Patna High Court
Sunil Yadav vs The State Of Bihar on 16 January, 2025
Author: Alok Kumar Pandey
Bench: Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1145 of 2018
Arising Out of PS. Case No.-31 Year-2010 Thana- ASHTHAWAN District- Nalanda
======================================================
Ranjay Yadav Son of Late Ghutaru Yadav, Resident of Village- Sakarawan,
P.S.- Asthawan, District- Nalanda.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1119 of 2018
Arising Out of PS. Case No.-31 Year-2010 Thana- ASHTHAWAN District- Nalanda
======================================================
Sunil Yadav S/o Late Ghafru Yadav, R/o Vill.- Sakrawan, P.S.- Asthawan,
District- Nalanda.
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1145 of 2018)
For the Appellant : Mr. Y.V. Giri, Senior Advocate
Mr. Pranav Kumar, Advocate
Ms. Shrishti Singh, Advocate
For the State : Mr. Sujit Kumar Singh, APP
(In CRIMINAL APPEAL (DB) No. 1119 of 2018)
For the Appellant : Kumari Sujata Sinha, Advocate
For the State : Mr. Sujit Kumar Singh, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
Date : 16-01-2025
Heard Mr. Y.V. Giri, learned Senior Advocate,
assisted by Mr. Pranav Kumar for the appellant in Criminal
Appeal (DB) No.1145 of 2018, Kumari Sujata Sinha, learned
Patna High Court CR. APP (DB) No.1145 of 2018 dt.16-01-2025
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counsel for the appellant in Criminal Appeal (DB) No.1119 of
2018 and Mr. Sujit Kumar Singh, learned Additional Public
Prosecutor for the State.
2. Both the appeals are filed under Section 374(2) of
the Code of Criminal Procedure, 1973 (hereinafter referred to as
'the Code') against the judgment of conviction dated 10.08.2018
and order of sentence dated 18.08.2018, passed by the court of
learned Presiding Officer, F.T.C.-I, Nalanda, Biharsharif in
Sessions Trial No.636/2010, arising out of Ashthawan P.S. Case
No.31/2010, whereby the court has convicted the appellants for
the offences punishable under Sections 302/34 of the Indian
Penal Code as well as under Section 27 of the Arms Act and
they have been sentenced to undergo R.I. for life and to pay a
fine of Rs.20,000/- (Rs. Twenty Thousand only) for the offence
punishable under Sections 302/34 of the Indian Penal Code and
in default of payment of fine, the appellants have to undergo
R.I. for a period of three years. The appellants are further
sentenced to undergo R.I. for three years and to pay a fine of
Rs.5,000/- (Rs. Five Thousand only) for the offence punishable
under Section 27 of the Arms Act and in default of payment of
fine, the appellants have to undergo R.I. for three months. Both
the sentences have been directed to run concurrently.
Patna High Court CR. APP (DB) No.1145 of 2018 dt.16-01-2025
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3. As the common judgment of conviction and order
of sentence is under challenge, learned counsels appearing for
the parties jointly requested that both these appeals be heard
together and be disposed of by common judgment. Hence, we
have taken up both these appeals together for final disposal.
4. Mr. Y.V. Giri, learned Senior Counsel appearing in
Criminal Appeal (DB) No.1145 of 2018 has contended that PW-
6, Runi Devi is the informant, whose fardbeyan was recorded on
06.04.2010
at 07:00 a.m. wherein she has mainly stated that her
father is Late Ramdhari Yadav and after her birth, the brother-
in-law of her father, i.e., her maternal uncle Saryug Yadav
adopted her when she was two years old as Saryug Yadav had
no child. She was married to Ram Uchit Yadav in Ali Nagar.
