Patna High Court
Ramashankar Bind & Ors vs State Of Bihar on 10 August, 2015
Author: V.N. Sinha
Bench: V.N. Sinha, Jitendra Mohan Sharma
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.360 of 1992
Arising Out of PS.Case No. 135 Year- 1988 Thana -Sasaram Mufassil District- SASARAM
(ROHTAS)
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1. Kanhaiya Bind, son of Saryu Bind
2. Rameshwar Bind, son of Late Tukush Bind,
Both resident of Village- Malaon, Police Station- Sasaram, District- Rohtas
.... .... Appellants
Versus
The State of Bihar
.... .... Respondent
with
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Criminal Appeal (DB) No. 406 of 1992
Arising Out of PS.Case No. 135 Year- 1988 Thana -Sasaram Mufassil District- SASARAM
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1. Ramashankar Bind, son of Sarju Bind
2. Keshwar Bind, son of Late Chandradeo Bind,
3. Mohan Bind, son of Bhagwan Bind,
All resident of Village- Malaon, Police Station- Sasaram, District- Rohtas.
.... .... Appellants
Versus
The State of Bihar
.... .... Respondent
with
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Criminal Appeal (DB) No. 416 of 1992
Arising Out of PS.Case No. 135 Year- 1988 Thana -Sasaram Mufassil District- SASARAM
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1. Lakhan Bind, son of Shahdeo Bind
2. Dhanukhdhari Bind, son of Late Ganga Bind
2
Both residents of Village- Malaon, Police Station- Sasaram, District- Rohtas.
.... .... Appellants
Versus
The State of Bihar
.... .... Respondent
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Appearance :
For the Appellants : Mr. Ashok Kumar Mishra, Advocate.
Mr. Varun Kumar, Advocate.
For the Respondent : Mr. A.K. Sinha, A.P.P.
Mr. Ajay Mishra, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE V.N. SINHA
and
HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE V.N. SINHA)
Date: 10-08-2015
These three appeals are directed against
judgment of conviction, order or sentence dated
22/24.08.1992passed by 4th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 555/65 of 1989/92, whereunder, three plus two, 5 appellants in Cr. Appeal (D.B.) Nos. 406, 416, both of 1992 have been convicted for the offence under Section 302 of the Penal Code, Section 27 of the Arms Act, sentenced to suffer imprisonment for life, Rigorous Imprisonment for four years under the two counts. The two appellants in Cr. Appeal (D.B.) No. 360 of 1992 have been convicted for the offence 3 under Section 302/149 of the Penal Code, sentenced to suffer imprisonment for life.
2. Prosecution story, as set out in the fardbeyan (Exhibit-3) of informant Sarjoo Paswan (P.W. 6), scribed by Sub-Inspector R.K. Singh of Sasaram (Mufassil) Police Station on 28.03.1988 at 9:00 A.M. at Dhanpurwa Fall is that his son Raj Kumar Paswan together with Jai Ram Mahto, Sarpanch of Agni Gram Panchayat, had taken settlement of chat land for a period of one year for Rs. 200/- from Rajiv Rai, Mundrika Singh of Village- Dhanpurwa. Accused No. 7 Dhanukhdhari Bind and others, resident of Village- Malao forcibly wanted to fish in the same chat land. Dhanukhdhari Bind, Lakhan Bind, Rameshwar Bind, Keshwar Bind, Ramashankar Bind, Kanhaiya Bind, all residents of Village- Malao had fixed three fishing nets in the land 5-6 days prior to the occurrence which was objected to by Raj Kumar Paswan and his companions, resident of Village- Agni. Dhanukhdhari Bind and others threatened Raj Kumar Paswan and Jai Ram Mahto that if they are not allowed to continue fishing in the land, both will have to reap 4 serious consequences. Son of the informant Raj Kumar Paswan informed his father about the said incident. Informant, however, did not take the threat seriously. Earlier also Jai Ram Mahto, Raj Kumar Paswan had gone to the land with diesel pump set to drain out water from the land. Another son of the informant Dhan Kumar also came to the land around 4:00 P.M. to serve meal to his brother Raj Kumar Paswan, saw Dhanukhdhari Bind and others present near the land but having seen Raj Kumar Paswan, Jai Ram Mahto draining out water from the land, went back. It is further stated in the fardbeyan that informant having taken his dinner went to sleep, woke up around 2:00 A.M. and made enquiries about arrival of Raj Kumar Paswan from other family members and having learnt that Raj Kumar has not returned home, came to the land along with his brother P.W.4 Sudarshan Paswan and found Raj Kumar Paswan, Jai Ram Mahto sleeping on the northern end of the land. Informant and P.W. 4 came to the southern end, sat there to maintain vigil over the land. After about half an hour informant saw 7/8 persons variously armed with rifle, gun and lathi 5 approaching the northern end of the land near his son, Jai Ram Mahto and identified them in the moon light. Informant and his brother distinctly recognized Accused No. 7 and all other accused persons. They also saw Accused No. 7 Dhanukhdhari, Accused No. 6 Lakhan Bind firing from their rife on the person of Jai Ram Mahto. Accused Nos. 1, Ramashankar Bind, Accused No. 3 Rohan Bind are said to have fired on the son of the informant Raj Kumar Paswan. Accused No. 2 Keshwar Bind and Accused No. 3 Rohan Bind fired on the person of Raj Kumar Paswan with rifle, gun. Accused Nos. 4, 5 Kanhaiya Bind, Rameshwar Bind are said to be armed with lathi and present at the place of occurrence along with Accused Nos. 1, 2, 3, 6 and 7. No overt act, however, has been alleged against Kanhaiya and Rameshwar Bind. Informant having seen such assault did not raise alarm as he feared for his life. After the accused persons went away, informant, his brother came to their village and raised alarm. The villagers hearing the alarm of the informant approached and were informed about the occurrence by the informant. The villagers having learnt about 6 the occurrence from the informant came to Dhanpurwa Fall and saw the two dead bodies. Information to the Police Station was not sent by the informant and other villagers as it is said in the fardbeyan itself that informant being under bereavement, fear did not think it appropriate to inform the Police Station. Scribe Sub-Inspector R.K. Singh of Sasaram Police Station came to the place of occurrence, recorded his fardbeyan.
