Patna High CourtMohit Yadav vs The State Of Bihar on 11 January, 2018Author:Rajendra MenonBench:Chief Justice,Anil Kumar UpadhyayIN THE HIGH COURT OF JUDICATURE AT PATNA
                      Criminal Appeal (DB) No.665 of 2013
    Arising Out of PS. Case No.-173 Year-2008 Thana- MAKHDUMPUR District- Jehanabad
   ======================================================
   Hriday Yadav Aged About 55 Years, S/O Late Jagmohan Yadav, Resident Of
   Village Manjrothi Bigha, Police Station Makhdumpur, District Jehanabad.
                                                             ... ... Appellant/s
                                      Versus
   The State of Bihar
                                                          ... ... Respondent/s
   ======================================================
                                        with
                      Criminal Appeal (DB) No. 711 of 2013
    Arising Out of PS. Case No.-173 Year-2008 Thana- MAKHDUMPUR District- Jehanabad
   ======================================================
   Mohit Yadav, Son Of Late Lalmuni Yadav, Resident of Village Majhroti
   Bigha, P.S.-Makhdumpur, District-Jehanabad.
                                                            ... ... Appellant/s
                                     Versus
   The State of Bihar
                                                         ... ... Respondent/s
   ======================================================
                                      with
                      Criminal Appeal (DB) No. 706 of 2013
    Arising Out of PS. Case No.-173 Year-2008 Thana- MAKHDUMPUR District- Jehanabad
   ======================================================
1. Satendra Yadav
2. Baiju Yadav, both sons of Late Rajnath Yadav,
   Resident of Village Mathbhagwanpur, Majharoti Bigha P.S.
   Makhdumpur, District- Jehanabad.
                                                    ... ... Appellant/s
                                Versus
   The State of Bihar
                                                 ... ... Respondent/s
   ======================================================
   Appearance :
   (In Criminal Appeal (DB) No. 665 of 2013)
   For the Appellant/s    :       Mrs. Soni Shrivastava, Advocate
                                  Mr. Ravi Bhardwaj, Advocate
                                  Ms. Madhuri Kumari, Advocate
   For the Respondent/s   :       Ms. S. B. Verma, APP
   (In Criminal Appeal (DB) No. 711 and 706 of 2013)
   For the Appellant/s    :       Mr. Vikramdeo Singh, Advocate
                                  Mr. Paras Nath, Advocate
   For the Respondent/s   :       Ms. S. B. Verma, APP
   ======================================================
   CORAM: HONOURABLE THE CHIEF JUSTICE
           and
           HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
   ORAL JUDGMENT
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-2018
                                            2/28




       (Per: HONOURABLE THE CHIEF JUSTICE)

         Date : 11-01-2018


              All these appeals have been filed challenging convictions

       ordered vide judgment dated 15.06.2013 and order dated

       18.06.2013in Sessions Trial No.308 of 2009 (DS)/ 258 of 2010

       (F.T.C. IInd) by the Adhoc Additional District and Sessions Judge,

       Jehanabad, by which the appellants herein have been convicted

       underSection 302/34of the Indian Penal Code to undergo

       imprisonment for life and fine of Rs.10,000/- and in Criminal

       Appeal (DB) No.665 of 2013 and Criminal Appeal (DB) No.711

       of 2013, the appellants therein Hirday Yadav and Mohit Yadav

       have also been convicted underSection 27of the Arms Act and

       sentenced to undergo three years RI and fine of Rs.2,000/-. Both

       sentences to run concurrently.In fact, against the same judgment and order, four appeals

       were filed, apart from the aforesaid three appeals, another appeal

       being Cr. Appeal (DB) No.794 of 2013 was also filed by one

       Bhera Yadav @ Behrba Yadav, but due to his death on 10 th of

       September, 2015 as reported by the Superintendent of Police,

       Jehanabad, in the report dated 17.12.2016, the said appeal has been

       disposed of today by a separate order having been abated.
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-20183/28It is the case of the prosecution that the informant deceased

