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2023 Supreme(Pat) 308

IN THE HIGH COURT OF JUDICATURE AT PATNA
A. M. BADAR and HARISH KUMAR, JJ.
Criminal Appeal (DB) Nos.1319, 1310, 1321 of 2017
(19.7.2023)
Teni Yadav @ Rajiv Kumar (in 1319)
Rajesh Kumar (in 1310)
Rakesh Ranjan Yadav
@ Rocky (in 1321) ... Appellants
vs.
State of Bihar ... Respondent
(in all)

Advocates:
For the Appellants : M/s Vikram Deo Singh (in 1319); Ashish Giri, Sumit Kumar Jha, Riya Giri (in 1310); Surendra Singh, Sr. Adv., Rajiv Kumar Singh, Sajal Kumar Sinha (in 1321).
For the Respondent: Mr. Dilip Kumar Sinha, APP (in all).

Headnote:

Criminal Trial – Appreciation of evidence of hostile witnesses – it is settled position of law that evidence of hostile witness should not be rejected totally but that pent of his evndence which is consistent with the case of the prosecution or the defence and which is truthful can be used – here, all four eye witnesses who were acompanying the deceased have turned hostile to the prosecution on material aspect of identification of the perpetrator of the crime as well as the weapon of the offence and the vehicle in which the accused arrived at the spot of the incident – the evidence of none of these witnesses is of any help to assertain guilt of the appellant/convicted accused. (Paras 11 to 18)

Criminal Trial – Circumslantial evidence – as held by the Supreme Court in Catena of decisions, (a) the circumstances from which an inferences of guilt in sought to be drawn, must be cogently and firmly established ; (b) those circumstances should be of a definite tendency unerringly pointing towards guilt of the acused. (c) the circumstances, taken cummulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (d) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the gilt of the acused but should be inconsistent with his innocence – in the instant case, first statement of PW 26 Akash (the informant) has been suppressed – it might have been suppressed as it might not be containing name of assailants – this aspect casts a serious shadow of doubt on the prosecution cases and the possibility of bolstering of it subsequently by recording another statement as the FIR is not ruled out by the prosecution clothes of deceased Aditya and injured PW1 Narir Hussain were found to be stained with blood but evidence on this aspect in no way ineriminates the accused in the crime in question – it cannot be concluded from materials or records and proceedings that those were the appeallants / convicted accused who had committed the subject crime and none else they are entitled for benefit of doubt – appela allowed. (Paras 25, 53, 55 & 56)

Criminal Trial – Expert opinion – evidentiary value – it is well settle that opinion of expert does not amount to substantive evidence – the expert is required to place data before the court to come to the final conclusion as to whether such opinion is correct or not in this case, no data has been furnished by PW 23 Dilip Kumar before the court to verify whether his opinion to the effect that the seized firearms Article 'A' is the firearm from which deformed parts of bullets were tired at the deceased causing death – Appeals allowed conviction and sentence set aside. (Para 49)

(2003) 12 SCC 377 paras 27 & 28, AIR 1973 SC 2622, (2010) 9 SCC 567, Criminal Appeal Nos. 339 – 340 / 2014 D/- 4.2.2022, (2023) 4 SCC 298, (2018)9 SCC 614, (2015) 9 SCC 588 paras 16 to 19, (2013) 14 SCC 266 paras 26 to 29, 1989 supp (2) SCC 706, (2014) 10 SCC 473 paras 8 – 23, AIR 1958 SC 150, AIR 2010 SC 806 paras 14, 15 & 17, 2016 (1) PLJR 590, para 60, 1971 SCC (Cri) 381 – Referred.

A. M. Badar, J.—All these appeals are of the year 2017 but they are specially assigned to this Court because of these happenings. On 15.02.2023, the Division Bench headed by Hon’ble Mr. Justice Arvind Srivastava had passed an order in one of these appeals that they are required to be heard on priority basis. Accordingly, the Criminal Appeal (DB) No. 1319 of 2017 was placed before the Hon’ble Acting Chief Justice on 17.03.2023 for assignment of the Bench. Under orders of the Hon’ble Acting Chief Justice, these appeals were placed before the Bench presided by the Hon’ble Acting Chief Justice. Thereafter, as per order dated 07.04.2023 passed by the Bench presided by the Hon’ble Acting Chief Justice hearing of these appeals was fixed at 2.15 P.M. on 08th May, 2023. However, on 08th May, 2023, the Division Bench headed by the Hon’ble Acting Chief Justice had passed an order - ‘not to list these appeals before the Division Bench of which Hon’ble Mr. Justice Chakradhari Sharan Singh is a member’. On recusal by the Hon’ble Acting Chief Justice, the Registry of this Court placed submission before Hon’ble the Chief Justice for modalities to be followed in the event of recusal and that is how under order dated 20.06.2023 of the Hon’ble Chief Justice, these connected appeals arising out of the same Judgment and order were placed before this Court for final hearing.

2. Appellant/convicted accused no.1 Rakesh Ranjan Yadav alias Rocky, appellant/convicted accused no.3 Teni Yadav alias Rajiv Kumar and appellant/convicted accused no.4 Rajesh Kumar son of Ram Lakhan Prasad, by these appeals, are challenging the Judgment and Order dated 31.08.2017 and 06.09.2017 passed in the Sessions Trial No. 292/2016(SJ) by the learned Additional Sessions Judge-I, Gaya, thereby convicting them of offences punishable under Section 302 read with 34, 323 read with 34 and 427 of the Indian Penal Code as well as under Sections 27 and 30 of the Arms Act. In addition, appellant/ convicted accused no.4 Rajesh Kumar is also convicted of the offence punishable under Section 217 of the Indian Penal Code. Appellant/convicted accused no.1 Rakesh Ranjan Yadav alias Rocky is sentenced to suffer imprisonment for life apart from imposition of fine of Rs.1,00,000/- for the offence punishable under Section 302 read with 34 of the Indian Penal Code. Other appellants, on this count, are sentenced to suffer imprisonment for life apart from imposition of fine of Rs.50,000/- on each of them. In default of payment of fine, appellant Rakesh Ranjan Yadav @ Rockey is directed to undergo rigorous imprisonment for two years. Rest of the appellants are directed to undergo similar sentence but for one year. They all are sentenced to undergo rigorous imprisonment for one year apart from a direction to pay fine of Rs.5000/- by each of them for the offence punishable under Section 323 read with 34 of the Indian Penal Code and in default of payment of fine, to undergo rigorous imprisonment for one month. Similarly, the appellants are directed to undergo rigorous imprisonment for one year apart from a direction to pay fine of Rs.5000/- by each of them for the offence punishable under Section 427 of the Indian Penal Code and in default of payment of fine, they are directed to undergo rigorous imprisonment for one month by each of them. For the offence punishable under Section 27 of the Arms Act, they all are directed to undergo rigorous imprisonment for five years apart from direction to pay fine of Rs.5000/- by each of them and in default of payment of fine, they are directed to undergo imprisonment for two months. For the offence punishable under Section 30 of the Arms Act, the appellants/convicted are directed to undergo rigorous imprisonment for six months apart from a direction to pay fine of Rs.5000/- and in default of payment of fine, to undergo further rigorous imprisonment for one month. For the offence punishable under Section 217 of the Indian Penal Code, the appellant/convicted accused

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