Patna High Court
Kashi Prajapati vs The State Of Bihar on 19 August, 2019
Equivalent citations: AIRONLINE 2019 PAT 1398
Author: Rakesh Kumar
Bench: Rakesh Kumar, Anjani Kumar Sharan
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.105 of 2014
Arising Out of PS. Case No.-137 Year-1996 Thana- KUDRA District- Kaimur (Bhabua)
==============================================
Kashi Prajapati, son of Late Kedar Kohar, Resident of Village Mokaram,
P.S. Kudra, District Kaimur.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
==============================================
with
CRIMINAL APPEAL (DB) No. 173 of 2014
Arising Out of PS. Case No.-137 Year-1996 Thana- KUDRA District- Kaimur (Bhabua)
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1. Tarkeshwar Prajapati, son of Late Rambachan @ Balbachan Prajapati
2. Vijay Prajapati, son of Late Rambachan @ Balbachan Prajapati
3. Sheshnath Prajapati, son of Late Rambachan @ Balbachan Prajapati
4. Paras Prajapati @ Pasas Prajapati, son of Late Rambachan @ Balbachan
Prajapati
5. Ashok Prajapati, son of Sri Balkeshwar Prajapati
All Resident of Village-Mokaram, P.S.-Kudra, District-Kaimur at Bhabua.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
==============================================
with
CRIMINAL APPEAL (DB) No. 199 of 2014
Arising Out of PS. Case No.-137 Year-1996 Thana- KUDRA District- Kaimur (Bhabua)
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Balkeshwar Prajapati, S/o Late Ram Sakal Prajapati, resident of Village-
Mokaram, P.S.- Kudra, District- Kaimur
... ... Appellant
Versus
The State of Bihar
... ... Respondent
==============================================
with
CRIMINAL APPEAL (DB) No. 227 of 2014
Arising Out of PS. Case No.-137 Year-1996 Thana- KUDRA District- Kaimur (Bhabua)
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Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019
2/37
Nageshwar Prajapati, S/o Rambachan @ Balbachan Prajapati, resident of
Village- Mokaram, P.S.- Kudra, District- Kaimur.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
==============================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 105 of 2014)
For the Appellant/s : Mr. Rajendra Narayan, Sr.Advocate
Mr. Dineshwar Tiwary, Advocate
(In CRIMINAL APPEAL (DB) No. 173 of 2014)
For the Appellant/s : Mr. Baxi S.R.P.Sinha, Sr.Advocate
Mr. Rupesh Kumar, Advocate
Mr. Suraj Narayan Yadav, Advocate
Mr. Ram Nath Singh Yadav, Advocate
Mr. Sudhir Kumar Sinha, Advocate
(In CRIMINAL APPEAL (DB) No. 199 of 2014)
For the Appellant/s : Mr. Baxi S.R.P.Sinha, Sr.Advocate
Mr. Sudhir Kumar Sinha, Advocate
Mr. Rupesh Kumar, Advocate
(In CRIMINAL APPEAL (DB) No. 227 of 2014)
For the Appellant/s : Mr. Baxi S.R.P. Sinha, Sr.Advocate
Mr. Sudhir Kumar Sinha, Advocate
Mr. Rupesh Kumar, Advocate
Mr. Arvind Kumar, Advocate
For the Respondent/
State in all four appeals: Mr. Ajay Mishra (A.P.P.)
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE ANJANI KUMAR SHARAN
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAKESH KUMAR)
Date : 19-08-2019
Eight appellants in aforesaid four appeals were tried
together and convicted and sentenced by the common judgment
of the trial court and as such, all the aforesaid four appeals were
taken up together under the heading "For Hearing" and are being
disposed of by this common judgment.
Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019
3/37
2. All the appellants by judgment dated 10-01-2014
were convicted for offence under Section 302/149 of the Indian
Penal Code, 1860 (hereinafter referred to as 'I.P.C.'). By the
same judgment of conviction, two appellants namely Balkeshwar
Prajapati (sole appellant in Cr.App.DB No. 199/14) and
Nageshwar Prajapati (sole appellant in Cr.App.DB No. 227/14)
were further convicted for offence under Section 148 of the
I.P.C. and except aforesaid two appellants, remaining all the
appellants were convicted under Section 147 of the I.P.C. By
order dated 17-01-2014 under Section 302/149 of the I.P.C., all
the appellants were sentenced to undergo imprisonment for life
and to pay a fine of Rs. 5,000/- (five thousand) each. In case of
default in payment of fine, they were directed to further undergo
rigorous imprisonment for one year. Under Section 147 of the
I.P.C., all the appellants, except two namely Balkeshwar Prajapati
(sole appellant in Cr.App.DB No. 199/14) and Nageshwar
Prajapati (sole appellant in Cr.App.DB No. 227/14), were further
sentenced to undergo rigorous imprisonment for one year. By the
same order i.e. order dated 17-01-2014, Balkeshwar Prajapati
(sole appellant in Cr.App.DB No. 199/14) and Nageshwar
Prajapati (sole appellant in Cr.App.DB No. 227/14) under Section
Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019
4/37
148 of the I.P.C. were further sentenced to undergo rigorous
imprisonment for two years. All the sentences were directed to
run concurrently. The judgment of conviction and sentence was
passed by Sri Ashok Kumar, learned Adhoc Additional Sessions
Judge 1st, Kaimur at Bhabhua (hereinafter referred to as the 'Trial
Judge') in Sessions Trial No. 386 of 1997/Trial No. 136 of 2013
(arising out of Kudra P.S. Case No. 137 of 1996).
