Patna High Court
Naveen Yadav @ Naveen Kumar Yadav And Ors vs The State Of Bihar on 10 April, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.220 of 2013
Arising Out of PS. Case No.-48 Year-2008 Thana- BARARI District- Katihar
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1. Naveen Yadav @ Naveen Kumar Yadav and Ors. S/O Late Sitabi Yadav
Resident Of Adarsh Nagar, Darbe Purbi Bari Nagar, P.S. Barari, District
Katihar.
2. Rakesh Yadav @ Rakesh Kumar Yadav S/O Anrud Prasad Yadav Resident
Of Adarsh Nagar, Darbe Purbi Bari Nagar, P.S. Barari, District Katihar.
3. Ledan Yadav @ Ladhan Yadav S/O Bhabhi Lal Yadav Resident Of Adarsh
Nagar, Darbe Purbi Bari Nagar, P.S. Barari, District Katihar.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Shivendra Prasad, Advocate
For the Respondent/s : Mr. Anand Mohan Mehta, APP
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CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
Date: 10-04-2025
Heard Mr. Shivendra Prasad, learned senior
Advocate for the appellants and Mr. Anand Mohan Mehta,
learned APP for the State.
2. The present appeal has been filed under
Section 374(2) of Code of Criminal Procedure, 1973 (hereinafter
referred as 'Cr.P.C') challenging the judgement of conviction
dated 12.03.2013 and order of sentence dated 14.03.2013 passed
in Sessions Trial No. 415 of 2010. in connection with Barari P.S.
Case No. 48 of 2008 dated 30.04.2008 passed by, Adhoc Addl.
Sessions Judge IV, Katihar, whereby and where-under the
Patna High Court CR. APP (SJ) No.220 of 2013 dt.10-04-2025
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appellants have been convicted for the offence under Sections
143, 323, 325, 307 and 504 of Indian Penal Code (hereinafter
referred as 'IPC') and for the offence punishable under Section
143 of the IPC sentenced to fine of Rs. 500/- each and in default
of payment of fine, to undergo imprisonment for 2 months and
for offence punishable under Section 323 of the IPC sentenced
to imprisonment for 9 months and to pay fine of Rs. 500/- each
and to undergo imprisonment for 2 months in default of payment
of fine and for the offence punishable under Section 325 of the
IPC sentenced to rigorous imprisonment for 5 years and to pay
fine of Rs. 3000/- each and to undergo imprisonment for 6
months in default of payment of fine and for the offence
punishable under Section 307 of the IPC sentenced to rigorous
imprisonment for 7 years and to pay fine of Rs. 5000/- each and
to undergo imprisonment for 1 year in default of payment of fine
and for the offence punishable under Section 504 of the IPC
sentenced to imprisonment for 1 year and to pay fine of Rs.
500/- each and to undergo imprisonment for 3 months in default
of payment of fine. However the sentence have been ordered to
run concurrently.
3. The brief facts leading to the filing of the
present appeal on the basis of the written information of
Patna High Court CR. APP (SJ) No.220 of 2013 dt.10-04-2025
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informant Md. Farookh Alam who is injured has given statement
to the Officer-in-charge of Barari P.S. alleged that on 29.10.2008
in the night at about 11:00 PM, when the informant was
irrigating his parwal field in Joniya Diyara they saw the accused
persons came and started assaulting the informant asking him
who had told them to do that. It was alleged that the informant
replied that he was poor labourer and that he would not leave
Diyara. It was further alleged that the accused person assaulted
the informant with the intention to kill him. It was alleged
further that the accused person assaulted Md. Tanbeer Alam, Md
Qasim, and Md. Tauhid also.
4. Further on the basis of written information
Barari P.S. Case no. 48 of 2008 dated 30.04.2008 under Sections
143, 323, 325, 307 and 504 of IPC has been registered and on
completion of investigation charge sheet against these appellants
have been submitted by the Investigating Officer and
accordingly cognizance against these appellants have been taken
by the learned Chief Judicial Magistrate, Katihar and after
commitment, the trial proceeded which ended into conviction
and sentence as aforesaid. The appellants have denied the
evidence of prosecution taking plea of false implication in the
case and declared themselves as innocent.
