Allowed

Md. Nasim Akhtar v. State of Bihar

Jharkhand HC26 Mar 2019Cr.A(DB)/197/1996

Case brief

AI extract

What is this about?

The Division Bench acquitted three appellants convicted under Sections 302, 393, and 397 IPC. The court found the prosecution evidence insufficient due to lack of eye-witness testimony, uncorroborated and unclear dying declaration, and absence of motive or material connecting appellants to the crime.

What did the court decide?

Impugned judgment of conviction and sentence set aside; appellants acquitted under Sections 302, 393, and 397 IPC and discharged from bail bonds.

Md. Nasim Akhtar Vs State of Bihar — Cheating and Forgery | Jharkhand HC (2019)

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Cr. Appeal (DB) No.192 of 1996(R) with

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Cr. Appeal (DB) No.193 of 1996(R)

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with Cr. Appeal (DB) No.197 of 1996(R)

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…..

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Against the judgment of conviction dated 03.09.1996 and order of sentence dated 07.09.1996, passed by learned VIth Additional Judicial Commissioner, Ranchi, in Sessions Trial No. 453 of 1989/T.R. 36 of 1996.

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Md. Shandar @ Guddu, son of Md. Habib, resident of Central Street, Hindpiri, P.S.- Kotwali, District- Ranchi. ….. Appellant

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[in Cr. Appeal (DB) No. 192 of 1996(R)]

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Anil Malakar, son of Shri Ram Baran Malakar, resident of Hindpiri, P.S.Kotwali (Hindpiri), District- Ranchi …...... Appellant

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[in Cr. Appeal (DB) No. 193 of 1996(R)]

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Md. Nasim Akhtar, son of Md. Manzoor, resident of Nalla Road Hindpiri, P.S.- Kotwali Hindpiri, District – Ranchi …...... Appellant

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[in Cr. Appeal (DB) No. 197 of 1996(R)]

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Versus

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The State of Bihar (now Jharkhand) ….. Respondent

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Present

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Hon’ble Mr. Justice Aparesh Kumar Singh Hon’ble Mr. Justice Kailash Prasad Deo

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For the Appellants : Mr. Hemant Kr. Shikarwar, Advocate.

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: Mrs. Shalini Kumari, Advocate. [in Cr. Appeal (DB) No. 192 of 1996(R)] : Mr. Dharmendra Kr. Malityar, Advocate. [in Cr. Appeal (DB) No. 193 of 1996(R)] : Mr. Naveen Kr. Jaiswal, Advocate. [in Cr. Appeal (DB) No. 197 of 1996(R)] For the State : Mr. Shekhar Sinha, A.P.P.

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Per Kailash Prasad Deo, J.:- Heard, learned counsels for the appellants, Mr. Hemant

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Kumar Shikarwar assisted by Mrs. Shalini Kumari, Advocate [in Cr. Appeal (DB) No. 192 of 1996(R)], Mr. Dharmendra Kumar Malityar, Advocate [in Cr. Appeal (DB) No. 193 of 1996(R)] and Mr. Naveen Kr. Jaiswal, Advocate [in Cr. Appeal (DB) No. 197 of 1996(R)] and learned counsel for the State, Mr. Shekhar Sinha, learned Additional Public Prosecutor.

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2. The present three criminal appeals are arising out of common judgment of conviction dated 03.09.1996 and order of sentence dated 07.09.1996, passed by learned VIth Additional Judicial Commissioner, Ranchi, in Sessions Trial No. 453 of 1989/T.R. 36 of 1996, whereby all these three appellants have been convicted for the offence committed and punishable under Section 393 read with section 397 and 302/34 of the Indian Penal Code. By the same impugned judgment Ram Bilas Malakar, who was also charged with these appellants have been acquitted by the learned trial Court by giving benefit of doubt. The learned trial Court has sentenced these three convicts to undergo imprisonment for life under Section 302/34 of the Indian Penal Code and further sentenced to undergo rigorous imprisonment for seven years each for offence committed and punishable under Section 393 read with section 397 of the Indian Penal Code. However, all the sentences are directed to run concurrently.

