Patna High Court
Moti Rabi Das & Anr vs State Of Bihar on 20 October, 2014
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh, Jitendra Mohan Sharma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.195 of 1992
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Against the judgment of conviction and order of sentence dated
19th May, 1992 passed by Shri Ram Prabodh Singh, 2nd Additional
Sessions Judge, Munger in Sessions Trial No. 169 of 1991.
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1. Moti Rabidas son of Jagarnath Rabidas, R/o village- Mahaddi
Nagar, P.S.- Seikhpura, District- Munger
2. Balmiki Raut son of Chottan Rout, R/o village- Gohada, P.S.-
Ariyari, District- Munger
.... .... Appellants
Versus
The State of Bihar .................................................... . .... Respondent
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Appearance :
For the Appellant/s : Mr. Neeraj Kumar @ Sanidh, Advocate
Mr. Ashwani Kumar Sinha, Advocate
For the Respondent/s : Mr. Ajay Mishra, APP
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CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH
and
HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH)
Date: 20-10-2014
The present appeal has been filed by the two
appellants who have been found guilty and convicted for the offence
punishable under Sections 302/34 of the Indian Penal Code
(hereinafter in short as IPC) and Section 201/34 IPC by the learned
2nd Additional Sessions Judge, Munger in Sessions Trial No. 169 of
1991 by judgment and order of conviction and sentence dated
19.5.1992 and they have been sentenced to undergo rigorous
imprisonment for life and rigorous imprisonment for four years
respectively. However, it was ordered that both the sentences shall
run concurrently.
2. The prosecution case starts from the first
Patna High Court CR. APP (DB) No.195 of 1992 dt.20-10-2014 2
information report as given by the village Chowkidar Khurshid Khan
(PW 1) to the Officer In-charge Shashi Bhushan Pandey (PW 6)
being the officer Incharge of Ariyari Police Station, Sub-Division
Sheikhpura, District Munger on 23.10.1990 at 9.00 am which is Ext.
3. It is stated therein that the village Chowkidar heard in the
morning of 23.10.1990 that a mutilated dead body was lying
outside the village. He went there and saw a dead body of a male
aged about 40 years lying in the paddy field. There were blood
stains on the road at a distance of about 15 yards from the field.
The mouth was bleeding and blood was coming out of his anus.
Upon this information Ariyari P.S. Case No. 87 of 1990 was
registered under Sections 302/201 IPC against unknown on
23.10.1990and investigation was taken up. In course of investigation it appears that on 30.10.1990 one Ram Ratan Ram (PW 4) reached the Police Station making inquiries about his brother Krishna Prasad @ Munshiji. The Investigating Officer disclosed that on 23.10.1990 a dead body was found abandoned on the road side. It is alleged that this Ram Ratan Ram (PW 4), from the description given and some of the clothes shown, identified the dead body as his elder brother's body. He then made a statement to the Investigating Officer, allegedly, stating that on 22.10.1990, appellant Moti Rabidas had come to his house and asked Krishna Prasad @ Munshiji (the alleged deceased) to accompany him to the house of one Ashok Babu who was a contractor and for whom they worked. He was to after the house of Ashok Babu while he Patna High Court CR. APP (DB) No.195 of 1992 dt.20-10-2014 3 would be away to his village to perform Chatt Puja. When, after a week, Krishna Prasad @ Munshiji did not return home, he had started making inquiries which led him to the Police Station. According to him, Munshi must have been killed, the motive was that appellant Moti Rabidas had developed illicit relationship with a girl labourer which was affecting the work and this matter had been reported to Ashok Babu, the contractor, by Krishna Prasad @ Munshiji and therefore, the two appellants had taken revenge by killing.
3. On the same day one Kermo Rabidas (PW 2) had also turned up at the Police Station and states that he is also an employee of Ashok Babu. In the night of 22.10.1990, he found the two appellants and Munshiji/Krishna Prasad who had come on a tractor, parked the tractor and go to have liquor. They asked Kermo Rabidas (PW 2) to look after the tractor in the mean time. As they did not return for over three hours and it had become late in the night, he was scared. He went looking for them. He went to the place of Chuhan Pasi where the three were taking liquor. He was also offered liquor which he had. Krishna Prasad @ Munshiji was drunk. They all came and sat on the tractor to return home. The appellant Moti Rabidas, who was driving the tractor, turned towards Sheikhpura and stopped the tractor, then Moti Ravi Das, dragged Krishna Prasad @ Munsijee on to the road and then two of them killed Krishna Prasad @ Munsijee and threw his body in the paddy field. He was threatened not to disclose this to any body otherwise Patna High Court CR. APP (DB) No.195 of 1992 dt.20-10-2014 4 he would also be killed. Upon this statement to the Police, PW 2 was sent to the Magistrate for recording of his statement under Section 164 Cr.P.C. The statement recorded under Section 164 Cr.P.C. has not been proved in the Trial Court. The appellants were, then, arrested and upon conclusion of investigation, chargesheet was submitted and the case was committed to the court of Sessions. The appellants having pleaded not guilty were tried and convicted, hence this appeal.
