Patna High Court
Pramod Kumar @ Pramod Kumar Yadav vs The State Of Bihar on 3 March, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.715 of 2024
In
CRIMINAL APPEAL (SJ) No.314 of 2024
Arising Out of PS. Case No.-342 Year-2019 Thana- SAHPUR District- Bhojpur
======================================================
Pramod Kumar @ Pramod Kumar Yadav, Son of Mahendra Singh @
Mahendra Yadav, Resident of Village- Sahpur, Ward No. 10, P.S.- Sahpur,
District- Bhojpur.
... ... Appellant
Versus
1. The State of Bihar
2. Binod Yadav @ Ravi Yadav @ Gope, Son of Munna Yadav, Resident of
Village- Shahpur, P.S.- Shahpur, District- Bhojpur
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Surendra Kumar Mishra, Advocate
Mr. Shashikant, Advocate
For the State : Mr. Mukeshwar Dayal, Addl PP
For the Resp. No. 2 : Mr. Rajesh Kumar, Advocate
Mr. Sunil Kumar Yadav, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 03-03-2025
Heard Mr. Surendra Kumar Mishra, learned counsel for
the appellant, Mr. Rajesh Kumar, learned counsel for the
Respondent No. 2 and Mr. Mukeshwar Dayal, learned Additional
Public Prosecutor for the State.
2. This appeal has been preferred for setting aside the
judgment of acquittal dated 19.10.2023 (hereinafter referred to as
the 'impugned judgment') passed by learned Additional Sessions
Judge III, Civil Court, Bhojpur, Ara (hereinafter referred to as the
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'learned trial court') in Sessions Trial Case No. 256 of 2021
arising out of Shahpur P.S. Case No. 342 of 2019. By the
impugned judgment, the learned trial court has been pleased to
acquit the sole accused Binod Yadav @ Ravi Yadav @ Gope
(Respondent No. 2 in the appeal) of the charges under Sections
341, 323, 326, 307, 504 and 506 of the Indian Penal Code (in short
'IPC') read with Section 34 IPC and Section 27 of the Arms Act.
Prosecution Case
3. The prosecution case is based on the fardbeyan of
Pramod Kumar Yadav (PW-2) recorded by Nagendra Bhusan
Tiwary, S.I. of Shahpur Police Station at the Police Station on
11.12.2019
at 19:30 Hours. In his fardbeyan, the informant has
alleged that on the same day i.e. on 11.12.2019 at 06:45 Hours, he
was going on his motorcycle from his house to his dalan. When he
reached near the house of Baleshwar Yadav, who is the maternal
grandfather of Binod Yadav @ Ravi Yadav @ Gope, one Rahul
Yadav who is the servant of Binod Yadav dashed against his
motorcycle. The informant told him that he was not driving
cautiously then Rahul Yadav started abusing him. The informant
asked him not to hurl abuse then Rahul Yadav pushed him from his
motorcycle and started assaulting him by fists and leg. Due to
intervention of some people, Rahul Yadav went from there. The
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informant returned to his house and while he was giving
information to his family members about this incident, in the
meantime, (1) Binod Yadav @ Ravi Yadav @ Gople, (2) Lallu
Yadav, (3) Baleshwar Yadav and (4) Rahul Yadav who is servant of
Binod Yadav came at the door of the informant and Baleshwar
Yadav instigated his associates to shoot him. Binod Yadav fired at
the informant from his pistol with an intention to kill him which
hit his cousin Sajan Yadav on his arm due to which he became
seriously injured. When the informant and other family members
tried to catch the accused persons, they fled away brandishing the
gun in the air. The informant alleges that the FIR named accused
persons with an intention to kill him and his family members had
shot at him due to which Sajan Yadav became seriously injured.
