IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.429 of 1990 =============================================== Manoj Kumar Pandey son of Lallan Pandey, resident of village Sundarpur, P.S.Yakanpur, District Patna .... .... Appellant Versus The State Of Bihar .. .... Respondent with Criminal Appeal (DB) No. 430 of 1990 =============================================== 1. Madan Pandey son of Sri Ram Niwas Pandey 2. Pappu Pandey son of Sri Ram Singhar Pandey 3. Surendra Singh son of Sri Ram Niwas Singh all are resident of village Chewari, P.S. Ramgarh, District Rohtas ... Appellants Versus The State Of Bihar ... .... Respondent with Criminal Appeal (DB) No. 431 of 1990 =============================================== Uma Pandey son of Vibhuti Pandey, resident of village Chewari, P.S.Ramgarh, District Rohtas .... .... Appellant Versus The State Of Bihar .... .... Respondent with Criminal Appeal (DB) No. 432 of 1990 =============================================== Anand Kumar Pandey son of Shambhu Pandey, resident of village Chewari, P.S.Ramgarh, District Rohtas .... .... Appellant Versus The State Of Bihar .... .... Respondent All the above four appeals are against the judgment of conviction and order of sentence dated 13.09.1990 passed by Sri V.D.Mandal, 4 th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 63 of 1985. =============================================== Appearance : (In CR.APP (DB) No. 429 of 1990) (In CR.APP (DB) No. 430 of 1990) (In CR.APP (DB) No. 431 of 1990) (In CR.APP (DB) No. 432 of 1990) Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 2 For the appellants : M/s. Kanhaiya Prasad Singh Sr. Advocate & Shashi Kr.Pandey,Advocate For the Respondents : Mr. Ajay Mishra, APP (In CR.APP (DB) No. 429 of 1990) (In CR.APP (DB) No. 431 of 1990) For the Respondents: Mr. Abhimanu Sharma, APP (In CR.APP (DB) No. 430 of 1990) (In CR.APP (DB) No. 432 of 1990) For the Informant : Mr. Vivek Prasad, Advocate =============================================== CORAM:HONOURABLE MR.JUSTICE SHYAM KISHORE SHARMA AND HONOURABLE MR.JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT
(Per :HONOURABLE MR.JUSTICE SHYAM KISHORE SHARMA) Date:
21. 08-2013 ------- All the above four appeals have been taken up together because they have arisen out of one judgment passed by learned 4 th Additional Sessions Judge, Rohtas at Sasaram on 13.09.1990 in Sessions Trial No. 63 of 1985 whereby appellants Uma Pandey and Anand kumar Pandey were held guilty under Section 302 of the Indian Penal Code, whereas, appellants Surendra Singh, Pappu Pandey, Madan Pandey and Manoj Kumar Pandey were held guilty under Section 302/34 of the Indian Penal Code and all the six appellants were further held guilty under Section 120B of the Indian Penal Code. For conviction under Section 302 of the 2 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 3 Indian Penal Code, appellants Uma Pandey and Anand Kumar Pandey were sentenced to undergo life imprisonment and for conviction under Section 302/34 of the Indian Penal Code, appellants Surendra Singh, Pappu Pandey, Madan Pandey and Manoj Kumar Pandey were also sentenced to undergo life imprisonment. For conviction under Section 120B of the Indian Penal Code, again all the six appellants were sentenced to undergo life imprisonment. However, the sentence awarded for the offence under Section 120B of the Indian Penal Code was ordered to run concurrently with the sentence awarded under Sections 302 & 302/34 of the Indian Penal Code.