3. Short fact of the case is that on 22-11-1996 at
about 7:15 PM in the night, one Sub-Inspector of Police of Kudra
Police Station recorded fardbeyan of Raj Kumar Prajapati
(P.W.6), brother of the deceased Rameshwar Prajapati. The
fardbeyan was recorded in Government Hospital, Kudra. In the
fardbeyan, the informant disclosed that on the same date i.e. on
22-11-1996at about 5:15 PM in the evening, he alongwith his elder brother Rameshwar Prajapati (deceased) were tying bundle of straw (iqvky) and his father Bahadur Prajapati (P.W.1) was keeping the bundle on the head. In the meanwhile:
1. Ram Bachan Prajapati (died),
2. Nageshwar Prajapati (sole app.in Cr.App.DB No. 227/14),
3. Paras Prajapati (A4 in Cr.App.DB No. 173/14),
4. Sheshnath Prajapati (A3 in Cr.App.DB No. 173/14),
5. Vijay Prajapati (A2 in Cr.App.DB No. 173/14),
6. Tarkeshwar Prajapati (A1 in Cr.App.DB No. 173/14),
7. Balkeshwar Prajapati (Sole app.in Cr.App.DB No. 199/14), Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 5/37
8. Ashok Prajapati (A5 in Cr.App.DB No. 173/14),
9. Vinod Prajapati (case transferred to J.J.Board),
10. Akhilesh Prajapati (case transferred to J.J.Board),
11. Bindu Prajapati (case transferred to J.J.Board), &
12. Kashi Prajapati (sole app.in Cr.App.DB No. 105/14) all variously armed with lathi, farsa, farhi, bhala, garasa, katta arrived there and immediately after arrival, they started removing motor machine (pump-set), then Rameshwar Prajapati (deceased) raised alarm. All the accused persons thereafter started to assault and by way of assaulting, they lifted Rameshwar Prajapati (deceased). In the meanwhile, some villagers namely (i) Kumar Prajapati (not examined), (ii) Nagina Nat (not examined), (iii) Bahadur Singh Yadav (not examined) and others arrived there and thereafter, the accused persons fled away and while fleeing away, after some distance, they left Rameshwar Prajapati (deceased). The said fardbeyan was read over to the informant and after finding the same correct, he put his signature on the bottom of fardbeyan. As witness to the fardbeyan, Bahadur Ram (not examined) and Ram Vyash Prajapati (P.W.10) put their signature on the fardbeyan.
4. On the basis of said fardbeyan, on the same date i.e. on 22-11-1996 at 10:15 PM, a formal F.I.R., vide Kudra P.S. Case No. 137 of 1996, was registered for offence under Sections 147, Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 6/37 148, 149, 323, 324 and 307 of the I.P.C. and subsequently, after death of injured Rameshwar Prajapati, Section 302 of the I.P.C. was added on 29-11-1996 in the F.I.R. The death of injured Rameshwar Prajapati had occurred on 28-11-1996 in a hospital in Varanasi. The F.I.R. was lodged against 12 (twelve) named accused persons, which are as follows:
1. Ram Bachan Prajapati (died during trial),
2. Nageshwar Prajapati (sole A in Cr.App.DB No. 227/14),
3. Paras Prajapati (A4 in Cr.App.DB No. 173/14),
4. Sheshnath Prajapati (A3 in Cr.App.DB No. 173/14),
5. Vijay Prajapati (A2 in Cr.App.DB No. 173/14),
6. Tarkeshwar Prajapati (A1 in Cr.App.DB No. 173/14),
7. Balkeshwar Prajapati (sole A in Cr.App.DB No.199/14),
8. Ashok Prajapati (A5 in Cr.App.DB No. 173/14),
9. Vinod Prajapati (case transferred to J.J.Board),
10. Akhilesh Prajapati (case transferred to J.J.Board),
11. Bindu Prajapati (case transferred to J.J.Board), &
12.Kashi Prajapati (sole app.in Cr.App.DB No. 105/14)
5. After registering F.I.R., the police investigated the case and finally, on 25-02-1997 chargesheet was submitted against nine F.I.R. named accused persons, however; (i) Tarkeshwar Prajapati (A1 in Cr.App.DB No. 173/14), (ii) Bindu Prajapati (case transferred to J.J.Board) and (iii) Kashi Prajapati (sole appellant in Cr.App.DB No. 105/14) were exonerated.
6. After submission of chargesheet, the learned Chief Judicial Magistrate, Kaimur on 12-05-1997 accepted the final report and took cognizance of offences against nine charge-
Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 7/37 sheeted accused persons. After completion of formality under Section 207 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") on 31-05-1997 the case was committed to the court of sessions and it was numbered as Sessions Trial No. 386 of 1997. On 02-02-1998 charges were framed under Sections 302/149, 147, 323 of the I.P.C. against seven charge-sheeted accused persons, whereas, charge under Section 302 of the I.P.C. was framed against Nageshwar Prajapati (sole appellant in Cr.App.DB No. 227/14) and Vijay Prajapati (A2 in Cr.App.DB No. 173/14) and also charge under Section 148 of the I.P.C. was framed against Vijay Prajapati (A2 in Cr.App.DB No. 173/14).
7. After framing of charge, the trial commenced and P.W.1 Bahadur Prajapati (father of deceased) was examined on 05-04-2002 and on 14-11-2002 informant Raj Kumar Prajapati was examined. After their examination, a petition was filed on behalf of the prosecution under Section 319 of the Cr.P.C. for summoning (i) Tarkeshwar Prajapati (A1 in Cr.App.DB No. 173/14), (ii) Bindu Prajapati (case transferred to J.J.B.) and (iii) Kashi Prajapati (sole appellant in Cr.App.DB No. 105/14) and to put them on trial. Those three accused persons were earlier Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 8/37 found innocent by the investigating officer and learned C.J.M., Kaimur accepted the final report. After aforesaid three accused persons were associated to face trial with remaining accused persons, on 06-09-2003 charge under Sections 302/149, 323 and 147 of the I.P.C. was framed against them, which was denied by them and they claimed to be tried.
