Patna High Court - OrdersPrakash Kumar vs The State Of Bihar on 2 August, 2022Bench:Chakradhari Sharan Singh,Khatim RezaIN THE HIGH COURT OF JUDICATURE AT PATNA\n                      CRIMINAL APPEAL (DB) No.516 of 2021\n          Arising Out of PS. Case No.-301 Year-2016 Thana- BIDUPUR District- Vaishali\n     ======================================================\n1.    BINOD KUMAR BHAGAT S/O SRI RAMBRISH BHAGAT R/o village-\n      Kuttubpur, P.O.- Kuttubpur Saidpur, P.S.- Biddupur, District- Vaishali\n2.    Pramod Kumar S/o Sri Rambrish Bhagat R/o village- Kuttubpur, P.O.-\n      Kuttubpur Saidpur, P.S.- Biddupur, District- Vaishali\n                                                              ... ... Appellants\n                                        Versus\n     The State of Bihar\n                                                            ... ... Respondent\n     ======================================================\n                                             with\n                     CRIMINAL APPEAL (DB) No. 503 of 2021\n          Arising Out of PS. Case No.-301 Year-2016 Thana- BIDUPUR District- Vaishali\n     ======================================================\n     PRAKASH KUMAR Son of Paramhans Bhagat Resident of Village - Bajitpur\n     Saidat, P.S.- Bidupur, District - Vaishali\n                                                         ... ... Appellant\n                                           Versus\n     The State of Bihar\n                                                      ... ... Respondent\n     ======================================================\n                                             with\n                     CRIMINAL APPEAL (DB) No. 523 of 2021\n          Arising Out of PS. Case No.-301 Year-2016 Thana- BIDUPUR District- Vaishali\n     ======================================================\n     SUNITA DEVI W/o Surendra Bhagat Resident of Village - Kuttubpur Dighra,\n     P.O.- Kuttubpur Saidpur, P.S.- Biddupur, District - Vaishali.\n                                                                      ... ... Appellant\n                                        Versus\n     The State of Bihar\n                                                                   ... ... Respondent\n     ======================================================\n                                             with\n                     CRIMINAL APPEAL (DB) No. 543 of 2021\n          Arising Out of PS. Case No.-301 Year-2016 Thana- BIDUPUR District- Vaishali\n     ======================================================\n1.    UPENDRA BHAGAT S/o Late Jhabbu Bhagat R/o village- Kutubpur, P.S.-\n      Bidupur, District- Vaishali (Hajipur)\n2.   Bindeshwar Singh S/o Late Ganesh Singh R/o village- Kutubpur, P.S.-\n     Bidupur, District- Vaishali (Hajipur)\n3.   Ajay Kumar S/o Jagadev Bhagat R/o village- Kutubpur, P.S.- Bidupur,\n     District- Vaishali (Hajipur)\n\n                                                                       ... ... Appellant/s\n                                           Versus\n     The State of Bihar Bihar\n Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-2022\n                                            2/11\n\n\n\n\n                                                 ... ... Respondent/s\n       ======================================================\n                                                with\n                         CRIMINAL APPEAL (DB) No. 552 of 2021\n             Arising Out of PS. Case No.-301 Year-2016 Thana- BIDUPUR District- Vaishali\n       ======================================================\n       RAUSHAN KUMAR Son of Surendra Bhagat Resident of Village- Kutubpur\n       Dighra, P.S.- Bidupur, District- Vaishali (Bihar)\n                                                            ... ... Appellant\n                                            Versus\n       The State of Bihar\n                                                         ... ... Respondent\n       ======================================================\n                                                with\n                         CRIMINAL APPEAL (DB) No. 604 of 2021\n             Arising Out of PS. Case No.-301 Year-2016 Thana- BIDUPUR District- Vaishali\n       ======================================================\n       SURENDRA BHAGAT Son of Jittu Bhagat Resident of Village - Kutubpur,\n       P.s.- Bidupur, Distt.- Vaishali (Hajipur).