Allowed

Ram Sarikhan Rai v. State of Bihar

Patna HC2 Apr 2013CR. APP (SJ)/61/2001

Case brief

AI extract

What is this about?

The Patna High Court allowed the appellant's criminal appeal against conviction and sentence. The court set aside the trial court's conviction under Section 323 IPC and the order of sentence, discharging the appellant due to serious doubts about the prosecution's case caused by contradictory evidence and procedural lapses.

What did the court decide?

The impugned judgment of conviction and sentence is set aside. The appellant is discharged from the liability of bail bonds.

Ram Sarikhan Rai Vs State of Bihar — Murder and Culpable Homicide | Patna HC (2013)

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Patna High Court CR. APP (SJ) No.61 of 2001 dt.02-04-2013

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (SJ) No.61 of 2001

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========================================================= (Against the judgment of conviction and order of sentence dated 2112-2000, passed by IXth Additional Sessions Judge, Chapra, in Sessions Trial No. 157 of 1994) Ram Sarikhan Rai S/o Late Munsi Rai, Resident of VillageGaura, P.S. Mashaura, District-Saran. .... .... Appellant. Versus The State of Bihar .... .... Respondent. ========================================================= Appearance : For the Appellant/s : Mr. Basant Kumar Singh, Advocate. Mr. P.N. Rail, Advocate. For the Respondent/State : Mr. Sujit Kumar Singh, A.P.P.

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Dated/ the 2^nd day of April, 2013. ========================================================= CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR SRIVASTAVA JUDGMENT

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Hemant Kumar Srivastava,J.

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Heard learned counsel appearing for the Appellant as well as

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learned Additional Public Prosecutor for the State and perused the record.

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2.This criminal appeal has been preferred against the judgment of conviction and order of sentence dated 21-12-2000, passed by IXth Additional Sessions Judge, Chapra, in Sessions Trial No. 157 of 1994 by which and whereunder, he convicted the appellant for the offence punishable under Section-323 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for six months whereas; he acquitted the co-accused, Sitaram Rai of the charge framed against him

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Patna High Court CR. APP (SJ) No.61 of 2001 dt.02-04-2013

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by the same impugned judgment.

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In brief, the fact, which lies to file this Cr. Appeal, is that P.W. 5, namely, Rajeshwar Prasad Yadav gave his fardbeyan to A.S.I. of Marhowrah Police Station in injured condition, at Primary Health Centre, Goura on 16-05-1992 at 4.00 p.m. to this effect that on 15-051992 at about 7.00 p.m., when he alongwith P.W. 1 & P.W. 4, was returning to his home and reached near Primary Health Centre, the appellant and one co-accused, Sitaram Rai, being armed with iron rod and dagger, encircled him and co-accused, Sitaram Rai, exhorted to kill him whereupon, the appellant gave iron rod blow causing injury near his left eye. P.W. 5 tried to flee from there but co-accused, Sitaram Rai gave dagger blow, causing injury on his neck and head. P.W. 1 and P.W. 4 tried to save them but they were also threatened by the appellant and other accused. P.W. 5 became unconscious and regained his consciousness in the hospital. The reason behind the alleged occurrence was said to be previous enmity.

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On the basis of aforesaid fardbeyan which has been marked as Ext-4 , Morhowrah P.S. Case No. 88 of 1992 under Sections341, 323, 324, 307/34 of the Indian Penal Code, was registered and formal FIR for the said offence, was drawn up against the appellant and co-accused for the offences under Sections-341, 323, 324, 307/34 of the Indian Penal Code. The formal FIR and fardbeyan of P.W. 5 was despached on 17-05-1992 and received in the concerned court on 21-051992.

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After investigation, police submitted charge sheet for the

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Patna High Court CR. APP (SJ) No.61 of 2001 dt.02-04-2013

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offences under Section-307 & other minor sections of the Indian Penal Code. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way.

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The appellant as well as co-accused, Sitaram Rai, stood trial and, accordingly, they were charged for the offence punishable under Sections-307/34 of the Indian Penal Code. The appellant as well as co-accused, Sitaram Rai, denied the charge and claimed to be tried.

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In course of trial, prosecution examined altogether 7 witnesses, and, besides it, some documentary evidences were also adduced.

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The statements of the appellant as well as other accused were recorded under Section-313 of the Cr. P.C. in which, they reiterated their innocence. No evidence was adduced on behalf of the defence but from perusal of statement of appellant recorded u/S 313 of the Cr.P.C. as well as trends of cross-examination of the prosecution witnesses, it appears to me that the defence of the appellant, was total denial of the prosecution story as well as false implication on account of previous enmity.