       Deepa Yadav was to receive a sum of Rs.15,000/- which was due

       from the appellant Hriday Yadav and when the informant deceased

       demanded the same and a panchayati was also held, Hriday Yadav

       refused to clear the dues and on the same day, i.e. on 21.07.2008 at

       5:00 P.M., the appellant Hriday Yadav along with appellant Baiju

       Yadav, Bherwa, appellant Mohit Yadav and appellant Satendra

       Yadav came to the southern corner of Makdumpur river near the

       house of the informant and started quarreling with him and in the

       process, appellants Hriday Yadav and Mohit Yadav are said to

       have taken out a pistol and fired indiscriminately on the informant

       deceased Deepa Yadav which caused serious fire arms injuries on

       him. Immediately, thereafter he was taken to the Referral Hospital,

       Makdumpur by the persons present there and while admitted in the

       Referral Hospital, Station House Officer of the Police Station,

       Makdumpur, Sub-Inspector of Police Ashok Kumar recorded the

       ferdbeyan of the informant deceased Deepa Yadav and registered

       the case for offences underSections 406,307,326/34of the Indian

       Penal Code read withSection 27of the Arms Act.Deepa Yadav underwent treatment in the Hospital for about

       eight days and thereafter it is said that he succumbed to the injuries

       and died on 29.07.2008. Based on the aforesaid, the offence was
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-20184/28converted to one underSection 302of the Indian Penal Code. The

       first information was recorded and the prosecution commenced.In all, 14 witnesses were named in the charge-sheet as

       witnesses who would prove the charges, but out of these 14

       witnesses, only eight were examined. They were P.W.1 Mahesh

       Yadav, son-in-law of the deceased, P.W.2 Salfi Devi, widow of the

       deceased Deepa Yadav, P.W.3 Rajju Yadav, cousin brother of the

       deceased, P.W.4 Jainandan Yadav, a resident of village and who is

       said to have been a witness to the entire incident. P.W.5 Jainandan

       Singh, the first Investigating Officer, P.W.6 Dr. Hidaytullah Palvi,

       who had treated the informant, i.e. deceased Deepa Yadav at the

       initial stage, P.W.7 Satya Deo Singh, the second Investigating

       Officer, and P.W.8 Dr. Anil Kumar, the doctor, who conducted the

       postmortem examination.Apart from the above, certain documents were exhibited,

       namely, the Ferdbeyan of the informant Deepa Yadav, the

       postmortem report, the case diary and certain miscellaneous

       exhibits. However, the following witnesses whose names were

       included in the charge-sheet, namely Rabindra Yadav, Nawal

       Kishore Yadav, Ramesh Yadav, Jagdish Yadav, Krishna Yadav,

       Chhotelal Yadav were never examined and even though some of

       them were important eye witnesses were given up and Rabindra
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-20185/28Yadav, who was a witness to the so-called recording of the

       ferdbeyan/dying declaration was also given up. Be that as it may,

       on the basis of the evidence and the materials that came on record,

       by the impugned judgment, the appellants having been convicted

       as indicated hereinabove, these appeals.Smt. Soni Shrivastava, Sri Vikramdeo Singh and the other

       assisting advocates argued at length on behalf of the appellants and

       Ms. S. B. Verma, learned A.P.P. rebutted their contentions.The first and the foremost submission made by the learned

       counsel for the parties were that the entire foundation of the case is

       the ferdbeyan or the dying declaration of the informant deceased

       Deepa Yadav. According to them, the ferdbeyan or the dying

       declaration has not been proved in accordance to the requirement

       of law. It is argued that the ferdbeyan/dying declaration is recorded

       by Sub-Inspector of Police Ashok Kumar, Station House Officer

       Incharge of Makdumpur Police Station, but this witness has not

       been examined. Similarly, the witness to the dying declaration

       Rabindra Yadav, even though cited as a witness in the charge-

       sheet, was never examined. It is further argued that the ferdbeyan

       was recorded on 21.07.2008 at 5:30 P.M. in the referral hospital at

       Makdumpur where treating doctors were available, in spite
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-20186/28thereof, the dying declaration is not recorded in the presence of the

       doctors, nor any staff members of the Hospital.It is argued that apart from the fact that the dying declaration

       has not been recorded in accordance to the requirement of law, its

       recording has not proved in accordance to the requirement of law

       and, therefore, the entire foundation of the story put forth by the

       prosecution has to collapse on this ground itself. In support of the

       contention, as detailed hereinabove, reliance is placed on a

       judgment of the Hon'ble Supreme Court in the case of Chacko Vs

       State of Kerala, (2003) 1 SCC 112 and another judgment of the

       Hon'ble Supreme Court in the case of Ramakant Mishra alias

       Lalu and others Versus State of Uttar Pradesh, (2015) 8 SCC299.

