Patna High Court
Ramesh Kumar vs The State Of Bihar & Ors on 28 March, 2018
Equivalent citations: AIRONLINE 2018 PAT 2215
Author: Rakesh Kumar
Bench: Rakesh Kumar, Arvind Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No. 101 of 2011
======================================================
Ramesh Kumar Son of Late Ram Lochan Yadav Resident of Village-
Ghoghra P.S.- Parihar Distt- Sitamarhi.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
with
Criminal Appeal (DB) No. 273 of 2011
======================================================
Ramesh Kumar Son of Late Ram Lochan Rai, Resident of Village
Ghaghara, P.S. Parihar, District Sitamarhi.
... ... Appellant
Versus
1. The State of Bihar
2. Ram Sagar Rai S/O Late Ram Lochan Rai
3. Amar Kumar S/O Sri Ram Sagar Rai
Both respondent no. 2 and 3 resident of Village Ghaghara, P.S. Parihar,
District Sitamarhi.
... ... Respondents
======================================================
Appearance :
(In Criminal Appeal (DB) No. 101 of 2011)
For the Appellant/s : Mr. Jai Prakash Verma, Advocate
For the Respondent/s : Mr. Ajay Mishra (A.P.P.)
(In Criminal Appeal (DB) No. 273 of 2011)
For the Appellant/s : Mr. Jai Prakash Verma, Advocate
For the Respondent/s : Mr. Mayanand Jha (A.P.P.)
======================================================
CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAKESH KUMAR)
Date : 28-03-2018
The appellant in Cr.Appeal (DB) No. 101 of 2011 is
aggrieved with his conviction and sentence for offence under
Section 302 of the Indian Penal Code, 1860 (for short "I.P.C.") and
Section 27 of the Arms Act, 1959 (for short 'Arms Act") in
Sessions Trial No. 188 of 2003/01 of 2004 (arising out of Parihar
Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018
2/27
P.S. Case No. 61 of 2002). The same appellant has also filed an
appeal, vide Cr.Appeal (DB) No. 273 of 2011, which has been filed
against the judgment of acquittal of respondent no. 2 and 3. The
judgment of acquittal dated 12th January, 2011 was passed in
Sessions Trial No. 542 of 2006/108 of 2006 (arising out of Case
No. C1-208/03). In both the cases, it was alleged that daughter of
respondent no. 3 Amar Kumar in Cr.Appeal (DB) No. 273 of 2011
namely Arti Kumari @ Bharti Kumari was done to death by fire-
arm injury.
2. Cr. Appeal (DB) No. 101 of 2011 filed under Section
374(2) read with Section 389(1) of Code of Criminal Procedure,
1973 (hereinafter referred to as 'Cr.P.C.') was admitted on 22nd of
February, 2011 and it was observed that his prayer for bail would
be considered after receipt of the lower court record, however;
subsequently the prayer for bail of appellant Ramesh Kumar was
rejected and he is still in custody. Cr.Appeal (DB) No. 273 of
2011filed under proviso to Section 372 Cr.P.C. was admitted on 5 th
April, 2011. Accordingly, both the appeals were taken up together
for final hearing and are being disposed of by this common
judgment.
3. Before proceeding, it would be appropriate to notice that
Cr. Appeal (DB) No. 273 of 2011, which was filed by the appellant
Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018
3/27
against the judgment of acquittal, was primarily not entertainable,
since the appellant was not victim within the meaning of Section
2(wa) of the Cr.P.C. The appellant being not a victim was not
entitled to file appeal against acquittal in view of proviso to
Section 372 Cr.P.C. Surprisingly, the appellant Ramesh Kumar was
cousin grand father of the deceased girl namely Arti Kumari @
Bharti Kumari. He had filed complaint arraying father of the
deceased namely Amar Kumar, own grand father and own grand
mother namely Ram Sagar Rai and Geeta Devi respectively as
accused, whereas, Cr.Appeal (DB) No. 101 of 2011 arises out of
Parihar P.S. Case No. 61 of 2002, in which, Geeta Devi, grand
mother of the deceased, was the informant and appellant Ramesh
Kumar alongwith others were arrayed as F.I.R. named accused
persons for murdering Arti Kumari @ Bharti. Accordingly, the
appellant Ramesh Kumar was not victim and as such, he was not
covered under proviso to Section 372 of the Cr.P.C. Section 372 of
the Cr.P.C. contemplates that no appeal against acquittal shall be
filed, but it can be filed as per proviso to the said section, which
contemplates that victim would be entitled to maintain the appeal
against acquittal. It is necessary to reproduce Section 372 and
2(wa) Cr.P.C. below:-
"Section 372. No appeal to lie unless otherwise
provided - No appeal shall lie from any judgment or order
Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018
4/27
of a Criminal Court except as provided for by this Code or
by any other law for the time being in force:
Provided that the victim shall have a right to prefer
an appeal against any order passed by the Court acquitting
the accused or convicting for a lesser offence or imposing
inadequate compensation, and such appeal shall lie to the
Court to which an appeal ordinarily lies against the order
of conviction of such Court."
