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Jharkhand High Court
Satyendra Choubey vs The State Of Bihar on 8 July, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:19134-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B) No. 190 of 1994 (R)
(Against the judgment of conviction and the order of sentence both dated
30.11.1994 passed by the learned 4th Addl. Sessions Judge, Palamu,
Daltonganj in Sessions Trial No. 228 of 1991)
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1. Satyendra Choubey
2. Vinod Kumar Choubey
3. Virendra Kumar Choubey
All sons of Raj Kumar Choubey, R/o village Sursuria, Police Station-
Nagar Untari, District-Garhwa
..... ....... ... Appellants
Versus
The State of Bihar ... ... Respondent
With
Cr. Appeal (D.B) No. 114 of 2013
(Against the judgment of conviction dated 13.02.2013 and the order of
sentence dated 19.02.2013 passed by the learned Addl. Sessions Judge-1st,
Garhwa in S.T. No. 32 of 1999)
Deo Kumar Chaubey, son of late Arjun Choubey, r/o village-Sulsulia, PO
& PS-Nagar Untari, District-Garhwa ....... ... Appellant
Versus
The State Jharkhand ... ... Respondent
With
Cr. Appeal (SJ) No. 483 of 2013
1. Sumant Chaubey S/o Deo Kumar Chaubey
2. Rajendra Chaubey S/o Deo Kumar Chaubey
Both residents of village-Sulsuliya, PO & PO-Nagar Untari, District-
Garhwa ....... ... Appellants
Versus
The State of Jharkhand ... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
-------
For the Appellants : Mr. B.M. Tripathi, Sr. Advocate
[in Cr. Appeal (DB) No.190 of 1994]
Mr. Jai Shankar Tripathy, Advocate
Ms. Nazia Rashid, Advocate
[in Cr. Appeal (DB) Nos.114 of 2013 & 483 of 2013]
For the State : Mr. Satish Prasad, APP
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C.A.V on 10.06.2025 Pronounced on 08/07/2025
Per Sujit Narayan Prasad, J.
1. These criminal appeals filed under section 374 (2) of the Cr.P.C
are linked together as these are arisen out of the same occurrence
wherefrom case and counter-case were instituted by the parties against
each other.
2. At the outset, it needs to mention here that one of the appellants,
namely, Raj Kumar Choubey in Criminal Appeal No.190 of 1994 (R), had
died during the pendency of the appeal and vide order dated 27.02.2023
Criminal Appeal No.190 of 1994 (R) qua the appellant, namely, Raj
Kumar Choubey stands abated.
3. Criminal Appeal (DB) No.190 of 1994 is directed against the
judgment of conviction and the order of sentence both dated 30.11.1994
passed by the learned Addl. Sessions Judge, Palamu, Daltonganj in
Sessions Trial No. 228 of 1991 whereby and whereunder the appellants,
above-named, have been convicted under sections 452, 341, 307/34,
302/34 of the IPC and sentenced to undergo imprisonment for life under
section 302/34 of the IPC. They are further sentenced to undergo RI for 7
years each under section 307/34 IPC. They are further sentenced to
undergo RI for 3 years each for other offence under section 452 IPC. The
appellant, namely, Satyendra Choubey has also been convicted under
section 27 of the Arms Act and sentenced to undergo RI for 3 years for
the offence under section 27 of the Arms Act. All the sentences shall run
concurrently.
4. Criminal Appeal (DB) Nos.114 of 2013 and 483 of 2013 are
directed against the conviction dated 13.02.2013 and the order of sentence
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dated 19.02.2013 passed by the learned Addl. Sessions Judge-1st, Garhwa
in S.T. No. 32 of 1999 whereby and whereunder the appellants, above-
named, have been convicted under sections 323 IPC. The convict-
appellant, namely, Deo Kumar Chaubey in Criminal Appeal (DB) No. 114
of 2013 has also been convicted under section 304(1) IPC.
5. While convicting the appellants of the Cr. Appeal (SJ) No. 483
of 2013, the learned trial Court has opined that since the appellants,
namely, Sumant Kumar Chaubey and Rajendra Kumar Chaubey are first
offenders as not previous conviction has been proved on record against
them, as such, they have been granted benefit of the Probation of
Offenders Act and they were directed to be released on furnishing a
probation bond of Rs.5000/- with two sureties which will be for
maintaining good conduct for two years.
6. While sentencing the sole appellant of the Cr. Appeal (DB) No.
114 of 2013, namely, Deo Kumar Chaubey the learned trial Court has
awarded sentence to undergo RI for 10 years under section 304(1) of the
Indian Penal Code with a fine of Rs.5,000/- under section 323 IPC and in
default of payment of fine, he is directed to undergo SI for 1 month.
7. Before adverting to the merit of the instant appeal, it would be apt to
refer herein that this Court is conscious with the settled position of law
that the fair procedure to adopt in a matter like the present case where
there are cross cases and in the such type of cases, the same learned Judge
must try both the cross cases one after the another and after the recording
of evidence in one case is completed, he must hear the arguments but he
must reserve the judgment. Thereafter he must proceed to hear the cross
case and after recording all the evidence he must hear the arguments but
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reserve the judgment in that case. The same learned Judge must thereafter
dispose of the matters by two separate judgments. In deciding each of the
cases, he can rely only on the evidence recorded in that particular case.
The evidence recorded in the cross case cannot be looked into. Nor can
the judge be influenced by whatever is argued in the cross case. Each case
must be decided on the basis of the evidence which has been placed on
record in that particular case without being influenced in any manner by
the evidence or arguments urged in the cross case. But both the judgments
must be pronounced by the same learned Judge one after the other.
Reference in this regard may be taken from the judgment rendered by the
Hon’ble Apex Court in the case of Nathi Lal v. State of U.P., 1990 Supp
SCC 145.
8. The Hon’ble Apex Court in the case of Sudhir v. State of M.P.,
(2001) 2 SCC 688 had reiterated the same view as aforesaid and has
observed that “it is a salutary practice, when two criminal cases relate to
the same incident, they are tried and disposed of by the same court by
pronouncing judgments on the same day. Such two different versions of
the same incident resulting in two criminal cases are compendiously called
“case and counter-case” by some High Courts and “cross-cases” by some
other High Courts. Way back in the nineteen hundred and twenties a
Division Bench of the Madras High Court (Waller and Cornish, JJ.) made
a suggestion (Goriparthi Krishtamma, In re [1929 MWN 881] that “a case
and counter-case arising out of the same affair should always, if
practicable, be tried by the same court; and each party would represent
themselves as having been the innocent victims of the aggression of the
other”.
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9. Thus, it is settled connotation of law that each case must be
decided on the evidence recorded in it and evidence recorded in another
case cannot be taken into account in arriving at the decision. The Court
ought to have decided the appeal before it only on the basis of the evidence
recorded in the present case and ought not to have allowed itself to be
influenced by the evidence recorded in the cross-case.
10. It is apparent from record that there was a running feud between
two groups of the family which resulted in clash between these groups on
the same day in the same transaction culminating in filing of FIR and
complaint by the respective groups.
11. These two cases based upon FIR and complaint were
investigated separately leading to two separate criminal trials. The trials
proceeded separately though the two incidents were interconnected.
Ordinarily, these two trials ought to have been tried by the same Judge or
Court for better appreciation of the evidence and consistency in the
decisions in the trials as observed by this Court in Sudhir v. State of
M.P. (supra) and Nathi Lal v. State of U.P. (supra).
12. However, the trial proceeded separately resulting in two different
outcomes in which one group of accused were convicted for committing
murder of the deceased (daughter of the appellant namely Deo Kumar
Chaubey, appellant in Cr. Appeal (DB) No. 114 of 2013) and in the other
case, the other group of accused were convicted under Section 323 and
further one of the accused namely Deo Kumar Chaubey, appellant in Cr.
Appeal (DB) No. 114 of 2013 has been convicted for the culpable
homicide not amounting to murder for his own daughter (deceased) and
accordingly, sentenced under section 304(1) of the IPC.
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13. Thus, it is evident from the record that herein FIR and complaint
were lodged by the two disputing groups of the family relating to the same
transaction on the same day giving their own versions of the incident .
Therefore, we must proceed to consider whether, on the evidence recorded
in each case, the conviction and sentence recorded against the appellants
can be sustained.
14. This Court taking in to consideration the peculiar fact and
circumstances of the instant appeals is of the considered view that in the
ends of the justice it would be apt to consider the merit of these appeals
separately one by one.
Factual Matrix (in Criminal Appeal (DB) No.190 of 1994 (R)
15. The prosecution story of Criminal Appeal (DB) 190 of 1994(R)
in brief as per the allegation made in the fardbayan by the informant-Deo
Kumar Chaubey reads as under:
16. The prosecution case was instituted on the fardbayan of Deo
Kumar Chuabey recorded on 21.02.91 at 6.30 PM in the house of the
informant at village Sulsuliya is that on the same day at 12 o’clock the
informant was going to village Sonpurwa where a Yagya was being
performed. However, when he reached near his wheat field (plot no.1
situated towards east of his house, he saw his two nephews namely
accused Binod Kumar Chaubey and Birendra Kunar Chaubey son of
accused Raj Kumar Chaubey getting his wheat crops grazed through their
buffalo. The informant protested to it, but they did not listen and extended
threat to assault him.
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17. It has further been alleged that in the meantime, accused
Rajkumar Chaubey who is elder brother of the informant also came out
of his house and instigated his two sons to assault the informant. The
Informant, thereafter, fled away and took shelter in the house of
Kameshwar Chaubey, a co-villager. However, accused Raj Kumar
Chaubey, Binod Kumar Chaubey and Birendra Chaubey chased him and
reached at the darwaja of Kameshwar Choubey. There was no male
member in the house of Kameshwar Chaubey. The wife of Kameshwar
Chaubey requested them with folded hands to get away.
18. In the meantime, co-villager Uday Chaubey (P.W.9) also
reached there and he also requested the accused persons to go away.
Thereafter, the aforesaid three accused persons returned back to their
house. After two hours, the informant came out of the house of
Kameshwar Chaubey and went to his house. It is stated that after 10 to 15
minutes when he was sitting on a khatiya (cot), in the main entrance of his
house, at about 2.30 to 3 P.M., all the four accused, namely, Raj Kumar
Chaubey and his three sons namely Binod Chaubey, Satyendra Chaubey
and Birendra Chaubey entered into his house through the main door.
19. Accused Satyendra Chaubey was armed with a revolver whereas
remaining three accused were armed with lathi. Seeing the accused
persons, the informant went in the Angan of the house. However, all the
four accused also followed him and came in the Angan whereas accused
Raj Kumar Chaubey caught him and accused Satyendra Kumar Chaubey
and Binod Chaubey began assaulting him with fists and slaps. Accused
Raj Kumar Chaubey ordered other accused to enter into northern room of
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the house and to see the valuables. Thereupon, accused Birendra Chaubey
entered into the northern room of the house and took out Rs.5000/-which
was kept in a tin box in the said room. It is stated that thereafter the accused
persons dragged him and brought him in the main entrance dhaba of the
house where accused Birendra Chaubey and Binod Chaubey tried to
assault him with lathi, but the blow of lathi was obstructed by the roof of
the house. The informant, therefore, did not sustain lathi injury.
20. In the meantime, accused Raj Kumar Chaubey gave order to kill
the informant with the revolver. Thereupon, Satyendra Chaubey opened
fire from his country made revolver with intent to kill the informant. But,
the fire missed the target and hit Nirmala Kumari near her left ear. She fell
down and died instantly. The accused persons, thereafter took to their
heels and while fleeing away, accused Rajkumar Chaubey @ Khokhan
Chaubey left his wooden slipper of left leg and spectacle at the place of
occurrence. Accused Satyendra Chaubey also fled away living his pink
colour lungi and accused Binod Chaubey left sky colour hawai slipper.
21. On the basis of the aforesaid fardbeyan, a case being Nagar
Untari PS Case No.24/91 dated 21.2.91was instituted under sections 452,
341, 323 380, 307, 302/34 of the IPC and 27 Arms Act.
22. After investigation, the police submitted the charge sheet against
the appellants for the offences under sections 452, 341, 323, 307, 302/34
IPC and under Section 27 Arms Act, thereafter, the case was committed
to the court of Sessions. The statements of the appellants were recorded
under Section 313 of Cr.P.C.