When she was 10-12 years old and unmarried, at that time the
four sons of her father’s brother, namely, Ranjay Yadav, Sunil
Yadav, Anil Yadav and Ramjatan Yadav started pressurizing her
father Saryug Yadav to transfer all the land in the name of all of
them and they will take care of him. But when her father did not
listen to them, the above mentioned four nephews beat her
father and broke his leg for which a case of land dispute was
also filed which was decided in favour of her father by the
court. Her father and mother were threatened to be killed by the
Patna High Court CR. APP (DB) No.1145 of 2018 dt.16-01-2025
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above mentioned four nephews for not transferring the land to
them. Her father decided to sell all the property of Sakrawan
and settle down with her. About a day ago, a nephew of Arvind
Yadav from another gotiya fixed the price of the total
agricultural land at Rs. 2.5 lakh. When the four sons of late
Ghutar Yadav came to know about this, all the four brothers
threatened her father that if he sells the land, they will kill him.
Her father got scared and went and started living in Ali Nagar.
Four-five days ago, Arvind Yadav informed her father to register
his land and take the money. Thereafter her father came to
village Sakrawan and last night at 1 o’ clock her father Saryug
Yadav and mother Leela Devi were shot dead while sleeping in
the house by the above four nephews of her father. The
informant claims that her father and mother have been murdered
by Ranjay Yadav, Sunil Yadav, Anil Yadav and Ramjatan Yadav
by shooting them so that their property could be usurped.
4.1. Learned Senior Counsel further submits that
after registration of the FIR on the basis of the aforesaid
fardbeyan, the Investigating Officer carried out the investigation
and thereafter filed charge-sheet against both these appellants
before the concerned Magistrate court. As the case was
exclusively triable by Court of Sessions, the learned Magistrate
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committed the same to the concerned Sessions Court where the
same was registered as Sessions Trial No.636/2010.
4.2. It is thereafter contended that before the Trial
Court, the prosecution had examined 9 witnesses and also
produced certain documentary evidence. Thereafter further
statement of the accused under Section 313 of the Code came to
be recorded. The learned Trial Court thereafter passed the
common judgment of conviction and order of sentence against
which both the convicts have filed separate appeals.
4.3. Mr. Giri, learned Senior Counsel has assailed
the impugned judgment of conviction and order of sentence by
contending that the prosecution has projected PW-6, Runi Devi
as eye-witness however, from the deposition of the prosecution
witnesses, it can be said that PW-6 is not an eye-witness and she
was not present at the place of occurrence. It is further
submitted that there is no other eye-witness to the incident in
question and, therefore, the case of the prosecution rests on the
deposition of PW-6. It is further submitted that PW-8, Dr. Satish
Chandra Sinha, who had conducted post-mortem on the dead
body of the deceased, has said only about the post-mortem
conducted by him qua one of the deceased, i.e., Leela Devi.
However, there is no reference in his deposition with regard to
Patna High Court CR. APP (DB) No.1145 of 2018 dt.16-01-2025
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the post-mortem of another deceased, i.e., Saryug Yadav. It is
also contended that the prosecution has failed to produce the
inquest report of both the deceased. Similarly, post-mortem
reports of both the deceased are also not on record. Learned
Senior Counsel, therefore, contended that even the prosecution
has failed to establish that the death of Saryug Yadav was a
homicidal death. Mr. Giri, learned Senior Counsel would further
submit that there are major contradictions, improvement and
inconsistencies in the deposition of the prosecution witnesses. It
has been pointed out from the evidence that PW-5 and PW-9
have been declared hostile and they have not supported the case
of the prosecution.
4.4. Learned Senior Counsel further submits that
from the deposition given by PW-7, the Investigating Officer, it
is revealed that he reached at the place of occurrence at about
03:30 a.m. and thereafter the seizure list was prepared at 04:00
a.m. It has been pointed out from the record that the seizure list
was signed by PW-1 and PW-4. However, though the aforesaid
witnesses were present and signed the seizure list and as per the
deposition given by the aforesaid witnesses, they came to know
about the incident in question from Runi Devi at 11:00 p.m. of
05.04.2010 and 02:00 a.m. of 06.04.2010, the said witnesses did
Patna High Court CR. APP (DB) No.1145 of 2018 dt.16-01-2025
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not disclose the names of the assailants to the police officer who
was present at 03:30 a.m. It is further submitted that as per the
case of the informant, deceased Leela Devi was the maternal
aunt of informant Runi Devi and deceased Saryug Yadav was
the husband of Leela Devi. However, it is the case of the
informant that both the deceased adopted her when she was
aged about 2 years. However, the informant has failed to
produce the adoption deed before the court. The adoption deed
was also not produced by her before the Investigating Officer. It
has been pointed out that all the accused are nephews of
deceased Saryug Yadav. Thus, it appears that because of the land
dispute, the appellants/accused have falsely been implicated by
the informant. Learned Senior Counsel submits that even
otherwise also, the prosecution has failed to prove the case
against the accused beyond reasonable doubt and, therefore, the
Trial Court ought to have acquitted the appellants herein.