\n                                                           ... ... Appellant\n                                             Versus\n       The State of Bihar\n                                                        ... ... Respondent\n       ======================================================\n       Appearance :\n       (In CRIMINAL APPEAL (DB) No. 516 of 2021)\n       For the Appellant/s       :      Mr. Ajay Kumar Thakur\n                                        Ms.Vaishnavi Singh\n                                        Mr. Udbhav\n       For the Respondent/s      :      Mr.Abhimanyu Sharma\n       (In CRIMINAL APPEAL (DB) No. 503 of 2021)\n       For the Appellant/s       :      Mr.Mahendra Thakur\n       For the Respondent/s      :\n       (In CRIMINAL APPEAL (DB) No. 523 of 2021)\n       For the Appellant/s       :      Mr. Ajay Kumar Thakur\n                                        Ms.Vaishnavi Singh\n                                        Mr. Udbhav\n       For the Respondent/s      :      Mr.Dilip Kumar Sinha\n       (In CRIMINAL APPEAL (DB) No. 543 of 2021)\n       For the Appellant/s       :      Mr.Satyendra Narayan Singh\n       For the Respondent/s      :\n       (In CRIMINAL APPEAL (DB) No. 552 of 2021)\n       For the Appellant/s       :      Mr. Shiw Kumar Prabhakar\n       For the Respondent/s      :      Mr.Ajay Mishra\n       (In CRIMINAL APPEAL (DB) No. 604 of 2021)\n       For the Appellant/s       :      Mr.Satyendra Narayan Singh\n       For the Respondent/s      :      Mr.Satya Narayan Prasad\n       For the Informant in all cases : Mr. Bindhyachal Singh, Senior Advocate\n       ======================================================\n       CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN\n       SINGH\n               and\n               HONOURABLE MR. JUSTICE KHATIM REZA\n          Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-2022\n                                                     3/11\n\n\n\n\n                                                   ORAL ORDER\n\n                 (Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN\n                 SINGH)\n\n8   02-08-2022These appeals have been placed before us for\n\n                   considering prayer of the appellants for their release on bail\n\n                   underSection 389(1)of the Code of Criminal Procedure.2. By the judgment and order dated 28.06.2021 and\n\n                   30.06.2021 passed by the learned trial court, the appellants have\n\n                   been convicted and sentenced as under: -Cr.        Appellant  Convicted under                        Sentence\n                   Appeal     No. & name Sections\n                   (D.B.)     of the\n                   No.        appellant\n                                                               Imprisonment     Fine (Rs.)   In default of\n                                                                                             fine\n                   516 of     1 and 2      302/149, 120(B)     Life             20,000/-2021       (Binod       of the Indian                        each under\n                              Kumar        Penal Code                           Section\n                              Bhagat and                                        302/149,\n                              Pramod                                            120(B) of\n                              Kumar)                                            the Indian\n                                                                                Penal Code\n                                           148 of the Indian   R.I. for three\n                                           Penal Code          years\n                                           341 read with 149 Simple\n                                           of the Indian     imprisonment\n                                           Penal Code        for one month\n\n\n                   503 of     Prakash      302/149, 120(B)     Life             20,000/-\n                   2021       Kumar        of the Indian                        under\n                                           Penal Code                           Section\n                                                                                302/149 of\n                                                                                the Indian\n                                                                                Penal Code\n\n                                           148 of the Indian   R.I. for three\n                                           Penal Code          years\n                                           341 read with 149 Simple\n                                           of the Indian     imprisonment\n                                           Penal Code        for one month\n\n                   523 of     Sunita Devi 302/149, 120(B)      Life             20,000/-\n                   2021                   of the