ordali
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Bazar Police out-post but in the meantime, accused persons fled
away alongwith aforesaid articles worth Rs. 2000/-. One of the
accused, who was son of Parmanand was apprehended during
course of occurrence.
3. On the basis of aforesaid written information,
police registered a formal FIR on 24.04.81 at 8.35 AM, which
has registered as Danapur P.S. Case No. 165/81 for the offences
under Sections 147, 148, 149, 379, 307 and 426 of the Indian
Penal Code and also under Section 27 of the Arms act. After
completion of investigation, investigating officer submitted
charge sheet against accused persons, where after taking
cognizance and complying Section 207 of the Code of Criminal
Procedure, the case was committed to the Sessions for trial
under Section 209 of the Cr.P.C. for its trial and disposal.
4. After commitment, learned trial court explained
charges to appellant/accused, separately on the basis of
materials collected during investigation, which they pleaded
"not guilty" and claimed trial.
5. To establish its case before the learned trial
court, the prosecution altogether examined total of four
witnesses, namely, PW-1 Santa Rai, PW-2 Anandi Rai, PW-3
Mathura Rai and PW-4 Dr. S.N. Barnwal, who had examined
Patna High Court CR. APP (SJ) No.369 of 2003 dt.23-01-2024
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injured Tipan Rai/informant/injured of this case.
6. After examination of prosecution witnesses and
by taking note of evidence and incriminating circumstances as
surfaced during trial, statement of accused persons including
appellant/accused were recorded under Section 313 of the
Cr.P.C. which was denied in totality by showing complete
innocence.
7. No witness was examined in defence.
8. On the basis of aforesaid evidence as surfaced
during the trial, the learned trial court convicted and sentenced
appellant/convict as discussed above. Being aggrieved of which
present appeal was preferred.
9. Hence the present appeal.
10. Learned counsel appearing on behalf of
appellant/accused submitted that with the available set of
prosecution evidence, it cannot be said that prosecution
established its case beyond all reasonable doubt during the trial
as injured/informant failed to examine by the learned trial court
and in want of examination of injured, who also appears to be
informant of this case, FIR cannot be said proved during the
trial. It is further submitted that investigating officer of this case
also failed to examine during the trial as to establish the place of
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occurrence and other material things which are required to be
established in any criminal case to established the case of
prosecution beyond reasonable doubt. It is also pointed out that
no arms as alleged was recovered during the course of
investigation or was produced before the court during the trial
and as such, merely on the basis of deposition of other witnesses
who were not injured and on the basis of deposition of doctor,
who examined the injured Tipan Rai, the conviction of
appellant/accused is bad in eyes of law and as such, the present
judgment convicting appellant/accused is liable to be set aside.
In support of his submission learned counsel relied upon the
legal reports of Munna Lal Vs State of Uttar Pradesh with
Sheo Lal Vs. State of Uttar Pradesh reported in 2023 SCC
OnLine SC 80, where it was observed in paragraph nos. 38 and
39 as under:-
"38. First, statement of PW-3 under
section 161, Cr. P.C. was recorded nearly 24 days
after the incident. Since the Investigating Officer did
not enter the witness box, the appellants did not
have the occasion to cross-examine him and thereby
elicit the reason for such delay. Consequently, the
delay in recording the statement of PW- 3 in course
of investigation, is not referred to and, therefore,
remains unjustified. The possibility of PW-3, being
fixed up as an eye-witness later during the process
of investigation, cannot be totally ruled out.
39. ....... It is worthy of being noted
that neither the trial court nor the High Court
considered the issue of non-examination of the
Investigating Officer. In the facts of the present case,
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particularly conspicuous gaps in the prosecution
case and the evidence of PW-2 and PW-3 not being
wholly reliable, this Court holds the present case as
one where examination of the Investigating Officer
was vital since he could have adduced the expected
evidence. His non- examination creates a material
lacuna in the effort of the prosecution to nail the
appellants, thereby creating reasonable doubt in the
prosecution case."