"Section 2(wa) - 'victim' means a person who has
suffered any loss or injury caused by reason of the act or
omission for which the accused person has been charged
and the expression 'victim' includes his or her guardian or
legal heir."
4. Since the appellant was not victim within the definition
of Section 2(wa) of the Cr.P.C., he was not entitled to maintain the
appeal. However, since the appeal against acquittal was already
admitted, at the moment, we are not passing any positive order on
the point of maintainability of the appeal i.e. Cr.Appeal (DB) No.
273 of 2011. In Cr.Appeal (DB) No. 101 of 2011, the appellant was
convicted by judgment dated 12th January, 2011 in Sessions Trial
No. 188 of 2003/01 of 2004 (arising out of Parihar P.S. Case No.
61 of 2002) by Sri Surendra Prasad Pandey, learned Additional
Sessions Judge, F.T.C. No. 3, Sitamarhi (hereinafter referred to as
the 'Trial Judge'). The appellant was held guilty and convicted for
commission of offence under Section 302 of the I.P.C. and Section
27 of the Arms Act. By order dated 17-01-2011, the appellant was
Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018
5/27
sentenced to undergo rigorous imprisonment for life under Section
302 of the I.P.C. and to pay a fine of Rs. 10,000/- (ten thousand)
and in default of payment of fine, the appellant was directed to
undergo further imprisonment for three years. By the same order
i.e. order dated 17-01-2011, the appellant was sentenced to
undergo rigorous imprisonment for five years under Section 27 of
the Arms Act and to pay a fine of Rs. 1,000/- (one thousand) and in
default of payment of fine, he was directed to undergo further
imprisonment for six months. All the sentences were directed to
run concurrently.
5. Short fact of the case is that on 13-12-2002 at about
18.45 hrs. (6:45 PM), fardbeyan of P.W.9 Geeta Devi W/o Ram
Sagar Prasad Yadav was recorded by S.I. Sri Arun Kumar Singh
(P.W.15) officer incharge Parihar Police Station at village Ghaghra
in the house of the informant Geeta Devi i.e. in the village
Ghaghra, Police Sttion Parihar, District - Sitamarhi. In the
fardbeyan, the informant disclosed that on the same date i.e.
13-12-2002at about quarter to 3 hrs. (2:45 PM), she was at her residence and then she got an information that her sugarcane was being cut by Ramesh Kumar (appellant) and his other associates. Thereafter, she alongwith her two grand daughters namely Arti Kumar @ Bharti aged about 4 years (deceased) and Pooja Kumari Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 6/27 (P.W.8) aged about 7 years went to her field of sugarcane and after arrival, she noticed that Surendra Rai, Nagendra Rai S/o Anand Rai, Bhabhichan Rai, Raghuvir Rai, Nagendra Rai S/o Bujhawan Rai, Anand Rai, Asharfi Rai and Gunjesh Rai, all residents of village Ghaghra, P.S. Parihar, as per instance of Ramesh Kumar (appellant), were cutting sugarcane and Ramesh Kumar (appellant) was sitting near the side of the field. Wife of Ramesh (appellant) Anshi Devi was standing there. Thereafter, she (informant) asked Ramesh as to why they were cutting sugarcane from her field, Anshi Devi started abusing her and on being prevented, she reached near her and caught her hair and thrashed her. Her both grand daughters were standing there. In the meanwhile, Ramesh (appellant) opened fire on her, then Pooja, who was standing beside her, started crying that blood is oozing out from the head of Bharti (deceased). Thereafter, Bharti fell down. After hearing the sound of firing from the pistol, her husband Ram Sagar Pd. Yadav (P.W.1) and her son Amar Kumar (P.W.3) runningly arrived there and thereafter, all the accused persons, after noticing her husband and son, started fleeing away and they finally fled away. The informant with her relatives thereafter lifted the injured Bharti and carried her to the residence and started for preparing for carrying her for treatment, however; in the meanwhile, Bharti died. The Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 7/27 informant further stated that in the morning of the same date also in relation to sugarcane, there was some altercation with her pattidar Ramesh (appellant). The informant claimed that all the accused persons conspiring with each other had come to cut the sugarcane and on being instigated by others, Ramesh had given shot of firing from his pistol and killed her grand daughter Bharti. After receiving information of the said occurrence, the police arrived there. She reiterated that all the accused persons conspiring together had instigated Ramesh Kumar (appellant) and thereafter, Ramesh Kumar had killed Arti Kumari @ Bharti by giving fire- arm injury from pistol. The said fardbeyan was read by the informant and thereafter, she put her signature.
