Patna High Court
Rambabu Yadav vs The State Of Bihar on 27 January, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1204 of 2023
Arising Out of PS. Case No.-59 Year-2021 Thana- SISWAN District- Siwan
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Rambabu Yadav, S/O Late Binda Yadav, R/O Village- Kisunbari, P.S- Siswan,
Distt.- Siwan.
... ... Appellant
Versus
1. The State of Bihar
2. Suresh Chauhan, S/O Indrajit Chauhan, R/O Village- Gabhirar, P.S-
Raghunathpur, Distt.- Siwan.
3. Amit Yadav, S/O Subedar Yadav, R/O Village- Kishunbari, P.S- Siswan,
Distt.- Siwan.
4. Dayal Sharan Singh, S/O Late Laxman Singh, R/O Village- Gabhirar, P.S-
Raghunathpur, Distt.- Siwan.
... ... Respondents
======================================================
Appearance :
For the Appellant : Mr. Ashok Kumar Mishra, Advocate
Mr. Ramesh Kumar, Advocate
Mr. Yeshoneel Ratnam, Advocate
Mr. Md. Rais, Advocate
For the State : Mr. Sujit Kumar Singh, APP
For the Resp Nos. 2 to 4 : Ms. Kumari Anupama, Advocate
Mr. Khalid Faizan, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 27-01-2025
Heard learned counsel for the appellant, learned counsel
for the respondent nos. 2, 3 and 4 and learned Additional Public
Prosecutor for the State.
2. This appeal has been preferred for setting aside the
judgment of acquittal dated 22nd September, 2023 (hereinafter
referred to as the 'impugned judgment') whereby and whereunder
the learned Additional District and Sessions Judge-VII Court
Patna High Court CR. APP (DB) No.1204 of 2023 dt.27-01-2025
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Siwan (hereinafter referred to as the 'learned trial court') has been
pleased to acquit respondent nos. 2, 3 and 4 of the charges under
Sections 302/34 and 120B of the Indian Penal Code (In short
'IPC') and Section 27 of the Arms Act in Sessions Trial No. 257 of
2021 (G.R. No. 782 of 2021) arising out of Siswan P.S. Case No.
59 of 2021.
Prosecution Case
3. The prosecution case is based on the written
application (Exhibit 'P-3') submitted by one Rambabu Yadav to
the Officer Incharge of Siswan Police Station under the District of
Siwan. In his written application, the informant alleged that on
22.02.2021
after 11:30 PM (night hours), his father who was
sleeping in the verandah of the house has been shot dead by some
unknown persons. In the morning at 4’O clock on 23.02.2021, his
wife Sabita Devi came outside her room and found that blood was
lying under the bed whereafter she started crying, thereafter the
neighbours assembled and they found on lifting the body that the
father of the informant had suffered firearm injury on his chest.
The informant has stated that he had gone to Delhi for check-up of
his eyes and in his house, his wife and daughter, only two
members of the family were present.
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4. On the basis of the written application of the
informant, Siswan P.S. Case No. 59 of 2021 was registered for the
offences alleged under Section 302/34 IPC and Section 27 of the
Arms Act. The endorsement made on the written application by
which the case has been registered has been marked Exhibit ‘P-6’
at the instance of the Investigating Officer (In short ‘I.O.’) who has
been examined as PW-5 in the instant case. Exhibit ‘P-6’ would
show that the case was registered on 25.02.2021 and the formal
FIR was made on 25.02.2021 at 06:00 PM.
5. After investigation, Police submitted chargesheet
against respondent nos. 2, 3 and 4 vide Chargesheet No. 68 of
2021 dated 31.05.2021 under the aforementioned Sections.
Cognizance was taken of the offences and the records were
committed to the court of Sessions for trial whereafter charges
were explained to the accused (respondent nos. 2, 3 and 4) who
denied the charges and claimed to be trial.
