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Where the victim has not been brought to the witness-stand & no complaints was made of being kidnapped again,The assessment of the age of the victim assumes importance- High court of Patna 

TITLE-Police singh & others Vs The state of Bihar & others 

Decided on-06/12/2023

+CR.APP(DB) No.1015/2019

CORAM-HON’BLE JUSTICE MR.ASHUTOSH KUMAR AND 

HON’BLE JUSTICE MR.NANI TAGIA

INTRODUCTION

As the appeal has been filed to set aside the order and judgement passed by the learned Additional District & sessions Judge-I- cum- Special Judge as the Appellant has been convicted under section 366A of IPC and section 6 of POCSO ACT and has been sentenced to undergo R.I for 10 years and to pay fine 50000.

FACTS

As per the facts of the case the appellant and his associate had came to visit the house of Petitioner witness 3 house were after living their house about after half an hour Petitioner witness no.3 heard hulla that two person has kidnapped a girl.For such he along with other come out of the house and saw that his daughter was been taken away on a motorcycle by the appellant and Raja mian for which Petitioner witness no.3 along with his associates went to the house of appellant therefore suspect that his daughter has been kidnapped and was for the purpose of marriage.On basis of the aforenoted written report was initially registered for investigation for the offences under section 366A/34 of IPC and it appears that the police after investigation submitted charge sheet against the appellant and asgar mian and the case was committed to the court of sessions for trial were the trial court after having examined seven witnesses on behalf of the Prosecution has convicted the appellant as aforesaid.

THE COURT ANALYSIS AND DECISION

As per the Hon’ble court after going through the records the court only lament at the manner in which the trial court has handled the case.As no effort were made by the trial court to atleast inquired about the statements of witnesses or whether the application under section 156(3) of Crpc was acted and investigated.It was the duty of the trail court necessitated more because the victim was never produced in the witness-stand as it would raised eyebrows of any one much less of trial court.This no judging the trail court ought to have asked for explanation and only then should have taken a decision even the evidence available on record the Prosecution case appears to be tattering at the seams.The investigator gas not even stated about the victim having been taken to a judicial Magistrate for recording her statement under section 164 of Crpc and state that she has been raped by the appellant and Raja mian and as Raja Mian was neither apprehended nir any effort was made to put him to the process of law and looking into medical testimony doctor did not find any injury in the body of the victim including the private parts.No evidence of any recent sexual intercourse could be detected and also her age was detected 16 or 17 years .Juataposed with the deposition of the victim the medical testimony may not hold as much importance but in a case were victim has not been brought to the witness-stand and there is an assertion by the witness that she had been kidnapped again and no case has been lodged then the age of the assessment of the victim by the Doctor assumes importance.The victim was never kidnapped and she was only assisting her accomplice to extract money from asgar Milan who though has been convicted but has died without preferring an appeal.As petitioner witness no.2 and 3 have suggested cook and bull story to the trial court and trail court recorded the statment without putting any questions to them.The Trial court in court estimation has been reduced to a burlesque and the story of the Prosecution stands mired into deep doubt.For the reasons the judgement of the trail court us set aside and the Appellant ud acquitted of all the charges levelled against him.The appeal stands allowed.

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Written by- Prachee Novo Mukherjee

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If Probate of The Will Is Granted it has to be Adjudicated whether the executant of the will had the right to make the bequest-High Court of Patna 

TITLE-Shashi Nath Pandey & others VS The State of Bihar & others

Decide on-7/12/2023

+L.P.A No.1003/2023

CORAM-HONORABLE THE CHIEF JUSTICE & HONORABLE JUSTICE MR.RAJIV ROY 

INTRODUCTION

The present appeal has been preferred against the judgement and order dated on 27/07/2023 passed by the learned single judge in CWJC No.23967/2018by which writ court chose not to interfere with the order passed by the Bihar Land Tribunal Patna.Where The Hon’ble court do not find the error in the order passed by the learned single Judge.