6. On the basis of fardbeyan, on 13-12-2002 at 22.45 hrs (10:45 PM), a formal F.I.R., vide Parihar P.S. Case No. 61 of 2002, was registered for offence under Sections 302, 379, 120(B) of the I.P.C. and Section 27 of the Arms Act against following persons:
1. Ramesh Kumar (appellant),
2. Anshi Devi, wife of Ramesh Kumar,
3. Surendra Rai,
4. Nagendra Rai S/o Anand Rai,
5. Bhabhichan Rai,
6. Raghuvir Rai,
7. Nagendra Rai S/o Bujhawan Rai,
8. Anandi Rai, Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 8/27
9. Asharfi Rai and
10. Gunjesh Rai S/o Asharfi Rai.
7. After drawing formal F.I.R., police investigated the case and after investigation and finding the accusation true against (1) Ramesh Kumar (appellant), (2) Surendra Rai and (3) Nagendra Rai S/o Anand Rai, chargesheet was submitted on 14-03-2003 keeping investigation open against others. On 28-03-2003, learned Chief Judicial Magistrate, Sitamarhi took cognizance of the offences and after completion of formality under Section 207 of the Cr.P.C., on 17-04-2003, the case was committed to the court of sessions and it was numbered as Sessions Trial No. 188 of 2003. After commitment, on 22-01-2004, charge was framed under Section 302 of the I.P.C. and Section 27 of the Arms Act against appellant Ramesh Kumar and joint charge under Sections 302/34, 149, 120(B) and 379 of the I.P.C. was framed against all the three accused persons. During trial, to prove its case from the prosecution side, altogether 18 witnesses were examined. Out of 18 prosecution witnesses:
"P.W.2 Binod Manjhi, P.W.8 Pooja Kumari and P.W.9 Geeta Devi have been examined as eye-witnesses to the occurrence, whereas, P.W.1 Ram Sagar Prasad Yadav, husband of the informant (P.W.9), besides proving his signature on the fardbeyan as hearsay Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 9/27 witness, had seen the accused persons fleeing away after the occurrence.
P.W.3 Amar Kumar, father of the deceased Arti Kumar @ Bharti has also been examined as hearsay witness, since he was informed by the informant regarding the occurrence.
P.W.4 Rajeshwar Rai has been examined on the point that he had seen the accused persons immediately after the occurrence while fleeing away.
P.W.5 Kapal Rai and P.W.7 Maheshwar Rai are hearsay witness. Besides this, P.W.5 Kapal Rai had also proved his signature on inquest report and signature of Maheshwar Rai on inquest report and P.W.7 Maheshwar Rai, besides hearsay witness, is also witness to the inquest report.
P.W.6 Mahendra Rai is witness to the seizure list pertaining to recovery of seizure of blood soaked soil from the place of occurrence.
P.W.10 Jagdish Rai is also one of the witness to the seizure list relating to seizure of blood soaked soil and had put his L.T.I. P.W.12 Rambaso Devi is witness only on the point of occurrence.
P.W.18 Krishna Chandra Prasad is the formal witness, whereas, P.W.11 Ram Bachan Rai, P.W.13 Ramchandra Rai S/o Late Ram Awatar Ram and P.W.17 Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 10/27 Binda Rai were declared hostile witnesses by the prosecution.
P.W.16 Dr. Arjun Chaudhary was posted on 14-12-2002 as Civil Assistant Surgeon in Sadar Hospital Sitamarhi and he had conducted post-mortem examination on the dead body of deceased and he proved post-mortem examination report, which was marked as Ext.4.
