Patna High Court
Mahendra Ram vs The State Of Bihar on 5 August, 2009
Author: Navin Sinha
Bench: Navin Sinha, Dharnidhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Death Reference No.13 of 2008
(Death Reference vide letter no. 180 dated 19th July, 2008 and appeal against the
judgment and order dated 26.6.2008 & 30.6.2008 respectively passed by Sri Govind
Prasad Singh, Additional Sessions Judge, Fast Track Court-V, Munger in Sessions Case
No. 533 of 2005)
State of Bihar Versus Mahendra Ram & Munna Ram
WITH
Cr. Appeal No.714 of 2008
Upendra Ram Vs. The State of Bihar.
WITH
Cr. Appeal No.747 of 2008
Mahendra Ram Vs. The State of Bihar.
WITH
Cr. Appeal No.814 of 2008
Munna Ram Vs. The State of Bihar.
For the Appellants: Mr. Kanhaiya Prasad Singh, Sr. Advocate
For the State: Mr. Lala Kailash Bihari Prasad, Sr. Advocate.
PRESENT
THE HON'BLE MR. JUSTICE NAVIN SINHA
THE HON'BLE MR. JUSTICE DHARNIDHAR JHA
Navin Sinha,J.
The present appeals arise from the judgment of conviction and
sentence dated 26.6.2008 of the Additional District & Sessions Judge, Fast
Track Court No. V, Munger. Death Reference No. 13 of 2008 arises also out of
the same judgment of conviction and order of sentence as required by Section
366 Cr.P.C.
Six persons were charged under Sections 302/34. 120B, 225 and
504 of the Penal Code, 3 & 4 Explosives Substances Act. Three have been
acquitted.
Appellant Mahendra Ram and Munna Ram have been convicted
and sentenced to death under Sections 302/34, 120B of the Penal Code and
Sections 3 & 4 of the Explosive Substances Act. Accused Upendra Ram has
been convicted and sentenced to life imprisonment with fine and in default to
one year rigorous imprisonment under Section 302/34, 120B IPC and one year
rigorous imprisonment under Section 504 IPC. He has further been sentenced
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to ten years rigorous imprisonment each under Section3 & 4 of the Explosive
Substances Act to run concurrently. The death reference, as such, was made by
the trial court for the confirmation of sentence of death awarded by the trial
court to appellants Mahendra Ram and Munna Ram.
For an occurrence of 10.3.2005 at about 5 P.M. a written report of
the same date was given by the informant Rajesh Pd., P.W. 7 to the Officer
Incharge Kotwali, Munger. He stated that the appellants along with Dhappu
Ram and Chandra Bhanu Prasad and two unknown persons came and
protested that the informant opposed their illegal activities and, therefore, their
entire family would be blown of by bomb. Munna Ram threw a bomb at the
informant's father Chhote Lal Mahto who was sitting in his betel shop. The
rear portion of his father's head was blown off leading to his being deceased.
Mahendra Ram threw another bomb which hit O.P. Verma of Sadipur, his head
was also blown off and deceased. The bomb thrown by Upendra Ram fell on
the road and exploded. Chandra Bhanu Prasad and Dhappu Ram stated that the
work was done and all started to flee. One person was apprehended and
mercilessly assaulted by the mob. Chandra Bhanu Prasad helped Munna Ram
to flee away after the latter was apprehended. The cause of the assault was
attributed to the opposition of the informant against the illicit liquor trade
indulged in by the accused. Anil Mahto, Pintu Sinha, P.W.2, Umesh Prasad,
P.W. 4 were named as F.I.R. witnesses. P.W. 4 and Santosh Kumar Patel, P.W.
8 were attesting witnesses to the first information report.
After investigation the Police submitted charge sheet and
charges were framed against the accused under Sections 302/34, 120B, 225
I.P.C. and Sections 3 & 4 of the Explosive Substances Act.
The prosecution examined ten witnesses. P.W. 1, was the
husband of the sister of P.W. 7, informant. P.W. 2 was a tenant of the
informant. P.W. 3 & 4 are the cousin brothers of the informant and P.W. 8,
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maternal cousin. P.W. 5 is the Doctor, who held post-mortem of the deceased.
P.W. 6 is a formal witness. P.Ws. 9 & 10 are the Investigating Officers. The
defence examined one witness.
The fardbeyan and the formal F.I.R. were marked as Exhibits.
The inquest report was marked as an Exhibit and the post-mortem report also
was marked as Exhibit.
