Patna High Court
Shankar Pandit vs The State Of Bihar on 26 July, 2023
Author: Sudhir Singh
Bench: Sudhir Singh, Chandra Prakash Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1355 of 2018
Arising Out of PS. Case No.-58 Year-2010 Thana- KHARHAGPUR District- Munger
======================================================
Shankar Pandit S/o Lali Khiju Pandit, Resident of Village-Dhundhaladeh,
P.S.-Kharagpur, Distirct-Munger.
... ... Appellant
Versus
The State Of Bihar ... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 1337 of 2018
Arising Out of PS. Case No.-58 Year-2010 Thana- KHARHAGPUR District- Munger
======================================================
Narayan Pandit S/o Late Hari Pandit, Resident of Village- Dhundhaladeh,
P.S.- Kharagpur, District- Munger.
... ... Appellant
Versus
The State Of Bihar ... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 1338 of 2018
Arising Out of PS. Case No.-58 Year-2010 Thana- KHARHAGPUR District- Munger
======================================================
Paltu Kumar Pandit @ Surendra Kumar Pandit @ Ramkumar Pandit S/o
Nago Pandit @ Nageshwar Pandit, Resident of Village- Dhundhaladeh, P.S.-
Kharagpur, District- Munger.
... ... Appellant
Versus
The State Of Bihar ... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 1341 of 2018
Arising Out of PS. Case No.-58 Year-2010 Thana- KHARHAGPUR District- Munger
======================================================
1. Nago Pandit S/o Late Khiju Pandit,
2. Jogi Pandit, S/o Late Thakur Pandit,
3. Bhuneshwar Pandit, S/o Lakhan Pandit,
4. Umesh Pandit, S/o Late Gaini Pandit,
5. Bigan Pandit, S/o Late Thakur Pandit, All are resident of Village-
Dhundhaladeh, P.S.- Kharagpur, District- Munger.
... ... Appellants
Versus
Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023
2/21
The State Of Bihar ... ... Respondent
======================================================
with
CRIMINAL APPEAL (DB) No. 1370 of 2018
Arising Out of PS. Case No.-58 Year-2010 Thana- KHARHAGPUR District- Munger
======================================================
Bibhishan Pandit Son of Hari Mohan Pandit, resident of Village- Ghughla
Dih, P.S.- Gangta Kharagpur, District- Munger.
... ... Appellant
Versus
The State Of Bihar ... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1355 of 2018)
For the Appellant/s : Mr.Binod Kumar, Advocate
For the Respondent/s : Mr. Bipin Kumar, APP
(In CRIMINAL APPEAL (DB) No. 1337 of 2018)
For the Appellant/s : Mr.Binod Kumar, Advocate
For the Respondent/s : Mr. Bipin Kumar, APP
(In CRIMINAL APPEAL (DB) No. 1338 of 2018)
For the Appellant/s : Mr.Binod Kumar, Advocate
For the Respondent/s : Mr.Bipin Kumar, APP
(In CRIMINAL APPEAL (DB) No. 1341 of 2018)
For the Appellant/s : Mr.Binod Kumar, Advocate
For the Respondent/s : Mr.Bipin Kumar, APP
(In CRIMINAL APPEAL (DB) No. 1370 of 2018)
For the Appellant/s : Mr.Ajit Kumar Singh, Advocate
For the Respondent/s : Mr. Bipin Kumar, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE CHANDRA PRAKASH
SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)
Date : 26-07-2023
Heard learned counsel for the appellants and learned A.P.P.
for the State.
2. By the judgment of conviction dated 05.09.2018 and the
order of sentence dated 07.09.2018/13.09.2018 passed by Sri
Tribhuvan Nath, Additional Sessions Judge-1st-cum-Special
Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023
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Judge (SC/ST and POCSO Act), Munger in Sessions Trial No.
12/2013 arising out of Kharagpur P.S. case No. 58/2010/C.S.
No. 2441/2013 whereby and whereunder the appellant Shankar
Pandit (Cr. Appeal No. (D.B.) No. 1355 of 2018) and the
appellant Paltu Kumar Pandit @ Surendra Kumar Pandit @
Ramkumar Pandit (Cr. Appeal (D.B.) No. 1338 of 2018) have
been convicted for the offences under Sections 302/149 of the
Indian Penal Code (hereinafter referred to 'I.P.C.') and sentenced
to undergo rigorous imprisonment till death and a fine of Rs.
