Patna High Court
Raj Kumar Das vs The State Of Bihar on 3 August, 2018
Author: Rakesh Kumar
Bench: Rakesh Kumar, Arvind Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No. 271 of 2013
Arising Out of PS. Case No.-118 Year-1995 Thana- Sabour District- Bhagalpur
======================================================
1. Ram Das Son of Juthan Das
2. Puran Das Son of Late Gulabi Das
Both Resident of Village - Naya Tola (Nadiyama), P.S. Goradih
(Sabour), District - Bhagalpur.
... ... Appellants
Versus
The State of Bihar
... ... Respondent
======================================================
with
Criminal Appeal (DB) No. 207 of 2013
Arising Out of PS. Case No.-118 Year-1995 Thana- Sabour District- Bhagalpur
======================================================
Raj Kumar Das, Son of Rameshwar Das alias Ramkeshwar Das, Resident of
Naya Tola, Nadiawan, P.S. Sabour, District - Bhagalpur.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In Criminal Appeal (DB) No. 271 of 2013)
with
(In Criminal Appeal (DB) No. 207 of 2013)
For the Appellant/s : Smt. Pravina Kumari, A.O.R. No.3
For the Respondent/s : Mr. Ajay Mishra (APP)
======================================================
CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
and
HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAKESH KUMAR)
Date : 03-08-2018
In aforesaid two appeals, all the three appellants were
tried together, convicted and sentenced in Sessions Trial No. 43
of 1997/Trial No. 634 of 2012 and as such, both appeals were
Patna High Court CR. APP (DB) No.271 of 2013 dt.03-08-2018
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taken up together and are being disposed of by this common
judgment.
2. By judgment dated 04-02-2013 passed by Sri Ashok
Kumar, learned Adhoc Additional District & Sessions Judge 2 nd,
Bhagalpur (hereinafter referred to as 'Trial Judge'), Puran Das
(appellant no. 2 in Cr.Appeal DB No. 271/13) was convicted for
commission of offence under Section 302 of the Indian Penal
Code, 1860 (hereinafter referred to as "I.P.C.") and Section 27
of the Arms Act, 1959 (hereinafter referred to as "Arms Act"),
whereas, Ram Das (appellant no. 1 in Cr.Appeal DB No.
271/13) and Raj Kumar Das (sole appellant in Cr.Appeal DB
No. 207/13) were convicted for commission of offence under
Sections 302/34 of the I.P.C. By order dated 21-02-2013, Puran
Das (appellant no. 2 in Cr.Appeal DB No. 271/13) was
sentenced to undergo imprisonment for life under Section 302 of
the I.P.C. and imposed a fine of Rs. 10,000/- (ten thousand) and
in default of payment of fine, he was directed to further undergo
rigorous imprisonment for one year as well as under Section 27
of the Arms Act, he was sentenced to undergo rigorous
imprisonment for seven years and to pay a fine of Rs. 10,000/-
(ten thousand) and in default of payment of fine, he was directed
to further undergo rigorous imprisonment for one year. Both
Patna High Court CR. APP (DB) No.271 of 2013 dt.03-08-2018
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sentences were directed to run concurrently. Similarly, Ram Das
(appellant no. 1 in Cr.Appeal DB No. 271/13) and Raj Kumar
Das (appellant in Cr.Appeal DB No. 207/13) were sentenced
under Section 302/34 of the I.P.C. to undergo imprisonment for
life and to pay a fine of Rs. 10,000/- (ten thousand) each. In
default of payment of fine, both appellants were directed to
further undergo rigorous imprisonment for one year.