Indian                         each under\n                                          Penal Code                            Section\n                                                                                302/149,\n                                                                                120(B) ofPatna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-20224/11theIndian\n                                                                       Penal Code148 of the Indian   R.I. for three\n                                  Penal Code          years\n                                  341 read with 149 Simple\n                                  of the Indian     imprisonment\n                                  Penal Code        for one month\n\n          543 of     Upendra    302/149, 120(B)       Life             20,000/-2021       Bhagat,    of the Indian                          each under\n                     Bindeshwar Penal Code                             Section\n                     Singh and                                         302/149,\n                     Ajay Kumar                                        120(B) of\n                                                                       theIndian\n                                                                       Penal Code148 of the Indian   R.I. for three\n                                  Penal Code          years\n                                  341 read with 149 Simple\n                                  of the Indian     imprisonment\n                                  Penal Code        for one month\n\n          552 of     Raushan      302/149, 120(B)     Life             20,000/-2021       Kumar        of the Indian                        each under\n                                  Penal Code                           Section\n                                                                       302/149,\n                                                                       120(B) of\n                                                                       the Indian\n                                                                       Penal Code\n                                  148 of the Indian   R.I. for three\n                                  Penal Code          years\n                                  341 read with 149 Simple\n                                  of the Indian     imprisonment\n                                  Penal Code        for one month\n\n          604 of     Surehdra     302/149, 120(B)     Life             20,000/-\n          2021       Bhagat       of the Indian                        each under\n                                  Penal Code                           Section\n                                                                       302/149,\n                                                                       120(B) of\n                                                                       the Indian\n                                                                       Penal Code\n                                  148 of the Indian   R.I. for three\n                                  Penal Code          years\n                                  341 read with 149 Simple\n                                  of the Indian     imprisonment\n                                  Penal Code        for one month\n\n                                  Section 27 of the   Seven Years      5000/-\n                                  Arms Act3. The sentences have been ordered to run\n\n          concurrently and the period already spent in jail during\n\n          investigation and trial has been directed to be set off under\n Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-20225/11Section 428of the Code of Criminal Procedure. The trial court\n\n          has also ordered for payment of fifty percent of the amount of\n\n          fine to the dependents of deceased Ashok Kumar and Sangita\n\n          Devi underSection 357of the Code of Criminal Procedure as\n\n          compensation.4. The occurrence is said to have taken place on\n\n          19.10.2016 at 01 p.m. Two persons died in the occurrence, one\n\n          of them was son of the informant and the other, his daughter-in-\n\n          law, i.e., wife of another son of the informant. Fardbeyan of the\n\n          informant was recorded at 10:30 a.m. on the next day on\n\n          20.10.2016 at P.M.C.H, Patna.5. The case of the prosecution, as disclosed in the\n\n          fardbeyan, is that at 09:00 a.m., on the date of occurrence,\n\n          Surendra Bhagat, the appellant in Cr. Appeal (D.B.) No. 604 of\n\n          2021 and his wife, Sunita Devi, appellant in Cr. Appeal (D.B.)