FACTS 

As per the facts the appellant claim that the land in question belong to one Ram Dhayn Upadhyay who has two wives where he was the son in law of the Ram Dhayn Upadhyay.Where one sina kuer executed registered deed of will dated on 3/07/1995 and in favour of Appellant no.1 with all the properties including the disputed land and she died on 20/09/1996 .Where The Respondent No.6 came out with a case that he purchased the disputed land from the second wife and their daughter lilawati Devi through registered sale deed on 23/01/2001 and are coming in possession and rent receipt also being issued to him.Then Appellants appeared and filed their pleading before Deputy collector land reforms (Respondent no.4) stating that a title suit us pending before the learned Additional district Judge to the properties mentioned were after hearing the parties passed an order in favour of the Respondent no.6 and Thereafter the appellants preferred B.L.T case before The B.L.T Patna which was heard and dismissed.Where against the appellants filed a writ petition before the learned single Judge and after hearing and passed an order for which the appeal has come before challenging the said order.Further submitted that when will was in Appellant favor which followed the probate case and no order passed favouring the Respondent no.6 but the learned single judge look the other way.

THE COURT ANALYSIS AND DECISION

As per the Hon’ble court After being heard the court observed that the court are in complete agreement with the observation made by the learned single judge that the successive courts have not touched upon the title of the land.The facts remains that the sale deed was never challenged by the appellants and even the subsequent mutation of the land remained unchallenged and only way decision can come is for the parties to move before an appropriate court by filing suit and so far the learned single judge observed that the petitioner was neither allottee nor a setlee of the land nor claiming right over the land and petition before Bihar Land Dispute Resolution act before the DCLR was not maintainable and also set aside all the orders passed by BTL Patna and gave liberty to the petitioner to approach the civil court of competent jurisdiction.Even if probate of the will is granted it has to be adjudicated whether the executant of the will had the right to make the bequest.The court considered view that there is no error in the order passed by the learned single judge and parties are free to move before the civil court for the redressal of their grievance and appeal stands dismissed.

PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.

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High Court of Patna Set Aside the Judgement passed by The Trial Court as the entire story remains Under wrap & the truth has not been unravelled by the prosecution

TiTLE-Daroga yadav vs State of Bihar with Raju Mishra vs State of Bihar with Banmali vs The State of Bihar with Nathuli Mishra vs The State of Bihar with Ramji Mishra vs State of Bihar

Decided on-05/12/2023

+CR.APP(DB)No.1381/2017 

CORAM-HONORABLE JUSTICE MR.ASHUTOSH KUMAR And HON’BLE JUSTICE NANI TAGIA

INTRODUCTION

As The appeal has been filed by the appellant as The appeallants have been convicted under section 302/149 of IPC Judgement passed by the learned presiding officer,First Track Court -I ,Buxar in session Trial No 09/2018 and by order dated on 31/10/2017 they have been sentenced to undergo R.I for life and to pay fine.

FACTS

As per the facts of the Prosecution case as on 20/1/2002 ab FIR was lodged in village Barkagaon under Buxar Industrial Police Station under section 302,120(B) ,34 of IPC as it was alleged that previous night petitioner witness 1 along with Petitioner witness 2 ,3 and other were sleeping in the thatched house.A Nathuni Mishra (deceased) got up in the night to urinate and out of fear he woke up all the witness and also followed him and after travelled for a distance of about 200 yards all of them saw Eight persons had assembled beneath a tree and further the deceased was caught by the appellants and Appellant Ram ji Mishra fired from his weapon putting the muzzle if the weapon close to the chest of the deceased leading to instantaneous death.As after the FIR, police investigation submitted the charge sheet against some of the person but later the appeallants were summoned to face trial along with Ashok Mishra under section 319 of the Cr.P.C