50,000/- and in default of payment of fine, they have been
directed to further undergo additional simple imprisonment for
six months. It was further directed that the period of custody
undergone by the appellants during the course of trial shall be set
off under the provisions of Section 428 of the Cr.P.C. Further,
by the judgment of conviction dated 05.09.2018 and the order of
sentence dated 18.09.2018 passed by Sri Tribhuvan Nath,
Additional Sessions Judge-1st-cum-Special Judge (SC/ST and
POCSO Act), Munger, in Sessions Trial No. 12A/2013, arising
out of Kharagpur P.S. case No. 58/2010/C.S. No. 2441/2013, the
appellant Narayan Pandit (Cr. Appeal (D.B.) No. 1337 of 2018),
appellants Nago Pandit, Jogi Pandit, Bhuneshwar Pandit, Umesh
Pandit and Bigan Pandit (appellants in Cr. Appeal (D.B.) No.
Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023
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1341 of 2018) and appellant Bibhishan Pandit (Cr. Appeal (D.B.)
No. 1370 of 2018) have been convicted for the offences under
Sections 302/149 of the I.P.C. and sentenced to undergo rigorous
imprisonment till death and a fine of Rs. 50,000/- and in default
of payment of fine they have been directed to further undergo
additional simple imprisonment for six months. It was further
directed that the period of custody undergone by the appellants
during the course of trial shall be set off under the provisions of
Section 428 of the Cr.P.C.
3. The prosecution case, as per the written report of
informant, namely, Ghanshyam Pandit is that on 01.03.2010 at
about 8:30 p.m. after taking meal, the informant along with
family members was going to sleep in the meantime his
neighbour Pintu Kumar Pandit called informant's father namely
Kailash Pandit to open the door. Then he called informant's
younger uncle Ramnath Pandit to open the door for taking
medicine. Informant's mother Pancha Devi opened the door and
as soon as the door was opened, the accused persons including
the appellants along with 7-8 unknown persons in uniform
having S.L.R., Rifle, Farsa and sword in their hands entered into
informant's house and tied both hands of informant's father and
took towards south after assaulting him. The family members of
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the informant along with others started crying and followed the
accused persons. The accused persons took informant's father in
front of the house of Bichcho Shaw and on the orders of Narayan
Pandit, Shankar Pandit beheaded the informant's father and
closed the family members of the informant in the house of
Mukesh Yadav. The accused persons threatened that if any one
would disclose the incident, then whole family will be killed. The
informant saw the whole occurrence by hiding him inside the
bamboo bushes. After killing the informant's father, the accused
persons went towards west raising slogan 'Maowadi Zindabad'
and left the place of occurrence. The informant and family
members, out of fear, hid themselves in the house. In the next
morning, the informant also got information that accused persons
had also killed the Chowkidar Kamleshwari Pandit by beheading
him and two purchas were left at the place of occurrence in
which it was written in red ink that the same punishment will be
given to the spy of the police. On the basis of written report of
the informant, Kharagpur P.S. case No. 58/2010 was registered
under sections 147, 148, 149, 302, 379, 121A, 122, 124A of the
Indian Penal Code and Sections 10 and 13 of U.A.P.A. Act.. The
police after investigation submitted charge-sheet against the
appellants. The cognizance of the offence was taken by the
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learned jurisdictional Magistrate and thereafter the case was
committed to the Court of Sessions. Charges were framed against
the appellants on which they pleaded not guilty and claimed to be
tried.
4. During the trial, in order to substantiate the charges
against the accused persons, the prosecution examined as many
as ten witnesses, namely, PW1 Pancha Devi, PW2 Teepu Pandit,
PW3 Ghanshyam Pandit (informant), PW4 Baijnath Pandit, PW5
Mukesh Kumar, PW6 Shobha Devi, PW7 Shamshad Ali, PW8
Manish Kumar Anand, PW9 Chandrika Prasad and PW10 Md.
