Baidyanath Choudhary & Ors vs The State of Bihar

Appellants, Baidyanath Choudhary, Kedar Choudhary, Reena Jaiswal, have been found guilty for an offence punishable under Section 326B/34 IPC

and each one has been sentenced to undergo RI for 5 years as well as to pay fine of Rs. 10,000/- each in default thereof, to undergo RI for 6 months

additionally, vide judgment of conviction dated 17.11.2017 and order of sentence dated 18.11.2017 passed analoguously relating to Sessions Trial No.

489/2013 as well as 275/2016 by 2nd Additional Sessions JudgeSamastipur.

At an earlier occasion, while considering the prayer of the appellants having made in accordance with Section 389(1) of the Cr.P.C, the judgment

impugned has been gone through and during course thereof, perceiving the nature of the judgment, it has been directed to list the appeal ‘for

hearing’ instead of keeping it pending henceforth will be nothing but a worthless effort.

Discussions of evidences in detail is forbidden. Only the relevant facts necessary for deciding this appeal is being incorporated.

Informant, Pankaj Kumar gave his Fardbeyan on 07.6.2013 at about 9:00 P.M while he was admitted at PHC, Patori disclosing therein that in the

background of passing through a passage, Reena Devi began to abuse which was resisted at his end and in the aforesaid background, she called her

husband Kedar Choudhary and father-in-law Baidyanath Choudhary. Reena Jaiswal took out a bucket full of acid which she threw causing injury over

his mother Pramila Devi while Baidyanath Choudhary threw bucket of acid over him causing injury. During midst of event, Kedar had brick-batted

causing injury over his mother, Pramila Devi.

On the basis of the aforesaid fardbeyan, Patori PS. Case No. 155/2013 was registered whereupon, investigation commenced and during pendency

of the same, it is evident that only one accused Baidyanath Choudhary, was apprehended and on that very basis, charge-sheet was submitted against

him alone keeping the investigation pending against remaining whereupon Sessions Trial No. 489/2013 originated with regard to trial of sole accused

Baidyanath Choudhary. In the aforesaid Sessions Trial, seven witnesses have been examined and those are PW-1, Rani Kumari, PW-2, Viswanath

Choudhary, PW-3, Vidya Sagar Shah, PW-4, Pankaj Kumar, PW-5, Subhash Chandra Prasad, PW-6, Dr. Mukesh Kumar Munna and PW-7, Pramila

Devi. Side by side had also exhibited Ext-1, signature of informant over Fard-e-beyan, Ext-1/1, Fard-e-beyan, Ext.1/2 endorsement over fardbeyan,

Ext-2 Series, injury report relating to Pramila Devi and Pankaj Kumar respectively.

It is further evident that in due course of time, appearance of Kedar Choudhary and Reena Jaiswal were procured followed with submission of

supplementary chargesheet as a result of which Sessions Trial No. 275/2016 originated. It is further evident from the record that altogether 14 PWs

have been examined. PW-1 Navin Choudhary, PW-2 Chandra Kishore Bhagat, PW-3, Mahesh Choudhary, PW-4 Vicky @ Vikash Kumar, PW-5,

Vidhya Sagar, PW-6, Shivjee Mahto, PW-7, Pawan Choudhary, PW-8, Ratan Choudhary, PW-9, Vishwanath Choudhary, PW-10 Rani Kumari, PW-

11, Pramila Devi, PW-12, Subhash Chandra Prasad, PW-13 Dr. Mukesh Kumar Munna and PW-14, Pankaj Kumar. Side by side had also exhibited,

Ext.1, Fard-e-beyan, Ext.2- endorsement over fardbeyan, Ext.3- Formal FIR, Ext.4- requisition issued by the I.O, Ext.5 series, injury report of Pramila

as well as Pankaj respectively and Ext-6, signature of PW-13 over Fard-e-beyan.

From the order-sheet dated 10.8.2017, it is evident that Sessions Trial No. of both cases came up before the same court of 2nd Additional Sessions

Judge, Samastipur and that being so, by the judgment impugned both the Sessions Trial have been disposed of analogously, in the background of the

fact that both the Sessions Trial originated from common PS Case bearing Patori P.S. Case No. 155/2013.

Heard learned counsel for the appellants as well as Additional APP.

Gone through the judgment impugned. From Paragraph 13 and onwards of the judgment impugned, it is evident that learned lower court had dealt

with evidences of PWs and during course thereof, it is evident that basically the learned Lower Court had taken into consideration the evidence of

PWs recorded under Sessions Trial No. 489/2013 without distinguishing the same relating to other Sessions Trial, i.e. Sessions Trial No. 275/2016 and

that being so, neither examination-in-chief nor the cross-examination of the respective witnesses have been properly scrutinized relating to both the

S.T. independently. That being so, there happens to be failure on the part of the learned Lower Court in properly appreciating the evidences having

been adduced on behalf of prosecution as well as cross-examination having been made on behalf of appellants/accused. Apart from this, it is settled

principle of law, more particularly, Section 273 of the Cr.P.C suggests that the evidence has to be recorded in presence of the accused, that means to

say, the accused of Sessions Trial No. 489/2013 was not at all concerned with Sessions Trial No. 275/2016 and vice-versa whereupon the evidence of

one Sessions Trial could not be used against the accused of another Sessions Trial irrespective of the fact that both the Sessions Trial had originated

from a common police case.

That being so, the judgment impugned suffers from inherent lacuna whereupon could not be recognized in accordance with law and that being so,

is set aside. Appeal is allowed.

The matter is remitted back to the learned lower court to decide both Sessions trial independently but on the same day within two weeks from the

stage of argument.

The learned lower court will procure appearance of the appellants who are under custody.