6. On behalf of the prosecution, oral as well as
documentary evidences were adduced, the details of which are
being provided hereunder in tabular form:-
List of Prosecution Witnesses
PW-1 Payal Kumari
PW-2 Dr. Rajni Kant
PW-3 Sabita Devi
Patna High Court CR. APP (DB) No.1204 of 2023 dt.27-01-2025
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PW-5 Arbind KumarList of Exhibits
Exhibit-P-1/PW2 P.M.R
Exhibit-P-2/PW2 Signature of PW-2 Dr. Rajni Kant
on Seizure list
Exhibit-P-3/PW4 Writing on Fardbeyan
Exhibit-P-4/PW5 FIR
Exhibit-P-5/PW5 Signature of SHO on the FIR
Exhibit-P-6/PW5 Pagination on the FIR
Exhibit-P-7/PW5 Inquest Report
Exhibit-P-8/PW5 Signature of the Police on Seizure
List
Exhibit-P-9/PW5 Writing on ChargesheetList of Defence Witnesses
DW-1 Rajesh Ram
DW-2 Bhola YadavFindings of the Learned Trial Court
7. The learned trial court having examined the evidences
on the record found that in this case, no prosecution witness has
seen the occurrence. It has been found on the basis of the materials
on the record that no prosecution witness has stated that Amit
Yadav (respondent no. 2) came to his/her house and fired. The
only witness who made a statement saying that Amit Yadav had
threatened the victim is the grand daughter of the victim, namely,
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Payal Kumari, who has been examined as Prosecution Witness No.
1. She has, however, stated in her cross-examination that Amit
Yadav had never said anything to her and her parents.
8. The learned trial court found that none of the
witnesses has stated that the accused persons had hatched any
conspiracy for committing the alleged occurrence, they had not
seen the accused persons either sitting together or talking with
each other and as such, the prosecution could not establish that any
of the ingredients of the offences punishable under Sections 120B
and 302/34 IPC is present. As regards the charge under Section 27
of the Arms Act, the learned trial court recorded a finding that no
witness had ever seen Amit Yadav (respondent no. 2) having a
pistol in his hand and firing from the same or killing Binda Yadav
(deceased) by the said pistol. In the circumstances, the learned trial
court held that the prosecution had failed to establish its case
beyond all reasonable doubts.
Submissions of the Appellant
9. Learned counsel for the appellant has though
submitted at first instance that the learned trial court has not
applied its judicious mind properly and has passed the impugned
judgment in mechanical manner, the present case was that of a
land dispute in which Amit Yadav (respondent no. 2) had given a
Patna High Court CR. APP (DB) No.1204 of 2023 dt.27-01-2025
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threat to the deceased, therefore, there are sufficient materials in
form of circumstantial evidences on the record to prove the
prosecution case but in course of argument, while going through
evidence of the prosecution witnesses, learned counsel for the
appellant would realise the weaknesses of the prosecution.
Submission of Respondent Nos. 2 to 4 and State
10. Learned counsel for the respondent nos. 2 to 4 as
well as learned Additional Public Prosecutor for the State have
jointly opposed this appeal. It is submitted that not only the
authenticity of the written application (Exhibit ‘P-3’) is
shrouded in mystery, the lodging of the FIR after about three
days of the occurrence after return of the informant from Delhi
would cast serious doubt over the authenticity of the first
information report. In their submission, there is an inordinate
delay in lodging of the first information report for no plausible
reason. It is evident from Exhibit ‘P-3’ that the wife and the
daughter of the informant were very much present in the house
and large number of villagers had also come to the place of
occurrence in the morning of 23.02.2021 at 04:00 AM, still no
FIR was lodged. It is submitted that the wife and the daughter of
the informant were not aware of the person who may have been
involved in the killing of Binda Yadav, therefore, no statement
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was made by them and only after return of the informant (PW-4),
the application was given to the police that too does not disclose
the name of the accused. The application does not say that the
deceased had been killed on account of any land dispute. No
suspicion has been raised against the respondent nos. 2 to 4 in the
application (Exhibit ‘P-3’).
11. It is submitted that in course of trial, neither the
informant nor his wife and daughter could depose as an eye
witness rather they have clearly stated that they had not seen
respondent no. 2 visiting their house on any earlier occasion. In
her examination-in-chief, Payal Kumari (PW-1) has stated that
there was a land dispute with Amit Yadav (respondent no. 2) and
he had threatened her Dadaji (deceased) but in her cross-
examination, she has stated that she had come to know about the
threat given to her Dadaji by Amit Yadav from her Dadaji but she
had not given this information to the police station.
Consideration
12. This Court finds from the findings recorded by the
learned trial court that the trial court has gone through the entire
evidence and only thereafter the impugned judgment has been
passed, however, we have carefully perused the evidences available
on the record once again.