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23. Accordingly, the trial proceeded and the appellants were found
guilty by the learned trial Court for committing murder of the daughter of
the informant (appellant in Cr. Appeal (DB) No. 114 of 2013) namely
Nirmala Kumari and has been convicted for the offence under Section 452,
341, 307/34, 302/34 of the IPC and sentenced to undergo imprisonment
for life under section 302/34 of the IPC. They are further sentenced to
undergo RI for 7 years each under section 307/34 IPC. They are further
sentenced to undergo RI for 3 years each for other offence under section
452 IPC. The appellant, namely, Satyendra Choubey has also been
convicted under section 27 of the Arms Act and sentenced to undergo RI
for 3 years for the offence under section 27 of the Arms Act. The aforesaid
order of conviction and sentence is under challenge herein.
Factual Matrix [in Criminal Appeal (DB) No.114 of 2013 with
Criminal Appeal (SJ) No.483 of 2013
24. As mentioned above, since these criminal appeals are arising out
of case and counter-case and, as such, the facts in brief are similar to the
facts of Criminal Appeal (DB) No.190 of 1994 (R) as the instant case has
been lodged after filing of protest complaint petition(Ext.B) in the Court
of ACJM, Garhwa by the informant Raj Kumar
Chaubey(appellant/accused in Cr. Appeal (DB) No. 190 of 1994).
25. In the complaint-cum-protest petition, it is alleged that on
21.02.91 at about 01.30 PM bullock of the complainant (accused/appellant
in Criminal Appeal (DB) No.190 of 1994 (R)) had grazed the wheat crops
of the accused Deo Kumar Chaubey (appellant in Cr. Appeal (DB) No.
114 of 2013) from his field. Deo Kumar Chaubey @ Onkar Chaubey,
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armed with Licence gun, went to the wheat field and started to abuse. The
complainant came out of his house and told him that what loss has been
caused to him, he is ready to pay or he may produce the ox in the Kanji
house, The accused became furious and went to his house abusing the
complainant.
26. On the same day at about 02.00 P.M., the accused Deo Kumar
Chaubey @ Onkar Chaubey, his son Rajendra Chaubey @ Susu Chaubey,
Sumant Chaubey and his wife Shardha Devi came at the door of the
complainant and started to abuse him. when the complainant came out of
his house and tried to get understand them, the accused Deo Kumar
Chaubey pointed the gun upon him.
27. In the meantime, one of the sons of Deo Kumar Chaubey
assaulted him from the back side on his head and he fell down. All three
accused persons brought the complainant on their door and after pulling
him. When Binod Chaubey, Birendra Chaubey (sons of the complainant)
saw him they came there and tried to save their father.
28. In the meantime, a fire took place from the gun of Deo Kumar
Chaubey, which hit Nirmala Kumari, the daughter of the accused Deo
Kumar Chaubey. The accused persons started to see Nirmala Kumari. In
the meantime, both the sons of the complainant brought him to their house.
The complainant in the injured condition went to the P.S. Nagar Untari.
He got his treatment in the Hospital.
29. The accused had lodged the case against complainant and his two
sons of which G.R. No. 136/91. The complainant and his sons were
remanded to jail custody. The licence gun of, accused Deo Kumar
Chaubey was examined and it was found that recent fire was done from
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the gun. The police did not register the F.I.R., when the complainant
reached Nagar Untari Police station at 03.00 PM, his statement was
recorded in the night at about 11.00 PM which was not correct.
30. In this case on the basis of the fardbeyan recorded by police at
about 23 hours on 21.02.91 on the statement of Raj Kumar Chaubey, G.R.
Case No. 137/91 was instituted u/s 341 and 323 I.P.C. and 27 Arms Act.
But when the informant Raj Kumar Chaubey found that his case has been
not been written correctly by the police, he filed protest petition on which
cognizance of the offence was taken. Arter issuance or the summons to
the accused persons and after appearance of the accused persons, the case
was committed to the court of sessions.
31. Accordingly, the trial proceeded and the appellants were found
guilty by the learned trial Court and the appellants, above-named, have
been convicted under sections 323 IPC. Further, the convict-appellant,
namely, Deo Kumar Chaubey in Criminal Appeal (DB) No. 114 of 2013
has also been convicted under section 304(1) IPC and sentenced
accordingly. The aforesaid order of conviction and sentence is under
challenge herein.
Submission of the learned senior counsel for the appellants [in Cr.
Appeal (DB) No.190 of 1994 (R):
32. Mr. B.M. Tripathi, the learned senior counsel for the appellants
has taken the following grounds for interfering with the finding recorded
by the learned trial Court in the impugned judgment:
(i) There is no specific attributability, as per the evidence adduced on
behalf of the prosecution, brought on record so far as the appellants,
11
2025:JHHC:19134-DBnamely, Satyendra Choubey, Vinod Kumar Choubey and Virendra
Kumar Choubey are concerned.
(ii) The conviction is based upon the consideration of the testimony of
all the witnesses together and the learned trial Court has found the
prosecution version to be in corroboration by taking the testimony of all
the witnesses, but while doing so the testimony of the doctor who has
been examined as PW10, as also the Investigating Officer who has not
supported the ballistic report has not been taken into consideration, as
P.W.10 doctor has specifically stated that the material recovered from
the wounds of deceased were constituent of 12 bore cartridges which
is used in gun firing and they are not used in revolver or pistols. Further
the bullet has said to be fired from the country made pistol but there is
no reference of recovery of any country made pistol in the seizure memo
rather one licensee gun has been recovered.
(iii) It has been submitted that the pellet which has been found from
the body of the deceased has not been fired from the country made pistol
thus, the entire prosecution version as recorded in the FIR wherein it
has been reported that the pellet has been fired from the country made
pistol itself vitiate the entire prosecution version.
(iv) Further, P.W.7 Gopal Mishra have not been believed by the trial
court and Rajendra Choubey (P.W.6) who is the son of the informant,
has been tendered, as such in the aforesaid circumstances the
prosecution story is not fit to be acceptable.
(v) From the deposition of Investigating Officer (P.W.15) his
description of the place of occurrence and the manner of occurrence
12
2025:JHHC:19134-DBalleged by informant are not consistent with the story of the Informant
given in the fardbeyan wherein it has been alleged that the shot fired,
hit on the temple of Nirmala Kumari, no pellet or marks of firing was
found on the wall or the door in which direction of the firing is said to
have been done.
(vi) Further, the prosecution has failed to explain the injuries on the
appellant namely Raj Kumar Choubey which casts grave doubt on the
prosecution story specially when the said appellant was examined on
police requisition at 4 P.M on 21.02.1991.
(vii) Further on perusal of entire evidence it will be evident that none
of the prosecution witness has stated about the premeditation among the
accused/appellants and further no evidence has been brought on record
in order to establish the common intention among the accused
appellants, therefore the application of Section 34 IPC against all the
appellants amounts miscarriage of justice.
(viii) The learned senior counsel has taken the ground that when there
is a case and counter-case for the same transaction and there is two
different trial and in one trial conviction under section 302 of the IPC
and in other under section 304 (1) of the IPC and since it is a case of
single murder and as such the conviction is either would be under
section 302 IPC or section 304 (1) and both cannot go together reason
being that if the accusation is against the present appellants based upon
that the conviction is there under section 302/34 of IPC then what
purpose the conviction is there under section 304 (1) IPC against Deo
13
2025:JHHC:19134-DBKumar Choubey, the appellant in Criminal Appeal (DB) No.114 of
2013.
(ix) The learned senior counsel based upon the aforesaid grounds has
submitted that the prosecution has primarily failed in establish the
charge said to be proved beyond all reasonable doubt and, as such, the
judgment of conviction passed by the learned trial Court convicting the
appellants, namely, Satyendra Choubey, Vinod Kumar Choubey and
Virendra Kumar Choubey under sections 302/34 and 307/34 of the
Indian Penal Code and under other section of IPC, therefore, is fit to be
quashed and set aside.
Submission of the learned counsel for the appellants [in Criminal
Appeal (DB) No.114 of 2013 with Criminal Appeal (SJ) No.483 of
2013]:
33. While assailing the judgment of conviction and sentence, Mr.
Jai Shankar Tripathi, the learned counsel appearing in both the appeals has
taken up the ground that the prosecution version as recorded in the FIR,
subject matter of Criminal Appeal (DB) No.190 of 1994 (R) is also
required to be taken into consideration wherein the prosecution version is
that the pellet has been fired from the country made pistol while the
recovery is of a licensee gun belongs to Deo Kumar Chaudhary, one of the
appellants in these appeals, but admittedly the pellet which has been
recovered from the body of the deceased has not been fired from the said
licensee gun.
34. Learned trial Court has failed to take into consideration that this
very occurrence the father of the deceased namely, Deo Kumar Choubey
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has been convicted by the learned trial Court, which is apparently a
mechanical order and judgment because for one murder there cannot be
two different accused when there is case and counter case as such this case
is nothing but abuse of the process of the court.
Submission of the learned APP for the State
35. The learned APP for the state has refereed factual aspects of the
involved in the instant appeals that FIR and complaint were lodged by
the two disputing groups of the family relating to the same transaction on
the same day giving their own versions of the incident and the trial
proceeded separately being Sessions Trial No. 228 of 1991 and Sessions
Trial No. 32 of 1999 resulting in two different outcomes in which one
group of accused (appellants in Criminal appeal (DB) No.190 of
1994)were convicted for committing murder of the deceased (daughter of
the appellant namely Deo Kumar Chaubey, appellant in Cr. Appeal (DB)
No. 114 of 2013) and in the other case, the other group of accused
(appellant in Cr. Appeal (DB) No. 114 of 2013 and appellants Cr. Appeal
(SJ) No. 483 of 2013) convicted under Section 323 and further one of the
accused namely Deo Kumar Chaubey [informant in the Cr. appeal (DB)
No. 190 of 1994 (R)] has been convicted for the culpable homicide not
amounting to murder for his own daughter (deceased) and accordingly,
sentenced under section 304(1) of the IPC, has fairly submitted that since
herein case and counter case and for one murder there is two different
accused as such the instant appeals should be decided as per the wisdom
of the Court.
Analysis
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36. We have heard learned counsel for the parties, perused the
documents available on record as also the finding recorded by the trial
Court in the impugned judgment.
37. We have also gone through the testimonies of the witnesses as
available in the Trial Court Records as also the exhibits appended
therewith.
38. This Court, before considering the argument advanced on behalf
of the parties would like to discussed the settled connotation of law.
39. It needs to refer herein that the Hon’ble Apex Court in catena of
decision has propounded the proposition that in the criminal trial, there
cannot be any conviction if the charge is not being proved beyond all
reasonable doubts, as has been held in the case of Rang Bahadur Singh
& Ors. Vrs. State of U.P., reported in (2000) 3 SCC 454, wherein, at
paragraph-22, it has been held as under:-
“22. The amount of doubt which the Court would entertain
regarding the complicity of the appellants in this case is much
more than the level of reasonable doubt. We are aware that
acquitting the accused in a case of this nature is not a matter of
satisfaction for all concerned. At the same time we remind
ourselves of the time-tested rule that acquittal of a guilty person
should be preferred to conviction of an innocent person. Unless
the prosecution establishes the guilt of the accused beyond
reasonable doubt a conviction cannot be passed on the accused.
A criminal court cannot afford to deprive liberty of the appellants,
lifelong liberty, without having at least a reasonable level of
certainty that the appellants were the real culprits. We really
entertain doubt about the involvement of the appellants in the
crime.”
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40. Likewise, the Hon’ble Apex Court in the case of Krishnegowda
& Ors. Vrs. State of Karnataka, reported in (2017) 13 SCC 98, has held
at paragraph-26 as under:-
“26. Having gone through the evidence of the prosecution
witnesses and the findings recorded by the High Court we feel
that the High Court has failed to understand the fact that the guilt
of the accused has to be proved beyond reasonable doubt and this
is a classic case where at each and every stage of the trial, there
were lapses on the part of the investigating agency and the
evidence of the witnesses is not trustworthy which can never be a
basis for conviction. The basic principle of criminal
jurisprudence is that the accused is presumed to be innocent until
his guilt is proved beyond reasonable doubt.”