2. For the occurrence of 13.06.1984 at about 7.00 P.M. at Tileshara Pokhra, fardbeyan was given at 8.45 P.M. before P.W.13 Alakhdeo Singh, Sub-Inspector of Police of Ramgarh police station by P.W.12 Tribhuwan Pandey. He had returned from Bhabhua at about 5.00 P.M. on that date. His son Surendra Pandey fetched water from the well in a bucket and kept the same before him. He was 3 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 4 enquired into about agriculture affairs. The informant changed his dress and his son was fetching water from the well. After drinking water, the informant proceeded towards his Dera (Bathan). Surendra Singh son of Ram Niwas Singh and Pappu Pandey son of Ram Singhar Pandey came at the door of the informant and called informant’s son Surendra Pandey for attending the call of nature who came out and accompanied them. As soon as the informant’s son and accused Surendra Singh and Pappu Pandey reached near the Mill of Madan Pandey, Madan Pandey also accompanied them. All went towards pond. The informant’s nephew Birendra Pandey (P.W.1) was feeding the cattle at that time. The informant started talking to Birendra Pandey. At that time, the sun was setting in. The informant’s son Surendra Pandey cried. The informant noticed four persons catching his son and was being dragged. The informant rushed but Uma Pandey touched the country made pistol near neck of Surendra Pandey and fired. Accused Anand Pandey and two unknown 4 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 5 were also there. After firing all accused persons escaped towards village. While escaping they continued firing. On informant’s cry, the villagers came and chased the murderers but the murderers fired upon them. The police came and chased the culprits. The villagers caught some of the accused and they sustained some injuries in the process of catching. On search, in a plastic bag one country made pistol and two cartridges of 315 bore were found which were produced before the police. The fardbeyan (Ext.3) witnessed by Sachchidanand Pandey (not examined) resulted into formal F.I.R. (Ext.2) of Ramgarh P.S.Case No. 40 of 1984 for offences under Sections 302/34 of the Indian Penal Code and 25(a),26 and 27 of the Arms Act. Inquest report (Ext.5) was prepared, post mortem report was obtained, place of occurrence was inspected, statements of witnesses were taken and when the case was found to be true, chargesheet was submitted. The case, being triable by court of Sessions, was committed where charge under Section 302 of the Indian Penal Code was 5 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 6 framed against accused Uma Pandey and Anant Pandey, charges under Section 302/34 and 120B of the Indian Penal Code were framed against all the six accused namely, Uma Pandey, Surendra Singh, Pappu Pandey, Madan Pandey, Anand Pandey and Manoj Kumar Pandey, charges under Sections 25(a) and 27 of the Arms Act were framed against three accused namely, Uma Pandey, Anand Pandey and Manoj Kumar Pandey. Charges were explained to the accused persons to which they pleaded innocence. Hence trial proceeded.
3. The defence of the appellants was of false implication. Their further defence was that the deceased was murdered at different place and by different persons but the accused persons were framed in with a view to ruin the entire family. The other defence of the appellants was that a dacoity was committed in which the deceased Surendra Pandey and one Diwaker Narayan Ojha had participated and both of them were killed. After concealing the death of Diwaker Narayan Ojha, the present case was lodged and real version was 6 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 7 withheld.
4. Before the trial court, the prosecution in order to prove its case has examined 15 witnesses. They are : P.W.1 Birendra Pandey, P.W.2 Ravi Shankar Pandey, P.W.3 Ramjee Pandey, P.W.4 Ram Ashish Pandey, P.W.5 Bharat Singh, P.W.6 Bijay Shankar Pal, P.W.7 Amardeo Singh Yadav, P.W.8 Sidheshwar Sharma, P.W.9 Mahendra Pandey, P.W.10 Dr. B.D.Bhagat, P.W.11 Bhola Singh, P.W.12 Tribhuwan Pandey, P.W.13 Alakhdeo Singh, P.W.14 Shyam Bihari Sharma and P.W.15 Bhandari Manjhi.
