Allowed

Gupteshwar Yadav @ Butan Yadav v. The State Of Bihar

Patna HC10 Dec 2024CR. APP (SJ)/188/2013

Case brief

AI extract

What is this about?

The High Court set aside the conviction under Sections 147, 307/149 and 379/149 IPC. The court held that the trial court violated mandatory provisions of Section 273 CrPC by relying on a doctor's deposition without the doctor being examined in the presence of the accused. Coupled with material inconsistencies in witness testimonies, the conviction was quashed and the appellant acquitted.

What did the court decide?

Appellant acquitted and discharged from bail bonds.

Gupteshwar Yadav @ Butan Yadav Vs The State Of Bihar — Criminal Trial and Appeal | Patna HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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CRIMINAL APPEAL (SJ) No.188 of 2013

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Arising Out of PS. Case No.-23 Year-2006 Thana- AGIAON District- Bhojpur

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======================================================

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Gupteshwar Yadav @ Butan Yadav, Son of Lorik Yadav, Resident of Village Bankat, P.S. Agiaon (G) District- Bhojpur, Bihar.

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... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance : For the Appellant/s : Mr. Manoj Kumar, Advocate For the State : Mr. A. M. P. Mehta, APP For the Informant : Mr. Rajeev Kumar, Advocate

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====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA ORAL JUDGMENT Date : 10-12-2024

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Heard Mr. Manoj Kumar, learned counsel for the appellant, and Mr. A.M.P. Mehta, learned APP for the State and Mr. Rajeev Kumar, learned counsel for the informant.

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The present appeal has been being filed under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr. P.C.’) challenging the judgment of conviction dated 12.02.2013 and order of sentence dated 18.02.2013 passed by Sessions Judge, Bhojpur, Ara in Sessions Trial No. 376 of 2010 arising out of Agiaon (G) Police Station Case no. 23 of 2006 and G.R. No. 756 of 2006, by which the appellant has been found guilty of the offence punishable under Sections 147, 307/149 and 379/149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for

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one year for the offence punishable under Section 147 of Indian Penal Code, rigorous imprisonment for three years for the offence punishable under Sections 307/149 of Indian Penal Code and rigorous imprisonment for two years for the offence punishable under Sections 379/149 of Indian Penal Code. The sentences have been made to run concurrently.

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The brief facts leading to the filing of the present appeal are that on 31.03.2006, the informant of this case was making preparations for getting the walls of his land plastered when at around 10 AM, five people came up to him with guns, pistols, lathi and farsa and threatened him to stop the plastering of the walls. The informant informed them that the land belongs to him and the same has been decreed by the Court in the Title Suit No. 49/96 passed on 24.09.2004. Following this one of the co-accused, Santosh Yadav instigated the others present there to beat the informant. Upendra Yadav put his pistol on the head of the informant and Bira Yadav and Gupteshwar Yadav started hitting him with a lathi . On hearing the cry for help, the informant’s nephew Veer Bahadur Bhagat and his grandson Ramesh Bhagat came to help him. Dineshwar Yadav then hit Ramesh Bhagat with a farsa on his head with an intention to kill him, which resulted in head injury. In between

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the assault, Veera Yadav took away Rs. 3000/- from the informant’s pocket and Upendra Yadav snatched the informant’s Titan watch from his hand. Hearing all the noise more people such as Dharamveer Singh and Yugeshwar Singh came to the place of occurrence following which the accused ran away from there. The informant and his nephew and grandson were then taken to Sadar Hospital, Ara in the injured condition for treatment where their statement was recorded.

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On the basis of the information given in the fardbeyan the case was instituted, charge sheet was filed and the case was committed to the Court of Sessions. Thereafter, the charges were framed for trial for the offences punishable under sections 147, 307/149, 379/149 of the Indian Penal Code.

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At the outset, it is mentioned here that four accused namely, Upendra Yadav, Santosh Yadav, Bira Yadav and Dineshwar Yadav were facing trial in Sessions Trial no. 545/2007. At that time, the appellant-accused Gupteshwar Yadav was an absconder and hence faced trial in Sessions Trial No. 376 of 2010. The other accused Upendra Yadav, Santosh Yadav, Bira Yadav and Dineshwar Yadav have been convicted in Sessions Trial No. 545/2007 by the then Sessions Judge.