3. After recording fardbeyan the scribe forwarded the same to Officer-in-Charge, Sasaram (T) Police Station for instituting the case. While endorsing the fardbeyan for instituting the case the scribe requested Sri Tripurari Singh, Sub-Inspector to investigate the case. In the light of such endorsement Sasaram Mufassil P.S. Case No. 135/88 dated 28.03.1988 was registered with further endorsement that Sub-Inspector Tripurari Singh, Officer-in-Charge, Dariyan Out Post has already taken up its investigation, will investigate the case.
4. In the light of the fardbeyan inquest proceedings of the two deceased Raj Kumar Paswan, Jai Ram Mahto was also conducted at Dhanpurwa 7 Fall on 28.03.1988 at 10:00, 10:15 A.M. in presence of Ram Naresh Mahto, Gopi Ram. Perusal of the Inquest Reports (Exhibits-5, 5/1) indicates that both the deceased were done to death by inflicting firearm injury on their person from close range. After inquest proceeding, the two dead bodies were sent to Sadar Hospital, Sasaram for post mortem, were received in the hospital on 28.03.1988 at 2:00 P.M. The post mortem also conducted on the same day at 2:00, 2:30 P.M. From the Post Mortem Report (Exhibit-2, 2/1) it also appears that the two deceased were done to death by inflicting firearm injuries on their person. It, however, does not appear from the Post Mortem Report that the two deceased were shot from a close range.
5. In the light of the fardbeyan, further statement of the informant, police statement of the witnesses and the contents of the Inquest, Post Mortem Reports, charge-sheet was submitted against six accused persons named in the fardbeyan, on the basis of which cognizance was taken, after supply of police papers case was committed to the court of Sessions. Sessions Court framed charge against all 8 the seven accused persons under order dated 01.06.1990 for the offence under Sections 302/149 of the Penal Code and Section 27 of the Arms Act to which the accused persons pleaded not guilty, claimed to be tried. Charges were amended under order dated 10.10.1991 against Accused Nos. 1, 2, 3, 6, 7 from Section 302/149 to Section 302 of the Penal Code.
6. To support the charge, prosecution examined as many as eight witnesses, out of whom P.W. 1 Gopi Paswan, P.W. 2 Ram Naresh Mahto are the co-villagers who came to the place of occurrence after informant raised alarm in the village, informed the villagers about the occurrence. Both the witnesses are also witness of inquest proceedings conducted on the dead body of the two deceased. P.W. 3 Dhan Kumar Ram is son of the informant who had come to the Dhanpurwa Fall during the day at 4:00 P.M. to serve lunch to his brother, had seen the accused persons near the land. P.W. 4 Sudarsan Paswan is the brother of the informant, had come along with the informant in the night after informant woke up at 2:00 A.M., made enquiries about his son 9 Raj Kumar Paswan deceased. P.W. 5 Dr. Rama Shankar Tiwari is Medical Officer, Sasaram Sadar Hospital who conducted post mortem on the dead body of two deceased. P.W. 6 Sarjoo Paswan is the informant, father of one of the deceased Raj Kumar Paswan. P.W. 7 Jayant Kumar is brother of another deceased Jai Ram Mahto who also came to the place of occurrence after informant went to his village and raised alarm. P.W. 8 Tripurari Singh is the Sub Inspector of Dariyan Out Post. Besides the prosecution party accused persons have also examined one Dinanath Singh as D.W. 1 who has proved the fardbeyan, formal First Information Report of Sasaram P.S. Case No. 72/81 dated 09.02.1981 as also formal First Information Report of Sasaram P.S. Case No. 36/88.
