Patna High Court
Ram Lakhan @ Ram Chandra Mehto & Ors vs State Of Bihar on 14 November, 2014
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh, Jitendra Mohan Sharma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.53 of 1992
Against the judgment of conviction and order of sentence both dated
31.03.1992passed by Shri V.D. Mandal, 3rd Additional Sessions Judge, Madhepura in Sessions Case No. 40 of 1986.
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1. Ram Lakhan @ Ram Chandra Mehta, son of Sukhdeo @ Sugdeo Mehta
2. Jagdish Mehta, son of Sukhdeo @ Sugdeo Mehta
3. Ramdhari Mehta, son of Sukal Mehta
4. Parmeshwari Mehta, son of Ramdhari Mehta
5. Bijal @ Bindeshwari Mehta, son of Bhupi Mehta
6. Kapleshwar Mehta @ Kameshwar Mehta, son of Bhupi Mehta
7. Makhan Mehta, son of Sukhdeo @ Sugdeo Mehta
8. Kamleshwari Mehta, son of Sukhdeo @ Sugdeo Mehta .... .... Appellants Versus State of Bihar .... .... Respondent =========================================================== Appearance :
For the Appellants : M/s Sharda Nand Mishra,
Ranjan Kumar Jha and
Dhananjay Kumar Gupta, Advocates.
For the Respondent : Mr. Ajay Mishra, A.P.P.
=========================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) Date: 14-11-2014 The eight appellants have preferred this appeal against their conviction under sections 302/34 and 201 of the Indian Penal Code (for short `I.P.C.') and sentence as awarded of rigorous imprisonment for life by judgment and order dated 31.03.1992, passed by the 3rd Additional Sessions Judge, Madhepura in Sessions Case No. 40 of 1986.
2. When the appeal was taken up, learned counsel for the Patna High Court CR. APP (DB) No.53 of 1992 dt.14-11-201 2/14 appellants stated that appellant no.3 Ramdhari Mehta and appellant no.7 Makhan Mehta have died during the pendency of this appeal. We have no reason to disbelieve the said statement. This appeal, in so far as these two appellants is concerned, accordingly, abates.
3. Having heard Mr. Sharda Nand Mishra, learned counsel for the remaining appellants ( hereinafter referred to as `the appellants' for the sake of convenience) and Mr. Ajay Mishra, learned A.P.P. for the State, we must record our anguish and surprise about the manner in which the trial court has dealt with this case. It is an example of what ought not to be done rather than an example of what should be done. We are surprised that any conviction could at all be recorded in the facts and circumstances, which will be shown hereinafter. Suffice to say the learned Additional Sessions Judge has taken up the role of the prosecutor as in absence of any evidence having been brought on record by the prosecution, he has looked into the case-diary, statements of the witnesses therein, the seizure list and the reports as available therein solely on the basis thereof that he has convicted the appellants. All such materials, which the prosecution has not brought on record as evidence inspite of full opportunity having been given, have been used to corroborate the exculpatory statement of a single witness (P.W.4), who, in the initial fardbeyan, was suspected to be an accused.
Patna High Court CR. APP (DB) No.53 of 1992 dt.14-11-201 3/14
4. The prosecution case is based upon the fardbeyan of one Anmol Kumar Yadav (P.W.5), the brother of the alleged victim Jagdish Yadav. We have advisedly used the word `alleged victim' for the simple reason that we find that there is no evidence, which corroborates his death, for which the appellants have been convicted. We shall point out the same in this judgment when the occasion so arises. The fardbeyan was recorded by Sub-Inspector of Police R. B. Singh of Kumar Khand Police Station at about 10.30 am on 07.07.1981. It, inter-alia, alleges that on 05.07.1981 in the evening at about 5 pm his elder brother Jagdish Yadav had gone to the house of Mahendra Narain Rai (not examined). When he left the house, he was wearing a yellow colour vest and a lungi. He had not returned home thereafter. Enquiries were made from Mahendra Narain Rai (not examined) on the next morning, who disclosed that Jagdish Yadav had taken one tin container from him for purchasing kerosene oil from Tikulia Bazar. He then went to Tikulia Bazar, where he purchased one litre of kerosene oil from Rameshwar Mehta (not examined). He then started returning home. On his way back, he was accompanied by Jagdish Mukhiya (P.W.4) and this was seen by P.W.7 Bindeshwari Yadav, Bhumi Yadav (not examined), P.W.1 Parmeshwari Yadav and Chhote Lal Yadav (not examianed). Balram Yadav (P.W.8) informed him that at about 7 pm on 05.07.1981 when they were going Patna High Court CR. APP (DB) No.53 of 1992 dt.14-11-201 4/14 to the house of Mahendra Narain Rai (not examined), they found near the High School, adjacent to the bamboo orchard, 10-12 people variously armed sitting and he named the eight appellants being amongst them. Upon this information, the informant then went to that place and found that the soil there had been disturbed extensively with blood stains at many places. He also smelt some kerosene oil split there and in the nearby fields also found some blood stains. He, accordingly, suspected that the eight appellants and Jagdish Mukhiya ( now P.W. 4) are responsible for disappearance of his elder brother as they had some previous enmity also. Upon this statement, the present case was registered but curiously against unknown for an offence under section 302/201 of the I.P.C. even though at that time it was not known whether Jagdish Yadav had been killed or he was merely missing at that time. The Police investigated the case and then submitted charge-sheet only against the eight appellants and, thereafter, cognizance having been taken, the case was committed to the court of session. Charges were framed under sections 302/34 and 201 of the I.P.C. against the eight appellants and they having pleaded not guilty were tried and convicted. Hence this appeal.
