Patna High Court
Kamlesh Kumar Pandey vs State Of Bihar on 17 July, 2019
Author: Prabhat Kumar Singh
Bench: Hemant Kumar Srivastava, Prabhat Kumar Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.251 of 1995
Against the judgment of conviction dated 1.8.1995 and order of
sentence dated 5.8.1995, passed by the learned Sessions Judge, West
Champaran at Bettiah in Sessions Trial No. 124 of 1994, arising out
of Gaunaha Police Station Case No. 99 of 1993.
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Kamlesh Kumar Pandey, son of Prabhunath Pandey, resident of village
Bikhauli, Police Station Gaunaha, District West Champaran
... Appellant
Versus
State of Bihar
... Respondent
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Appearance :
For the Appellant : Mr.Ansul, Advocate and
Sagrika, Advocate
For the Respondent : Mr. Shivesh Chandra Mishra, Addl Public Prosecutor
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
and
HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE PRABHAT KUMAR SINGH)
Date : 17th July, 2019.
Heard Mr. Ansul, learned counsel appearing for the
appellant and Mr. Shivesh Chandra Mishra, learned Additional
Public Prosecutor representing the State.
2. The sole appellant has preferred this appeal
against the judgment of conviction dated 1.8.1995 and order
of sentence dated 5.8.1995, passed by the learned Sessions
Judge, West Champaran at Bettiah in Sessions Trial No. 124
of 1994, arising out of Gaunaha Police Station Case No. 99 of
Patna High Court CR. APP (DB) No.251 of 1995 dt.17-07-2019
2/16
1993, whereby the appellant has been convicted for the
offence punishable under section 302 of the Indian Penal
Code (hereinafter referred to as 'the IPC') and sentenced to
undergo rigorous imprisonment of life, whereas appellant has
been acquitted of the charges framed against him under
section 323 of the IPC.
3. The informant Vijay Kumar Pandey (PW 7) in his
fard beyan has stated that on 22.12.1993 at about 7.30 PM
when he was returning from Narkatiaganj Railway Station on
cycle with his brother Ajay Kumar Pandey (deceased) and
reached to the east of his village Pathkhauli near an orchard,
three accused persons, namely, Kamlesh Kumar Pandey (the
appellant), Dinesh Kumar Pandey and Brajesh Kuamr Pandey
suddenly came there. Accused Brajesh Kumar Pandey stopped
the informant (PW 7), who was driving the cycle sitting on it
with his brother Ajay Kumar Pandey (deceased) and hurled a
lathi blow on the head of the informant (PW 7) and when he
caught hold of Brajesh Kumar Pandey, accused Dinesh Kumar
Pandey and Kamlesh Kumar Pandey (the appellant) assaulted
him with lathi. The informant further alleges that when his
brother Ajay Kuamr Pandey tried to save him (PW 7),
accused-appellant Kamlesh Kumar Pandey gave a farsa blow
Patna High Court CR. APP (DB) No.251 of 1995 dt.17-07-2019
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on the head of Ajay Kuamr Pandey. By that time, on hearing
hulla, Bhup Narain Pandey, father of the informant (PW 7)
came there and tried to save his sons, but at the same time
accused Dinesh Kumar Pandey gave bhala blow on the left
hand of Bhup Narain Pandey, whereas accused Brajesh Kumar
Pandey hurled lathi blow on Bhup Narain Pandey. Other
villagers also rushed to the place of occurrence, thereafter,
accused persons fled away. Injured Ajay Kumar Pandey and
Bhup Narain Pandey fell down and became unconscious. It is
further said that both the injured persons were taken to the
State Dispensary, Narkatiaganj from where they were referred
to the MJK Hospital, Bettiah, whereas the injured Ajay Kumar
Pandey was taken to the Patna Medical College & Hospital
(hereinafter referred to as 'the PMCH'), Patna for better
treatment. The injured Ajay Kumar Pandey died in course of
treatment in the PMCH, Patna. Accused Brajesh Kumar
Pandey is also alleged to have taken one wrist watch of Ajay
Kumar Pandey and Rs.2000/- from the pocket of the
informant. The informant, in his fard beyan, has disclosed that
there was earlier dispute between the parties as a result of
which the said occurrence took place.
Patna High Court CR. APP (DB) No.251 of 1995 dt.17-07-2019
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4. After investigation, police submitted charge sheet
against the appellant Kamlesh Kumar Pandey, Brajesh Kumar
Pandey and Dinesh Kumar Pandey for the offence under
sections 302, 307, 324, 323 and 379 of the IPC. The
cognizance of the offence was taken in its usual course and
the case was committed to the Court of Sessions. On
28.11.1985learned Sessions Judge framed charge against the appellant Kamlesh Kumar Pandey for the offence under section 302 of the IPC.