11. The learned APP while supporting the
conviction as recorded by the learned trial court submitted that
the doctor who was examined as PW-4 proved injury report and
stated that he examined Tipan Rai on 24.04.81 at about 9.20 AM
in Danapur hospital and found pellet injuries and, therefore,
conviction with the aid of Section 149 of the Indian Penal Code
of appellant/accused is not appearing bad in eyes of law.
12. PW-1, Samta Rai, while supporting the
occurrence through his examination-in-chief stated that
occurrence is of 24.04.81 at about 5:00 AM and by that time he
was working in his Khatal, when 40-50 persons suddenly came
over there on four different Tamtam and started to assault
Anandi Rai (PW-2) and Mahangu Rai. On said assault both of
them fled away and, thereafter, accused persons came towards
him, whom he identified as Gorakh, Parmanand, Ajay Kumar
and Binay Kumar. He found them armed with pistol and Kirpan
and several other unknown persons were equipped with lathi. It
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was stated that appellant/accused, namely Ajay started to open
fire out of which, Tipan Rai received bullet injuries on his chest,
arm and shoulders, subsequently, several persons came over
there and thereafter, injured Tipan Rai was taken to hospital. It
was stated that police arrested Ajay (abated), Binay
(appellant/accused), Gorakh (not appellant), Kirpan (not
appellant) and Parma (not appellant) whereas others fled away.
12.1. On cross-examination, it was stated by him
that Tipan Rai was in hospital for about two hours, where he
regained his self. It is stated that he was examined by police
prior to recording the statement of Tipan Rai. On further cross-
examination, it was stated that he does not know as to who is the
owner of the land on which this 'Khatal' was constructed. He
also stated that he has no paper in support of title of the disputed
land. It is also stated that Gorakh has instituted a suit in the
court of S.D.O., Danapur for the aforesaid land in which he was
also a party. It was also stated by him that assault on Anandi
(PW-2) and Mahmu were made inside the room, though they
had no bleeding injuries but they have received injuries on their
body. He denied suggestion that he lodged the present case as to
grab the disputed land of "Khatal".
13. PW-2, Anandi Rai, who supported the
Patna High Court CR. APP (SJ) No.369 of 2003 dt.23-01-2024
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occurrence and stated that on 24.04.81 at about 5:00 AM, while
he was sleeping in his Khatal, accused Gorakh, Ajay, Binay
(appellant/accused), Parma, alongwith 30-35 persons came over
there on Tamtam and started to assault them. It is further stated
that accused persons forcibly entered into the room and took out
buckets, dram and clothes etc. and by that time Tipan Rai
(injured/informant) came over there, upon whom accused Ajay
fired by pistol, causing firearm injuries, thereafter, accused
persons began to flee away but by that time police came over
there and arrested Gorakh, Ajay, Binay, Parma and Kripa, who
were involved in the occurrence of assault. It is stated that
accused persons also took away his articles worth of Rs. 200-
300 and they broke also the Nad of Khatal. He categorically
stated that he did not received any injuries. He also denied
having knowledge, that he was accused in a case filed by
accused Gorakh. It was also stated by him that accused persons
untied the cows and she-buffaloes and took out articles from the
house. It was also stated that he did not assault accused persons.
This witness further stated that after receiving the gunshot
injuries informant/injured Tipan Rai became unconscious and
regained to his self in hospital. He also went hospital alongwith
injured/informant but he failed to met with police.
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14. PW-3 is Mathura Rai, who supported the date,
time and manner of the occurrence as stated by PW-1 and PW-2
and same not requires to be repeated here for the sake of
brevity as far his examination-in-chief is concerned.
14.1. Upon cross- examination, it was stated by him
that his Khatal was not constructed over land of Gorakh and he
is not the tenant of Gorakh, rather said house belongs to him. He
denied to have made his statement before the investigating
officer that he was tenant in the house of Gorakh and he was
paying rent of Rs. 10/- month. It was stated by him that counter
case of the said occurrence was also lodged against accused
persons. It was stated that there were 50 cows and she-buffalo in
four Khatals but except Tipan Rai, none received any injuries.
