Patna High Court
Kamta Prasad vs The State Of Bihar on 17 October, 2022
Bench: Chakradhari Sharan Singh, Khatim Reza
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1423 of 2007
Arising Out of PS. Case No.-186 Year-2001 Thana- ASHTHAWAN District- Nalanda
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Kamta Prasad S/o late Bhichuk Mahto, resident of Village-Satakpur, P.S.
-Bind, District-Nalanda at Biharsharif
... ... Appellant/s
Versus
State Of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 25 of 2008
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Rajesh Kumar S/o Kamta Prasad, resident of Village-Sakatpur, P.S. Bind,
District-Nalanda at Biharsharif
... ... Appellant/s
Versus
State Of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1423 of 2007)
For the Appellant/s : Mr. Vikram Deo Singh, Advocate
Mr. Rudal Singh, Advocate
For the Respondent/s : Ms. Shashi Bala Verma, APP
(In CRIMINAL APPEAL (DB) No. 25 of 2008)
For the Appellant/s : Mr. Pramod Kumar, Advocate
For the Respondent/s : Mr. Dilip Kumar Sinha, APP
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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH
and
HONOURABLE MR. JUSTICE KHATIM REZA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN
SINGH)
Date : 17-10-2022
Since both these appeals arise of the same judgment
and order of the learned Trial Court, they have been heard
together and are being disposed of by the present common
judgment and order.
Patna High Court CR. APP (DB) No.1423 of 2007 dt.17-10-2022
2/17
2. These appeals have been preferred by the
appellants assailing the impugned judgment of conviction dated
12.11.2007and order of sentence dated 13.11.2007 passed by the learned Additional Sessions Judge F.T.C. 3, Nalanda (Biharsharif) in Sessions Trial No. 666 of 2003 arising out of Asthawan P.S. Case No. 186 of 2001, whereby appellants have been convicted and sentenced as under:
Sentence Conviction Appellant In default of under Section Imprisonment Fine (Rs.) fine CRIMINAL APPEAL (DB) No.1423 of 2007 302 of Indian Five years For life 15,000/-
Penal Code imprisonment
Kamta Prasad 201 of the Simple
Five years
Indian Penal 3,000/- Imprisonment
imprisonment
Code for two years
CRIMINAL APPEAL (DB) No. 25 of 2008
302 of Indian Five years
For life 15,000/-
Penal Code imprisonment
201 of the Simple
Five years
Rajesh Kumar Indian Penal 3,000/- Imprisonment
imprisonment
Code for two years
27 of the Arms Three years One year
2,000/-
Act imprisonment imprisonment
3. Heard Mr. Vikram Deo Singh, learned counsel with Mr. Rudal Singh, learned counsel appearing on behalf of the appellants in both the appeals, Ms. Shashi Bala Verma, learned Additional Public Prosecutor for the State in Cr. Appeal (DB) No. 1423 of 2007 and Mr. Dilip Kumar Sinha, learned Additional Public Prosecutor for the State in Cr. Appeal (DB) No. 25 of 2008.