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5. The prosecution examined seven witnesses to
substantiate the charges levelled against the appellants, who are
namely, PW-1 Dr. Om Prakash Singh, PW-2 Tanweer Alam,
PW-3 Abdul Quashim, PW-4 Farookh Alam (Informant), PM-5
Adhin Yadav, PW-6 Md. Shamsuddin and PW-7 Md. Sabana
have been examined.
6. PW-1 Dr. Om Prakash Singh stated in his
examination-in-chief that on 03.04.2008 he was being posted as
Medical Officer at referal hospital Barari he had examined Md.
Farookh aged 30 years and found the following injuries:
i. Injury on the left forearm. There were
multiple injuries and the affected part has
swelling. The X-ray of affected part had
shown fracture of left forearm bones. The
swelling was of 8 cm x 2 ½ cm x 0 in size.
ii. Multiple injuries over the right arm and
forearm 7 сm x 2 ½ cm x 0.
iii. Multiple injuries over the left lower limb
as the size of all injuries ware of more or
less 8 ½ cm х 2 ½ cm х 0.
iv. Multiple injuries on the back 10 in
number and their size was 10 cm x 3 cm. x 0
cm.
Opinion: All the injuries were caused by
hard and blunt substance
Age of injuries was within 12 hours.
Nature of Injury: injury no.1 to 4 were
grievous in nature and the rest injuries were
of simple nature.
6.i. On the same day he had examined Md.
Patna High Court CR. APP (SJ) No.220 of 2013 dt.10-04-2025
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Tanweer Alam aged about 28 years and had found the following
injuries:
i. on the right forearm and the part affected
was having swelling and the size of swelling
was 5 cm x 2 cm x 0 cm.
ii. The X-ray of affected part did not show
any bone injury.
Opinion: the injury was caused by hard and
blunt substance and
Age of the injury was within 12 hours and
Nature of the Injury was simple.
6.ii. On the same day he had examined Md.
Abdul Kashim aged about 60 years and had found following
injuries:
i. on the right forearm and there was
swelling of 8 cm x 4cm X 0.
ii. The X-ray of the affected part was
showing multiple fracture of the right
radius and ulna.
iii. There was an injury on the left arm at
left elbow joint.
iv. The x-ray of the affected part was
showing fracture on the lower end of the
hemorrhage.
Opinion: The injuries were caused by hard
and blunt substance
Age of the injury was within 12 hours
Nature of the injury: both the injuries were
grievous in nature.
6.iii. On the same day he had examined Md.
Sehwaj aged about 50 years and had found following injuries:
i. Injuries on his left arm, left elbow joint
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and left forearm. The part affected was
swelling. The X-ray of the affected part had
shown fracture of upper part of the left
forearm bone. The size of swelling was 10
cm x 8 cm x 0 cm.
ii. The injury of right arm had shown no
fracture and the size of swelling was 7 cm x
5 cm x 0 cm.
Both the above injuries were caused by hard
and blunt substance and the age of injuries
was within 12 hours and natures of injury
no.1 was grievous whereas that of other
injury was simple.
6.iv. On the same day this witness had examined,
Md. Habib aged about 45 years and had found following
injuries:
i. on the right shoulder joint. The affected
part was swelling. x-ray of right shoulder
joint had shown no bone injury. Size of the
injury was 10 cm x 6 cm x 0 cm.
ii. Injury of left elbow joint had not shown
any bone injury. According to the x-ray
plate, size of the swelling was 9 cm x 6 cm x
0 cm.
iii. Injury on back and the size of the
swelling was 10 сm. x 3 cm x 0 cm.
All the above injuries were caused by hard
and blunt substance and the age of the
injury was within 12 hours.
This witness has proved the injury reports and the same have
been marked as Ext.1. 1/I, 1/II, 1/III and 1/IV, respectively. In
his cross examination he has simply said that all the injuries of
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the injured may be caused due to one's fall on any hard
substance,
7. PW- 2 Tanweer Alam in his examination-in-
chief stated that the alleged occurrence took place in the night of
29.04.2008
at about 11 PM when he was in his Parwal field and
in the mean time 15 to 16 accused persons came and started
demanding ransom. Among them he had identified Ajay Yadav,
Rahul, Majid, Mannu Yadav, Dilip Yadav, Ramu Yadav, Janamat
Yadav, Rambriksh Yadav, Fekan Yadav. According to PW-2 the
accused persons came and assaulted informant with lathi, he
stated that Sabana Hafik, Tahir and Kashim came to rescue him,
and the accused persons assaulted them also. He stated that
injured were treated next day.