Learned Senior Advocate, therefore, urged that both these
appeals be allowed and the impugned judgment of conviction
and order of sentence be quashed and set aside.
5. Kumari Sujata Sinha, learned counsel appearing
for the appellant in Criminal Appeal (DB) No.1119 of 2018 has
adopted the submissions canvassed by Mr. Y.V. Giri, learned
Patna High Court CR. APP (DB) No.1145 of 2018 dt.16-01-2025
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Senior Counsel appearing in other appeal.
6. On the other hand, Mr. Sujit Kumar Singh,
learned Additional Public Prosecutor for the State has opposed
the present appeals. He would mainly contend that the informant
is an eye-witness to the incident in question and she has
specifically narrated about the manner in which the incident
took place and in fact she has identified the accused in lantern
light. It is further submitted that the prosecution has also proved
the motive on the part of the accused to kill both the deceased
and in fact the present is a case of double murder. The learned
Additional Public Prosecutor, therefore, contended that when
the prosecution has proved the case against the accused beyond
reasonable doubt, the Trial Court has not committed any error
while passing the impugned judgment of conviction and order
of sentence. He therefore, urged that both these appeals be
dismissed.
7. Having heard learned counsels appearing for the
parties and having gone through the Trial Court records, it
would emerge that fardbeyan of PW-6, Runi Devi came to be
recorded on 06.04.2010 at 07:00 a.m. If the said fardbeyan is
carefully seen, it is revealed that in the fardbeyan, the informant
has stated that her maternal aunt and maternal uncle were not
Patna High Court CR. APP (DB) No.1145 of 2018 dt.16-01-2025
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having any child. She was adopted by them when she was aged
about 2 years. She has also stated about the dispute with regard
to land between the accused, who are nephews of Saryug Yadav,
with the deceased. She has also stated that she got married and
her matrimonial house is at Ali Nagar. She has disclosed about
the altercation which took place between the deceased Saryug
Yadav as well as the accused with regard to the land and the
threats given by the accused. However, there is no reference in
the fardbeyan that she was present at the place of occurrence
during night hours at 01:00 a.m. when the alleged incident took
place.
7.1. Keeping in view the aforesaid fardbeyan, if the
deposition given by informant (PW-6) before the court is
carefully examined, she has, for the first time, deposed before
the court that at about 01:00 a.m. she was at her maternal house
(ek;ds) at Sakrawan and incident took place during night hours
when all the accused came at the house of Saryug Yadav and
opened fire in which bullet hit Saryug Yadav as well as Leela
Devi. Both the persons died at the spot. She has also narrated
about the motive on the part of the accused to kill both the
deceased. She has further stated in examination-in-chief that she
identified the accused in the lantern light.
Patna High Court CR. APP (DB) No.1145 of 2018 dt.16-01-2025
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7.2. During cross-examination, PW-6 has stated that
her marriage was solemnized before 8-9 years from the date of
occurrence and thereafter she was residing at her matrimonial
house which is situated at a distance of about 8 kms from village
Sakrawan. She has further stated that she was adopted by
Saryug Yadav and the document was also prepared with regard
to the same. She has further stated that she was present at the
place of occurrence and nobody informed her about the incident.
On the date of incident in the morning, she came to Sakrawan.