3. Short fact of the case is that on 24-05-1995 at 13.00
hrs. (1:00 PM), Sub-Inspector of Police B.N. Singh (not
examined) of Sabour Police Station recorded fardbeyan of one
Putul Devi (P.W.4), wife of deceased Sadanand Das @ Saudha
Das of village Naya Tola Nadiyama, P.S. - Sabour, District -
Bhagalpur. The fardbeyan was recorded outside the door of
informant in village Naya Tola (Nadiyama). In the fardbeyan,
the informant stated that in preceding night i.e. 23-05-1995 after
taking meal, she was sleeping in her inner courtyard with her
mother-in-law Surti Devi and gotini (wife of brother of her
husband) namely Laxmi Devi (P.W.2). Her husband Sadanand
Das @ Saudha Das (deceased) was sleeping in cSBdk (outside
house in open land) on a cot. At about 10.00 in night, she awoke
after hearing sound of firing. Her mother-in-law and gotini also
awoke and at the same time, she noticed that 8-10 persons from
Patna High Court CR. APP (DB) No.271 of 2013 dt.03-08-2018
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southern side intruded into courtyard. Amongst them, she could
identify one of her co-villager namely Puran Das (appellant no.
2 in Cr.App.DB No. 271/13), who was carrying a long barrel
gun in his hand, and from the backside of the said gun, he gave
blow on her head. Thereafter, her head was ruptured and blood
started oozing out. The miscreants after entering into the
courtyard were lighting torch-light and in the said torch-light,
her mother-in-law and gotini, besides Puran Das (app.2 in
Cr.App.DB No. 271/13), also identified Ram Das (app.1 in
Cr.App.DB No.271/13) and Raj Kumar Das (sole app. in
Cr.App.DB No. 207/13). However, she could not identify other
miscreants. The miscreants after entering into the courtyard
destroyed the container of grains prepared by soil and took bag
of her husband, which her husband for the purposes of his
medical profession had kept and accused persons fled away
towards eastern side. Thereafter, the informant with her mother-
in-law and gotini came out from the house and went to cSBdk
(outside house in open land) and she noticed that her husband
Sadanand Das (deceased) was lying dead in the pool of blood.
She claimed that her husband was killed by giving gun shot
injury by aforesaid named accused (appellants) and 8-10
unknown accused persons. The reason for the occurrence was
Patna High Court CR. APP (DB) No.271 of 2013 dt.03-08-2018
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described by the informant that there was land dispute in
between her husband and Puran Das (app.2 in Cr.App.DB No.
271/13) relating to 1½ bigha of land, which was continuing
since long. This was the reason that Puran Das (app.2 in
Cr.App.DB No. 271/13), Ram Das (app.1 in Cr.App.DB No.
271/13) and Raj Kumar Das (app.in Cr.App.DB No. 207/13)
with 8-10 other unknown accused persons had killed her
husband by giving fire-arm injury. The said fardbeyan was
signed by the informant.
4. On the basis of said fardbeyan, on 24-05-1995 at
5:00 PM, a formal F.I.R., vide Sabour P.S. Case No. 118 of
1995, was registered for offence under Sections 302/34 of the
I.P.C. and Section 27 of the Arms Act against all the three
appellants and 8-10 unknown accused persons. During
investigation, one of the accused Raj Kumar Das (app.in
Cr.Appeal DB No. 207/13) was apprehended and thereafter, on
30-09-1995, chargesheet against all the three appellants was filed showing appellant Puran Das and Ram Das (both appellants in Cr.App.DB No. 271/13) as absconder. Thereafter, the learned Chief Judicial Magistrate, Bhagalpur on 12-01-1996 took cognizance of the offence and case was committed to the court of sessions on 10-01-1997 and it was numbered as Patna High Court CR. APP (DB) No.271 of 2013 dt.03-08-2018 6/16 Sessions Trial No. 43 of 1997. On 17-12-2007, charge was jointly framed under Sections 302/34 of the I.P.C. and Section 27 of the Arms Act against aforesaid three appellants.
5. During trial, to establish its case from the prosecution side, altogether seven witnesses were examined. Out of them, P.W.2 (Laxmi Devi) wife of brother of the deceased and P.W.4 (Putul Devi) wife of deceased were examined as eye- witness to the occurrence. P.W.1 (Rajendra Das) brother of the deceased and P.W.3 (Sundar Mandal) are hearsay witnesses. P.W.6 (Keshav Kumar Singh) is a formal witness, who has proved signature on seizure list and inquest report. Dr. Haider Imam Ansari, who conducted post-mortem examination on the dead-body of deceased, was examined as P.W.7, whereas, Sri Tej Narayan Biswas (P.W.5), who was at the relevant time officer incharge of Sabour Police Station, had taken charge of investigation from first investigating officer on 22-08-1995 and thereafter, he submitted chargesheet as per direction of the superior officer.
