Patna High Court
Krishna Sao vs State Of Bihar on 23 July, 2012
Author: Shyam Kishore Sharma
Bench: Shyam Kishore Sharma, Amaresh Kumar Lal
IN THE HIGH COURT OF JUDICATURE AT PATNA
*****
Criminal Appeal (DB) No.702 of 2005
Against the judgment of conviction datd
02.09.2005and order of sentence dated 12.09.2005 passed by Shri Umesh Chandra Mishra, the learned Additional Sessions Judge, Fast Track Court No. III, Aurangabad in Sessions Trial No. 297 of 2003 / 59 of 2003.
=========================================================== Sheo Prasad Sao, Son of Late Mukhu Sao, Resident of Village - Pathra, Police Station - Kutumba, District - Aurangabad.
.... .... Appellant Versus The State of Bihar .... .... Respondent with Criminal Appeal (DB) No. 703 of 2005 =========================================================== Krishna Sao, Son of Dukhan Sao, Resident of Village - Jasoiya, Police Station - Aurangabad, (T) in the District of Aurangabad.
.... .... Appellant Versus The State of Bihar .... .... Respondent =========================================================== Appearance :
(In both the appeals) For the Appellants : Ms. Soni Srivastava, Advocate.
Mr. Amit Prakas, Advocate.
Ms. Priya Gupta, Advocate.
For the State : Mr. Ashwini Kumar Sinha, APP.
For the Informant : Mr. Sanjay Kumar @ Manu, Advocate.
Mr. Rajnish Kumar, Advocate.
Mr. Jayram Sharma, Advocate.
Mr. Anshuman, Advocate.
=========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Date: 23-07-2012 Criminal Appeal (DB) No. 702 of 2005 of Sheo Prasad Sao and Criminal Appeal (DB) No. 703 of 2005 of Krishna Sao arise out of judgment of conviction dated 2 nd of September, Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 2 2005 and order of sentence dated 12th of September, 2005 passed in Sessions Trial No. 297 of 2003 / 59 of 2003 in connection with Aurangabad Muffasil P.S. Case No. 443 of 2002, G.R. Case No. 1847 of 2002, whereby the learned Additional Sessions Judge, Fast Track Court No. III, Aurangabad held the appellants guilty under Section 302/395 of the Indian Penal Code and sentenced them to undergo R.I. for 10 years under Section 395 of the Indian Penal Code and imprisonment for life under Section 302 of the Indian Penal Code respectively. Both the appellants further sentenced to pay fine of Rs. 5000/- each and in default of payment of fine, their period of detention to be enhanced by further six months. The sentences were directed to run concurrently.
2. One dacoity was committed just in the midnight at 11.30 p.m. on 2/3rd of October, 2002 in the house of the informant Vishwanath Sao (P.W.4) which led to registration of Aurangabad Muffasil P.S. Case No. 443 of 2002 dated 03.10.2002, under Sections 147, 148, 149, 341, 323, 448, 380 and 302 of the Indian Penal Code. The fardbeyan (Ext.4) became the base of formal FIR (Ext.5). The inquest report (Ext.3) was prepared and the injury report of the informant Vishwanath Sao (Ext.8) was obtained. In course of investigation, statement of P.W.7 and 9, under Section 164 of the Code of Criminal Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 3 Procedure was recorded (Ext.2 and 2/1). The fardbeyan of Vishwanath Sao was recorded near Jasoiya water tank on 03.10.2002 at 06.15 a.m., wherein the informant Vishwanath Sao detailed about the occurrence. The informant has stated that he was six brothers and all were occupants of a common house. The informant P.W.4 was having enmity with his accused brother Krishna Sao. About 1½ years prior to the occurrence, Krishna Sao lost his first wife who was resident of Village-Pathra under the jurisdiction of Amba police station. After death, Krishna Sao married with sister of accused/appellant Sheo Prasad Sao.
