IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (DB) No.223 of 2019

Arising Out of PS. Case No.-39 Year-2016 Thana- BHARGAMA District- Araria

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1.Md. Babar @ Md. Babar Ali Son Of Md. Kamrul Resident Of Bir Nagar, Tola Topra, P.S.-

Bhargama, District - Araria.

2.Md Rustam Son of Md Usman Resident of Bir Nagar, Tola Topra, P.s.- Bhargama, District -

Araria.

... ... Appellant/s

Versus

The State of Bihar

... ... Respondent/s

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Appearance :

For the Appellant/s: Mr. Pratik Mishra, Advocate

Mr. Vatsal Vishal, Advocate

Mr. Udbhav, Advocate

For the Informant : Mr. Pankaj Kumar Jha, Advocate

For the State : Mr. Bipin Kumar, APP

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CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

and

HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA

ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)

Date : 18-07-2024

The present appeal has been filed under Section 374(2)

of the Code of Criminal Procedure, 1973 (hereinafter referred as

‘Code’) challenging the judgment of conviction dated 14.12.2018

and order of sentence dated 18.12.2018 passed by the learned 1

st

Additional Sessions Judge, Araria in Sessions Trial No. 548 of

2016 (CIS No. 489 of 2016), arising out of Bhargama P.S. Case

No. 39 of 2016, whereby the concerned Trial Court has convicted

the present appellants for the offences punishable under Sections

302 read with 34 of the Indian Penal Code and sentenced them to

undergo rigorous imprisonment for life and fine of Rs. 50,000/-

each convict for the offence under Section 302 read with 34 of the

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I.P.C. and, in default of payment of fine, the convicts have to further

undergo simple imprisonment for one year each.

2. At the outset, it is pertinent to note that the present

appeal has been filed by two appellants namely, appellant No. 1 Md.

Babar @ Md. Babar Ali and appellant No. 2 Md. Rustam. Learned

counsel Mr. Pratik Mishra appearing for the appellants, under

instructions, submits that the appellant No. 2 Md. Rustam passed

away during the pendency of the present appeal. In fact, he was

released on bail by this Court. Therefore, we have considered the

present appeal qua appellant No. 1, who is in custody. This appeal

stands abated qua appellant No. 2.

3. The prosecution story, in a nutshell, is as under:-

3.1. The informant, on 02.04.2016 at 07:00-08:00 a.m.,

along with her son Abdul Kabir went to field for harvesting wheat

crop. While they were harvesting, her husband Abdul Jabbar reached

at 09:00 a.m. and asked for breakfast. In the meantime, Sagir, Babar,

Rustam and Bibi Sakila, armed with farsa, lathi, arrow came and

encircled her husband Abdul Jabbar and then Sagir inflicted repeated

farsa blow over the head of her husband. Babar had also assaulted

with lathi repeatedly and then Rustam, armed with arrow, was

provoking them to kill him. On account of assault, her husband

sustained several injuries over different parts of the body, as a result

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of which, he fell down. Subsequently, the accused persons smashed

his teeth as well as jaw and Sakina was assisting them. The

informant along with her son intervened and they were also

assaulted, as a result of which, they also became senseless. The

reason behind the occurrence was that the own brother of the

deceased namely Kamrul, who happens to be the father of accused

Sagir, had executed a sale deed for 17 khatas of land in favour of the

husband of the deceased for which all the accused persons were

annoyed.

3.2. After registration of the F.I.R., the Investigating

Officer started the investigation and during the course of the

investigation, he had recorded the statement of the witnesses and

thereafter filed the charge-sheet against the appellant/accused before

the concerned Magistrate Court. As the case was exclusively triable

by the Court of Sessions, the learned Magistrate committed the same

to the Sessions Court where the same was registered as Sessions

Trial No. 548 of 2016 (CIS No. 489 of 2016).

4. Heard learned counsel Mr. Pratik Mishra for the

appellant assisted by Mr. Vatsal Vishal and Mr. Udbhav, learned

counsel Mr. Pankaj Kumar Jha for the informant and Mr. Bipin

Kumar, learned A.P.P. for the Respondent-State.

