Dismissed

Hasibul and Anr. v. The State Of Bihar

Patna HC17 Jul 2013CR. APP (DB)/475/1989

Case brief

AI extract

What is this about?

A criminal appeal by two convicts against life imprisonment for murder under Section 302 IPC. The High Court upheld the conviction, finding the prosecution had proven the case beyond reasonable doubt through established circumstantial evidence despite lack of direct eyewitnesses.

What did the court decide?

Appeal dismissed; conviction and sentence upheld; bail bonds cancelled; appellants directed to surrender to serve sentence.

Hasibul and Anr. Vs The State Of Bihar — Murder and Culpable Homicide | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (DB) No.475 of 1989

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( Against the judgment of conviction and order of sentence dated 2.09.1989 passed by Sri Ram Kishore Singh, learned Sessions Judge, Katihar in Sessions Trial No.213/1988 )

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=========================================================== 1. Hasibul, son of Abdul Rahim. 2. Saiful, son of late Abbas Ali. (Both residents of village-Kaswa Toli, P.S.-Barsoi, District- Katihar) .... .... Appellant/s Versus The State of Bihar

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.... .... Respondent/s

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=========================================================== Appearance :

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For the Appellant/s : Mr. Rajeeva Roy, Advocate : Mr. Rajendra Prasad, Advocate

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For the Respondent/s : Mr. Ajay Mishra, Addl.P.P.

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=========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA And

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HONOURABLE MR. JUSTICE AMARESH KUMAR LAL CAV JUDGMENT

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(Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL)

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17-07-2013 This appeal has been preferred against the judgment of conviction and order of sentence dated 2.09.1989 passed by the learned Sessions Judge, Katihar in Sessions Trial No.213/1988 by which both the appellants have been convicted and sentenced to undergo rigorous imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code.

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The prosecution case, in brief, is that in the night of 2/3.02.1988 Fulojan (deceased), the daughter of the informant Kamiruddin (P.W.6) was sleeping with her mother inside her father’s house. In the early morning, when Kamruddin (P.W.6) woke up for

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Patna High Court CR. APP (DB) No.475 of 1989 dt.17-07-2013

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NAMAJ and asked water from his wife Vasodhan (P.W.8), it was reported to him that Fulojan (deceased) was not present in the house. Thereafter, attempts were made to find out Fulojan but to no avail. Later on, in the same morning i.e. 3.02.1988, the informant (P.W.6) came to know that the dead body of Fulojan was hanging with the bamboo clump of Panchu. The informant went there and saw the dead body of his daughter. Thereafter, he gave written report to that effect to the Barsoi Police Station. On the basis of aforesaid written report, Barsoi P.S. Case No.12/1988 was instituted under Section 302 of the I.P.C. and after investigation; the police submitted charge-sheet. Thereafter, Cognizance was taken. The case was committed to the court of sessions where the charges were framed against both the appellants for the offence punishable under Sections 376 and 302 of the I.P.C. to which they denied and claimed to be tried. The defence of the accused/appellants is plain denial of the charges and plea of innocence. After the trial, it was held that the prosecution has not been able to prove the charge under Section 376 of the I.P.C., as such, both of them were acquitted for the offence punishable under Section 376 of the I.P.C. and it was further held that the prosecution has been able to prove the charge under Section 302 of the I.P.C. beyond reasonable doubt and as such, they have been convicted and sentenced to undergo rigorous imprisonment for life under Section 302 of the I.P.C. only.

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Patna High Court CR. APP (DB) No.475 of 1989 dt.17-07-2013

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The prosecution has examined the following witnesses to prove its charge: P.W.1, Ibrahim, P.W.2 Topo @ Sahjda Khatoon, P.W.3 Mobiluddin, P.W.4 Nur Mohammad, P.W.5 Samiruddin, P.W.6 Kamiruddin, P.W.7 Braj Kishore Prasad Sinha, P.W.8 Vasodhan and P.W.9 Rajendra Paswan.

