Partly allowed

Abhay Kumar Yadav v. State of Bihar and Ors.

Patna HC2 Apr 2015CR. REV./176/1993

Case brief

AI extract

What is this about?

The High Court in criminal appeals allowed the appeal of Krishna Ballabh Singh, acquitting him of murder due to discrepancy with medical evidence, while dismissing others, holding sufficient ocular corroboration for one appellant but lack of evidence against others.

What did the court decide?

Appeal of Krishna Ballabh Singh allowed; conviction and sentence set aside; discharge from bail liability; orders against other appellants dismissed; remaining sentence enforced against Ram Chandra Si

Abhay Kumar Yadav Vs State of Bihar and Ors. — Cheque Dishonour | Patna HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Govt. Appeal (DB) No.14 of 1993 Arising Out of PS.Case No. 88 Year- 1990 Thana -Dhoriya District- BHAGALPUR =========================================================== State of Bihar .... .... Appellant Versus 1. Arbind Singh, son of Late Sukhdeo Singh 2. Anil Singh, son of Ramchandra Singh, Both residents of Village- Gangdaure, P.S.- Dhoraiya, District- Bhagalpur, Now Banka. .... .... Respondents with =========================================================== Criminal Appeal (DB) No. 22 of 1993 Arising Out of PS.Case No. 88 Year- 1990 Thana -Dhoriya District- BHAGALPUR ==================================================== 1. Ram Chandra Singh, 2. Krishna Ballabh Singh, Both sons of late Sukdeo Singh, residents of VillageGangdouri, P.S.- Dhoraiya, District- Bhagalpur. .... .... Appellants Versus The State of Bihar .... .... Respondent with =========================================================== Criminal Revision No. 176 of 1993 Arising Out of PS.Case No. 88 Year- 1990 Thana -Dhoriya District- BHAGALPUR =========================================================== Abhay Kumar Yadav, son of Late Basudeo Yadav, resident of Village- Dhoriya, Police Station- Dhoriya, District- Banka. .... .... Petitioner Versus 1. The State of Bihar 2. Arbind Singh, son of 3. Anil Singh, son of Both residents of Village- Gundori, Police Station- Dhoriya, District- Banka. .... .... Opposite Parties. =========================================================== Appearance : (In G. APP. (DB) No. 14 of 1993) For the Appellant : Mr. Ashwani Kumar Sinha, A.P.P. For the Respondents : Mr. Ajay Kumar Jha, Advocate. (In CR. APP (DB) No. 22 of 1993) For the Appellants : Mr. Ajay Kumar Jha, Advocate. For the Respondent : Mr. S.C. Mishra, A.P.P.

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Patna High Court G. APP. (DB) No.14 of 1993 dt.02-04-2015

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(In CR. REV. No. 176 of 1993) For the Petitioner : None. For the Respondents : Ms. S.B. Verma, A.P.P.

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=========================================================== CORAM: HONOURABLE MR. JUSTICE V.N. SINHA

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and

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HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE V.N. SINHA) Date: 02-04-2015

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By filing the present Government, Cr. Appeal and Cr. Revision State, the two convicts and the informant of Dhoriya P.S. Case No. 88/90 have assailed the judgment of conviction, order of sentence dated 22,23.12.1992, passed by 5^th Additional Sessions Judge, Bhagalpur in Sessions Trial Case No. 516 of 1991/ Trial No. 49 of 1991, whereunder two out of the four accused persons of the said Dhoriya P.S. case, put on trial, have been convicted for the offence under Section 302 of the Penal Code and Section 27 of the Arms Act read with Section 34 of the Penal Code, sentenced to suffer Rigorous Imprisonment for life. No separate sentence has been awarded under Section 27 of the Arms Act. The Government Appeal, Cr. Revision have been filed by State and informant respectively to secure the conviction of the two acquitted accused.

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Prosecution case, as set out in the fardbeyan of Abhay Kumar Yadav, son of the deceased

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Patna High Court G. APP. (DB) No.14 of 1993 dt.02-04-2015