Patna High Court CR. APP (DB) No.1423 of 2007 dt.17-10-2022 3/17
4. A written report of the brother of the deceased, Sanjay Kumar, submitted to the officer-in-charge of Bind Police Station on 04.09.2001, is the basis for registration of First Information Report (F.I.R. for brevity). The prosecution's case, as narrated by the informant in the written report, is that in the morning of 04.09.2001 at about 7:00 am, he had gone to pluck vegetables with his brother Munna (Manoj Kumar @ Munna Kumar, P.W.-1) from a garden. His brother, Vipin Kumar (the deceased) was, at that point of time, going towards the field to defecate. At about 7:45 am, when the informant and his brother Munna Kumar (P.W.-1) were returning to their house, the deceased met them. The informant and P.W.-1 suggested the deceased to accompany them to their house to which he told them that he would come later. The informant was, thereafter, sitting with his family members at the doorway of their house when they saw the deceased Vipin Kumar, captured by Kamta Prasad [appellant of Cr. Appeal (DB) No. 1423 of 2007]; and his three sons Jayram Kumar, Rajesh Kumar [appellant of Cr. Appeal (DB) No. 25 of 2008] and Mano Kumar, all of whom were armed with country made rifle, being brought towards their house by them. They were beating the deceased with the butt of a rifle. The persons named in the F.I.R. have been described as Patna High Court CR. APP (DB) No.1423 of 2007 dt.17-10-2022 4/17 "gotiyas" (agnates) of the informant. When the family members of the informant protested to the said misdoings of the persons named in the F.I.R., threatening them of killing the deceased, they forcibly took the deceased towards Bahwa river, situated at south-western side of the village. When the accused persons were forcibly taking the deceased towards the river, the informant and P.W.-1 followed them. The appellant Kamta Prasad thereafter fired twice to scare the informant and his brother (P.W.-1). Despite the gun shots fired by the appellant Kamta Prasad, the informant and his brother Munna Kumar (P.W.-1), kept following the miscreants. The informant, thereafter witnessed the miscreants including these appellants, crossing the river Bahwa in a boat, with the deceased under their captivity. After they crossed the river, on the other side of the river, the miscreants took the deceased near a toddy-palm tree. Upon instigation of their father Kamta Prasad (appellant), accused Jayram and Rajesh fired three shots at the deceased whereafter he fell down. Thereupon, all the accused persons holding the feet and arms of the deceased threw the dead body in the said Bahwa river. The miscreants had also fired targeting the informant and his brother. They however, escaped the firing. The miscreants, after having killed the deceased and thrown Patna High Court CR. APP (DB) No.1423 of 2007 dt.17-10-2022 5/17 away the dead body in the river, fled away. Thereafter, though vigorous efforts were made to search the dead body of the deceased in the river with the help of their family members and relatives, the dead body of the deceased could not be retrieved. It became dark in the evening in search of the dead body of the deceased. In the meanwhile the police from Bind outpost had arrived.
5. Based on the written report of the informant, to the aforesaid effect, Asthawan (Bind) P.S. Case No. 186 of 2001 was registered on 05.09.2001 at 5:00 pm for the commission of offence punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code (I.P.C. for brevity) and Section 27 of the Arms Act. The F.I.R. discloses receipt of the information in the police station about the occurrence at 12:15 pm on 05.09.2001 for the occurrence which, as has been noted above according to the prosecution's case, taken place at 10:00 am on 04.09.2001. Though we will be dealing with the evidence of the respective witnesses at a subsequent stage, we consider it apt to notice, based on the evidence of the investigating officer, that the dead body of the deceased was discovered on the next date i.e. 05.09.2001. The dead body of the deceased, according his evidence, was brought to the police station by the Patna High Court CR. APP (DB) No.1423 of 2007 dt.17-10-2022 6/17 Chowkidar and other villagers of the village. The inquest report of the dead body was prepared at the police station whereafter it was sent for postmortem examination. The postmortem report (Exhibit-3) contains following antemortem injuries on the dead body of the deceased:
"External appearance:
(a) Swollen body, foul smelling, maggot present.
(b) Tongue & eye protruding.
(c) Washerman's feet.
Injuries (Ante-mortem):
(1) Incised wound 2"x1/2"x cavity deep at Ⓛ mastoid region of scalp.
(2) Lacerated wound oval charred margin of 1/2"
diameter at Ⓛ flank at chest in mid Axillary line. (3) Lacerated would charred margin 1/2" above 2"
above the No. 2 injury.
(4) Lacerated wound 1/2" diameter cavity deep at night at right supraclavicular region. (5) Echymosis of both forearm whole. (6) Metallic foreign body collected from thoracic cavity.
On Dissection:
(1) Brain liquified, meninges intact except temporal region.
(2) Fracture of left temporal bone. (3) Punctured Ⓛ lung, heart. (4) Abdominal viscera intact and pale. (5) Urinary bladder and stomach empty.
Cause of death:
Shock due to Hemorrhage caused by above noted injuries caused by firearm projectile. Time elapsed since death:
Between two to three days (48 to 72 hours)"
6. The police, upon completion of investigation Patna High Court CR. APP (DB) No.1423 of 2007 dt.17-10-2022 7/17 submitted charge-sheet against the appellants for commission of offence punishable under Sections 302, 201 of the I.P.C. and Section 27 of the Arms Act. After taking cognizance, the case was committed to the Court of Sessions for trial, whereafter the charge was framed for the offence punishable under Sections 302/34 and 201 of the I.P.C. and Section 27 of the Arms Act.