\n\n          No. 523 of 2021, armed with a lathi, danda and a sickle came to\n\n          the informant's house and abused him. They were asking about\n\n          the whereabouts of his elder son. On hearing hulla, the younger\n\n          son of the informant arrived, who was assaulted by them by\n\n          means of danda in his right hand. Appellant, Sunita Devi, is said\n\n          to have assaulted him with her slippers. On being confronted by\n\n          the informant as to why they were doing so, they disclosed that\n\n          they would kill Ashok Kumar (the deceased), the informant's\n Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-20226/11son, as they were helping someone concerning the affairs of Zila\n\n          Parishad. They, however, made a retreat on arrival of the\n\n          villagers. It is further alleged that after sometime, the informant\n\n          saw Surendra Bhagat, appellant of Cr. Appeal (D.B.) No. 604 of\n\n          2021, Manoj Kumar, Harendra Bhagat, Ajay Kumar, appellant\n\n          No. 3 of Cr. Appeal (D.B.) No. 543 of 2021, Rajesh Kumar,\n\n          Ranjit Kumar, Raushan Kumar, appellant of Cr. Appeal (D.B.)\n\n          No. 552 of 2021, Upendra Bhagat, appellant No.1 of Cr. Appeal\n\n          (D.B.) No. 543 of 2021, Pramod Kumar, appellant no. 2 of Cr.\n\n          Appeal (D.B.) No. 516 of 2021, Binod Kumar Bhagat, appellant\n\n          no. 1 of Cr. Appeal (D.B.) No. 516 of 2021, Pawan Kumar,\n\n          Prakash Bhagat and Bindeshwar Singh, appellant no. 2 of Cr.\n\n          Appeal (D.B.) No. 543 of 2021 and other 8-10 persons sitting\n\n          outside the nearby Aanganbadi Centre. All of them thereafter\n\n          reached in front of the informant's house and started playing\n\n          cards. It is further alleged that some of the accused persons\n\n          entered into the informant's house and some surrounded the\n\n          house. It was the specific case of the informant that Surendra\n\n          Bhagat, appellant of Cr. Appeal (D.B.) No. 604 of 2021, Manoj\n\n          Kumar, Harendra Bhagat were armed with guns. He further\n\n          disclosed that Surendra Bhagat fired at Ashok Kumar (deceased-1) because of which he sustained firearm injuries and\n\n          subsequently died after nearly a month. Sunita Devi (deceased-Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-20227/112), wife of the informant's son, who rushed to the place of\n\n          occurrence after hearing sound of gunshot, was shot at by\n\n          Manoj Kumar.6. The case of the prosecution, as disclosed in the\n\n          First Information Report, has been supported by the prosecution\n\n          witnesses.7. We have heard Mr. Ajay Kumar Thakur, learned\n\n          counsel appearing on behalf of the appellants in Cr. Appeal\n\n          (D.B.) Nos. 604 of 2021 and 523 of 2021, Mr. Mahendra\n\n          Thakur, learned counsel appearing on behalf of the appellant in\n\n          appellant of Cr. Appeal (D.B.) No. 503 of 2021, Mr. Satyendra\n\n          Narayan Singh, learned counsel appearing on behalf of the\n\n          appellants in Cr. Appeal (D.B.) Nos. 543 of 2021 and 604 of\n\n          2021 and Mr. Shiw Kumar Prabhakar,                    learned counsel\n\n          appearing on behalf of the appellant in Cr. Appeal (D.B.) No.\n\n          552of 2021. We have also heard Mr. Bindhyachal Singh, learned\n\n          Senior Counsel appearing on behalf of the informant and\n\n          learned Additional Public Prosecutors appearing on behalf of the\n\n          State.8. Mr. Ajay Kumar Thakur, learned counsel for the\n\n          appellants has submitted that, according to the prosecution's\n\n          case, the occurrence had taken place on 19.10.2016 at 01:00\n\n          p.m., whereas the fardbeyan was recorded on the next day at\n Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-20228/1110:00 a.m.. He contends that no explanation has been put forth\n\n          by the prosecution for such delay in recording the fardbeyan of\n\n          the informant. He has accordingly submitted that the\n\n          prosecution version as disclosed in the First Information Report\n\n          is an afterthought and implication of these appellants is visibly\n\n          because of political rivalry. He has further submitted that so far\n\n          the occurrence, which is said to have taken place at 01:00 p.m.