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3. The prosecution case, is based upon fardbeyan of the informant, Gopal Narayan Mathur (P.W.4) recorded by A.S.I., Suresh Singh of Gonda Town out post Bariyatu on 11.12.1988 at 22.30 hours at C.C.L. Hospital, Gandhi Nagar, whereby the informant has alleged that in the evening, the informant along with his wife and children were watching television in his house along with the tenant, residing in the upper floor, Mrs. Krishnan and her son, Ravi Krishnan. At 7.40 P.M., because of electrical load shedding, Ravi Krishnan, went to his house to study as television was not working. After five minutes informant heard the brawl raised by Ravi Krishnan as ' bachao ' ' bachao '. Thereafter all the persons climbed over the stairs. In the midway at the door of Mazumdar Saheb, informant saw Ravi Krishnan coming crumbling in pain and blood was oozing from his chest, who subsequently fell down. On being asked as to who has assaulted him, Ravi Krishnan has disclosed that three to four days ago, three persons, who had come to the house of accused Ram Bilas Malakar, residing in front of their house had committed the occurrence

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on the upper floor of the house. He has further stated that when he had seen those three persons in the house of accused Ram Bilas Malakar in suspicious condition three to four days ago, he had enquired their names from accused Ram Bilas Malakar and accused Ram Bilas Malakar had disclosed their names as Md. Shandar @ Guddu (appellant in Cr. Appeal (DB) No. 192 of 1996), Anil Malakar (appellant in Cr. Appeal (DB) No. 193 of 1996) and Md. Nasim Akhtar (appellant in Cr. Appeal (DB) No. 197 of 1996). Injured Ravi Krishnan has further disclosed that Anil Malakar was armed with a pistol, whereas Naseem and Guddu were armed with chhura. He has also disclosed that Anil and Guddu caught hold of him and asked him to take them to the lower floor but on his refusal, Naseem stabbed him and Ravi Krishnan ran down raising alarm. Thereafter, injured was taken to C.C.L. Hospital, Gandhi Nagar where he is under treatment. The informant could not disclose that what was the enmity prevailing there with the criminals who have assaulted Ravi Krishnan.

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4. On the basis of the 'fardbeyan' of informant, the Police has registered First Information Report bearing Bariyatu P. S. Case No. 86 of 1988 dated 12.12.1988 under Sections 458/307/326/34 of the Indian Penal Code against four named accused persons namely, Md. Shandar @ Guddu, Anil Malakar, Ram Bilas Malakar and Md. Naseem Akhatar. In course of treatment injured Ravi Krishnan succumbed to his injuries at C.C.L. hospital, as such, case was converted under Sections 302, 393,397 and 120(B) of the Indian Penal Code.

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5. On completion of investigation, Police has submitted charge sheet vide No. 11 of 1989 dated 24.02.1989 under Sections 393,397,302/120(B) of the Indian Penal Code against four named accused persons namely, Md. Shandar @ Guddu, Anil Malakar, Ram Bilas Malakar and Md. Naseem Akhatar.

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6. The cognizance of offence has been taken vide order dated 09.03.1989 and the case has been committed to the court of sessions vide order dated 26.07.1989.

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7. The learned trial Court has framed charge against four named accused persons sent up for trial under Sections 393,397,302/34 of the Indian Penal Code on 20.12.1993. The charge has been read over and explained to the accused persons, to which they have pleaded not guilty and claimed to be tried.

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8. The prosecution, in order to prove its case, has examined altogether eleven prosecution witnesses and also exhibited a number of documents up to exhibit-9 series.

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Ravindra Nath Choudhary, inquest witness has been examined as P.W.1 and has proved signature of A.S.I. Suresh Singh on inquest report, which has been marked as exhibit-1 and inquest report has been proved and marked as exhibit-2. Atanu Choudhary has been examined as P.W.2 and has proved his signatures on the seizure lists, which have been marked as exhibits-1/1 and 1/2. Virendra Kumar Sharma has been examined as P.W.3 and has proved his signature on the seizure list, which has been marked as exhibit-1/3. Gopal Narayan Mathur, informant of the case, has been examined as P.W.4 and he has proved his signature on the fardbeyan, which has been marked as exhibit -1/4 and his signature on the seizure list has been proved and marked as exhibit-1/5. Deo Narayan Oraon has been examined as P.W.5 and has been declared hostile by the prosecution. Dr. Niranjan Minj has been examined as P.W.6, who has conducted the postmortem examination on the deadbody of deceased K. Suba Subramanium, son of P. Krishnan and the postmortem report has been proved and marked as exhibit-3. Dr. R. Singh, Medical Officer has been examined as P.W.7, who has examined the victim Mr. Ravi Krishnan on 11.12.1988 and proved the letter written by him to Bariyatu Police Station which has been marked as exhibit-4 and letter written by A.S.I. of Bariyatu Police Station to Medical Officer has been proved and marked as Exhibit- 4/1. On the same day, his successor. Dr. S. Sharkar reported to Bariyatu Police Station about death of injured Ravi Krishanan. The letter in pen and signature of Dr. S. Sharkar