Mustafa. The prosecution has also produced exhibits namely,
Ext. 1 written report, Ext. 2 and 2/1 (inquest reports), Ext. 3 and
3/1 (post-mortem reports) The defence has also produced two
witnesses in support of its defence viz. DW1 Babu Lal Pandit
and DW2 Chunchun Pandit. The defence has also produced
exhibits viz. Ext. A certified copy of charge-sheet of Kharagpur
P.S. case No. 195/04 and Ext. B certified copy of judgment of
Sessions Trial No. 209/2001. Thereafter, the statements of the
appellants were recorded under section 313 of the Cr.P.C and
after conclusion of the trial, the learned trial Court convicted the
appellants in the manner stated above.
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5. Learned counsel for the appellants submitted that the
judgment of conviction suffers from several infirmities that have
been overlooked by the learned trial Court and therefore, the
impugned judgment is not sustainable in the eyes of law. The
learned trial court has not appreciated the evidence brought on
record by the prosecution properly. It has been contended that the
prosecution has miserably failed to prove the place of occurrence
to the satisfaction of the court, in the light of the material
contradiction between the deposition of the prosecution witnesses
and the documentary evidence brought on record. It has been
argued that the presence of informant and the wife of deceased at
the alleged place of occurrence is also doubtful, taking into
account the testimony of other witnesses. It has been further
argued that there is no evidence whatsoever to show that the
appellants were properly identified by the Informant or other
witnesses, as there is no whisper of any source of identification
in the deposition of any of the prosecution witnesses.
Furthermore, the learned counsel for the appellants asserts that
there is unreasonable delay in lodging of the FIR in connection
with the present case. Another argument advanced by the learned
counsel for the appellants is that the learned trial Court has also
failed to appreciate that during trial, the prosecution has not
Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023
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produced the Investigating Officer, who conducted the
substantive investigation, as a prosecution witness and no
explanation in this regard has been put forth, which has caused
prejudice to the appellants. Therefore, it has been argued that on
these scores of the judgment of conviction, assailed in the present
appeal, be set aside, the appellants be acquitted of the charges
and set free from custody.
6. Learned A.P.P. appearing for the State, on the other hand,
has rebutted the arguments advanced by learned counsel for the
appellants. It has been submitted that the judgment of conviction
and order of sentence under challenge require no interference as
the prosecution has been able to prove the case beyond all
reasonable doubts. It has been contended that the witnesses have
been consistent in their depositions and there does not remain
any lacuna in case of the prosecution. The minor inconsistencies
in the testimony of the witnesses cannot be a ground to reject
their evidence as a whole. Further, it has been submitted that non-
examination of the Investigating Officer would per se not make
the appellants liable for acquittal and there has been no
demonstration of any prejudice which has been caused to the
appellants. Moreover, there is no unreasonable delay in lodging
of the FIR. So far as the non-revelation of source of identification
Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023
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by the prosecution witnesses is concerned, the same has not been
controverted by the learned A.P.P. However, it has been
submitted that the appellants could have been identified when
they allegedly entered the house.
7. After hearing the arguments advanced by the learned
counsels appearing for the parties and upon thorough
examination of the entire material available on the record, the
following issues arise for consideration in the present appeal:
(I)Whether the prosecution has established the place of
occurrence beyond all reasonable doubt?
(II)Whether the prosecution has been able to establish
beyond all reasonable doubts the presence of PW 1 and PW 3 at
the place of occurrence at the time when the alleged occurrence
has taken place?
(III) Whether the non-disclosure of any source of
identification by the prosecution especially when alleged
occurrence is said to have taken place at 8:30 pm at night casts
doubts on the prosecution's case?
(IV) Whether the non-examination of investigating
officer who has carried the substantive investigation has caused
prejudice to the trial of appellants?
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(IV) Whether the delay in instituting the FIR on the
written statement of the informant (PW 3) casts doubt on the case
of the prosecution?
8. In order to deal with the first issue, we have given our
anxious consideration over the deposition of PW 1 (mother of the
informant) and PW 3 (informant). It is found that PW 3 in his
deposition as well as in written report has stated that appellants
had beheaded his father (deceased) in front of the house of one,
Bichcho Shaw. However, in cross-examination, he has further
clarified that the incident had taken place on the road located in
the west adjacent to the house of Bichcho Shaw. Further, PW 1 in
her deposition also confirmed that the beheading had taken place
at the aforementioned place of occurrence. However, in sharp
contradistinction to such testimony of PW 1 and PW 3, it has
been deposed by PW 2 that the alleged occurrence has taken
place at his doorstep. Thus, it is apparent that there is severe
inconsistency in the testimony of PW 1 and PW 3 on one hand
and PW 2 on the other hand with regard to the place of
occurrence. Moreover, both PW 1 and PW 3 have explicitly
stated in their deposition that the Investigating officer seized the
blood from the stated place of occurrence. However, despite their
assertions, there is no seizure list on record that specifically
Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023
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indicates wherefrom the blood was allegedly seized.