7. At the trial, altogether 13 witnesses were examined. Out of these 13 witnesses, four witnesses i.e. P.W.-3, P.W.-4 (Chowkidar), P.W.-6 and P.W.-7 were declared hostile at the instance of the prosecution. The doctor, who had conducted the postmortem and who proved the postmortem report was examined as P.W.-11 whereas the Investigating Officer as P.W.-
13. P.W.-8, P.W.-9 and P.W.-12 being the formal witnesses proved the F.I.R., attestation on the written statement and the hand-writing and signature of the informant Sanjay Kumar, respectively.
8. The informant Sanjay Kumar was not examined at the trial and as can be discerned from the evidence of P.W.-2 Renu Devi, (the wife of the informant), he was not alive when deposition of Renu Devi was being recorded.
9. P.W. 1, Manoj Kumar @ Munna Kumar supported the prosecution's case being an eye witness, as was disclosed by Patna High Court CR. APP (DB) No.1423 of 2007 dt.17-10-2022 8/17 the informant in his written report. P.W.-2, Renu Devi (wife of the informant); P.W.-5, mother of the deceased, and P.W.-10 father of the deceased proved the occurrence of assault made by these appellants and others in their presence at the doorway of their house and the deceased being taken away from there by the accused persons thereafter, as narrated by the informant in the F.I.R.. It has been the case of the defence that the deceased had criminal background, who might have been killed in a different occurrence altogether and these appellants were falsely implicated out of animosity, in support of which, certified copies of three F.I.Rs were exhibited at the trial as Exhibit A, A-1 & A-2.
10. Mr. Vikram Deo Singh, learned counsel appearing on behalf of the appellants has submitted that P.W.-1 is the only witness who has claimed to be an eyewitness to the entire occurrence and that the conviction of these appellants for the offence punishable under Sections 302 and 201 read with 34 of the I.P.C is primarily based on the testimony of the sole eyewitness i.e. P.W.-1. He has submitted that should the prosecution's case, as disclosed in the fardbeyan and the deposition of P.W.-1 at the trial be accepted, then a picture would emerge where the deceased was first brought to the house Patna High Court CR. APP (DB) No.1423 of 2007 dt.17-10-2022 9/17 of the informant and the deceased by the appellants and two others, where he was assaulted by them in the presence of family members with the butt of rifle and thereafter the deceased was taken to the river side; made to cross the river and was shot dead across the river near a toddy-palm tree. He has submitted that such narrative defies logic as there would have been no occasion for the appellants to bring the deceased first to his house in the presence of his family members and then take him back in the direction from which they had come, towards the river for killing him across the river within the sight of the informant and P.W.-1. He submits that evidence of P.W.-1 that he was witnessing the entire occurrence taking place by simply following the miscreants and the deceased, appears to be improbable inasmuch as according to the prosecution's case, the accused persons had initially opened fire to scare them and despite that P.W.-1 and the informant were allowed to witness the occurrence. He has further submitted that there is no evidence as to wherefrom the dead body of the deceased was recovered. It is the prosecution's case that the dead body of the deceased was brought to the police station on the next date i.e. 05.09.2001, according to the investigating officer, by the Chowkidar and the co-villagers of the deceased. Neither the Patna High Court CR. APP (DB) No.1423 of 2007 dt.17-10-2022 10/17 Chowkidar nor any of the villagers has supported the prosecution's case that the dead body of the deceased was brought to the police station by them. He has contended that as the prosecution has failed to prove the place from where the dead body of the deceased was recovered, entire case of the prosecution is rendered doubtful. He has submitted that no witness other than the family members of the deceased have supported the prosecution's case in any manner. He has further argued that the postmortem report suggests, inter alia, antemortem injuries on the body of the deceased caused by a sharp cutting weapon (injury No. 1 and injury No. 4) which have not at all been explained by the prosecution.