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has been proved and marked as exhibit-4/2. Injury report has been proved and marked as Exhibit- 5. Suresh Prasad Srivastava, Officer-In-Charge has been examined as P.W.8, who has proved the F.I.R. in the handwriting and signature of A.S.I. Kameshwar Prasad Rai which has been marked as exhibit-6. The fardbeyan bearing signature of A.S.I., Suresh Singh has been proved and marked as exhibit-7, the seizure list bearing signature of Atanu Choudhary and Virendra Kr. Sharma regarding seizure of black cloth has been proved and marked as exhibit-8, the second seizure list of blood collected from the floor and third seizure list of Chaku (knife) have been proved and marked as exhibits-8/1 and 8/2 respectively. Fourth seizure list of spectacles in his handwriting and signature has been proved and marked as exhibit-8/3, challan for postmortem of the dead body has been proved and marked as exhibit-9. Mrs. B. Radha has been examined as P.W.9. Binay Kumar Singh has been examined as P.W.10 and M. R. Chourasia has been examined as P.W.11.

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9. After closure of prosecution evidence, statement of accused/appellants have been recorded under Section 313 Cr.P.C. on 27.01.1995, where they have denied about their involvement in the occurrence but accused persons have not examined any defence witness or adduced any document in support of their innocence.

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10. After hearing learned counsel for the parties and on the basis of materials available on record, learned trial Court vide impugned judgment of conviction and order of sentence has convicted three accused persons under Sections 393, 397,302/34 of the Indian Penal Code and has acquitted Ram Bilas Malakar from the charge framed against him. Neither the state nor the informant has preferred any acquittal appeal against the said judgment of acquittal of Ram Bilas Malakar.

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Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence, all three appellants have separately preferred three criminal appeals, which are being heard together as they are arising out of common

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judgment of conviction and order of sentence.

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11. Heard, learned counsels for the appellants, Mr. Hemant Kumar Shikarwar assisted by Mrs. Shalini Kumari [in Cr. Appeal (DB) No. 192 of 1996 (R)], Mr. Dharmendra Kumar Malityar, Advocate [in Cr. Appeal (DB) No. 193 of 1996 (R)] and Mr. Naveen Kumar Jaiswal, Advocate [in Cr. Appeal (DB) No. 197 of 1996 (R)]. Learned counsels for the appellants have submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsels for the appellants have submitted, that there is no eye-witness to the occurrence. Admittedly, Gopal Narayan Mathur (P.W. 4) is not an eye-witness to the occurrence, rather as per his fardbeyan, law has been put into motion. Learned counsels for the appellants have further submitted, that informant Gopal Narayan Mathur (P.W. 4) has disclosed that victim while coming to the first floor has disclosed before the informant that he was assaulted by three strangers who had come 3-4 days ago in the house of Ram Bilas Malakar, whose house is situated in front of the house of injured and when injured asked the name of those persons, they disclosed their names as Guddu, Anil and Sunil. Learned counsels for the appellants have submitted, that informant Gopal Narayan Mathur while examining in the court as P.W. 4 has admitted in paragraph- 7 of his crossexamination that the victim has not taken the names of accused persons in clear voice. Learned counsels for the appellants have further submitted that on the basis of such evidence, appellants have been made accused in the present case and the prosecution has not proved the presence of these appellants as perpetrators of the crime while they were facing the trial nor prosecution witnesses have claimed to identify the accused facing trial in the Court as perpetrators of crime. Learned counsels for the appellants have further submitted that since none of the prosecution witnesses has seen the occurrence, as such, identification of the accused persons is highly doubtful. Learned counsels for the appellants have further submitted that co-

