Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.89 of 1990 ====================================================== 1. Nagina Yadav, son of Late Bhagwan Yadav. 2. Kamla Yadav, son of Late Bhagwan Yadav. Both resident of village-Dhamaul, P.S.-Phulwarsharif, District- Patna. .... .... Appellants Versus The State of Bihar .... .... Respondent. ====================================================== with Criminal Appeal (DB) No.128 of 1990 ====================================================== Bidyanand Yadav, son of Late Bhagwan Yadav, resident of village- Dhamaul, P.S.-Phulwari Sarif, District-Patna. .... .... Appellant Versus The State of Bihar .... .... Respondent. ====================================================== Appearance : (In CR. APP (DB) No.89 of 1990) For the Appellant/s : Mr. Pasupati Prasad Sinha, Adv. For the State : Mr. Mrs. Shashi Bala Verma, A.P.P. (In CR. APP (DB) No.128 of 1990) For the Appellant/s : Mr. Pasupati Prasad Sinha, Adv. For the State : Mr. Mrs. Shashi Bala Verma, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER (Per: HONOURABLE MR. ADITYA KUMAR TRIVEDI) 3. 21-06-2012 In Criminal Appeal No.89 of 1990 Nagina Yadav and Kamla Yadav happens to the appellant while in Criminal Appeal No.128 of 1990 Bidya Nand Yadav happens to be the appellant who have been held guilty for an offence punishable under [STATUTE] . and further been directed to undergo R.I. for life by Additional District & Sessions Judge, XIIIth Patna vide 2 Judgment dated 05.03.1990 in Sessions Trial No.709 of 1986 arising out of Gaurichak P.S. Case No.149 of 1985. Sukhdeo Yadav, who subsequently died during course of his treatment at PMCH gave his fardbeyan on 27-06- 1985, while he was admitted at PMCH, disclosing therein that on the last Monday at about 06:00 P.M. his step brother Sri Bhagwan Yadav armed with lathi and his son Vidya Nand Yadav armed with farsa, Kamla Yadav and Nagina Yadav armed with lathi came. Sri Bhagwan Yadav insisted him to remain joint with him in the background of the fact that he happens to be issueless and was residing with his own brother Bhikhan Yadav. It has further been alleged that on his denial, Bhagwan Yadav assaulted him with lathi over his leg on account of which he fell down followed by assault with the back of farsa by Vidya Yadav over his head. His brother Bhikhan Yadav came in his rescue who was assaulted by Kamla Yadav by farsa over his head as well as Nagina Yadav also assaulted him with lathi. Krishna Murari Yadav, Deonandan Yadav, Surendra Yadav and others were cited as witness on whose intervention his life was saved. Then thereafter, he was lifted to PMCH in unconscious condition on account of injury having over his head. After he regained his sense, the fardbeyan was given. The aforesaid fardbeyan was transmitted to the P.S. 3 concerned on the basis of which Phulwari (Gaurichak) P.S. Case No.149 of 1985 was registered under [STATUTE] . wherein 302 of the I.P.C. was added after death of informant Sukhdeo Yadav. Investigation commenced and culminated in submission of charge sheet whereupon cognizance was taken and the offence, as being exclusively triable by the court of Session was committed to the court of Sessions. One of the co-accused, Sri Bhagwan Yadav died during course of trial while remaining suffered the verdict which is under challenge. The defence case as is evident from mode of cross- examination as well as suggestion given to the prosecution witnesses is that no such type of occurrence as alleged had taken place rather it happens to be the prosecution party who had assaulted the accused persons and for that Gaurichak P.S. Case No.147 of 1985 was registered. After coming to know about the institution of the aforesaid case, just to make out a counter case instant case has been filed to save their skin. In support of their defence one witness has been examined. The defence had also exhibited FIR of Gaurichak P.S. Case No.147 of 1985. However, the injury report has been only marked as X, X/1 for identification for want of non-examination of doctor. While assailing judgment of conviction and sentence, 4 the learned counsel for the appellant, Mr. Pasupati Prasad Sinha, submitted that the finding of guilt and sentence recorded by the learned lower court is bad in law as well as on facts. Elaborating his submission, the learned counsel submitted that none of the witnesses are independent witness and whoever has been examined are interrelated as well as interested witnesses. It has further been submitted that all the witnesses happens to be accused in counter case bearing Gaurichak P.S. Case No.147 of 1985. Therefore, the evidence so adduced through their mouth has to be closely looked into and after having their evidence properly scrutinized, it is evident that none of the witnesses are an eye- witness. Hence, the finding recorded by the learned lower court is not based upon legal as well as factual aspects. The second leg of submission raised on behalf of appellant / convict is that there happens to be admission on the part of the prosecution witnesses regarding their status as an accused in the counter case wherein the appellant have sustained injury at the hands of the prosecution party. Those injuries intentionally being withheld by the prosecution and that is sufficient to infer that the prosecution has not come with clean hand, more particularly over manner and genesis of occurrence. Therefore, the non-explanation of the injuries sustained by 5 appellant in the aforesaid background gave a death blow so far the case of the prosecution is concerned. Another point over which the learned counsel for the appellant had put much stress is that the doctor has not been examined. Therefore, the postmortem is not legally acceptable and could not be entertained and in the aforesaid backgr

Applicable IPC Section: 448

Statute Text:
Section 448 of the Indian Penal Code. House-trespass. Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.