41. Further, the principle of ‘benefit of doubt’ belongs exclusively to
criminal jurisprudence. The pristine doctrine of ‘benefit of doubt’ can be
invoked when there is reasonable doubt regarding the guilt of the accused,
reference in this regard may be made to the judgment rendered by the
Hon’ble Apex Court in the case of State of Haryana Vrs. Bhagirath &
Ors., reported in (1999) 5 SCC 96, wherein, it has been held at paragraph-
7 as under: –
“7. The High Court had failed to consider the implication of the
evidence of the two eyewitnesses on the complicity of Bhagirath
particularly when the High Court found their evidence reliable.
The benefit of doubt was given to Bhagirath “as a matter of
abundant caution”. Unfortunately, the High Court did not point
out the area where there is such a doubt. Any restraint by way of
abundant caution need not be entangled with the concept of the
benefit of doubt. Abundant caution is always desirable in all
spheres of human activity. But the principle of benefit of doubt
belongs exclusively to criminal jurisprudence. The pristine
doctrine of benefit of doubt can be invoked when there is
reasonable doubt regarding the guilt of the accused. It is the
reasonable doubt which a conscientious judicial mind entertains
on a conspectus of the entire evidence that the accused might not
have committed the offence, which affords the benefit to the17
2025:JHHC:19134-DBaccused at the end of the criminal trial. Benefit of doubt is not a
legal dosage to be administered at every segment of the evidence,
but an advantage to be afforded to the accused at the final end
after consideration of the entire evidence, if the Judge
conscientiously and reasonably entertains doubt regarding the
guilt of the accused.”
42. Likewise, the Hon’ble Apex Court in the case of Krishnegowda
v. State of Karnataka (Supra) at paragraph32 and 33 has held as under:-
“32. — — The minor variations and contradictions in the
evidence of the eyewitnesses will not tilt the benefit of doubt in
favour of the accused but when the contradictions in the evidence
of the prosecution witnesses proves to be fatal to the prosecution
case then those contradictions go to the root of the matter and in
such cases the accused gets the benefit of doubt. 33. It is the duty
of the Court to consider the trustworthiness of evidence on
record. As said by Bentham, “witnesses are the eyes and ears of
justice.— –
43. It needs to refer herein that The Hon’ble Apex Court, in the case
of Allarakha K. Mansuri v. State of Gujarat reported in (2002) 3 SCC 57
has laid down the principle that the golden thread which runs through the
web of administration of justice in criminal case is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of
the accused and the other to his innocence, the view which is favourable
to the accused should be adopted, for reference, paragraph 6 thereof
requires to be referred herein which reads hereunder as :-
“6. ——The golden thread which runs through the web of
administration of justice in criminal case is that if two views are
possible on the evidence adduced in the case, one pointing to the
guilt of the accused and the other to his innocence, the view which
is favourable to the accused should be adopted. –”
44. It needs to refer herein before laying down the aforesaid view,
the Hon’ble Apex Court in the case of Sharad Birdhichand Sarda v. State
18
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of Maharashtra reported in (1984) 4 SCC 116 has already laid down the
same view at paragraph 163 which is required to be referred which read
hereunder as
“163. We then pass on to another important point which seems to
have been completely missed by the High Court. It is well settled
that where on the evidence two possibilities are available or open,
one which goes in favour of the prosecution and the other which
benefits an accused, the accused is undoubtedly entitled to the
benefit of doubt.—“
45. In the backdrop of the aforesaid settled legal position this Court
is now proceeding to consider the testimonies of witnesses which have
been recorded by the learned trial Court.
Criminal appeal (DB) No.190 of 1994
46. It is evident from record that in order to substantiate the case, the
prosecution had altogether examined 15 witnesses and they were PW1-
Sumant Kumar Chaubey, PW2-Shardha Devi, PW3-Ramgati Chaubey,
PW4- Parma Singh, PW5- Ramdeo Singh, PW6-Rajendra Kumar
Chaubey, PW7- Gopal Misir (claimed to be an eye witness), PW8-Ram
Charitra Choubey, PW9-Uday Shankar Choubey, PW10- Dr. Indreshwar
Tiwary (who conducted postmorotem over the body of the deceased),
PW11-Hawildar Mauleshwar Singh, PW12-Deo Kumar Choubey, PW13-
Dr. Sita Ram Gupta (who examined PW-12, the injured witness Deo
Kumar Choubey), PW14-Biswas Topno and PW15-Iswari Dayal (the
Investigating Officer).
19
2025:JHHC:19134-DB
47. At this juncture it would be purposeful to discuss the testimony
of prosecution witnesses in order to answer the issues as referred in the
preceding paragraphs.
48. PW1 Sumant Kumar Choubey has deposed that on 21.2.91 at
about 2.30 P.M. he was sitting inside his house in the dhawa. His father
was sitting in the southern dhawa. His brother Rajendra Chaubey,
deceased sister Nirmala and mother Shardha Devi were also with him. He
supported the fact that all the accused persons entered into his house.
Seeing them, his father ran into his angan. However, they chased his father
and also went into the angan. Accused Satyendra
Chaubey was armed with a country made pistol whereas other three
accused were armed with lathi. Accused Raj Kumar Chaubey caught his
father and rest three accused began assaulting him with fists and slaps. He
has, thereafter, deposed on the point of theft of Rs.5000/-. Accused
persons, thereafter, dragged his father to the outer dhawa. However, all
the inmates also followed them. The accused persons assaulted his father
with lathi. He has also asserted that Nirmala Kumari had put her arm
around the body of his father. Thereafter, at the instance of accused Raj
Kumar Chaubey, Satyendra Chaubey opened fire with his country made
revolver. His father took a turn giving a jolt and the fire hit Nirmala
Kumari near her left ear as a result of which she died. The accused persons,
thereafter, fled away. He has also stated that the accused persons went
away leaving some of their belongings.
49. Attention of this witness has been drawn towards his earlier
statement before the police in his cross-examination. It appears from para
20
2025:JHHC:19134-DB56 of the cross-examination of the Investigating Officer (P.W.15) that this
witness had not stated before the police that Rajendra Chaubey, Nirmala
Kumari and Sharda Devi were also sitting with him. She had also not
stated that on seeing the accused, his father rushed into the angan. He had
also not stated that accused Raj Kumar Chaubey caught his father and rest
accused assaulted him with fists and slaps. However, he has states that all
the four accused were assaulting his father in the angan. As stated earlier,
this witness has not stated about the factum of theft before the
Investigating Officer. However, in paragraph 16 of his cross-examination,
this witness asserted that when the accused persons entered into his house,
he along with his mother, brother and sister were present in the inner
western dhawa of the house. In para 17 of the cross-examination, he stated
that on hearing the foot-steps he came in the southern portion of the
western dhawa where his father was sitting. In para 19 of the cross-
examination, he asserted that after seeing the accused persons, his father
ran into the angan. The accused persons also followed his father. In para-
21 of the cross-examination, he has again stated that Satyendra Choubey
was armed with a country made revolver whereas others were armed with
lathi. This witness has, thereafter, supported the entire prosecution story
in his cross-examination, he has supported the fact that his father sustained
lathi injuries and he was taken in the northern portion of the western dhawa
by the accused persons. In para 26 and 27 of the cross-examination, he
again asserted that when accused Raj Kumar Chaubey gave order to open
fire, his father was standing inside the main entrance door with his face
towards south. His sister Nirmala had put her arms around informant’s
waist and was standing left to her father. This witness, his mother and
21
2025:JHHC:19134-DBbrothers were also standing in the same dhawa. In para 30 of the cross-
examination, he has stated that accused Satyendra Chaubey pressed his
revolver of the chest of his father, but his father took a turn towards west
and deceased Nirmala, came in front of the accused and sustained the fire
arm injury near her left ear. In paragraph- 32 of the cross-examination he
has stated that firing was made from point blank range.
50. PW2 Sardha Devi is wife of the informant (the mother of the
deceased) who is said to be an eye witness and at the time of occurrence
she was standing there. She has fully supported the prosecution version.
She has deposed that on 21.2.91 at 2 PM her husband (informant) was
sitting in the southern portion of the western dhawa when all the four
accused persona entered into her house. Her husband went inside the
angan but the accused persons also chased him. Accused Satyendra
Choubey was armed with a revolver whereas other were armed with lathi.
They assaulted her husband with fists and slaps. She tried to pacify them,
but she was also pushed. She has also narrated the story of theft of cash.
She has further deposed that the accused persons thereafter dragged her
husband to the southern portion of the western dhawa. The accused
persons were also assaulting him with lathi, but the blow of lathi was
obstructed by the celling of the roof. The accused persons, thereafter, took
her husband to the northern portion of the western dhawa where Raj
Kumar Chaubey ordered Satyendra Chaubey to shoot her husband. she has
also stated that when Satyendra Choubey pointed his country made
revolver towards her husband, her husband turned towards right and
deceased Nirmala came in front and sustained fire arm injury near her left
22
2025:JHHC:19134-DBear. She fell down and died. Thereafter, the accused persona fled away
leaving some of their belongings. I
51. In the cross-examination, she has stated that when the accused
persons entered into her house, she was sitting in her inner dhawa which
was situated west of her angan. She has further stated that after seeing the
accused persons, her husband ran towards the angan. The accused persons
also followed him there. In paragraph 13 of the cross-examination, she has
stated that when shooting took place, her husband was at a distance of 3
ft. from the main entrance door of the house and the accused persons were
standing close south of him. In para-14 she also supported the prosecution
story that deceased was standing left of her husband and she and other
witnesses were standing towards west.
52. In the cross-examination, P.W.2 has asserted that she had raised
hulla, but nobody turned up at the place of occurrence. In para 30 of the
cross-examination, she has stated that there was a chauki towards south of
the dead body and there was a khatiya adjacent south of the chauki over
which cover of Tosak was kept. She has denied the suggestion that at the
time of occurrence, deceased was standing about 4 to 5 ft. north east from
her father. In para 32 she has also denied a suggestion that her husband
brought accused Raj Kumar Chaubey from his house and at that time she
and her sons were also accompanying her husband. She has further denied
that subsequently accused Birendra Chaubey and Binod Chaubey also
came to rescue their father when the informant stood over the chauki (bed)
which was kept in the northern dhawa and pressed his licencee gun
towards accused Raj Kumar, but in the meantime accused Birendra
23
2025:JHHC:19134-DBChoubey turned the barrel of the gun towards east as a result of which the
fire hit Nirmala, who was standing at à distance of 4 to 5 ft. north east
from her father.
53. PW3-Ram Gati Choubey is a hearsay witness who was not
present at the place of occurrence. He has put her signature over the
inquest report and seizure memo. He has stated that the Investigating
Officer has not searched the house of the accused Raj Kumar Choubey in
his presence but he has stated that the Officer-in-Charge of Nagar Untari
PS was present in the house and examining the dead body of Nirmala
Kumari. He prepared inquest report in his presence over which he put his
signature. Witness Ram Charitar Chaubey also put his signature over the
same. He has proved both the signatures which have been marked Exts. 1
and 1/1. The Sub Inspector also seized one wooden slipper, one pair of
hawai slipper, one spectacle and a lungi from near the dead body and
prepared a seizure list over which he and Ram Charittar Chaubey put their
signatures. The two signatures have been marked Exts.1/2 and 1/3. The
Sub Inspector of Police also seized one bloodstained cover of Tosak and
bloodstained earth and prepared a seizure list in his presence. He has
proved his signature as well as signature of Ram Charittar Chaubey over
the seizure list which have been marked Exts. 1/4, and 1/5, respectively.
Though, he has denied that Sub-Inspector did not make any search of the
house of accused Raj Kumar Chaubey in his presence, but
he has proved his signature and the signature of Ram Charittar Choubey
over the search list which have been marked Ext. 1/6 and 1/7 respectively.
24
2025:JHHC:19134-DB
54. In the cross-examination, he has said that the informant was not
present in the house. He further stated that there was no special mark on
the articles which were seized from near the dead body. The Sub Inspector
had seized the cover of Tosak from the cot which were kept south of the
chauki in the dhawa. The cover was stained with a drop of blood. From
the evidence of this witness, it would appear that the Sub Inspector had
seized some articles from near the dead body and the dead body was lying
inside the house of the informant.
55. PW4-Parma Singh and PW5-Ramdeo Singh are the constable
and they are formal witness.
56. PW6-Rajendra Kumar Choubey is a co-villager of the informant
who is also a formal witness.