P.W.15 Arun Kumar Singh is the investigating officer of the case."
8. After conclusion of the prosecution evidence, on 05-04-2006 evidences and circumstances, collected during trial against the appellant, were explained to the appellant and his statement under Section 313 of the Cr.P.C. was recorded, in which, he claimed that he was falsely implicated and he further claimed that informant side had killed Arti and in deep-rooted conspiracy, they had falsely implicated the appellant and others, whereas, other accused persons, who were put on trial, simply claimed to be innocent and falsely implicated. Thereafter, from the defence side also, altogether five witnesses were examined, who are:
D.W.1 - Ram Nath Rai, D.W.2 - Rajdeo Rai, D.W.3 - Jagarnath Rai, D.W.4 - Bindeshwar Rai, and Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 11/27 D.W.5 - Shyam Sundar Rai.
9. Sri Jai Prakash Verma, learned counsel for the appellant, after placing entire evidence, has argued that it was out-and-out case of false implication. According to him, on the basis of evidence of defence witnesses as well as evidence of some of the prosecution witnesses, though they have turned hostile, it appears that the deceased was done to death by the informant side and falsely the appellant was fixed, as accused. The reason for false implication of the appellant has been explained by learned counsel for the appellant that the place of occurrence i.e. field of sugarcane was virtually purchased jointly by the appellant and his brother Ram Sagar Pd. Yadav (P.W.1), who was own grand father of the deceased. The said purchase was made through registered sale- deed in the year 1982. He further submits that just one year prior to the occurrence in the year 2001, the appellant had filed a partition suit and thereafter, a petition was filed by the appellant in the partition suit for appointment of receiver, in the meanwhile, in a well designed manner, the informant side, who were having criminal antecedent relating to serious offences, themselves had killed minor girl. In the occurrence, Ram Sagar Pd. Yadav had gunned down Arti Kumari @ Bharti the deceased. Witnesses had seen that after the occurrence Ram Sagar Pd. Yadav carrying gun Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 12/27 on his arm had carried the deceased in his lap and he was seen moving by number of witnesses. He submits that most of the witnesses, who had come forward to support the prosecution case, are none else, but close associates of informant side. Some of the witnesses were either labourer of the informant side or some of the witnesses were accused alongwith P.W.1 in number of cases. It has been argued that considering the criminal antecedent of the witnesses, including informant, this Court may not place much reliance on their evidence, rather their evidences may be examined with caution. It has further been argued that informant of the present case Geeta Devi was earlier Mukhiya of the locality and she was also accused in number of cases. Besides her, her husband Ram Sagar Pd. Yadav was involved in number of serious cases, which has come during evidence. He further submits that during evidence, the fact has come that the informant had earlier lodged a false case regarding kidnapping of a child. However, during investigation, accusation was not found true and thereafter, finally police recommended for prosecution of the informant Geeta Devi under Section 211 of the I.P.C. Regarding evidence of P.W.8 Pooja Kumari, learned counsel for the appellant has argued that she has not deposed exactly the same thing, which was purported to be stated during investigation and her statement under Section 161 of Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 13/27 the Cr.P.C. According to him, P.W.8 was in the custody of the informant side and being tutored, she had deposed during the trial, in which, she alleged, as if, she was witness to the occurrence, in which, the appellant had said to fire from the pistol, which hit Arti Kumari @ Bharti (deceased). He further submits that immediately after the occurrence, the appellant had filed an application to the officer incharge of Parihar Police Station that in the occurrence, P.W.1, P.W.2 and P.W.3 had killed the girl, but police did not entertain the petition and thereafter, the appellant was arrested and sent to judicial custody.
10. According to Sri Verma, while appellant was in judicial custody, he had sent a prisoner letter to the court for lodging a case against informant and other witnesses of the present case in relation to murder of Arti Kumar @ Bharti, who is victim in the present case and since no action was taken, while he was in judicial custody, he filed a complaint petition, which was numbered as Complaint Case No. C1-208 of 2003, in which, after inquiry, the learned Magistrate took cognizance of offence on 10-06-2005 under Sections 302, 302/34, 120(B) of the I.P.C. and Section 27 of the Arms Act and case was subsequently committed to the court of sessions on 13-09-2006 and in the case, charge was framed on 31-10-2006 jointly against all the three accused of the complaint Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 14/27 case i.e. Ram Sagar Rai, who is P.W.1 in the present case, Geeta Devi, P.W.8 of the present case, and Amar Kumar, P.W.3 of the present case. After framing of the charges from complainant side, altogether 17 witnesses were examined, in which, three witnesses were examined, as eye-witnesses, who are P.W.3 Ram Naresh Rai, P.W.4 Shyam Sundar Rai and P.W.9 Shatrughan Rai. He submits that despite the fact that the witnesses in the complaint case had supported the case, to the reasons best known to the learned Trial Judge, all the accused persons of the complaint case were acquitted and same judgment has been assailed by the appellant in Cr. Appeal (DB) No. 273 of 2011.