                    Thereafter, it was argued that the statement of witnesses

        recorded and from the story as narrated by the deceased in the

        ferdbeyan, it is clear that he was subjected to indiscriminate firing

        by appellants Hriday Yadav and Mohit Yadav, but on going

        through the postmortem report and the statement of Dr. Anil

        Kumar, P.W.8, it is clear that the deceased had sustained eight

        injuries on his persons and injury no.(2) is the only fire arm injury

        as indicated in the postmortem report apart from stitched injury

        being injury no.(1). Referring to the description of the injuries as
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-20187/28are detailed in the postmortem report and the opinion of the

        doctor, it is seen that the stitched wound, i.e. injury no.(1) and (2)

        and other injuries do not indicate as to whether they were caused

        by any fire arm, there is no exit point of the injury, entry point of

        the injury and even recovery of pellets and bullets is not indicated

        in the postmortem report, on the contrary, in the postmortem

        report, the doctor says that for stitched wound, the opinion of the

        treating surgeon should be obtained, who would be in a better

        position to say that if any pellet and bullet was found in the injury.

        That apart, in the postmortem report, it is indicated that most of

        the injuries were caused by hard and blunt object. If that be so, the

        informant deceased would have stated about these in his dying

        declaration or ferdbeyan, that apart from indiscriminate firing, he

        was subjected to assault by any hard and blunt object. There is no

        whisper about such an assault in the dying declaration. It is,

        therefore, stated that the injuries reported in the postmortem report

        and the ferbeyan/dying declaration do not tally with each other

        and, therefore, the entire case of the prosecution is false.

        Attention in this regard is also invited to the statement of the

        P.W.6 Dr. Hidaytullah Palvi and the injuries found by him. This

        doctor speaks about seven lacerated injuries being caused on the

        person of the deceased. Injury Nos. (1) to (6) are all lacerated
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-20188/28wound on various parts of the body and according to doctor, these

        six injuries were caused by hard and blunt substance. Only injury

        No.(7), a completely irregular lacerated wound on the lumbar

        region is said to have been caused by a fire arm. Even for this

        injury, the doctor does not say anything about entry point of the

        injury, exit point of the injury. Even no recovery of pellet and

        bullet is recovered, the size of the injury, the colour of the injury

        in the entry point and exit point. Therefore, it is argued that based

        on such evidence which does not support the case of the

        prosecution as made in the ferdbeyan, the conviction is

        unsustainable.Learned counsel for the appellants thereafter took us through

       the statement of various witnesses and argued that P.W.1 Mahesh

       Yadav is a relative of the informant. There was enmity between the

       informant and the accused persons and pointing out various

       contradiction in the statement of the witnesses, namely P.W.1

       Mahesh Yadav, P.W.2 Salfi Devi and P.W.3 Raju Yadav, it is

       argued that they are all relatives, not the independent witness and

       they have not seen the incident at all. It is argued that their

       statement is a hearsay statement. The only independent witness

       examined is P.W.4 Jainandan Yadav and if his statement is taken

       note of, he speaks about incident taking place, but specifically says
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-20189/28that he did not know or identify any of the persons who were

       involved in the incident. He does not identify the accused persons,

       but admits in para 36 of his cross-examination that the appellant

       Mohit Yadav was known to him from before, but still he does not

       name him as a person present at the place of the incident. This

       witness is not declared hostile and his evidence, if analyzed, would

       go to show that he as a witness has not implicated any of the

       accused persons.Accordingly, reading the statement of the witnesses in its

       totality and evaluating it in the backdrop of various discrepancies,

       as are detailed hereinabove, learned counsel for the appellants

       argued that it is a case where the prosecution has miserably failed

       to bring home the guilt of the appellants and, therefore, conviction

       based on such evidence is unsustainable.Finally, learned counsel invites our attention to the law laid

       down by the Hon'ble Supreme Court in the case ofTara Singh v

       State[AIR 1951 SC 441];Ranvir Yadav v. State of Bihar[(2009) 6 SCC 595];             andSukhjit Singh v State of Punjab[(2014) 10 SCC 270] contemplating the requirement of fulfilling

       the statutory mandate ofSection 313of the Code of Criminal

       Procedure, take us through the statement of the accused persons

       recorded underSection 313of the Code of Criminal Procedure and
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201810/28point out that none of the incriminating circumstances or the

       materials were put to them, they were never confronted with the

       same and were not granted any opportunity to explain the same,

       therefore, there being violation of the statutory provision ofSection 313of the Code of Criminal Procedure, grave prejudice

       has been caused to the accused persons and this itself is sufficient

       enough to hold that the entire trial stands vitiated and the

       appellants entitled to the benefit of the same. Accordingly, it is the

       contention of the appellants that the appellants should be allowed

       and the conviction set aside.Refuting the aforesaid, Ms. S. B. Verma, learned APP took us