4. On the basis of the fardbeyan of the informant,
Shahpur P.S. Case No. 342 of 2019 dated 11.12.2019 was
registered for the offences punishable under Sections 341, 323,
326, 307, 504, 506, 34 IPC and Section 27 of the Arms Act. Upon
investigation, a chargesheet bearing no. 268/20 dated 27.11.2020
was submitted against Binod Yadav @ Ravi Yadav @ Gope for the
offences under Sections 341, 323/34, 326, 307, 504/34, 506/34
IPC and Section 27 of the Arms Act. On the basis of this
chargesheet, learned Additional Chief Judicial Magistrate-1st, Ara
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took cognizance vide order dated 12.02.2021 of the offences under
Sections 341, 323, 326, 307, 504 and 506 IPC read with Section 34
IPC and Section 27 of the Arms Act. On finding that the case is
triable by the Court of Sessions, the records were committed to the
court of Sessions vide order dated 14.09.2021. Thereafter Sessions
Case No. 256 of 2021 was registered. Charges were read over and
explained to the accused-respondent no. 2 in Hindi which they
denied and claimed to be tried. Accordingly, learned trial court
framed charges against Binod Yadav @ Ravi Yadav for the
offences under Sections 341, 323/34, 504/34, 506/34, 326 and 307
IPC and Section 27 of the Arms Act vide order dated 15.02.2022.
5. In course of trial, the prosecution examined altogether
six witnesses and seven documentary evidences were adduced in
course of trial. No oral or documentary evidence has been adduced
on behalf of the defence. The list of the prosecution witnesses and
exhibits are mentioned hereunder in tabular form:-
List of Prosecution Witnesses
PW-1 Mahendra Singh Yadav
PW-2 Pramod Kumar Yadav
PW-3 Rakesh Kumar Yadav @
Guddu Yadav
PW-4 Dr. Ajay Kumar
PW-5 Ajay Kumar Sah @ Ajay Sah
PW-6 Avinash Kumar
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Ext.-1 Signature of informant Pramod
Kumar Yadav on fardbeyan
Ext.1/1 Signature of Surendra Yadav as a
witness on fardbeyan
Ext. 1/2 Signature of S.H.O.-cum-Inspector
on fardbeyan
Ext. 2 Signature of informant Pramod
Kumar Yadav on protest petition
Ext. 3 Signature of S.H.O. Shambhu
Bhagat at endorsement of FIR
Ext.4 Charge-sheet
Ext. 5 Injury report of injured Sajan
YadavFindings of the Learned Trial Court
6. After analysing the evidence on the record, learned
trial court found that PW-2 who is the informant of this case has
stated that the accused-Respondent No. 2 fired upon him with
intention to kill him but the bullet hit his cousin Sajan Yadav
whereas in paragraph ’12’ of his cross-examination, he has stated
that there was darkness prevailing at the place of occurrence. Thus,
the statement that the bullet which hit Sajan Yadav was fired by
the Respondent No. 2 is not reliable. Learned trial court found
from the cross-examination of the informant (PW-2) that four
accused persons were armed with weapons and no one had fired
upon him to kill him whereas in the FIR, the informant has not
stated about weapons being carried by all the accused persons.
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Thus, learned trial court observed that the informant himself is
giving contradictory statements.
7. Learned trial court, from perusal of testimony of PW-
1, found that this witness was present in his house at the time of
incident and he was informed by his son about the incident but in
his cross-examination, he has stated that he reached at the place of
occurrence after ten minutes and when he reached there, he saw
that the accused persons were fleeing, thus, learned trial court
concluded that this witness is not an eye-witness of this case and
further, he is a hearsay witness.
8. Learned trial court further held that PW-3 and PW-5
have been declared hostile by the prosecution. It further transpires
that the I.O. of this case was not examined before the court.
Learned trial court also found that the prosecution has further
failed to bring the injured, namely, Sajan Yadav before the court to
testify him which creates a serious doubt over the prosecution
story. Learned trial court held that the prosecution has failed to
prove it’s case beyond all reasonable doubts. Hence, learned trial
court acquitted the accused-respondent no. 2 of the charges under
Sections 341, 323, 326, 307, 504 and 506 IPC read with Section 34
IPC and Section 27 of the Arms Act.
