Patna High Court
Bhuneshwar Rai & Ors vs State Of Bihar on 25 November, 2017
Author: Anil Kumar Upadhyay
Bench: Chief Justice, Anil Kumar Upadhyay
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (DB) No.574 of 1994
(Against the judgment of conviction and order of sentence dated
28.09.1994passed by Shri Damodar Prasad, learned 3rd Additional Sessions Judge, Arrah in Sessions Trial No. 79 of 1984, arising out of Sandesh P.S. Case No. 55 of 1983) ===========================================================
1. Bhuneshwar Rai, son of Ram Chandra Rai,
2. Lal Bahadur Rai, son of Ram Chandra Rai Both residents of Village, Bartiyar, P.S.- Sandesh, District- Bhojpur.
3. Ramasrey Rai, son of Diljere Rai, resident of Village, Bara, Aee, P.S.- Sandesh, District- Bhojpur.
.... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance :
For the Appellant/s : Mr. Kartik Kumar Sinha, Advocate For the Respondent/s : Mr. Shivesh Chandra Mishra, APP =========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY) Date: 25-11-2017 The instant Cr. Appeal has been filed by the appellants against the judgment of conviction and order of sentence dated 28.09.1994 passed by learned 3rd Additional Sessions Judge, Arrah in Sessions Trial No. 79 of 1984, arising out of Sandesh P.S. Case No. 55 of 1983, whereby the appellants have been convicted under Sections 302/34 of the Indian Penal Code and sentenced to undergo RI for life.
2. The prosecution case in brief is that in the night between 7/8.05.1983, the deceased Parsuram Choubey after taking Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 2/22 meal came to his vegetable field to look after the same. He was sleeping near the well in the field and his son Mahendra Choubey (informant) was also sleeping in the field of sugarcane, 100 yards away from his father. At about 1.00 A.M. in the night the informant heard voice of his father for help, then the informant rushed towards his father and saw 12-13 miscreants, who were lighting torch. It is further alleged that Bhubneshwar Rai (appellant no.1) was armed with Kata, Lal Bahadur Rai (appellant no.2) was armed with Bhala and Ramashrey Rai (appellant no.3) was armed with Gadasa. It is alleged that the informant did not identify the remaining accused persons and that all the accused persons killed his father and also threatened to kill the informant. It is further alleged that on halla, the brother of the informant Jai Kumar Choubey, Deonandan Rai and other villagers came there, but the accused persons fled away.
On the basis of the Fardbeyan of the informant Mahendra Choubey Sandesh P.S. Case No. 55 of 1983 was registered for the offence under Section 302/34 of the Indian Penal Code.
3. After investigation, the police submitted charge- sheet against four accused persons and thereafter Chief Judicial Magistrate took cognizance and committed the case to the Court of Sessions for trial. On framing of charge, all the four accused persons pleaded not guilty and claimed total innocence and their false Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 3/22 implication due to previous enmity, as no one has seen the actual occurrence of killing the deceased.
4. On behalf of the prosecution 10 witnesses were examined, namely, P.W.1 Mahendra Choubey is the informant of the case, P.W.2 Jagarnath Rai and P.W.3 Jugeshwar Rai claimed to be the eye witnesses. P.W. 4 is Madan Rai. P.W.5 Jay Kumar Dubey is a witness, who claimed to have seen the assailants and others running towards east at the time of occurrence according to the prosecution at 1.00 A.M. P.W. 6 Shiv Shandar Dayal Singh, P.W.8 Dinesh Rai and P.W.9 Gopal Rai are the formal witnesses. P.W. 7 is the doctor, who conducted the post-mortem examination on the dead body of the deceased. P.W. 10 is Ramjee Rai.
5. The trial court on the basis of scrutiny of the evidence oral and documentary acquitted Deonath Rai extending the benefit of doubt of his identity in the commission of crime whereas three accused-appellants were convicted for the offence under Section 302/34 of the Indian Penal Code and they have been sentenced to undergo RI for life.