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P.W.1 has not supported the prosecution case. He has been declared hostile. He has denied the suggestion of the prosecution that after taking meal, he was near the fire and saw Hasibul (appellant) going in the village and Fulojan (deceased) was following him and in the morning, he heard that Fulojan was lying dead in the bamboo clump. In his cross-examination, he has stated that Topojan, the sister of the deceased was married in village Gondhara at a distance of one and half Kosh. Some times, Fulojan used to visit cinema at Raiganj for which one has to board in the train at Kachna railway station. Fulojan was earlier married at Gwartoli (Barsoi). Her husband had divorced Fulojan.

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P.W.2 is the younger sister of Fulojan, who was a divorcee and was living in her father’s house. She used to maintain her by rearing cock and hens. She has further stated that Fulojan used to come to her husband’s house sometimes with Hasibul (appellant). 10-12 days prior to the occurrence, Fulojan (deceased) came to her house and asked her husband as to whether he would sell her goats,

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Patna High Court CR. APP (DB) No.475 of 1989 dt.17-07-2013

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cock and hens. Her husband agreed to it. P.W.2 asked Fulojan as to what would she do with the sale proceeds. Fulojan told her that she developed abscess in her abdomen. Thereafter, she returned to her house. On the next Tuesday, Fulojan came to her house and told her that her father sold them and she would go to Raiganj for her treatment. P.W.2 touched her abdomen and told her that a baby was in her abdomen and on query Fulojan told her that it was of Hasibul. Thereafter, Fulojan returned. P.W.2 thought that she would inform her father in the morning, but in the morning, she came to know that Fulojan died. In her cross-examination, she has stated that the husband of Fulojan divorced her after one year of the marriage. Thereafter, Fulojan was living with her parents and was rearing goats, cocks and hens. She has further stated that Fulojan was not entangled with her husband nor there was any Panchayati for it. Fulojan was not of bad character.

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P.W.3 is the husband of P.W.2. He has stated that he knows Hasibul. Sometimes, he used to come to his house with Fulojan. He asked Hasibul (appellant) not to come to his house with Fulojan. In spite of that Hasibul used to come with Fulojan but Hasibul remained outside of his house. Fulojan once has asked her to sell her goats, cocks and hens and he told him that he would sell them in the next market. He has identified Hasibul in the court. In his cross-

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Patna High Court CR. APP (DB) No.475 of 1989 dt.17-07-2013

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examination, he has stated that he had asked Hasibul not to come to his house with Fulojan. He has stated that he did not know that husband of Fulojan has divorced her due to her bad character.

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P.W.4 is the uncle of Fulojan. He has stated that in the night of Tuesday, the occurrence took place. In the night, he saw that Hasibul was going ahead followed by Saiful and thereafter Fulojan towards southern side. It was the moonlit night and he was near them. In the morning, he heard that Fulojan was killed and her dead body was hanging in the bamboo clump of Panchu with her saree and many co-villagers had assembled there. He has further stated that Fulojan and Hasibul had intimacy for the last 4-5 months. He has identified both the appellants in the court. In his crossexamination, he has admitted that Fulojan is his niece. There are 2-4 houses between his house and the house of Fulojan in Kasba Toli. The land of his brother Kamruddin is in front of the house of Hasibul. He has denied that there was dispute between both of them for any destruction of any crops. He has further stated that both the appellants and Fulojan were going through the lane in front of him at a distance of 10 cubits while he was alone and they went away. He did not ask them anything. He did not tell the informant or his wife due to land dispute and he is not on talking terms with them.

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P.W.5 is also uncle of Fulojan. He has stated that in

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Patna High Court CR. APP (DB) No.475 of 1989 dt.17-07-2013

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the night of Tuesday, he saw Fulojan was going followed by both the appellants. It was the moonlit night. Both the appellants are fast friends. All the three went towards the western side. He slept. In the morning, he heard that Fulojan was murdered and her dead body was tying in the bamboo clump of Panchu. Her mouth was muddy and blood was oozing out from her nose. He has identified both the appellants. In his cross-examination, he has stated that Fulojan was her niece. The defence has not been able to demolish his evidence.