\n\n          on 19.10.2016, no specific role of these appellants has been\n\n          attributed, leading to death of two persons, though there is such\n\n          evidence against the appellant-Surendra Bhagat and one Manoj\n\n          Kumar.9. Mr. Bindhyachal Singh, learned Senior Counsel\n\n          appearing on behalf of the informant has opposed the prayer for\n\n          bail and has submitted that based on evidence adduced at the\n\n          trial, the prosecution has been able to establish beyond all\n\n          reasonable doubts the charge against these appellants of\n\n          commission of offence punishable underSection 302of the\n\n          Indian Penal Code read with 149 and 120 B thereof. He has\n\n          submitted that the witnesses are consistent on the point that\n\n          before the occurrence had taken place, the persons, named in the\n\n          First Information Report, had assembled with premeditated\n\n          mind and thereafter committed the offence. He has accordingly\n\n          submitted that the appellants do not deserve privilege of bail\n Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-20229/11underSection 389(1)of the Code of Criminal Procedure.10. Prayer for bail of the appellants has been opposed\n\n          by learned Additional Public Prosecutors representing the State\n\n          in different Appeals.11. Despite opportunity granted to the State to file\n\n          written objection in terms of first Proviso ofSection 389(1)of\n\n          the Code of Criminal Procedure to the State, no such written\n\n          objection is there on record.12. Mr. Ajay Mishra, learned Additional Public\n\n          Prosecutor appearing on behalf of the State in Cr. Appeal (D.B.)\n\n          No. 552 of 2021 has submitted that a written objection has been\n\n          filed in the said Cr. Appeal on-line today itself. He has been\n\n          permitted to file hard copy of the written objection in Court,\n\n          which has been taken on record.13. On perusal of the impugned judgment and order of\n\n          the trial Court and upon considering the evidence on record, we\n\n          find substance in the submission made on behalf of the\n\n          appellants that there is no allegation of any specific overt act\n\n          against any of the appellants except the appellant of Cr. Appeal\n\n          (D.B.) No. 604 of 2021, Surendra Bhagat, who is said to have\n\n          opened fire, leading to firearm injuries sustained by Ashok\n\n          Kumar (deceased-1), the son of the informant, who died one\n\n          month after he sustained the injury. Further, there appears to be\n Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-202210/11no justification on record for delayed recording of the fardbeyan\n\n          on the next day. In the facts and circumstances in which the\n\n          occurrence is said to have taken place, the submission on behalf\n\n          of the appellants that their implication may be result of an\n\n          afterthought of the informant in the wake of admitted political\n\n          rivalry cannot be completely brushed aside.14. In the facts and circumstances and rival\n\n          submissions, as noted above, in our view, the prayer for release\n\n          on bail of the appellant, Surendra Bhagat of Cr. Appeal (D.B.)\n\n          No. 604 of 2021 being the main assailant, deserves to be\n\n          rejected. His prayer for bail is accordingly rejected.15. In the nature of evidence, which has come during\n\n          the trial, as has been noted above, in our opinion, a case is made\n\n          out for release of appellants on bail during the pendency of the\n\n          appeal. The prayer of the appellants for their release on bail is\n\n          allowed.16. Let the appellants, namely, Binod Kumar Bhagat\n\n          and Pramod Kumar of Cr. Appeal No. 516 of 2021, Prakash\n\n          Kumar of Cr. Appeal No. 503 of 2021, Sunita Devi of Cr.\n\n          Appeal No. 523 of 2021, Upendra Bhagat, Bindeshwar Singh\n\n          and Ajay Kumar of Cr. Appeal No. 543 of 2021 and Raushan\n\n          Kumar of Cr. Appeal No. 552 of 2021 be released on bail,\n\n          during the pendency of this appeal, on furnishing bail bond of\n           Patna High Court CR. APP (DB) No.516 of 2021(8) dt.02-08-202211/11Rs. 10,000/- (Ten Thousand) each with two sureties of the like\n\n                    amount each to the satisfaction of the learned Additional\n\n                    Sessions Judge-X, Vaishali at Hajipur, in Sessions Trial No. 138\n\n                    of 2017 arising out of Bidupur P.S. Case No. 301 of 2016. The\n\n                    sentences in their case shall remain suspended in the meanwhile.\n\n                    Realization of fine shall remain stayed during the pendency of\n\n                    this appeal.(Chakradhari Sharan Singh, J)\n\n\n                                                 (Khatim Reza, J)\nPawan/-U     T