Furthermore, upon examining Ext.2 (inquest report), it becomes
evident that the indicated place of occurrence is a Kaccha Road
located to the west, adjacent to the house of one Kishun Shaw.
Thus, considering the facts of this case as indicated above, the
place of occurrence remains smeared in doubts. Such a
fundamental defect casts reasonable doubts as to the genuineness
of the prosecution's case. In this regard, it would be pertinent to
take note of the decision of the Hon'ble Supreme Court passed in
the case of Syed Ibrahim versus State of Andhra Pradesh,
reported in (2008) 10 SCC 601, wherein it has been held that
when the place of occurrence itself has not been established, it
would not be proper to accept the version of the prosecution.
In view of the facts and circumstances of the case and
considering the legal position as discussed above, we are of the
considered opinion that the prosecution has not been able to
prove the place of occurrence beyond all reasonable doubts.
Accordingly, the first issue is decided in negative.
9. In order to deal with the second issue as formulated
above, we have carefully perused Ext-1, which is written report
given to police, wherein informant has narrated that the deceased
was done to death by the appellants. It has been clearly stated
Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023
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therein that the family members of the deceased followed the
accused as they were taking away the deceased near the house of
one Bichcho Shaw where they murdered him and thereafter, they
forcefully confined family members in the house of one Mukesh
Yadav. Further, it states that informant (PW3) witnessed the entire
incident from a hiding spot in the bamboos adjacent to the place
of occurrence. However, in contrast to this account, PW 2, in his
cross-examination has categorically stated that the incident took
place at his doorstep and none of the family members of the
deceased were present at the time of occurrence. The informant
(PW 3), deceased's wife (PW 1) and other family members
arrived at the place of occurrence half an hour after the incident.
Thus, we find that there is clear contradiction regarding the claim
of PW 1 and PW 3 being present at the place of occurrence during
the time of incident. Moreover, we have taken note of the fact that
the evidence of Mukesh Yadav was not brought on record, nor of
the neighbors whose houses were situated between the
informant's house and the alleged place of occurrence. Therefore,
based in the facts and circumstances discussed above we are of
the considered opinion that the prosecution has not been able to
prove the presence of the informant (PW 3) and deceased's wife
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(PW 1) at the alleged place of occurrence beyond reasonable
doubts.
Accordingly, the second issue is decided in negative.
10. With regard to third issue as formulated above, upon the
perusal of entire material available on record it has come to fore
that the occurrence has taken place at 8:30 pm night on
01.03.2010. However, PW 3 (informant) in his written information to police has explicitly named the appellants as well as 7-8 other unknown accused persons as being involved in the incident. Similarly, PW 1, has also deposed the name of appellants during her testimony. However, it is important to note that the PW 1 and PW 3, who contend to be the eyewitnesses to the alleged occurrence, have not disclosed any source of light through which they identified the appellants. It is found that prosecution has neither brought on record anything nor given any explanation as to how the appellants were identified in absence of any source of light. This omission raises questions about the reliability and accuracy of their identifications. Furthermore, it is found that PW 1 has claimed that the appellants' faces were not covered, whereas PW 5 and PW 6 have deposed that the accused persons had their faces covered. Thus, it can be safely gleaned that there is apparent inconsistency and contradiction in the Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023 14/21 evidence of prosecution witnesses. Moreover, there is no whisper of identifying the appellants through their voices made. Also, during the course of trial, informant (PW 3) in his evidence has explicitly stated that no test identification parade was conducted. This further casts doubt on the credibility of the identifications made by PW 1 and PW 3. At this juncture, we would gainfully rely on the decision rendered by the Hon'ble Supreme Court in the case of Ram Narain Singh versus State of Punjab (1975) 4 SCC 497, wherein the Hon'ble Apex Court observed the following:
"On the day of the occurrence i.e. October 2, 1972, it would be quite dark at 8-00 P.M. and unless there was some light burning in the house it would be difficult for the witnesses to have identified the assailants and to have given such a graphic description of the occurrence... ... There also the accused could not be identified because there is no evidence of any witness to show that any light was burning there, nor does any of the eye witnesses say that he had identified the accused by voice. For these reasons, therefore, we are convinced that even accepting the prosecution case at its face value, if the occurrence took place at 8-00 P.M. the possibility of mistake in identification cannot be excluded in the present circumstances."