5. Signatures of P.W.2 Ravi Shankar Pandey and P.W.7 Amardeo Singh Yadav on production list and signatures of P.W.4 Ram Ashish Pandey and P.W.9 Mahendra Pandey on the carbon copy of inquest report were marked as Exts.1 to 1/3, signature of Sachidanand Pandey on the fardbeyan was marked as Ext.1/4, production list was marked as Ext.6, letter for examination of firearm was marked as Ext.7, carbon copy of sanction report was exhibited as Ext.8, sanction order was 7 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 8 marked as Ext.9, report of the Sergeant Major after examining the firearm was exhibited as Ext.10, ordersheet dated 10.01.1986 in Case No. 243(c) of 1984 and ordersheet dated 05.08.1986 in Case No. 243(C) of 1984 were marked as Exts 11 and 11/1.
6. The defence, on the other hand, has examined 6 witnesses. They are : D.W.1 Uma Shankar Pandey, D.W.2 Dharmraj Singh @ Dhanraj Singh, D.W.3 Kanhaiya Lal Sah, D.W.4 Dr.B.D.Pathak, D.W.5 Dilip Kumar Dubey and D.W.6 Amar Nath Singh.
7. P.W.10 has been examined as D.W.4. P.W.12 is the informant of the case. P.W.13 is the Investigating Officer of the case. P.W.15 is the Sergeant Major who examined the fire arm. P.W.1 is the only named witness in the fardbeyan and he has been named as eye witness of the entire occurrence but on being declared hostile he was allowed to cross-examine. P.W.5 is a constable who had brought the material exhibits. P.W.7 has been examined as a person who has seen the accused persons escaping. P.W.9 is a witness of inquest 8 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 9 which was prepared prior to registration of the F.I.R. Though he was not named as witness in the fardbeyan but before trial court he has been examined as eye witness. P.W.11 was tendered.
8. The trial court after considering the evidences on record and after hearing arguments of learned counsel for the parties opined that the prosecution has succeeded in proving the charges against the appellants beyond the shadow of all reasonable doubts.
9. This Court is required to reappraise the evidences on record to see as to whether there was material on record to prove the charges against the appellants beyond the shadow of all reasonable doubts or not.
10. Before taking up eye witnesses, it would be appropriate to discuss the evidence of the doctor P. W.10 who on 14.06.1984 was posted as Medical Officer at Bhabua and held post mortem at 3.00 P.M. on the dead body of Surendra Pandey and found following ante mortem injuries: (i) One gun shot injury on the front of the upper part of the left side of the 9 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 10 chest. Size 1” x ¼”x chest cavity deep just above the left clavicle. Margins of the wound were inverted and lacerated with blackening, scorching and deposit of grayish white soot particles. (ii) Blood stains both on the right and the left side of the wound more defused on the upper part of the left side of the front of the chest. On opening the chest cavity and the wound, doctor found: (a) Dark and clotted blood beneath the subcutaneous tissues of the wound. (b) Left lung was found perforated which was grievous in nature. (c) Dark clotted blood about 6 ounces in quantity was present in the left half of the chest cavity. (d) No pellet or bullet or any particle was discovered or found. All the above noted injuries were ante mortem in nature and caused by firearms may be by pistol. The death of the deceased in the doctor’s opinion was due to shock and haemorrahage as a result of severe injury to the 10 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 11 left lung which was sufficient to cause the death in ordinary course of nature. The time elapsed since death was within 15 hours of the post mortem examination. There was no exit wound of the injury.
11. The same doctor has been examined as D.W.4 and he has held post mortem on the same day at 3.45 P.M. on the dead body of deceased Diwakar Narain Ojha and found the following ante mortem injuries: (i) Blood stains present on the left nostril. (ii) Blood stains present on the right side of the face. (iii) One Bruise on the front of the right side of the upper part of the chest. Size 3”x1/2”. (iv) Another Bruise on the front of the left side of the chest. Size 3”x1/4”. (v) Another Bruise on the front of the left side of the chest. Size 3”x1/2”. On opening the chest, the doctor found following injuries: (i) Left lung was found haemotosed and ruptured at one place. Size 1”x ½”x tissue deep. 11 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 12 (ii) Right lung was also ruptured at one place. (iii) Dark and clotted blood weighing about 4 ounces in quantity was present on the left side of the chest cavity. On opening the abdominal cavity, the doctor found following injuries: (i) Liver was found ruptured on its right side. (ii) Spleen was found stained with blood. All the injuries were caused by hard and blunt substance such as lathi, slaps and fists. The death, in the opinion of the doctor, was due to severe injury to the left and right lung and liver being the vital organs of the body. The time elapsed since death was within 15 hours of the post mortem examination.