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Basudeo Yadav, resident of Village- Dhoraiya P.S.Dhoraiya, District- Bhagalpur, recorded by S.I. Arun Kumar, Officer-in-Charge of Dhoraiya P.S. on 08.08.1990 at 6:15 hours at his residential house is that in the morning around 5:30 he along with his father had gone towards Largha outer area of the village to see his lands as also to ease themselves by attending the call of nature. His father had moved little ahead and was attending to the call of nature, Ram Chandra Singh, Krishna Ballabh Singh, Arvind Singh, Anil Singh, Sunil Singh, both sons of Ram Chandra Singh and Ranjit Singh, son of Krishna Ballabh Singh, resident of village Gangdauri came, Ram Chandra Singh asked his companions to shoot, Krishna Ballabh Singh assaulted his father with farsa on his leg causing his fall. Once his father fell, Ram Chandra Singh, Ranjit Singh held his legs, Anil Singh, Sunil Singh and Arvind Singh caught his hands and head, Ram Chandra Singh took out pistol from his waist and shot on his temple. Arvind Singh also took out pistol from his waist and shot the informant but somehow he succeeded in saving himself by concealing beneath the ridge and raised alarm. Hearing alarm, co-villagers

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Patna High Court G. APP. (DB) No.14 of 1993 dt.02-04-2015

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Umesh Kant Yadav, Kameshwar Yadav, Mahesh Yadav, Satyendra Tanti, Bhital Das, Suresh Yadav, Janardan Mandal, Fagu Mandal etc. engaged in paddy plantation or to attend the call of nature, came running to the place of occurrence, saw the accused persons making good their escape. After the accused persons ran away, informant saw his father bleeding profusely, tossing, after sometime became calm and soon thereafter succumbed to the injury. There was a gun shot injury on his occipital region. Informant, with the help of many others brought the dead body to the residence where the fardbeyan was recorded. The occurrence has taken place because of old enmity and criminal case is pending from before. Besides the informant Umesh Kant Yadav and Suresh Prasad Yadav also put their initial over the fardbeyan. Having scribed the fardbeyan at the residence of the informant Officer-inCharge, Dhoraiya Police Station took up the investigation of the case and after return to Dhoraiya Police Station registered the aforesaid Dhoraiya P.S. case on 08.08.1990 for the offence under Sections 302, 307 and other allied Sections of the Penal Code, Section 27 of the Arms Act. The First Information

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Patna High Court G. APP. (DB) No.14 of 1993 dt.02-04-2015

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Report was dispatched through Special Messenger, was received in the court also on 08.08.1990. In the light of the fardbeyan investigation was taken up, inquest performed vide Inquest Report dated 08.08.1990 drawn at 7:00 A.M. in presence of Suresh Prasad Yadav, Bindeshwari Yadav. After inquest, incriminating articles were seized from the place of occurrence i.e. blood stained Dhoti of the deceased, blood stained earth and a container of chewing tobacco etc. Having conducted the inquest, seizure, the Investigating Officer sent the dead body for post mortem through Havildar Tapeshwar Singh. After sending the dead body for post mortem the scribe/Investigating Officer recorded the police statement of the eye-witnesses named in the fardbeyan. He also collected the post mortem report but before charge-sheet could be submitted he was transferred from the Police Station. Further investigation was conducted by second Investigating Officer Suresh Bodra who submitted charge-sheet against all the six First Information Report named accused persons i.e. the four put on trial and two others namely Sunil Singh and Ranjit Singh. After

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Patna High Court G. APP. (DB) No.14 of 1993 dt.02-04-2015

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supply of police paper, the case was committed to the court of Sessions on 12.07.1991. Before the Sessions Court could frame charges the case of accused Sunil Singh, Ranjit Singh was separated under order dated 06.03.1992 for inquiry by the Juvenile Justice Board. Charges against the four accused persons, put on trial, was framed on 27.04.1992, to which they pleaded not guilty and claimed to be tried.

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In support of the charge prosecution examined as many as 20 witnesses. P.W. 1 Umesh Kant Yadav, P.W. 2 Fago Mandal, P.W. 3 Satyendra Tanti, P.W. 4 Mittal Das, P.W. 5 Kamleshwari Yadav, P.W. 6 Mahesh Yadav and P.W. 14 Suresh Yadav are named in the fardbeyan as eye-witness. P.Ws. 1 to 4, 6 and 14 have supported the prosecution case while deposing in court. P.W. 7 Abhay Kumar Yadav is the son of the deceased and informant. P.W. 8 Bindeshwari Yadav is the witness of inquest. P.W. 9 Pankaj Singh is the witness on the seizure-list whereunder blood stained Dhoti, earth and chewing tobacco container were seized from the place of occurrence. P.W. 5 Kamleshwari Yadav, P.W. 12 Majrul Baitha, P.W. 16 Janardan Mandal have been

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Patna High Court G. APP. (DB) No.14 of 1993 dt.02-04-2015