11. Sri Verma, learned counsel for the appellant has further argued that for the time being, if it is assumed that this appellant in his complaint case had not been able to establish the case against informant side of the present case, in view of such inconsistent evidences as well as unreliable prosecution witnesses, the appellant deserves to be acquitted by way of extending the benefit of doubt.
12. Sri Ajay Mishra, learned Addl. Public Prosecutor has vehemently opposed the appeal, which has been filed by the appellant against his conviction. He submits that even if for the time being, evidences of other witnesses may be ignored, but the evidence of P.W.8 (in Cr.Appeal DB No. 101/2011) is sufficient to Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 15/27 fasten liability on the appellant and this is the reason, he submits that judgment of conviction and sentence may not be interfered with. Regarding Cr.Appeal (DB) No. 273 of 2011, he has argued that the appellant in a calculated manner, while he was taken into custody and was inside the jail, much belatedly in the year 2003, he filed a complaint while he was in judicial custody and case was initiated on such complaint. He further submits that the learned Trial Judge has correctly dismissed the case filed by the appellant against informant and others of the present case. According to him, the judgment of acquittal requires no interference. Besides this, he has argued that appeal itself is not maintainable, being not filed by the victim under proviso to Section 372 of the Cr.P.C.
13. Besides hearing learned counsel for the parties, we have also minutely examined the evidences on record. Before proceeding, it would be necessary to firstly examine the evidence of the informant i.e. P.W.9 Geeta Devi, who has claimed to be eye- witness.
14. In her evidence, P.W.9 had tried to justify regarding the fact disclosed in her fardbeyan. She during trial has proved her signature on the fardbeyan, which was marked as Ext. 1/3 and also proved signature of her husband Ram Sagar Yadav (P.W.1) on the fardbeyan, which was marked as Ext. 1/6. On examination of her Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 16/27 evidence, the very stand taken by the informant that after knowing the fact that in the sugarcane field of informant, the appellant with his other associates had assembled and forcibly cutting sugarcane, her visit to the place of occurrence alongwith two minor children appears to be doubtful. In the fardbeyan, she states that she got information that accused persons had assembled in the sugarcane field and cutting sugarcane, but during her deposition, she states that from the roof of her house, she had seen the accused persons in the field and thereafter, with her two minor grand daughters, she went to the sugarcane field. Once from her roof, she had noticed that accused persons in number had assembled in the sugarcane field, regarding which in the morning also, altercation had taken place in between informant side and appellant side, in normal course, there was no reason for the informant to visit the place of occurrence with two minor children. Ofcourse, only on this score, her entire evidence may not be brushed aside, but at the same time, her conduct is also required to be examined. In her evidence, this fact has come that she had functioned as Mukhiya of the locality and she was accused in number of cases. The evidence has also come that just one year prior to the occurrence, the appellant had filed a partition suit, which was pending in the court of Sub-Judge. In the said partition suit, the appellant had filed a petition for Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 17/27 appointment of receiver. This fact is also not in dispute that the same plot, on which occurrence had taken place, was jointly purchased by the appellant and husband of the informant, who is P.W.1 Ram Sagar Pd. Yadav. It is clarified that Ram Sagar Pd. Yadav is the own brother of the appellant (Ramesh Kumar). Besides the said civil partition suit, other criminal cases were also pending in between the parties. The informant in paragraph - 5 of her cross-examination has accepted that prior to date of occurrence, one case was pending with Ramesh Rai (appellant) of the present case. She further deposed that while she was Mukhiya, the appellant had fraudulently withdrawn Rs. 65,000/- (sixty five thousand), for which also, a case was going on and in paragraph - 7, she had denied the suggestion that for misappropriation of 1.5 lac public money with one agent, on the basis of report of Panchayat Sevak, an inquiry was pending. Similarly, in paragraph