57. PW7-Gopal Misra is a co-villager who has deposed that he had
seen the occurrence when he went to the informant’s house to take bullock
cart. He has stated that he saw the occurrence. All the accused persons
were beaten the informant at his dhaba. He has further deposed that Raj
Kumar Choubey instigated and told Satyender Choubey to kill the
informant whereupon Satyender Choubey open fire from his pistol which
hit the daughter of informant. The daughter of the informant fell down. He
has deposed that after the occurrence there was stampede and all the
accused fled away from the place of occurrence. He also fled away from
there. He had identified the accused Satyender Choubey, Virendra
Choubey and Raj Kumar Choubey who were present in the dock.
58. During his cross-examination. He has deposed that he did not
recall the date and year of the occurrence. He has stated that he himself
25
2025:JHHC:19134-DBwent to the police station at about 9-10 PM to give statement about the
occurrence. He has stated that he had not seen the bloodstained or any
wound on the body of the informant, his wife and his sons. He has stated
that he had not cared that any wound was there on the body of Raj Kumar
Choubey. He has stated that he heard the sound of firing of bullet. He has
stated that he had seen that Satyendra Choubey, Vinod Choubey and
Birendra Choubey had started assaulting Deo Kumar Choubey, his wife
and sons with lathi, knife and fists and slaps for about 10-15 minutes. He
has stated that he had seen the blood oozing from the middle of chest of
the deceased. He has denied that at the time of occurrence the fired took
place from the gun of Deo Kumar Choubey. He has denied the suggestion
that he had not seen the occurrence.
59. PW8-Ram Charitra Choubey is the co-villager and was also
tendered for cross-examination.
During cross-examination this witness has stated that the sub-
inspector of police had investigated the matter who came to the village.
He further stated that from the house of Deo Kumar Choubey one double
barrel gun was seized and at that time he was present with Kamlesh
Dubey.
60. PW9 Uday Shankar Choubey is a hearsay witness. He has stated
that on hearing that firing took place at the house of Deo Kumar Choubey,
he went there and he saw the dead body of Nirmala (deceased). He has
identified the accused persons who were present at the dock at the time of
his adducing evidence.
26
2025:JHHC:19134-DB
During cross-examination this witness has stated that on hearing
the sound of firing he went to the house of Deo Kumar Choubey. He has
denied the suggestion that the firing took place from the gun of Deo Kumar
Choubey.
61. PW10-Dr. Indreshwar Tiwari has deposed that he conducted
post-mortem upon the body of deceased and has found the following
ante-mortem injuries:
(i) Lacerated oval wound 1 ½” x 1″ x brain cavity deep on the left
mastoid region of scalp with inverted margin blackening and
shooting of the skin around the wound was found. Brain matter
coming out of the wound.
(ii) Defused swelling of the upper part of the right side of the neck
behind right ear with multiple fracture of the underlying bones.
Blood coming out through the right ear.
On Dissection, skull bones and base of skull found fracture into
multiple pieces except the frontal and parietal bone.
Brain matter extensively lacerated. Blood and blood clot found
in the cavity. One cardboard piece, one plastic piece and 44
metallic pieces recovered from the brain matter and the cavity.
According to the doctor, weapon used was fire arms might be
country made pistol, in which the 12-bre cartridge was used.
The cause of death was shock and hemorrhage due to the injury
to the vital organ within 12 to 36 hours of the examination.
In the cross-examination, this witness has stated that cartridge
used in gun and revolver are different and the materials recovered from the
wound are constituents of 12-Bore cartridge which is usually used in gun
firing. These cartridges are not used in revolver or pistol.
27
2025:JHHC:19134-DB
62. PW13-the doctor who has examined the injured witness-Deo
Kumar Chaubey (informant) on 21.2.91 at 6 PM at Referral Hospital,
Nagar Untari has found the following injuries on his person:
(i) one abrasion 1″ x ½” / subcutaneous thickness on the lower
part of the right knee joint.
(ii) Abrasion ½ ” x ½” x subcutaneous thickness on the lower
part of the left knee joint.
(iii) Bruise 1″ x 1 ” x on the lower part of the left nipple.
iv) Bruise 1″ x 1″ x on the dorsal aspect of right foot.
All the injuries were simple in nature caused by hard and blunt
substance such as lathi within six hours of the examination.
63. This doctor has also examined the accused-Raj Kumar Chaubey
at 4 PM, on the basis of the requisition sent by the officer-in-charge, Nagar
Untari PS which have been marked as Ext8 and A/1 respectively and has
found the following injuries on his person:
(a) Lacerated wound 3″ x ½” x ¼” on the right side of occipital
area.
(b) Lacerated wound ½” x ¼” x ¼” on the left cheek.
(c) Abrasion 1″ x ½” x subcutaneous thickness on the left elbow
joint.
(d) Abrasion 1″ x ½” x subcutaneous thickness on the left ankle
joint.
(e) Two bruises 3″ x 1″ and 3″ x 1″ on the upper part of back.
All these injuries were simple in nature caused by hard and blunt
substance such as lathi within six hours of the examination.
64. PW11-Havildar Mauleshwar Singh was posted at Nagar Untari
PS and he has produced the seized articles from the place of occurrence to
the Court which are (i) wooden slippers, (ii) one pair of hawai slippers,
28
2025:JHHC:19134-DB
(iii) one lungi of light pink colour, (iv) empty cover of toshak, and (v)
bloodstained earth which have been exhibited as X, X/1, X/2, X/3 and
X/4, respectively.
During cross-examination this witness has stated that at the time
of occurrence he was not posted at Nagar Untari PS and he brought a list
of seizure list which was given the officer-in-charge of the said PS.
65. PW12-Deo Kumar Choubey is the informant of the case. He has
deposed that on 21.2.91 at 12 O’clock Noon he was going to Sonpurwa to
attend a Yagya which was being performed there. However, when he,
reached there east of his house near his wheat field appertaining to plot
no.1, he saw Binod Kumar Chaubey and Birendra Kumar Chaubey armed
with lathi setting his wheat crops grazed through their bullock. He
objected to it, but they did not listen and extended threat to assault him. In
the meantime, his accused Raj Kumar Chaubey also came out of their
house and instigated accused Binod Chaubey and Birendra Chaubey to
assault the informant. In order to save his life, the informant ran away and
took shelter in the house of Kameshwar in his village. However, all the
three accused namely Raj Kumar Chaubey, Birendra Chaubey and Binod
Chaubey also reached there They were no male member in the house of
Kameshwar Chaubey. However, Uma Devi wife of Kameshwar Chaubey,
tried to pacify the matter and requested the accused persons to go away.
In the meantime, Uday Shankar Chaubey also came there and requested
them to go away. Thereafter, the afore-mentioned accused persons
returned back to their house. After two hours, the informant came out of
the house of Kameshwar Chaubey and returned to his house. It was about
2.30 P.M.to 3 P.M. when he was sitting on a cot in the outer dhawa of his
29
2025:JHHC:19134-DB
house, when accused Raj Kumar Chaubey, Binod Chaubey and Birendra
Chaubey armed with lathi and Satyendra Chaubey armed with a country
made pistol entered into the house through the main entrance door. On
seeing them, the informant ran to his angan However, all the four accused
followed him. Accused Raj Kumar Chaubey caught his both hands
whereas accused Binod Chaubey and Satyendra Chaubey began assaulting
him with fists and slaps. Accused Raj Kumar Chaubey gave order to other
accused to enter into the northern rooms of the house and to find out the
valuables. Thereupon, accused Birendra Chaubey went inside the room
and brought out Rs.5000/- which was kept in a tin box. Thereafter, all the
four accused brought him to the dhawa where he was earlier sitting. They
were also assaulting him with lathi, but the force of lathi blow was being
reduced as the same was obstructed by the roof. The informant was
brought on the main entrance dhawa where accused Raj Kumar gave order
to kill the informant with pistol. Thereupon, accused Satyendra Chaubey
aimed his country made pistol at the chest of the informant. However, the
informant turned and deceased Nirmala who was standing by the side of
the informant with her both hands around the waist of the informant, came
in front of the accused Satyendra Chaubey and the fire hit Nirmala Kumari
near her left year. She fell down and died. The accused persons, thereafter,
fled away. However, while fleeing away, accused Raj Kumar Chaubey left
his one wooden slipper of left leg(material Ext.I). He also left his
spectacle. Accused Satyendra Chaubey left his pink colour lungi (Ext.II).
Accused Binod Chaubey left his hawai slippers (Ext.III) The witness has
also proved cover of Tosak which was seized by the I.O. and the same has
been marked Ext. IV. The informant has asserted that the occurrence was
30
2025:JHHC:19134-DB
witnessed by his son Sumant Kumar Chaubey (P.W.1), Rajendra Kumar
Chaubey (P.W.6), his wife Shardha Devi (P.W.2) and Gopal Mishra
(P.W.7). He further deposed that the Sub Inspector of Police came and
recorded his fardbeyan. He has proved his signature on the fardbeyan
marked Ext.1/8. The I.O. had recorded his further statement also. He has
stated that he had sustained injuries on his person also and he was treated
at Nagar Untari Referal Hospital. The witness further stated that the size
of barrel of the pistol was of 12-bore.
66. In the cross-examination, P.W.12 has stated that he had disclosed
in the fardbeyan and in his further statement that the weapon used was a
pistol. He has stated in his cross-examination that the material exhibits
were seized by the Investigating Officer in his presence. However, he did
not remember as to whether the same were sealed or not. He has denied
that the material exhibits seized from the place of occurrence did not
belong to the accused persons.
67. P.W.12 the informant had also described the place of occurrence
and his house in his cross-examination. In para 23 of the cross-
examination, he has stated that main entrance door is fitted with choukhat
door and planks which opens towards north of his house. In the western
side of the house there is a long dhawa running from north to south. This
dhawa is divided into two parts by a wall living door space. In the southern
portion of this dhawa, there is a door which opens towards west of the
house. This is fitted with Choukhat door plank. In the southern dhawa,
there is also a door which opens towards east in the inner dhawa of the
house. One goes in the angan through this inner dhawa. In para 24 of the
cross-examination, this witness has stated that the main entrance door
31
2025:JHHC:19134-DB
which opens towards north of the house is fitted in the northern portion of
the western dhawa. However, at the main entrance door, there is a wall
towards east separating the said dhawa which runs towards east to west
living a door space. Near the main entrance door, the width of the dhawa,
from east to west is 9 to 10 ft. The length of the northern portion of the
western dhawa from north to south is 20 ft. There is another entrance door
towards north of the house which opens in the dhawa which runs east to
west towards north of the house. In para 25, this witness has said that there
are two rooms towards north of the angan. There is also a dhawa towards
east of the angan. From the eastern side of the northern room, one can go
in the northern dhawa of the house which runs east to west. In the south
of the angan also, there is a dhawa and, thereafter, there are two rooms. In
between the two rooms, there is a stair case for going up higher. He has
thereafter, given the size of the angan. The ceiling height of the western
and éastern dhawa is 8 ft. In para 29, the informant has said that a chauki
was kept in the main entrance dhawa at a distance of 7 ft. from the door.
Adjacent to the chauki, a cot was also kept. A tosak with cover was kept
on the said cot. This witness has further stated that the house of the accused
is adjacent east of the house and the wheat field, in which the occurrence
of grazing had taken place, was at a distance of 50 ft. from the house of
the accused. In para-41 he has claimed that he was sitting in the southern
portion of the western dhawa when the accused persons entered into his
house. In para 51 of the cross-examination also, the informant had
supported the occurrence. He has asserted that when incident of shooting
took place he was facing towards south and the accused persons were
facing towards north. Accused Satyendra Chaubey pressed his pistol at
32
2025:JHHC:19134-DB
him. At that time, his daughter was standing left to him and she had put
her arms on the west waist of her father.
68. PW14-Biswas Toppo is a constable who identified the signature
of the officer-in-charge of Nagar Untari PS on Sanha NO.338 and 342
both dated 21.2.91 which have been exhibited 6 and 6/1 respectively.
During cross-examination, this witness has stated that the
aforesaid sanha was not recorded in his presence. He has denied that he
has ever worked with Ishwari Dayal, who was the then officer-in-charge
of Nagar Untari PS.