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The prosecution had examined 6 witnesses

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namely, PW-1 Yugeshwar Bhagat, PW-2 Veer Bahadur Bhagat, PW-3 Ramesh Bhagat, PW-4 Mangru Bhagat (informant), PW-5 Dharam Veer Singh, PW-6 (Investigating Officer) Dhruv Shankar Singh before the trial Court.

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PW-4 Mangru Bhagat is the informant in the present case. He has stated in his examination-in-chief that on 31.03.2006 at around 10 AM he was preparing to get the walls of his land plastered by laying out the sand and cement when the accused persons namely Upendra Yadav, Gupteshwar Yadav (the appellant), Dineshwar Yadav, Santosh Yadav and Bira Yadav came there and stopped him from doing the work of plaster of the walls. He stated that the appellant-accused was armed with a lathi while the other accused, i.e. Santosh Yadav was armed with a gun, Bira Yadav was armed with a pistol and Dineshwar Yadav was armed with farsa . Upendra Yadav pointed his pistol on the temple of the informant’s head and Bira Yadav hit him with a lathi on his head which resulted in head injury. Gupteshwar Yadav assaulted him with a lathi by hitting on his left hand and left cheeks. On hearing the noises, the informant’s nephew, Ramesh Bhagat and grandson, Veer Bahadur Bhagat came to the place of occurrence and thereafter Dineshwar Yadav hit Ramesh Bhagat on his head with a farsa with an intention to kill him.

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Gupteshwar Yadav also hit Ramesh Bhagat with a lathi on his shoulders. Bira Yadav hit him with a lathi on his right arm. Bira Yadav took Rs. 3000/- from the informant while Upendra Yadav snatched his Titan watch from his hand. In his crossexamination the informant has said that he did not fall while he was being beaten up.

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PW-1 Yugeshwar Bhagat has said in his examination-in-chief that he was at his home when he heard noises and then came to the place of occurrence. He saw that Gupteshwar Yadav had a lathi in his hand while Upendra Yadav was armed with a pistol and Bira Yadav was armed with a gun and they had besieged the informant. He stated that Santosh Yadav fired a gun at the informant but he escaped by bending down and hence was not hit by the bullet. Dineshwar Yadav hit the informant with a farsa while Bira Yadav and Gupteshwar Yadav hit him with lathis . He stated that Bira Yadav snatched the informant’s Titan watch while Upendra Yadav took Rs. 3000/- from his pocket. After this, many villagers reached the place of occurrence.

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8 (i) In his cross-examination PW-1 has stated that the fight began right after he reached the place of occurrence but he did not try to rescue the informant. He also stated that no one

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was injured by the firing of the gun. He first stated that when the informant bent below to escape from the bullet fired at him, the informant was hit by a farsa but he was not aware of the fact that from which direction he was hit. Later he stated that the informant was hit from the eastern side. He further stated that he does not remember how many times the informant was hit by a lathi but then went on to say that he was hit twice by lathi . He stated that when the informant was hit by the farsa , there was bleeding.

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PW-2 Veer Bahadur Bhagat, one of the injured has said in his examination-in-chief that when he reached the place of occurrence after hearing noises, he saw that the accused has besieged the informant and they were armed with lathis , pistol and guns. Gupteshwar Yadav and Bira Yadav hit the informant with lathi on his left hand and head respectively. When he went to save the informant, Gupteshwar Yadav and Bira Yadav hit him too with a lathi .

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9 (i) In his cross-examination, he said that on hearing the firing of the gun he ran away from the place of occurrence. He also stated that he returned to the place of occurrence after the beating stopped. He said that he was injured at the place of occurrence but he was hit only once.

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PW-3 Ramesh Bhagat, another injured has said that he was present at the place of occurrence when the incident occurred. The informant, Mangru Bhagat was making preparations for the plastering of his walls when Santosh Yadav, armed with a gun, Bira Yadav and Gupteshwar Yadav armed with lathis and Dineshwar Yadav armed with a farsa besieged the informant and threatened him to stop the plastering of the walls. When the informant refused to listen to them, Santosh Yadav fired his pistol at the informant which he narrowly escaped by bending below. Upendra Yadav pointed his gun at the temple of the informant’s head and snatched his Titan watch. Bira Yadav and Gupteshwar Yadav hit the informant-injured with lathi blows and Bira Yadav took Rs. 3000/- from the informant’s pockets. When he went to save the informant then Dineshwar Yadav hit him with a farsa on his head which resulted in bleeding from his head.