6. Learned counsel appearing on behalf of the appellants has submitted that the trial court has committed gross error in convicting the appellants. He submitted that for convicting the Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 4/22 appellants, the trial court was required to examine the deposition of the witnesses with a pinch of salt in a case where there is previous enmity even pleaded by the informant, as motive of the crime. All the witnesses in the instant case were inimical to the appellants on account of previous pending criminal or other cases. He submitted that the trial court has not considered the improbability of the participation of the accused persons in commission of crime. Two out of four accused persons were 70 years and above at the time of judgment. Their participation in the commission of the crime and fleeing away from the place of occurrence in the dead night at 1.00 A.M. is most improbable, rather impossible. He submitted that the place of occurrence, the time of occurrence, the manner of assault by the appellants and their chance of fleeing away from the place of occurrence and their identification by the witnesses are not only improbable, but impossible. He submitted that enmity cuts both ways, which may be the reason for commission of crime, but it may be a ground of false implication in case where the informant's side has no definite clue, who has committed the crime.
7. Counsel for the appellants submitted that in the instant case, in fact, at the alleged time of occurrence, no one was present at the spot and none has seen the actual occurrence and that is the reason the informant and others have implicated the appellants on Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 5/22 account of their previous enmity. Adverting to the fardbeyan, he submitted that the occurrence took place in the night of 7/8.05.1983. The Chaukidar, who informed the police station about the occurrence, on being sent to the police station by the informant, has not disclosed the name of the assailants. The informant has admitted that he has not disclosed the name of assailants to the Chaukidar when he was sent to police station, although he claimed that he has identified the real assailant in the occurrence. He submitted that the motive of killing the father of the informant was pendency of a case pertaining to theft of Rehat at the instance of the informant against the accused persons.
8. Counsel for the appellants submitted that it is most unnatural that if the accused-appellants have grudge against the informant in connection with the filing of case relating to Rehat, then no reasonable man can accept that the accused persons having grudge against the informant for lodging the case relating to Rehat would kill his father and will spare the informant, who is the real object of grudge, as according to the fardbeyan, the accused persons killed his father and when the informant reached there he was threatened by the accused persons that they will kill the informant and on such threat the informant raised alarm, moved towards his village and on hearing halla villagers reached at the place of occurrence and seeing them the Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 6/22 accused persons fled away. He submitted that this story of sparing him when there was every chance to kill the informant by the accused persons, though they have actual grudge against them is difficult to digest. Adverting to the deposition of the witnesses, counsel for the appellants submitted that the identification in the instant case by the witnesses appears to be most artificial and improbable. The informant (P.W.1) in his deposition has state that he could identify the assailants in the dead night not at his own torch but in the alleged torch light of the miscreants. The informant has stated that he was sleeping at a distance of 100 yards from the vegetable field where his father was sleeping and on hearing the alarm of his father he woke up in the dead night without any source of light he reached at the place of occurrence and claims to have identified four accused persons in the alleged torch light of the accused. P.W.1 has admitted that he was threatened when he tried to save his father and thereafter he left the place of occurrence and on his raising alarm P.W. 5 Jay Kumar Choubey, Deonandan Rai (not examined) and other villagers assembled, thereupon the accused persons fled away towards north. After the accused persons fled away, he claimed that he along with other villagers reached at the place of occurrence, where he found his father lying dead. During cross examination the informant was given a suggestion that all the accused were of Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 7/22 advance age and could not have committed the crime on account of their old age. He has admitted the fact that the case of theft of Rehat was registered in the year 1973 and against Ramashray Rai and in that case Ramashray Rai was acquitted and he received a notice for return of the Rehat to Ramashray Rai. He also admitted that rest three accused persons have no connection in theft of Rehat. The informant has admitted that on his raising alarm, witnesses from village reached the place of occurrence and he disclosed the name of the assailants to Dewanand Rai (not examined), Yugeshwar Rai (P.W.3), Jagarnath Rai (P.W.2), Gopal Rai (P.W.9), Madan Rai (P.W.4), Awadhesh Rai (not examined and Ramdas Rai (not examined). Therefore, if the version of informant (P.W.1) is accepted that the witnesses were told by the informant about the occurrence and the participation of the accused in the commission of crime, then all other witnesses are hearsay witness and not the eye witness. In his cross-examination, the informant has admitted that Daroga Jee has only recorded his statement and not the statement of any other witness, although Jai Kumar Choubey met Daroga Jee at the time he (Daroga jee) reached the place of occurrence. Referring to the deposition of P.W.2 he (informant) admitted that this witness claims to be the eye witness of the occurrence, who has stated that on hearing halla, he ran towards the west of the village and met Mahendra Choubey and Jai Kumar Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 8/22 Choubey and thereafter when he reached the place of occurrence, in the light of torch, he identified 10-12 persons including Lal Bahadur Rai and Bhuneshwar Rai (appellants) were cutting the neck of the deceased and Lal Bahadur Rai was spearing Bhala blow and when several people assembled, the accused persons fled away and when the accused persons fled away, they reached near the well and found Parshuram Choubey dead.
9. Counsel for the appellants submitted that this witness, who allegedly ran towards the west from the village on hearing halla admittedly reached after the P.W.5 Jai Kumar Choubey reached the place of occurrence and as such his deposition as to the assault by the accused persons is most unrealistic.
10. Referring to the deposition of P.W.5, learned counsel submitted that P.W.5 in his deposition stated that he was sleeping in the night at the roof of his house and he woke up on hearing halla of Mahendra Choubey and Dewanand Rai and then he rushed towards the place of occurrence and saw approximately 20 persons fleeing away towards east and he could not identify out of the assailants Bhuneshwar Rai, Lal Bahadur Rai and Deonath Rai. Counsel for the appellants submitted that the deposition of P.W.2 and P.W.5 if compared then a clear picture emerges that the claim of Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 9/22 P.W.2 that he has seen the actual occurrence of assault is impossible, if P.W.5 woke up on hearing alarm by the informant and Dewanand Rai and he reached the place of occurrence after the occurrence, as he claimed that he has seen the accused persons fleeing away towards east then claim of P.W.2 that he has seen the accused persons assaulting the deceased after arrival of P.W.5 at the place of occurrence is unrealistic and improbable. In addition thereto during cross-examination this P.W.2 when suggested about the series of cases of P.W.2 with the accused persons, which indicate the reason for giving false evidence against the accused persons. Referring to cross-examination of P.W.2 with the cross-examination of P.W.1 he submitted that when the P.W.1 has specifically stated that at the place of occurrence Daroga Jee has recorded only his statement and not recorded the statement of any other witness, whereas P.W.2 claims that his statement was recorded by Daroga Jee at the place of occurrence runs contrary to the deposition of P.W.1, as this witness has identified only two persons, namely, Lal Bahadur Rai and Bhuneshwar Rai, whereas the informant has identified four accused persons.
11. Counsel for the appellants submitted that it is most unrealistic that this witness, who belongs to the same village, if he has seen the occurrence, there is no reason not to identify the other Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 10/22 accused residents of the same village, if he has seen the occurrence and the assailants in the torch light. This witness was suggested during cross-examination about the false deposition due to previous enmity.
12. Counsel for the appellants submitted that P.W.3 has claimed that he rushed the place of occurrence on hearing halla of the informant and then he rushed towards the place of occurrence and saw Bhuneshwar Rai, Lal Bahadur Rai and Ramashray Rai assaulting the deceased with Katta, Bhala and Gadasa. This witness has previous enmity with the accused persons and has motive behind false deposition against the accused persons. P.W.3 in his deposition claims that when he reached to place of occurrence he met with Mahendra Choubey (informant), Jagarnath Rai and Jai Kumar Choubey (P.W.5) and he claims that he has seen from a distance of 25 yards accused assaulting the deceased. Again this witness cannot be relied for the reason that there was previous enmity with the accused persons and the fact that he also claims that he reached the place of occurrence after the arrival of Jai Kumar Choubey and as such if Jai Kumar Choubey reached the place of occurrence, after completion of actual occurrence, then this witness cannot be relied as eye witness of the occurrence. Again this witness claims to have stated before the Daroja Jee about the occurrence and his statement Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 11/22 was recorded, but the same runs contrary to the specific deposition of P.W.1, who stated that except his statement, the police has not recorded the statement of any other witness.