69. PW15-Ishwari Dayal is the Investigating Officer. He has
deposed that on 21.2.91 at 6.05 P.M. he heard rumour that an occurrence
took place at village Sulsuliya in which a girl was shot dead. He made
station diary entry no.338 dated 21.2.91 (Ext.6) and left the police station
along with the Inspector of Police, Bhawnathpur, and Havaldar Ramadhar
Singh. At 6.30 P.M. he reached village Sulsuliya and recorded the
statement of informant Dev Kumar Chaubey. Informant put his signature
over the fardbeyan. Two witnesses namely Jogendra Chaubey and Uday
Shankar Chaubey also put their signatures on the fardbeyan (Ext.3). He,
thereafter, prepared inquest report of deceased Nirmala Kumari in
presence of the aforesaid two witnesses. He has proved carbon copy of
inquest report marked Ext.2. He took up the investigation himself and
recorded the further statement of the informant and issued requisition for
Injury report (Ext.8) He inspected the place of occurrence which is the
north facing Khaprail house of informant. The main entrance door of the
house faces towards north and opens inside of the dhawa of the house. The
dead body of Nirmala Kumari was found lying at a distance of 7 ft. South
33
2025:JHHC:19134-DB
from the main entrance door. Her head was towards east near the door
which leads to the eastern dhawa and her legs were towards south. The
dead body was in a pool of blood. Towards south of the dead body, there
was a wooden chauki and adjacent to the chauki, there was a cot which
was spread east to west. To the west of the dead body, the 1.0. found one
wooden slipper, one spectacle, one cotton lungi of pink colour and one
pair sky Hawai slipper. He also found mark of blood on the cover of Tosak
which was kept on the cot. He further stated that adjacent south of this
main entrance dhawa, there was another dhawa. However, there is a door
space between the two dhawa. In the southern portion of this dhawa, a
door opens towards west and another door opens towards east which leads
to inner dhawa. There is an angan adjacent east of the inner dhawa. The
Investigating Officer has further given description of the angan which is
surrounded by the dhawa from west side, east side and south side. Towards
north of the angan, there are two rooms facing south. The Investigating
Officer found sign of fresh grain in the wheat field of the informant. Some
plants were Found uprooted. Mark of hoofs of cattle heads were also found
in the field. The house of Kameshwar Chaubey in situated at a distance of
about 300 to 400 yards north west from the house of the informant. The
Investigating Officer has, therefore, proved the place of occurrence and
according to him also the incident of shooting took place in the main
entrance dhawa of the informant. The Investigating Officer has proved the
genesis of occurrence in as much as he found sign of grazing of wheat
crop of the informant.
70. The Investigating Officer seized the wooden slipper, spectacle,
lungi and pair of hawai slippers in presence of the witnesses. He has
34
2025:JHHC:19134-DB
proved the carbon copy of seizure list which has been marked Ext.9. The
Investigating Officer also seized blood stained earth from the place of
occurrence and the cover of tosak which was stained with blood in
presence of witnesses. Investigating Officer further recorded the statement
of witnesses namely Sharda Devi and Rajendra Chaubey and sent the dead
body for post-mortem. He also recorded the statements of other witnesses
also and returned to the police station where formal F.I.R. (Ext.2) was
drawn. On 22.2.91 one black colour lathi was produced before him by
P.W.2 Sharda Devi which was seized in presence of witnesses. He has
proved the seizure list marked Ext. 11. The I.O. also identified the wooden
slipper, lungi, pair of hawai slipper and cover of tosak in the Court which
have been marked Exts. I to IV. Bloodstained earth which he had seized
from the place of occurrence has been marked Ext. V. He had made entries
about these seizure in the station diary entry no. 342 dated 21.2.91
(Ext.6/1). The Investigating Officer, thereafter, obtained post-mortem
report and injury report of the informant and submitted charge sheet.
71. During cross-examination at para-20 he has admitted that he had
seen accused Raj Kumar Chaubey at Referal Hospital, Nagar Untari on
21.2.91 in injured condition and he had also issued a requisition for his
injuries (Ext.A/1). In para 21, the Investigating Officer stated that he
recorded the fardbeyan of accused Raj Kumar Chaubey at Referal Hospital
on 21.2.91 at 11 PM and on the basis of which he registered a case against
the informant Deo Kumar Chaubey and others. The Investigating Officer
has, however, denied that he had met accused Raj Kumar Chaubey at
Referal Hospital on 21.2.91 before 4 PM and had issued requisition for his
medical examination. He also denied that he had learnt about the
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occurrence through Raj Kumar Chaubey at that time. The I.O has further
admitted that he had obtained injury report of Raj Kumar Chaubey from
the doctor and the doctor has mentioned the time of examination as 4 PM.
The Investigating Officer has, however, denied that he had learnt about
the occurrence at Nagar Untari itself through accused Raj Kumar
Chaubey, but he did not record the statement of accused Raj Kumar
Chaubey. However, the Investigating Officer has admitted that he
registered Nagar Untari P.S. Case No.25/91 u/s 341,323/34 I.P.C. and 27
Arms Act on the basis of the statement of accused Raj Kumar Chaubey.
He has denied that he recorded the fardbeyan of this case after a long
delay. He has admitted that he had not sealed the articles which he had
seized from the place of occurrence. However, he has also admitted that
he did not take trial of the articles seized from the place of occurrence
from the accused persons.
72. The Investigating Officer has admitted that he recorded the
statement of witness Sumant Kumar Chaubey and witness Gopal Mishra
on 13.3.91 at the police station. He further admitted that he seized the
licencee gun of the informant on 22.2.91 in connection with the counter
case and sent the same to Sargeant Major, Daltonganj for examination. He
also received the report of the Sargeant Major on 9.3.91.
73. The defence has, also examined five witnesses.
74. DW1 Ashok Singh has proved the fardbeyan and formal FIR of
the counter-case which have been proved as Ext. B and C respectively.
75. DW2-Raj Kumar Prasad is an advocate’s clerk of Garhwa Court.
He had drafted the protest complaint petition at the instance of accused
36
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Raj Kumar Chaubey and gave the same to the typist. After being typed, he
compared the same with the draft. Accused-Raj Kumar Chaubey put his
signature on the said complaint petition in his presence. He has proved the
signature of accused-Raj Kumar Chaubey on the same which has been
marked Ext.D.
76. DW3-Moti Prasad is a private typist of Garhwa Court who had
typed the protest complaint petition. He has proved the entire protest
complaint petition which has been marked Ext-E.
77. DW4-Rajdeo Rai is the then Sergeant Major, Police Line,
Daltonganj. He had examined the gun of the informant from both barrel.
He has proved his report which has been marked Ext-F. He has deposed
that he had examined one regular D.B.B.L. gun which was seized in
connection with Nagar Untari mad P.S.Case No.25/91 and found that
firing was done from both barrels, of the gun in the recent past. He has
proved his report as Ext.F. He has asserted that he is a ballistic expert
though he did not have any diploma or degree in that science however he
has obtained a certificate in this regard from the Department. He has
however, also admitted that only chemical expert could say as to in how
many days smell evaporates from the gun. He had examined the gun on
9.3.91 i.e. after 16 days of the occurrence. However, he has also stated that
the gun might have been fired about a week or ten days ago. He has,
however, admitted that the gun was not sent to chemical expert for
chemical examination.
78. DW5-Havaldar Awadhes Kumar Singh is a formal witness. He
has proved the carbon copy of requisition (Ext-G) sent by PW15 to the
37
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Sergeant Major. Police Line, Daltonganj to examine the gun which was
seized in connection with Nagar Untarii PS Case No.25/91 and carbon
copy of a petition (Ext-H) submitted by PW15 before the Court of the
learned ACJM, Garhwa, seeking a direction to Sergeant Major, Police
Line, Daltonganj to examine the gun.
79. In the backdrop of the aforesaid settled proposition of law and
after discussion of testimony of prosecution witnesses this Court in the
instant appeal is to consider following issues: –
(i)Whether the material as has come in course of trial is
sufficient to attract the ingredients of offence committed under
Section 302/34 and 307/34 of the Indian Penal Code against the
appellants? or
(ii) Whether the appellants are entitled for acquittal in absence
of cogent evidences?
80. Since, all the aforesaid issues are inextricably interlinked,
therefore, the same are being discussed and decided hereinbelow together.
81. The learned senior counsel for the appellant has contended that
the doctor who has been examined as PW10, as also the Investigating
Officer has not supported the prosecution story as P.W.10 doctor has
specifically stated that the material recovered from the wounds of
deceased were constituent of 12 bore cartridges which is used in gun firing
and they are not used in revolver or pistols. Further the bullet has said to
be fired from the country made pistol but there is no reference of recovery
of any country made pistol in the seizure memo rather one licensee gun
has been recovered. It has further been contended that the pellet which
38
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has been found from the body of the deceased has not been fired from the
country made pistol thus, the entire prosecution version as recorded in the
FIR wherein it has been reported that the pellet has been fired from the
country made pistol itself vitiate the entire prosecution version.
82. The learned senior counsel for the appellant has canvassed that
the prosecution has failed to explain the injuries on the appellant namely
Raj Kumar Choubey which casts grave doubt on the prosecution story
specially when the said appellant was examined on police requisition at 4
P.M on 21.02.1991. The learned senior counsel has further emphasized
that if entire evidence will be taken into consideration it will be apparent
that none of the prosecution witness has stated about the premeditation
among the accused/appellants and further no evidence has been brought
on record in order to establish the common intention among the accused
appellants, therefore the application of Section 34 IPC against all the
appellants amounts miscarriage of justice.
83. At this juncture it would be purposeful to discuss the relevant
part of the testimony of prosecution witnesses as well as FIR in order to
answer the issues as referred in the preceding paragraphs.
84. From perusal of the FIR, it is evident that on the trivial issue of
grazing of wheat crops of informant by the buffalo of accused/appellants
alleged occurrence was happened. As per the fardbeyan of the informant
Deo Kumar Chaubey, the appellant Rajkumar Chaubey ((since dead) who
is elder brother of the informant has to his house and instigated his two
sons to assault the informant. The Informant, thereafter, fled away and
took shelter in the house of Kameshwar Chaubey, a co-villager.
Thereafter, the aforesaid three accused persons returned back to their
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house. After two hours, the informant came out of the house of
Kameshwar Chaubey and went to his house.
85. It has further been alleged that after 10 to 15 minutes when he
was sitting on a khatiya (cot), in the main entrance of his house, at about
2.30 to 3 P.M., all the four accused, namely, Raj Kumar Chaubey and his
three sons namely Binod Chaubey, Satyendra Chaubey and Birendra
Chaubey entered into his house through the main door. Accused Satyendra
Chaubey was armed with a country made pistol whereas remaining three
accused were armed with lathi. Seeing the accused persons, the informant
went in the Angan of the house but all the four accused also followed him
and came in the Angan whereas accused Raj Kumar Chaubey caught him
and accused Satyendra Kumar Chaubey and Binod Chaubey began
assaulting him with fists and slaps. and thereafter the accused persons
dragged him and brought him in the main entrance dhaba of the house
where accused Birendra Chaubey and Binod Chaudhary tried to assault
him with lathi, and in the meantime, accused Raj Kumar Chaubey gave
order to kill the informant with the said country made pistol. Thereupon,
Satyendra Chaubey opened fire from his country made revolver with
intent to kill the informant. But the fire missed the target and hit Nirmala
Kumari (daughter of the deceased) near her left ear due to this she fell
down and died instantly.
86. Thus, from the recital of the fardbeyan it is evident that the
alleged occurrence of murder of the deceased daughter was caused by
appellant by firing from country made pistol.
87. At this juncture it will be purposeful to reiterate the testimony of
the doctor who had conducted post-mortem on the dead body of the
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deceased, wherein he has opined that weapon used was fire arms may be
country made pistol, in which the 12-bore cartridge was used. But at the
same time in his cross-examination, he had stated that Cartridges used in
Gun and Revolver are different. He had further stated that the material
recovered from the wound of the deceased while conducting Postmortem
examination are the constituents of 12 bore cartridges usually used in gun
firing and these constituents are not found in the cartridges used in
Revolver or Pistol.