       through the ferdbeyan, statement of witnesses, particularly the

       statement of P.W.1 Mahesh Yadav and P.W.2 Salfi Devi and argued

       that both these witnesses had seen the incident, the incident took

       place as narrated by the deceased in his ferdbeyan/dying

       declaration and as the postmortem report confirms presence of fire

       arm injury, it is argued that the conviction in the facts and

       circumstances of the case is proper and no indulgence into the

       matter is called for.We have heard learned counsel for the parties at length and

       we have perused the material and the documents available on

       record. At the very outset, we may point out that in the charge-
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201811/28sheet filed as detailed while discussing the facts indicated

       hereinabove, 14 witnesses were cited as prosecution witnesses and

       out of these witnesses, some of the witnesses, like Rabindra Yadav,

       Nawal Kishore Yadav, Ramesh Yadav were actually eye witnesses

       to the incident, but surprisingly, when the trial took place, they had

       been given up and no reason is indicated as to why they have not

       been examined. One of these witnesses Rabindra Yadav is an

       important witness. It is this person before whom so-called dying

       declaration or ferdbeyan recorded. It is surprising that he has not

       been examined and was given up during the trial. It is the case of

       the defence that they were given up because their names were

       included in the charge-sheet fraudulently to somehow implicate

       the appellants and as the prosecution knew that these witnesses if

       they enter the witness box will speak truth and the prosecution

       case will crumble. We have taken note of the aforesaid aspect of

       the matter.One of the basic ingredients and material that was

       used for convicting the appellants is the ferdbeyan of the deceased

       Deepa Yadav, i.e. his dying declaration and it forms the foundation

       for the entire case and if we examine the ferdbeyan/dying

       declaration in detail, it is indicated that it is recorded by Deepa

       Yadav, the deceased, his name and addresses are given and he
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201812/28further states that appellant Hriday Yadav owed Rs.15,000/- to

       him, when he demanded the same, he did not give, panchayati was

       also held wherein he refused and, thereafter on 21.07.2008 at 5:00

       P.M. while he was sitting in his house in the southern bank of river

       Makdumpur, all the five appellants, including the deceased

       accused Bhera Yadav are said to have quarrelled with him and

       thereafter Hriday Yadav and Mohit Yadav are said to have opened

       indiscriminate firing upon him due to which he received injury.

       This ferdbeyan/dying declaration is recorded by the S.I. Ashok

       Kumar, Station House Officer of Makhdumpur Police Station, and

       surprisingly, he has not been examined. Recording of his

       ferdbeyan/statement is in the presence of one Rabindra Yadav, he

       cited as witness No.1 in the charge-sheet, but surprisingly he has

       not been examined. There is no justification or explanation given

       by the prosecution as to why these two important witnesses were

       never examined. On the contrary, the Investigating Officer simply

       says that the signature in the ferdbeyan is of Sub-Inspector Ashok

       Kumar.Apart from the aforesaid serious lacuna in the recording of

       ferdbeyan and its legal tendering and proving in the trial, the

       ferdbeyan/dying declaration is recorded as is evident from the

       recital of the same on 21.07.2008 at 5:30 P.M., i.e. within 30
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201813/28minutes of occurring of the offence and it is recorded in Referral

       Hospital, Makhdumpur. Surprisingly, the doctor present and who

       was treating the deceased was not present when this is recorded. It

       is the doctor who also does not say anything about the deceased

       being in a fit state of mind to give the statement. No independent

       employee or person working in the hospital has attested or testified

       to recording of ferdbeyan or dying declaration and none is

       examined to prove the same. In our considered view, the recording

       of the so-called ferdbeyan/dying declaration is not in accordance to

       the requirement of law and it does not meet the requirement of law

       aslaid down bythe Hon'ble Supreme Court in various cases. If the

       lawlaid down inthis regard in the case of Chacko (supra) is taken

       note of, the Hon'ble Supreme Court says that in the absence of

       certificate by a competent doctor with regard to mental and

       physical condition of the deceased to make such a statement, in the

       facts and circumstances of a given case, depending on the

       evidence that has come on record, the Court may think it not safe

       to rely upon the same. Similar is the principle laid down by the

       Supreme Court in the case of Ramakant Mishra alias Lalu

       (supra), wherein after taking note of the principles of law laid

       down in the various cases, the meaning and import of the words,

       'dying declarations' as described in the Black's Law Dictionary, is
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201814/28analyzed and from para 9 onward, the learned Supreme Court

