Patna High Court
Brahamdeo Sah vs State Of Bihar on 21 November, 2024
Author: Sunil Dutta Mishra
Bench: Sunil Dutta Mishra
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.970 of 2006
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Brahamdeo Sah, Son of Sri Pati Sah, resident of Village- Pachaina Bazar, P.S.
Koilwar, District- Bhojpur.
... ... Appellant/s
Versus
The State of Bihar.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Deepak Kumar (Amicus Curiae)
For the Respondent/s : Mr. Ram Chandra Singh, APP
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CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA
ORAL JUDGMENT
Date : 21-11-2024
Heard Mr. Deepak Kumar, learned amicus curiae
appointed by the order dated 17.09.2024 and Sri Ram Chandra
Singh, learned APP for the State.
2. This appeal has been filed by the appellant under
Section 374(2) of the Cr.P.C. against the judgment of conviction
and order of sentence dated 03.11.2006 passed by the learned
Fast Track Court IInd, Ara, Bhojpur in Sessions Trial No. 248 of
2002, arising out of Ara Muffasil P.S. Case No. 127 of 2000
(G.R. No. 1664 of 2000) whereby and whereunder the appellant,
namely, Brahamdeo Sah has been convicted under Section 365
of the Indian Penal Code, 1860 (hereinafter referred to as
"I.P.C.") and has been sentenced to undergo R.I. for seven years
and fine of Rs. 3,000/- and in default of payment of fine, he will
undergo R.I. for three months.
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3. The facts of the case, in brief, is that Vinod Kumar
Sah (PW-6) filed a complaint petition before the learned Chief
Judicial Magistrate, Bhojpur, Ara and the same has been sent to
the Officer In-charge, Ara Muffasil for registration and
investigation of the case under Section 156 Cr.P.C. Thereupon,
Ara Muffasil P.S. Case No. 127 of 2000 dated 22.06.2000 has
been registered against the accused/appellant, Brahamdeo Sah
for the offence under Sections 302, 201/34 of the I.P.C.
4. As per the prosecution case, on 06.01.2000 at
06.00 P.M. uncle of the informant, namely, Mahesh Sah was
abducted by the appellant from the village house Pirauta where
he was residing with the informant/ complainant. It is also
alleged that the appellant had accompanied with 7 to 8 other
miscreants and they took away the victim by force and had also
taken Rs. 40,000/- alongwith his other belongings. It is further
alleged that the appellant had committed murder of the victim,
Mahesh Sah and cremated his dead-body to protect himself
from legal punishment. After investigation, the I.O. filed the
charge-sheet against the appellant, and after cognizance, the
case was committed to the Court of Sessions where charge
under Section 302 and 201 of the I.P.C. was framed against the
appellant.
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5. In order to establish the charge, the prosecution has
examined seven witnesses. PW-1 is Sheo Jee Sah, PW-2 is
Shambhu Thakur, PW-3 is Subhesh Sah, PW-4 is Mala Devi,
PW-5 is Saraswati Devi, PW-6 is Vinod Kumar Sah (informant)
and PW-7 Tarkeshwar Prasad is a formal witness.
6. On behalf of prosecution, three documents were
exhibited. Ext.-1 is Complaint Petition, Ext.-2 is the case diary
(para nos. 1 to 75) and Ext.-3 is the formal F.I.R. The
photocopy of prescription of Doctor with respect to treatment
and his death are marked as 'X' and 'Y' respectively for
identification.
7. After closing of prosecution evidence, statement of
the accused/ appellant under Section 313 Cr. P.C. was recorded
in which he has denied the allegations and pleaded not to be
guilty.
8. The defence has not produced any oral or
documentary evidence.
9. On the basis of the prosecution evidence, the
learned Trial Court has convicted and sentenced the appellant as
stated above.
10. Learned amicus curiae submits that out of seven
witnesses produced on behalf of prosecution, three witnesses
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namely, PW-1, Sheo Jee Sah, PW-2, Shambhu Thakur and PW-
5, Saraswati Devi were declared hostile as they have not
supported the prosecution case. He further submits that PW-3,
Subhesh Sah, PW-4, Mala Devi, PW-6, Vinod Kumar Sah
(informant) are hearsay witnesses and there is no eye-witness as
to the occurrence and none of the witnesses have supported the
prosecution case. He further submits that the charge was not
framed under Section 365 of the I.P.C. against the appellant and
the learned Trial Court without any material against the
appellant has convicted him under Section 365 of I.P.C.
Accordingly, the instant appeal is liable to be allowed.
11. On the other hand, learned APP for the State
submits that the prosecution has been able to prove its case and
the instant appeal is liable to be dismissed.
12. I have carefully perused the record and
considered the submissions advanced by the learned amicus
curiae and learned APP for the State. Before proceeding to
notice rival submissions, it would be apposite to notice
testimony of the prosecution witnesses.
13. PW-1, Sheo Jee Sah has deposed that he does not
know anything about the occurrence and he was declared
hostile. PW-2, Shambhu Thakur also deposed that he had not
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seen the occurrence and does not know anything about the
occurrence. He was declared hostile. PW-3, Subhesh Sah in his
deposition has stated that he had not seen the occurrence and he
cannot say how Mahesh Sah had died. PW-4 Mala Devi, who is
wife of Vinod Kumar Sah (informant), has deposed that she has
not seen the occurrence and the facts with respect to occurrence
has been stated by her husband. PW-5, Saraswati Devi deposed
that she does not know about the occurrence and she has been
declared hostile.