88. At this juncture it needs to refer herein that this Court is
conscious with the settled legal position that where there is a contradiction
between medical evidence and ocular evidence, the ocular testimony of a
witness has greater evidentiary value vis-à-vis medical evidence, but at
the same time it is equally settled position that when medical evidence
makes the ocular testimony improbable, then it becomes a relevant factor
in the process of the evaluation of evidence and when the medical
evidence goes so far that it completely rules out all possibility of the ocular
evidence being true, the ocular evidence may be disbelieved. Reference in
this regard may be made to the judgment rendered by the Hon’ble Apex
Court in the case of Bhajan Singh v. State of Haryana, (2011) 7 SCC
421 , the relevant paragraph of the aforesaid judgment is being quoted as
under:
38. Thus, the position of law in such a case of contradiction between
medical and ocular evidence can be crystallised to the effect that
though the ocular testimony of a witness has greater evidentiary value
vis-à-vis medical evidence, when medical evidence makes the ocular
testimony improbable, that becomes a relevant factor in the process
of the evaluation of evidence. However, where the medical evidence
goes so far that it completely rules out all possibility of the ocular
evidence being true, the ocular evidence may be disbelieved.41
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89. The aforesaid same view has been reiterated by the Hon’ble
Apex Court in the case of CBI v. Mohd. Parvez Abdul Kayuum, (2019)
12 SCC 1 wherein it has been held by the Hon’ble Apex Court which
reads as under:
57. —-It is not a case where medical evidence completely
improbabilises the ocular evidence; only in that case the ocular
evidence has to be discarded, not otherwise. Reliance has been placed
on behalf of the accused on Abdul Sayeed v. State of M.P. [Abdul
Sayeed v. State of M.P., (2010) 10 SCC 259 : (2010) 3 SCC (Cri) 1262]
thus: (SCC p. 274, para 39)
“39. Thus, the position of law in cases where there is a contradiction
between medical evidence and ocular evidence can be crystallised to
the effect that though the ocular testimony of a witness has greater
evidentiary value vis-à-vis medical evidence, when medical evidence
makes the ocular testimony improbable, that becomes a relevant factor
in the process of the evaluation of evidence. However, where the
medical evidence goes so far that it completely rules out all possibility
of the ocular evidence being true, the ocular evidence may be
disbelieved.”
90. In the instant case, it has come on record that there is no recovery
of any country made pistol or revolver from the place of occurrence or
from conscious possession of the appellants herein. Further herein the
medical evidence completely rules out all possibility of the ocular
evidence being true as such the ocular evidence may be disbelieved.
91. Thus, from the aforesaid it is evident that the aforesaid factum
of firing from the country made pistol has not been proved by the
prosecution against the present appellants beyond reasonable doubt.
92. Further, since the learned trial court by taking aid of the Section
34 of the IPC has convicted the present appellants for the alleged offence,
therefore at this juncture it would be apt to discuss the ingredients of
Section 34 of the IPC.
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93. It needs to refer herein that under the provisions of Section 34
the essence of the liability is to be found in the existence of a common
intention animating the accused leading to the doing of a criminal act in
furtherance of such intention. As a result of the application of principles
enunciated in Section 34, when an accused is convicted under Section
302 read with Section 34, in law it means that the accused is liable for
the act which caused death of the deceased in the same manner as if it
was done by him alone. The provision is intended to meet a case in
which it may be difficult to distinguish between acts of individual
members of a party who act in furtherance of the common intention of
all or to prove exactly what part was taken by each of them.
94. Thus, from the aforesaid settled position of law it is evident that
Section 34 has been enacted on the principle of joint liability in the doing
of a criminal act. The section is only a rule of evidence and does not
create a substantive offence. The distinctive feature of the section is the
element of participation in action. The liability of one person for an
offence committed by another in the course of criminal act perpetrated
by several persons arises under Section 34 if such criminal act is done
in furtherance of a common intention of the persons who join in
committing the crime.
95. In order to bring home the charge of common intention, the
prosecution has to establish by evidence, whether direct or
circumstantial, that there was plan or meeting of minds of all the accused
persons to commit the offence for which they are charged with the aid
of Section 34, be it prearranged or on the spur of the moment; but it must
necessarily be before the commission of the crime.
43
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96. The true contents of the section are that if two or more persons
intentionally do an act jointly, the position in law is just the same as if
each of them has done it individually by himself. The existence of a
common intention amongst the participants in a crime is the essential
element for application of this section. It is not necessary that the acts of
the several persons charged with commission of an offence jointly must
be the same or identically similar. The acts may be different in character,
but must have been actuated by one and the same common intention in
order to attract the provision.
97. Further, the burden lies on the prosecution to prove that actual
participation of more than one person for commission of criminal act
was done in furtherance of common intention of all at a prior concert.
However, it is not required for the prosecution to establish that there was
a prior conspiracy or premeditation; common intention can be found in
the course of occurrence.
98. To apply Section 34 apart from the fact that there should be two
or more accused, two factors must be established: (i) common intention,
and (ii) participation of the accused in the commission of an offence. If
common intention is proved but no overt act is attributed to the
individual accused, Section 34 will be attracted as essentially it involves
vicarious liability. But if participation of the accused in the crime is
proved and common intention is absent, Section 34 cannot be invoked
reference in this regard may be taken from the judgment rendered by the
Hon’ble Apex Court in the case of Jai Bhagwan v. State of
Haryana (1999) 3 SCC 102.
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99. As held by the Constitution Bench of the Hon’ble Apex Court
in Mohan Singh v. State of Punjab AIR 1963 SC 174, common
intention denotes action in concert, and a prior meeting of minds–the
acts may be different, and may vary in their character, but they are all
actuated by the same common intention. However, prior concert in the
sense of a distinct previous plan is not necessary to be proved. The
common intention to bring about a particular result may well develop on
the spot as between a number of persons. Thus, the question as to
whether there is any common intention or not depends upon the
inference to be drawn from the proven facts and circumstances of each
case. The totality of the circumstances must be taken into consideration
in arriving at the conclusion whether the accused persons had the
common intention to commit the offence with which they could be
convicted.
100. In the aforesaid backdrop of the settled position of law that, this
Court has revisited the entire testimony including the material available
on record wherefrom it is evident that none of the witnesses had stated
in their examination-in-chief that the present appellant having common
intention to kill the deceased. Therefore, in the aforesaid settled position
of law as discussed in preceding paragraph this Court is of the view that
the presents appellants having no common intention or premeditation of
mind before the commission of alleged crime.
101. Further it is evident from the record that the persons of both sides
i.e. informant as well as appellant Raj Kumar Choubey (since dead) have
sustained injuries and both have been medically examined on the
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requisition of the police and their injuries report have marked as
annexure. From the aforesaid factual aspect, inference may be
withdrawn that it is case of free fight on the trivial issue i.e. grazing of
wheat crop of the informant by the animal of the appellants and it is
settled position of law that in the case of free fight, the ingredients of
Section 34 of the IPC have no application.
102. Since this Court has come with the finding in the preceding
paragraph that the factum of firing by the appellant namely Satyendra
Choubey by the alleged country made pistol has not been established
beyond reasonable doubt, therefore it is of the considered view of this
Court that appellants cannot be convicted for the offence under Section
302/34 IPC.
103. So far as the conviction under section 307/34 of the IPC is
concerned, it needs to refer herein that the persons of both sides i.e.
informant as well as appellant Raj Kumar Choubey (since dead) have
sustained injuries and both have been medically examined on the
requisition of the police and their injuries report have been marked as
annexure before the learned trial court.
104. At this juncture it would be apt to referred herein the Section 307
IPC which reads as under:
“307. Attempt to murder.–Whoever does any act with such intention
or knowledge, and under such circumstances that, if he by that act
caused death, he would be guilty of murder, shall be punished with
imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine; and if hurt is caused to any person
by such act, the offender shall be liable either to imprisonment for life,
or to such punishment as is hereinbefore mentioned.46
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Attempts by life convicts. –When any person offending under this
section is under sentence of imprisonment for life, he may, if hurt is
caused, be punished with death.
105. The first part of Section 307 refers to “an act with such intention
or knowledge, and under such circumstances that, if he by that act caused
death, he would be guilty of murder”. The second part of Section 307,
which carries a heavier punishment, refers to “hurt” caused in pursuance
of such an “act”.
106. In State of Maharashtra v. Balram Bama Patil [State of
Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28, the Hon’ble Apex
Court has observed that it is not necessary that a bodily injury sufficient
under normal circumstances to cause death should have been inflicted, for
ready reference the relevant paragraph is being quoted as under:
“9. … To justify a conviction under this section it is not essential that
bodily injury capable of causing death should have been inflicted.
Although the nature of injury actually caused may often give
considerable assistance in coming to a finding as to the intention of the
accused, such intention may also be deduced from other circumstances,
and may even, in some cases, be ascertained without any reference at
all to actual wounds. The section makes a distinction between an act of
the accused and its result, if any. Such an act may not be attended by
any result so far as the person assaulted is concerned, but still there
may be cases in which the culprit would be liable under this section. It
is not necessary that the injury actually caused to the victim of the
assault should be sufficient under ordinary circumstances to cause the
death of the person assaulted. What the Court has to see is whether the
act, irrespective of its result, was done with the intention or knowledge
and under circumstances mentioned in this section. An attempt in order
to be criminal need not be the penultimate act. It is sufficient in law, if
there is present an intent coupled with some overt act in execution
thereof.”
(emphasis supplied)
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107. In State of M.P. v. Saleem, (2005) 5 SCC 554, the Hon’ble Apex
Court has held which reads as under:
“13. It is sufficient to justify a conviction under Section 307 if there is
present an intent coupled with some overt act in execution thereof. It is
not essential that bodily injury capable of causing death should have
been inflicted. The section makes a distinction between the act of the
accused and its result, if any. The court has to see whether the act,
irrespective of its result, was done with the intention or knowledge and
under circumstances mentioned in the section. Therefore, an accused
charged under Section 307 IPC cannot be acquitted merely because the
injuries inflicted on the victim were in the nature of a simple hurt.”
108. In Jage Ram v. State of Haryana (2015) 11 SCC 366, the
Hon’ble Supreme Court has held that to establish the commission of an
offence under Section 307, it is not essential that a fatal injury capable of
causing death should have been inflicted, for ready reference the relevant
paragraph is being quoted as under:
“12. For the purpose of conviction under Section 307 IPC, the
prosecution has to establish (i) the intention to commit murder; and (ii)
the act done by the accused. The burden is on the prosecution that the
accused had attempted to commit the murder of the prosecution witness.
Whether the accused person intended to commit murder of another
person would depend upon the facts and circumstances of each case.
To justify a conviction under Section 307 IPC, it is not essential that
fatal injury capable of causing death should have been caused.
Although the nature of injury actually caused may be of assistance in
coming to a finding as to the intention of the accused, such intention
may also be adduced from other circumstances. The intention of the
accused is to be gathered from the circumstances like the nature of the
weapon used, words used by the accused at the time of the incident,
motive of the accused, parts of the body where the injury was caused
and the nature of injury and severity of the blows given, etc.”
109. It is evident from the aforesaid settled proposition of law that
proof of grievous or life-threatening hurt is not a sine qua non for the
offence under Section 307 of the Penal Code and the intention of the
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accused can be ascertained from the actual injury, if any, as well as from
surrounding circumstances. Among other things, the nature of the weapon
used and the severity of the blows inflicted can be considered to infer
intent.
110. Thus, it is apparent that whoever does any act, with the intention
or knowledge, which may cause death and in furtherance to the said
intention and knowledge, he was doing an act towards it. However, it is
required to be seen by the evidence brought on record by the prosecution
whether the ingredients to prove, the case of prosecution beyond
reasonable doubt, the charge under Sections 307 IPC have been
established.
111. The essential difference between the offence punishable under
Section 307 IPC and Section 302 IPC is that the offence under section 307
IPC is not culpable homicide; the victim finally survives. What is required
by the prosecution to establish is that the accused had necessary intention
or knowledge that if successfully effected the alleged act would have
caused death. In “State of Maharashtra v. Kashirao” reported in (2003)
10 SCC 434, the Hon’ble Apex Court has held as under;
“20. ……. “The essential ingredients required to be proved in the case
of an offence under section 307 are:
(i) that the death of a human being was attempted;
(ii) that such death was attempted to be caused by, or in consequence
of the act of the accused; and
(iii) that such act was done with the intention of causing death; or that
it was done with the intention of causing such bodily injury as: (a) the
accused knew to be likely to cause death; or (b) was sufficient in the
ordinary course of nature to cause death, or that the accused attempted
to cause death by doing an act known to him to be so imminently
dangerous that it must in all probability cause (a) death, or (b) such49
2025:JHHC:19134-DBbodily injury as is likely to cause death, the accused having no excuse
for incurring the risk of causing such death or injury.”
112. In the backdrop of the aforesaid settled proposition of law, now
we are adverting to the facts of the case in hand in order to find out
whether the alleged acts of the appellants come under the purview of
attempt to murder or not.