11. Learned Additional Public Prosecutor, while defending the impugned judgment of conviction and the order of sentence passed by the Trial Court has submitted that the conviction is based on the evidence of eyewitness/P.W.-1, who had the occasion to witness the occurrence taking place right from the stage when the deceased was brought to the house of the informant by the accused persons and thereafter taken towards the river and subsequently shot dead by the appellants on the other side of the river in his sight. She submits that the evidence of P.W.-1 adduced at the trial cannot be said to be Patna High Court CR. APP (DB) No.1423 of 2007 dt.17-10-2022 11/17 inconsistent rather his evidence is consistent with the case of the prosecution as originally disclosed in the written report based on which the F.I.R. was registered. She has submitted that the oral testimony of the eyewitness i.e. P.W.-1 is corroborated by the medical evidence inasmuch as during the postmortem examination, antemortem gunshot injury has been found on the person of the deceased. There being corroboration of the ocular evidence of P.W.-1 with the medical evidence, the finding of guilt recorded by the Trial Court cannot be treated to be suffering from any legal infirmity, she contends. She has further submitted that several prosecution's witnesses, namely, P.W.-2, P.W.-5 and P.W.-9 are the eyewitnesses to the occurrence of physical assault made by these appellants at the doorway of the house of the deceased where he was assaulted with the butt of a rifle. She accordingly contends that taking into account the evidence of P.W.s 1, 2, 5 and 10 as well as medical evidence cumulatively, the finding of guilt of the appellants is the only inference which can be drawn. Finding of conviction recorded by the trial court is, thus, based on sound principles of evaluation of evidence.
12. We have gone through the impugned judgment and order of the Trial Court and we have perused the evidence Patna High Court CR. APP (DB) No.1423 of 2007 dt.17-10-2022 12/17 adduced at the trial. There are certain aspects, which, in the Court's opinion, are significant, before we undertake the exercise of evaluation of the evidences adduced at the trial to address aforementioned submissions advanced on behalf of the parties.
13. It is the prosecution's case that the first occurrence had taken place near the doorway of the informant/P.W.-1 where the deceased was brought by the persons named in the F.I.R. under captivity, who were hitting him with the butt of the rifle. It is also the prosecution's case that thereafter they had taken the deceased back in the same direction from which they had come near the house of the informant, to the river side. It is not the case of the prosecution that the persons named in the F.I.R. were dreaded criminals who belonged to any extremist's group and for certain reasons, which have not emerged in the evidence, the deceased was brought to his family members to be beaten up in their presence and subsequently taken away to a remote place for killing him within their knowledge and witnesses or the villagers were so frightful of them that they remained mute spectators, throughout. According to the written report, the occurrence had taken place in the morning on 04.09.2001. It is the case of the prosecution that the deceased was killed and the Patna High Court CR. APP (DB) No.1423 of 2007 dt.17-10-2022 13/17 dead body was thrown in the adjacent river which the informant and P.W.s had seen. It is also the prosecution's case that after throwing the dead body of the deceased, the miscreants had fled away. There is no evidence as to wherefrom the dead body of the deceased was recovered on the next day. Though, it is the prosecution's case that attempts were made to retrieve the dead body of the deceased by the informant, P.W.-1 and the family members, no witness, other than the prosecution's witnesses has proved this aspect. Most significantly, the place from where the dead body of the deceased was recovered remained a mystery and has not been proved by the prosecution's witnesses. According to the Investigating Officer, the dead body of the deceased was brought by the Chowkidar and co-villagers to the police station. The Chowkidar (P.W.-4) has been declared hostile. Three other prosecution's witnesses i.e. P.W.-3, P.W.-4 and P.W.-7 have also been declared hostile. The fact that there is no evidence as to the place and the manner of recovery of the dead body of the deceased from the river assumes significance as no prosecution witness other than P.W.-1, the brother of the deceased, his wife and his brother and father have supported the prosecution's case. Though P.W.-1 in his evidence deposed that at the time of first occurrence when the deceased was being Patna High Court CR. APP (DB) No.1423 of 2007 dt.17-10-2022 14/17 assaulted by the miscreants, the villagers had assembled but no villager has been examined to support the prosecution's case. Further, P.W.-1 in his evidence deposed that it had taken one and half hours for the miscreants to cross the river after they had left the village of the deceased, and subsequently they killed the deceased, half an hour after crossing of the river. It is the deposition of P.W.-1 that the Chowkidar had come to enquire from his family members at his house when the deceased was taken towards the river. After making inquiry from his father, mother and sister-in-law, the Chowkidar had gone to the police station to inform. The Chowkidar (P.W.-4) has not supported the prosecution's case and has been declared hostile.