8. PW-3 Md. Abdul Quasim stated in his
examination-in-chief that at the alleged time of occurrence he
was in his field. He went to the place of occurrence on hulla and
saw Ledan, Jalwa, Mantoo and others about 10 persons. He
stated that Farookh PW-4 and Tanweer PW-2 were assaulted
with lathi, pistol and knife. He was assaulted too and as
consequences he became unconscious and his hand was
fractured. According to him he was brought to the Police station
by the villagers and he stated that he was treated in K.M.C.H.
Patna High Court CR. APP (SJ) No.220 of 2013 dt.10-04-2025
He stated that the sight of the alleged occurrence was dark night
and his visibility was low. Further he has stated that he has
received injuries over whole of his body.
9. PW-4 Md. Farookh the informant stated in his
examination-in-chief that on the alleged date and time of
occurrence when he was in his parwal field the accused person
who was 15 to 16 in number including Ajay Yadav, Rahul
Yadav, Navin Yadav, Rambriksh Yadav, Mantoo Yadav, Ritesh
Yadav, Dilip Yadav and Ledan Yadav, came and asked him to
leave Diyara land and asked to pay Rs. 50,000/- as ransom. On
that he replied that he is a poor person so how he can pay that
much amount. Thereafter the accused persons started assaulting
him with lathi etc. and fractured his left hand. They wanted to
kill him. On hulla Kashim, Sabana and others came. Kashim,
Tanwari, Sabana and Safique were also assaulted. He had given
a written application of the occurrence in the Police Station. In
his evidence he stated that the Parwal field stands in the name of
his grand father who had died about 20 yrs. ago. He further
stated that on the alleged occurrence, it was a moon night.
According to him he had under gone for treatment at KMCH
and remained there for one month.
10. PW-5 Adhin Yadav is the I.O. of the case and
Patna High Court CR. APP (SJ) No.220 of 2013 dt.10-04-2025
has fully supported the prosecution case by saying that he had
verified the Place of occurrence.
11. PW-6 Md. Tasamuddin stated in his
examination-in-chief that on 29.04.2008 he was also in the
Parwal field. Farookh and Tanweer ware also in the Parwal field
and in the meantime Ajay Yadav, Rahul Yadav Navin Yadav,
Rambrikan Yadav, Mantoo Yadav, Dilip Yadav, Rakesh Yadav
and Nirdhan Yadav were demanding money. On that Farookh
told them that he was a poor fellow so from where he will give
money. On his reply the accused persons started assaulting him.
Ajay Yadav had a gun in his hand whereas rest of the accused
persons had lathies in their hands. According to this witness his
field is situated at a distance of 200 hands from the field of
Farookh. He has stated that the night of occurrence was a moon
night.
12. PW-7 Md. Sabana stated in his examination-
in-chief that on alleged date of occurrence at about 11 PM, he
was guarding his parwal field. He stated that he went to the
place of occurrence on alarm raised by Farookh and Tanweer
and saw Rakesh Ledan, Navin, Ajay, Mantoo, etc. assaulting
Farookh and Tanweer. He stated that they assaulted him also.
The villagers brought him to the Sadar hospital next day where
Patna High Court CR. APP (SJ) No.220 of 2013 dt.10-04-2025
he under gone treatment for 2 days. He was refered to KMCH
thereafter where he remained for 16 days.
13. After closure of the prosecution evidence, the
appellants were examined under Section 313 of the Cr.P.C
confronting them with incriminating circumstances which came
in the prosecution evidence, so as to afford them opportunity to
explain those circumstances. During this examination, they
admitted that they had heard the evidence of prosecution
witnesses against them. But they did not explain any
circumstance, though they claimed that the prosecution evidence
is false and they are innocent and have been falsely implicated.