113. In the aforesaid context it would be purposeful to reiterate the
testimony of the doctor (PW13) who had examined the injured
informant which has been referred as under:
(i) one abrasion 1″ x ½” / subcutaneous thickness on the lower
part of the right knee joint.
(ii) Abrasion ½ ” x ½” x subcutaneous thickness on the lower part
of the left knee joint.
(iii) Bruise 1″ x 1 ” x on the lower part of the left nipple.
iv) Bruise 1″ x 1″ x on the dorsal aspect of right foot.
114. This witness has categorically opined that all the injuries were
simple in nature caused by hard and blunt substance such as lathi. Thus
from the aforesaid it is evident that injuries which was caused by the
appellants upon the injured informant was simple in nature and caused by
the lathi, therefore it can be safely inferred that in the alleged commission
of crime the requisite ingredients of Section 307 as discussed hereinabove
is not available as such the conviction of the present appellants under
section 307 of IPC is also not sustainable herein.
115. However, it has come one record that the appellants namely
Vinod Kumar Choubey and Virendra Kumar Choubey having lathi at the
time of alleged commission of crime and all the prosecution witnesses had
specifically stated that assault by lathi was made by the aforesaid son of
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the Raj Kumar Choubey. Thus, the aforesaid statement of the prosecution
witnesses particularly informant on this point i.e. assault made with lathi
by the aforesaid appellants Vinod Kumar Choubey and Virendra Kumar
Choubey upon him, has fully corroborated by the testimony of P.W.13 i.e.
Doctor who had examined the injured informant.
116. On the basis of the aforesaid discussion, it is considered view of
this Court that appellants namely Vinod Kumar Choubey and Virendra
Kumar Choubey has committed the offence under section 321 of the IPC
punishable under Section 323 of the IPC.
117. The present appellants have been convicted under Section 452
and 341 IPC by the learned trial Court. In the aforesaid context it requires
to refer herein the Section 452 and 341 IPC, which has been quoted as
under:
“452.Whoever commits house-trespass, having made
preparation for causing hurt to any person or for assaulting any
person, or for wrongfully restraining any person, or for putting
and person in fear of hurt, or of assault, or of wrongful restraint,
shall be punished with imprisonment of either description for a
term which may extend to seven years, and shall also be liable to
fine.
341. Whoever wrongfully restrains any person shall be punished
with simple imprisonment for a term which may extend to one
month, or with fine which may extend to five hundred rupees, or
with both.”
118. Thus from the perusal of the aforesaid sections it is evident that
Whoever commits house-trespass, having made preparation for causing
hurt to any person or for assaulting any person, or for wrongfully
restraining any person, or for putting and person in fear of hurt, or of
assault, or of wrongful restraint shall be punished with imprisonment of
either description for a term which may extend to seven years.
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119. From perusal of the entire evidence on record it is the evident
that it the case of free fight between the close cognate and for same
transaction case and counter case was instituted. Further none of witnesses
has stated that they were wrongfully restrain by the present appellants,
therefore it is considered view of this Court the conviction of the present
appellants under the Section 452 of the IPC is not sustainable herein.
120. Further it has come on record that there is no recovery of the
alleged country made pistol which has been alleged to be used in the said
offence and in the preceding paragraph this Court has categorically held
that the use of said country made pistol in alleged commission of crime is
doubtful, as such it is considered view of this Court that the conviction of
the present appellants under Section 27 Arms Act is also not sustainable
herein.
Criminal appeal (DB) No. 114 of 2013 and Criminal appeal (SJ) No.
483 of 2013.
121. As referred hereinabove the aforesaid appeals have been
preferred against the conviction dated 13.02.2013 and the order of
sentence dated 19.02.2013 passed by the learned Addl. Sessions Judge-1st,
Garhwa in S.T. No. 32 of 1999 whereby and whereunder the appellants,
above-named, have been convicted under sections 323 IPC. The convict-
appellant, namely, Deo Kumar Chaubey in Criminal Appeal (DB) No. 114
of 2013 has also been convicted under section 304(1) IPC.
122. While convicting the appellants of the Cr. Appeal (SJ) No. 483
of 2013, the learned trial Court has opined that since the appellants,
namely, Sumant Kumar Chaubey and Rajendra Kumar Chaubey are first
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offenders as not previous conviction has been proved on record against
them, as such, they have been granted benefit of the Probation of
Offenders Act and they were directed to be released on furnishing a
probation bond of Rs.5000/- with two sureties which will be for
maintaining good conduct for two years.
123. While sentencing the sole appellant of the Cr. Appeal (DB) No.
114 of 2013, namely, Deo Kumar Chaubey the learned trial Court has
awarded sentence to undergo RI for 10 years under section 304(1) of the
Indian Penal Code with a fine of Rs.5,000/- and sentenced to fine of Rs.
5,000/- under section 323 IPC and in default of payment of fine, he is
directed to undergo SI for 1 month.
124. At this juncture it would be purposeful to discuss the testimony
of prosecution witnesses in order to answer the issues as referred in the
preceding paragraphs.
125. It is evident from record that in order to substantiate the case, the
prosecution had altogether examined 09 witnesses and they were PW.1
Ramdhyan Pal, PW.2 Binod Kumar Chaubey, who is the son of the
complainant Raj Kumar Chaubey, PW.3 Ramcharitar Chaubey, PW4-
Dinesh Kumar Chaubey, PW.5 Raj Kishor Chaubey, PW.6 Virendra
Chaubey, PW.7 Raj Kumar Chaubey (complainant/informant), PW.8
Krishna Tiwary has proved the report of Sergeant Major Rajdeo Rai, Ext.6
and PW.9 Mirtunjay Dubey has stated that he did not know about the
occurrence and he has been declared hostile.
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126. PW.1 Ramdhyan Pal has proved the signature of Raj Kumar
Chaubey on the protest petition, Ext. 1. He has further proved the signature
of the counsel of the Raj Kumar Chaubey Ext.1/1 also.
127. PW.2 Binod Kumar Chaubey, who is the son of the complainant
Raj Kumar Chaubey, has stated that the occurrence took place on
21.02.91, Thursday, at about 2 to 2.30 P.M. He was in his village. He heard
hallah of his father, who was saying for saving him, he came near his
house and saw that Dev Kumar Chaubey, Sumant Chaubey, Rajendra
Chaubey and Shardha Devi were bringing his father towards their house,
beating him. Deo Kumar Chaubey was armed with gun and Sumant and
Rajendra were armed with lathi. He tried to save his father. In the
meantime, his younger brother also came and he also tried to save his
father. Accused Deo Kumar Chaubey went his Varan dah and fired the
gun for killing Raj Kumar Chaubey. In the meantime, Nirmala Kumari
aged about 11-12 years, the daughter of the accused Deo Kumar Chaubey,
came there and the cartridge shoot her and she died at the spot. If Nirmala
would have not come, the cartridge would have hit Raj Kumar Chaubey.
He and his brother brought his father to his house. His father had got head
injury. They went to the police station thereafter.
128. PW.3 Ramcharitar Chaubey has stated that occurrence took place
on 21.02.91 at about 2 to 2.30 P.M. It was Thursday, on that day, he was
going to Sonpura to see nee the ‘yajna’. When he reached near the door of
Sunil Tiwary, he saw that there was abusing at the door of Raj Kumar
Chaubey. Deo Kumar Chaubey, Sumant Chaubey, Rajendra Chaubey and
Shardha Devi were abusing. Deo Kumar Chaubey was armed with gun
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and Sumant Chaubey and Rajendra Chaubey were armed with lathi. When
Raj Kamar Chaubey came out of his house, Sumant Chaubey and Rajendra
beat him by lathi and he got head injury. Deo Kumar Chaubey told them
to bring Raj Kumar Chaubey and he would kill him. Thereafter, they were
bringing Raj Kumar Chaubey in their dhaba. Raj Kumar Chaubey raised
hallah to save him, In the meantime, both sons of Raj Kumar Chaubey
namely Vinod Chaubey and Birendra Chaubey, he and other persons came
there. Both the sons caught his father. Thereafter, Deo Kumar Chaubey
went in his dhaba with his gun. In the meantime, Vimla, the daughter of
Dev Kumar Chaubey, came after seeing the yajana and she reached
between Dev Kimar Chaubey and Raj Kumar Chaubey. In the meantime,
Deo Kumar Chaubey fired the gun which hit the girl and she died.
129. PW.4 Dinesh Kumar Chaubey has stated that occurrence took
place on 21.02.91 at about 2 to 2.30 P.M. It was Thursday. He was in
Sonpurwa ‘yajna’. He came to know that there was quarrel between both
the brothers namely Deo Kumar Chaubey and Raj Kumar Chaubey and
fire was also done. Thereafter, he came to the place of occurrence. When
he reached, the occurrence had taken place. He saw that on the door of
Deo Kumar Chaubey, the dead body of his daughter Nirmala Kumari was
lying. The cartridge has pierced in the left kanpatti. He had heard that
cartridge from gun of Deo Kumar Chaubey hit the girl.
130. PW.5 Raj Kishor Chaubey has stated that the occurrence took
place on 21.02.91 at about 2 to 2.30 P.M. At that time, he was going to
bazzar. At the door of Deo Kumar Chaubey, there was halla Gulla. He
reached there and saw that Dev Kumar Chaubey, Rajendra Chaubey and
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Sumant Chaubey were pulling Raj Kumar Chaubey and were telling that
kill him after carrying. Deo Kumar Chaubey was armed with double barrel
gun. Sumant and Rajendra were armed with lathi. They carried away Raj
Kumar Chaubey at their door. On hallah, Binod Chaubey and Birendra
Chaubey both sons of Raj Kumar Chaubey reached there and started to
pull their father towards them. In the meantime, Deo Kumar Chaubey left
the hand of Raj Kumar Chaubey and went near his door and fired his gun.
In the meantime, Nirmala Kumari daughter of Deo Kumar Chaubey
reached there and the cartridge hit her. Thereafter the sons of Raj Kumar
Chaubey brought him to their house. Nirmala Kumari had died on the spot.
The police had reached at about 10.30 PM. in the night. The license of the
gun was in the name of Deo Kumar Chaubey himself. The cattle of Raj
Kumar Chaubey had entered in the field of Deo Kumar Chaubey. due to
it, they were pulling Raj Kumar Chaubey at their door. Raj Kumar
Chaubey had got injury. Therefore, he had also gone to the P.S. with him,
Dinesh Chaubey had gone later on. Raj Kumar Chaubey had given
statement to the Daroga.
131. PW.6 Virendra Chaubey is another son of the complainant Raj
Kumar Chaubey, He has stated that the occurrence took place on 21.02.91.
It was Thursday. It was 2 to 2.30 P.M. He was in his village. He heard the
voice of his father, who was telling to save him. He went towards his house
and saw that Deo Kumar Chaubey, Sumant Kumar Chaubey and Rajendra
Kumar Chaubey @ Susu and Shardha Devi were bringing his father
towards their house beating him. He tried to save him. The head of his
father had injured. There were abrasions on his entire body. Deo Kumar
Chaubey became angry and fired from his gun, which hit his own daughter
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Nirmala Kumari in place of his father. The daughter died there. He brought
his father to his house. Thereafter they went to Nagar Untari Police
Station. His father gave statement at the police station, thereafter he sent
Hospital where his treatment was done.
132. PW.7 Raj Kumar Chaubey is the complainant/injured himself.
He has stated that occurrence took place on 21.02.91 at about 2 to 2.30
P.M. On that day at about 10 to 11 P.M. one of his cattle had an entered
in the field of wheat crop of the accused Deo Kumar Chaubey. Deo Kumar
Chaubey, with his double barrel gun, went to his field and started to abuse
him taking his name. He went there and forbade him from abusing. He
told him as to what loss has been caused to him, he may take the same or
to carry the cattle to kani house. Both of them return to their house.
133. He had further deposed that on that day at about 2 to 2.30 P.M.
accused Deo Kumar Chaubey armed with his double barrel gun and his
son Sumant Chaubey and Susu Chaubey @ Rajendra Chaubey armed with
lathi and Shardha Devi came to his door and started to abuse him. He came
after hearing the abuse and forbade them from abusing. On it, he pointed
the gun towards him. In the meantime, one of the sons of Deo Kumar
Chaubey beat him from the back side on his head and he fell down.