Learned Senior Counsel Sri Kanhaiya Pd. Singh submitted that
the appellants had been falsely implicated. The manner and sequence of events
was entirely different as first disclosed before the Police than that urged by the
prosecution at trial. The prime prosecution witnesses P.Ws. 1, 3, 4, 7 & 8 were
related and, thus, were interested witnesses. P.W. 2 was a tenant in the
premises of P.W. 7 and was, therefore, also an interested witness. P.W. 7, the
informant, during the course of trial gave up the specific allegations against co-
accused Chandra Bhanu Prasad and himself honourably exonerated him. The
other witnesses during investigation had not named co-accused Dhappu when
they contradicted themselves during trial by naming him also to which their
attention was specifically drawn, which was corroborated by P.W. 9, the
Investigating Officer. Both the aforesaid accused have been acquitted. The
father of the appellant was deceased at his own door, while the other deceased
O.P. Verma is stated to have been deceased near M/S Aditi Electronics. The
distance between two places of occurrence is approximately 40-45 yards. The
latter was not visible from the former place as deposed by prosecution witness.
The body of the deceased O.P. Verma was recovered from the verandah of a
shop premises of another about which there are no allegations of assault at that
location. P.W. 1 and P.W. 3 are seizure list witnesses and yet P.W. 3 states that
he does not know who else signed the seizure list. P.W. 1, a seizure list witness
gave his statement to the Police one and half months' later. P.W. 4, who is an
inquest report witness gave his statement two months twenty days later to the
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Police. The occurrence was on a busy road and yet there was no independent
witness examined, despite their being named in the written report.
The written report was signed by P.W. 7 and witnessed by P.W
4 and P.W. 8. The Investigating Officer, P.W. 9 states that he reached the place
of occurrence at 5.20 and assumed investigation thereafter on the spot at the
orders of the Superintendent of Police. P.Ws. 2 & 3 state that the Police came
within 20-25 minutes of the occurrence and recorded their statement. This was
done after investigation had commenced as noticed above. P.W. 7 says that the
written report submitted by him was written by P.W. 4 and given to the Police
at 6 in the evening. He denies that it was given at 9 P.M. at the Police station.
P.W. 4 who wrote the written report, denies having written it. P.W. 3 states
that the statement of the informant, P.W. 3 and others was taken by the Police
on the spot. There was no occasion for the F.I.R. to be registered at 9 P.M on
basis of alleged information of the occurrence furnished to the Police at
9.00P.M. That this F.I.R. was a fabricated and concocted document brought
into existence after the deliberation for false implication. P.W. 7, who signed
the written report, stated that he was not fully aware of what was written in it
as it was written by P.W. 4. A part was only read over to him and not the entire
document. P.W. 4 and 8, who are the author and attesting witnesses to the
written report respectively state that before putting their signature they did not
read the written report and signed after reading it partially only. It was
submitted that they were not rustic witnesses but practising Advocates, whose
signature could not be obtained by default. P.W. 8 stated that he normally
reads a paper before signing. There was no formal description of the place of
occurrence. While the other witnesses talk of three bombs having been thrown,
P.W. 7 talks of 4-5 bombs exploded, but the Police finds evidence of two
explosions only.
5
The submission, therefore, was that the written report itself was
a highly suspicious, antetimed document demolishing by itself the entire
prosecution case in view of the nature of evidence that has transpired. The
prosecution witnesses were completely unreliable. The informant was
completely untrustworthy and no credence could be given to him or the
allegations by him. He has demolished the entire prosecution case himself.
There was no justification for the conviction of the appellants after the
acquittal of co-accused Chandra Bhanu and Dhappu. The appellants were,
therefore, entitled to acquittal also.
Learned Senior Counsel, Sri Lala Kailash Bihari, for the
Respondents submitted that any infirmity and consequent acquittal of two co-
accused cannot ipso factor annure to the benefit of the appellants. A wrong
acquittal can be of no avail. If the prosecution did not support the allegations
against the co-accused, that shall not otherwise demolish the case of the
prosecution vis-à-vis the present appellants invoking the maxim of falsus in
uno falsus in omnibus. The written report was made with promptitude. There
are two deaths in the episode and the forensic report confirms death by bomb
explosions. There is consensus between the oral and medical evidence.
It is trite law that acquittal of a co-accused cannot simpliciter be
a ground for acquittal of other accused. There may be factors distinguishing
the two cases. Alternately, an erroneous acquittal and absence of any challenge
to the same cannot be a ground to demand similar treatment by others.
Likewise, the testimony of an interested witness cannot be discarded on that
ground alone. It would only require the Court to be more cautious and
scrutinise the evidence carefully Evidence, otherwise cogent and convincing
cannot be rejected on the ground that there was no independent witness,
though the occurrence had taken place on a busy road. But, there may be
circumstances where the witnesses are interested and the manner of occurrence
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as described requires corroboration by independent witness also. Ultimately,
therefore, it shall all depend on the facts and circumstances of the case. It has
also to be kept in mind that it shall be those close to the deceased, who shall be
most keen that the real culprits be booked.