14. The learned counsel appearing on behalf of
the appellant submitted that the impugned judgment of
conviction and order of sentence are not sustainable in the eye of
law or on facts. Learned trial Court has not applied its judicial
mind and erroneously passed the judgment of conviction and
order of sentence from the perusal of the evidences adduced on
behalf of the prosecution it is crystal clear from the statement of
PW-1 that the injuries caused by hard and blunt substance and
major portion of injuries were of simple in nature. It can be
stated that none of the injuries were on vital parts of the body
and the injuries were on arm, forearm, elbow ulna, shoulder, and
Patna High Court CR. APP (SJ) No.220 of 2013 dt.10-04-2025
hand and also no bone injury. PW-2 in her deposition stated that
the appellants assaulted him and other injured persons with
lathi. PW-3 in his deposition stated that that the sight of the
alleged occurrence was a dark night and his visibility was low
whereas PW-4 stated that night of the alleged occurrence was a
moon night which is in contradiction with the statement of PW
3. From the statement of PW 4 it is also evident that the lathi
had been used for alleged assault.
14.i. Learned counsel further contended that no
sophisticated weapon has been used in the alleged offence and
all the injuries caused to the victims were caused by hard and
blunt substance. The learned trial court has failed to appreciate
that the prosecution witnesses have improved their cases in trial
and their evidence is inconsistent and contradictory. PW-2
Tanweer who had suffered injuries at the hands of accused
person claimed to identify only Ajay Yadav by voice before
police and improved his evidence during the trial. PW-3 Md.
Quashim the injured witness had claimed to identify only Ajay
Yadav by voice and about rest of the accused persons he had
stated that he had not identified them.
14.ii. The Learned trial Court has failed to
appreciate the evidence it's right perspective and impugned
Patna High Court CR. APP (SJ) No.220 of 2013 dt.10-04-2025
judgment of conviction is bad in law as well as on fact and such
to set aside. Learned counsel further submitted that this appeal is
of the year 2013 and occurrence is of the year 2008, where, the
appellants have suffered and undergone persistent agony on the
account of the same and are struggling for the defence since last
16-17 years. So, the appellants should have been acquitted from
the conviction as sentenced against them or period undergone.
15. On the other hand, learned Additional Public
Prosecutor has vehemently opposed these appeals and submits
that there is direct allegation against the present appellant, for
committing an offence under Sections 143, 323, 325, 307 and
504 of IPC. Further it is submitted that in view of the aforesaid
statements and the evidence on record, learned trial Court has
rightly convicted the appellant and the present appeals should
not be entertained.
17. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the prosecution and
defence before the Trial Court.
18. The Hon'ble Apex Court in the case of State
of M. P. v. Saleem (2005) 5 SCC 554, where Hon'ble Apex court
has categorically held that whether there was intention to kill or
knowledge that death will be caused is a question of fact and
Patna High Court CR. APP (SJ) No.220 of 2013 dt.10-04-2025
would depend on the facts of a given case, Relevant portion of
the judgement reads as under:
"16. Whether there was intention to kill or
knowledge that death will be caused is a
question of fact and would depend on the
facts of a given case. The circumstances
that the injury inflicted by the accused was
simple or minor will not by itself rule out
application of Section 307 IPC. The
determinative question is the intention or
knowledge, as the case may be, and not the
nature of the injury...."
19. The Hon'ble Apex Court in the case of Jage
Ram v. State of Haryana reported in (2015) 11 SCC 366 the
paragraph No. 12 and 13 which are as under:
"12. For the purpose of conviction under
Section 307 IPC, the prosecution has to
establish i. the intention to commit murder;
and ii. the act done by the accused. The
burden is on the prosecution that the
accused had attempted to commit the
murder of the prosecution witness. Whether
the accused person intended to commit
murder of another person would depend
upon the facts and circumstances of each
case. To justify a conviction under Section
307 IPC, it is not essential that fatal injury
capable of causing death should have been
caused. Although the nature of injury
actually caused may be of assistance in
coming to a finding as to the intention of the
accused, such intention may also be
adduced from other circumstances. The
intention of the accused is to be gathered
Patna High Court CR. APP (SJ) No.220 of 2013 dt.10-04-2025
from the circumstances like the nature of
the weapon used, words used by the
accused at the time of the incident, motive
of the accused, parts of the body where the
injury was caused and the nature of injury
and severity of the blows given, etc.