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13. In this case, the prosecution witnesses, namely, PW-1,
PW-3 and PW-4 are the family members of the deceased. PW-4 is the
son of the deceased who was at Delhi at the time of occurrence. In
his examination-in-chief, he has stated that he returned home on
23.02.2021 at 10:30 PM whereafter he had taken the dead body of his
father to Siwan Sadar Hospital and after doing all formalities, he had
submitted the written application at the police station. He has further
stated that when he was returning to the house after submitting the
application, he got a secret information that his co-villager Amit
Yadav had called 4-5 persons and murdered his father. In his cross-
examination, he has stated that Amit Yadav is his co-sharer. He has
further stated that he had made statement on the basis of what he had
heard about the occurrence. He was suggested that Amit Yadav was
studying engineering and was living outside but he has been falsely
implicated only to damage his future. This suggestion was, though,
denied by PW-4 but it is evident from his deposition that he had not
seen the occurrence and he has not whispered any motive behind the
occurrence against Amit Yadav or any other accused. He has not even
disclosed as to from whom he heard that Amit had called 4-5 persons
and had murdered his father.
14. Payal Kumari (PW-1) is the grand daughter of the
deceased as stated above, she is the only witness who has stated that
there was a land dispute with Amit but in her cross-examination
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when she was asked that which land of her is in dispute with Amit
Yadav, this witness has stated that she is not aware of it and she has
further stated that her house and land are separated from that of the
house and land of Amit Yadav. She is also not an eye witness. In
paragraph ’21’ of her deposition, she has stated that neither she nor
her mother had given information to the police. She has stated that
police had arrived at the place of occurrence after half an hour to one
hour and police had taken statement of her mother whereafter the
police had recorded her statement and had taken away the dead body.
From the deposition of PW-1, it is crystal clear that the first version
of the prosecution story came from the mouth of the mother of PW-1
after the police arrived within one hour of the occurrence in the
morning at the place of occurrence itself but this first version of the
prosecution story has been suppressed. The informant came on
23.02.2021 at 10:00 PM whereafter he claims to have taken away the
body to Sadar Hospital but the post mortem report of the deceased
which has been proved as Exhibit ‘P-1’ by the Doctor (PW-2) would
show that the post mortem examination was conducted on 24.02.2021
at 01:30 PM and there was an entry wound charge margin with over
shaped wound of diameter 1/2″ on back side right skin of chest at the
level of T5 vertebra with inverted margin and exit wound present on
the left side of 5th intercostal space just lateral to sternum wound
diameter 3/4″ with everted margin. The Doctor (PW -2) has
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stated in his cross-examination that when a person is shot at from a
distance of 15-20 metres, it is called charge margin. The deceased
had only one entry and exit wound. The Doctor had recorded injury
caused by gunfire in the post mortem report. Daroga had written .315
bore on the seizure list. It is, thus, evident from the post mortem
report and the evidence of PW-2 that the deceased had suffered a
firearm injury caused by a gun using .315 bore cartridge.
15. The I.O. who has been examined as PW-5 had visited
the place of occurrence and found that the blood had fallen down
beneath the cot whereafter he claims to have recorded the statement
of the witnesses. It is evident from the evidence of the I.O. (PW-5),
the informant (PW-4) and the Doctor (PW-2) that in this case, the
written application was submitted by PW-4 only after the post
mortem had already been conducted on the dead body. In fact, the
FIR has been registered on 25.02.2021 at 06:00 PM i.e. after about
18 hours of the post mortem.
16. The wife of the informant who has been examined as
PW-3 and was present in the house, has stated that when she got
awaken in the morning at 4’O clock and came outside her house and
went to awake her father-in-law Binda Yadav then she found blood
had fallen down beneath his cot. It seems difficult to believe that the
assailants entered into the house of the informant at 11:00 PM, shot
dead Binda Yadav in his room by firing from a gun and then went
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away but during all this period, neither PW-1 nor PW-3 could get
awaken from the sound of firing inside the house. This also seems
peculiar that the police having reached the place of occurrence within
one hour and despite recording the statement of the wife of the
informant did not lodge the first information report and the first
information report has been lodged on the basis of a written
application submitted by PW-4 who arrived from Delhi in the night
hour of 23.02.2021 and even thereafter it took about 18 hours from
the time of post mortem in recording of the first information report.
17. In the opinion of this Court, it is a case of no evidence
and the learned trial court has rightly appreciated the evidences
available on the record. This being an appeal against acquittal, we
would not interfere with the impugned judgment.
18. This appeal has no merit. It is dismissed.
(Rajeev Ranjan Prasad, J)
( Ramesh Chand Malviya, J)
SUSHMA2/-
AFR/NAFR CAV DATE Uploading Date 29.01.2025 Transmission Date 29.01.2025
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