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accused Ram Bilas Malakar has been acquitted by the learned trial court but no acquittal appeal against the said judgment of acquittal has been preferred by the State or the informant, as such, conviction of these appellants on such flimsy evidence is also not sustainable in the eyes of law. Learned counsels for the appellants have further submitted that learned trial court has committed a grave error in law while considering the statement of the victim disclosed to the informant as oral dying declaration. Learned counsels for the appellants have further submitted that in absence of any material to connect the appellants with the present case, the appellants cannot be convicted under Sections 393, 397 and 302/34 of the Indian Penal Code. The identification of the appellants is also doubtful and even the name of the accused has not been properly and correctly mentioned in the First Informant Report. The victim has disclosed the names as Anil, Guddu and Sunil whereas the present appellants are Md. Shandar @ Guddu, Anil Malakar and Md. Nasim Akhtar. On the basis of such submissions, learned counsels for the appellants have submitted that the impugned judgment of conviction and order of sentence cannot sustain in the eyes of law, as such, the appellants may be acquitted by extending benefit of doubt, as the prosecution has failed to prove the charge against these appellants beyond all shadow of reasonable doubts.

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12. Heard, learned counsel for the State, Mr. Shekhar Sinha, Additional Public Prosecutor in present criminal appeals. Learned counsel for the State has submitted that impugned judgment of conviction and order of sentence has been passed by learned trial court on the basis of materials available on record. Learned counsel for the State has submitted that on the basis of disclosure made by victim Ravi Krishnan, informant has taken the name of accused persons who are named in F.I.R. and after collecting material during investigation they have been sent up for trial by the police. Learned counsel for the State has submitted that informant has supported the case of prosecution as made out in fardbeyan while being examined

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as P.W. 4, as such, learned trial court has rightly convicted the appellants against whom there is sufficient material and acquitted co-accused Ram Bilas Malakar from the charge, as there was no sufficient evidence against him. Learned counsel for the State has thus submitted that impugned judgment of conviction and order of sentence does not warrant any interference by this Hon'ble Court, as such, this Court may not disturb the findings recorded by learned trial court.

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13. Heard, learned counsels for the appellants, Mr. Hemant Kumar Shikarwar assisted by Mrs. Shalini Kumari, Advocate [in Cr. Appeal (DB) No. 192 of 1996 (R)], Mr. Dharmendra Kumar Malityar, Advocate [in Cr. Appeal (DB) No. 193 of 1996 (R)] and Mr. Naveen Kumar Jaiswal, Advocate [in Cr. Appeal (DB) No. 197 of 1996 (R)] and learned counsel for the State, Mr. Shekhar Sinha, Additional Public Prosecutor in the present criminal appeals and perused the materials brought on record including the First Information Report, framing of charge, evidence of eleven prosecution witnesses, nine prosecution exhibits, statement of the appellants recorded under Section 313 Cr.P.C., as well as the impugned judgment of conviction and order of sentence. From materials brought on record, it appears that informant Gopal Narayan Mathur (P.W.4) is not an eye-witness to the occurrence. As per the fardbeyan, he was in his house when he heard brawl raised by the victim and went towards the upstair. While victim was coming down, in the midway at first floor, he met with the victim. The victim was not in a position to disclose the name of the accused persons and in a trembling voice, victim has disclosed the name of Anil, Guddu and Sunil, on the basis of which, fardbeyan has been recorded. The informant is not the person who can identify the appellants, as the appellants were strangers to the locality. The informant has not seen the accused while fleeing away after occurrence nor identified them in the court during trial as perpetrator of crime. As per the victim, these appellants were strangers to the locality and have came to the house of Ram Bilas Malakar 3-4 days ago. The informant has categorically

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admitted in his fardbeyan as well as in his deposition that he has no knowledge that why the accused persons have committed such crime with the victim. Ram Bilas Malakar has been made accused by the police during investigation but because of lack of evidence, he has been acquitted by learned trial court. No appeal against acquittal of Ram Bilas Malakar has been preferred by the State or by informant. From the evidence brought on record, this Court is not satisfied that informant Gopal Narayan Mathur (P.W.4) has identified the accused/appellants as perpetrators of the crime or seen the accused fleeing away from place of occurrence. The accused persons were not known to the informant and the accused persons have not been shown or identified by the witnesses in the dock so as to identify them as perpetrators of the crime. This Court has also taken note of paragraph- 7 of the evidence of informant Gopal Narayan Mathur (P.W.4) who has stated that while the injured Ravi Krishnan was disclosing the name of accused persons as Anil, Guddu and Sunil, his voice was not clear. From perusal of the materials brought on record, there is no accused named as Sunil.