8. Though, Bahadur Prajapati (father of the deceased) and informant Raj Kumar Prajapati were examined as P.W.1 and P.W.2 respectively before petition under Section 319 of the Cr.P.C. was filed, after three accused persons were added and charges were framed against them, Bahadur Prajapati (father of the deceased) though was examined as P.W.1, the informant Raj Kumar Prajapati was examined as P.W.6, whereas earlier he was examined as P.W.2.
9. To establish its case on behalf of the prosecution, altogether 11 (eleven) witnesses were examined. Out of 11 witnesses, P.W.1 Bahadur Prajapati (father of the deceased) and P.W.6 Raj Kumar Prajapati (informant and brother of the deceased) were examined as eye-witnesses to the occurrence, whereas, P.W.3 Rama Kant Tiwari, P.W.4 Jagdish Tiwari, P.W.10 Ram Vyash Prajapati and P.W.11 Shyam Narayan Prajapati are Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 9/37 formal witnesses, who have proved some documents. P.W.2 Lalan Kahar and P.W.5 Ram Kumar, though were declared hostile. P.W.7 Dr. Nagendra Prasad on the date of occurrence i.e. 22-11-1996 was Medical Officer in Primary Health Centre, Kudra and he had examined the injuries of P.W.1 and deceased (Rameshwar Prajapati). P.W.9 Dr. Ramashankar Sharma, a doctor of Varanasi Hospital, has only identified his signature on a letter containing post-mortem report. P.W.8 Ramta Ram Prajapati was only tendered for cross-examination, but in his cross-examination, he depicted regarding entire different story and as per him, the deceased died due to accident.
10. After completion of the prosecution evident, on 27-10-2010 the statement of accused persons under Section 313 of the Cr.P.C. was recorded, however; on examination of their statement, it appears that only formality was done.
11. On the trend of the cross-examination, it appears that defence had taken a plea that deceased died accidentally and due to family dispute, all the appellants were arrayed as accused. Kashi Prajapati (sole appellant in Cr.App.DB No. 105/14) had taken a defence that he was having no relation with either of the parties i.e. prosecution or accused, rather he was Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 10/37 son-in-law of village and he had acquired landed property there. He had also taken defence of alibi.
12. From the defence side, two witnesses were examined. Those are D.W.1 Moti Kahar, whose evidence is to the extent that on the date of occurrence, appellant Kashi Prajapati (in Cr.App.DB No. 105/14) was not present in the village and D.W.2 Uma Kuwar is none else but wife of the deceased and she deposed, as if, deceased died accidentally.
13. The learned Trial Judge, on materials available on record, has passed the impugned judgment of conviction and sentence, which has been assailed in aforesaid appeals.
14. Sri Rajendra Narayan, learned senior counsel assisted by Sri Dineshwar Tiwari, learned counsel for the appellant-Kashi Prajapati {in Cr.Appeal (DB) No. 105 of 2014}, at the very outset, has argued that it was a case of false implication of the appellants particularly Kashi Prajapati. He submits that false implication is evident from the fact that though this appellant (Kashi Prajapati) was arrayed as accused in the F.I.R. as participant in the occurrence, the police during investigation had not found involvement of the appellant and appellant was found innocent and this was the reason that police, Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 11/37 while submitting chargesheet against other accused persons, exonerated this appellant (Kashi Prajapati) and other two accused persons and the said final report was also accepted by the learned C.J.M., Kaimur. At belated stage, after examination of two witnesses, who were none else but father of the deceased and brother of the deceased (informant), the appellant Kashi Prajapati (in Cr.App.DB No. 105/14) and other two accused persons, who were earlier exonerated, were summoned on petition filed under Section 319 of the Cr.P.C. to face trial with other accused persons. It has been emphasized by Sri Narayan, learned senior counsel that in the fardbeyan, the informant had not attributed any overt act against this appellant, however; on commencement of trial, prior to association of appellant as accused, those two witnesses had come out with a case, as if, the appellant had also actively participated in the occurrence. He submits that even in their statement recorded under Section 161 of the Cr.P.C. during investigation, they (P.W.1 & P.W.6) had not given such detailed description, but during the trial, before the appellant (Kashi Prajapati) was associated as accused, both the witnesses i.e. father of the deceased and brother of the deceased had developed a story and thereafter, the appellant Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 12/37 with other two accused was directed to face trial under Section 319 of the Cr.P.C.
15. Sri Rajendra Narayan, learned senior counsel has further argued that false implication of appellant in the present case is evident from the fact that on the date of occurrence the appellant (Kashi Prajapati) was not present in his village, rather he had gone outside for the purposes of admission of his son in I.T.I. course. Regarding his false implication, it has further been argued that the appellant was son-in-law of co-villager of other accused. Father-in-law of the appellant-Kashi Prajapati was not having any male child and he was having two daughters; one was wife of the appellant and another her sister. Dispute in respect of land in between two sisters was pending in the court and in the said case, on behalf of the sister of the wife of the appellant Kashi Prajapati, P.W.1 Bahadur Prajapati was examined as a witness. Besides this, P.W.1 Bahadur Prajapati was also interested to purchase the land, which was claimed by the sister of the wife of the appellant (Kashi Prajapati). To substantiate his submission, learned senior counsel has specifically referred to paragraph 15 (at page 51-52 of paper-book) of the evidence of P.W.1.
Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 13/37
16. Learned senior counsel for the appellant (Kashi Prajapati) has further argued that the prosecution case appears to be doubtful due to the reason that in initial version, the prosecution has come out with a case of general and omnibus allegation. In the fardbeyan, only it was alleged, as if, appellant and other 11 accused persons variously armed arrived in the field of the informant and assaulted brother of the informant and after carrying him to some extent threw him and fled away. Similar was the stand during investigation by the prosecution witnesses, however; during the evidence, both the witnesses, who have claimed to be eye-witness, have come out with a case, as if, they had seen assaulting deceased by each of the accused persons by means of their weapons, such as; lathi, garasa and bhala. It has been argued that on examination of the evidence of those two eye-witnesses, the story of assault itself appears to be doubtful and as such, the evidence of P.W.1 and P.W.6 may not be believed, since in the evidence, whatever fact was disclosed by them was never disclosed by them during investigation.
17. The prosecution case has also been assailed by learned senior counsel on the ground that the prosecution has miserably failed to establish the place of occurrence. The Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 14/37 prosecution has not brought on record any material exhibit to substantiate the place of occurrence. Neither any seizure list pertaining to blood soaked soil nor any material exhibit has been brought on record. The case of the prosecution may not be believed, in view of the fact that two important witnesses i.e. investigating officer of the case and doctor, who conducted post- mortem examination, had not come forward to depose in the case. In absence of investigating officer and the doctor, who conducted post-mortem examination of the dead body, the appellants' case was seriously prejudiced. The appellants were prevented from getting contradiction in respect of evidence of two eye-witnesses, which they had developed during the trial. The fact, which was disclosed by two eye-witnesses during the trial, was never stated by them during investigation. He submits that in absence of investigating officer, no contradiction could be taken. Even in absence of the doctor, who conducted post- mortem examination, the appellants were prevented from asking any question on the cause of death of the injured. Only post- mortem report, which was not duly proved, was brought on record. In the case, it is evident, that though occurrence had taken place on 22-11-1996, injured died on 28-11-1996 and in Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 15/37 the post-mortem report also, cause of death has been mentioned as "coma", which was not having any relation with the alleged occurrence. Learned senior counsel submits that despite the fact that alleged occurrence had taken place at about 5:15 PM in the field, none of the independent witnesses have come forward to support the prosecution case. Even some of the witnesses, who were examined by prosecution, since did not support exactly the case of the prosecution, they were declared hostile.
18. Sri Rajendra Narayan, learned senior counsel for the appellant has taken the Court to the evidence of D.W.2 Uma Kuwar, who is none else but widow of the deceased Rameshwar Prajapati. The wife of the deceased/D.W.2 in her evidence has deposed that the deceased died accidentally, not was murdered by the appellants. Accordingly, the impugned judgment of conviction and sentence has been assailed by the appellants.
19. Sri Baxi S.R.P. Sinha, learned senior counsel assisted by Sri Sudhir Kumar Sinha in respect of remaining all the appellants except appellant no. 3 Sheshnath Prajapati (in Cr.App.DB No. 173/14), adopting the argument advanced by Sri Rajendra Narayan, learned senior counsel, has further argued that one of the witness i.e. P.W.8 Ramta Ram, though was Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 16/37 tendered for cross-examination, in his cross-examination he has categorically stated that deceased died due to accident. He has argued that P.W.8, though had categorically stated that deceased died accidentally, the prosecution had not even drawn attention of this witness to his previous statement and as such, the evidence of P.W.8 demolishes entire case of the prosecution. He further submits that the injured had received injury on 22-11-1996 and he died on 28-11-1996, however; the prosecution has not been able to establish the cause of death and in absence of basic ingredient i.e. cause of death, there was no requirement for application of Section 302 of the I.P.C.
20. Sri Ram Nath Singh Yadav, learned counsel appearing on behalf of Sheshnath Prajapati (A3 in Cr.App.DB No. 173/14), adopting the argument advance by learned senior counsel, who had appeared on behalf of remaining appellants, has argued that the appellant-Sheshnath Prajapati (A3 in Cr.App.DB No. 173/14) at the time of occurrence was not present at the place of occurrence and he further submits that under Section 313 of the Cr.P.C. in his defence, he had stated that deceased died due to fall from the stair.
Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 17/37
21. Sri Ajay Mishra, learned Addl. Public Prosecutor, supporting the judgment of conviction and sentence, has argued that the prosecution has established its case beyond all reasonable doubt. The evidence of P.W.1 and P.W.6 is itself sufficient for considering the judgment of conviction and sentence as "valid". He submits that father of the deceased P.W.1 namely Bahadur Prajapati and brother of the deceased P.W.6 namely Raj Kumar Prajapati in their evidence have given categorical picture of the occurrence and role played by each of the accused persons. He submits that after the brother of the informant was brutally assaulted and in the occurrence, P.W.1, who had received injury, they were brought to the Sadar Hospital, Kudra, where they were given medical aid. The injuries found on person of both i.e. P.W.1 and deceased were examined by P.W.7 Dr. Nagendra Prasad and his evidence also corroborates oral version of P.W.1 and P.W.6. Both injured i.e. P.W.1 and deceased Rameshwar Prajapati thereafter went to Varanasi for proper treatment of brother of the informant, who was brutally assaulted by accused persons, however; he remained in hospital at Varanasi for seven days and subsequently on 28-11-1996 he succumbed to his injuries. The Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 18/37 dead-body was sent thereafter to Lanka Police Station. After post-mortem, the said letter containing post-mortem report was identified by P.W.9 Dr. Ramashankar Sharma as doctor of Varanasi hospital. The post-mortem report further indicates that the deceased was having about five injuries on his person. According to Sri Mishra, the prosecution has successfully established its case beyond all reasonable doubt and as such, the learned Trial Judge has rightly passed the judgment of conviction and sentence.
22. Besides hearing learned counsel for the parties, we have minutely examined entire evidence on record. Before recording definite finding, it is necessary to discuss the evidence, which has been brought on record.