However, quarrel did not take place on the date of incident
between her maternal aunt and uncle with the accused. She
further stated that she woke up after hearing the sound of firing
and she found blood oozing out from the body of her uncle
(ekSlk). However, she did not find any blood on the body of her
maternal aunt. She further stated that she could not see the blood
because she hurriedly rushed outside and thereafter she ran
away from the place of incident. However, she did not raise any
alarm. She has further stated that village people gathered at the
place of occurrence after hearing the sound of firing. However,
she ran away from the said place and did not return. She
returned in the morning at about 06:00-07:00 a.m. with other
persons of her family. In the meantime, police came to the place
Patna High Court CR. APP (DB) No.1145 of 2018 dt.16-01-2025
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of occurrence. Specific suggestion was put to the said witness
that she was not present at village Sakrawan which is at a
distance of 9-10 kms. away from Ali Nagar, the place at which
she was residing, however, she has denied the said suggestion.
8. At this stage, we would like to refer the deposition
given by PW-1, Ravindra Prasad Yadav who has signed the
seizure list. PW-1 has deposed that his statement was recorded
by the police and the police seized five empty cartridges of 315
bore and five pellets from the place of occurrence which were
lying near the dead body of both the deceased. The said seizure
list was signed by him as well as one Krishna Kumar Yadav.
8.1. During cross-examination, PW-1 has stated that
he is resident of Ali Nagar and the distance between Ali Nagar
and the place of occurrence is 9 kms. The said witness has
specifically admitted that incident did not take place in his
presence. At that time, he was at Ali Nagar. He further admits
that Runi Devi (informant) informed him about the names of the
accused. The said information was given by Runi Devi at 02:00
a.m. The said information was given by Runi Devi on telephone
which was made from the house of Virendra Yadav. The said
witness further admitted during cross-examination that blood
was fallen on cot and bed. He further states that blood was
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found on the clothes of both the deceased. He has further
admitted that he remained at the place of occurrence for two
hours and the police officer also inquired from him at the place
of incident. He has further stated that prior to that, police also
inquired from Runi Devi.
9. PW-4, Krishna Kumar Yadav is also one of the
signatories of the seizure list. The said witness has also deposed
that the incident of murder took place in the night of 5/6 April
and he was informed by Runi Devi in this regard. The accused
always put pressure upon the deceased for the purpose of
grabbing the land. Darogaji seized five empty cartridges and
five pins from the place of occurrence. Darogaji also prepared
seizure list and he had signed the seizure list. This witness
claims to identify the accused persons.
9.1. The said witness has stated in his cross-
examination that he lives in Ali Nagar. Runi Devi informed him
on telephone about the murder at 11:00 p.m. The said witness
specifically admitted in his cross-examination that he reached
Sakrawan at 04:00 a.m. alongwith Ravindra Yadav, Ramuchit
Yadav, Ashok Yadav, Anil Yadav and Parvati Devi. He did not
see the murder with his own eyes and he has deposed regarding
the murder based on what he heard. Darogaji reached Sakrawan
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at 02:00 a.m. Darogaji recorded his statement at 10:00-11:00
a.m. The statement of Runi Devi was recorded by Darogaji
firstly at 05:00-06:00 a.m. He had read the fardbeyan of Runi
Devi. The paper relating to empty cartridge was prepared at
11:00 a.m.
10. From the deposition given by PW-1 and PW-4, it
is revealed that both the witnesses are not the eye-witnesses to
the occurrence in question. PW-1 states that he came to know
about the incident and names of accused when PW-6
(informant) made telephone call at about 02:00 a.m. Further
PW-4 has stated that he came to know about the incident and the
names of assailants at about 11:00 p.m. from PW-6, Runi Devi.
We are of the view that there are major contradictions and
inconsistencies in the story put forward by the prosecution
witnesses. At this stage, we have also gone through the seizure
list (Ext.1), which is signed by PW-1 and PW-4. It is revealed
from the seizure list that the same was prepared at 04:00 a.m.
11. It would further reveal from the evidence led by
the prosecution that PW-5, Ramadin Yadav and PW-9,
Brindeshwari Yadav have not supported the case of the
prosecution and they have turned hostile. Further, PW-2, Sanjay
Sharma and PW-3, Binod Sharma are also not the eye-witnesses
Patna High Court CR. APP (DB) No.1145 of 2018 dt.16-01-2025
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to the incident in question and as per their deposition they have
signed the inquest report of both the deceased. However, it is
relevant to note that the prosecution has failed to produce the
inquest report of both the deceased.
