Patna High Court
Hazari Choubey And Ors. vs State Of Bihar on 14 May, 1987
Equivalent citations: 1988(36)BLJR156
JUDGMENT
Prabha Shankar Mishra and Abhiram Singh, JJ.
1. The appellants herein have been convicted under Section 395 of the Indian Penal Code, Order sheet of the appeal shows that initially Mr. Syed Alamdar Husain appeared for the appellants but it transpired that appellant Hazari Chaubey had-somehow managed his release on bail on a forged bail order fabricated to have been passed by R. N. Prasad, J. one of the Hon'ble Judges of this Court and noticing that the said release was unauthorised this Court declined to release him on bail during the pendency of the appeal and directed for an enquiry into the forgery of the order. Mr. Hussain, however, got his appearance cancelled and the appellants were thus given notice by this Court to appear through a counsel of their choice. After notice by this Court, the appellants have entered appearance through M/S Ram Bhushan Pandey and Girish Chandra Sharma, Advocates. The appeal was listed for hearing on May 13, 1987. Since no one appeared on behalf of the appellants, the Court found it difficult to proceed with the hearing of this case without the appellants being represented at the hearing of the appeal. Mr. Hariji Upadhaya, however, agreed to appear Amicus Curiae for the appellants and accordingly we permitted him to appear and represent the appellants.
2. The facts of this case are tell-taled. In the night of the 1st/2nd October, 1979, the informant Taj Bali Ram (P. W. 7) was sitting on a Chouki in front of his house along with a small child and an uncle of village relationship. A mob consisting of several persons with fire arms and other deadly weapons arrived. 15-20 of them went towards the Zanani Kita of the house of Bishwanath Rai (P. W. 8) and the informant and they started indiscriminately firing from their guns and rifles. A group entered into the Zanani Kita of the house of the informant and two of them climbed on the upper floor and fired from their guns and one of them who was carrying Bhala acted as watchman of the movement in the Gali leading to the house of the informant. Some of the dacoits surrounded the informant and abused him. The mob remained for about 45 minutes in the Zanani Kita and committed loot pat. After committing dacoity and looting properties of several lacs, the mob fled away. After the departure of the dacoits, the informant went into the house. He, however, found that the dacoits had not touched any female members of the family or any child but had broken open the doors, indiscriminately fired and ransacked the house. He lodged the information about the occurrence at Mohania police station. In the first information report, he claimed that he identified the appellants and also stated that other witnesses had identified the accused person.
3. In the eventual trial, the prosecution examined as many as nine witnesses including the informant, his brother Bachan Singh and other eye-witnesses. P. W. 9. Lal Bahadur Singh has deposed that he had taken over the investigation of the case from the officer who had initially held the local inspection and recorded the statement of the witnesses under Section 161 of the Code of Criminal Procedure but Brameshwar Nath Choubey, who was the Officer-incharge of Mohania police Station and had recorded the fardbeyan and investigated the case, was not examined as a witness. The learned Session Judge has said that inspite of all sincere efforts taken by the prosecution Brameshwar Nath Choubey could not be examined.
4. Deposing as P. W. 7 the informant had narrated that he was sitting on a Chouki on a Chabutara along with a small child and his neighbour Dwarika Rai (P. W. 1) who was sitting on a separate cot. A lantern was burning in the Oriyani of verandah of the Dalan. They heard sound of gun firing coming from the Zanani Kita of the house of Bishwanath Rai (P. W. 8) and also heard voice of men using abusive language. Suddenly 15 to 20 dacoits came towards the house of the informant and from the Zanani Kita of the house of Bishwanath 'Rai (P. W. 8). 5 to 7 dacoits surrounded the informant and Dwarika Rai on the Chabutara, The rest of them entered into the Zanani Kita of the house of the informant through the outer exit door. From amongst those who entered into the Zanani Kita, two of them went on the roof of the house and started firing from their gun and rifle. He has stated that the dacoits committed loot pat in his house and that of Dwarika Rai (P. W. 1) and also made attempt to commit dacoity in the granary of Bishwanath Rai (P. W. 8). The dacoits, according to him, removed properties worth several lacs of rupees kept in boxes including cash, ornaments and clothes. He has claimed to identify the appellants by name and has stated that appellant Hazari Choubey was armed with a rifle and appellants Hazari Choubey and Ram Niwas Pandey had gone to the upper floor of the house of the Zanani Kita and fired from their respective weapons. P. W. 1 Dwarika Rai has corroborated the testimony of the informant in the court and has also claimed to identify the appellants.