14. Further, absence of any explanation in respect of the antemortem injury found on the person of the deceased caused by hard and blunt substance create a reasonable doubt as regards the manner in which the deceased was killed and died.
15. In order to summarize our discussion, we have noticed that though P.W.-1 claimed to be an eye witness and has narrated in detail the manner in which the occurrence had taken place. There is no evidence as to the place from where the dead body of the deceased was recovered. It is true that the condition of the dead body, as found by the police officer preparing Patna High Court CR. APP (DB) No.1423 of 2007 dt.17-10-2022 15/17 inquest report suggested that the same was lying in a water body. Further, the manner in which the witnesses claim to have witnessed the occurrence does not inspire much confidence as in natural course of circumstances, a perpetrator of a crime would avoid someone becoming a witness to commission of offence. If the prosecution's case as disclosed in the written report and evidence of the prosecution's witness i.e. P.W.-1, P.W.-2, P.W.-5 and P.W.-10 were to be accepted, the appellants and others had sufficient opportunity to kill the deceased when they were not within the sight of the eyewitnesses. The deceased could have been conveniently taken by the accused persons to the river side without letting the eyewitness know about the same and killed him. In the present case, it is the prosecution's case that the deceased was first brought under the captivity of the miscreants before the prosecution's witnesses, thereafter he was assaulted whereafter he was taken to the river side. Their journey from the house of the deceased to the river and even thereafter was followed by the informant and P.W.-1. Though there is evidence that to scare P.W.-1, shots were fired by the miscreants but the informant and P.W.-1 had continued to follow them till they reached the river side and subsequently crossed the river in a boat. Half an hour after crossing the river, the appellants are said Patna High Court CR. APP (DB) No.1423 of 2007 dt.17-10-2022 16/17 to have killed the deceased, according to P.W.-1, which P.W.-1 claims to have witnessed.
16. Considering the facts and circumstances in entirety, in our opinion, based on sole testimony of P.W.-1 who has claimed to be an eyewitness, it would not be safe to uphold the impugned judgment of conviction recorded by the Trial Court. The Court has taken this view because, on the one hand, the informant and P.W.-1 have claimed to have seen the occurrence of the dead body being thrown away in the river after having been killed, it is the prosecution's case on the other, that dead body was not retrieved till late in the evening despite all efforts made by him, his family members and the villagers. On the next day, the dead body of the deceased was found from a place in relation to which there is no evidence adduced at the trial. During the course of trial, the prosecution exhibited certain documents to develop a defence that the deceased had criminal antecedent and there were at least three cases of serious nature pending against him and were exhibited as A, A/1 and A/2 in order to develop a defence that the deceased might have been killed in a completely different incident altogether.
17. Considering the facts and circumstances in entirety, in our opinion, a reasonable doubt is created in respect Patna High Court CR. APP (DB) No.1423 of 2007 dt.17-10-2022 17/17 of the manner and place of occurrence. Evidence of P.W.-1 cannot be treated to be of such sterling character as to justify the conviction of these appellants, based on his sole testimony. The appellants, in the facts and circumstances deserve to be given benefit of doubt.
18. Accordingly, impugned judgment of conviction dated 12.11.2007 and the order of sentence dated 13.11.2007 passed by the learned Additional Sessions Judge F.T.C. 3, Nalanda (Biharsharif) in Sessions Trial No. 666 of 2003 arising out of Asthawan P.S. Case No. 186 of 2001 is hereby set aside.
19. These appeals are allowed.
20. The appellants are on bail. They stand discharged of their liabilities of bail bonds and sureties, as the case may be.
(Chakradhari Sharan Singh, J) ( Khatim Reza, J) K.K.RAO/-
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