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5. Learned counsel Mr. Pratik Mishra appearing for the

appellant submits that, as per the case of the prosecution, the

fardbeyan of the informant came to be recorded at 14:30 hours on

02.04.2016 at Emergency Ward of Sadar Hospital, Purnea. The said

fardbeyan was recorded by A.S.I. Shree Bhagwan Pandey. However,

the said Officer, who has recorded the fardbeyan, has not been

examined by the prosecution. The informant is examined as PW-4 by

the prosecution and, in her deposition, the informant did not identify

her right thumb impression put in the so-called fardbeyan. On the

contrary, the informant has stated that her statement was recorded at

her house when she returned from Purnea with the dead body.

Learned counsel, therefore, urged that the fardbeyan/F.I.R. is not

duly proved and the same has not been exhibited. At this stage, it is

contended that PW-3, who is the son of the informant, has deposed

before the Court that the statement of the informant was recorded at

the place of occurrence and the informant had put her thumb

impression on the statement at the place of occurrence.

6. Learned counsel would further submit that it is a case of

the informant, in the fardbeyan, that she along with her son (PW-3)

was cutting the wheat crops in the field at around 07:00-08:00 a.m.

The deceased came at the said place at around 09:00 a.m. and, it is

alleged that at that time the accused persons came at the place and

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assaulted the deceased. However, during the course of her deposition

before the Court, the informant has not stated about the presence of

her son. It is also contended that PW-2, who is the daughter of the

deceased and the informant, deposed before the Court that she went

to the place of occurrence after hearing hulla and the deceased was

lying on the ground, blood was oozing out, his teeth was broken and,

due to insertion of rod, the mouth of the deceased was ruptured. She

has also deposed that her mother had also reached there after hearing

hulla. Learned counsel for the appellant, therefore, submitted that

the informant and her son are, in fact, not the eye-witness to the

incident in question and they reached at the place of occurrence after

hearing hulla while the deceased was already assaulted. At this

stage, it is also contended that the prosecution has examined only

interested/related witnesses and no independent witness has been

examined. It is also submitted that the deposition given by the so-

called eye-witnesses is not trustworthy and, therefore, the same may

not be relied upon.

7. Learned counsel Mr. Pratik Mishra thereafter submitted

that, as per the case of the prosecution, the place of occurrence is the

field of the informant which is situated in the east of the village.

However, PW-5, the Investigating Officer, has deposed that he

inspected the place of occurrence and found it to be the field of Md.

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Rustam. At this stage, learned counsel has also referred the

deposition of PW-1, the daughter of the informant, who has deposed

that, after hearing hulla, she reached at bandh where the deceased

was present. However, PW-2, another daughter of the informant, has

deposed that there was blood at the place of occurrence and the

ground was totally wet by the blood and there was no bandh at the

place of occurrence. It is submitted that even PW-3 also stated about

the presence of blood-stains at the place of occurrence for two days.

However, PW-5 (Investigating Officer) has deposed that he reached

at the place of occurrence on the date of occurrence at around 12:15

p.m. and he found that the wheat crop was not trampled but was in a

natural condition. He did not find any incriminating material at the

place of incident. Learned counsel, therefore, urged that the

prosecution has miserably failed to prove the place of occurrence.

8. Learned counsel Mr. Pratik Mishra would further

contend that the prosecution has also failed to prove the genesis of

the occurrence. The informant has stated in the fardbeyan that,

because of the dispute with regard to 17 katthas of land between the

parties, the incident took place. In fact, the informant has stated, in

the fardbeyan, that the accused are the co-villagers/neighbours.

However, from the deposition of the other prosecution witnesses, it

is revealed that the appellant is the cousin of PW-1 to PW-3.

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9. Learned counsel lastly contended that while recording

further statement of the appellant/accused under Section 313 of the

Code, incriminating materials/circumstances against the appellant

were not put to him and thereby a serious prejudice has been caused

to the appellant/accused.

10. Learned counsel for the appellant, therefore, submitted

that though the prosecution has failed to prove the case against the

appellant beyond reasonable doubt, the Trial Court has passed the

impugned judgment and order and, therefore, the same be quashed

and set aside.