P. W. 2 Sheomangal Rai has stated that he was sitting on the Darwaza of Bishwanath Rai and Shyama Rai and Samu Rai was lying on a cot when the dacoits arrived. He saw 15 to 20 dacoits came into the Gali from the south who were armed with rifles, gun etc. Two of the dacoits came near the place where he was sitting and others entered into the house of the informant. The dacoits, who had come near him fired from their gun due to which he became horrified. He and Shyama Rai tried to flee away but could not, since the dacoits were asking them to sit. He has said that he identified appellant Ramashis Pandey amongst those who had stood near him, P. W. 3 Rajnarain Singh has stated that he had just taken his meal and had come out of his house when he heard some voices using abusive language. He came at the darwaza of one Had Singh after scaling the boundary wall of the house and saw some persons coming towards that side. He has deposed that he identified the appellants amongst the dacoits P. W. 4 Parmatma Singh, who is the son of P. W. 1 Dwarika Rai, has deposed about the occurrence but has not been able to identify any of the appellants. P. W. 6 Sheo Kumar Rai has stated that he was at his darwaza and saw the occurrence. He has claimed to have identified appellants, Hazari Choubey and Ram Niwas Pandey who, according to him, were carrying rifle and gun respectively and firing from their respective weapons. P. W. 8 Bishwanath Rai is a witness of the seizure of some of the objective features like empty cartridge etc. P. W. 6 is not an eye-witness but his evidence is relevant as he has claimed to have filed a list of the stolen articles with the police.
5. One cannot say from the evidence on the record that the prosecution has no material evidence to prove the case and if the oral testimony alone has to receive consideration, one can safely conclude that the alleged dacoity was committed in the house of the informant and that P. W. 1 Dwarika Rai and the appellants were identified by the witnesses amongst the dacoits. Certain aspect of the case, however, must receive consideration before we judge the case of the prosecution. In the report lodged with the police the informant stated that several properties were stolen by the dacoits valued at rupees 2 lacs but added that relevant details of the stolen properties could be provided by his brother. P. W. 5 has deposed in the court that he filed a list of the stolen articles after his return from Patna on 10-10-1979. He has proved a list which contains description of the stolen articles and their value. There is no endorsement, however, on the said document by the police and there is nothing on it to show that it was really filed on 10-10-1979 as claimed by P. W. 5. The prosecution has come out with a description of the occurrence in which, according to the witnesses, the appellants and other miscreants indiscriminately fired from riflle and gun, doors were broken open and the houses of the informant and P. W. 1 were ransacked. They have thus deposed that the dacoits left several marks of violence at the place of the occurrence. P.W. 8 has deposed that Brameshwar Nath Choubey who arrived after receiving the information held local inspection and found several objects including empty cartridges at the place of the occurrence. Brameshwar Nath Choubey has not been examined for the reasons best known to the prosecution.
6. In the case of S. K. Rashid and Ors. v. The State of Bihar 1987 (35) B.L.J.R. 335 (H.C.) a Division Bench of this Court of which I was a member, has taken notice of recalcitrance and recessive tendency of the police personnel and observed that they are taking process of the courts most lazily and casually. Commenting upon the existing state of affairs, this court has said that non-examination of investigation officer is not necessarily fatal to the prosecution. A court has to see whether the evidence of the investigating officer is essential for the case of the prosecution to succeed or not. If it finds that no genuine complain of denial of fair play or prejudice to the defence can be made in a particular case, it may pronounce its judgment without insisting for the examination of the investigating officer In a case however, in which there are genuine reasons to think that the defence can legitimately complain of denial of opportunity but demonstrate that the prosecution has not correctly stated its case or it has otherwise been prejudiced it must insist for the examination of the Investigating Officer. Non-examination of the investigating officer in that situation may profit the defence that benefit of doubt as to the veracity of the prosecution case. The Court has expressed alarm, however, about ever increasing default on the part of the prosecution in examining the official witnesses more often the investigating officer and has said :
What has alarmed us, however, is the recessive tendency of the police personnel. They are taking the processes of the Court lazily and casually as they can. as they have no priorities for the proceedings in the courts one before attending to the other works for which they have their reasons of preference. As in this case in many other cases Courts have to face a predicament which the prosecution alone can solve, seldom however comes with any solution, but to tell the Court that it has no witness to examine and to take summons only to inform the court that has heard nothing from the police about the service thereof. Several adjournments given by the Court at the instance of the prosecutor only for ensuring the attendance of the official witnesses including the investigating officer keep the trials pending for years and even after inordinate wait, the Courts are compelled to decide the cases without their evidence.