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Submissions on behalf of the Appellant
9. Learned counsel for the appellant has assailed the
impugned judgment on the grounds inter-alia that in this case, the
whole proceeding has been conducted by the learned trial court in
such a manner that there is no compliance with the statutory
requirement as regards service of summons upon the witnesses.
The Investigating Officer of the case has acted so negligently that
it may be said to be a case of culpable negligence. It is submitted
that in this case, the injured Sajan Kumar whose medical
examination was conducted by the Doctor (P.W.-4) and injury
report has been proved, has not been made a charge-sheet witness
by the Investigating Officer. The learned trial court, though,
purported to issue notice to the I.O. but there is nothing on the
record to show that notice was served upon the I.O. There were
two I.O.s in this case. The main I.O., namely, Nagendra Bhushan
Tiwary has not been examined, though he is a charge-sheet witness
but no summon has been served upon him.
10. Learned counsel submits with reference to the
various orders passed by the learned trial court that on 24.07.2023,
the learned trial court directed for issuance of dasti summon upon
the I.O. In the margin portion of the order dated 24.07.2023, it is
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shown that “the dasti summon to I.O.” It would, however, appear
that there is no service report of the dasti summon. The learned
trial court closed the prosecution evidence on 13.10.2023 on the
prayer of the learned Public Prosecutor (P.P.) as shown in the
margin portion of the order dated 13.10.2023. It is pointed out that
pursuant to an order of this Court, an enquiry has been conducted
in this matter. The enquiry revealed that Shri Siyaram Singh,
learned APP of this case claimed that he had not requested the trial
curt to close the case. This Court has, vide order dated 17.02.2025
directed to bring this matter to the notice of Secretary, Department
of Law, Government of Bihar under whose control the APPs are
working. There is a direction to take appropriate action. It is
submitted that the learned trial court has not followed even the
basic principles and did not exhaust the procedures established by
law for procurement of the attendance of the witnesses. The
recording in the margin portion of the order becomes highly
doubtful in view of the enquiry report saying that APP did not say
so.
11. Learned counsel relied upon the judgment of the
Hon’ble Division Bench of this Court in case of Brajesh Patel
and Others Vs. The State of Bihar reported in 2008 (1) PLJR
492 where in similar circumstances, the Hon’ble Division Bench
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of the Court has been pleased to set aside the judgment of acquittal
and remand the matter back to the learned trial court.
Submissions on behalf of the Respondent No. 2
12. Learned counsel for the sole accused-Respondent
No. 2 has defended the impugned judgment as according to him,
sufficient opportunity was given to the prosecution to produce the
witnesses, when the prosecution did not bring the witnesses, the
evidence was closed. It is submitted that the learned trial court has
rightly appreciated the evidences available on the record.
Submissions on behalf of the State
13. Mr. Mukeshwar Dayal, learned APP for the State,
has, however, not supported the judgment of the learned trial court.
It is his submission that in this case, as it appears the sole accused
has got ten criminal antecedents and he was able to influence even
the Investigating Officer of this case who despite the fact that
Sajan Kumar was an injured witness and he is in fact the eye
witness to the occurrence, did not examine him and made him a
charge-sheet witness. Such negligence cannot be said to be a mere
negligence on the part of the I.O., rather it speaks of foul play in
action and it is in the nature of culpable negligence for which
appropriate direction be given to the Department of Home,
Government of Bihar to take suitable action and find out whether
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the I.O. was acting with a mind of culpable negligence. Relied in
this judgment has been placed on the judgment of the Hon’ble
Supreme Court in the case of State of Gujarat versus
Kishanbhai and Others reported in (2014) 5 SCC 108
(paragraphs ’19’, ’22’ and ’23’) to submit that appropriate
direction be given to the Department of Home to examine the
whole matter and take suitable action against the I.O.
14. Learned APP for the State submits that the learned
trial court has not followed the established procedure of law and
without taking appropriate steps to exhaust the processes which
were required to be issued against the witnesses such as the I.O.
and to summon the injured witness, the trial court arbitrarily
closed the evidence on 13.10.2023 by simply endorsing in the
margin portion that on the prayer of learned APP, the case is
closed. The APP says that he had not made such a prayer. It is
submitted that in such circumstance, the trial court should have
ensured that a fair trial takes place and justice be done.