5. In order to establish its case, the prosecution examined 9 witnesses. We will deal with their depositions and the documents produced by them as evidence at later stage. We have advisedly said Patna High Court CR. APP (DB) No.53 of 1992 dt.14-11-201 5/14 so because we would first deal with the evidence on record and then point out as to what the adventurous learned Additional Sessions Judge did.
6. P.W. 1 is Parmeshwari Yadav. In the fardbeyan itself, he is mentioned as the person, who had seen the alleged victim Jagdish Yadav returning home with Jagdish Mukhiya, who is now P.W.4. He in his evidence before the court corroborates this fact alone. He also admits that he is the uncle of Jagdish Yadav. But what is surprising is the fact he stated in his chief that two days after the case was instituted, the dead body of Jagdish Yadav was recovered near Parsa. As we would see that it was never the prosecution case that any dead body was at all recovered. There is no evidence in support thereof. In his cross-examination, he again states that two or three days after the case was instituted, he had seen the dead body of Jagdish Yadav near Parsa. We fail to understand on what basis it is said because neither any dead body was recovered, nor had there been any inquest report nor had there been any post-mortem report. He admits that the road near the High School, on which Jagdish Yadav and Jagdish Mukhiya (P.W.4) were seen, was a busy road frequently used by the people.
7. Then we come to P.W. 2 Dr. B. N. Mishra, who is a Civil Assistant Surgeon. He was on 13.07.1981 posted at Madhepura Patna High Court CR. APP (DB) No.53 of 1992 dt.14-11-201 6/14 Sub-Divisional Hospital. He states that on that day Police had sent him some pieces of bones ( there is no evidence of what bones and how many pieces) for examination and he opined that it was of human origin as well as of a male person. Let it be recorded that the prosecution has not brought on record either opinion of the said Doctor or the bones or even any seizure list with regard to recovery and seizure of the bones much less any bones.
8. We then have P.W. 3 Bechan Mehta. He is only a witness with regard to having seen Jagdish Yadav, having purchased kerosene oil from the shop of Rameshwar Mehta (not examined). Beyond this, there is nothing in his evidence.
9. We would deal with the evidence of Jagdish Mukhiya (P.W.4) at a later stage.
10. We then come to P.W.5 Anmol Kumar Yadav, who is the informant and the younger brother of the alleged deceased Jagdish Yadav and who had given his fardbeyan. In his chief, he narrates what was stated in his fardbeyan alleging that these eight appellants had killed his brother and concealed his dead body. Motive was said to be the differences between the appellants and his family. He then states that later it was reported that a body had been washed at Goriaghat, Jorgama near the river. The body was nothing but a bare skeleton with no flesh or skin or no head. He found pieces of bones and two pieces Patna High Court CR. APP (DB) No.53 of 1992 dt.14-11-201 7/14 of his brother's vest near the said Ghat with the help of which he identified the same to be that of his brother. The said pieces of bones and so also of vest were seized by the Police. Let it be recorded that neither any seizure list nor any material exhibit have been brought on record before the Court. In his cross-examination, he admits that in the fardbeyan he had made allegations against Jagdish Mukhiya (now P.W.4) as well as Jagdish Yadav was last seen in his company. He states that pieces of cloth being part of his brother's vest were patches, which he had purchased and got stitched on the torn vest and it is with that help he had identified the alleged skeleton to be that of his elder brother. He admits that those pieces of cloth purporting to be patches of vest were found about 2-3 ft. away from the skeleton on the river bank. There is nothing more he had added, but one thing is curious that he does not prove his fardbeyan. He merely proves his signature on the said document and not the contents thereof. That is marked as Ext.1.