4. In order to establish the case, the prosecution has examined in all six witnesses. PW 1 is Khurshid Khan, the village Chowkidar who gave first information and which was recorded and registered as FIR (Ext. 3). PW 2 is Kermo Rabidas, who, eight days after the occurrence, turned up claiming to be the eye witness to the occurrence of killing. PW 3 is Ram Prasad Mochi, who has been declared hostile and has not supported the prosecution case. PW 4 is Ram Ratan Ram the brother of the deceased. PW 5 is Dr. Rakesh Kumar Sinha, the doctor who performed the post mortem examination of the deceased at Munger Sadar Hospital and PW 6 is Shashi Bhushan Pandey, the Investigating Officer of the case.
5. At the very outset, we would like to note one very unusual aspect which the trial judge failed to notice. As noticed above, the first information was given by the village Chowkidar, PW 1 Khurshid Khan, on basis whereof the Police Case was duly registered. This was marked as Ext. 3. Then Ram Ratan Ram PW 4 the brother of the deceased came to the Police Station making Patna High Court CR. APP (DB) No.195 of 1992 dt.20-10-2014 5 inquiries. He allegedly, identified the dead person from the clothes that were at the Police Station because by then the dead body had been cremated unclaimed. He gave statement to the Police. This statement was got signed by the Police and the Trial Court has permitted this statement to be marked as Ext. 1 as the fard-beyan in the case. This was wholly impermissible. As per prosecution itself, a formal report of the cognizable offence had already been given to the Police Station and recorded and registered as such, which is Ext. 3. What happens thereafter is part of investigation. The statement of PW 4 to the Police was clearly a statement recorded as a witness in course of investigation. That as such would be a statement as per Section 161 Cr.P.C and could not have been signed by PW 4 in terms of prohibition contained in Section 162 Cr.P.C. It cannot be used as evidence at all except for the limited purposes if any of contradiction or refreshing memory. Forgetting all this, the court admitted it in spite of protest by the defence in evidence and has treated it as a fard-beyan. It is legally not sustainable. That evidence was not admissible at all.
6. Learned counsel for the appellants submits firstly, that there is no true, correct and reliable identification of the dead body. He, then, submits that the whole story that has sprung up, after eight days of the occurrence, is not reliable. The eye witness PW 2 Kerom Rabidas was a labourer of Ashok Babu. Alleged deceased Krishna Prasad @ Munshiji used to do Munshi's work for Ashok Babu. Ram Ratan Ram (PW 4) was the brother of the said Patna High Court CR. APP (DB) No.195 of 1992 dt.20-10-2014 6 Munshiji yet Kerom Rabidas (PW 2) does not care to inform Ram Ratan Ram about murder of his brother though he claims to be an eye witness. It is further submitted that though a dead body was found in the village area, no one seemed to be anxious, not any effort was made to get it identified before it was sent for post mortem and then cremated. It appears that photography was also done but the same is neither part of the case diary as disclosed in court by I. O. nor brought on the record, nor was the brother of the deceased Ram Ratan Ram (PW 4) shown the photograph for identifying the dead body. Even in course of trial the photographs were not brought on record. We must observe that the submissions are fit to be accepted.