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P.W.6 is the informant of this case. He has stated that it was Tuesday night and in the morning it was Wednesday, he was sleeping in his house. His wife and children were also sleeping in his house. In the early morning, he woke up for NAMAJ and asked for water from his wife (P.W.8). His wife (P.W.8) informed that Fulojan (deceased) was disappearing from her house. After NAMAJ, he searched her but he could not find her. After some time, he heard that a girl was lying dead in the bamboo clump of Panchu. He went there with the co-villagers and saw that it was the dead body of his daughter Fulojan who was tagged with clothes in the bamboo. Thereafter, he went to the police station and gave a written report. He has further stated that he has also a daughter Sajda Khatoon @ Topo (P.W.2) who is married in village Gangra with P.W.3. Fulojan was married to Maksood who divorced her and therefore, she was living in

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Patna High Court CR. APP (DB) No.475 of 1989 dt.17-07-2013

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his (P.W.6) house and was leading her life by rearing goats, cocks and hens. Before the murder, she was telling him that she had pain in her abdomen as there was abscess in it and she would go to Raiganj for her treatment and asked him to give her money by selling her goats and hens. At her instance, he sold them in Hat for Rs.400/- and on the same Tuesday gave the money to his wife from whom Fulojan took money. He has further stated that Fulojan also used to go to her sister (P.W.2). He has further stated that on the evening of fateful Tuesday at 3.30 P.M., Hasibul came to her house, but after seeing him, he returned. After the occurrence, P.W.2 came to his house and told him that Fulojan told her that she had pain in her abdomen and also about the selling of goat, cock and hen and when P.W.2 told her about her pregnancy, Fulojan told her it was the baby of Hasibul. He has identified both the appellants in the court. In his cross-examination, he has stated that he has stated before the Investigating Officer that in the evening of fateful Tuesday, Hasibul came to his house at 6.30 P.M. He has further stated that 4-5 years prior to the occurrence, Fulojan was married with Maksood and after 2-3 years, her husband divorced her. It was denied that she was divorced due to her bad character. After divorce, Fulojan came to his house and remained at his house. He tried to get Fulojan married but could not. After some time, she used to go to the house of P.W.2 and some time, she used to stay

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Patna High Court CR. APP (DB) No.475 of 1989 dt.17-07-2013

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there. He has been cross-examined at length, but the defence has failed to demolish his evidence.

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P.W.7 is the Medical Officer, Sub-divisional Hospital, Kishanganj. He held the post-mortem examination on the dead body of Fulojan aged about 22 years on 4.02.1988 at 11.00 A.M. and found the following ante-mortem injuries :

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(i) Multiple abrasions of different sizes were present on the right side neck with swelling.

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(ii) Abrasion 1” x 1” just below the mandible on the left side.

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(iii) Crescent multiple abrasions of different sizes above the thyroid.

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(iv) Multiple abrasions of different sizes on the left side of the front of the neck.

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(v) Swelling with abrasion ½” x ½” at the right mid thigh.

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On dissection- Laceration of fascia, muscle, blood

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vessel with blood and blood clot were found at the neck on the both sides. Trachea and larynx were found congested with bloody froth and hyoid bone was broken.

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Organ of generation- Evidence of habitual intercourse, grabid uterus of 24 week size, complete formation of placenta with amniotic sac with well developed female foetus were found in the amniotic sac. All the injuries were ante-mortem in nature

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Patna High Court CR. APP (DB) No.475 of 1989 dt.17-07-2013

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The cause of death was due to asphyxia as a result of strangulation. Time elapsed since death was within 36 hours.

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The post-mortem examination report has been marked

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as Ext.2.

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In his cross-examination, he as stated that the injuries on the neck were likely to have been caused by fingers and hand. He had not found any sign of recent intercourse. The time of death is concluded from the rigor mortis and information of police.