Accused Sheo Prasad Sao used to come to the house of informant and both of the accused were pressurizing for partition of the property that frequently resulted into quarrel. About ten days prior to the occurrence, an altercation took place between the accused Krishna Sao and the informant and their mother. As Krishna Sao was demanding Rs. 10,000/-, which he had given for construction of the house. Verbal altercation ultimately led to assault on that date in which Krishna Sao assaulted his mother, sister (not examined) and Bhabhi P.W.2. Krishna Sao was later on thrashed. At the time of retreating Krishna Sao threatened for dire consequences. The threatening was also that the house would be plundered. On earlier occasion also, the informant was assaulted Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 4 by the henchmen of Krishna Sao. Just preceding to midnight of 2/3rd October, 2002 at about 11.30 p.m. the criminals entered into the house of the informant where he was sleeping. When the informant got up then he noticed 5 - 6 persons standing in courtyard. They were flashing torch. At that time an earthen lamp was giving light. The informant wanted to know about their identity but he was caught hold by one of them and the informant identified him as accused Sheo Prasad Sao, brother-in-law of another accused Krishna Sao was one of them. The torch was flashed upon face of the informant and the person flashing the torch was elder brother of the informant namely Krishna Sao. 4 - 5 persons were wearing half pant and shirt and rests were in full pants. The informant claimed to identify the culprits. The informant also claimed that his mother could also identify the culprits. The informant, his mother P.W.3, sister (not examined), brother P.W.1 and Bhabhi P.W.2 were cornered in the courtyard. All were having sticks and knives. The informant and his brother's hands were tied and inmates were assaulted. The culprits carried away one box and went towards water tank. The criminal remained in the house for one hour. From box containing Rs. 20,000/-, which the informant has got from the post office for construction of the house was carried away and that amount Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 5 resulted into altercation earlier also. After the criminals retreated then the informant came and shouted which resulted into gathering of co-villagers but as the night was dark, so the informant returned after chase of a bit. In the next morning, Jitendra Singh (P.W.9) accompanied the informant for tracing the box and saw a dead body of a person 200 yards east of water tank. The deceased was Satyendra Singh, brother of P.W.9 and P.W.7 Birendra Kumar Singh. In the meanwhile, P.W.9 also identified and got his brother. Jitendra Singh (P.W.9) divulged there that his brother Satyendra Singh, the deceased had been to Ranchi in connection with his litigation and he was returning in that night. The informant suspected that retreating might have done away Satyendra Singh, the deceased. The fardbeyan contained no attested witness's signature.
3. The formal FIR was investigated into and charge sheet was submitted. The case was found triable by the court of Sessions, so it was committed. Thereafter, charge under Sections 395 and 396 of the Indian Penal Code was framed against appellants Krishna Sao and his brother-in-law Sheo Prasad Sao. When the accused persons pleaded their innocence, the trial proceeded.
4. The defence of the accused persons is of false Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 6 implication on account of enmity and also that nobody has witnessed the occurrence and this fact has been testified but none else are the persons whose house was allegedly looted. It has been further claimed that attesting witnesses after a long deliberation and interval have successfully framed them.
5. Before the trial court, the prosecution has examined 13 witnesses they are P.W.1 Jagarnath Sao, P.W.2 Smt. Sumitra Devi, P.W.3 Mahangi Devi, P.W.4 Bishwnath Sao, P.W.5 Sheo Chand Paswan @ Satyendra Paswan, P.W.6 Sunil Kumar Singh, P.W.7 Birendra Kumar Singh, P.W.8 Nand Kishore Ram, P.W.9 Jitendra Singh, P.W.10 Dr. Ravi Ranjan, P.W.11 Sanjay Kumar Vishwas, P.W.12 Dr. Raj Kumar Prasad and P.W.13 Shankar Singh. P.W.8 is the Judicial Magistrate who recorded the statement under Section 164 of the Code of Criminal Procedure of P.Ws. 7 and 9 on 27.11.2002. He is not a material witness rather his evidence is that he was posted as Judicial Magistrate in Civil Court, Aurangabad and in that capacity he got occasion to record the statement under Section 164 of the Code of Criminal Procedure of the witnesses.
6. Post-mortem of Satyendra Singh was held by P.W.10 Dr. Ravi Ranjan on 03.10.2002 at 09.00 a.m. and has found the following anti-mortem injuries:
Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 7 (I). Sharp cut of size 4"x1/4"x bone deep above right eye.
(II). Sharp cut 2"x1/4"x bone deep below right eye.
(III). Sharp cut above left eye 3"x1/4"x bone deep.
(IV). Sharp cut on left temporal region 4"x1/4"x bone deep.
(V). Abrasion over left side of nose 2"x 2".
Rigor mortis was present in all the four limbs. Brain and spinal chord intact and pale. The death was within 12 hours.