6. After completion of the prosecution evidence, on 09-04-2012, statement of accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") was recorded, in which, they claimed to be innocent Patna High Court CR. APP (DB) No.271 of 2013 dt.03-08-2018 7/16 and they were falsely implicated. They also claimed to examine defence witness and as such, one defence witness, namely, Rajeshwar Mandal was examined as D.W. 1 and a plea of alibi was taken on behalf of the appellant Puran Das (Cr. Appeal DB No. 271 of 2013).
7. Smt. Pravina Kumari, learned counsel for the appellants, after referring to entire evidence, has argued that it was a case of out-and-out false implication due to old animosity. She submits that appellants and informant side were own pattidar and amongst them, land dispute was going on since long, which has already been admitted by the informant as well as P.W. 2 Laxmi Devi. It has further been argued that on examination of evidence of two so-called eye-witnesses, it is evident that none had seen the occurrence and after the husband of the informant was done to death, the case was fabricated in the next morning and all the appellants were arrayed as accused. According to learned counsel for the appellants, in this case, non-examination of the main investigating officer has seriously prejudiced the case of appellants, since in the case, neither place of occurrence were specifically established in absence of investigating officer nor the appellants could get any opportunity to get contradiction in respect of evidence of prosecution Patna High Court CR. APP (DB) No.271 of 2013 dt.03-08-2018 8/16 witnesses given in the court and their statement recorded under Section 161 of the Cr.P.C. during investigation. She further submits that the prosecution case is itself not believable, in view of the post-mortem examination report, which indicated that the deceased was having multiple fire-arm injuries, however, none of the so-called eye-witnesses have said that in the occurrence, number of firing was shot. On aforesaid ground, a prayer has been made that it is a case of clean acquittal and alternatively it has been argued that the appellants may be extended the benefit of the doubt since prosecution has not been able to establish its case beyond all reasonable doubt.
8. Sri Ajay Mishra, learned Addl. Public Prosecutor has opposed the aforesaid appeals and he tried to justify the judgment of conviction and sentence, however it was difficult for him to support the prosecution case in its totality.
9. Besides hearing, we have examined entire evidence on record and after going through the entire evidence, prima facie, we are of the opinion that prosecution has not been able to establish its case beyond all reasonable doubt. However, before proceeding, it is necessary to notice at least evidence of so- called eye-witnesses, who are none else but one is wife of Patna High Court CR. APP (DB) No.271 of 2013 dt.03-08-2018 9/16 deceased i.e. Putul Devi (P.W. 4) informant and another is wife of brother of deceased Laxmi Devi (P.W. 2).
10. P.W. 4, Putul Devi, who had put her signature on the fardbeyan, to the reasons best known to the court below, was allowed to prove entire fardbeyan, whereas, she has not at all stated as to whether she was conversant with the writing of the scribe of the fardbeyan. In the case, it is evident that fardbeyan was recorded by one Sub-Inspector of Police, Sri B.N. Singh, who has not been examined, as prosecution witness. This witness has proved her signature on the fardbeyan, which was marked as Ext. 1/1. In her evidence, P.W. 4 in paragraph - 1 of her examination-in-chief, has stated that in the night of the date of occurrence, after hearing sound of firing, she alongwith her gotni Laxmi Devi (P.W. 2) and her mother-in-law, Surti Devi awoke and thereafter, they sat inside their house itself. From the southern side of her house, 10 miscreants intruded, amongst them, she could identify three accused persons i.e. all the appellants. She further deposed that all the three appellants were carrying gun in their hand and from backside of gun, they gave blow on her head causing serious injury and thereafter, blood started oozing out. She further stated that after assaulting her, all the three accused persons fled away. She further stated that Patna High Court CR. APP (DB) No.271 of 2013 dt.03-08-2018 10/16 when she with her mother-in-law and gotini came out of her house, they saw that her husband Sadanand Das was lying dead on cot. He had received multiple injury and blood was coming out from his mouth and nose. In paragraph -2, she stated that accused persons were her xksfr;k (gotiyas) and between her husband and accused persons, land dispute was going on. In the next morning, police reached her house and recorded fardbeyan, on which, she put her signature and her signature was got marked as Ext. 1/1 and she also proved entire fardbeyan, which was marked as Ext. 1. In paragraph -7 of her cross-examination, she stated that she did not get any medical assistance in respect of her injury and accepted that after receiving injury, blood had fallen on the road and her cloth was soaked with blood.