Consideration
15. We, having heard learned counsel for the parties and
on perusal of the records, find that in this case, the impugned
judgment of acquittal is not sustainable in the eye of law. It is
evident that at first instance, the I.O. of the case has shown
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complete negligence and despite the fact that Sajan Kumar is the
injured of this case and he was medically examined and his injury
report has been proved by PW-4, the said Sajan Kumar has not
been made a charge-sheet witness. The I.O. did not think it just
and proper to examine him in course of investigation. Again, the
main I.O. who had conducted the investigation did not appear in
course of trial.
16. We find from the ordersheets of the trial court that
the dasti summon said to have been issued by the court were not
served upon the witnesses as there is no service report of the
summons on the record. This seems to be a case of falsification of
judicial records inasmuch as the endorsement made in the margin
portion of the order dated 21.07.2023 that “lEeu rkfeyk layXu fd;k
tkrk gS A” is not based on record. There is no service of summon
upon the I.O. Apparently, the trial court has not exhausted the
processes which were required to be issued to procure the
attendance of the prosecution witnesses, particularly, the official
witnesses of the case.
17. In the case of Brajesh Patel (supra), the Hon’ble
Division Bench of this Court has observed in paragraph ‘6’ as
under:-
“6. We appreciate the anxiety of the trial court for expeditious
disposal of the criminal case of serious nature but certain
aspects of the matter were not kept in mind otherwise the
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non-bailable warrants etc. should have been issued and
executed against the IO as well as the Doctor in a serious case
of present nature. In not keeping such important aspect of the
case in mind, the learned trial court, in our view, committed
irregularity, illegality and impropriety. All the possible evidence
of the prosecution could not come on record on account of such
hasty action of the trial court in closing the case without taking
effective steps to secure presence of the IO and the Doctor for
deposition as a witness. On that account the trial itself got
vitiated resulting into the impugned judgment of conviction
without any legal evidence worth the name.”
18. Dealing with the issue of negligence on the part of
the I.O. leading to acquittal of the accused, the Hon’ble Supreme
Court in the case of Kishanbhai (supra) observed in paragraphs
’19’, ’22’ and ’23’ as under:-
“19. Every time there is an acquittal, the consequences are just the
same, as have been noticed hereinabove. The purpose of justice
has not been achieved. There is also another side to be taken into
consideration. We have declared the respondent-accused innocent,
by upholding the order of the High Court, giving him the benefit
of doubt. He may be truly innocent, or he may have succeeded
because of the lapses committed by the investigating/prosecuting
teams. If he has escaped, despite being guilty, the investigating
and the prosecution agencies must be deemed to have seriously
messed it all up. And if the accused was wrongfully prosecuted,
his suffering is unfathomable. Here also, the investigating and
prosecuting agencies are blameworthy. It is therefore necessary,
not to overlook even the hardship suffered by the accused, first
during the trial of the case, and then at the appellate stages. An
innocent person does not deserve to suffer the turmoil of a long-
drawn litigation, spanning over a decade or more. The expenses
incurred by an accused in his defence can dry up all his financial
resources — ancestral or personal. Criminal litigation could also
ordinarily involve financial borrowings. An accused can be
expected to be under a financial debt, by the time his ordeal is
over.
22. Every acquittal should be understood as a failure of the justice
delivery system, in serving the cause of justice. Likewise, every
acquittal should ordinarily lead to the inference, that an innocent
person was wrongfully prosecuted. It is therefore essential that
every State should put in place a procedural mechanism which
would ensure that the cause of justice is served, which would
simultaneously ensure the safeguard of interest of those who are
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innocent. In furtherance of the above purpose, it is considered
essential to direct the Home Department of every State to
examine all orders of acquittal and to record reasons for the
failure of each prosecution case. A Standing Committee of senior
officers of the police and prosecution departments should be
vested with the aforesaid responsibility. The consideration at the
hands of the above Committee, should be utilised for crystallising
mistakes committed during investigation, and/or prosecution, or
both. The Home Department of every State Government will
incorporate in its existing training programmes for junior
investigation/prosecution officials course-content drawn from the
above consideration. The same should also constitute course-
content of refresher training programmes for senior
investigating/prosecuting officials. The above responsibility for
preparing training programmes for officials should be vested in
the same Committee of senior officers referred to above.
