Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.243 of 1990 =========================================================== Shyam Lal Yadav, son of late Rohin Yadav resident of village-Rani Tola, PS. Bachhwara, Distt-Begusarai. .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Amar Nath Singh, Adv. For the Respondent/s : Ms. Shashi Bala Verma, APP =========================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) Date: 10-09-2012 Appellant Shyam Lal Yadav who has been found guilty for an offence punishable under [STATUTE] vide judgment dated 02.05.1990 passed by 1st Additional Sessions Judge, Begusarai in Sessions Trial No. 56/81/9/85 and has been directed to undergo RI for life, has preferred instant appeal. 2. Siya Ram Rai (since dead) gave his Fardbeyan (not exhibited) on 04.06.1980 at about 11:00 A.M. at Primary Health Centre, Bachhwara disclosing therein that on the same day at about 8:00 A.M. he along with his father Kailu Rai, while they were ploughing their field lying at Rani Diyara, they saw sudden emergence of appellant Shyam Lal Rai having a Jhola in company of co-accused Rohin Rai armed with Farsa in that very field which was earlier ploughed by the aforesaid accused persons. According to the Patna High Court CR. APP (DB) No.243 of 1990 dt.10-09-2012 2 informant the two accused persons including the appellant had made protest whereupon his father had said that the land belonged to them and therefore, they would continue to plough the field. It is alleged that on this alone the co-accused Rohin gave Farsa blow over his left shoulder and when he along with his father Kailu had made a bid to escape appellant Shyam Lal Yadav had hurled a bomb which though exploded, did not cause injury on any person whereafter the appellant had again hurled another bomb which could not explode. It has however been claimed that yet again thereafter, a third bomb was hurled which on explosion had caused injury to him and on hue and cry raised by his father a number of persons including Kailu, Madan Rai, Kailash Rai, Bhaso Rai, Ashehar Rai had rushed who had also seen the occurrence as also the accused persons fleeing from place of occurrence. It has further been disclosed that even during course of fleeing appellant Shyam had hurled another bomb but that did not cause any injury. The informant had also claimed that thereafter he had been brought to Primary Health Centre, Bachhwara where his Fardbeyan was recorded in presence of Madan Rai and Ram Sagar Rai who were attesting witnesses to his Fardbeyan. 3. On the basis of the aforesaid Fardbeyan, Bachhwara P.S. Case No. 3/80 was registered under [STATUTE] and Section 3/4 of the Explosive Substance Act whereupon the investigation commenced and as during course of investigation Patna High Court CR. APP (DB) No.243 of 1990 dt.10-09-2012 3 informant succumbed to his injuries, [STATUTE] was also added in the F.I.R and on completion of investigation a charge-sheet was submitted. The competent court having taken cognizance had committed the case to the court of sessions which ultimately culminated into the impugned judgment being the subject matter of instant appeal. 4. The defence case as is evident from mode of cross-examination as well as from the statement recorded under Section 313 of the Cr.P.C. is that appellant/convict is innocent and has been falsely implicated in this false and concocted case. There happens to be also complete denial of the occurrence. However, no DW nor has any exhibit been brought up on record on behalf of defence. 5. During course of assailing the impugned judgment of conviction and sentence recorded by the trial court, it has been submitted on behalf of appellant that the prosecution case suffers from inherent infirmities and on account thereof the finding recorded by the trial court can not be sustained. Further, the learned counsel has submitted that there also happens to be evidence on the record that informant Siya Ram Rai had died during course of investigation but even then the Fardbeyan alleged to have been recorded as per disclosure made by Siya Ram Rai (since deceased) has not been brought on record and therefore, legally aforesaid document neither Patna High Court CR. APP (DB) No.243 of 1990 dt.10-09-2012 4 can be accepted as First Information Report nor it could be treated even as a dying declaration due to non examination of scribe of the document. It has further been submitted that Kailu Rai neither the father of the deceased, whose presence happens to be admitted in the Fardbeyan itself, has not been examined nor there is any explanation of prosecution on this score. In likewise manner, It has further been also submitted that Kailash Rai, another brother of deceased, though examined as PW-5, did not turn up for cross-examination on recall vide order of the trial court dated 05.02.1988 and in light thereof his evidence as it stood had to go out of record. 6. It has further been submitted that prosecution had insisted that the land over which they were ploughing belonged to them but neither any chit of paper had been produced nor any of the witness has been examined who could have identified the land at least by detailing it through its boundary. It has also been submitted that on account of non examination of I.O. not only the appellant has been prejudiced but even the prosecution had also failed to substantiate the place of occurrence specially when there happens to be claim of possession of the prosecution party and due to non-examination of I.O facts in this regard could not be brought on record. In the aforesaid background, it has been contented on behalf of the sole appellant that when t

Applicable IPC Section: 302

Statute Text:
Section 302 of the Indian Penal Code. Murder. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.