THE COURT ANALYSIS AND DECISION

As per the Hon’ble court after having the perused the records observed that none of the three witnesses who claimed to have seen the occurrence have made any correct statement before the trial court as the FIR itself discloses that the occurance had not taken place in the manner in which it has been narrated.As referred above all the three investigation officer have nothing else to provide except that they had recorded few paragraphs of the case dairy and that no specific efforts were made by any one of them to come to the truth.If out of eight persons named in the FIR only one person was put on trial and later was acquitted and the appellants have to faced the trial on being summoned under section 319 of Crpc the investigation definitely appears to be bizarre.There was no cloth seized or weapon of assault was seized nor I.O recording the fardbeyan giving any clue as to what was the information received in the police station,entire story remains under wraps and truth has not been unravelled and aforenoted the judgement is set aside and all the appellants are acquitted of the charges levelled against them and the appeals stand allowed.

PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.

Written by- Prachee Novo Mukherjee 

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In Ordinary Parlance Coconut Cannot Be Termed A Vegetable & As Per The Present Suit Appellant Product Processes From Coconut is Used as A Toiletry and Not as Edible oil -High court of Patna 

TITLE-M/s Marico Ltd. Vs The state of Bihar &Ors with M/s Marico Ltd.Vs The state of Bihar

DECIDED ON- 6/12/2023

+MA No.98/2015

CORAM- HON’BLE CHIEF JUSTICE & HON’BLE JUSTICE MR.RAJIV ROY

INTRODUCTION

As two appeal from the common order dated in 11/03/2005 of the commercial Taxes Tribunal in a Miscellaneous case and Rivision case were agitate the same issue as where the Hon’ble court uphold the order of the Tribunal and dismissed the appeals.

FACTS

As per the facts of the Case The Appellant a dealer under the provisions of The Bihar Value Added Tax Act,2005 approached the authority under section 77 for a ruling as a whether coconut oil sold by ut would be taxed at the rate of 12.5% as residuary item or at the rate of 4% as commodity coming within schedule III.The Authority order M.A No.98/2014 found that the invoice of the petitioner shows coconut oil having been sold along with soap, detergents etc.making it clear that what is sold by the petitioner is used as hair oil and not as an edible oil.The commissioner found that the lesser liability on edible oils and vegetables oils did not include hair oil and falls under the category of toiletries which have been taxed at a higher rate of 12.5% and the tribunal concurred with the said opinion by the common impugned order and also rejected the appeal filed from the order of assessment.The Question of law arising us as whether coconut oil sold by the assessee can be classified as an edible oil under entry 27 and in the teeth of the exclusion of coconut oil from entry 27,will it be possible for inclusion under entry 82 being vegetable oil,as the entries in schedule III existed in the relevant year.

THE COURT ANALYSIS AND DECISION 

As per the Hon’ble court the court observed that the appellant in MOA does not clear as whether the oil manufactured or sold in the brand name of Parachute is an edible or hair oil and the contention is that the coconut oil which is manufactured and sold in the name of Parachute by the appellant is 100% pure coconut oil and also manufactures hair oil in the brand name of Parachute,Parachute Jasmine etc which can be distinguished from the one sold as 100% coconut oil.No Question of law arises from this aspect and the appellants product in the brand name of Parachute cannot be brought under the entry of edible oil and from 1/7/2005 onwards coconut oil is excluded fro the entry 27.Then another question arises as whether coconut oil can be considered to be a vegitable oil under entry 84.The Appellant counsel harped upon the customs and excise tariff based on HSN Codes.There is no link to HSN codes in the entries under the Act of 2005 and examination of the same is not permissible especially when the levy has to go by the separate enactments.The Hon’ble court analysis that In ordinary commercial parlance coconut cannot be termed a vegetable to which a product us out to looked at and as per the present case the product of the appellant processed from coconut is used as a toiletry and not an edible oil.Hence no stretch can the product of the appellant be termed as an edible oil or a vegetable oil and fully concur with the finding of the authority under section 77 and uphold the order of the tribunal and court answer the questions of law against the assessee and in favour of the revenue.The appeals stand dismissed.

PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.

Written by- Prachee Novo Mukherjee

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