23. The informant P.W.6 Raj Kumar Prajapati is the brother of the deceased. In his evidence, he identified his signature on the formal F.I.R., which was marked as Ext.1 and subsequently, he identified the fardbeyan, which was marked as Ext.2. His evidence was recorded first. Initially, P.W.6 Raj Kumar Prajapati was examined as P.W.2 before three accused persons were associated as accused under Section 319 of the Cr.P.C. After three accused were made accused under Section 319 of the Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 19/37 Cr.P.C. and charge was framed against them, Raj Kumar Prajapati was examined as P.W.6. In his evidence, he stated that occurrence had taken place on 22-11-1996 at 5:15 in the evening. At the time of occurrence, he was at his chamber in khalihan. He and his elder brother Rameshwar Prajapati (deceased) were tying bundle of straw (iqvky) and his father was sitting there and he was helping him in lifting the bundle. In the meanwhile, 1. Bal Bachan @ Ram Bachan Prajapati (died during trial), 2. Nageshwar Prajapati (sole app.in Cr.App.DB No. 227/14), 3. Paras Prajapati (A4 in Cr.App.DB No. 173/14), 4. Sheshnath Prajapati (A3 in Cr.App.DB No. 173/14), 5. Vijay Prajapati (A2 in Cr.App.DB No. 173/14), 6. Tarkeshwar Prajapati (A1 in Cr.App.DB No. 173/14), 7. Balkeshwar Prajapati (Sole app.in Cr.App.DB No. 199/14), 8. Ashok Prajapati (A5 in Cr.App.DB No. 173/14), 9. Vinod Prajapati (case transferred to J.J.Board), 10. Akhilesh Prajapati (case transferred to J.J.Board),
11. Kashi Prajapati (sole app.in Cr.App.DB No. 105/14) and 12. Bindu Prajapati (case transferred to J.J.Board) carrying lathi, bhala, garasa arrived there. Vinod (case transferred to J.J.B.) was carrying farhi (an instrument for clearing dung), Nageshwar (A in 227/14) with garasa, Balkeshwar (A in 199/14) with bhala Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 20/37 and remaining accused were carrying lathi. Immediately after arrival, accused persons started breaking wire of his motor machine. In the meanwhile, his brother Rameshwar (deceased) forbade them, then Ram Bachan (died) exhorted the accused persons for assaulting, whereupon Nageshwar (A in 227/14) gave garasa blow on the head of Rameshwar, which injured his head and he fell down. Balkeshwar (A in 199/14) by means of bhala gave injury on temporal region of his brother Rameshwar, Vinod (case transferred to J.J.B.) on the back of Rameshwar gave farhi blow, which injured him. Paras (A4 in 173/14) gave lathi blow on his back and remaining also indiscriminately assaulted Rameshwar by means of lathi on his back. In the meanwhile, his co-villagers namely Bahadur Singh (not examined), Kumar Prajapati (not examined), Shiv Murat Nat (not examined), Nagina Nut (not examined) on hulla arrived there. After the arrival of villagers, the accused persons fled away. While fleeing, Rameshwar was lifted by Paras, Sheshnath, Vijay (A4, A3 & A2 respectively in 173/14) and thereafter he (injured) was left in the potato field and thereafter, they ran away.
24. At this juncture, it is necessary to take note of the fact disclosed in the fardbeyan. In the fardbeyan, which we have Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 21/37 already discussed hereinabove, it is evident that the informant had made general and omnibus allegation. Neither he specified the weapons, which accused persons were carrying nor in the fardbeyan, it was disclosed that injured was given injury by whom and by which weapon. Fact remains that in the case, as alleged, fardbeyan of the informant was recorded within 1½ to 2 hours from the time of occurrence i.e. in the year 1996, however; while this witness (P.W.6/informant) was being examined in the year 2006, he started giving entire description of the occurrence including various weapons carried by different accused persons, specific statement of assault being given by one accused by garasa, another by bhala, and by one accused farhi and remaining accused lathi. He even specified that which injury was given by whom on which part and which weapon. Such photographic explanation by the informant after about ten years from the date of occurrence, contrary to the initial version, certainly creates serious doubt regarding the credibility of this witness. The attention of this witness to his previous statement was drawn in paragraph 21 of his evidence. However, during the trial, the investigating officer was not examined nor another police official had come to support the prosecution case and as Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 22/37 such, this Court itself had cursorily perused the case diary and in paragraph - 4 of the case diary, statement of this witness under Section 161 of the Cr.P.C. was recorded, however; on examination of paragraph 4 of the case diary, it is evident that those detailed facts were not stated by this witness in his re- statement during investigation nor in the fardbeyan such detailed fact was disclosed. In his evidence, he further deposed that after the arrival of the villagers, they lifted the injured Rameshwar and brought him to the road and from there, on tractor the injured was brought to the Kudra Hospital, where he was examined by the doctor. In paragraph 6 of his evidence, he clarified that in hospital, Darogaji came and recorded his fardbeyan and he proved the fardbeyan, which was marked as Ext.2. This witness i.e. P.W.6 is very much specific that fardbeyan was recorded in Kudra Hospital, however; P.W.1 Bahadur Prajapati (father of the informant and deceased) in his evidence in paragraph 3 (at page 38 of paper book) has categorically stated that injured on a tractor was carried firstly to Kudra Police Station and in Kudra Police Station, Raj Kumar Prajapati (P.W.6) lodged the case. Ofcourse only on variation of stand in between P.W.1 Bahadur Prajapati and P.W.6 Raj Kumar Prajapati on the point of carrying Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 23/37 the injured first to hospital or police station may not have much relevance, but after noticing the top of the fardbeyan at page 1 i.e. substituted the time of recording fardbeyan as 7:15 from 6:55 creates serious doubt on the prosecution case. On the top of the fardbeyan, Sub-Inspector of Police, Kudra Police Station had mentioned that he recorded fardbeyan of Raj Kumar Prajapati on 22-11-1996 at 7:15 PM at Government Hospital, Kudra, however; on bare examination of writing regarding timing, there is no confusion that 6:55 was over written and it was made 7:15. This substitution of time vis-a-vis contradiction of P.W.1 and P.W.6 regarding first reaching to police station or hospital and lodging the case raises serious doubt regarding the credibility of prosecution case. Besides the fact that P.W.6/informant neither in his fardbeyan nor in his re-statement recorded during investigation had given any description of exact manner of occurrence, whereas during his evidence, which was recorded after almost about ten years, he described the entire manner of occurrence in detail, which creates serious doubt on the evidence of P.W.6. P.W.6 was given suggestion that his brother had fallen from bamboo stair and he received injuries, however this suggestion was denied.
Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 24/37
25. Similarly, P.W.1 Bahadur Prajapati (father of the deceased) in his evidence has stated that from two hours before the occurrence he was present at his chamber where his khalihan was adjacent. In khalihan, his sons namely Rameshwar Prajapati (deceased) and Raj Kumar Prajapati (P.W.6) were tying bundle of straw. At that very time, 1. Bal Bachan @ Ram Bachan Prajapati (died during trial), 2. Nageshwar Prajapati (sole app.in Cr.App.DB No. 227/14), 3. Paras Prajapati (A4 in Cr.App.DB No. 173/14), 4. Sheshnath Prajapati (A3 in Cr.App.DB No. 173/14),
5. Vijay Prajapati (A2 in Cr.App.DB No. 173/14), 6. Tarkeshwar Prajapati (A1 in Cr.App.DB No. 173/14), 7. Balkeshwar Prajapati (Sole app.in Cr.App.DB No. 199/14), 8. Ashok Prajapati (A5 in Cr.App.DB No. 173/14), 9. Vinod Prajapati (case transferred to J.J.Board), 10. Akhilesh Prajapati (case transferred to J.J.Board),
11. Kashi Prajapati (sole app.in Cr.App.DB No. 105/14) and 12. Bindu Prajapati (case transferred to J.J.Board) arrived there. Nageshwar Prajapati (A in 227/14) was carrying garasa in his hand, Balkeshwar (A in 199/14) was carrying bhala in his hand, Vinod (whose case referred to J.J.B.) was carrying an instrument of removing of dung i.e. farhi in his hand and rest of the accused persons were carrying lathi. Immediately after arrival, they Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 25/37 started to remove electric wire and starter from his motor (pumping set). His son Rameshwar Prajapati (deceased) asked as to why they were removing starter and breaking wire, whereupon Bal Bachan (died during trial) exhorted other accused persons and on his exhortion, Nageshwar (A in 227/14) gave garasa blow on the head of Rameshwar. Balkeshwar (A in 199/14) gave bhala blow on his temporal region. His son Rameshwar fell down. When Rameshwar fell down, Vinod (case referred to Juvenile Justice Board) gave farhi blow on his back. Akhilesh (case transferred to J.J.B.) gave lathi blow on the back of Rameshwar, Ashok and Tarkeshwar (A5 & A1 in 173/14) also gave lathi blow on the back of Rameshwar. On the left side of the ribs, Vijay (A2 in 173/14) gave lathi blow. Other accused persons assaulted on the right side of Rameshwar. Kashi (A in 105/14) gave lathi blow on the leg of Rameshwar, Bindu (case referred to J.J.B.) also gave lathi blow on the leg of Rameshwar. Bindu (case referred to J.J.B.) also gave lathi blow on the leg of Rameshwar. At the time of occurrence, this witness i.e. P.W.1 was raising alarm, then Bindu (case referred to J.J.B.) said that after killing Rameshwar, he (P.W.1) should be killed and Bindu gave lathi blow on the head of this witness. The accused persons Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 26/37 by way of lifting Rameshwar started fleeing away, however; this witness was raising hulla and accused threw Rameshwar in the potato field and fled away. In paragraph 3 of evidence of this witness, on the hulla of Bahadur Singh (not examined), Kumar Prajapati (not examined), Shiv Murat Nat (not examined), Nagina Nut (not examined) arrived there. This witness was lifted by Raj Kumar (P.W.6) from khalihan and from the potato field Rameshwar Prajapati was lifted and brought in khalihan. Thereafter, this witness and Rameshwar Prajapati were lifted and carried to the road side and on tractor they were brought to Kudra Police Station. In Kudra Police Station, his son Raj Kumar Prajapati (P.W.6) lodged a case and statement of this witness was also recorded by the police in police station itself and thereafter, they were carried to Government Hospital in Kudra where both were treated. Rameshwar Prajapati (deceased) on tractor was carried to Varanasi, as advised by the doctor, since his condition was serious. In Varanasi Hospital, Rameshwar was treated and after 7 days he died. The dead body was sent for post-mortem. After post-mortem, the dead body was handed over to him and subsequently, he was cremated at Harishchandra Ghat, Varanasi. In paragraph 4 of his evidence, Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 27/37 he has given the description of his genealogy. He stated that name of his grand father was Chillar Prajapati. Chillar Prajapati was having four sons, namely; 1. Ram Dahin Prajapati, 2. Sakal Prajapati, 3. Kedar Prajapati and 4. Jhuri Prajapati. It is necessary to be noted that Balkeshwar Prajapati (sole appellant in Cr.App.DB No. 199/14) is the son of late Sakal Prajapati. This witness Bahadur Prajapati (P.W.1) was the son of Ram Dahin Prajapati. Balkeshwar Prajapati (A in 199/14) was the son of Sakal Prajapati and Bal Bachan (died during trial) was the son of Kedar Prajapati. Balkeshwar (A in 199/14) was having three sons namely Ashok (A5 in 173/14), Vinod and Akhilesh (case of both transferred to J.J.B.), who were accused in the present case. Tarkeshwar (A1 in 173/14), Nageshwar (A in 227/14), Paras, Sheshnath and Vijay (A4, A3 & A2 respectively in 173/14) are sons of Bal Bachan (died during trial) and all were accused in the present case. He further stated in this paragraph that partition had already taken place and there was no dispute in between the family. Meaning thereby that prosecution side and appellants side all are descendants of Chillar Prajapati and close relatives. This