5. The statement of appellant was recorded under section 313 of the Code of Criminal Procedure (hereinafter referred to as 'the Cr.P.C.) in which the appellant denied the prosecution story and claimed his innocence.
6. In course of trial, the prosecution examined, altogether, 9 witnesses in support of its case. PW 1 (Gulab Rout), PW 2 (Anil Pandey), PW 3 (Babu Lal Raut), PW 6 (Biga Rout) and PW 7 (the informant Vijay Kumar Pandey) have claimed to be the eye witness to the occurrence. (PW 4) Shambhu Sahani has been proved as tenderd witness. PW 5 (Dr. Ram Kishore Prasad) is a doctor posted in the PMCH, Patna, who conducted post mortem examination on the dead body of Ajay Kumar Pandey on 26.12.1983 vide post mortem Patna High Court CR. APP (DB) No.251 of 1995 dt.17-07-2019 5/16 report marked as Exhibit 1.PW 8 (Shri Virendra Tiwari) made investigation into the allegation of the case on the basis of the fard beyan of PW 7, the informant, giving rise to institution of Gaunaha Police Station Case No. 99 of 1983. He recorded the statements of the witnesses and has proved the fard beyan, marked as Exhibit 3 as well as the formal F.I.R., marked as Exhibit 4. PW 9 (Rameshwar Pandey) is a formal witness who proved the charge sheet submitted in the case against the accused persons.
7. Prosecution has got exhibited certain documents in support of its case. They are post mortem report (exhibit 1), signature of the informant on the fard beyan (exhibit 2), fard beyan (exhibit 3), First Information Report (exhibit 4) and the charge sheet (exhibit 5).
8. Defence has also examined the appellant as well as accused Dinesh Kumar Pandey and got exhibited certified copy of fard beyan dated 23.12.1983 (exhibit A).
9. Learned counsel for the appellant submits that the appellant has falsely been implicated in this case because of prior enmity brewing between the appellant and the prosecution side. In fact, an occurrence had taken on 21.12.1983 at about 9 PM for which Gaunaha Police Station Patna High Court CR. APP (DB) No.251 of 1995 dt.17-07-2019 6/16 Case No. 98 of 1983 was registered against the informant and other seven persons. He submits that the informant lodged his fard beyan on 23.12.1983 at about 6.15 PM for the occurrence which took place earlier on 22.12.1983 at about 7.30 PM. However, the case was registered on 24.12.1983 and received on 27.12.1983 in the office of the Chief Judicial Magistrate, Bettiah without any explanation about this inordinate delay which renders the prosecution case highly doubtful. He further submits that there is no sufficient compliance of the provision contained in section 313 of the Cr.P.C. as general questions were put to the accused persons in place of putting the material circumstances which were intended to be used against them. He also submits that as a result of the same, case of the accused appellant has been prejudiced and on this ground alone, the entire trial stands vitiated as the examination of the appellant was not in accordance with the provisions of section 313 of the Cr.P.C. In this context, reliance has been placed on the decisions in the cases of Rama Shankar Singh nd others Vs.State of Bengal, reported in AIR 1962 Supreme Court 1239 (V 49 of 181); Harijan Megha Jesha Vs. State of Gujrat reported in AIR 1979 Supreme Court Patna High Court CR. APP (DB) No.251 of 1995 dt.17-07-2019 7/16 1566 and the State of U.P. Vs. Mohd. Iqram & another, reported in AIR 2011 Supreme Court 2296.
10. It has also been submitted on behalf of the appellant that most of the witnesses are of different villages and thus fall in the category of chance witnesses. Their presence at the time and place of occurrence is merely by way of coincidence and as such much reliance cannot be placed on the testimony of these chance witnesses. Reference has been made to the decision in the case of Bahal Singh Vs. State of Haryana, reported in 1976 Cri. L.J.1568.
11. It is further submitted that the incident has taken place in the month of December at around 6.30 PM to 7.00 PM near the orchard but none of the witnesses have disclosed the source of identification of accused persons. Furthermore, the I.O., who has arrived at the place of occurrence (PO) after commission of the occurrence, has not found any blood mark or any objective findings at the place of occurrence. Thus, the prosecution has utterly failed to substantiate the prosecution case and bring home the charges levelled against the appellant beyond all the reasonable doubts and hence the impugned judgment and conviction of the appellant is liable to be set aside.