11. On the other hand, learned A.P.P. as well as the learned

counsel Mr. Pankaj Kumar Jha for the informant have opposed the

present appeal. Learned counsels for the respondents submit that

there are eye-witnesses to the incident in question and they have

supported the case of the prosecution. Merely because they are near

relatives of the deceased their version cannot be discarded. It is

further submitted that the medical evidence also supports the case of

the prosecution. Thus, when the prosecution has proved the case

against the appellant beyond reasonable doubt, no error is committed

by the Trial Court while passing the impugned judgment and order.

Learned counsels, therefore, urged that the present appeal be

dismissed.

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12. We have considered the submissions canvassed by the

learned counsels for the parties. We have also perused the evidence

of prosecution witnesses and also perused the documentary evidence

exhibited.

13. At this stage, we would like to appreciate the relevant

extract of entire evidence led by the prosecution before the Trial

Court.

14. Before the Trial Court, the prosecution had examined 6

witnesses.

15. PW-1 Tankila has stated, in her examination-in-chief,

that on the day of incident, at about 08:00 a.m., she headed towards

her father on hearing noise from her home and found that he was in

the bandh. Sagir hit her father on the head with farsa causing severe

injuries on his head and he died during the course of treatment.

Rustam, Babar, Sakila were also involved in the incident. Rustam

was assaulting her father with bows-arrows while Sakila thrust a rod

into his mouth and Babar hit 50 blows of stick (lathi) on his

stomach.

15.1. In her cross-examination, she has stated that when

she reached the bandh, she found her father lying unconscious on the

ground. The accused persons were assaulting him. She went there

and implored them to leave her father and kill her instead. Further,

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she has stated that Babar was hitting her father with lathi. There

were injuries on her father’s body parts, including head, nose,

mouth, eye, abdomen. She did not count the injuries. By the time she

reached the spot, her father was alive. He died in the hospital at

Purnea. There was a land related dispute which was the bone of

contention. Further, she has stated that 3-4 people had gathered when

the occurrence was going on.

16. PW-2 Sahnara Khatoon has stated, in her examination-

in-chief, that on the day of incident, Jabbar had gone to the bandh to

harvest the wheat crop. Sameer, Rustam, Babar came with farsa,

lathi, surrounded her father and then Sameer hit him with farsa

while Rustam hit him with arrows and Shakila pushed the rod into

his mouth. Her father died in the hospital.

16.1. In her cross-examination, she has stated that Babar is

her cousin while Rustam is her brother-in-law. She reached at the

place of occurrence at 08:00 a.m. She reached after hearing the

uproar. Her father was lying on the ground. He was bleeding and his

teeth were broken. His buccal cavity was grievously injured due to

the rod being inserted into his mouth. Her mother also came there on

hearing the uproar. She, along with her mother, took her father to her

home. It was the time of namaz in the afternoon when he was

brought. The soil where he died was handed over to the Police on

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Sunday. He was treated in the hospital at Purnea where he died. She

has further stated that there was blood spilled at the place of

occurrence and there was no field there. The Police registered the

statement on the day of the incident itself. There was already a

dispute with Babar and Rustam and they were not on talking terms

with them. It is also stated that the bone of contention between them

was the land dispute.

17. PW-3 Abdul Kabir is the son of the informant. He has

stated, in his examination-in-chief, that Babar was carrying lathi,

Shakila had a rod in her hand while Rustam was holding arrows in

his hand and Sameer was holding a farsa. Sameer assaulted his

father 8-10 times with farsa. His father died during the treatment. He

was also present there at that time. It is also stated that the Police had

visited the place of occurrence. He and his mother’s statements were

recorded at Purnea Hospital. The post mortem was conducted in

Araria.

17.1. In his cross-examination, he has stated that the

Police had recorded the statement of his mother on the day of

occurrence at the spot of incident itself who had put her thumb

impression as well. There was blood spilled at the spot of incident.

His father suffered severe injuries on his head, nose and lips. There

was a cut on his tongue as well. He was the witness to the fight. He

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has stated that the blood-stains remained at the spot of incident for

two days. The Police directly sent his father to Purnea Hospital. He

was brought to Araria after his death. He has further stated that the

accused persons are his cousins and they had used bows and arrows.

