Criminal Appeal (SJ) No. 304 OF 1996
Appeal against the judgment and order dated
27.11.1996 passed by Shree Awadhesh Kumar
Verma, 1st Additional Sessions Judge,
Aurangabad in S.Tr. No. 121/87/54/91.
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1. Kameshwar Mistry, S/o Late Raghuni Mistry.
2. Bindheyachal Devi, W/o Kameshwar Mistry.
Both are resident of Village-Ordih, P.S.-Kutumba,
Distt.-Aurangabad.
……(Appellants)
Versus
THE STATE OF BIHAR——-(Respondent)
With
Criminal Appeal (SJ) No. 306 of 1996
Jitendra Mistry, S/o Sri Kameshwar Mistry, resident
of Village-Ordih, P.S.-Kutumba, District-Aurangabad.
…………(Appellant)
Versus
THE STATE OF BIHAR
……….(Respondent)
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For the Appellants : Mr. Krishna Pd. Singh, Sr. Adv.
: Mr. Manish Kumar, Adv.
For the State : Mr. S.N. Prasad, APP.
: Mr. Ajay Mishra, APP.
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PRESENT
THE HON’BLE JUSTICE SMT. ANJANA PRAKASH
Anjana Prakash, J. 1. The appellant Jitendra Mistry has been
convicted under Section 304 Part-II IPC and sentenced
to RI for ten years whereas the appellant Kameshwar
Mistry has been convicted under Section 323 IPC and
sentenced to RI for one year and the appellant
Bindheyachal Devi has also been convicted under
Section 323 IPC but she has been released on probation
on executing bond of Rs. 10,000/- by the 1st Additional
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Sessions Judge, Aurangabad in Sessions Trial No.
121/87/54/91 by a judgment dated 27.11.1996.
2. The case of the prosecution according to
the informant is that on 23.04.1984 a dispute arose
between the parties over drawing of water from a well
which led to an assault on Baijnath Ram due to which
he was injured and later died after one week. Initially
the charge was framed under Section 323/34 IPC but
the appellants were convicted as mentioned above.
3. During trial the prosecution in all
examined fourteen witnesses out of whom P.W. 2 and
P.W. 7 are formal witnesses. P.W. 10 and P.W. 11 are
tendered witnesses. P.W. 1 is the Doctor who examined
the injured person whereas P.W. 3, P.W. 4, P.W. 5 and
P.W. 6, P.W. 8, P.W. 9, P.W. 10, P.W. 11 and P.W. 12 are
the witnesses on the point of occurrence and P.W. 13 is
the Investigating Officer and P.W. 14 who conducted the
post-mortem of the deceased.
4. The defence of the accused was that in
fact on account of the dispute between the parties an
altercation arose which led to a free fight in which both
the sides were injured. When the prosecution was given
this suggestion they stoutly denied the same and,
therefore, it appears that the prosecution has not been
truthful in narration of the occurrence. Further even
though P.W. 1 is said to have recorded dying declaration
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of Baijnath Ram the deceased but there is no certificate
in regard to the mental alertness of the deceased while
giving the statement. This becomes important in view of
the fact that in the fardbeyan itself it has been noted
that the injured was in unconscious position and,
therefore, the so-called dying declaration does not
appear to be reliable. Further in the First Information
Report there is a general allegation against all the
accused persons of assaulting the deceased but during
evidence the witnesses have confined their allegations
against appellant, Jitendra Mistry which does not stand
to credit the prosecution witnesses.
5. Under the circumstances, these
appeals are allowed and the judgment dated 27.11.1996
passed by the 1st Additional Sessions Judge,
Aurangabad in Sessions Trial No. 121/87/54/91 is,
hereby, set aside. The appellants are discharged of the
liability of their bail bonds.
(Anjana Prakash, J.)
Patna High Court,
Patna,
Dated, the 27th June, 2011.
NAFR/Vikash/-