11. We then have P.W.6 Sarjug Bhagat. He is of no help to the prosecution as he says nothing. He was brought to identify the cloth, but cloth not being on record, he was not clear as to what clothing Jagdish Yadav was wearing.
12. We then have P.W. 7 Bindeshwari Yadav, who is mentioned in the fardbeyan as having seen Jagdish Mukhiya (now Patna High Court CR. APP (DB) No.53 of 1992 dt.14-11-201 8/14 P.W.4) and Jagdish Yadav returning to their house. He is merely tendered.
13. Then we have P.W.8 Balram Yadav, who is again mentioned in the fardbeyan having disclosed that near the High School adjacent to the bamboo orchard, he had seen lot of soil disturbed where there were blood stains and kerosene oil split as well and he had also seen 10-12 people assembled near the school variously armed. He admits in his cross-examination that he is related to Jagdish Yadav (alleged deceased).
14. We then have P.W.9, who is a formal witness. He is Ashok Kumar Yadav. We would like to notice that he is an agriculturist, but as a `Sankat Mochan witness' he has been brought to prove the formal F.I.R. We wonder how the trial court even permitted this. The formal F.I.R. is marked as Ext.2. Any Tom, Dick and Harry would take a stand and the Court cannot permit him to depose when he has nothing to do in regard to the evidence he is to give. It is the duty of the Court to check such `Sankat Mochan' witness from deposing in a case. They are totally incompetent.
15. Thus, up to this stage, it could be seen that only the signature of the informant on the fardbeyan has been proved and no attempt to prove the formal fardbeyan was made. None of the witnesses have seen anything. Nothing has been brought on record Patna High Court CR. APP (DB) No.53 of 1992 dt.14-11-201 9/14 with regard to recovery of any body much less bones, clothes or anything. The Investigating Officer has not been examined. Thus, apart from the evidence of the informant that his elder brother disappeared or was a miss, there is nothing further substantiated.
16. Now we may come to P.W.4 Jagdish Mukhiya. As noticed above, the informant Anmol Kumar Yadav (P.W.5) admitted that in the fardbeyan he had allegedly named Jagdish Mukhiya (now P.W.4) as an accused because his brother was last seen with him coming back home. Instead of being proceeded against as an accused, he has now turned up as a prosecution witness. In the fardbeyan, it is stated that witnesses had seen Jagdish Yadav (the victim) and Jagdish Mukhiya (P.W.4) going together back home. But when we come to the evidence of P.W.4 he states that while he was coming in the said direction, Jagdish Yadav was 2-3 yards behind him. At places he had turned back and seen Jagdish Yadav. When he reached near the High School, 10-12 persons surrounded them and took them to the bamboo orchard, where he saw appellant no.5, appellant no.2, appellant no.3 and appellant no.7 variously assaulting Jagdish Yadav in his presence virtually killing him and then all the persons carried away his body. He (P.W.4) was warned and threatened not to disclose anything to any body otherwise he would also be killed He was then left free to go. Out of fear, he did not disclose this fact to any body for about 3-4 Patna High Court CR. APP (DB) No.53 of 1992 dt.14-11-201 10/14 days, but thereafter he disclosed it to the Police. He denies the suggestion that as he had agreed to make an exculpatory statement involving the appellants, he was made a witness instead of being proceeded against as an accused and that is why he has agreed to make false deposition in the court.
17. While dealing with this witness, we would first like to point out that the fardbeyan specifically mentioned that several persons, some of whom had also been examined, had seen Jagdish Mukhiya (P.W.4) and Jagdish Yadav travelling together but in his deposition P.W.4 states that Jagdish Yadav was 2-3 yards behind him; meaning thereby they were, in fact, not traveling together. It was a busy road which the witnesses have admitted.
18. Then what we find curious is why the people, who were perpetuating commission of such a heinous crime, would let a third party see the whole incident and then leave him merely giving out a threat. They were all persons of the same village. This is not understandable. When we refer to the fardbeyan and the deposition of the informant (P.W.5), it could be seen that P.W.5 (informant) states that on the very first day he had come to know that his brother Jagdish Yadav was last seen moving with Jagdish Mukhiya (P.W.4) coming back home, but he never made any attempt to enquire from Jagdish Mukhiya the whereabout of his brother till allegedly Jagdish Mukhiya Patna High Court CR. APP (DB) No.53 of 1992 dt.14-11-201 11/14 turned up before the Police several days after the fardbeyan having been registered as an F.I.R. to make disclosure, in which fardbeyan he is named as one of the suspects. Further even the evidence of this witness i.e. P.W.4 shows that he identifies only four of the appellants and not the other four as noticed above. In paragraph 9 of his cross- examination, he admits that there was some land which he was intending to purchase but it were these appellants, who managed to purchase the same depriving him of the land. This was to show his animosity with the appellants.