witness though had stated in his examination-in- chief regarding participation and overt act committed by all the Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 28/37 accused persons in detail. During cross-examination, his attention to previous statement was drawn in paragraph 12 (at page 48 of the paper book). The investigating officer in the case was not examined and as such, we had cursorily examined the case diary and in case diary in paragraph 7, statement of this witness was recorded under Section 161 of the Cr.P.C. and on examination of the same, it is evident that several exaggerations were made by this witness. This witness in cross-examination was given suggestion that Kashi Prajapati (sole appellant in Cr.App.DB No. 105/14) had carried his son Bindu (whose case referred to J.J.Board) to Dehri for the purposes of his admission in I.T.I. He was also given suggestion that wife of appellant Kashi (in 105/14) had got land in the village Mokra and this witness wanted to purchase the said land, however; appellant Kashi (in Cr.App.DB No. 105/14) was putting obstructions and with a view to put pressure on Kashi, he and his son Bindu both were arrayed as accused in this case. He was also given suggestion that appellant Kashi and his son were made accused due to the reason that this witness was with the side of Ram Dular (sister of the wife of the appellant Kashi), however; the suggestion was denied.
Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 29/37
26. In the case, P.W.2 Lalan Kahar and P.W.5 Ram Kumar were declared hostile. P.W.3 Ramakant Tiwari is an Advocate's clerk and to the reasons best known to the prosecution, he was examined to prove the F.I.R. which was marked as Ext.1. Similarly, P.W.4. Jagdish Tiwari is another Advocate's clerk and he was examined to prove fardbeyan, which was marked as Ext.2.
27. P.W.10 Ram Vyash Prajapati, though was not a police official but an agriculturist, was introduced by the prosecution to identify the inquest report and signatures thereto, which were marked as Ext.5/1 to 5/5 respectively.
28. P.W.11 Shyam Narayan Prajapati is another agriculturist, but he was examined to identify and prove the post-mortem report and on his identification, the post-mortem report was marked as Ext.6.
29. P.W.7 Dr. Nagendra Prasad on 22-11-1996 was posted as Medical Officer in Primary Health Centre, Kudra and on the same date, he examined injuries of Bahadur Prajapati (P.W.1) and also Rameshwar Prajapati (deceased). On 22-11-1996 at 6:50 PM, he had examined Bahadur Prajapati (P.W.1) and noticed following injury:
Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 30/37 "Lacerated wound on left side of vertex size 1/4" x 1/8"
x 1/8" Simple injury caused by hard and blunt weapon."
30. On the same date i.e. 22-11-1996 at 6:50 PM this witness i.e. P.W.7 Dr. Nagendra Prasad examined Rameshwar Prajapati (deceased) and he found following injuries:
"1. Incised wound on anterior part of vertex 1"
x 1/4" x bone deep.
2. Incised wound on right side of vertex 2" x 1/4" x bone deep.
3. Incised wound on back part of vertex 1/2" x 1/4" x bone deep.
All the injuries were grievous in nature caused by sharp and cutting weapon."
31. This witness identified injury reports of Bahadur Prajapati (P.W.1) and Rameshwar Prajapati as Ext.3 and 3/1 respectively. At this juncture, it is necessary to be noted that in cross-examination (at page 79 of paper book) he stated that injury reports were not on the prescribed form, but these were on back of police requisition and he further clarified that he had examined both injured persons after receiving police requisition. At this juncture, it is necessary to be noticed that informant in his evidence in paragraph 30 has categorically stated that from Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 31/37 the place of occurrence firstly he reached to the hospital and not went to police station, whereas, evidence of P.W.7 negates the versions of informant P.W.6. Besides P.W.7, P.W.1 in paragraph 3 of his evidence has also stated that he and deceased were carried to Kudra Police Station where case was lodged by Raj Kumar Prajapati (P.W.6). The P.W.7 further depicts that he examined injuries on the basis of requisition sent by the police and injured were examined at 6:50 PM, whereas in the fardbeyan on the top, time of recording fardbeyan has been substituted from 6:55 to 7:15. This indicates that in the fardbeyan time was subsequently substituted. It creates serious doubt regarding time of recording fardbeyan.
32. P.W.9 Dr. Ramashankar Sharma on 28-11-1996 was posted as Medical Officer in Sir Sundar Lal Hospital, Varanasi and he had simply identified his writing and signature on a letter with which post-mortem report was enclosed and was sent to Lanka Police Station. It was marked as Ext.4. The post- mortem report was got proved through the evidence of P.W.11 Shyam Narayan Prajapati and it was marked as Ext.6. In the post-mortem report, following ante-mortem injuries have been noticed:
Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 32/37 (I) Stitched wound 3.0 cm on the top of head 21.0 cm above the Root of Nose.
(II) Stitch wound 9.0 cm on the Rt. Side head
13.0 cm above the Rt. ear 12.0 cm above the
Root of Nose.
(III) L.W. 2.0 cm x 1.0 cm x bone deep on the Rt.
hand & back.