12. PW-7, Vijay Kumar Singh is the Investigating
Officer who has carried out the investigation. The said witness
has stated that on 06.07.2010, he was posted in Ashthawan
police station. He had recorded the fardbeyan of Runi Devi. The
said fardbeyan has been signed by two witnesses, Krishna
Kumar and Sunil Kumar. The FIR was registered under Section
302 read with 34 of the Indian Penal Code as well as under
Section 27 of the Arms Act. He has further stated that he has
visited the place of occurrence and prepared the seizure list.
Witnesses, Ravindra Yadav and Bhushan Kumar Yadav have
signed the said seizure list. The said witness further deposed that
inquest report was also prepared by him in presence of two
independent witnesses. However, he has stated that the said
aspect is not mentioned in the case diary. He further deposed
that he reached at the place of occurrence at about 03:30 a.m. on
06.04.2010. He had recorded the fardbeyan of Runi Devi at
about 08:00 a.m. he inquired with the persons who reside near
the place of occurrence. He has further admitted that he did not
Patna High Court CR. APP (DB) No.1145 of 2018 dt.16-01-2025
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reference in seizure list. He did not prepare the seizure list with
regard to the clothes of the deceased. The said witness further
admitted that Runi Devi did not produce any document with
regard to her adoption by the deceased. The Investigating
Officer further admitted that Krishna Kumar did not disclose the
names of the accused.
13. PW-8, Dr. Satish Chandra Sinha has deposed that
on 06.04.2010, he was posted as Medical Officer at Sadar
Hospital, Biharsharif and he had conducted the post-mortem on
the dead body of late Leela Devi. He had found following
injuries on the person of the deceased:
External appearance:
(1) Rigor Mortise present in all four limbs;
( 2) Lacerated wound with inverted margin and charring
surrounded by carbon dust size 2.5″ x 3″ x bone deep at left
cheek;
(3) Lacerated wound over right cheek with everted margin,
posterior auricular area with everted margin;
(4) Right tempo parietal area with inverted margin;
(5) Burn & congested ulcer over right shoulder.
Anterior aspect:
On dissection: Lacerated wound passes to & to with loss of
brain matter brain vessels & is meninges;
Thoracic Cavity – Intact;
Both hungs- pale, Heart – left chamber empty;
Abdominal Cavity; Intact. All abdominal viscera like liver,
spleen, kidney intact & pale. Stomach -intact contained 10
gram gastric juice.
Time elapsed since death – 6 to 36 hours.
Cause of death- In my opinion cause of death due to head
injury and hemorrhage & shock produced by fire arms
injuries.
14. After re-appreciating the entire evidence of the
Patna High Court CR. APP (DB) No.1145 of 2018 dt.16-01-2025
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by the prosecution, it would reveal that the prosecution has
failed to produce inquest report of both the deceased. Similarly,
post-mortem reports of both the deceased are also not duly
exhibited. It is pertinent to note that PW-8 (doctor) has deposed
with regard to the post-mortem of deceased Leela Devi only and
there is no reference with regard to the post-mortem conducted
by the said witness on the dead body of deceased Saryug Yadav.
Thus, we are of the view that the prosecution has failed to prove
that death of Saryug Yadav was a homicidal death.