7. Dr. Raj Kumar Prasad P.W.12 was posted as M.O. Sadar Hospital, Aurangabad and on 03.10.2002, he examined Vishwanath Sao, the informant and found lacerated wound of measuring 1"x1/2"x1/4"x skin deep in the left chick. The injury might have been caused by hard and blunt substances like torch. However, the opinion of the doctor was that the injury was simple. Therefore, the injury of Vishwanath Sao is only simple.
8. Vishwanath Sao is the person whose house was victim of dacoity, therefore, his evidence is required to be Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 8 discussed. He has given fardbeyan before the officer-in-charge but in his examination-in-chief in para-2 he has stated that he has put thumb impression on plain paper. He has expressed complete ignorance about witnessing of the occurrence. Therefore, he was declared hostile and the prosecution has bounded that he has said before the I.O. every things about the occurrence.
9. The evidence of P.W.4 is that in fact nothing has happened either to him or to his house so he has fully denied all the suggestions given by the prosecution. Therefore, his evidence has given complete goby to the prosecution version as to whether any offence so far as related to dacoity is concerned has ever taken place in the house of the informant. On the aspect of the dacoity other witnesses examined by the prosecution are P.Ws. 1, 2, 3 and 5. P.W.1 Jagarnath Singh is full brother of informant and he has expressed total ignorance of the occurrence. He has not only stated that he has not given any statement before police though he was declared hostile but he remained consistent that he has not given any such statement. Smt. Sumitra Devi P.W.2 is Bhabhi of the informant. Her name has been mentioned as a witness in the fardbeyan. She has also expressed total ignorance of the dacoity and later she has denied about making any statement before police. P.W.3 is Mahangi Devi, her name was mentioned as Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 9 a witness of the occurrence of dacoity but when she was examined as a witness she has expressed complete ignorance about the occurrence of dacoity. This witness has also been declared hostile by the prosecution and she never deposed before police anything about the occurrence. P.W.5 Sheo Chand Paswan @ Satyendra Paswan is a hearsay witness. He has expressed ignorance about any part of the occurrence. He has stated that the police came near the dead body of Satyendra Singh and he was enquired by police about his address. Except giving his address, this witness has not stated anything before police. This witness has also been declared to be hostile by the prosecution. So far as prosecution is concerned P.Ws. 1 to 5 have thoroughly disapproved any occurrence of dacoity. Not only that they denied of making any statement before the investigating officer.
10. Learned Counsel for the informant has submitted that even the statement of hostile witnesses cannot be thrown away and should be relied upon. He has pointed out that in a case reported in the case of Sheikh Zakir v. State of Bihar reported in AIR 1983 Supreme Court 911 Courts have held that the prosecution witnesses should not be disbelieved even if they become hostile.
11. The prosecution witnesses P.Ws. 1 to 5 Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 10 examined on behalf of the prosecution have not even supported one part of occurrence. What to support of occurrence rather they have disbelieved the prosecution suggestion of making statement under Section 161 of the Code of Criminal Procedure. No doubt, evidence of hostile witnesses has to be relied upon, if it has supported the prosecution case but if a hostile witness expressed total ignorance of the occurrence then no part of his evidence is worth considering. Evidence of such witnesses examined by the prosecution cannot be said to be acceptable. Hence, the citations are of no help.