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P.W.8 is the mother of Fulojan. She has stated that all the members of the house including Fulojan were sleeping after taking meal in the night. In the morning, she did not find Fulojan and she informed her husband (P.W.6) who searched her hither and thither. After some time, there was Hulla that the dead body of Fulojan was hanging in the bamboo clump of Panchu. She went there and found her tying with Saree in the bamboo. One day prior to the occurrence, Fulojan told her that she had pain in her abdomen and she would go to Raiganj for treatment and received Rs.400/- of the sale proceeds of her goats, cocks and hens for her treatment. In the same night, the occurrence took place. She has identified both the appellants in the court. She has further stated that appellant Hasibul used to come to her house. Hasibul had intimacy with Fulojan. Her daughter (P.W.2) was married in village Gandhara and Fulojan used

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Patna High Court CR. APP (DB) No.475 of 1989 dt.17-07-2013

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to go there. In her cross-examination, she has stated that Fulojan was married earlier but had no issue. Her younger daughter (P.W.2) was also divorced and it was her second marriage. In the fateful night, Fulojan was sleeping on her cot. Her husband was sleeping on the Varandah. In the morning, she woke up and saw Fulojan was not present. At that time, she expected that he might have gone for natural call but when she did not return, she told about her to her husband. Her husband searched her but could not find. Later on, early in the morning, there was rumour that Fulojan was lying dead in the bamboo clump. She has stated that between the house of Hasibul and her house, there are seven houses. Hasibul had no dispute with her. She has also stated that she did not know as to whether Fulojan was pregnant or not. She has denied the suggestion that Fulojan had continued her relationship with her previous husband. It appears that the defence has failed to demolish her evidence.

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P.W.9 is the Investigating Officer, who has proved the formal FIR (Ext.3). He has stated that during investigation, he went to the place of occurrence and found the dead body tagging in the bamboo clump. Her both the legs were touching soil. He found bloodstain in the adjacent field. He prepared the inquest report (Ext.4) and took the statement of the witnesses and sent the dead body for post-mortem. After receiving post-mortem examination report and

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Patna High Court CR. APP (DB) No.475 of 1989 dt.17-07-2013

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completing investigation, he submitted the charge-sheet. In his crossexamination, he has stated that he has not prepared any sketch map of the place of occurrence and did not find any tempering mark in the nearby field. He has not mentioned about the nature of cloth of the deceased. He did not prepare the seizure list of rope or saree. He did not mention any sign of rape.

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D.W.1 Nasiruddin has been examined on behalf of the appellants. He has stated that he is the Sarpanch of village Baragaw. He knows Abdul Rahim of Kashba Toli under the Gram Panchayat. He had given a Sanha to the writing of Gauhar Ali which has been marked as Ext. A, which was endorsed by him. The endorsement is Ext.B. Thereafter, it was registered in the register of Gram Panchayat. In his cross-examination, he has stated that he has not brought the Sanha register of the Gram Panchayat.

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The learned counsel for the appellants has submitted that there is no eye witness to the occurrence and the case is based on circumstantial evidence specially on the evidence of last seen with the deceased. He has further submitted that all the material witnesses i.e. P.Ws. 2, 3, 4, 5, 6 and 8 are closed relatives and were not having good relationship with the appellants. P.W.6 (informant) has clearly stated that the deceased was killed by some unknown persons. He has also submitted that Abdul Matlab mentioned in the

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Patna High Court CR. APP (DB) No.475 of 1989 dt.17-07-2013

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charge-sheet, has not been examined in this case. No place of occurrence or time of occurrence has been determined either by the informant or by the Investigating Agency.