7. In the light of the prosecution story counsel for the appellants submitted that conviction of the appellants for the offence, found true against them, cannot be sustained as the testimony of informant, his brother P.Ws. 6, 4 that they came to Dhanpurwa Fall around 2:00 A.M. in the night of 27- 28.03.1988, saw the occurrence from the northern 10 end cannot be relied upon for the failure of both these witnesses to take steps for prompt reporting of the incident to the police. In this connection he referred to the statement made by the informant in the fardbeyan itself that even after departure of the accused persons both P.Ws. 6, 4 continued to remain at the northern end, came to the village in the morning and raised alarm but even thereafter did not instruct even a villager to inform the police about the incident. The scribe of the fardbeyan S.I. R.K. Singh of Sasaram Mufassil Police Station came to the place of occurrence on his own hearing rumour about the occurrence. In this connection reference is made to the evidence of Investigating Officer of the case, Paragraph 1 of his deposition that he had come to the place of occurrence hearing rumour about the incident. It is submitted that the fardbeyan appears to have been recorded at 9:00 A.M. on 28.03.1988 on the basis of which First Information Report was registered also on the same day at 1:00 P.M. and then dispatched to the Court through Special Messenger which is evident from Column No. 3 of the First Information Report yet the First Information 11 Report reached the court of Chief Judicial Magistrate, Sasaram on 30.03.1988 and there is no explanation at all as to why the special messenger presented the formal First Information Report in the court of Chief Judicial Magistrate, Sasaram for his perusal on 30.03.1988. It is submitted that delay of more than two days in receipt of the First Information Report in court is indicative of the fact that neither the fardbeyan was recorded on 28.03.1988 at 9:00 A.M. nor the First Information Report was registered on the same day at 1:00 P.M. Besides the failure of the prosecution party to inform the police about the incident as also the delay caused in receipt of the First Information Report in the court the version of the informant P.W. 6, his brother P.W. 4 that they saw the occurrence from the northern end of the land in the moon lit night, identified the accused persons as the assailants of the two deceased may not also inspire confidence as during moon lit night also it would have been difficult for the informant, his brother to identify the assailants from the other end of the land. It is next submitted that as per the version of the informant, 12 his brother (P.W. 4) the assailants shot the two deceased from point blank range. Reference in this connection is made to the evidence of the informant (P.W. 6) Paragraph 48. But from the Post Mortem Report it does not appear that the two deceased suffered any charring injury, as such, the story that they were shot from close distance does not appear to be true, which is indicative of the fact that the two so-called eye-witnesses are not the eye-witness of the occurrence and they have come to know about the incident in the morning whereafter they did not even inform the police, however, on rumour the police arrived on its own and the fardbeyan was recorded against the accused persons may be because of the previous enmity as Accused No. 7 Dhanukhdhari Bind is a witness in Sasaram P.S. Case No. 72/81 registered for the murder of his father, mother and brother against the brother, father-in-law of P.W. 4 Sudarshan Paswan.
8. Learned counsel for the State has opposed the submission, submitted that the assertion of the informant that the two deceased were shot from close range appears to have been 13 established from the Inquest Report of deceased Jai Ram Mahto (Exhibit-5/1), in Column No. 5 whereof S.I. R.K. Singh found that deceased Jai Ram Mahto sustained firearm injury on his temporal region with blackening of the skin until left ear. Learned counsel for the State further submitted that delay in receipt of the First Information Report can be attributed to the slackness on the part of the Special Messenger who was entrusted to take the First Information Report to Sasaram Court on 28.03.1988, as such, merely on the ground of delay in reaching the First Information Report in Court, the entire prosecution story may not be disbelieved.
9. Having heard counsel for the parties, it is evident from the material on record that two deceased suffered homicidal death in the night between 27-28.03.1988. Informant, his brother (P.W.
4) informed the villagers about the incident in the morning. Villagers who learnt about the occurrence came to the place of occurrence i.e. Dhanpurwa Fall. It is, however, intriguing that none of the villagers took any step to report the occurrence to either Dariyan Out Post or to Sasaram Mufassil Police. 14 Such, situation may arise if the prosecution party is not sure about the identity of the assailants otherwise the villagers had taken pains to come to Dhanpurwa Fall, what prevented them from coming to either Dariyan Out Post or to Sasaram Mufassil Police Station to report about the occurrence. The other aspect is also equally serious. Informant has categorically asserted in his evidence that the two deceased were shot from close range but the Post Mortem Report does not confirm such fact, which is also indicative of the fact that informant and his brother are perhaps not the eye-witnesses. This being the position, the delay in receipt of the First Information Report in court also becomes relevant as the promptness in receipt of the First Information Report only establish that the things which are appearing from the fardbeyan was recorded at the time at which it is said to have been scribed.
10. In the circumstances, for the reasons aforementioned we have no option but to grant benefit of doubt to the appellants. The impugned judgment of conviction, order of sentence is, accordingly, set aside, the three appeals are allowed, 15 appellants during the pendency of these appeals have been allowed bail, are discharged from the liability of their respective bail bonds.
(V.N. Sinha, J)
(Jitendra Mohan Sharma, J)
P.K.P./N.A.F.R.
U T