Criminal Appeal (DB) Nos. 128, 193, 304 and 869 of 2013. Case: Vijay Mistry and Ors. Vs The State of Bihar. High Court of Patna (India)

Case NumberCriminal Appeal (DB) Nos. 128, 193, 304 and 869 of 2013
CounselFor Appellant: Rabi Bhushan Prasad, Vijay Prakash Bhargava and Binita Singh, Advs. and For Respondents: Satya Narayan Prasad, A.P.P. and Abhimanyu Sharma, Adv.
JudgesKishore Kumar Mandal and Sanjay Kumar, JJ.
IssueCode of Criminal Procedure, 1973 (CrPC) - Sections 162, 164, 313; Indian Evidence Act, 1872 - Sections 24, 25, 26, 27, 28, 29, 30; Indian Penal Code 1860, (IPC) - Sections 201, 302, 34, 364
Judgement DateFebruary 04, 2017
CourtHigh Court of Patna (India)


Sanjay Kumar, J.

  1. In all, five appellants in these four connected appeals have assailed the judgment of conviction and order of sentence dated 10th January, 2013 passed by the learned Addl. Sessions Judge (Ad hoc)-III, Nawada in Sessions Trial No. 96 of 2012/31 of 2012, whereby all the appellants have been held guilty under sections 364/34, 302/34 and 201/34 IPC and sentenced to undergo R.I. for 10 years with fine having default clause, R.I. for life with fine having default clause and R.I. for 10 years with fine having default clause respectively. All the sentences so imposed on them were directed to run concurrently.

  2. P.W. 1, being the wife of the deceased, who was working as village Choukidar, lodged the Fardbayan (Ext. 3) on 17.12.2011 at about 12.30 P.M. alleging that, as usual, her husband after taking meal in the morning went to attend the duty. He used to come back from the duty by 7-8 P.M. in the evening. On 16.12.2011, he went on his duty but till late evening did not return. The informant did not take it seriously as she thought that the husband must have stayed at the police station itself. Till the following morning when the deceased did not return home, then she started searching for him. An information was also given about his missing by her to the police station. She started verifying from her relatives and known persons in the village but could not find him. In course of such enquiry/verification, she met Mithilesh Singh (P.W. 4), Ashok Singh (P.W. 2), Manoj Singh, Pradip Sao and Satyendra Kumar (all not examined) who disclosed to her that on the evening of 16.12.2011 while they were coming to village they had seen all the appellants herein except the appellant Diamond Kumar assembled at the house of the appellant Upendra Mistry and were hastily proceeding towards Sakri river which is close to the village. The informant suspected that the appellant Upendra Mistry and Dular Yadav bore animosity against her husband as he was instrumental in getting them arrested in connection with some criminal cases. They had also held out threats to the husband of the deceased. The informant thus alleged that the accused appellants with a view to commit murder of the deceased had kidnapped him. A formal FIR (Ext. 6) was drawn up on the same day by the Station House Officer (P.W. 5) and he took over investigation of the case. He visited the village in question and recorded the statement. However, we find from the record that the investigation of the case was assigned to another Police Officer (P.W. 6) on the following day. It further appears that the appellant Pappu Sharma was arrested by the I.O. on 18.12.2011 from his house and thereafter on 19.12.2011 the appellant Diamond Kumar was taken into police custody. The investigation was, however, assigned to another Police Officer namely Roop Narayan Ram (P.W. 6) who took over the same on 20.12.2011. Soon after taking over the investigation on the basis of the confidential information he arrested the appellant Dular Yadav on 20.12.2011. Be it noted that the appellant Diamond Kumar is stated to have made confessional statement before the police at the police station in which while inculpating himself the manner of occurrence and the participation of the appellants were disclosed. The confessional statement so made by him has been produced as Ext. 4 which is signed by P.W. 2, P.W. 4, Lalan Singh and Rabindra Kebet (both not examined). Pursuant to such disclosures, the dead body of the deceased was recovered near Budhwala Tilha in the bed of Sakri river and inquest report (Ext. 5) was prepared by the Investigating Officer. The dead body was thereafter dispatched to the hospital for post mortem/autopsy. As noticed, the investigation, at this stage, was taken over by Roop Narayan Ram (P.W. 6). Soon after taking over the investigation, he apprehended the appellant Dular Yadav and brought to the police station where he is stated to have made confessional statement which was not got signed by any independent witness. On his such disclosure on 21.12.2011, the police is said to have searched and recovered a rope around 100 yards away from the place where the dead body was found buried. The seizure memo of the plastic rope is Ext. 8. Upon recording the statement of the witnesses and after obtaining the post mortem report (Ext. 2), the investigation was concluded and the charge-sheet was laid. On 31.01.2012 another accused Hira Rajbar was declared absconder and cognizance of the offence was taken on 10.04.2012 and on the same day it was committed to the court of sessions for trial. Charges under sections 364/34, 302/34 and 201/34 were framed against all the appellants and contents thereof were read over and explained to the appellants to which they denied their guilt and claimed to be tried. From the trend of the cross examination, it appears that they took the plea of false implication owing to animosity.

  3. The prosecution, in order to prove the charges, produced 07 prosecution witnesses, besides exhibiting the documents. The statements of the appellant were recorded under...

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