(IV) Abra Contusion 13.0 cm x 6.0 cm on Lt. Side
back of Chest.
(V) Multiple abra Contusion 16 X 6.0 cm on the
back of Rt. Side Chest.
33. On examination of post-mortem report i.e. Ext.6 and injury report i.e. Ext. 3/1, which is pertaining to injuries noticed by P.W.7 Dr. Nagendra Prasad on the person of the deceased, it is evident that there is serious variance in Ext.3/1.
While injured (deceased) was being examined, the doctor had found three injuries on his person, whereas post-mortem report indicates five injuries. The prosecution is completely silent on such variance and as such, the Court is in agreement with submission of learned senior counsel for the appellants that non- examination of the doctor, who conducted post-mortem examination, has seriously prejudiced the defence case. This variance in the injuries on the person of the deceased creates doubt on the actual cause of death and as such, non-examination Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 33/37 of the doctor, who conducted post-mortem examination, has seriously prejudiced the case of defence.
34. In the evidence of P.W.8 Ramta Ram Prajapati, who was only tendered. It has come that this witness in cross- examination in paragraph 1 has categorically stated that Rameshwar Prajapati (deceased) was his villager and he heard that Rameshwar had fallen from the Bamboo stair. He was carried for his treatment and he died there. Even though, P.W.8 was tendered for cross-examination and this witness had demolished the prosecution case i.e. basic cause of death of the deceased, he was not further cross-examined by the prosecution and as such, the evidence of this witness goes against the prosecution case.
35. Ofcourse in a criminal trial, much reliance is not required to be placed on the defence evidence, but considering the fact that D.W.2 (Uma Kuwar) was none else but widow of the deceased Rameshwar Prajapati, her evidence can simply be not ignored on the ground that she was examined as defence witness, particularly in view of the fact that one of the prosecution witness i.e. P.W.8 has deposed like D.W.2. D.W.2 in her evidence has stated that she was residing with her father-in- Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 34/37 law/Bahadur Prajapati (P.W.1) and Raj Kumar Prajapati (P.W.6). She further deposed that she was knowing Nageshwar Prajapati (A in 227/14), Paras (A4 in 173/14), Sheshnath Prajapati (A3 in 173/14) and others, who were her gotiya. She further stated that her husband, while removing motor, fell down and he got injury and died after seven days. She further stated in her examination-in-chief that accused persons had not killed him. In cross-examination, she accepted that the place, where her husband died, she was not there. She stated that her husband had received injury on his head.
36. We have examined the statement of appellants recorded under Section 313 of the Cr.P.C. and on examination of the same, we are satisfied that it was complete non-compliance of the statutory provision and in normal course, on the basis of such statement, the judgment of conviction and sentence was required to be set aside and same was required to be remitted back to the court below for re-recording of the statement of appellants under Section 313 of the Cr.P.C., however; considering the fact that occurrence had taken place long back in the year 1996 and all the appellants are rotting in jail after the Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 35/37 impugned judgment of conviction, it would not be practicable for remitting back the matter only on this very point.
37. Moreover, on examination of the entire evidence, we are of the considered opinion that prosecution has not been able to establish its case beyond all reasonable doubt and as such, by way of extending the benefit of doubt, it is desirable to interfere with the judgment of conviction and sentence. The judgment of conviction and sentence is further liable to be set aside on following grounds:-
(i) During the trial, there are serious contradictions on the point of recording fardbeyan in police station or hospital.
(ii) There is variance in respect of injuries on the person of the deceased i.e. in injury report i.e. Ext. 3/1, which was examined by P.W.7 immediately after the occurrence on the date of occurrence i.e. 22-11-1996 he had noticed only three injuries on his person, however; in the post-mortem report, there is reference of altogether five injuries on his person.
(iii) Non-examination of the investigating officer has prejudiced the case of defence.
(iv) Similarly, due to non-examination of the doctor, who conducted post-mortem examination, the Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 36/37 defence were prevented from getting clarification regarding enhancement of number of injuries in the post-mortem report from the injury report, which initially was examined by P.W.7.
(v) The evidence of P.W.8 demolishes the prosecution case, in view of the fact that this witness, though tendered, has deposed that the deceased died due to fall from the bamboo stair. This story has been corroborated in the evidence of wife of the deceased, who was examined as D.W.2 Uma Kuwar.
(vi) During evidence, none of the independent witnesses have come forward to support the prosecution case and only two witnesses, who have claimed to be eye-witnesses, are none else but they are P.W.1 (father of the deceased) and P.W.6 (own brother of the deceased).
(vii) There is no explanation as to why the witnesses, whose names were mentioned in the fardbeyan that they arrived at the place of occurrence, were not examined by the prosecution.
38. On all the aforesaid grounds, there is no reason to approve the judgment of conviction and sentence.
39. Accordingly, the judgment of conviction dated 10-01-2014 and order of sentence dated 17-01-2014 passed in Patna High Court CR. APP (DB) No.105 of 2014 dt. 19-08-2019 37/37 Sessions Trial No. 386 of 1997/Trial No. 136 of 2013 (arising out of Kudra P.S. Case No. 137 of 1996) by Sri Ashok Kumar, learned Adhoc Additional Sessions Judge Ist, Kaimur (Bhabua) is, hereby, set aside and all the aforesaid four appeals are allowed and all the appellants are acquitted from all the charges.
40. Since the judgment of conviction and sentence has been set aside and all the appellants are in custody, it is directed to release them forthwith, if not wanted in any other case.
(Rakesh Kumar, J.)
(Anjani Kumar
Sharan, J.): I agree.
(Anjani Kumar Sharan, J.)
Anay
AFR/NAFR AFR
CAV DATE 09.08.2019
Uploading Date 19.08.2019
Transmission Date 19.08.2019