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10 (i) In his cross-examination, PW-3 has stated that the informant is his grand-father and Veer Bahadur Bhagat is his uncle. He said that he reached the place of occurrence on hearing the noise of people and at that time no one was injured. He also said that he does not remember which accused hit him or Veer Bahadur, or how many times they were beaten. He also

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said that he was hit by a farsa on his head which resulted in bleeding from his head. He said that blood was there on the floor. He said that Gupteshwar Yadav, the appellant-accused also hit him. He was injured by the blow of the farsa .

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PW- 5 Dharam Veer Singh has stated in his examination-in-chief that he was not present at the place of occurrence at the time of incident. He reached there on hearing noises and saw that Upendra Yadav, Dineshwar Yadav, Gupteshwar Yadav, Bira Yadav and Santosh Yadav were having an altercation with the informant, Mangru Bhagat where they were prohibiting him from doing the plastering of the walls. When he refused to listen to them and asserted his right to the land, Dineshwar Yadav said that he would not listen without being beaten up. Dineshwar Yadav hit the informant with a farsa on his head. Gupteshwar Yadav, Santosh Yadav, Upendra Yadav and Bira Yadav hit the informant with lathis following which the informant fell on the ground. Upendra Yadav then snatched his Titan watch and Bira Yadav took the money amounting to Rs. 3000/- from the pocket of the informant. When Ramesh Bhagat and Veer Bhagat came to the rescue of Mangru Bhagat, all the five accused named above assaulted them too. After being beaten up, Ramesh Bhagat and Veer Bhagat ran away from the

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place of occurrence. All the injured persons were taken to the Sadar Hospital, Ara for their treatment. In his cross-examination PW-5 has stated that the entire incident happened in a 1-2 minutes and after that everyone went to their homes.

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PW-6, Dhruv Shankar Singh is the Investigating Officer in the instant case. He has stated in his examination-in-chief that he recorded the statement of the informant at the place of occurrence. In his cross-examination he said that no traces of blood were found at the place of occurrence nor any signs of assault or fight could be found at the place of occurrence. During inspection of the place of occurrence, there was no mention of any sand or cement.

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In the instant case, the doctor who treated the injured was not examined. The original injury report was attached with the Sessions Trial no. 545/2007 and a copy of the same was sent to the learned trial Court. Thus, the doctor’s deposition was filed as Ext.-1. From perusal of the deposition it appears that Mangru Bhagat sustained following injuries-

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(1) An incised wound 1"x1/2"x1/2" over left side of parietal area.

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(2) an abrasion 1/4"x 1/4" over right thumb.

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(3) Tender swelling 1/2"x1/2" over left cheek.

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Patna High Court CR. APP (SJ) No.188 of 2013 dt.10-12-2024 10/16

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Time of injury: - within 6 hours.

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Injury no. 1 was caused by sharp cutting weapon while injury nos. 2 and 3 was caused by hard and blunt substance. Injuries are simple in nature.

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He has also stated that he has examined Ramesh Bhagat and found following injuries on his person-

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(1) Lacerated wound 2/2"x 1/2" Scalp deep over left parietal occipital region. X-Ray scalp A.P. and lateral advised.

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(2) A tender swelling 1/2"x 1/4" over left side of upper Arm in mid position on anterior aspect. X-ray left upper arm A.P. and lateral advised.

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(3) A tender swelling 1/4"x1/4" on right shoulder on upward position.

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He has further deposed that he examined the injury of Veer Bahadur Bhagat and found following injuries on his person:-

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1. An abrasion 2"x1" over left side of elbow on back.

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2. An abrasion 1"x1/4" left side on lateral side mid position.

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For both the injuries X-Ray advised.

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Time of injury- within 6 hours, Nature of injuries- opinion reserved till submission of X-Ray report. The above injuries may

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be caused by hard and blunt substance such as lathi .

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The learned counsel for the appellant has

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submitted that in the instant case the doctor who prepared the injury report has not been examined. Further the prosecution story indicates that there was a land dispute attributed between the parties regarding the plot no. 998, 999, 974, 499 which has an area of 22 decimal and that a title suit is going on between the parties vide Title Suit No. 49 of 1996 in the Court of Munsif, Ara. He further submits that the incident occurred because the plaster work was happening on a wall which was standing on the disputed land. The counsel further submitted that there are no specific allegations against the appellant for doing any overt act other than being a part of the assembly. The appellant was made an accused due to dirty village politics. The counsel has also submitted that the trial Court did not give a reasoned decision as to the guilt of the appellant-accused.