13. Counsel for the appellants submitted that P.W. 4 is a hearsay witness and as such cannot be relied upon.
14. Adverting to the deposition of P.W.5, counsel for the appellants submitted that this witness has identified the accused fleeing away from the place of occurrence. His identification is doubtful, as he claims that he raised alarm in the village that Parsuram Choubey Ke Marat Ba (Parsuram Choubey is being assaulted), but this witness has admitted that on his raising alarm, the villagers have not responded. Neither any villager came to his door nor anyone was found on the way to the place of occurrence. He claimed that 10-15 minutes time was consumed in order to get him down from the roof of the house and then he reached the place of occurrence where he found the deceased was lying dead and after him Madan Rai (P.W.4), Gopal Rai (P.W.9) and others arrived at the place of occurrence. This statement of P.W.5 falsifies the claim of P.W.4 that he reached the place of occurrence and saw the actual account of occurrence, as P.W.5 reached the place of occurrence after the death and after his arrival at the place of occurrence P.W.4 and Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 12/22 P.W.9 reached the place of occurrence. In para. 8 of his cross- examination, this witness has stated that he met the informant 10 minutes after he reached the place of occurrence, where he saw Parsuram Choubey lying dead. This statement of P.W.5 runs contrary to the statement of informant (P.W.1) and contradicts his own statement of seeing the assailants. The definite statement of this witness (P.W.5) that on the date of occurrence Daroga Jee has not recorded statement of any persons than the informant falsifies the claim of P.W.2, P.W.3 and P.W.4 that they have stated before the police at the place of occurrence.
15. The other witnesses are irrelevant in the matter of identification of the accused persons. In this case, the investigating officer has not been examined. From the materials available on record, it does not appear that any attempt was made for investigation on the scientific line. The seizure list witness has deposed that he has signed on the seizure list, but he neither admitted that the contents of the seizure list was read over nor he was read and on mere asking of the Daroga Jee he has signed the seizure list.
16. In the totality of the facts situation, counsel for the appellants submitted that the conviction of the appellants in such a situation is unsafe. The trial court has disbelieved the definite case Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 13/22 of the informant and other about the participation of Deonath Rai as the trial court realized that he was more than 70 years old at the time of judgment and found the case of false implication of Deonath Rai in this case. By the same analogy of advance age and false implication due to previous enmity ought to have extended to the other accused persons and the trial court ought to have acquitted extending them also the benefit of doubts.
17. Mr. S. C. Mishra, learned A.P.P. appearing on behalf of the State submitted that although there is previous enmity, but enmity cannot be a ground to disbelieve when the prosecution case is very consistent in the matter of commission of crime and identification of accused persons. Although, he admitted that in the dead night identification of the accused by the informant in the torch light of the accused and the identification of accused fleeing away from the place of occurrence by P.W.5 by itself is not sufficient, but the other witnesses have also supported the prosecution case. He submitted that the murder of Parsuram Choubey is not in dispute. The only issue is identification of the real assailant. He has not ruled out the possibility of false implication, if it is found that none has seen the commission of murder of Parsuram Choubey.