All the accused persons fled with their weapons after committing the

offence. Seven arrows were lying there at the place of incident and

no one was hit by the arrow. He has also stated that the wheat crop

was trampled at the crime scene.

18. PW-4 Mariam is the informant of this case. On the day

of incident, her husband had come with her to cut wheat. Sameer,

Babar, Rustam and Shakila came there and started assaulting him.

Sameer hit her husband on his head with farsa, Babar hit him with

lathi, Rustam hit him with bows and arrows while Shakila hit him

with a rod. Her husband died during treatment in the hospital. The

Police recorded her statement. She had affixed her thumb impression

on the same.

18.1. In her cross-examination, she has stated that the

buccal cavity of her husband was grievously injured on being

assaulted by the accused persons. They disfigured his face. The S.I.

recorded her statement at her home when they returned with the dead

body from Purnea. She has also stated that there was blood spilled at

the place of incident. Her husband was wounded in the eyes by an

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arrow and two arrows were found lying on the place of incident. She

did not give the statement to the Police again. Further, she has stated

that Sameer, Babar and Rustam are not her relatives but they are just

co-villagers.

19. PW-5 King Kundan is the Investigating Officer who

was posted as Officer-in-charge at Bhargama P.S. on 02.04.2016. He

took the charge of investigation after registering the case of

Bhargama P.S. Case No. 39/2016. He inspected the spot of incident

and recorded the statement of the informant again. He received the

Inquest Report of Md. Jabbar from K. Hat and mentioned the same

in the diary. Thereafter, he inspected the spot of incident which is the

Md. Rustam’s field. He then recorded the statement of the witnesses

namely, Ayub Kheer, Sahnara, Tankila. The formal F.I.R. was

marked as Exhibit-1.

19.1. In his cross-examination, he has stated that he did

not go to Purnea during the course of the investigation. He found

that the wheat crop were sown in the field but he did not see the

harvested wheat. He did not find any incriminating material at the

spot of incident. He has not mentioned about the distance between

the place of occurrence and the informant’s house. He has mentioned

about the date when he visited the place of occurrence. He reached at

the place of incident at 12:15 hours which he has mentioned in Para-

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4. He arrested the accused persons from their homes respectively.

They themselves gave their names and addresses. He had stated

about the reason behind their arrest but did not mention it in the

diary. Further, he has stated that he did not investigate the place

where the deceased was treated because he did not consider it

necessary after receiving the post mortem report. The post mortem of

the body of the deceased was conducted in Purnea itself. The blood-

stained clothe was not received so he did not mention it nor

registered the statement of any independent witnesses.

20. PW-6 Dr. Abdul Ahad has stated in his deposition that

he was posted as Medical Officer at Sadar Hospital, Purnea on

02.04.2016. He conducted the post mortem of the deceased on the

instruction of the Civil Surgeon, Purnea and found following ante-

mortem injuries:-

“(i) Rigor mortis found on both upper and lower limbs.

(ii) Multiple bruises over right thigh, right leg, right forearm

and also around right eye.

(iii) Stitch wound over right eyebrow about two inch in

length.

(iv) Stitch wound on dorsum of nose about one inch in

length.

(v) Three stitch wounds over mid skull one inch and one and

a half and four inch.

(vi) Stitched wound over lower lip about one inch in size.

On dissection:-

(i) Blood and clot found in and under line tissues of above

mentioned injuries.

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(ii) There was fracture of left parietal skull bone.

(iii) Blood and clots found in the cranial cavity.

3. All the visceras-

(i) lungs, liver, spleen, kidney etc. found pale.

(ii) Left side of heart found empty and right side heart full of

blood.

(iii) Stomach found empty.

(iv) Intestines contained gases and fecal matter.

Opinion:-

(i) In my opinion death is due to hemorrhage and shock due

to above mentioned head injury caused by hard blunt substances.

(ii) Time elapsed within 24 hours of post mortem.”