12. The second part of the occurrence is murder of Satyendra Singh for that the witnesses examined by the prosecution are P.Ws. 6, 7, 9 and 13. P.W.6 Sunil Kumar Singh is a hearsay witness of the occurrence and is a witness of the inquest. Similarly P.W.13 is the second hearsay witness of the occurrence and he is also a witness of the inquest. The inquest report has been brought on record and it bears signature of P.W.6 and P.W.13. The death of Satyendra Singh has already been established by the post-mortem. The inquest report mentions that blood was coming out from the eyes. P.W.6 and P.W.13 being hearsay witnesses are of no use because on the basis of hearsay witnesses no order of conviction could be recorded. Hearsay witnesses could be relied Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 11 upon only when they can establish that a close proximity of time in which they had occasion to be witness of some part of occurrence namely, escaping with weapon of assault or establishing their presence near the place of occurrence just before or prior to the occurrence. But P.Ws. 6 and 13 are nowhere near that. They merely claimed to be hearsay witnesses. Therefore, their depositions are of no help to the prosecution. P.W.9 has stated that in the night of 2nd October, 2002, he was inside his house. He heard the sound of cry emanating from the house of Vishwanath Sao, the informant and thereupon he rushed and saw 5
- 6 persons were escaping. He claimed to identify Krishna Sao and Sheo Prasad Sao amongst the criminals. P.W.9 has disclosed that these two persons along with others have committed dacoity. He has stated that in the next morning he found the dead body of his brother Satyendra Singh. The police came and the body was sent for post-mortem examination. In course of investigation, his statement under Section 164 of the Code of Criminal Procedure was recorded on 27.11.2002. This witness is not a witness of murder; so far as offence of dacoity is concerned, he claims to be a witness of seeing the accused persons escaping from the place of occurrence. Immediately after P.W.9 has gone to the house of the informant then he was told by P.W.4 and other inmates that these Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 12 two persons were responsible for causing the offence. The information with regard to dacoity by the appellants to P.W.9 has been transmitted by P.W.4 and his family members. As P.Ws. 1 to 4 were the persons who could be said to be the witness of the occurrence. P.Ws. 1 to 4 while deposing in court have expressed total ignorance with regard to occurrence and P.W.9 has derived his information or knowledge from P.Ws. 1 to 4. Therefore, the base of information or knowledge to P.W.9 cannot be said to be his own information and if the persons informing P.W. 9 are not supporting the occurrence in course of evidence then it cannot be said that no such information was obtained by P.W.9 himself. Therefore, to this extent his information cannot be said to be reliable and so he cannot be expected to be a witness of the occurrence. So far as going from the house of Krishna Sao and Sheo Prasad Sao is concerned, it is apparent from the evidence that these two persons are not strangers of family of P.Ws. 1 to 4 rather they are family members or close relatives of P.Ws. 1 to 4. If dacoits were escaping and these two were seen going outside by P.W. 9 then on no basis it can be presumed that these two persons were involved in the offence. It can also be presumed that they were noticing the whereabouts of the dacoits. Only thing that P.W.9 was watching both the accused being going outside of the Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 13 house so they were amongst the criminals is not believable.
13. P.W.7 is not a witness of dacoity. The analyzing of evidence so far as charge under Section 395 is concerned, it is apparent that there is no evidence at all to link any of the accused with the offence.
14. Regarding offence of culpable homicide, the evidence of P.W. 7 is that initially he was returning to his house at about midnight. While he was returning in the night of 2/3 rd of October, 2002 and reached near water tank then he was at a distance of 50 yards that 7-8 persons were killing a person. He saw the occurrence in the flash light of torch. P.W.7 identified the appellants amongst the killers. The witness in para-4 of his evidence has claimed that identification of only accused and not of the deceased. He has claimed that identification of the accused was for the first time in the court. In the next morning, the informant had gone to near water tank and found a dead body was lying in a ditch containing water. The police came and dead body was taken out. Evidence of P.W.7 regarding lying of a dead body is that it was in a ditch containing water. The investigating officer P.W.11 has gone to the place of occurrence and he has deposed in para-12 of his evidence that dead body was lying on the road. No doubt, road and ditch may be adjacent but onus was upon the Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 14 prosecution to establish the place from where the dead body was recovered. So far as evidence of positioning of dead body is concerned, there is contradiction and both places cannot be said to be one. P.W.7 has stated that the police came and thereafter the dead body was taken out but the investigating officer has said that when he went then he found the dead body not inside the ditch rather on the road.
15. The sole evidence of murder is undoubtedly is P.W.7. In the next morning of the occurrence i.e., in the morning of 03.10.2002, he has gone to the place of occurrence at about 6.15 a.m. and has remained there till police came and completed the paraphernalia. The police has arrived at the place of occurrence and has prepared the inquest report. The time of preparation of inquest report is 6.45 a.m. on 03.10.2002, meaning thereby that P.W.7 was present at the time of preparation of the inquest report. The inquest report was prepared none other than by police and P.W.7 has not stated about the manner of causing death of Satyendra Singh to police at that time as there is no mention even in the fardbeyan or anywhere. Therefore, at the time of preparation of inquest report, name of assailant was not disclosed. The implication of the accused so far as causing of death is concerned that has come through statement under Section 164 of Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 15 the Code of Criminal Procedure of P.W.7. That statement has come after a long interval. The fardbeyan was recorded in the morning of 3rd October, 2002 and implication of the appellants so far as murder is concerned that has surfaced on record for the first time on 27.11.2002. Prior to that their role was not attributed. Prior to the role of accused in causing death was not disclosed to any person.