7. With regard to identification of the dead body as the dead body of Krishna Prasad @ Munsijee, Ram Ratan Ram says that he identified the dead body from clothes and the Tabij. The clothes were ordinary, common placed clothes i.e. Kurta, vest, underwear and Tabij. He was shown these articles in the Police Station from which he identified that these were the clothes, his brother had worn and gone a week back before he had left the home. There was no test identification parade in respect of the clothes. When clothes were produced in the court and marked as material exhibits, they were identified by PW 4 Ram Ratan Ram. Learned counsel for the appellants rightly submits that such identification is of no consequence. He points out with reference to the evidence of Investigating Officer (PW 6) that he received these Patna High Court CR. APP (DB) No.195 of 1992 dt.20-10-2014 7 clothes from the Munger Sadar Hospital after post mortem examination. He had kept them at the Police Station after PW 4 identified the dead body from the clothes. He did not deposit these clothes in the Police Malkhana but kept them hidden in a vehicle which was lying seized in the Police Station and from time to time he used to see that it was secure in the vehicle till it was required to be produced in course of trial in the court where he brought it in a bundle. We do not know what was the cloth that was seized, what were the clothes that were identified and were those clothes the same that were produced in the court. This cannot be basis for identification of a dead body especially when these articles had no special description. Learned counsel for the appellants also points out that PW 4, the brother of the deceased, disclosed that his brother had left wearing Kurta. He remembers the vest with a print thereon. He remembers the underwear and he states that he was obviously wearing Dhoti. When the inquest report was prepared, all these four things were mentioned but when we come to the post mortem report or the material exhibits that have been seized and produced, there is no mention of Dhoti. Where was dhoti left out, no one knows. We have serious doubt if any one can identify a dead body on the basis of aforesaid clothing. What creates further doubt is that no effort was made to photographed the unclaimed body. The Investigating Officer had good eight days but he made no efforts to make inquiries at least in the neighbouring villages and habitats. The Investigating Officer (PW 6) first denies that any Patna High Court CR. APP (DB) No.195 of 1992 dt.20-10-2014 8 photograph was taken but this fact has come on record in the deposition of PW 5 Dr. Rakesh Kumar Sinha who clearly states that when the body was brought to Sadar Hospital, just before post mortem, the body was photographed for identification at Munger Sadar Hospital. If it was so photographed, then why the Investigating Officer did not procure those photographs. He admits that those photographs are neither in the case diary, nor they have been produced in the court, nor they were shown to the brother of the deceased, nor to any other person for identification.
8. Learned counsel for the appellants rightly submits that the only inference that court can draw from such fact is that had the photographs been brought on record and shown to the persons who would be in a position to identify Krishna Prasad @ Munshiji, they would have failed to identify. In other words, failure to bring on record the photograph of the dead body, though taken, an adverse inference has to be drawn. Learned counsel for the appellant is correct. If the photograph did relate to the deceased Krishna Prasad @ Munsijee, it was the best evidence and being available to the Police, it ought to have been brought on record. It ought to have been shown to other prosecution witnesses for identification. Withholding that would only mean that if shown, it would have prejudiced the prosecution case. Thus, we are constrained to hold that the trial court wrongly held that the dead body was clearly established to be the body of the deceased Krishna Prasad @ Munshiji.
Patna High Court CR. APP (DB) No.195 of 1992 dt.20-10-2014 9
9. In fairness to the learned trial court, it has apparently proceeded on basis of the statement of PW 2 Kermo Rabidas who is the eye witness. Without going further, the trial court has said that merely because this eye witness narrated the events ending in the death of Krishna Prasad @ Munshiji and throwing of his body in the paddy field where it was found on the next day by the Police, that by itself confirm the identity of the body. We differ with the trial court which jumps to the conclusion. First, whether PW 2 is reliable at all. We think, not. If he was an eye witness and he saw the gruesome incident on the night of 22.10.1990, then, why he kept quite for over eight days, even though he knew that the dead body was found the very next morning. He used to work for Ashok Babu. The deceased used to work for Ashok Babu. The brother of the deceased Ram Ratan Ram (PW 4) was not informed for all these eight days. Then, all of a sudden, what made PW 2 make the statement to the Police and then got recorded his statement under Section 164 Cr.P.C. Further, having recorded, the prosecution did not place it on record. The statement under Section 164 Cr.P.C. has not been proved in court. Thus, in our view, PW 2, the alleged eye witness, is not a reliable witness. If that be so, then, there is neither any identification of the dead body, nor any evidence implicating the appellants. We may here notice the evidence of PW 4 once again. For the strange reason, as earlier noted in the judgment, the trial court has treated his statement, made to the Investigating officer, as a fard-beyan.
Patna High Court CR. APP (DB) No.195 of 1992 dt.20-10-2014 10 We have already noticed, in anguish, that it cannot be so treated. He used it to settle the motive for the murder. The defence suggestion is just the otherwise. It has been that Krishna Prasad @ Munshiji, the deceased, used to misbehave and exploit lady labourers. It could have been that in one of such untoward incident, he might have been killed or removed from scene. But surely, the body recovered was not of Krishna Prasad @ Munshiji.
10. Be that as it may, we noticed that, though the prosecution has tried to build a story but it has not been able to prove it beyond all reasonable doubt. Accordingly, we have no option but to allow this appeal. Thus, we set aside the conviction and sentence as awarded to the appellants. The appellants are freed from their bail bonds.
(Navaniti Prasad Singh, J)
(Jitendra Mohan Sharma, J)
avin/-A.F.R.
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