The written report is specific. It attributes a primal role to
Chandra Bhanu, who was accompanied by Dhappu and others. It was on the
orders of the former that three bombs were thrown, when the two stated that
the work was done and it was time to flee. Chandra Bhanu freed co-accused
Munna Ram, when he was apprehended.
P.W. 7, the informant, who does not disown the written report
in its entirety, was an eye witness to the occurrence. In his cross-examination,
he states that he had never seen Chandra Bhanu and Dhappu, who are residents
of the same locality, well known to him, present at any time throughout the
occurrence. He also refused to identify Fantus, whose name figured during
investigation. P.W. 2 stated that Chandra Bhanu was a resident of the locality
known to him and was not present during the entire occurrence. To the same
effect is the statement of P.W. 3. P.W. 4 and P.W. 8 also stated that Dhappu
and Fantus were not present. P.Ws. 1, 2, 3, and 4 talk of the presence of
Dhappu and asserted that they had given his name in their statements under
Section 161 Cr. P.C. P.W. 9, the Investigating Officer has stated that the
informant in his statement under Section 161 Cr.P.C. had not stated about
throwing of bombs by Mahendra Ram and Upendra Ram and neither had he
named Dhappu Ram. P.W. 3 had not named Dhappu, Munna and Mahendra.
P.W. 2 had likewise not named Munna Ram, Mahendra Ram, Upendra Ram
and Dhappu Ram. P.W. 7 had not stated anything about any accused being
apprehended and beaten up. In his restatement also he did not state that Munna
Ram, Mahendra Ram, Upendra Ram and Dhappu Ram had come to the shop of
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his father and indulged in abusing. Likewise, P.W. 8 had also not made
statements as was being deposed in Court.
The contradiction in the statements of the prosecution witnesses
as stated during investigation and in the trial having been pointed out to them
in the manner provided for in Section 145 of the Evidence Act, and
corroborated by the Investigating Officer, under Section 157 of the Evidence
Act lends credence to the allegation of the defence that an entirely new case
was sought to be made out by the prosecution for what was essentially a
different manner and sequence of events.
The Police is stated to have arrived at the place of occurrence
within 20 minutes i.e. at 5.20 P.M. P.W. 7, the informant and other prosecution
witnesses have corroborated this. P.W. 7 says that the written report prepared
by P.W. 4 was given to the Police and denies that any written report was given
at the Police Station at 9 P.M. He signs the written report but states that he is
not properly aware of the contents. He attributes the preparation of the written
report to his cousin P.W. 4, who is an Advocate. The latter admits that he is an
attesting witness to the F.I.R. but denies full knowledge or reading of the same
before signing. Similar is the statement of P.W. 8, relative of P.W. 7, another
Advocate, an attesting witness to the written report. They were not rustic
witnesses but were practising Advocates fully aware of the nature and
importance of the documents they were signing. It is not possible to accept
their contention that they signed it unaware of the full contents. It raises
serious doubts that they were attempting to conceal something. P.W. 7 says
P.W. 4 drew up the written report, while the latter himself denies it. P.W. 1 and
P.W. 3, who are both related to the deceased and signed the seizure list
immediately after the occurrence, yet P.W. 3 says that he is not aware who is
the other signatory to the seizure list. Notwithstanding the fact that P.W. 1 was
a seizure list witness claiming to be also an eye-witness, yet his statement was
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recorded by the Police one and half months later with no explanation either by
the witness or by the Police. Likewise, P.W. 4 is also an eye-witness and an
inquest report witness related to the deceased, who is stated to have drawn up
the written report given to the Police, yet his statement was recorded by the
Police two months twenty days later. He states of his continued availability
throughout as an Advocate. There is no explanation for this delay, though he
could be presumed to be present at the Police Station when the written report
was handed over to the Police.
P.W. 3 states that the Police came within 20-25 minutes and
took the statement of the informant P.W. 3 and others, yet he states that P.W. 7
gave written report to the Police at 9 P.M. He was sleeping at that time and
was, therefore, unaware about it, but simultaneously states that he gave his
statement to the Police at 8.30 P.M. P.W. 7 states that he gave the written
report to the Police at 6 P.M. at the Police Station and denies of having given
any report to the Police at 9 P.M. at the Police station. P.W. 9, the
Investigating Officer states that P.W. 7 gave him the written report
immediately after he reached the place of occurrence. P.W. 2, a tenant, is
alleged to have been injured but there is no injury report.
The written report reflects that the two explosions took place at
one location. P.W. 7 in his deposition states that he was at his door when the
bombs were thrown and O.P. Verma was deceased near Aditi Electronics.
P.W. 1 states that M/S Aditi Electronics was not visible from their house due
to intervening structures. P.W.9, the Investigating Officer states that the
difference between the betel shop of the deceased, which is the first place of
occurrence and M/S Aditi Electronics was approximately 40-45 yards. The
body of deceased O.P. Verma was found on the verandah of the market cum-
shop of one Udai Jaiswal. There are no allegations of the accused chasing O.P.
