Patna High Court
Devendra Yadav vs The State Of Bihar on 24 June, 2024
Author: Rajesh Kumar Verma
Bench: Rajesh Kumar Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.89 of 2013
Arising Out of PS. Case No.-58 Year-2004 Thana- SAHIYARA District- Sitamarhi
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Devendra Yadav S/o Sri Nathuni Yadav, Resident of Village- Mahiyar Kala,
Police Station- Sahiyara, District- Sitamarhi.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
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Appearance:
For the Appellant : Mr. Amish Kumar, Amicus Curiae
For the Respondent : Mr. Bipin Kumar, APP
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CORAM: HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
CAV JUDGMENT
Date : 24.06.2024
Heard Mr. Amish Kumar, the learned Amicus
Curiae appearing on behalf of the appellant and Mr. Bipin
Kumar, the learned Additional Public Prosecutor for the State.
2. This appeal is directed against the judgment of
conviction dated 10.12.2012 and order of sentence dated
12.12.2012
, passed by the Court of learned Ad hoc Additional
Sessions Judge-II, Sitamarhi, in Session Trial No. 60 of 2005,
GR No. 250 of 2004, arising out of Sahiyara PS Case No. 58 of
2004, whereby the appellant has been convicted for the offences
punishable under Section 307 of the Indian Penal Code and
under Section 27 of Arms Act and has been sentenced to
undergo rigorous imprisonment for seven years, to pay a fine of
Rs. 10,000/- (rupees ten thousand) and in default of payment of
Patna High Court CR. APP (SJ) No.89 of 2013 dt. 24-06-2024
fine, to suffer further imprisonment for six months under
Section 307 of the Indian Penal Code and to undergo rigorous
imprisonment for three years, to pay a fine of Rs. 2,000/-
(rupees two thousand) and in default of payment of fine, to
suffer further imprisonment for one month under Section 27 of
Arms Act. All the sentences have been directed to run
concurrently.
3. The prosecution case in brief is that in the night of
26.02.2004, the informant heard the sound of firing and saw
around twenty to twenty-five persons, armed with weapons,
entering his house and started looting the household articles. It
is further alleged that the informant identified the appellant, co-
accused Nathuni Rai, Bilas Rai and his son. It is further alleged
that while fleeing, co-accused person Nathuni Rai fired and the
bullet hit the informant's left thigh and the appellant also fired at
the informant's chest. It is lastly alleged that the accused
persons assaulted informant's uncle, namely, Gaya Singh with
lathi.
4. The fardbayan of the informant lead to registration
of Sahiyara PS Case No. 58 of 2004 under Sections 147, 307,
324, 395 and 397 of the Indian Penal Code and under Section 27
of Arms Act. The charges were framed under Sections 147, 307
Patna High Court CR. APP (SJ) No.89 of 2013 dt. 24-06-2024
and 324 of the Indian Penal Code and under Section 27 of Arms
Act on 30.03.2005. However, on 21.09.2010, the charges were
also framed under Sections 395 and 397 of the Indian Penal
Code.
5. The appellant pleaded not guilty and claimed to be
trialed. The trial commenced and prosecution examined
altogether six witnesses, out of whom PW-1, PW-4 and PW-2
are respectively the uncles and father of the informant, while
PW-3 is the informant himself, PW-5 is the I.O. of the case and
PW-6 is the doctor, who examined the injured persons.
6. Learned counsel for the appellant submits that the
judgment of conviction and order of sentence passed by the
learned trial Court are bad in law as well as known facts of the
case and no independent witness had supported the case of the
prosecution and the witnesses examined in the case are uncles
and father of the informant and the informant himself and the
other witnesses are the I.O. and the doctor.
7. Learned counsel for the appellant submits that as
per the FIR, the informant and his uncle (PW-4) were
respectively assaulted with Nakatwa/lathi, but even their
evidence are quite contradictory to each other and the learned
trial Court has failed to take note of and passed the order of
Patna High Court CR. APP (SJ) No.89 of 2013 dt. 24-06-2024
conviction and sentence and the learned trial Court has also
failed to appreciate the fact that out of two eyewitness, the
informant himself and the PW-4, who have given to different
accounts of allegation/assault. As per informant, Nathuni Rai
fired at thigh and the appellant fired at the right chest of the
informant, on the other hand, the other witness, PW-4, deposed
that the appellant fired at thigh and Nathuni Rai fired on the
chest of the informant. The learned trial Court further failed to
appreciate the evidence in respect of appellant that informant
himself had sated that on account of assault his leg fractured
while he himself has stated/deposed that the appellant fired at
his chest, even if taken as true, the author of the injury as stated
by him is not caused by the appellant's assault and bare perusal
of the statement/deposition of the informant, it appears that
there is major contradiction in the statement of the informant
and PW-4 and other witnesses. According to the informant, the
occurrence took place inside the house of the informant and
according to others the informant, when came out of his house,
was assaulted by the accused persons. The learned trial Court
further failed to appreciate the fact that the prosecution has
failed to prove the place of occurrence, the time of occurrence,
the manner of occurrence.
Patna High Court CR. APP (SJ) No.89 of 2013 dt. 24-06-2024
8. Learned counsel for the appellant has relied upon
the judgment dated 28.11.2023, passed in Cr. App. No. 3619 of
2023 (Special Leave Petition (CRL.) No. 5136 of 2022), in the
case of Sivamani & Anr. Vs. State Represented by Inspector of
Police.
9. Learned counsel for the State submits that the
impugned order has been passed in accordance with law and the
learned trial Court has rightly convicted the appellant under
Section 307 of the Indian Penal code and under Section 27 of
Arms Act.
10. Having considered the facts and circumstance of
the case and submissions made by learned counsel for the
parties, this Court is of the view that there are inconsistencies in
the evidence of prosecution witnesses, i.e., the informant and
the PW-4, who have given different accounts of the
allegation/assault. As per informant, Nathuni Rai fired at thigh
and appellant fired on the right chest, on the other hand, the
other witness, PW-4 deposed that the appellant fired at thigh and
Nathuni Rai fired on the chest.
11. In this background and taking an overall view, the
appeal filed by the appellant is allowed, the impugned judgment
of conviction dated 10.12.2012 and order of sentence dated
Patna High Court CR. APP (SJ) No.89 of 2013 dt. 24-06-2024
12.12.2012 and imposition of fine, passed by the learned Ad hoc
Additional Sessions Judge-II, Sitamarhi, in Session Trial No. 60
of 2005, GR No. 250 of 2004, arising out of Sahiyara PS Case
No. 58 of 2004, are hereby set aside. The appellant is acquitted
from all the charges levelled against him in the present case.
12. The appellant is on bail. He stands discharged from
the liabilities of the bail bond.
13. The assistance provided by learned Amicus Curiae
and the State is highly appreciated. Patna High Court Legal
Service Committee is directed to pay honorarium to learned
Amicus Curiae as per rule.
(Rajesh Kumar Verma, J)
Shahnawaz/-
AFR/NAFR NAFR
CAV DATE 05.04.2024
Uploading Date 24.06.2024
Transmission Date 24.06.2024