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Having deeply studied and scrutinized the

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facts of the present case and the materials available on record, it has come to my notice that the doctor whose injury report has been relied upon was not examined in the presence of the appellant-accused or his pleader. At this point, it is imperative to bring to attention Section 273 of the Code of Criminal

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Procedure which reads as follows:

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273. Evidence to be taken in presence of accused. - Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader. [Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused.]

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The Supreme Court in various judgments has

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upheld that the provisions of Section 273 are mandatory in nature to the extent that the evidence taken in the course of the trial ought to be in the presence of the accused or when his personal attendance is dispensed with, in the presence of his pleader.

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It has been held by the Hon’ble Apex Court in Jayendra Vishnu Thakur v. State of Maharashtra , (2009) 7 SCC 104 that the right of an accused to watch the prosecution witnesses deposing before a Court of law indisputably is a valuable right. In this case the Court has observed that if the evidence in the earlier trial was to be read in the subsequent trial, the accused would be denied the opportunity of crossexamination of the witnesses concerned. Thus, the prejudice was inherent.

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Further the Apex Court reiterated its position in Atma Ram v. State of Rajasthan , (2019) 20 SCC 481 where the Court held that the right of an accused to watch the prosecution witnesses deposing before a Court is a valuable right and infringement of such a right is gravely prejudicial.

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The trial Court has mentioned this fact in Para 14 of the impugned judgment that the doctor could not be examined. Nevertheless, it convicted the appellant even when

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the doctor was not examined with respect to the original injury report. Further the Court did not verify the original injury report and passed judgment solely after listening to the parties and without giving any reasons for arriving at its conclusion about the guilt of the appellant which is absolutely illegal in the eyes of law. This is a violation of the procedure laid down in Section 273 of the Code of Criminal Procedure and, thus, the decision of the trial Court in not tenable and bad in law.

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Further in the instant case, the Investigating Officer has been examined but the contents of the FIR have not been proved and only photo-copy of the FIR on record was relied upon without exhibiting. It is pertinent to note that the FIR is the backbone of any criminal case.

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It is also seen that there are material inconsistencies in the deposition of the witnesses. PW-1 and PW-3 have stated in their cross-examination that there was bleeding when the informant, Mangru Bhagat was hit by the accused however PW-6, the Investigating Officer has stated that no traces of blood was found at the place of occurrence. Similarly, PW- 2 Veer Bahadur Bhagat who was one of the injured persons in the case has stated in his cross-examination that on hearing the firing of the gun, he ran away from the place

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of occurrence and went to his home and came back when the accused has stopped beating. Hence, his statement that he was beaten by the appellant is not reliable in the eye of law. The informant, PW-4 stated in his cross-examination that he did not fall on the ground on being beaten up, but PW-5 has stated that the informant had fallen after being beaten up.

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Keeping in view all the materials available on record and the decisions laid down by the Hon’ble Apex Court, it is evident that there has been gross violation of the provisions of Section 273 of the Code of Criminal Procedure which although does not vitiate the trial in its entirety but raises serious doubt over the findings of the trial Court. Further, it is surprising that a Court of Sessions failed to give a proper reasoned decision for arriving at the conclusion that the prosecution had proven its case beyond all reasonable doubt. Hence, in view of the fatal irregularity in procedure and material inconsistencies in the deposition of the witnesses, the conviction of the appellant is set aside.

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On perusal of the impugned Judgment of conviction dated 12.02.2013 and order of sentence dated 18.02.2013 passed by the learned Sessions Judge, Bhojpur, Ara, in Sessions Trial No. 376 of 2010 arising out of Agiaon (G) P.S.

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Case No. 23 of 2006 against the appellant is set aside and the appellant is acquitted from the charges leveled against him. As the appellant is on bail, he is discharged from his liability of bail bonds.

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24. Accordingly, the appeal stands allowed.

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(Ramesh Chand Malviya, J)

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Anand Kr.

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AFR/NAFR	NAFR
CAV DATE	NA
Uploading Date	19.12.2024
Transmission Date	19.12.2024

Gupteshwar Yadav @ Butan Yadav v. The State Of Bihar

Case brief

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What did the court decide?

Gupteshwar Yadav @ Butan Yadav v. The State Of Bihar

Case brief

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