Verma and throwing bombs at him. While the prosecution witnesses alleged
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throwing of three or more bombs, the Investigating Officer states that he did
find signs of only two explosions at the aforesaid two locations.
P.W. 7, the informant denies having any knowledge of a Police
raid on his liquor business. The first Investigating Officer, P.W.9 has deposed
that he had been given specific orders by the Superintendent of Police to raid
the illicit liquor business of P.W. 7 but states was unable to carry out the raid
due to his transfer order received on the same day.
P.W.9, in his deposition has stated that for the same occurrence,
the present Kotwali P.S. case 136 of 2005 and another Kotwali P.S case 137 of
2005 were registered and that he was the Investigating officer in both. The
evidence of P.W.10, the second Investigating Officer reveals that the Sanction
order, the Post Mortem report and the investigation report were first filed in
Kotwali P.S. Case 137 of 2005 and only after the orders of the Court on
6.3.2006 they were filed in the present case. P.W. 8 denies that Kotwali P.S.
case 137 of 2005 was registered on his Fardbayan.
This Court on consideration of the aforesaid materials and
nature of evidence is satisfied that the allegations against the accused cannot be
stated to have been proved beyond all reasonable doubts. The several
inconsistencies, contradictions in the statement of the witnesses and other
necessary materials leaves this Court satisfied that they have attempted to
conceal more than they have sought to reveal of the occurrence. A different
manner and sequence of the occurrence appears to have been presented by the
prosecution for their convenience in a truncated manner implicating those
desired and exonerating those against whom the allegations were originally
made also. There is not a semblance of an explanation for exonerating those
earlier accused with a primal role and those with regard to whom no statement
was made before the Police. All these factors cast a serious doubt on the
prosecution case.
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The informant, in Court, has given up the entire genesis and
manner of occurrence when the two co-accused have been exonerated. The
informant having implicitly accepted false implication, cannot be trusted of
telling the truth. The principle of falsus in uno, falsus in omnibus has no
application in the facts of the case, when the prosecution has itself knocked out
the basic edifice of its own case as distinct from peripheral issues.
The prosecution despite the nature of evidence given by its
witnesses, did not consider it necessary to re-examine them under section 137
of the Evidence Act or cross-examine them under section 154 of the same.
The illicit liquor trade rivalry revealed during trial between the
two sides, leaves this Court satisfied that in the facts and circumstances of the
case, the charge cannot be stated to have been proved beyond all reasonable
doubts. On the contrary, the prosecution has created a cobweb for itself and
enmeshed itself, the benefit of which has to go to the accused.
Unfortunately, the trial court ignoring all these crucial issues
inverted the law to hold that the defence was based on surmises and
conjectures to hold the appellants guilty and that there could not be two views
of the occurrence to grant any benefit to the accused. And all this, while
unquestionably granting acquittal to Chandra Bhanu, Dhappu Ram and Fantus
as a case of no evidence. This Court finds it difficult to uphold the conviction
let alone the death sentence.
The manner in which the trial proceeded as noticed above,
leaves the impression that the prosecution witnesses considered the court room
as a playing field for a friendly match. Unfortunately, the trial court assumed
the role of a referee forgetting the important role that it had to play in the
dispensation of justice dealing with the serious issue of a death sentence and
life imprisonment affecting not only the liberty but also the life of a citizen.
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The subversion of the legal maxim presumed innocent till proved guilty to say
the least was unfortunate.
We are satisfied that the present is a fit case for initiating
proceedings of perjury against P.W. 7, Rajesh Prasad son of late Chhote Lal
Prasad. We, accordingly direct the trial court to initiate proceedings, hold
inquiry in accordance with law and pass appropriate orders.
We consider such directions necessary as, given the
insurmountable burden of cases before the Courts and the troubling issue of
arrears, the Court should be left in peace to decide serious contested matters
and not friendly matches.
The conviction dated 26.6.2008 and sentence dated 30.6.2008 of
all the appellants in Sessions Case 533 of 2005 by the Additional District &
Sessions Judge, Fast Track Court V, Munger is set aside. The appellants in
Criminal Appeal No. 814 of 2008, namely, Munna Ram and Criminal Appeal
No. 747 of 2008, namely, Mahendra Ram are directed to be released forthwith
from custody unless they are wanted in any other case. The death reference is
answered accordingly. The appellant in Cr. Appeal No. 714 of 2008, Upendra
Ram, is discharged from the liabilities of his bail bonds.
The appeals are allowed.
(Navin Sinha, J.)
Dharnidhar Jha, J.
I agree.
(Dharnidhar Jha, J.) PATNA HIGH COURT The 5th August, 2009. NAFR/AKS