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tendered. P.W. 11 Devendra Poddar and P.W. 13 Ajay Kumar Yadav are co-villager of the informant but are not the eye-witnesses of the occurrence as they have learnt about the occurrence from others. P.W. 15 Fani Kant Jha is hostile. P.W. 19 Havildar Tapeshwar Singh carried the dead body from the residence of the deceased to the post mortem house. P.W. 17 Arun Kumar is the then Officer-in-Charge of Dhoraiya Police Station who scribed the fardbeyan and is the first Investigating Officer of the case. P.W. 18 Dr. H.I. Ansari is the surgeon who conducted post mortem on the dead body. P.W. 20 Suresh Bodra is the second Investigating Officer of the case. P.W. 10 Sanjay Kumar Yadav and P.W. 11 Devendra Poddar are covillagers of the informant and are the hear-say witnesses who have learnt about the occurrence from other eye-witnesses.

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The accused persons in their examination under Section 313 Cr.P.C. not only refuted the assertions of the prosecution witnesses as false but also examined two defence witnesses D.W. 1 Kedar Singh and D.W. 2 Bijendra Prasad Singh to probablize their defence that the deceased Basudeo Singh was

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Patna High Court G. APP. (DB) No.14 of 1993 dt.02-04-2015

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shot because of political rivalry by some unknown persons in the early hours of 08.08.1990 and not at the time of occurrence stated in the fardbeyan.

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Trial court having appraised the ocular evidence of the informant and the other eye-witnesses named in the fardbeyan i.e. P.Ws. 7, 1, 2, 3, 4, 6 and 14 concluded that Accused No. 1 Ram Chandra Singh shot the deceased in his occipital region after the deceased fell down sustaining assault by farsa from Accused No. 2 Krishna Ballabh Singh on his leg. The trial court, however, disbelieved the prosecution story that the two accused persons namely Arvind Singh and Anil Kumar Singh caught hold the deceased after he fell down facilitating Ram Chandra Singh to shoot at the deceased from a very close range.

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Learned counsel for the appellant has assailed the finding recorded by the trial court as regards Krishna Ballabh Singh that he assaulted the deceased with farsa on his leg causing his fall whereafter Ram Chandra Singh shot in his occipital region from close range. In this connection, he referred to the medical evidence of Dr. H.I. Ansari P.W. 18 at pages 140, 142 of the paper-book where

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Patna High Court G. APP. (DB) No.14 of 1993 dt.02-04-2015

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Injury Nos. 3, 4, incised, 2 small lacerated wounds suffered by the deceased has been incorporated and the opinion in respect thereof has been incorporated at Page 142 of the paper book wherefrom it appears that Injury Nos. 3, 4 were caused by hard, blunt object and the two small lacerated wounds were superficial in nature. With reference to the aforesaid medical evidence, it is submitted by learned counsel that the allegation in the fardbeyan supported by the witnesses in court that Krishna Ballabh Singh assaulted the deceased on his knee with a farsa which is a sharp cutting weapon but the injury found on the person of the deceased is incised looking, lacerated wound caused by hard, blunt substance. In the background of the medical evidence it is submitted that the prosecution case as set out in the fardbeyan and deposed in court is not corroborated by the medical evidence.

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The complicity of Krishna Ballabh Singh, as per the fardbeyan and the deposition recorded in court, is not established with reference to medical evidence of Dr. H.I. Ansari, P.W. 18. In the circumstances, there is no difficulty in concluding

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Patna High Court G. APP. (DB) No.14 of 1993 dt.02-04-2015

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that Krishna Ballabh Singh does not appear to have assaulted the deceased in the manner he is said to have assaulted him in the fardbeyan as also deposition recorded in court. Accordingly, Krishna Ballabh Singh is granted benefit of doubt, his appeal is allowed setting aside his conviction, sentence. He is discharged from the liability of his bail bond. So far appellant Ram Chandra Singh is concerned, the ocular evidence led against him is fully corroborated by the medical evidence. In the circumstances, we have no option but to dismiss his appeal, which is, accordingly, dismissed. He is directed to surrender in the court below to serve out his remaining sentence. The Government Appeal and the Cr. Revision seeking conviction of Arbind Singh, Anil Singh are also dismissed as from the evidence on record it does not appear that they had participated in the occurrence and the findings recorded against the two by the court below is upheld.

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(V.N. Sinha, J)

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(Ahsanuddin Amanullah, J)

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P.K.P.

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U T

Abhay Kumar Yadav v. State of Bihar and Ors.

Case brief

What is this about?

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Abhay Kumar Yadav v. State of Bihar and Ors.

Case brief

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