Patna High Court CR. APP (DB) No.251 of 1995 dt.17-07-2019 8/16
12. Per contra, learned counsel for the State, advocating the correctness and validity of the impugned judgment and order of conviction and sentence submitted that the informant, who happens to be eye witness of the occurrence has fully supported the occurrence. Likewise, other witnesses, who also happen to be eye witness of the occurrence, have corroborated the occurrence. The ocular evidence of the prosecution also stands corroborated by the medical evidence and learned trial court correctly appreciating the facts and evidence on record has passed the impugned judgment and order of conviction and sentence which is liable to be upheld and the appeal shorn of merit is liable to be dismissed.
13. From perusal of the records it appears that though the fard beyan was recorded on 23.12.1983 at 6.30 PM and formal First Information Report was registered on 24.12.1983 but the same has reached the office of the Chief Judicial Magistrate, Bettiah on 27.12.1983 and there is no explanation by the prosecution side about this inordinate delay, which, no doubt renders the prosecution case doubtful.
14. PW 1 (Gulab Raut) deposes that he is resident of village Harpur which is situated just west of village Patkhauli Patna High Court CR. APP (DB) No.251 of 1995 dt.17-07-2019 9/16 and while returning to his village from Narkatiaganj when he reached near orchard of Gopaljee of village Patkhauli (the place of occurrence), he witnessed the occurrence. According to this witness, there was indiscriminate assault on Ajay Kumar Pandey by all the three accused persons. However, in paragraph 4 of the cross examination he stated that only one blow was given on Ajay Kumar Pandey and he did not give the name of the person who gave farsa blow on the deceased. In paragraph 7 of the cross examination, he stated that much blood was found near the place of occurrence. He further states that his statement was taken by the IO after 10 to 12 days of occurrence.
15. PW 2 (Anil Pandey) in his deposition has stated that the appellant Kamlesh Kumar Pandey has assaulted the deceased on his head by farsa and accused Brajesh Kumar Pandey assaulted Bhup Narain Pandey by lathi, whereas Dinesh Kuamr Pandey gave spear blow on the hand of Bhup Narain Pandey. In paragraph 4 of the cross examination, he states that after hearing the alarm, he came out of his house and went to the place of occurrence and saw 13 to 14 persons assembled there but did not see any injured person. Later on he states that he saw three persons were using bhala, farsa Patna High Court CR. APP (DB) No.251 of 1995 dt.17-07-2019 10/16 and lathi while making assault but he did not name anybody. He saw two persons were being assaulted. In paragraph 4 of the cross examination, he specifically states that he did not see any blood on the place of occurrence.
16. PW 3 (Babu Lal Raut) is resident of village Harpur. According to this witness, accused Brajesh Kuamr Pandey assaulted Ajay Kuamr Pandey (deceased) by lathi and appellant Kamlesh Kumar Pandey assaulted the deceased by farsa. He also states that it was Brajesh Kumar Pandey who assaulted Bhup Narain Pandey by lathi. PW 3 states that while he was returning after purchasing She Buffalo and reached near the orchard of Gopaljee, he saw all the three accused persons at the place of occurrence. He further states that he saw the occurrence from the distance of 5 to 7 degs. He further states that the farsa blow was also given on Vijay Kumar Pandey and Ajay Kumar Pandey and both fell down after receiving farsa blow.
17. PW 5 (Ram Krishna Prasad Singh) is the doctor who conducted post mortem examination on the dead body of the deceased Ajay Kuamr Pandey and submitted the post mortem report (exhibit 1). From perusal of the deposition, it appears that PW 5 has not given any definite opinion as to the Patna High Court CR. APP (DB) No.251 of 1995 dt.17-07-2019 11/16 nature of weapon which caused injury on the head of the deceased, because the injury appearing on his head at the time of conducting post mortem, was already stitched.
18. PW 6 (Biga Raut) has stated that while he was returning after purchasing She buffalo and when he reached the orchard of Gopaljee, he saw Brajesh Kumr Pandey hurled lathi blow on the head of Vijay Kuamr Pandey and on his order appellant Kamlesh Kumar Pandey gave farsa blow on the head of Ajay Kuamr Pandey. In paragraph 5 of the cross examination of this witness, it is stated that when he reached at the place of occurrence, he saw Ajay Kuamr Padey and Bhup Nrain Pandey injured, one was in sense and the other was unconscious and after his arrival other witnesses came to the place of occurrence. His statement is also taken by the I.O. after 10 days of the occurrence. In paragraph 4 of the cross examination, he further states that when he reached near the orchard, i.e., the place of occurrence, he saw only PW 3 Babu Lal, Munna and Sahni and no body else was there. Thus, he rules out the presence of other witnesses on the P.O.