       deals with the matter in the following manner:-"9. Definition of this legal concept found in Black's Law
             Dictionary (5th Edition) justifies reproduction:"Dying Declarations - Statements made by a person who is
                lying at the point of death, and is conscious of his approaching
                death, in reference to the manner in which he received the
                injuries of which he is dying, or other immediate cause of his
                death, and in reference to the person who inflicted such injuries
                or the connection with such injuries of a person who is charged
                or suspected of having committed them; which statements are
                admissible in evidence in a trial for homicide (and occasionally,
                at least in some jurisdictions, in other cases) where the killing of
                the declarant is the crime charged to the defendant. Shepard v.
                U.S., Kan., 78 L.Ed. 196: 54 S.Ct. 22: 290 U.S. 96 (1933).
                Generally, the admissibility of such declarations is limited to use
                in prosecutions for homicide; but is admissible on behalf of
                accused as well as for prosecution. In a prosecution for homicide
                or in a civil action or proceeding, a statement made by a
                declarant while believing that his death was imminent,
                concerning the cause or circumstances of what he believed to be
                his impending death is not excluded by the hearsay rule.
                [Federal Rules of Evidence, Rule 804(b)(2): "Statement under
                the Belief of imminent Death"].10. When a person makes a statement while being aware of the
             prospect that his death is imminent and proximate, such a
             statement assumes a probative value which is almost unassailable,
             unlike other statements which he may have made earlier, when
             death was not lurking around, indicating the cause of his death.
             That is to say that a person might be quite willing to implicate an
             innocent person but would not do so when death is knocking at his
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201815/28door. That is why a Dying Declaration, to conform to this unique
             specie, should have been made when death was in the
             contemplation of the person making the statement/declaration. In
             the case before us, the statement, if made by the deceased, would
             qualify to be treated as a Dying Declaration because she was
             admitted in the hospital, having sustained 90-95 per cent burn
             injuries, and because of this grave burn injuries, she would be
             expecting to shortly breathe her last.11. The central question, however, remains as to whether the
             alleged Dying Declaration attracts authenticity. Since the
             prosecution has succeeded in showing/proving by preponderance
             of probability that a dowry death has occurred, the burden of
             proving innocence has shifted to the accused. It appears to us to be
             unexceptionable that whenever a person is brought to a hospital in
             an injured state which indicates foul-play, the hospital authorities
             are enjoined to treat it as a medico-legal case and inform the
             police. If the doctor, who has attended the injured, is of the opinion
             that death is likely to ensue, it is essential for him to immediately
             report the case to the police; any delay in doing so will almost
             never be brooked. The police in turn should be alive to the need to
             record a declaration/statement of the injured person, by pursuing a
             procedure which would make the recording of it beyond the pale of
             doubt. This is why an investigating officer (I.O.) is expected to
             alert the jurisdictional Magistrate of the occurrence, who in turn
             should immediately examine the injured. When this procedure is
             adopted, conditional on the certification of a doctor that the injured
             is in a fit state to make a statement, a Dying Declaration assumes
             incontrovertible evidentiary value. We cannot conceive of a more
             important duty cast on the Magistrate, since the life & death of a
             human being is of paramount importance. We think that only if it is
             impossible for the Magistrate to personally perform this duty,
             should he depute another senior official. Non-adherence to this
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201816/28procedure would needlessly and avoidably cast a shadow on the
             recording of a Dying Declaration. The prosecution, therefore,
             would be expected to prove that every step was diligently complied
             with. The prosecution would have to produce the doctor or the
             medical authority to establish that on the examination of the
             injured/deceased, the police had been immediately informed. The
             I.O. who was so informed would then have to testify that he alerted
             the Magistrate, on whose non- availability, some responsible
             person was deputed for the purpose of recording the Dying
             Declaration. We are not in any manner of doubt that where medical
             opinion is to the effect that a person is facing death as a
             consequence of unnatural events, the responsibility of the
             Magistrate to record the statement far outweighs any other
             responsibility. There may be instances where there was no time to
             follow this procedure, but that does not seem to be what has
             transpired in the case in hand. In cases where some other person is
             stated to be recipient of a Dying Declaration, doubts may
             reasonably arise."If we analyze the case in the backdrop of the aforesaid

       principle, we have no hesitation in holding that the prosecution has

       not proved the dying declaration in the manner as is required in

       law, recording of the dying declaration does not meet the

       requirement of law and in this case, it is not safe enough to record

       the conviction on the basis of the same. In our considered view,

       where apart from the fact that the manner in which the dying

       declaration has been recorded does not inspire confidence in our

       mind, we are doubtful as to whether any such statement was

       recorded at the time and place as is indicated in the document.
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201817/28The aforesaid findings of ours get more confirmed if we

       analyze the facts narrated by the deceased in the dying declaration

       and compare it with the medical evidence that has come on record.

       In the ferdbeyan or the dying declaration, the deceased only says

       that after some quarrel and argument, appellants Hriday Yadav and

       Mohit Yadav took out pistol and indiscriminately fired at him.