- 8, she stated that in Parihar P.S. Case No. 27 of 1994 for offence under Section 420 of the I.P.C., she remained in jail for three months. She accepts in the same paragraph that on her complaint, one Parihar P.S. Case No. 36 of 1988 was initiated against Anand Rai, Suresh Rai, Birendra Rai and others, however; during investigation police found the case as false and recommended for her prosecution under Section 182/211 of the I.P.C. However, Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 18/27 subsequently she denied this fact. In paragraph 9 of her cross- examination, she claimed that she was not remembering that she had filed a case, vide Parihar P.S. Case No. 14 of 1995 against appellant Ramesh, however; police had submitted final form in the said case. She also deposed that she was not recollecting as to whether Ramesh (appellant) had filed a civil suit in the court of Sub-Judge I against her husband and her uun (husband's sister). Her attention was drawn to her previous statement recorded under Section 161 of the Cr.P.C. on the point as to whether she had earlier stated that she had seen the occurrence from her roof and none had disclosed about the occurrence to her. Her attention was further drawn to her previous statement to show that she had not deposed truly, which she had stated during investigation. In paragraph 15, she flatly denied that she was not knowing as to whether against her and her family, Ramesh (appellant) had filed a case relating to murder of Arti. At this juncture, it is necessary to indicate that finally on her cross-examination she was discharged on 10-09-2004, whereas, from the appellant, on the basis of his complaint, the learned Magistrate after conducting inquiry had already taken cognizance of offence on 28-03-2003 regarding involvement of the informant (P.W.9), P.W.1 Ram Sagar Prasad Yadav and P.W.3 Amar Kumar. The complaint was already filed by Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 19/27 the appellant on 22-02-2003 itself and subsequently after inquiry, cognizance order was passed and case was committed to the court of sessions, in which, this informant was also tried as accused. Considering the conduct of the P.W.9 (informant), her evidence does not inspire confidence.
15. P.W.1 Ram Sagar Prasad Yadav is the husband of the informant of the present case. During his evidence, he proved his signature on the fardbeyan, which was marked as Ext. 1. In his evidence, he stated that after hearing the sound of firing, he reached to the place of occurrence and he claimed that he had seen the accused persons including the appellant while fleeing away after the occurrence and thereafter, his wife, who is P.W.9, has informed him as to how occurrence had taken place. In paragraph 5 he accepts that his wife Geeta Devi (P.W.9) was Mukhiya of Mahadevpatti Panchayat. In paragraph 6 of his cross-examination, he stated that he was not in a position to recollect as to whether his wife Geeta Devi was accused in number of cases and she also remained in custody, whereas, in the evidence of Geeta Devi (P.W.9), she herself had stated that at least in one case she remained in custody for three months. This conduct of P.W.1 certainly creates serious doubt on his credibility. Besides this, it has come that this witness was accused in number of cases namely:
Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 20/27 "(i) Parihar P.S. Case No. 3/92 for commission of offence under Section 379 I.P.C., in which, he was sentenced for six months.
(ii) Parihar P.S. Case No. 74/92 registered for offence under Section 302 I.P.C., in which, he was held guilty and convicted to undergo imprisonment for life.
(iii) Parihar P.S. Case No. 5/83 for offence under Section 395 I.P.C.
(iv) Sursand P.S. Case No. 10/83 for offence under Section 395 I.P.C.
(v) Valgaha P.S. Case No. 7/83 for offence under Section 307 I.P.C.
(vi) Parihar P.S. Case No. 30/86 for offence under Section 307 I.P.C."