He denied to lodge false case to grab the Khatal/cattle house.
15. PW-4 is Dr. S.N. Barnwal, who stated that on
24.04.81
, while he was posted as Civil Assistant Surgeon in
Danapur Hospital, where he examined Tipan Rai at 9.20 AM
and found the following:-
I. One pellet injury on the upper part of the front of
right forearm.
II. One pellet injury front of the right side chest.
III. Pellet injury just below the left nipple.
IV. One pellet injury on the upper part of back of left
forearm.
V. One pellet injury on the medical aspect of the
right thigh.
VI. One pellet injury near right shoulder.
Patna High Court CR. APP (SJ) No.369 of 2003 dt.23-01-2024
CONCLUSION
16. From aforesaid discussed evidence, it transpires
that the present occurrence arises out of the land dispute, where
informant/injured etc. were in possession. The statement of PW-
1 appears contradictory to PW-2 on the point of assault as PW-1
specifically stated that PW-2 was assaulted during the course of
occurrence but PW-2 specifically stated during the trial that he
did not received any injuries. From the depositions of PW-1 and
PW-2 it transpires that informant/injured, namely Tipan Rai
became unconscious at the place of occurrence and he regained
to self at Danapur hospital but court presuming itself that the
depositions as made by PW-1 and PW-2 after long gap of time,
therefore, out of fade memory, they are giving this type of
statement and therefore, learned trial court believed the fact that
FIR was lodged at the place of occurrence itself by the
informant/injured, namely, Tipan Rai, as Tipan Rai not
examined in this case, therefore, this disputed issue was not
established as to whether he made his statement at the place of
occurrence itself or in course of hospitalization at Danapur
hospital.
17. In this case, during trial, investigating officer
was also not examined and in want of his non-examination, the
Patna High Court CR. APP (SJ) No.369 of 2003 dt.23-01-2024
several materials attentions regarding the statement which was
made first time before the learned trial court was not
contradicted which deprived the accused/appellant from his
valuable right of defence as he could not contradict the version
of prosecution witnesses as to impeach his credibility in terms
of Section 145 of the Indian Evidence Act. There is no recovery
of any firearm or empty cartridges. Non-examination of I.O.
also failed to established the place of occurrence.
18. It is the established principle of law that
prosecution must established on its own leg and therefore, in
want of non-examination of investigating officer and
injured/informant, it cannot be said that the prosecution
established its case beyond reasonable doubt.
19. Accordingly appeal stands allowed.
20. The impugned judgment of conviction and
order of sentence dated 23.07.2003 rendered by learned
Presiding Officer, Additional Court no. 1, Patna adhoc Sessions
Judge, Fast Track Court no. 1, Patna, in Session Trial Case No.
176/517 of 1982/2002 is hereby quashed and set aside. The
accused/appellant is acquitted of the charges levelled against
him. Appellant is on bail as submitted, On acquittal, his bailor
and sureties stand discharged from his respective liabilities.
Patna High Court CR. APP (SJ) No.369 of 2003 dt.23-01-2024
21. LCR, if any, be sent back to learned trial court
along with the copy of this judgment. Fine, if any, paid by
accused/appellants in furtherance of order of sentence, be
refunded to them immediately.
22. In terms of order dated 11.01.2024 a report was
called for from the S.S.P., Patna whether, the appellant namely,
Ajay Kumar @ Ajay Sharma is alive or dead, report of said
effect was also called for from the court concerned.
23. The said reports are now available, from where it
appears that appellant Ajay Kumar @ Ajay Sharma is now no
more and is dead.
24. In view of aforesaid report, the present appeal
stands abated in view of Section 394 of the Code of Criminal
Procedure (in short 'Cr.P.C.') and disposed of accordingly.
(Chandra Shekhar Jha, J.)
veena/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 01.02.2024
Transmission Date 01.02.2024