In S. K. Rashid's case (supra) the Court has taken notice of the amendment in the Code of Criminal Procedure by the State of Uttar Pradesh providing for imposition of punishment upon the defaulting official witnesses both judicially and administratively and has observed :
It is high time that in the State of Bihar also some provisions are made and in case it is found that a certain officer of the State has ignored the summons or warrant of the Court, adequate action is taken against him. The administration of the State, even without any such amendment is fully empowered and competent to take notice of the defaults of its officers in responding to the summons and warrant of the Court and it can immediately start taking notice of the conduct of the investigating officers of the police by suitably punishing them by recording remarks in the shape of black marks in their service books.
7. The Courts have to depend upon the machinery provided by the State Government for service of notice and summons, particularly for execution of warrant of arrest the police has to act. The law for ensuring appearance of witnesses provides for courts issuing processes including warrants of arrest. When they issue warrant, compliance thereof has to be reported by the police. Lamentations and even reprimands have failed to awaken the police administration of the State. Until now the administration of the State has not shown any awareness much less concern to ever detonating investigation and ever increasing default of its officers in providing necessary evidence to the Court.
8. In the instant case, the prosecution may not have needed the evidence of the Investigating Officer and its evidence would have provided sufficient material for holding the appellants guilty but for the facts that witness to state that there were marks of violence at the place of the occurrence and the Investigating Officer had found such marks and materials which could show that the dacoits have indiscriminately fired from their respective fire arms and caused damage to the houses of the informant and Dwarika Rai (P. W. 1). The defence could use in the trial, any fact found by the investigating officer which was consistent with the prosecution evidence in the court relying upon it to say that the prosecution case should not be believed. The Investigating Officer would have provided the missing link in the evidence of P. W. 5 to prove the list which he, according to his deposition, had filed with the police. His acknowledgement that he had received the list would have completed the evidence and proved that the list of stolen articles was delievered to the police by the brother of the informant. His deposition, as a witness, particularly on the facts of this case would have removed doubt as to the veracity of the testimony of the witnesses or would have in the event of material contradictions destroyed their evidence altogether. His non-examination has resulted in denying to the defence opportunity to test the veracity of the prosecution case as well as the veracity of the deposition of the prosecution witnesses.
9. The learned Sessions Judge, as already noted, and has said that the Investigating Officer could not be examined inspite of all sincers afforts. Does it mean that all that a court of law is required to do is to issue process and if the prosecution is unable to secure attendance of essential witnesses, ignore it and proceed to deliver judgment. That, in our opinion shall be giving to the erring officer (investigating officer) encouragement to ignore processes of the Court and decide either to connive with the prosecution or with the defence. This case by way of illustration can be cited as an example of the Investigating Officer providing to the defence a weapon to defeat the process of law by just deciding not to depose as a witness. No reason can justify non-examination of an essential witness. The Administration of the Government of the State of Bihar has to take the blame and it alone has to suffer the consequences.
10. In our considered view since non-examination of the investigating officer has denied to the defence opportunity to test the veracity of the prosecution case and the varacity of the evidence of the witnesses their conviction for an offence under Section 395 of the Indian Penal Code by the learned Sessions Judge is not sustainable.
11. We would have considered remitting the case for re-trial and examining the investigating officer and rehearing the matter but for the fact that the occurrence had taken place in October, 1979 speedy and public trial is the hall mark enshrined in Article 21 of the Constitution of India. Re-trial after a lapse of about eight years shall be in the teeth of the said right. A re-trial, in our view, therefore, shall be a miscarriage of justice.
12. We cannot, however, refrain from taking notice of the failure of the State Government in exercising the control upon its police force and not punishing defaulting officers for such serious dereliction as one in the instant case. Only way to deal with the matter is to award a cost of Rupees twenty thousand against the State Government to compensate the informant for the loss that has been occasioned only on account of the default of the investigating officer in not discharging his duty in accordance with law. It shall be open to the State Government to proceed against the officer (investigating officer) and realise from him the cost awarded against it and compensate itself accordingly.
13. We are making this order keeping in view the submissions of the learned Advocate General who has agreed that it is high time for administration of the Government of the State to read the writing on the wall and shake its lethargy office, He has, however, suggested that a modest beginning be made and so we keep the cost limited to a sum of Rs. 20,000-(twenty thousand) only although, according to the evidence on the record, the informant had sustained a loss of about two lakh rupees in the dacoity.
14. In the result, the appeal is allowed, the conviction of the appellants under Section 395 of the Indian Penal Code is set aside and they are acquitted of the charges levelled against them. The appellants are directed to be released forthwith if not required in any other case.
The State Government is directed to pay a sum of Rs. 20,000- (twenty thousand) to the informant within a period of three months.