13. In State of M.P. v. Kashiram [State of
M.P. v. Kashiram, (2009) 4 SCC 26: (2009)
2 SCC (Cri) 40: AIR 2009 SC 1642], the
scope of intention for attracting conviction
under Section 307 IPC was elaborated and
it was held as under: (SCC pp. 29-30, paras
12-13)
"12...13. It is sufficient to justify a
conviction under Section 307 if there is
present an intent coupled with some overt
act in execution thereof. It is not essential
that bodily injury capable of causing death
should have been inflicted. The section
makes a distinction between the act of the
accused and its result, if any. The court has
to see whether the act, irrespective of its
result, was done with the intention or
knowledge and under circumstances
mentioned in the section. Therefore, an
accused charged under Section 307 IPC
cannot be acquitted merely because the
injuries inflicted on the victim were in the
nature of a simple hurt."
20. On deeply studied and scrutinized all
evidences, it is evident to note that no sophisticated weapon has
been used in the alleged offence and all the injuries caused to the
victims were caused by hard and blunt substance. PW-3, 4, 6
and 7 have identified the accused/appellants in their deposition
Patna High Court CR. APP (SJ) No.220 of 2013 dt.10-04-2025
stating that the accused/appellants came and demanded ransom
of Rs. 50,000 and on denying the same accused/appellants gave
several blows of lathi to the informant and others which is
corroborated by the injury report examined by the medical
officer PW-1. Although the nature of injury caused may be of
assistance in coming to a finding as to the intention of the
accused, such intention may also be adduced from other
circumstances. The intention of the accused is to be gathered
from the circumstances like the nature of the weapon used,
words used by the accused at the time of the occurrence, motive
of the accused, parts of the body where the injury was caused
and the nature of injury and severity of the blows given, etc.
21. It is crystal clear from the statement of PW-1
that the injuries caused by hard and blunt substance and major
portion of injuries were of simple in nature. It can be stated that
none of the injuries were on vital parts of the body and the
injuries were on arm, forearm, elbow ulna, shoulder, and hand
and also no bone injury. PW-2 in her deposition stated that the
appellants assaulted him and other injured persons with lathi.
PW-4 stated that night of the alleged occurrence was a moon
night and it appears that at the time of occurrence there was
sufficient source of light. From the statement of PW 4 it is also
Patna High Court CR. APP (SJ) No.220 of 2013 dt.10-04-2025
evident that the lathi had been used for alleged assault
respectively have been levelled to cause injuries by means of
lathi and danda, so the offence under Section 307 of the IPC
against appellants is not proved and the charge frame against
appellants not in accordance with law. Hence, the judgment of
conviction dated 12.03.2013 and order of sentence dated
14.03.2013 passed in Sessions Trial No. 415 of 2010 in
connection with barai P.S. Case No. 48 of 2008 passed by
learned Additional Sessions Judge, Katihar, is hereby modified
to the extent that appellants are acquitted from the charge under
Section 307 of the IPC and the charges against appellants is
upheld and affirmed under Sections 143, 323, 325 and 504 of
the IPC.
22. The Hon'ble Apex Court, in the case of State
of U.P vs Tribhuwan, (2018) 1 SCC 90 has laid down that, time
spent in custody by a convicted persons, both as an under-trial
and as a convicted person, may be considered as jail sentence
awarded to him and he may get the advantage of set off under
Section 428 of Cr.P.C.
23. Hence, keeping in view all the material on
record and the observation of the Hon'ble Apex Court, it is
observed that the appellants have been in judicial custody for
Patna High Court CR. APP (SJ) No.220 of 2013 dt.10-04-2025
approx 5 months and the judgment of conviction dated
12.03.2013 and order of sentence dated 14.03.2013 passed in
Sessions Trial No. 415 of 2010 in connection with Barari P.S.
Case No. 48 of 2008 passed by learned Additional Sessions
Judge, Katihar, is hereby modified to the extent that the
appellants have got sufficient judicial custody. There is no
adverse report against the appellants about their conduct
otherwise the same would have been brought to our notice by
learned counsel for the State. and the sentence of the appellants
is reduced to period undergone and the appellant stands
discharged of the liabilities of his bail bonds, if any.
24. Accordingly, this appeal is partly allowed.
(Ramesh Chand Malviya, J)
Brajesh Kumar/-
AFR/NAFR AFR
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