Judgments like the one in hand (depicting more than ten glaring
lapses in the investigation/prosecution of the case), and similar
other judgments, may also be added to the training programmes.
The course-content will be reviewed by the above Committee
annually, on the basis of fresh inputs, including emerging
scientific tools of investigation, judgments of courts, and on the
basis of experiences gained by the Standing Committee while
examining failures, in unsuccessful prosecution of cases. We
further direct, that the above training programme be put in place
within 6 months. This would ensure that those persons who
handle sensitive matters concerning investigation/prosecution are
fully trained to handle the same. Thereupon, if any lapses are
committed by them, they would not be able to feign innocence when
they are made liable to suffer departmental action for their lapses.
23. On the culmination of a criminal case in acquittal, the
investigating/prosecuting official(s) concerned responsible for such
acquittal must necessarily be identified. A finding needs to be
recorded in each case, whether the lapse was innocent or
blameworthy. Each erring officer must suffer the consequences of his
lapse, by appropriate departmental action, whenever called for.
Taking into consideration the seriousness of the matter, the official
concerned may be withdrawn from investigative responsibilities,
permanently or temporarily, depending purely on his culpability. We
also feel compelled to require the adoption of some indispensable
measures, which may reduce the malady suffered by parties on both
sides of criminal litigation. Accordingly, we direct the Home
Department of every State Government to formulate a procedure for
taking action against all erring investigating/prosecuting
officials/officers. All such erring officials/officers identified, as
responsible for failure of a prosecution case, on account of sheer
negligence or because of culpable lapses, must suffer departmental
action. The above mechanism formulated would infuse seriousness
in the performance of investigating and prosecuting duties, and
would ensure that investigation and prosecution are purposeful and
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decisive. The instant direction shall also be given effect to within 6
months.”
19. We are of the considered opinion that in the kind of
materials present on the record, the impugned judgment is liable to
be set aside and we, accordingly, set aside the same.
20. We direct for sending a copy of this judgment to the
Department of Home, Government of Bihar to take appropriate
action against the I.O., who did not examine the injured witness
and did not make him a chargesheet witness. Further why the main
I. O. did not appear for his deposition and find out as to whether it
is a case of culpable negligence and then suitably act in terms of
the directions of the Hon’ble Supreme Court in the aforementioned
case. An action taken report be also sent to this Court within two
months from today.
21. The Respondent No. 2 is directed to surrender in the
court below within a period of four weeks from today. On his
surrender in the court below, his prayer for bail may be considered
by the trial court and he may be granted bail on furnishing bail
bond/sureties to the satisfaction of the learned trial court.
22. If Respondent No. 2 does not surrender within the
aforesaid period in the learned trial court, appropriate coercive
action shall be taken against him to procure his appearance and in
such circumstance, the benefit of the observations of this Court
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with regard to grant of bail to him shall not be available to
respondent no. 2.
23. Let the trial be expedited. The trial shall be
conducted de novo. Learned Principal District and Sessions Judge,
Bhojpur at Ara shall be the trial court. The learned trial court shall
exercise it’s power conferred under the erstwhile Section 311 of
the Code of Criminal Procedure (Now Section 348 of the Bhartiya
Nagarik Suraksha Sanhita (BNSS) to procure the statement of the
injured witness in course of trial.
24. This appeal is allowed.
(Rajeev Ranjan Prasad, J)
(Ramesh Chand Malviya, J)
lekhi/-
AFR/NAFR CAV DATE Uploading Date 05.03.2025 Transmission Date 05.03.2025
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