18. We have gone through the deposition of the Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 14/22 witnesses. The prosecution witnesses are at variance in the manner of the identification of the accused in commission of crime. The deposition of P.W.2, P.W.3 and P.W.4 as to have seen the assailants committing the crime does not inspire confidence in the instant case for the obvious reason that the three witnesses have stated that they reached the place of occurrence after P.W.5 and this P.W.5 has deposed in the Court that he woke up after hearing the alarm of the informant and Deonandan Rai. In the instant case Deonandan Rai was not examined. According to P.W.5 this Deonandan Rai was the person, who was first to reach the place of occurrence. Even according to the informant, he reached the place of occurrence, but the prosecution has not explained the reason for non-examination of Deonandan Rai as this Deonandan Rai could have unfolded the true narratives of the incident. The deposition of P.Ws.1 and 5 indicates that it is the Deonandan Rai, who reached the place of occurrence first, but without any rhyme and reason, he was not examined in the instant case. There is no material on record to indicate that investigation was done on scientific line. Neither the blood stained soil was sent for FSL report nor the investigating officer of this case was examined. It is true that the case diary in the instant case was marked as Exhibit, but non-examination of the investigating officer has caused prejudice, as there are many circumstance, which stands Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 15/22 unexplained by the prosecution, in the backdrop of the fact that there was previous enmity. The Court is required to examine whether the crime as alleged by the prosecution has been committed or not and secondly who has committed the crime. So far as murder of Parsuram Choubey is concerned is not in dispute. The only issue is who has killed Parsuram Choubey and whether the prosecution has been able to establish the charge of killing Parsuram Choubey by the appellants beyond all reasonable doubt or there is reasonable doubt of their false implication on account of previous enmity. A close security of the deposition of the witnesses, it appears that except P.W.1 the informant of the case, none could have seen the actual occurrence and everyone is hearsay witness, as the name of the assailant was disclosed by the informant. The identification of the accused person on account of deposition of P.W.5 that he saw them fleeing from the place of occurrence in the dead night does not inspire confidence in view of the fact that there was previous enmity. It is true that enmity may be the reason for commission of crime, but at the same time it may be a ground for false implication and if there is no clue of assailants in the commission of crime.
19. Counsel for the appellants appears to be correct that in the attending facts and circumstances when the prosecution witnesses are doubtful and the chance of implication of appellants on Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 16/22 account of previous enmity is most probable. Previous enmity is admitted not only by the P.W.1, but other witnesses and as such they have also grudge against the accused persons and there is sufficient reason for their making false statement and as such while scrutinizing their deposition and their claim of seeing the actual occurrence and the identification of the assailants, we find that the identification of the accused is not above doubt, since the trial court has disbelieved the prosecution case and the version of the eye witnesses, who claimed to have seen the occurrence and the assailants, so far as the participation of Deonath Rai in the commission of crime. In that situation, the trial court was required to scrutinize the witnesses with utmost care and caution.
20. We have gone through the records of the case and Exhibit marked in the instant case at the instance of defence which would indicate that there was previous enmity on account of several litigation pending between the informant and the accused persons and the accused persons and the witnesses, who deposed in the instant case and as such the trial court was required to rule out every possibility of false implication of the accused persons and required to see that no other hypothesis of crime is possible. The most unfortunate part of the present case is non-examination of the investigating officer of the case. Failure of investigation on scientific Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 17/22 line and to crown it all the manner in which the trial court examined the accused persons under Section 313 of the Cr.P.C. The examination of the witnesses under Section 313 of the Cr.P.C. is not empty formality, but it is mandatory requirement to ensure fair trial and as such the trial court was required to confront the accused persons with all adverse circumstances, which are on record during the trial. The law in this regard is well settled. Reference in this connection may be made to the judgment of the Apex Court in the case of Sukhjit Singh Vs. The State of Punjab, reported in (2014) 10 SCC 270 (para 11 to 13). Para 11, 12 and 13 is quoted herein below for ready reference:
"11. Learned senior counsel finally submitted that the accused appellants have already undergone sentence of about seven years and the incident had taken place about forty years back and there is no reason to continue the accused to suffer in jail.