20.1. In his cross-examination, he has stated that multiple

stitch wounds were seen on the body parts of the deceased while

performing the post mortem but after looking at it, it was not known

whether the injury was caused by hard blunt substance or by a sharp

weapon. It is said to be something that can be only revealed by the

one who had previously given the first aid to the deceased. His

opinion is that the wounds are caused by the hard blunt substance.

21. From the evidence produced by the prosecution before

the Trial Court, it emerges that, for the incident which took place at

about 09:00 a.m. on 02.04.2016, the fardbeyan of the informant was

recorded at 14:30 hours. The said fardbeyan was recorded in the

Emergency Ward at Sadar Hospital at Purnea. It is relevant to note

that the formal F.I.R. was registered only on the next date i.e. on

03.04.2016 at 11:00 a.m. It further transpires from the record that, as

per the case of the prosecution, the informant put her right thumb

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impression on the said fardbeyan. However, it is revealed from the

record that A.S.I. Shree Bhagwan Pandey had recorded the said

fardbeyan. However, the prosecution has failed to examine the said

Police Officer. It would further reveal from the deposition given by

PW-4 (Informant) that her statement was recorded by the Police

Officer at her house when she returned to Purnea with the dead body

of the deceased. Further, from the deposition given by PW-3, son of

the informant, the statement of the informant was taken by the Police

at the place of occurrence and, at that place, her thumb impression

was obtained on the statement of the informant. At this stage, we

would also like to refer the deposition given by PW-5, Investigating

Officer, who has specifically stated in Para-6 of his cross-

examination that, on the date of incident, at 12:15 hours, he reached

at the place of occurrence. Thus, from the said deposition, it can be

said that, even before recording of the fardbeyan of the informant at

14:30 hours (02:30 p.m.), the Investigating Officer reached at the

place of occurrence. It is further revealed from the record that the

F.I.R. is not duly proved. Thus, from the aforesaid evidence led by

the prosecution, doubt has been raised with regard to the recording

of the fardbeyan at Emergency Ward of Sadar Hospital, Purnea.

What was the first version of the informant at the place of

occurrence is not produced by the prosecution.

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22. From the deposition given by the PW-4 (Informant), it

is revealed that the said witness has projected herself as an eye-

witness to the incident in question. As observed hereinabove, her

fardbeyan was recorded in the Emergency Ward of Sadar Hospital,

Purnea. However, from the deposition of PW-2, daughter of the

informant, it would reveal that she went to the place of occurrence

after hearing hulla and the deceased was lying on the ground and the

blood was oozing out. The said witness further stated that her mother

had also reached there after hearing hulla. It is also revealed from

the deposition given by PW-1, daughter of the informant, that she

also reached at the place of occurrence after hearing hulla and she

reached at bandh where the deceased was present.

22.1. As per fardbeyan, the informant and her son (PW-3)

were cutting the wheat crop in the field at around 07:00-08:00 a.m.

and the deceased came at the said place at around 09:00 a.m. and, at

that time, the accused came at the place and assaulted with deadly

weapons like farsa, lathi and arrows on the deceased. However, PW-

4 (Informant) has not stated about the presence of her son while

giving the deposition before the Court. On the contrary, she has

stated that she along with the deceased had gone to the field for

cutting wheat crop where the accused persons assembled and

assaulted the deceased.

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23. At this stage, it is also relevant to note that there is

major discrepancy with regard to the place of occurrence in the

deposition given by the prosecution witnesses. As per the case of the

prosecution, the place of occurrence is the field of the informant

which is situated in the east of the village. However, if we examine

the deposition given by PW-5, Investigating Officer, he has

specifically stated that he inspected the place of occurrence and

found it to be the field of Md. Rustam. Further, PW-1, daughter of

the informant, has deposed that, after hearing hulla, she reached at

bandh where the deceased was present whereas PW-2, another

daughter of the informant, has deposed that there was blood at the

place of occurrence and the ground was totally wet by blood but

there was no bandh at the place of occurrence. Similarly, PW-3, son

of the informant, has deposed that there was blood at the place of

occurrence and the blood-stains remained at the said place for two

days. He further deposed that 7 arrows were there at the place of

occurrence. He further deposed that the wheat crop was trampled.