11. P.W. 2, Laxmi Devi, who has also claimed to be an eye-witness to the occurrence like P.W. 4, has stated that in the night of the occurrence, she was in the inner courtyard with the informant (P.W.4) and her mother-in-law Surti Devi. She deposed that in her house, all the three appellants with 12-14 accused persons entered. Firstly, all the three appellants jointly fired on Sadanand Das, whereby, he fell down and died. Thereafter, accused persons assaulted her younger daughter Pinku Kumari. In paragraph -3, she deposed that appellant Puran Patna High Court CR. APP (DB) No.271 of 2013 dt.03-08-2018 11/16 Das by the butt of the gun gave blow on head of her gotini Putul Devi (P.W. 4), by which, she received injury on her head and she further deposed that accused had killed the deceased due to land dispute.
12. P.W. 1 Rajendra Das has simply said that he heard about the occurrence and also that the deceased was done to death by the appellants and other 8-10 unknown persons.
13. P.W. 3 Sundar Mandal has stated that after the occurrence, he heard that Sadanand Das was murdered and he was murdered due to fire-arm injury, however; he has not claimed as to how he had come to know about the occurrence as well as involvement of the accused persons.
14. Dr. Haider Imam Ansari on 25-05-1995 had conducted post-mortem examination on the dead body of the deceased and found following injuries:-
"(i) fire-arm wound entering on right side neck 2"
x 1 ½", with black and inverted margin.
(ii) fire-arm wound of entry on bridge of nose and left side orbital bone size 2" x 2".
(iii) fire-arm wound of entry on left side face, left eye and temporal area of head breaking mandible facial bone frontal and temporal nasal bone.
(iv) fire-arm wound of exit on left-over clabuclar area with fracture of left side 1 ½" x 1".
(v) fire-arm injury on right hand little finger with blackening and laceration 1 ½" x 1 ½"
On dissection injury no. ii & iii are communicating each other trachea, oesophagus and vertebra Patna High Court CR. APP (DB) No.271 of 2013 dt.03-08-2018 12/16 were lacerated. The brain matter contained pillets which were removed and sent to I.O.
Weapon - fire-arm Cause of death - haemorrhage and shock. Time since death - within 36 to 48 hrs."
He further proved the post-mortem report, which was marked as Ext. 5.
15. On examination of the evidence of P.W. 7 (doctor) as well as post-mortem report, it is evident that on the person of the deceased, there were multiple fire-arm injuries. However, in the prosecution evidence, particularly the evidence of so-called eye-witnesses, it has not come as to whether how many shots were fired in the occurrence. Simply, it was deposed, as if, they awoke after hearing the sound of firing.
16. P.W. 6 Keshav Kumar Singh is the formal witness and had proved his signature on seizure list as well as inquest report.
17. In this case, main investigating officer was not examined, however; the officer in-charge of Sabour Police Station, who took the charge of the investigation in the month of August 1995, has been examined as P.W. 5 and he proved signature of one of the police officer on formal F.I.R., which was marked as Ext. 2 and he has also proved inquest report, which was marked as Ext. 3. On examination of inquest report, Patna High Court CR. APP (DB) No.271 of 2013 dt.03-08-2018 13/16 it is evident that inquest was prepared at the place, where the deceased was done to death i.e. on the cot near the cSBdk (baithka) outside the house of the informant. P.W. 5 has only filed chargesheet against the accused persons, however; he has not recorded statement of any witness, which has come in paragraph - 4 of his cross-examination. Meaning thereby that the police officer, who arrived at the place of occurrence and recorded fardbeyan, prepared seizure list and inquest report, was not examined nor any plausible explanation has been given by the prosecution. In absence of non-examination of the investigating officer in a case, where there is evidence of doubtful nature, certainly non-examination of the investigating officer can be considered as fatal for the defence.