16. The implication of accused is on the basis of sole testimony of P.W.7 so far as charge under Section 302 of the Indian Penal Code is concerned. It is another fact that the appellants were not even charged under Section 302 of the Indian Penal Code, they were merely charged under Sections 395 and 396 of the Indian Penal Code. The ingredients of Section 396 of the Indian Penal Code and Section 302 of the Indian Penal Code are quite different. Their evidence under Section 396 and 302 of the Indian Penal Code are on different scales but the court framed charge under Section 396 of the Indian Penal Code and not charged under Section 302 of the Indian Penal Code. Although order of conviction has been recorded under Section 302 of the Indian Penal Code and not under Section 396 of the Indian Penal Code. The prosecution could definitely rely upon the testimony of sole witness if the evidence of sole witness does not appear to be Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 16 tainted or there is no contradiction so far as his evidence is concerned. In the present case, the evidence of P.W.7 has been recorded wherein he has claimed to be witnessing the occurrence from a distance of 50 yards. While giving his statement under Section 164 of the Code of Criminal Procedure P.W.7 in para-2 of his statement has claimed to be witnessing the occurrence from a distance of 200-250 yards. The distance of 50 yards and 200-250 yards is not a small difference which can be overlooked or ignored. This aspect of the matter of positioning from conflicting distance is a fact which has to be taken into account because the prosecution is relying upon the testimony of sole witness so far as evidence of killing of Satyendra Singh is concerned. Identification of the deceased as disclosed by P.W.7 does not appear to be reliable. Though, P.W.7 has claimed that he has seen the assailant killing but there was no occasion for him to see as to why he has not stated about seeing the deceased; he was non-else rather his brother. P.W.7 in para-57, has stated that he has not informed the police and there is no explanation as to why such a vital information regarding role of the accused is not disclosed by a person whose own brother was killed and that was the first information which should have been transmitted to police as offence of Section 395 of the Indian Penal Code would be belated Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 17 in view of offence under Section 302 of the Indian Penal Code is concerned. Offence under Section 302 of the Indian Penal Code is graver and the onus duty of a person was of immediately informing the police. If the police was not recording his statement which is not on the record then the matter could have been informed either higher police officer or to the court. But that also could not be done. Hence, the belated statement under Section 164 of the Code of Criminal Procedure could not be relied upon by the prosecution and except that evidence there is nothing on the record to rope the accused persons. It has been discussed above that even on the basis of testimony of sole evidence, the order of conviction can be recorded but the evidence of sole witness should remain thoroughly consistent, here the contradictions are apparent. The place of occurrence namely the place from where the dead body was recovered is another place. P.W.7 describes it to be another place. This contradiction with regard to lying of dead body has to be read with the fact that the prosecution has relied upon the testimony of the sole witness.
17. After consideration of another aspect which has appeared from the record is that almost non-observance of the law for recording the statement of accused under Section 313 of the Code of Criminal Procedure is provisions through which the Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 18 right of accused to know the circumstances appearing in evidence has to be explained. The incriminating circumstances which have come on record should be explained to the accused. The incriminating circumstances so far as manner of killing is concerned which has come through deposition of P.W.7 was that the identification was in torch light. The role attributed to the accused was of causing said injuries but surprisingly statement under Section 313 of the Code of Criminal Procedure has not been explained at all. The mechanical explanation of the evidence brought on record for which any driven reply could have not given. It has been held in the judgment reported in the case of Sharad Birdhichand Sarda, Appellant vs. State of Maharashtra, AIR, 1984 SC 1622 that right of accused under Section 313 of the Code of Criminal Procedure cannot be allowed to be violated and if the circumstances which has come on the record has not explained to him then it cannot be considered for the purpose of conviction in the present case. The circumstances appearing on the record were not at all explained to the accused and if those circumstances, which are also lacking, were not explained then this can also not be considered for recording order of conviction.
18. In the result, we find and hold that the prosecution has not been able to prove the charge against any of Patna High Court CR. APP (DB) No.702 of 2005 dt.23-07-2012 19 the accused. The judgment of conviction and order of sentence are set aside. The appeals are allowed.
19. Both the appellants namely, Sheo Prasad Sao in Cr. Appeal (DB) No. 702 of 2005 and Krishna Sao in Cr. Appeal (DB) No. 703 of 2005 are reported to be in custody, they are directed to be released forthwith, if not wanted in any other case.
(Shyam Kishore Sharma, J.) (Amaresh Kumar Lal, J.) Patna High Court, Patna Dated the 23rd of July, 2012, N.A.F.R. KKSINHA/-