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2012 DIGILAW 1609 (PAT)

Manoj Yadav @ Manoj Kumar Yadav v. State of Bihar

2012-11-30

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) 1. When the appeal was called out repeatedly then nobody has appeared on behalf of the appellant. This Court is in seisin of old Criminal Appeals (Division Bench) and the arguing Counsel had not appeared on behalf of the appellant despite repeated calls. In order to expedite the hearing Amicus Curiae has to be appointed. Shri Saroj Kumar Singh, the learned Advocate is present in the Court and volunteers to assist the Court as Amicus Curiae. Considering his willingness, Shri Saroj Kumar Singh is appointed as Amicus Curiae to assist the Court on behalf of the appellant. Let a copy of the brief of the appeal be handed over to newly appointed Amicus Curiae. The appeal is being passed over and it shall be taken up after lunch. 2. Appellants Manoj Yadav @ Manoj Kr. Yadav and Munna Yadav have impugned the judgment dated 27.06.2005 and order of sentence dated 28.06.2005, delivered by the learned Additional Sessions Judge, Fast Track Court, Munger in connection with Sessions Case No. 194 of 1992 relating to Naya Ram Nagar P.S. Case No. 87 of 1991, holding the appellants guilty under Section 302/34 of the IPC and sentencing each of them to undergo R.I. for life and in addition to that they were directed to pay a fine of Rs. 1000/- and in default of payment of fine both were ordered to undergo R.I. for one year. 3. After recovery of dead body of unknown which was subsequently identified of Nakul Yadav the case was registered against unknown on the basis of fardbeyan of a constable who has not been examined. The written report dated 07.08.1991, mentioned that the informant Ram Prabesh Singh constable had been to evacuate himself. He noticed a crowd on the pitch road of Bhagi Chack. The person coming from that side informed that a corpse was there. The constable also saw the dead body and the case was registered against unknown in which after identification charge sheet was submitted against the appellants as well as against Sunil Yadav, Bhelpinma Yadav @ Upendra Yadav and Doman Yadav. Bhelpinma Yadav @ Upendra Yadav and Doman Yadav died during trial and the case of Sunil Yadav was separated on 17.04.2004 so the case proceeded only against appellants Manoj Yadav @ Manoj Kr. Yadav and Munna Yadav. 4. Bhelpinma Yadav @ Upendra Yadav and Doman Yadav died during trial and the case of Sunil Yadav was separated on 17.04.2004 so the case proceeded only against appellants Manoj Yadav @ Manoj Kr. Yadav and Munna Yadav. 4. Charge under Section 302/34 of the IPC was explained to the accused persons. They pleaded innocence and in course of trial defence was taken that Nakul Yadav was a Khalasi of a Trekker and there was possibility that he might have fell down on a boulder from the Trekker and that might have been the cause of his death. Their further defence was that the accused persons were totally innocent and were not at all involved in commission of the offence. 5. The prosecution in order to prove its charge has examined P.W. 1 Bijli Devi, P.W. 2 Arun Kumar Yadav, P.W. 3 Neelam Devi, P.W. 4 Dr. Dharmendra Kumar Sinha and P.W. 5 Ranjit Kumar. P.W. 5 is an independent witness who has not supported the prosecution case and was declared hostile. P.W. 3, wife of the deceased has also not supported the prosecution case and she has been declared hostile. 6. Dr. Dharmendra Kumar Sinha, while being posted as Civil Assistant Surgeon at Sadar Hospital, Munger had performed the post-mortem upon the dead body of Nakul Yadav aged about 35 years and found: ‘Lacerated wound on the scalp about 4”x3” brain deep x brain matter was visible from the outside.’ That was the only injury and the doctor has opined that such injury can be caused if a person falls from a motor vehicle on a boulder from a considerable height. 7. The death of Nakul Yadav has been established by P.W. 4 who supported the role of the accused. The prosecution was required to bring the charge proved as the dead body was recovered and there was not even suspicion that any person has seen the occurrence. P.W. 1 has deposed that her son was called by the accused persons and, thereafter, she remained unaware as to what happen with her son. The motive has been given that Sunil Yadav has enticed away Neelam and, thereafter, enmity has cropped in and that led to death. P.W. 1 has deposed that her son was called by the accused persons and, thereafter, she remained unaware as to what happen with her son. The motive has been given that Sunil Yadav has enticed away Neelam and, thereafter, enmity has cropped in and that led to death. P.W. 1 has admitted that Nakul Yadav was working as a Khalasi of a trakker plying between Munger and Jamalpur, her statement under Section 161 of the Cr.P.C. was taken after 15 days of the occurrence. She knew about the death through Kailash Yadav but Kailash Yadav has not been examined. Remaining witness P.W. 2 has supported P.W. 1 and has relied upon the information gathered from Kailash Yadav who came and told his mother about murder of Nakul Yadav and except that he has not stated anything. 8. For proving the charge that an offence was committed by such and such person the prosecution is mandated to bring positive evidence which could link the accused with the offence. Merely an occurrence cannot led to conviction of a person. Only evidence which has come is that Nakul Yadav has died which was unnatural death even it has not been proved conclusively that he was killed. The possibility of death on account of accident has also remained intact and it has not been clarified by the prosecution. The prosecution was required to rule out the possibility of death in accident. It was mandated to prove that it was a culpable homicide amounting to murder. It has not been conclusively proved that Nakul Yadav met a violent death at hostile hands. There is no evidence at all to link any of the accused with the offence. Wife of the deceased was most important witness and she has not at all supported the version developed by the prosecution that Nakul Yadav was called in the night by the accused and subsequently his dead body was found. Therefore, in this case there was no evidence at all which can link the accused with the offence. 9. The trial court has not properly appreciated the evidence and has recorded the order of conviction without any positive evidence. 10. In the result we hold that the prosecution has failed to prove the charge that appellants Manoj Yadav @ Manoj Kr. 9. The trial court has not properly appreciated the evidence and has recorded the order of conviction without any positive evidence. 10. In the result we hold that the prosecution has failed to prove the charge that appellants Manoj Yadav @ Manoj Kr. Yadav and Munna Yadav were involved in causing death, the judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellants are acquitted from the charges. 11. The appellant Munna Yadav is reported to be in custody, he is directed to be released forthwith, if not required in any other case. 12. This Court appreciates the able assistance of the learned Amicus Curiae. Let a copy of the first and last page of the judgment be given to him to the needful. Appeal allowed.