However, at this stage, if we examine the deposition given by the

informant PW-4, she has stated that there was blood at the place of

occurrence and 2 arrows were lying at the said place. Further, wheat

crop of ¼ katthas was cut when the occurrence took place. However,

if the deposition of PW-5 (Investigating Officer) is carefully

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scrutinized, it is revealed that the said witness has stated that he

reached at the place of occurrence on the date of occurrence at

around 12:15 p.m. He found that the wheat crop was not trampled

but was in a natural condition. He did not find any harvested wheat

crop at the said place. He did not find any incriminating material at

the place of incident. Thus, from the aforesaid discussion, it can be

said that the prosecution has miserably failed to prove the place of

occurrence and there are major contradictions and inconsistencies in

the depositions given by the prosecution witnesses who are the near

relatives/interested witnesses. It is true that merely because

witnesses are the interested/related witnesses, their deposition cannot

be discarded simply on the said ground. However, their deposition is

required to be scrutinized carefully. From the aforesaid discussion

and evidence of the prosecution witnesses, we are of the view that

there are major contradictions, inconsistencies and discrepancies in

the deposition of the relatives/interested witnesses and, therefore,

their deposition cannot be said to be trustworthy. The aforesaid

witnesses are, in fact, chance witnesses and their presence at the

place of occurrence raises doubt. At this stage, it is also relevant to

observe that the incident in question which took place at 09:00 a.m.

in the agricultural field and, therefore, presence of the independent

witnesses in the nearby agricultural field was natural. However, the

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prosecution has not examined any independent witnesses. Further,

the Inquest Report of the deceased was also not produced before the

Court and the same has not been exhibited. Even the inquest

witnesses and the author of the Inquest Report have not been

examined by the prosecution and thereby there is a deliberate

suppression of the Inquest Report which caused prejudice to the

appellant/accused. It has also come on record, in the evidence of

PW-6 (Doctor), who had conducted the post mortem of the dead

body of the deceased, that the dead body was brought to the hospital

by Constable Sudhir Prasad and Md. Sahabuddin. However, the

aforesaid witnesses are also not examined by the prosecution.

24. Further, from the deposition given by PW-6 (Doctor),

it is revealed that there were multiple wounds on the body of the

deceased and the weapons used to inflict such wounds can be

deposed/stated by the Doctor who had treated the deceased. At this

stage, it is pertinent to note that the prosecution has failed to

examine the Doctor, who had given the treatment to the deceased.

Thus, the prosecution has failed to prove the manner of occurrence.

25. At this stage, we would like to refer the decision

rendered by the Hon’ble Supreme Court in the case of Sujit Biswas

Vs. State of Assam, reported in AIR 2013 SC 3817, wherein it has

been stated in Para-12 as under:-

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“12. It is a settled legal proposition that in a criminal

trial, the purpose of examining the accused person under Section

313 CrPC, is to meet the requirement of the principles of natural

justice i.e. audi alteram partem. This means that the accused

may be asked to furnish some explanation as regards the

incriminating circumstances associated with him, and the court

must take note of such explanation. In a case of circumstantial

evidence, the same is essential to decide whether or not the chain

of circumstances is complete. No matter how weak the evidence

of the prosecution may be, it is the duty of the court to examine

the accused, and to seek his explanation as regards the

incriminating material that has surfaced against him. The

circumstances which are not put to the accused in his

examination under Section 313 CrPC, cannot be used against

him and must be excluded from consideration. The said

statement cannot be treated as evidence within the meaning of

Section 3 of the Evidence Act, as the accused cannot be cross-

examined with reference to such statement.”

26. We would also like to refer the decision rendered by

the Hon’ble Supreme Court in the case of Naresh Kumar Vs. State

of Delhi, reported in 2024 SCC OnLine SC 1641, wherein it has

been stated in Para-21, 22 & 23 as under:-

“21. We have already held that whether non-

questioning or inadequate questioning on incriminating

circumstances to an accused by itself would not vitiate the trial

qua the accused concerned and to hold the trial qua him is

vitiated it is to be established further that it resulted in material

prejudice to the accused. True that the onus to establish the

prejudice or miscarriage on account of non-questioning or

inadequate questioning on any incriminating circumstance(s),

during the examination under Section 313, Cr. P.C., is on the

convict concerned. We say so, because if an accused is

ultimately acquitted, he could not have a case that he was

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prejudiced or miscarriage of justice had occurred owing to such

non-questioning or inadequate questioning.