       There is no whisper in the dying declaration about any other injury

       caused upon him or any of the appellants assaulting, beating or

       acting in a manner which could cause injury to him or use of any

       other blunt or hard object to cause injury on him. He only speaks

       about indiscriminate firing by Hriday Yadav and Mohit Yadav.Now, if we take note of the statement of the treating doctor

       P.W.6 Dr. Hidaytullah Palvi, who examined the deceased

       immediately after the incident, we find that he was posted in the

       referral hospital, Makhdumpur on 21.07.2008 and he admits of his

       having examined Deepa Yadav, son of late Lohari Yadav at 5:15

       P.M. i.e. within an hour of the incident, and he indicates that the

       following seven injuries were found in the person of Deepa

       Yadav:-"(1) Lacerated wound 2"x 1/6"x deep up to the bone
                       on parietal region.(2) Lacerated wound 5" x 1/6" x deeper to the bone
                       on parietal region.Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201818/28(3) Lacerated wound on the left parietal immense
                       1/2" x 1/2" x deep to the bone.(4) Lacerated wound on the occipital regions 1/5"x1/6"x deep to the bone.(5) lacerated wound on the right temporal region
                       1/6" x deep to the bone.(6) Lacerated wound on the right eyebrow
                       1.5"x1/8"x1/8".(7) Completely irregularly irregular lacerated wound
                       (wound of entrance) on the lumbar region measuring 1" x
                       1/2"x deep to the peritoneal cavity. Wound of exit not
                       found."Thereafter, he says that injury No.7 was grievous and danger

       to life and was caused by fire arm. As far as injury nos.1 to 6 are

       concerned, he speaks about they being simple injuries caused by

       hard and blunt substance. If injury no.7 is caused by a fire arm,

       there is nothing to indicate that the fire arm injury has a point of

       entry and point of exit, what is the characteristics of the entry point

       and if there is no exit point of the injury, whether any pellets or

       bullets were recovered from this injury. After this medical report is

       given on 21.07.2008 and after death of Deepa Yadav, his

       postmortem is conducted by Dr. Anil Kumar, P.W.8 and in the

       postmortem report, again the same seven injuries are indicated and

       the injuries are so indicated in the postmortem report:-(1) Stitched wound of 5 1/2" length on the back of chest &
                abdomen in mid vertebral line 6 1/2" above sacrum.Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201819/28(2) Stitched wound of 1 1/2" length on the back of chest 1"right to the injury no.(1). Tattooing (old) was found.
                Surrounding the both above noted wound in area of 6" x 4". On
                dissection after removing the stitches bone vertebra T 10, T 11,
                T 12 was fractured, muscle lacerated, blood vessels and spinal
                cord was lacerated. In both above noted wound, no fire arm
                material (bullet or pellet) was found embedded. May be it was
                recovered and preserved by treating surgeon.(3) Stitched wound of 1/2" length on forehead on left side
                ½" above the left eyebrow.(4) Stitched wound of 1/2" length on forehead vertically
                near medieval end of right eyebrow.(5) Stitched wound of 1/2" length on forehead on right side
                1 1/2" above right eyebrow.(6) Stitched wound of 3/4" length on right maxilla.
                      (7) Bruise around right pinna in area of 5"x 4".(8) Multiple healed L. W. (unstitched) of various size
                ranging from 1"x 1/6" x skin deep to 3"x 1/6"x skin deep found
                in whole area of skull."The lacerated wounds are now indicated as stitched wound

       and with respect to injury no. (2) as indicated in the postmortem

       report, this is injury no.(7) in the earlier report of P.W.6, it is

       shown that there is an old tattooing and it is clearly indicated that

       in both injuries, no fire arm material, like pellet or bullet, was

       found embedded and opinion is given that may be it is removed by

       the treating surgeon and in the opinion finally given, the following

       statements are made:-Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201820/28"(1) cause of injuries- For stitched wound, opinion of
                  treating surgeon may be asked and he should be asked for
                  whether any bullet/pellet were present. Other injuries caused
                  by hard and blunt object.(2) cause of death- Head injuries and spinal injuries as
                  described in Injury No. (1) and (2).(3) Time elapsed since death- 6 to 24 hours ( Approx)."which goes to show that existence of pellet and bullet in the injury

