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IN THE HIGH COURT OF JUDICATURE AT PATNA
A. M. BADAR and RAJESH KUMAR VERMA, JJ.
(25.7.2022)
Criminal Appeal (DB) No.405 of 2014
Nepali Yadav : Appellant
(in both)
Vs.
State of Bihar : Respondent
(in both)
Indian Penal Code, 1860 – Sections 302/34 – Arms Act, 1959 – Section 27 – Indian Evidence Act, 1872 – Section 145 – Murder – Common intention – Life sentence – Prosecution has proved the fact that deceased died homicidal death – Delay in lodging F.I.R. cannot be used as a formula for doubting prosecution case – It can at the most, put Court on its guard to search if any explanation has been offered for delay in registration of F.I.R. – If prosecution fails to satisfactorily explain delay and there is possibility of embellishment in prosecution version on account of such delay, then only delay would be fatal to prosecution case – If there is proper explanation to delay, then such delay by itself cannot be a ground for disbelieving and discarding entire prosecution case – Sequence of events soon following crime and as described by prosecution witnesses sounds quite natural and provides satisfactory explanation for a time of about 4 hours and 15 minutes in registration of formal F.I.R. – In fact there is absolutely no delay in registration of F.I.R. and, as such, there is no question of adding embellishment to prosecution case – Defence has virtually not disputed presence of eye witness on spot of incident at the time of incident – Ocular and medical evidence coming on record makes it clear that accused persons were intending to cause death of deceased – It is not correct to reject prosecution version only on the ground that all witnesses to occurrence have not been examined – Appeals dismissed. (Paras 8, 12, 16, 22, 24 and 27)
Code of Criminal Procedure, 1973 – Section 301 – Appearance by Public Prosecutors – When a crime takes place in a society, it is not just victim who is affected – Entire society and in fact State gets affected and prosecution is taken up by State instead of allowing victims of crime to prosecute accused – State as such is duty bound to provide Public Prosecutor for prosecuting case so as to ensure that justice is being done in an impartial manner – Public Prosecutor is an important and significant component of Judicial System who is supposed to safeguard rights of victim as well as accused person as per facts of the case, by assisting Court. (Para 4)
Indian Evidence Act, 1872 – Section 134 – No particular number of witnesses shall in any case be required for proof of any fact – When version of three eye witnesses can be accepted and acted upon then non-examination of other witnesses which may be available and which could have been examined but were not examined is of no consequence – There is no question of drawing adverse inference against prosecution on this count. (Para 23)
Balraje alias Trimbak vs. State of Maharashtra, (2010) 6 SCC 673; Dalip Singh vs. State of Punjab, AIR 1953 SC 364; Masalti vs. State of U.P., A.I.R. 1965 SC 202; Harbans Kaur vs. State of Haryana, (2005) 9 SCC 195; Namdeo vs. State of Maharashtra, (2007) 14 SCC 150 – Relied.
A. M. BADAR, J.:–Criminal Appeal (DB) No.405 of 2014 is filed by appellant/ convicted accused Nepali Yadav whereas Criminal Appeal (DB) No.443 of 2014 is filed by appellant/convicted accused Nilesh Yadav. By these appeals, they are challenging the Judgment and Order dated 15.04.2014 and 19.04.2014 respectively passed by the learned Adhoc Additional Sessions Judge-IV, Bhagalpur, in Sessions Trial No.170 of 2012, thereby convicting them of the offences punishable under Section 302 read with 34 of the Indian Penal Code as well as under Section 27 of the Arms Act. Appellant/convicted accused Nepali Yadav is sentenced to suffer imprisonment for life apart from a direction to pay fine of Rs.25000/- and in default, to undergo rigorous imprisonment for five years for the offence punishable under Section 302 read with 34 of the Indian Penal Code. For the offence punishable under Section 27 of the Arms Act, he is sentenced to suffer rigorous imprisonment for two years apart from a direction to pay fine of Rs.2000/- and in default, to undergo rigorous imprisonment for six months. Appellant/ convicted accused Nilesh Yadav is sentenced to suffer life imprisonment apart from a direction to pay fine of Rs.5000/- and in default, to undergo rigorous imprisonment for one year for the offence punishable under Section 302 read with 34 of the Indian Penal Code. For the offence punishable under Section 27 of the Arms Act, he is sentenced to suffer rigorous imprisonment for two years apart from imposition of fine of Rs.1000/- and in default, to undergo further rigorous imprisonment for three months. Substantive sentences are directed to run concurrently. As both these appeals are arising out of the same Judgment and Order of conviction and resultant sentence imposed on the accused therein, those are being decided by this common Judgment. For the sake of convenience, the appellants shall be referred to in their original capacity as “the accused”.
2. Facts in brief leading to the prosecution of the accused persons can be summarized thus:—
(a) According to the prosecution case, both accused persons in furtherance of their common intention along with coaccused Vibhishan Yadav had committed murder of Rohit Kumar on 12.03.2010 by firing bullets at him at the bank of river Ganga at New Sidhighat falling within the jurisdiction of Police Station-Sultanganj in Bhagalpur District of Bihar.
(b) The incident allegedly took place at about 12.30 P.M. of 12.03.2010 at the bank of river Ganga at New Sidhighat area. At that time, P.W.3 Manilal Yadav-maternal uncle of deceased Rohit Kumar, P.W.5 Kundan Kumar-cousin of deceased Rohit Kumar and P.W.6 Chhotu alias Rockey-another cousin of deceased Rohit Kumar were taking bath at river Ganga, along with other people. Rohit Kumar (since deceased) was also present at the New Sidhighat at the bank of river Ganga. The devotees whose wishes were fulfilled, were offering goats to river Ganga and Rohit Kumar was catching and capturing those goats from the Ganga river at that time. It is case of the prosecution that at that time, accused persons viz. Nepali Yadav, Nilesh Yadav so also Vibhishan Yadav came there. They quarreled with Rohit Kumar. Thereafter, accused Nepali Yadav fired a bullet which hit at the left side of nose of Rohit Kumar. Accused Vibhishan Yadav fired a bullet which hit at the back of Rohit Kumar. Accused Nilesh Yadav opened fire in the air to terrorize the people present at the New Sidhighat.
(c) Because of this incident of firing, chaos erupted on the spot and people ran halter skelter. The shop keepers left their shops. Hit by bullets, Rohit Kumar fell down. His cousin P.W.5 Kundan Kumar went running to the house of Rohit Kumar to disclose the incident to the inmates of his house. That is how, P.W.1 Vimla Devi (mother of Rohit Kumar) and P.W.7 Rahul Kumar (brother of the deceased) came to know about the incident. They as well as P.W.2 Munna Kumar (cousin of the deceased) rushed to New Sidhighat. There, they sa
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