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Learned counsel for the State has submitted that the occurrence has taken place in the night though occurrence has not been seen by any witness but some witnesses have seen the appellants going with the deceased. The members of the family of the deceased have not seen the deceased going with the appellants but the P.Ws. 4 and 5 have seen both the appellants going with the deceased in the night. Both of them are the uncle of the deceased but they have some land dispute with the father of the deceased and not on talking terms, as such, they did not disclose the matter to the parents of the deceased where she was living after her divorce. The evidence of P.W.2 and P.W.3 shows that the appellant no.1 Hasibul had developed illicit relation with the deceased Fulojan. P.W.2 is the sister of the deceased, who told her that she had pain in her abdomen and after touching the abdomen of the deceased, P.W.2 has pointed out that she had pregnancy and on her query, the deceased had disclosed that it was due to relation made by Hasibul (appellant no.1). P.W.3 has also stated that sometimes Hasibul used to come to his house with the deceased and he objected, even thereafter, Hasibul used to come with the deceased but was remaining outside the house of P.Ws. 2 and 3.

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Patna High Court CR. APP (DB) No.475 of 1989 dt.17-07-2013

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He has further submitted that it appears that P.W.6, the father of the deceased, was not aware regarding the pregnancy, as such, it was not mentioned in the fardbeyan nor any suspicion was raised against the appellant no.1 Hasibul. P.W.8 was not aware of this fact. He has further submitted that the evidence of these witnesses is quite natural and convincing, as such their evidence cannot be discarded as they are interested witnesses or relative witnesses. He has further submitted that the evidence of the doctor P.W.7 also supports the prosecution case. He has further submitted that it has also come in the prosecution evidence that Saiful, appellant no.2 was the friend of Hasibul, appellant no.1. Both were knowing about the pregnancy of the deceased due to illicit relation of Hasibul and the circumstances shows that to avoid the situation and facing the wrath of the society, both have killed the deceased. It has also been submitted that since the doctor has not found any sign of recent intercourse, the learned trial court has rightly acquitted the appellants for the offence punishable under Section 376 of the I.P.C. He has also submitted that after getting the information, the Investigating Officer rushed to the place of occurrence and found the dead body of the deceased hanging in the bamboo clump and her legs were touching the soil. He has also found bloodstains in the nearby field, which demonstrated that the deceased has been throttled and after her killing, she has been put in the

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Patna High Court CR. APP (DB) No.475 of 1989 dt.17-07-2013

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bamboo clump in hanging condition to demonstrate that she might have committed suicide, but the defence has not been able to substantiate it.

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Considering the facts and circumstanced as stated above, it appears that the contention of the learned counsel for the State is correct. The prosecution has been able to establish the chain of circumstances beyond reasonable doubt that the appellants have eliminated the deceased.

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It further appears that the following circumstances have been established by the prosecution that Hasibul had developed illicit relation with the deceased who was a divorcee and due to his illicit relationship, the deceased was pregnant and she wanted to terminate his pregnancy for which she has received the sale proceeds of her goats, hen and cocks: (i) She was seen going with the appellants in the night. (ii) The deceased did not return. (iii) In the same morning, the dead body of the deceased was found hanging in the bamboo clump (iv) The appellants have been last seen with the deceased (v) The Investigating Officer has also found bloodstains near the place where the deceased was hanging.

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In view of the decision in the case of Sanaullah Khan Vs. The State of Bihar reported in (2013) 3 Supreme Court Cases 52 , we find and hold that the prosecution has been able to

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Patna High Court CR. APP (DB) No.475 of 1989 dt.17-07-2013

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prove its case against the appellants beyond reasonable doubt. The judgment of conviction and order of sentence of the appellants needs no interference by this Court. The judgment of conviction and order of sentence is upheld. The appellants are on bail, their bail bonds are cancelled. They are directed to surrender before the learned trial court to serve out the sentence as passed by the learned trial court. The learned trial court is also directed to take effective steps against the appellants for taking them into custody for serving the sentence.

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In the result, this appeal is dismissed.

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(Amaresh Kumar Lal, J) Shyam Kishore Sharma, J. I agree. (Shyam Kishore Sharma, J) A.F.R./V.K. Pandey/-

Hasibul and Anr. v. The State Of Bihar

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What is this about?

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Hasibul and Anr. v. The State Of Bihar

Case brief

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