       has to be confirmed by the surgeon. Here again, in the opinion

       given and in the report, this doctor also speaks about certain

       injuries being caused by hard and blunt object. Now, if according

       to the informant, Deepa Yadav, he was subjected to indiscriminate

       firing, it is surprising that only one fire injury is found by the

       doctor that also without any point of entry or exit being indicated

       or without any pellet or bullet being found in the injury. This belies

       the story of the prosecution and further in the dying declaration

       recorded, there is not a whisper about any other injury being

       caused by use of a hard and blunt object, on the contrary, more

       than six injuries are found to have been caused by hard and blunt

       object. Therefore, it is a case where the story of injuries being

       caused and the attack made on Deepa Yadav, as narrated by him in

       the so-called ferdbeyan or the dying declaration is not corroborated

       or established from the medical evidence that has come on record.
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201821/28This again is a serious lacuna or defect in the case of prosecution,

       benefit of which has to go to the accused persons.Apart from the aforesaid, if we now analyze the statement of

       the witnesses recorded, it would be seen that the witnesses, who

       testified with regard to the incident are P.W.1 Mahesh Yadav who

       is the brother of the deceased. In his statement under Section 161

       Cr. P.C. before the Investigating Officer, he speaks about being in

       his house making fish and thereafter coming to the place on

       hearing commotion. However, all of a sudden in the Court, he

       becomes an eye witness and testifies about his seeing the incident

       and deceased being assaulted by bricks and bats and firing. The

       testimony of this witness who is an interested witness becomes

       doubtful. Apart from the fact that he is an interested witness, the

       story given by him in the Court and the story narrated in the

       statement underSection 161of the Code of Criminal Procedure

       are contradictory in nature and is not in conformity with the

       ferdbeyan or dying declaration. He admits that his village is away

       from the place of occurrence and he is brother-in-law of the

       deceased.The second witness is P.W.2 Salfi Devi, the wife of the

       deceased. She is said to be present in the house, but surprisingly,

       she was never examined. Her statement was not recorded under
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201822/28Section 161 Cr. P.C. She claims in the Court that she had recorded

       her statement before the Police Officer at Makhdumpur Police

       Station and then at Patna Police Station and her left thumb

       impression was taken on record, but no such statement was

       brought on record, nor was any such statement put to her and

       proved, nor does the Investigating Officer say anything as to why

       her statement was not available. That apart, in the ferdbeyan or the

       dying declaration, the deceased does not say that his wife Sanju

       Devi and his brother-in-law Mahesh Yadav were present when the

       incident took place. The statement of this witness in the

       circumstances becomes doubtful.The next witness examined is P.W.3 Rajju Yadav who was

       again cousin brother of the deceased, is not an eye witness to the

       incident. He says that he heard about the incident and came to the

       hospital at the time of recording the statement of the deceased. The

       statement of this witness does not help the prosecution, it is

       hearsay in nature.If the statement of these three important witnesses are

       discarded then the only evidence with regard to occurrence of the

       incident is that of the P.W.4 Jainandan Yadav. He is an independent

       witness claims to be an eye witness and saw the incident. He says

       that he was carrying fertilizer on his cycle. He was coming from
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201823/28Makhdumpur when he heard the sounds of firing and saw some

       unknown persons fleeing. He speaks about certain outsiders firing

       on the deceased. He says that he does not know who were the

       persons whom he saw firing and fleeing and neither he identifies

       Hriday Yadav as the person who caused the firing nor does he

       identify Mohit Yadav as the person whom he saw firing. On the

       contrary, in para 36 of his evidence, he says that he knew Mohit

       Yadav much before the happening of the incident. It is surprising

       that the only independent eye witness to the incident who was

       produced by the prosecution on account of the fact that he had

       seen the incident does not name any of the accused persons. He

       only speaks about having seen fleeing and certain unknown

       persons firing on the deceased.P.W.5 is Jainandan Singh, the first investigating officer, and

       he says that he never examined P.W.2 Salfi Devi, wife of the

       deceased. He does not speak anything about the manner in which

       the ferdbeyan and the dying declaration is recorded. However, he

       says that he was told that the deceased was alone when he was

       killed and there was no witness to the incident. From the statement

       of this witness, there was no eye witness to the incident, but

       surprisingly, three eye witnesses are introduced later as P.W.s 1, 2

       and 4.Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201824/28Similarly, P.W.7 Satyadeo Singh is the second Investigating