14. PW-6, Vinod Kumar Sah, is the informant/
complainant of this case. He has deposed that he had gone to
Nepal and after one month he came to his house then he was
told by someone that his uncle Mahesh Sah had died and he
filed the complaint petition (Ext.-1). In his cross-examination,
he has stated that he does not know when or with whom Mahesh
Sah (victim) had gone. He further admitted that deceased
Mahesh Sah was a T.B. patient and appellant Brahamdeo Sah
was providing him medicine and was serving him. He also
performed the last rites of Mahesh Sah. He further admitted that
he does not remember the name of the person on whose saying
he has filed the case. He also admitted that he had not given
statement before the appellant. PW-7, Tarkeshwar Prasad is a
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formal witness who has identified the writing and signature of
the I.O. Rajeshwar Singh in the case diary, para nos. 1 to 75
which is exhibited as Ext. 2 and formal F.I.R. bearing Ara
Muffasil P.S. Case No. 127 of 2000. In his cross-examination,
he has admitted that the said documents were not written before
him and he has no personal knowledge about the same.
15. From the aforesaid depositions of the witnesses
adduced on behalf of the prosecution, it appears that despite
several opportunities, I.O. has not been examined in this case.
There is no eye-witness to the occurrence and P.W.-1, 2 and 5
have been declared hostile. PW- 3 and 4 have also not supported
the prosecution case and they are hearsay witnesses. Even PW-
6, who has filed the complaint case has not supported the
prosecution case as he has categorically admitted that he does
not know with whom Mahesh Sah had gone. He even failed to
disclose the name from whom he came to know about the
occurrence and he also admitted that he has not given any
statement before the police.
16. Learned amicus curiae submits that it is not open
to the Court to place reliance on the case diary maintained by
the police under Section 172 of Cr.P.C. as a piece of evidence
directly or indirectly except for the purpose for contradicting a
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witness. He has referred and relied upon the judgment of the
Hon'ble Apex Court in case of Md. Ankoos and Ors v. The
Public Prosecutor, High Court of A.P. Hyderabad reported in
AIR 2010 SC 566.
17. The Hon'ble Apex Court in the case of Md.
Ankoos (supra) in para nos. 28 & 29 has observed as under:
"28 .... A criminal court can use the case
diary in the aid of any inquiry or trial but not as an
evidence. This position is made clear by Section
172(2) of the Code. Section 172(3) places
restrictions upon the use of case diary by providing
that the accused has no right to call for the case
diary but if it is used by the police officer who
made the entries for refreshing his memory or if the
court uses it for the purpose of contradicting such
police officer, it will be so done in the manner
provided in Section 161 of the Code and Section
145 of the Evidence Act. The court's power to
consider the case diary is not unfettered. In light of
the inhibitions contained in Section 172(2), it is not
open to the court to place reliance on the case
diary as a piece of evidence directly or indirectly.
29. This Court had an occasion to
consider Section 172 of the Code vis-à-vis Section
145 of the Evidence Act and Section 162 of the
Code in Mahabir Singh v. State of Haryana
[(2001) 7 SCC 148 : 2001 SCC (Cri) 1262] and it
was stated as follows: (SCC p. 157, para 14)
"14. A reading of the said sub-sections
makes the position clear that the discretion given
to the court to use such diaries is only for aiding
the court to decide on a point. It is made
abundantly clear in sub-section (2) itself that the
court is forbidden from using the entries of such
diaries as evidence. What cannot be used as
evidence against the accused cannot be used in any
other manner against him. If the court uses the
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entries in a case diary for contradicting a police
officer it should be done only in the manner
provided in Section 145 of the Evidence Act i.e. by
giving the author of the statement an opportunity to
explain the contradiction, after his attention is
called to that part of the statement which is
intended to be so used for contradiction. In other
words, the power conferred on the court for
perusal of the diary under Section 172 of the Code
is not intended for explaining a contradiction
which the defence has winched to the fore through
the channel permitted by law. The interdict
contained in Section 162 of the Code, debars the
court from using the power under Section 172 of
the Code for the purpose of explaining the
contradiction."
18. The learned trial Court has given specific finding
that deceased Mahesh Sah was an old man suffering from T.B.
disease whose death is admitted as natural death and the said
finding is not under challenge.
19. Considering the entire material available on
record, it is not possible to conclude that the appellant/convict
before this Court had committed the offence under Section 365
of Indian Penal Code.
20. In the light of above discussions, the
appellant/convict is certainly entitled for benefit of doubt as the
prosecution has failed to establish his guilt by adducing clear,
cogent, trustworthy and clinching evidence. In the result, the
appellant deserves to be allowed and is accordingly allowed.
21. The impugned judgment of conviction and order
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of sentence dated 03.11.2006 passed by the learned Fast Track
Court IInd, Ara, Bhojpur in Sessions Trial No. 248 of 2002 are
accordingly set aside. The appellant is acquitted from all the
charges levelled against him.
22. It appears from the record, vide order dated
15.02.2007, this Court had granted bail to the appellant on furnishing bail bond during pendency of this appeal. Since the appellant is already on bail, he is discharged from the liability of the bail bond.
23. Before parting with this appeal, this Court records the appreciation for the assistance rendered by Mr. Deepak Kumar, learned amicus curiae. Patna High Court Legal Services Committee is hereby directed to pay Rs. 7,500/- to Mr. Deepak Kumar, learned amicus curiae in this case as a consolidated fee for the services rendered by him.
24. Let the Trial Court record be returned to the Court concerned.
(Sunil Dutta Mishra, J) rakhi/-
AFR/NAFR NAFR CAV DATE N.A. Uploading Date 22.11.2024 Transmission Date 22.11.2024