In paragraph 6, he categorically denied that he was never detained under Crime Control Act Case No. 7/95. He accepted that in Parihar P.S. Case No. 51/95 regarding explosion of bomb a session trial was going on in F.T.C.-4 against him, however, falsely he said that all the cases were politically motivated. In paragraph 7, he deposed that his wife Geeta Devi had filed a case against accused Anand Rai and others, vide Parihar P.S. Case No. 37/98, in which police had submitted final report. Since his son was subsequently found and thereafter, police had filed a case against his wife for offence under Section 211 of the I.P.C. Besides aforesaid cases, there are other number of cases, which have been referred in his evidence. In paragraph 8, he accepts that for Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 21/27 misappropriation of government fund, a defalcation case was instituted against his wife Geeta Devi (P.W.9), in which, she was bailed out by the order of the High Court. In preceding paragraphs of his evidence, he denied on the point that his wife was sent to jail, however contrary to his own stand in paragraph 8, he accepts that his wife was subsequently granted bail. This suggests regarding the conduct as well as veracity of this witness. In paragraph 10, he denied his involvement regarding number of cases of dacoity, loot, under Arms Act, kidnapping, Explosive Substances Act and also civil case. Even in the evidence, it was deposed that his son P.W.3 was asked to inform the police, but this stand has also been contradicted by the witness side. His attention was also drawn to his previous statement recorded under Section 161 of the Cr.P.C., which has been dealt with in paragraph 14 of his cross-examination. Similarly, at the time of examination of the investigating officer i.e. P.W.15, the investigating officer was confronted regarding the statement of this witness, which suggests that the P.W.1 has not exactly stated same thing, which was stated during investigation. In paragraph 15, he denied the suggestion that with a view to grab land, the appellant (Ramesh) was falsely implicated in a deep rooted conspiracy regarding murder of his Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 22/27 younger grand daughter, in which, it was suggested that he himself had killed his grand daughter. This suggestion was denied.
16. P.W.3 Amar Kumar son of the informant virtually had stated that he was informed by his mother regarding the occurrence. Besides this, he stated that after hearing sound of firing, he alongwith his father P.W.1 went to the place of occurrence. In his evidence also, there are number of serious contradictions.
17. P.W.2 Binod Manjhi has been introduced as witness to the occurrence, but on minutely examination of his evidence, it appears that he is not truthful witness, since repeatedly on being asked as to whether he was having any connection with the land of Ram Sagar Pd. Yadav or had he worked as labourder of Ram Sagar Pd. Yadav, he denied the same. However, in paragraph 12 of his cross-examination, he himself accepted that he was doing labourer work of Ram Sagar Yadav. This again suggests regarding doubtful credibility of witness.
18. In this case, P.W.8 Pooja Kumari ofcourse has supported the prosecution case, but at the time of occurrence, she was aged about 7 years and at the time of deposition, her age was assessed as 9 years. Though she claimed to be eye-witness to the occurrence, her attention was drawn to her previous statement recorded under Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 23/27 Section 161 of the Cr.P.C., in which, it has been noticed that she had not exactly deposed as per her previous statement. Moreover, fact remains that Pooja Kumari was produced from the custody of the informant side and as such, only on the basis of evidence of Pooja Kumari, it is difficult to come to a definite conclusion, as if, in the occurrence the appellant was actually involved or not. Otherwise, evidence of P.W.14 Ramchandra Rai suggests that the defence, which was taken by the appellant during trial, was true. In his evidence, in paragraph - 1, he stated that on the date of occurrence in the field of appellant, he had seen Ram Sagar Rai PW.1 carrying gun in his arm and he was carrying the dead body of his grand daughter. Even some of the prosecution witnesses have stated that land, on which occurrence had taken place, was in possession of the appellant.
19. P.W.11 Ram Bachan Rai ofcourse was declared hostile, but in his examination-in-chief, he himself had stated that he had heard that Ram Sagar Rai (P.W.1) himself had murdered his grand daughter. Ofcourse, subsequently he was declared hostile and his attention to his previous statement under Section 161 of the Cr.P.C. was drawn, but those evidences certainly suggest something otherwise.
Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 24/27
20. The doctor, who conducted post-mortem examination on the dead body of deceased, was examined as P.W.16 namely Dr. Arjun Chaudhary, who was posted on 14-12-02 as Civil Assistant Surgeon, Sadar Hospital, Sitamarhi and he has proved the post- mortem examination report. In the post-mortem examination of the dead body, he found following facts:-
"External Findings:
(i) Lacerated wound over left side of palm (Lateral side), size - ½" x ⅙" with blood & blood clot.
(ii) Lacerated wound small hole with charred margin over left temporal region, size - ¼" x ⅙" x cavity deep.
(iii) Lacerated wound inverted hole with charred margin over left chick.
(iv) Lacerated wound inverted hole over left side forehead (multiple in numbers) with blood & blood clot.
Internal findings:-
On opening of skull - Lt. Frontal and temporal bone fracture in multiple pieces few pillets (about 5 in numbers) recovered from cranial cavity. Brain matter lacerated and filled with blood and blood clots.
On opening of neck - N.A.D. On opening of thorex - both lungs intact & pale. Heart intact.