Therefore, applying the aforesaid view of the Hon'ble Supreme Court in the given facts of the case, we reach to the conclusion that in the absence of revelation of any source of Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023 15/21 identification by the prosecution, the evidence with regard to identification of the appellants is not sufficient so as to connect the appellants to the said offence. Besides, with appellants they are not on cordial terms, and relations between them are admittedly inimical. Therefore, false implication of the appellants, on mere suspicion cannot be entirely ruled out.
Accordingly, the third issue is decided in affirmative.
11. Adverting to the fourth issue at hand, a thorough examination of the case records reveals a significant omission on the part of the prosecution. It is evident that the Investigating Officer, who conducted the substantive investigation, has not been examined in this case. Instead, PW 7 and PW 8, who conducted the formal investigation, have been presented as witnesses. However, in the facts of the present case, the darkness surrounding the place of occurrence, the collection of blood samples, holding of test identification parade and other crucial aspects would have been dispelled if the examination of the Investigating Officer had been conducted. It is germane to the issue at hand to underscore the pivotal role of the Investigating Officer in establishing the place of occurrence and circumstances surrounding the occurrence through the presentation of evidence, including searches and seizures, and statements of the key Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023 16/21 witnesses. It is pertinent to note that examination of the investigating officer enables the accused's significant right to highlight contradictions in the statements made by witnesses during the investigation, as recorded by the Investigating Officer. This right holds considerable weight, as it allows the defense to effectively demonstrate that the witness has provided inconsistent testimony compared to their earlier statements before the Investigating Officer. Thus, by not examining the Investigating Officer who has carried the substantive investigation, an essential aspect of the investigation has been overlooked, which could have a significant impact on the outcome of the trial. However, we must also highlight that non-examination of investigating officer in every case will not result in the vitiation of the trial when accused is not likely to suffer any prejudice. Nonetheless, in certain circumstances, where the non-examination of the investigating officer has seemingly caused prejudice to the appellants, it can significantly affect the prosecution's case. In the present case, the circumstances indicate that the prosecution has attempted to suppress certain material witnesses, including the Investigating Officer, without providing any reasonable justification. In the case of State Of Karnataka versus Bhaskar Kushali Kotharkar And Ors., (Cr. Appeal no. - 498 of 1998) the Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023 17/21 Hon'ble Supreme Court while highlighting the importance of examination of Investigating Officer, observed:
"It is true that as a part of fair trial the investigating officer should be examined in the trial cases especially when a serious sessions trial was being held against the accused. If any of the prosecution witnesses give any evidence contrary to their previous statement recorded under Section 161 Cr. P.C. or if mere is any omission of certain material particulars, the previous statement of these witnesses could be proved only by examining the investigating officer who must have recorded the statement of these witnesses under Section 161 Cr. P.C."
We also put reliance on the decision rendered by Hon'ble Supreme Court in the case of Ravishwar Manjhi v. State of Jharkhand, reported in (2008) 16 SCC 561, wherein the Hon'ble Apex Court in paragraph 27 has held as follows:
"27. The investigating officer in a case of this nature should have been examined. His examination by the prosecution was necessary to show that there had been a fair investigation. Unfortunately, even no site plan was prepared. There is nothing on record to show as to the exact place where the occurrence had taken place. It is stated that the house of the parties is divided by a road. If that be so, it was all the more necessary to pinpoint the exact place of occurrence to ascertain who was the aggressor."
Therefore, applying the aforesaid proposition of law as held by the Hon'ble Supreme Court in the given facts of the case, we reach to the conclusion that in the present case, the non- examination of the Investigating Officer, who conducted the Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023 18/21 substantive investigation, undeniably prejudiced the accused, as the actual place of occurrence remains unverified, and the accused have been deprived of the opportunity to challenge the credibility of the prosecution witnesses through questioning of the Investigating Officer. Therefore, in our considered opinion, the failure to examine the Investigating Officer in this case constitutes a significant flaw that has caused prejudice to the case the appellants.