       Officer and he says that when he took over the investigation, he

       found the ferdbeyan and the dying declaration at para 64 of the

       case diary, he admits about having not examined the wife of the

       deceased and he does not know whether she is the wife of the

       deceased or not. If that is the state of affair and the evidence that

       have come on record and when the same is analyzed in the

       backdrop of various facts and lacunas in the case of the

       prosecution as is detailed hereinabove, we have no hesitation in

       holding that the prosecution has failed to prove the guilt of the

       appellants beyond reasonable doubt and it is a fit case where

       benefit of all these lacunaes in the prosecution case should be

       given to the accused persons, namely the appellants herein.Apart from the aforesaid, as stated by learned counsel for the

       appellants, we find that there is another serious lacunae in the case

       of the prosecution in the matter of complying with the mandatory

       requirement ofSection 313of the Code of Criminal Procedure. If

       the statement of the accused persons recorded underSection 313of the Code of Criminal Procedure are analyzed, it would be seen

       that three identical questions are put to each of the accused

       persons. The first is, "have you heard the statement of witnesses

       and what you have to say". The accused says, "yes", he has heard.
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201825/28Thereafter, it is stated that the allegation against him is that on

       21.07.2008 at 5 P.M. near Makhdumpur Referral Hospital on the

       southern side you went inside the house of Deepa Yadav and

       caused injury upon him who died during the course of treatment.

       What have you to say? And the third question is what you have to

       say in your defence?From the aforesaid it is clear that neither any incriminating

       circumstances or material that came on record is put to the accused

       nor are they cautioned about the evidence that has come on record

       and given an opportunity to explain the circumstances existing

       against them.The law with regard to recording of statement of accused

       under Section 313 Cr. P.C. are laid down in the following case:(1) Ranvir Yadav v. State of Bihar[(2009) 6 SCC 595];(2) Tara Singh v State[AIR 1951 SC 441]; and

              (3) Sukhjit Singh v State of Punjab[(2014) 10 SCC 270].In the case ofRanvir Yadav(supra), it has beenlaid down

       bythe Hon'ble Supreme Court that the purpose ofSection 313Cr.P.C. if scrutinized in its entirety would establish that it

       contemplates bringing to the notice of the accused incriminating

       materials available against him and thereafter putting questions to
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201826/28him based on these materials, it is held by the Hon'ble Supreme

       Court that the requirement of Section 313 Cr. P. C. is not an empty

       formality. It is held in the said case that the incriminating material,

       if not brought to the notice to the accused and is not given an

       opportunity to explain the same, tantamounts to a serious lapse on

       the part of the trial Court making the entire conviction based on

       such a trial vitiated in law.In the case ofTara Singh(supra), the provision as is existed

       in the year 1951, i.e.Section 342Cr.P.C. was taken note of and it

       has been held that it is not proper compliance of this statutory

       provision by merely reading out questions and putting them to the

       accused and directing him to answer. It is held that the whole

       object of the Section is to afford to the accused a fair and proper

       opportunity to explain the circumstances which appear against him

       and it is held that if the requirement of this Section is not properly

       complied with, the error is so gross that it causes grave prejudice

       to the accused.Both the aforesaid cases and two more cases of the Hon'ble

       Supreme Court on the issue in question, namelyHate Singh

       Bhagat Singh v. State of Madhya Bharat[ AIR 1953 SC 468]

       and Ajay Singh v. State of Maharashtra [ (2007) 12 SCC 341]

       have been considered by the Hon'ble Supeme Curt in the case of
 Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201827/28Sukhjit Singh(supra) and the Hon'ble Supreme Court after

       evaluating the legal principle has held that the whole object of

       Section of 313Cr.P.C. is to afford to the accused a fair and proper

       opportunity of explaining the circumstances which appear against

       him and, therefore, the questions put to him must be fair and must

       be couched in a form that he is able to appreciate and understand

       them and explain them. The purpose of this section is to draw an

       attention of the accused to the specific point in the charge and in

       the evidence which has come against him and he should be granted

       an opportunity to explain the same. The Hon'ble Supreme Court

       holds that if this requirement of law is not met, the entire trial

       stands vitiated and conviction unsustainable.Taking note of the totality of the facts and circumstances of

       the case, the evidence and the materials available on record, we

       allow all these three appeals, set aside the conviction and sentence

       as indicated hereinabove and acquit all the appellants of the

       charges levelled against them.The appellant Hriday Yadav in Criminal Appeal (DB) No.665

       of 2013 and the appellant Mohit Yadav in Criminal Appeal (DB)

       No.711 of 2013 are in jail. They be released forthwith, if not

       required in any other case.Patna High Court CR. APP (DB) No.665 of 2013 dt.11-01-201828/28The appellants Satendra Yadav and Baiju Yadav in Cr. Appeal

                    (DB) No.706 of 2013 are on bail. Now, they are discharged from

                    the liabilities of their bail bonds.(Rajendra Menon, CJ)


                                                          (Anil Kumar Upadhyay, J)
Sunil/-AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          20.01.2018
Transmission Date       20.01.2018