12. The doctor’s evidence has clarified that he had held post mortem after noon on 14.06.1984 on the dead body of two persons. One is deceased Surendra Pandey, the victim of the present case and another is different person about whom the defence has submitted that, in fact, aggressors have killed him and with a view to screen 12 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 13 themselves from the legal punishment the accused persons were framed in.
13. The Informant, P.W.12, is unfortunate father of the deceased Surendra Pandey. While deposing he has stated that on the date of occurrence, the sun was about to set in and the faces were visible. On the date of occurrence, he had returned from Bhabua at about 5.00 P.M. where his son Surendra Pandey offered water. The informant was changing his dress and was also enquiring about the steps taken for agricultural activity. The appellant Surendra Singh and appellant Pappu Pandey of the informant’s village came at his door and called informant’s son Surendra Pandey and all proceeded for easing. The informant proceeded towards his Dera. When appellant Pappu Pandey, Surendra Singh and informant’s son Surendra Pandey (deceased) went near the flour Mill of Madan Pandey, then Madan Pandey accompanied them. All proceeded towards Tileshara Pokhra. All the four were going about 50 to 60 yards ahead. The informant went to his 13 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 14 Dera which was situated about 70 to 75 yards south west of Tileshara Pokhra. The informant’s nephew Birendra Pandey (P.W.1) was there and he was feeding the cattle. The informant talked with Birendra Pandey in connection with agricultural activities. While informant was talking to Birendra Pandey (P.W.1), the informant’s son Surendra Pandey cried. The informant saw that four persons were dragging him towards Tileshra Pokhra. Appellants Uma Pandey, Anand Pandey were identified and two were unknown. When the informant’s son was being dragged, appellants Pappu Pandey, Surendra Singh and Madan Pandey were standing there. The informant rushed after seeing the plight of his son and when he was at a distance of about 50 to 60 feet or say 20 feet, then Uma Pandey fired touching the neck of Surendra Pandey which proved fetal. Thereafter accused Surendra Singh, Pappu Pandey and Madan Pandey escaped towards their village. Other accused Uma Pandey and Anand Pandey and two unknown escaped towards south east corner of 14 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 15 Tileshara Pokhra. On cry of informant, the villagers of Keoti and people of neighbouring villages came and identified the accused persons who were chased but while escaping they fired which caused no injury to any one. All the four accused persons who were escaping towards south east of Tileshara Pokhra were having fire arms. Meanwhile, Officer-in-charge of Ramgarh police station came. Three criminals were caught by the mob but the 4th criminal who was Anand Pandey succeeded in escaping. Those three criminals were Uma Pandey, Manoj Kumar Pandey and one another whose name was not known to me. 3 rd criminal was assaulted by the mobs with lathi, fists etc. The injured criminal was taken to police station. The Officer-in-charge on search found country made pistol and cartridges. The motive behind the occurrence described by this witness P.W.12 (informant) in paragraph 7 is that Sangeeta Kumari daughter of Arun Kumar Pandey was eloped by Om Prakash Pandey. The informant’s son Surendra Pandey was knowing about elopement of Sangeeta 15 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 16 Kumari but this witness has stated that he was not knowing about the same. All were co-villagers. Informant’s son Surendra Pandey was caught by father of Om Prakash Pandey and Sangeeta Pandey and taken him to Banaras and there both Sangeeta and Om Prakash were caught with the assistance of police. Informant’s son Surendra Pandey was threatened for not divulging the matter to any one. Informant’s son Surendra Pandey (deceased) spread the matter which had caused humiliation to the family of Arun Kumar Pandey which ultimately got the informant’s son killed with the assistance of hired assassin.