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14. Under such background, this Court is of the opinion that the disclosure made by injured was not clear to the informant, as such, discrepancies have cropped up in the prosecution case. This witness has categorically stated that voice of the injured was feeble and not clear, as such, F.I.R. has been lodged by a hearsay witness without having any authentic information of the case. This Court has also examined the evidence of informant (P.W. 4) and has taken note of the fact that there was nothing on record to suggest that the victim was in fit mental condition so as to disclose the occurrence and name of the accused persons rightly to the informant and soon after the occurrence. Victim became unconscious and he was taken to the hospital where he succumbed to the injuries. As such, this Court has reason to doubt about the complicity of the appellants in the alleged offence in absence of any cogent legal material. This Court has further examined the evidence

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of Investigating Officer P.W. 8 Suresh Prasad Srivastava, who has proved the F.I.R. in the hand-writing of A.S.I. Kameshwar Prasad Rai which has been marked Exhibit- 6 and fardbeyan bearing signature of informant has been proved and marked as Exhibit- 7. From perusal of the evidence, it appears that police officer has seized the black cloth which has been used to conceal the face of the accused, and seizure list of the same has been marked as Exhibit-8. the second seizure list of blood collected from the floor and third seizure list of Chaku (knife) have been proved and marked as exhibits-8/1 and 8/2 respectively. Fourth seizure list with regard to the spectacles has been proved and marked as Exhibit- 8/3. From perusal of the prosecution materials, there is no relevancy of these seized materials. None of the prosecution witnesses have said that victim was wearing spectacles at the time of alleged occurrence nor any of the prosecution witnesses have come forward to say that victim has disclosed that accused persons came by concealing their faces by black cloth. This Court is of the view that Exhibit- 8 series has no relevancy and no connection with the present case. This Court has further taken note of the fact that deceased died and post-mortem report has been brought on record as Exhibit- 3 proved by P.W.6 and the injury report bearing signature of the doctor (P.W.7) has been marked as Exhibit- 5 proved by P.W. 7. The murder of Ravi Krishnan has been committed but there is no evidence on record to suggest that these appellants are the perpetrators of the crime and they have assaulted the deceased by means of knife. The seizure of knife has been made but blood clot recovered from the cloth and knife seized by the police have not been sent for serological test before the Forensic Science Laboratory to connect the knife and blood group of the deceased with the alleged offence.

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Under the aforesaid circumstances, due to lack of any cogent material coupled with the fact that oral dying declaration of the victim remains uncorroborated and does not conspire the confidence of this Court in view of

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paragraph- 7 of P.W. 4. Gopal Narayan Mathur, informant, this Court feels proper to interfere in the impugned judgment of conviction and order of sentence more so as the prosecution has not been able to prove motive against the accused/appellants. The prosecution has also not proved the case against accused/appellants that they are resident of the house of Ram Bilas Malakar soon before the occurrence. Ram Bilas Malakar has already been acquitted by learned trial court and these three appellants are strangers to the locality and have no motive.

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15. In view of the discussions as made above, this Court is of the view that impugned judgment of conviction and order of sentence is fit to be set aside as the prosecution has failed to prove the guilt against the appellants against all shadow of reasonable doubts.

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16. In the result, impugned judgment of conviction dated 03.09.1996 and order of sentence dated 07.09.1996, passed by learned VIth Additional Judicial Commissioner, Ranchi, in Sessions Trial No. 453 of 1989/T.R. 36 of 1996 arising out of Bariyatu P. S. Case No. 86 of 1988 corresponding to G. R. Case No. 4095 of 1988, is hereby set aside and the appellants of present three criminal appeals are acquitted from the charge and conviction under Sections 393, 397 and 302/34 of the Indian Penal Code by extending benefit of doubt.

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17. Accordingly, the criminal appeals are allowed.

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18. The appellants who are on bail are discharged from the liability of their bail bonds.

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19. Let the lower court record be sent along with a copy of this judgment to the court concerned, at once for necessary action.

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(Aparesh Kumar Singh, J.)

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(Kailash Prasad Deo, J.)

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Jharkhand High Court, Ranchi Dated the 26^th March, 2019 Pallavi/Jay/-

Md. Nasim Akhtar v. State of Bihar

Case brief

What is this about?

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Md. Nasim Akhtar v. State of Bihar

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