On opening of Abdominal cavity - all abdominal vesra intect & pale. Stomach contains semi digested food particles. Urinary bladder partially failed.
Time elapsed since death - within 24 hours. Opinion - The cause of death was due to haemorrhage and shock as a result of above noted injury caused by fire-arm."
Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 25/27 On examination of the evidence of P.W.16 Dr. Arjun Chaudhary, it is evident that injury was caused from very close range, however; the deposition of the witnesses does not suggest that firing was made from close range. This also creates some doubt in the mind of the Court.
21. Besides this, in statement recorded under Section 313 of the Cr.P.C., the appellant has taken the defence that the informant side themselves had killed the minor girl and falsely implicated the appellant. At this juncture, it would be necessary to simply incorporate statement of the appellant recorded under Section 313 of the Cr.P.C., which is reproduced hereinbelow:-
"iz"u & D;k vkius lkf{k;ksa dk O;ku lquk gS ? mRrj & th gka, lquk gS A iz"u & vkids fo:} lk{; gS fd vkius fnukad 13&12&2002 dks 3 cts "kke dks xzke ?kk?kjk Fkkuk ifjgkj ftyk & lhrke<+h esa 'kM~;a= jpdj vkil esa ,d er gksdj uktk;t etek cukdj lwfpdk xhrk nsoh dh iksrh vkjrh dqekjh mQZ Hkkjrh dks fiLrkSy ls xksyh ekjdj gR;k dj fn;k ? mRrj & xyr ckr gSA iz"u & vkidks lQkbZ esa D;k dguk gS ? mRrj & vkjrh dh gR;k [kqn muyksxksa us gh xksyh ekj dj dh gS rFkk 'kM~;a= dj gR;k ds vkjksi esa gesa Qalk fn;k gS tcdh geyksx funksZ'k gSaA"
22. On going through the statement recorded under Section 313 of the Cr.P.C., the Court is satisfied that this provision was Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 26/27 followed only to show completion of formality. On bare perusal of statement recorded under Section 313 of the Cr.P.C., it is evident that prosecution has not explained each and every evidences and circumstances collected against him and as such, the whole trial on the basis of non-compliance of Section 313 of the Cr.P.C. appears to be only completion of formality and violation of statutory provision. It is also contrary to the law laid down by the Hon'ble Supreme Court in a case reported in AIR 1984 SC 1622 (Sharad Birdichand Sarda Vs. State of Maharastra).
23. On minutely examination of entire evidence, at least, the Court is satisfied that the prosecution has not proved its case beyond all reasonable doubt and as such, the appellant deserves to be given benefit of doubt.
24. Accordingly, by way of extending benefit of doubt to the appellant, the judgment of his conviction dated 12-01-2011 and order of sentence dated 17-01-2011 passed by Sri Surendra Prasad Pandey, learned Additional Sessions Judge, F.T.C. No. 3, Sitamarhi in Sessions Trial No. 188 of 2003/01 of 2004 (arising out of Parihar P.S. Case No. 61 of 2002) is hereby set aside and appeal i.e. Cr.Appeal (DB) No. 101 of 2011 is allowed.
25. The appellant, who is in custody, is directed to be released forthwith, if not required in any other case, since his Patna High Court CR. APP (DB) No.101 of 2011 dt.28-03-2018 27/27 judgment of conviction and sentence has already been set aside.
26. Similarly, we have minutely examined the evidences brought in Cr.Appeal (DB) No. 273 of 2011 and after going through the entire evidence, it is difficult to place much reliance on evidences of so called eye-witnesses namely P.W.3 Ram Naresh P.W.4 Shyam Sundar Rai and P.W.9 Shatrughan Rai. Moreover, the appellant of the present appeal is not direct victim and as such, he was also not entitled to maintain the appeal. Since the appellant Ramesh Kumar has been extended benefit of doubt and as such, it would not be appropriate to consider the judgment of acquittal passed in Sessions Trial No. 542 of 2006/108 of 2006 (arising out of Case No. C1-208/03) as perverse regarding which, Cr.Appeal (DB) No. 273 of 2011 has been filed and accordingly, the appeal i.e. Cr. Appeal (DB) No. 273 of 2011 stands dismissed.
(Rakesh Kumar, J.)
( Arvind Srivastava, J.)
Anay
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 07.04.2018
Transmission Date 07.04.2018