Thereafter, Rajendra Chaubey and Sumant Chaubey caught him and were
trying to pull him towards their door. On his hallah, his sons Birendra
Chaubey and Vinod Chaubey reached there and they tried to pull him and
both the sons of Deo Kumar Chaubey pulling him towards them. Due to
it, Deo Kamar Chaubey became angry and from some distance fired the
gun towards him with intent to kill him. In the meantime, his daughter
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Nirmala Kamari came there and the gun hit her. She fell there. On it, the
accused persons started to see the girl leaving him. His sons brought him
to his house. He went to P.S. where; he gave his statement at about 03.30
Ρ.Μ. and told him the entire occurrence. The police issued a memo and
sent him to the Referal Hospital for treatment. The police had written his
statement but what was written by him, he could not know. Later on, he
came to know that police have written the entire statement. His statement
was done in the in Hospital. His statement was written at 03.30 P.M.
Thereafter he said that his statement was written at 10.30 P.M. also in the
Hospital, which was written wrongly. He was arrested by the police u/s
302 I.P.C. and remanded to jail custody. It was a false case by Deo Kumar
Chaubey. He was in jail till one and a half month in that case. When he
came out from the jail and he got copy of the case, he came to know that
case was weakened. Thereafter, he filed complaint case.
134. The learned counsel for the appellants has contended that the
prosecution version as recorded in the FIR, subject matter of Criminal
Appeal (DB) No.190 of 1994 (R) is also required to be taken into
consideration wherein the prosecution version is that the pellet has been
fired from the country made pistol while the recovery is of a licensee gun
belongs to Deo Kumar Chaudhary, one of the appellants in these appeals,
but admittedly the pellet which has been recovered from the body of the
deceased has not been fired from the said licensee gun.
135. It has further been contended that learned trial Court has failed
to take into consideration that this very occurrence the father of the
deceased namely, Deo Kumar Choubey has been convicted by the learned
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trial Court, which is apparently a mechanical judgment because for one
murder there cannot be two different accused when there is case and
counter case as such this case is nothing but abuse of the process of the
court.
136. In the backdrop of the aforesaid settled proposition of law and
after discussion of testimony of prosecution witnesses as well as
contention of the learned counsel for the appellants this Court in these
appeals is to consider following issues: –
(i)Whether the material as has come in course of trial is
sufficient to attract the ingredients of offence committed under
Section 304(1) of the Indian Penal Code against the appellants
namely Deo Kumar Chaubey? or
(ii) Whether the appellants are entitled for acquittal in absence
of cogent evidences?
137. Since, all the aforesaid issues are inextricably interlinked,
therefore, the same are being discussed and decided hereinbelow together.
138. Herein as per the complaint-cum-protest petition, wherein it has
been alleged that on 21.02.91 at about 01.30 PM bullock of the
complainant (accused/appellant in Criminal Appeal (DB) No.190 of 1994
(R)) had grazed the wheat crops of the accused Deo Kumar Chaubey
(appellant in Cr. Appeal (DB) No. 114 of 2013) from his field. Deo Kumar
Chaubey @ Onkar Chaubey, armed with Licence gun, went to the wheat
field and started to abuse.
139. On the same day at about 02.00 P.M., the accused Deo Kumar
Chaubey @ Onkar Chaubey, his son Rajendra Chaubey @ Susu Chaubey,
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Sumant Chaubey and his wife Shardha Devi came at the door of the
complainant and started to abuse him and when the complainant came out
of his house and tried to get understand them, the accused Deo Kumar
Chaubey pointed the gun upon him.
140. In the meantime, one of the sons of Deo Kumar Chaubey assaulted him
from the back side on his head and he fell down. and When Binod
Chaubey, Birendra Chaubey (sons of the complainant) saw him they came
there and tried to save their father.
141. In the meantime, a fire took place from the gun of Deo Kumar
Chaubey, which hit Nirmala Kumari, the daughter of the accused Deo
Kumar Chaubey. The accused persons started to see Nirmala Kumari. In
the meantime, both the sons of the complainant brought him to their house.
142. Thus, from the factual aspect it is evident that there is allegation
against the Deo Kumar Choubey that he had fired his gun during the said
feud which hit Nirmala Kumari, the daughter of the accused Deo Kumar
Chaubey and the said Nirmala Kumari, died on the spot instantly.
143. It has further come on the investigation that the gun of the
appellant Deo Kumar Chaubey has been sent for the examination to the
ballistic expert. Further, PW.8 Krishna Tiwary has proved the report of
Sergeant Major Rajdeo Rai which has been marked as Ext.6.
144. From perusal of the report of Sergeant Major, it is evident that he
had examined one regular D.B.B.L. gun which was seized in connection
with Nagar Untari P.S.Case No.24/91 (Session Trial No. 228 of 1991)
and he found that firing was done from both barrels, of the gun in the
recent past. He has however, also admitted that only chemical expert could
say as to in how many days smell evaporates from the gun. He had
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examined the gun on 9.3.91 i.e. after 16 days of the occurrence. However,
he has also stated that the gun might have been fired about a week or ten
days ago. He has, however, admitted that the gun was not sent to chemical
expert for chemical examination.
145. Thus, from the aforesaid factual aspect it is evident that one
regular D.B.B.L. gun which was seized in connection with Nagar Untari
P.S.Case No.24/91 (Session Trial No. 228 of 1991), but in the said report
it has not come that the material i.e. one plastic piece and 44 metalic
pieces, which has been found from the brain matter and the cavity , has
actually been fired from the said gun, therefore in absence of such finding
it cannot be stated that the prosecution has successfully proved the charge.
under section 304(1) of the IPC against the appellant Deo kumar Chaubey
beyond reasonable doubt.
146. At this juncture it needs to refer herein that the Hon’ble Apex
Court has categorically held in the case of Ravi Sharma v. State (NCT of
Delhi), (2022) 8 SCC 536 that the report of the ballistic expert is
obviously scientific evidence in the nature of an opinion. It is required to
use this evidence along with the other substantive piece of evidence
available on record, for ready reference the relevant paragraph of the
aforesaid judgment is being quoted as under:
“19. The report of the ballistic expert is obviously a scientific evidence
in the nature of an opinion. It is required to use this evidence along with
the other substantive piece of evidence available. The report is
inconclusive with respect to the firearm belonging to the appellant
being used for committing the offence.”
147. Further, the Hon’ble Apex Court in the almost similar
circumstances which is available herein has observed in the case of
Sukhwant Singh v. State of Punjab, (1995) 3 SCC 367 that where injuries
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are caused by firearms, the opinion of the ballistic expert is of a
considerable importance where both the firearm and the crime cartridge
are recovered during the investigation to connect an accused with the
crime. Failure to produce the expert opinion before the trial court in such
cases affects the creditworthiness of the prosecution case to a great extent.
For ready reference the relevant paragraph of the aforesaid judgment is
being quoted as under:
21. There is yet another infirmity in this case. We find that whereas an
empty had been recovered by PW 6, ASI Raghubir Singh from the spot
and a pistol along with some cartridges were seized from the possession
of the appellant at the time of his arrest, yet the prosecution, for reasons
best known to it, did not send the recovered empty and the seized pistol
to the ballistic expert for examination and expert opinion. Comparison
could have provided link evidence between the crime and the accused.
This again is an omission on the part of the prosecution for which no
explanation has been furnished either in the trial court or before us. It
hardly needs to be emphasised that in cases where injuries are caused
by firearms, the opinion of the ballistic expert is of a considerable
importance where both the firearm and the crime cartridge are
recovered during the investigation to connect an accused with the
crime. Failure to produce the expert opinion before the trial court in
such cases affects the creditworthiness of the prosecution case to a
great extent.
148. Now re-adverting to fact of the instant case it is evident that there
is no cogent evidence available on record to prove that the appellant
namely Deo Kumar Chaubey was the author of the gunshot which killed
Nirmala Kumari (daughter of appellant/accused namely Deo Kumar
Chaubey). Further, the ballistic report did not support the prosecution case
substantially as there is no finding in the said report regarding the pellets
(metallic ball) found in the brain matter of deceased, has been fired from
the said Gun belonging to the appellant.
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149. Thus, even at the cost of repetition, this Court is of considered
view that there was no evidence on record suggestive of the inference
which was drawn by the learned trial Judge against the present appellant
namely Deo Kumar Chaubey (appellant in Criminal Appeal (DB)No. 114
of 2013) that he was author of the shot that hit and killed the deceased
Nirmala Kumari, therefore the conviction of the appellant namely Deo
Kumar Chaubey under Section 304 (1) is not sustainable herein.
150. So far as the conviction of the appellants (Cr. Appeal (DB) No.
114 of 2013 and Cr. Appeal (DB) No. 483 of 2013) under Section 323 of
the IPC is concerned it is evident that the persons of both sides i.e.
complainant Raj Kumar Choubey (since dead) and the appellant Deo
Kumar Chaubey have sustained simple injuries and both have been
medically examined on the requisition of the police and their injuries
report have been marked as annexure before the learned trial court.
151. Therefore, on the basis of discussion made hereinabove, this
Court is of the considered view that the conviction of the appellants (Cr.
Appeal (DB) No. 114 of 2013 and Cr. Appeal (SJ) No. 483 of 2013) by
the learned trial Court under Section 323 of the IPC requires no
interference.
Conclusion
Cr. Appeal (DB) No. 190 of 1994(R)
152. Thus, on the basis of discussion made hereinabove it is
considered view of this Court that the conviction of the appellants of the
Cr. Appeal (DB) No. 190 of 1994 (R) under sections 452, 341, 307/34,
302/34 of the IPC is not sustainable in the fact and circumstances of the
instant case, therefore the appellants of Cr. Appeal (DB) No. 190 of 1994
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(R) are hereby acquitted from all the charges. Further the appellant,
namely, Satyendra Choubey has also been acquitted from the charge under
section 27 of the Arms Act.
153. Since, this Court has found that the appellants of Cr. Appeal
(DB) No. 190 of 1994 (R), namely, Vinod Kumar Choubey and Virendra
Kumar Choubey guilty for the offence under section 321 of the IPC
punishable under Section 323 of the IPC, accordingly they have been
sentenced for the period already undergone by them.
154. This Court, therefore, is of the view based upon the discussions
made hereinabove, that the impugned judgment (assailed in Cr. Appeal
(DB) No. 190 of 1994) needs interference, accordingly, the judgment of
conviction and the order of sentence both dated 30.11.1994 passed by the
learned 4th Addl. Sessions Judge, Palamu, Daltonganj in Sessions Trial
No. 228 of 1991 is hereby quashed and set aside.
155. Since from the record it is evident that appellants of Cr. Appeal
(DB) No. 190 of 1994 (R) are on bail, therefore they are discharged from
the liability of their bail bond.
156. In view of the above, Cr. Appeal (DB) No. 190 of 1994 (R) is
hereby partly allowed.
Cr. Appeal (DB) No. 114 of 2013 and Cr. Appeal (SJ) No. 483 of 2013
157. Thus, on the basis of discussion made hereinabove it is
considered view of this Court that the conviction of the appellant namely
Deo Kumar Chaubey (appellant in Cr. Appeal (DB) No. 114 of 2013)
under Section 304 (1) of the IPC is not sustainable in the fact and
circumstances of the instant case, therefore the appellant namely Deo
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Kumar Chaubey are hereby acquitted from the charge under Section 304
(1) of the IPC.
158. Further this Court is of the considered view that the conviction
of the present appellants by the learned trial court under Section 323 of
the IPC requires no interference by this Court.
159. Accordingly, the judgment of conviction dated 13.02.2013
passed by the learned Addl. Sessions Judge-1st, Garhwa in S.T. No. 32 of
1999 are modified to the extent as discussed above.
160. With the aforesaid observations/directions, the Cr. Appeal (DB)
No. 114 of 2013 is hereby partly allowed and Cr. Appeal (SJ) No. 483 of
2013 stands dismissed.
161. Since from the record it is evident that appellant of Cr. Appeal
(DB) No. 114 of 2013, namely, Deo Kumar Choubey is on bail, therefore
he is discharged from the liability of his bail bond.
162. Pending I.As, if any, stands disposed of.
163. Let lower Court records be transmitted to the Court concerned,
forthwith.
(Sujit Narayan Prasad, J.)
I Agree.
(Rajesh Kumar, J.)
(Rajesh Kumar, J.)
Sudhir
Jharkhand High Court,
Dated:08/07/2025
AFR
65
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