12. On the other hand, Ms. Prerna Singh, learned counsel appearing for the State, vehemently opposed the submissions made by the counsel for the accused-appellants. She contended that a strong mob of around 400 assailants entered the village Singhimari armed with bows, arro ws, ballams, bhalas, kulharis and other deadly weapons and mercilessly attacked the villagers, looted their properties and burnt several houses. Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 18/22 The ghastly attack was led by the accused Surang Lal Yadav riding on a horse back wielding a sword in his hand and the other accused had actively participated in the heinous crime which resulted in killing of 14 innocent persons and injuring several others. The prosecution has examined as many as 38 witnesses including PW 2 (Amjad Ali)--the informant who was the eyewitness. He deposed in clear and categorical manner that the accused Surang Lal Yadav was leading the mob which went on a killing spree in the village on the date of occurrence. PW 4--
Abdul Mokim, another eyewitness deposed that he had carried the dead bodies to Kishanganj Hospital in a cart on the instruction of police. PW 11--Sk. Samayul deposed that when he tried to run away from the mob, accused Sahdeo--
appellant herein, gave a lathi blow. Nonetheless, 26 witnesses have in clear terms explained the role played by Surang Lal Yadav. Accused-
appellant Anup Lal Yadav was identified by not a few but 14 prosecution witnesses, whereas accused/appellant Sahdeo was identified by 11 witnesses. They deposed in unequivocal terms that from the paddy field, they had clearly seen the occurrence of brutal killing of their kith and kin and devastation of properties at the hands of accused/appellants led by Surang Lal Yadav.
13. Strongly rebutting the argument of learned senior counsel for the accused/appellants that the Trial Court ought not have charged the accused Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 19/22 under Section 149, IPC learned counsel submitted that the common intention of the accused appellants was writ large that they wanted to create havoc in the area occupied by the victims and to fill terror in their minds. In pursuance of this common object, the accused used deadly weapons against the victims and killed 14 innocent persons besides injuring several others. She submitted that the law is abundantly clear that if an offence is committed by any member of an unlawful assembly in furtherance of common object of that assembly, every member of that unlawful assembly is guilty of that offence. Specific overt act of each member of unlawful assembly needs not to be proved when the accused are proved to be members of that assembly. In support of her contention, she relied upon the decisions of this Court in State of A.P. Vs. Thakkidiram Reddy (1998) 6 SCC 554; Yunis Vs. State of M.P. (2003) 1 SCC 425 and State of Rajasthan Vs. Shiv Charan (2013) 12 SCC 76."
21. In the instant case, the trial court while examining the accused persons under Section 313 Cr.P.C. completed only the formality. The relevant part of the examination of the accused under Section 313 of the Cr.P.C. is quoted herein below for ready reference:
"Bhubneshwar Rai Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 20/22 Lal Bahadur Rai Devnath Rai Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 21/22 Ramshray Rai "
22. The trial court failed to confront the accused persons with adverse material collected in the trial and used by the trial court for convicting the appellants. The cumulative effect of the contradiction in the deposition of the prosecution witnesses, the artificial claim of the witnesses to have seen the occurrence when their presence at the time of actual occurrence itself is under doubt. The chance of false implication on account of previous enmity, not Patna High Court CR. APP (DB) No.574 of 1994 dt.25-11-2017 22/22 only with the informant, but other witnesses with the accused persons and the failure of the investigation in investigation of the case on scientific line, non-examination of the investigating officer of the case and departure from the mandatory requirement under Section 313 Cr.P.C. by the trial court, we are of the considered view that it is not safe to uphold the conviction of the appellants. Accordingly, the appellants are extended the benefit of doubt and they are acquitted from the charge of commission of murder of deceased Parsuram Choubey. The judgment of the trial court is set aside. Since all the appellants are on bail, they are discharged from the liabilities of their bail bonds.
23. In the result, the appeal is allowed.
(Rajendra Menon, CJ) (Anil Kumar Upadhyay, J) Uday/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 12.12.2017 Transmission 12.12.2017 Date