22. In the light of the above view of the matter, we

are inclined to consider the further question whether the non-

questioning on the aforesaid twin incriminating circumstances to

the appellant during his examination under Section 313, Cr. P.C.,

had caused material prejudice to him. The decision of this Court

in State of Punjab v. Swaran Singh, constrain us to consider one

another factor while considering the question of prejudice. In

Swaran Singh's case (supra), this Court held that where the

evidence of the witnesses is recorded in the presence of the

accused who had the opportunity to cross examine them but did

not cross examine them in respect of facts deposed, then,

omission to put question to the accused regarding the evidence

of such witnesses would not cause prejudice to such an accused

and, therefore, could not be held as grounds vitiating the trial

qua the convict concerned. We have already found that Anil

Kumar (PW-7), Smt. Prem Devi (PW-8), Mrs. Madhu (PW-19)

and Anand Kumar (PW-22) have deposed about the said

circumstances. A scanning of their oral testimonies, available on

record, would undoubtedly reveal that on both the points, on

behalf of the appellants they were cross examined.

23. The position, as above, would take us to the last

question whether material prejudice was caused to the appellant

on account of non-questioning him on the aforesaid

incriminating circumstances and thereby depriving him an

opportunity to explain. This question can better be considered by

referring to paragraph 31 of the judgment of the Trial Court,

which virtually got confirmance from the High Court under the

impugned judgment. It reads thus:—

“31. As far the part played by accused

Naresh is concerned, this has come in the evidence of

PWs that he (Naresh) is the man, who called his brother

Mahinder and exhorted “Mahender came out and kill

them today” and thereafter his taking part in the

Patna High Court CR. APP (DB) No.223 of 2019 dt.18-07-2024

22/23

incident, by catching hold of deceased Arun Kumar,

clearly goes to show the common’ intention of the two,

i.e. Naresh and Mahinder and even the Learned Defence

Counsel, cannot be benefited from the above noted

authorities.”

27. We have also examined the statement of the accused

recorded under Section 313 of the Code. From the said statement, it

would reveal that all the incriminating materials/circumstances

against the appellant were not put to him and it is a specific case of

the appellant/accused that, because of the same, great prejudice has

been caused to him. Now, it is well settled that recording of the

statement of the accused under Section 313 of the Code is not mere

formality and if the prejudice has been caused to the defence by not

putting all the incriminating material to him, on this ground also,

case of the convict can be considered.

28. In view of the aforesaid facts and circumstances of the

present case, we are of the view that the prosecution has failed to

prove the case against the appellant/accused beyond reasonable

doubt despite which, the Trial Court has recorded the judgment of

conviction and order of sentence against the appellant. Hence, the

impugned judgment and order are required to be quashed and set

aside.

29. Accordingly, the impugned judgment of conviction

dated 14.12.2018 and order of sentence dated 18.12.2018 passed by

Patna High Court CR. APP (DB) No.223 of 2019 dt.18-07-2024

23/23

learned 1

st

Additional Sessions Judge, Araria in Sessions Trial No.

548 of 2016 (CIS No. 489 of 2016), arising out of Bhargama P.S.

Case No. 39 of 2016, are quashed and set aside.

30. The appeal stands allowed.

31. The appellant, namely Md. Babar @ Md. Babar Ali, is

acquitted of the charges levelled against him by the learned Trial

Court. He is directed to be released from custody forthwith, if his

custody is not required in any other case.

32. Learned counsel for the appellant submits that

appellant No. 2 Md. Rustam has died during the pendency of the

present appeal.

33. As such, the appeal stands abated with regard to

appellant No. 2 Md. Rustam.

Sachin/-

(Vipul M. Pancholi, J)

(Ramesh Chand Malviya, J)

AFR/NAFR A.F.R.

CAV DATE N.A.

Uploading Date 24.07.2024

Transmission Date 24.07.2024