18. On examination of the evidence of P.W. 2 as well as P.W. 4, who have claimed to be eye-witnesses, there is no whisper as to whether both of the witnesses had seen exactly as to how the deceased was done to death. They had only stated that they had seen the aforesaid three appellants and both the witnesses have deposed that in the occurrence, the appellant Puran Das (in Cr.App.DB No. 271/13) gave blow from the backside of the gun on the head of the informant causing ruptured injury on the head of the informant. However, in the Patna High Court CR. APP (DB) No.271 of 2013 dt.03-08-2018 14/16 evidence of the so-called eye-witness P.W. 4, it has come that she did not get herself examined by the doctor. At this juncture, it was necessary to examine the evidence of investigating officer as to whether he had noticed any injury on the person of the informant or not, however during trial the investigating officer, who recorded statement of witnesses under Section 161 of the Cr.P.C., has not been examined.
19. On examination of evidence of informant/P.W. 4 it is evident that after hearing sound of firing she awoke and noticed appellants with other miscreants coming inside courtyard. Thereafter appellant/Puran Das gave blow from the 'butt' of gun and thereafter accused fled away. Meaning thereby that firstly husband of this informant was gunned down thereafter accused entered into the courtyard and assaulted the informant. This appears to be not believable. If due to old land dispute in the night appellants with other 8-10 accused persons had finished the husband of the informant by fire arm injury, in a normal situation for accused/appellants there was no need to come inside courtyard for giving injury to wife of the deceased (P.W. 4) and leave her to depose against them. Moreover it is case of the informant /P.W. 4 that she did not show her injury and received any medical aid.
Patna High Court CR. APP (DB) No.271 of 2013 dt.03-08-2018 15/16
20. Considering the fact that old land dispute in between the informant side and appellants side was going on and both were pattidars, there is every possibility that in a case of no evidence, after the occurrence, the appellants might had been fabricated by the prosecution. However, in absence of exact positive evidence, we may not record any finding to this effect, but fact remains that prosecution has not been able to establish its case beyond all reasonable doubt.
21. Accordingly, by way of extending benefit of doubt, it is necessary to interfere with the judgment of conviction and sentence and as such, the Judgment of conviction and sentence dated 04-02-2013 and 21-02-2013 respectively passed in Sessions Trial No. 43 of 1997/Trial No. 634 of 2012 (arising out of Sabour P.S. Case No. 118 of 1995) by Sri Ashok Kumar, learned Adhoc Additional District & Sessions Judge 2 nd, Bhagalpur is hereby set aside and both the appeals i.e. Cr.Appeal (DB) No. 271 of 2013 and Cr.Appeal (DB) No. 207 of 2013 are allowed.
22. Both appellants in Cr. Appeal (DB) No. 271 of 2013 i.e. Ram Das and Puran Das are in custody and as such, in view of setting aside the judgment of conviction and sentence, it is necessary to issue direction of release of both of them Patna High Court CR. APP (DB) No.271 of 2013 dt.03-08-2018 16/16 forthwith. Accordingly, it is directed to release both appellants i.e. Ram Das and Puran Das in Cr.Appeal (DB) No. 271 of 2013 forthwith, if not required in any other case.
23. The appellant Raj Kumar Das (in Cr. Appeal (DB) No. 207 of 2013) is on bail and in view of the fact that his appeal has been allowed, he is discharged from the liability of his bail-bond.
24. Both the aforesaid appeals are allowed.
(Rakesh Kumar, J.)
( Arvind Srivastava, J.)
Anay
AFR/NAFR AFR
CAV DATE N/A
Uploading Date 09.08.2018
Transmission Date 09.08.2018