19. In view of what has been stated above, in our opinion, the evidence of the solitary witness (P.W.4) is thoroughly unreliable and this witness is untrustworthy. Why for almost a week he kept mum and why inspite of his name having been disclosed at the very first instance, no one questioned him for almost a week, are not explained. The Investigating Officer has not been examined. Had he been examined, not only he would have given some explanation as to why there was such a delay in examining this witness, but also with regard to the objective findings as to the place or manner of occurrence. There is no reason given why Investigating Officer was not examined.
20. Having seen these evidences, we are of the view that based upon these evidences no Court would have reasonably Patna High Court CR. APP (DB) No.53 of 1992 dt.14-11-201 12/14 convicted the appellants, yet the trial court convicted them.
21. Now let us see the judgment of the trial court. The trial court notices that the prosecution has not brought on record through evidence the seizure list and various statements of various witnesses, yet the trial court has gone to the entire case-diary in detail. It has recorded that there are seizure lists available in the case-diary showing seizure of various blood stains and weapons. There is seizure list showing seizure of the lungi and the vest from the house of one of the appellants. There is a seizure list of seizure of bones and pieces of cloth being part of vest. There are Forensic Reports with regard to blood stain being found on the spear. There is statement in the case- diary made by P.W.4 under section 164 of the Code of Criminal Procedure (for short `Cr.P.C.'). The statement made under section 164 Cr.P.C. by P.W.4 himself in the Court was not produced by the prosecution. Taking these informations as available in the case-diary as corroborative evidences, the trial court has proceeded to convict the appellants. This is a classic example of what cannot be done. It is for the prosecution to bring on record and establish its case through evidences. It is no job of a Court to dig up facts and informations, which are not the part of records. Facts and informations not brought on record by the prosecution as a part of prosecution evidence cannot be looked into. We are cognizant of the provision of section 172(2) of Patna High Court CR. APP (DB) No.53 of 1992 dt.14-11-201 13/14 the Cr.P.C., wherein it is stated that in course of trial the court may look into the statements recorded under section 161 of the Cr.P.C. for ends of justice, but the same provision puts an embargo "not as evidence". A person cannot be convicted on facts, which do not form evidence in the case. Evidence is what is duly brought on record and proved in course of trial. It is not what is available in the Police case- diary much less the bare statements recorded by the Investigating Officer under section 161 of the Cr.P.C. That is legally prohibited from being used as an evidence.
22. Though we are not required nor we should refer to these materials, but just to show that the prosecution case even if these materials are looked into, cannot be relied upon. Two things are sufficient. Firstly learned Judge notices that in the case-diary there are seizure lists of lungi and vest from the house of appellant Bijal Mehta. If this is correct then the entire evidence that the two patches of cloth from the vest of Jagdish Yadav were found near the skeleton, with which the skeleton was identified to be that of Jagdish Yadav, becomes false because vest had been recovered from another place altogether. Then we come to the alleged spear having blood stain and it being corroborated by Forensic Report. Even if spear or other weapons had blood stains including the blood stained soil, but that is not sufficient because the blood has to be co-related to that of the Patna High Court CR. APP (DB) No.53 of 1992 dt.14-11-201 14/14 victim. Whose blood is it? Even in the case-diary, there is no evidence in that regard. All those materials become irrelevant.
23. Thus, we find that there is no evidence on record, which persuades us to hold the appellants guilty in any manner. We have no option in the facts and circumstances stated above but to hold that the prosecution has miserably failed to prove its case beyond all reasonable doubts.
24. Accordingly, we allow this appeal, set aside the judgment of conviction and order of sentence passed by the trial court and acquit the appellants of the charges levelled against them. They are discharged from the liability of their bail bonds.
25. Let a copy of this judgment be sent to the Bihar Judicial Academy to use it as case material with regard to what cannot and what ought not to be done by trial courts so that such adventurism is not repeated by trial courts.
(Navaniti Prasad Singh, J)
AFR (Jitendra Mohan Sharma, J)
MPS/-
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