15. It would further reveal from the deposition given
by the prosecution witnesses that the prosecution has projected
PW-6 (informant) as eye-witness and there is no other eye-
witness to the incident in question. It is pertinent to note at this
stage that in the fardbeyan, Runi Devi has not stated that she has
seen the occurrence in question and she ran away from the place
as she was frightened. The said aspect has been stated by her
before the court while giving her deposition. She has narrated a
new story by stating that she heard the sound of firing and,
therefore, she woke up and found the blood oozing out from the
body of her maternal uncle (ekSlk) and thereafter she ran away
from the place and went to her matrimonial house at village Ali
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Nagar situated at a distance of 9 kms. She has further
specifically admitted that she returned to the place of
occurrence, i.e., at village Sakrawan in the morning at about
07:00-08:00 a.m. with her family members and thereafter gave
her fardbeyan. We are of the view that there is an improvement
in the version given by PW-6 and there are major
inconsistencies in her deposition. It would further reveal from
the deposition given by PW-1, PW-4 and PW-7 that the
Investigating Officer reached at the place of occurrence at about
03:30 a.m. The seizure list was prepared by him at about 04:00
a.m., i.e., prior to registration of the FIR. The said seizure list
was signed by PW-1 and PW-4. Further from the deposition
given by PW-1, it transpires that the said witness has admitted
that he came to know about the incident in question from Runi
Devi at about 02:00 a.m. when she disclosed the names of the
assailants and informed him on telephone which was made from
the house of Virendra Yadav. Further, PW-4 has stated he came
to know about the incident from Runi Devi and she disclosed
the names of the assailants. It is pertinent to note that the
aforesaid witnesses have admitted that they remained present at
the place of occurrence after the police came at the said place
and it is the specific admission of the said witnesses that the
Patna High Court CR. APP (DB) No.1145 of 2018 dt.16-01-2025
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police inquired with them at the said place. The question,
therefore, arises for consideration that if the said witnesses were
aware about the names of the assailants, why names of the
accused were not disclosed to the police at the time of preparing
the seizure list as the police was already present at the place at
about 03:30 a.m. It is relevant to observe that the fardbeyan of
Runi Devi was recorded at 07:00 a.m. and as per her deposition,
the same was recorded when she returned from Ali Nagar to
village Sakrawan, i.e., the place of occurrence. It is the specific
case of the defence that the appellants are the nephews of
Saryug Yadav and the informant is the niece of Leela Devi and,
therefore, with a view to grab the land of the deceased, the
appellants have falsely been implicated. We are of the view that
the aforesaid defence taken by the appellants cannot be ruled
out. From the evidence led by the prosecution and more
particularly from the deposition given by PW-6, it can be said
that though PW-6 is not an eye-witness, she was projected as
eye-witness to the occurrence in question and time in lodging
the FIR was taken by the informant with a view to falsely
implicate the appellants.
16. It is also required to be observed at this stage
that PW-8 has deposed about the injury sustained by deceased
Patna High Court CR. APP (DB) No.1145 of 2018 dt.16-01-2025
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Leela Devi however, there is no reference in the deposition of
the said witness with regard to post-mortem conducted by him
qua another deceased, namely, Saryug Yadav. It is pertinent to
note that the prosecution has failed to prove the cause of death
of the another deceased Saryug Yadav as there is no evidence
led by the prosecution with regard to the death of the deceased
Saryug Yadav. The inquest report of both the deceased are also
not on record nor the post-mortem reports of the deceased were
produced by the prosecution.
17. Thus, looking to the aforesaid evidence led by
the prosecution, we are of the view that the prosecution has
failed to prove the case against the appellants beyond reasonable
doubt and, therefore, benefit of doubt is required to be given to
the appellants herein. We are, therefore, of the view that the
Trial Court has committed an error while passing the impugned
judgment of conviction and order of sentence against the
appellants. Hence, the same is required to be quashed and set
aside.
18. Accordingly, both these appeals stand allowed.
The impugned common judgment of conviction dated
10.08.2018 and order of sentence dated 18.08.2018, passed by
the Presiding Officer of F.T.C. No.-I, Nalanda, Biharsharif in
Patna High Court CR. APP (DB) No.1145 of 2018 dt.16-01-2025
20/20
Sessions Trial No.636/2010, arising out of Ashthawan P.S. Case
No.31/2010, are hereby quashed and set aside. The appellants
are acquitted of the charges levelled against them by the learned
Trial Court.
18.1. Since both the appellants are in jail, they are
directed to be released from jail custody forthwith, if their
presence is not required in any other case.
(Vipul M. Pancholi, J.)
(Alok Kumar Pandey, J.)
Sanjay/-
AFR/NAFR AFR CAV DATE NA Uploading Date 21.01.2025 Transmission Date 21.01.2025
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