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Learned trial court, having appreciated the materials available on the record, acquitted the co-accused, Sitaram Rai whereas; convicted the appellant for the offence punishable under Section-323 of the Indian Penal Code and sentenced him, in the manner, as stated above.

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Learned counsel appearing for the appellant, challenged the impugned judgment of conviction and order of sentence, arguing that the learned trial court failed to appreciate the evidences available on the

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Patna High Court CR. APP (SJ) No.61 of 2001 dt.02-04-2013

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record, in right perspective and came on erroneous findings. He submitted that the prosecution witnesses made contradictory statements and the I.O. has not been examined and, therefore, a prejudice has been caused to the appellant.

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On the other hand, learned Additional Public Prosecutor appearing for the State, supported the impugned judgment of conviction and order of sentence, arguing that the learned trial court, rightly, convicted the appellant and there is no scope for this court to interfere with the findings of learned trial court.

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Having heard the rival contentions of both the parties, I have gone through the lower court record.

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As I have already stated that altogether 7 prosecution witnesses were examined in course of trial; out of them, P.W. 1 & P.W. 4 are said to be eye witness of the alleged occurrence whereas; P.W. 2 and P.W. 3 are admittedly, hear-say witness and they do not claim to have witnessed the alleged occurrence.

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P.W. 6 is the doctor who examined the P.W. 5 after the alleged occurrence whereas; P.W. 7 is a formal witness who proved formal FIR and other documents.

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P.W. 5 is the informant as well as injured of this case. This witness stated that when he reached near Primary Health Centre, the appellant and co-accused, Sitaram Rai, encircled him and at that time, the appellant was armed with iron rod whereas; co-accused, Sitaram Rai was armed with dagger. This witness further stated that at the direction of co-accused, Sitaram Rai, the appellant gave rod blow causing injury near his left eye and after that, co-accused, Sitaram Rai gave dagger blows to

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Patna High Court CR. APP (SJ) No.61 of 2001 dt.02-04-2013

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him. In course of cross-examination, he stated that the appellant gave iron rod blow twice to him whereas; co-accused, Sitaram Rai gave one dagger blow to him.

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P.W. 1 stated that the appellant gave iron rod blow causing injury near left eye of P.W. 5 & after that, Sitaram Rai gave dagger blow to P.W. 5. Contrary to the aforesaid statement, P.W. 4 stated that only the appellant gave single iron rod blow to the P.W. 5 and co-accused, Sitaram Rai had not assaulted P.W. 5. It is apparent from the aforesaid evidences that P.W. 5 as well as rest other so-called eye witnesses, have made contradictory statements on the point of assault.

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According to prosecution case, the alleged occurrence took place on 15-05-1992 at about 7.00 p.m. and P.W. 5 was examined by P.W. 6 on the same day at 7.00 p.m. P.W. 6 found three injuries on the person of P.W. 5 and admitted at paragraph-6 of his crossexamination that he prepared injury report (Ext. 2) of P.W. 5 on 15-051992 itself. Admittedly, the fardbeyan of P.W. 5 was recorded on 16-051992 at about 4.00 p.m., so, it is an admitted position that the fardbeyan of P.W. 5 was recorded after preparation of his injury report and it appears to me that when the fardbeyan of P.W. 5 was recorded, he developed the prosecution case after perusing his injury report. Moreover, the fardbeyan and formal FIR was put up before learned CJM, Chapra on 21-05-1992 i.e. after much delay of registration of the first information report and, the aforesaid delay, has not been explained by the prosecution and the appellant also could not get an opportunity to get verified reason of the aforesaid delay by putting relevant question to the I.O. because admittedly, the I.O. has not been examined in this case.

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Patna High Court CR. APP (SJ) No.61 of 2001 dt.02-04-2013

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Therefore, in my view, a serious doubt is caused about the genuineness of the prosecution case and the appellant is entitled to get the benefit of doubt.

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On the basis of aforesaid discussions, I am of the opinion that the prosecution could not succeed to prove its case beyond shadow of all reasonable doubts and the appellant deserves to be acquitted.

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Accordingly, this Cr. Appeal is allowed and the impugned judgment of conviction and sentence order dated 21-12-2000 is, hereby, set aside. The appellant is on bail. He is discharged from the liability of his bail bonds.

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Patna High Court Dated/ the 2^nd day of April, 2013 AFR/A.K.V./-

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(Hemant Kumar Srivastava, J)

Ram Sarikhan Rai v. State of Bihar

Case brief

What is this about?

What did the court decide?

Ram Sarikhan Rai v. State of Bihar

Case brief

What is this about?

What did the court decide?

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