19. PW 7 (Vijay Kumar Pandey) is the informant of the case. According to him, at first accused Brajesh Kumar Pandey gave lathi blow on his head, thereafter appellant Patna High Court CR. APP (DB) No.251 of 1995 dt.17-07-2019 12/16 Kamlesh Kumar Pandey also gave lathi blow on the informant and when his brother Ajay Kuamr Pandey came to his rescue, appellant Kamlesh Kumar Pandey gave farsa blow on the head of Ajay Kumar Pandey. Thereafter, Bhup Narain Pandey came to save his both sons. This time, accused Brajesh Kumar Pandey assaulted Bhup Narain Pandey with lathi and when he fell down, accused Dinesh Kumar Pandey gave spear blow on Bhup Narain Pandey. According to this witness, Brajesh Kumar Pandey took out Rs.2000/- from his pocket and snatched a wrist watch from the hand of the deceased Ajay Kumar Pandey. In paragraph 4 of the cross examination he stated that the accused persons are pattidar and residing 10 to 15 houses away from the house of the informant. In paragraph 6 of the cross examination, he specifically states that when he reached the place of occurrence around 6.30 PM there was no moonlight at the time of occurrence.
20. PW 8 (Virendra Tiwari) is the I.O. of the case. He states that he registered the formal First Information Report which is in his hand writing. He has proved the fard beyan which has been marked as exhibit 4. In paragraph 4 of the cross examination, he denies that PW3 (Babu Lal Raut) had stated that he was coming along with She Buffalo. He also Patna High Court CR. APP (DB) No.251 of 1995 dt.17-07-2019 13/16 denies that PW 6 (Biga Raut) has stated before him that he reached the place of occurrence while returning after purchase of she buffalo.
21. From the minute scrutiny and analysis of the depositions of the witnesses, it is apparent that there are much contradictions in their depositions with respect to manner of occurrence. Moreover, examination of the appellant under section 313 of the Cr.P.C. also appears to be defective as question regarding assault by farsa on head of the deceased has not been put to the appellant at the time of his examination under section 313 of the Cr.P.C. as a result of which prejudice has been caused to him and this very defect assumes significance in the background of the fact that it is the case of the prosecution that indiscriminate assault was made by several weapons by the accused persons coupled with the fact that the doctor has not opined his view regarding the nature of weapon which caused injury on the head of the deceased. In such a situation, the Hon'ble Apex Court in the case of Nar Singh Vs. State of Haryana reported in 2015(1) PLJR SC 208 has held in paragraph 30 as follows:-
"30. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses Patna High Court CR. APP (DB) No.251 of 1995 dt.17-07-2019 14/16 available to the appellate court can be briefly summarised as under:-
(i) Whenever a plea of non-compliance of section 313 Cr.P.C. is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer;
(ii) In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits.
(iii) If the appellate court is of the opinion that non-compliance with the provisions of section 313 Cr.P.C. has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under section 313 Cr.P.C. and the trial Judge may be directed to examine the accused afresh and defence witness if any and dispose of the matter afresh;
(iv) The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own Patna High Court CR. APP (DB) No.251 of 1995 dt.17-07-2019 15/16 merits, keeping in view the prejudice caused to the accused."
22. In the instant case also, occurrence took place in December, 1983, whereas judgment of conviction and order of sentence passed in August,1995. Further, the appellant has already remained in custody for about four and a half years.
23. Thus, in the aforesaid facts and circumstances and for the forgoing reasons as well as to meet the ends of justice, also in view of principles laid down in the case of Nar Singh Vs. State of Haryana (supra), I do not find it appropriate to remand the matter to the trial court for re-trial of the matter, rather I think it proper to decide the case on its own merit keeping in view the prejudice caused to the accused appellant. I have also considered the vital and material contradiction in the depositions of the witnesses about the manner of occurrence as well as other infirmities as discussed hereinabove.
24. Considering the aforesaid facts and circumstances of the case and evidence adduced by the prosecution, I find and hold that the prosecution has utterly and miserably failed to substantiate the prosecution case and bring home the charges levelled against the appellant beyond Patna High Court CR. APP (DB) No.251 of 1995 dt.17-07-2019 16/16 all reasonable doubt by adducing convincing, cogent, consistent and worth credence evidence. Hence, the impugned judgment and order of conviction and sentence passed by learned trial court against the appellant is set aside and the appellant is acquitted of all the charges levelled against him giving him benefit of doubt.
25. As the appellant is on bail, he is discharged from the liabilities of his bail bonds.
26. Accordingly, the Criminal Appeal is allowed.
(Prabhat Kumar Singh, J)
Hemant Kumar Srivastava, J.: I agree.
(Hemant Kumar Srivastava,J)
Shashi
AFR/NAFR NAFR
CAV DATE 02.07.2019.
Uploading Date 18.07.2019
Transmission Date 18.07.2019