Accordingly, the fourth Issue is decided in affirmative.
12. Now coming to the fifth issue, which is regarding delay in lodging of the F.I.R. upon the written report of the informant. It is found that the F.I.R. in connection with the present case was lodged on 02.03.2010 at about 01:00 p.m., whereas the incident took place on 01.03.2010 at 8:30 p.m. Thus, virtually there is 16 hours delay in lodging of the F.I.R. The police station was situated at a distance of 13 kms. from the place of occurrence. Considering the fact that there is prevailing enmity between the parties, such delay raises suspicion when there is no explanation whatsoever coming forth from the prosecution. It is well established that there should be promptness in lodging of the F.I.R to obtain the earliest information regarding the incident and to make the investigation just and fair and to avoid any possible Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023 19/21 foul play. Such delay often results in concoction and embellishment of the occurrence. Thus, it is necessary for the prosecution to satisfactorily explain such delay to withhold the court to draw suspicion. At this juncture, it would be pertinent to take note of the decision of the Hon'ble Supreme Court passed in the case of Bhagaloo Lodh v. State of U.P., reported in (2011) 13 SCC 206, wherein the Hon'ble Apex Court in paragraph 27 has held:
"10. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case there is some delay in filing the FIR, the complainant must give explanation for the same. In absence of such an explanation, the delay may give presumption that allegations/accusations were false and had been given after thought or had given a coloured version of events. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. (Vide Sahib Singh v. State of Haryana [(1997) 7 SCC 231 : 1997 SCC (Cri) 1049 : AIR 1997 SC 3247] ; Gorige Pentaiah v. State of A.P. [(2008) 12 SCC 531 : (2009) 1 SCC (Cri) 446] and Kishan Singh v. Gurpal Singh [(2010) 8 SCC 775 : (2010) 3 SCC (Cri) 1091 :
(2010) 3 SCC (Civ) 583 : AIR 2010 SC 3624] .)"
In the light of the discussions made above, this Court is of the view that such unreasonable delay as aforesaid casts dark clouds of suspicion and is certainly fatal to the case of the prosecution.
Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023 20/21 Accordingly, the fifth Issue is decided in affirmative.
13. In light of the legal position as discussed above and on the basis of the findings arrived at on the issues formulated above, we are of the considered opinion that the conviction of the appellant is not sustainable in the eyes of law and the prosecution has failed to prove its case beyond all reasonable doubts.
14. Accordingly, all these appeals are allowed. The judgment of conviction dated 05.09.2018 and order of sentence dated 07.09.2018/13.09.2018 passed by Sri Tribhuvan Nath, Additional Sessions Judge-1st-cum-Special Judge (SC/ST and POCSO Act), Munger in Sessions Trial No. 12/2013 arising out of Kharagpur P.S. case No. 58/2010/C.S. No. 2441/2013 and judgment of conviction dated 05.09.2018 and order of sentence dated 18.09.2018 passed by Sri Tribhuvan Nath, Additional Sessions Judge-1st-cum-Special Judge (SC/ST and POCSO Act), Munger, in Sessions Trial No. 12A/2013, arising out of Kharagpur P.S. case No. 58/2010/C.S. No. 2441/2013, are set aside.
15. Since all the appellants viz. appellant Shankar Pandit (in Cr. Appeal No. (D.B.) No. 1355 of 2018), appellant Paltu Kumar Pandit @ Surendra Kumar Pandit @ Ramkumar Pandit (in Cr. Appeal (D.B.) No. 1338 of 2018), appellant Narayan Pandit (in Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023 21/21 Cr. Appeal (D.B.) No. 1337 of 2018), appellants Nago Pandit, Jogi Pandit, Bhuneshwar Pandit, Umesh Pandit and Bigan Pandit (in Cr. Appeal (D.B.) No. 1341 of 2018) and appellant Bibhishan Pandit (in Cr. Appeal (D.B.) No. 1370 of 2018), are in jail custody, they are directed to be released from custody forthwith, if not wanted in any other case.
(Sudhir Singh, J)
Pankaj/- ( Chandra Prakash Singh, J)
AFR/NAFR AFR
CAV DATE 05.07.2023
Uploading Date 26.07.2023
Transmission Date 26.07.2023