14. P.W.1 Birendra Pandey has been cited as eye witness in the fardbeyan but when he was put in the witness box, then he did not support any part of the allegation. P.W.1 is none else than own nephew of the informant. P.W.3 has been examined as hearsay witness. Similarly, P.W.4 has also not seen the actual killing. Eye witness P.W.9 has been brought before the court and he has described the occurrence as an eye witness. 16 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 17 Therefore, P.W.12 has been supported by P.W.9 and other witness are formal or hearsay witnesses.
15. Learned counsel for the appellants has submitted that the prosecution case is absurd, improbable and only it can be presumed to be imagination. It has further been submitted that there was only one eye witness who was none else than the own nephew of the informant and has been named as eye witness of the occurrence in the fardbeyan but he was declared hostile by the prosecution as he was adamant to tell the truth. About P.W.9 it has been submitted that he is a witness of the inquest. The inquest was prepared at 8.30 P.M. on 13.06.1984 i.e. it was prepared prior to giving the fardbeyan. The description of the dead body has been given in the inquest and strange procedure was adopted by the police in preparation of the inquest. Inquest is part of the investigation but in the present case, the inquest has preceded the fardbeyan. This noble method of the investigation has cast grave doubt on the prosecution version of the occurrence. Further it 17 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 18 has been submitted that though P.W.9 has been examined as eye witness of the occurrence but there is no explanation as to why his named was not mentioned in the fardbeyan though inquest was prepared prior to giving the fardbeyan. So on this basis, it has been submitted that P.W.9 cannot be relied upon. It has also been submitted that if P.W.9 is not relied, then the informant is the only witness of the occurrence and his deposition has been contradicted by none else rather only witness of the occurrence namely, P.W.1.
16. On the other hand, learned A.P.P. has submitted that even on the basis of evidence of single witness, order of conviction can be upheld. The informant is none else but he is father of the deceased and he had no motive to falsely implicate the accused persons but learned APP has not explained about the death of Diwakar Narain Ojha at the same time, same place and in the same occurrence. The prosecution was bound to explain the death of another person also but that was not done. 18 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-201”
17. According to evidence of Investigating Officer (P.W.13), on hearing a rumour at the police station at 13.06.1984 that firing was going on towards village Khorhara, he along with Officer-in-charge and police force reached the Siwana of Khorhara at 7.30 P.M. and there with the help of villagers took Uma Pandey and Manoj Kumar Pandey into custody. One more person was taken into custody whose name subsequently transpired as Diwakar Narain Ojha whose post mortem report reveals that he died on account of thrashing. The evidence of Investigating Officer is not specific as to why Manoj Kumar Pandey and Uma Pandey were taken into custody as till their being apprehended there was no report of any cognizable offence and no such information had come on the record. The statement of informant was not recorded at Khorhara Siwan but such statement in respect of instant case was made by the informant to the Officer-in-charge of Ramgarh Police station at Khorhara Siwan iself (see paragraph 20 of P.W.12). The Investigating 19 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 20 Officer was there along with Officer-in-charge of Ramgarh Police Station but no fardbeyan was recorded there and this has not been explained as to why no fardbeyan was recorded there. The official information received at Ramgarh Police Station was that firing was being done at Kharohar village. The station diary could have explained as to whether such information was received or not but the station diary was not made available to the court. It is not there who informed at Kharohar Siwan that Surendra Pandey has been killed. There was no mention as to which place Uma Pandey and Manoj Kumar Pandey were apprehended. It has come in evidence that a cot was arranged but it is not on record who arranged the cot. The informant has stated that he was not aware as to who brought the cot to carry the dead body of his son. The defence witness D.W.2 has filled in the blank when he has stated that the cot on which the deceased was taken was given by him to Ramjee Pandey, P.W.3.
18. The inquest was prepared in presence of 20 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 21 P.W.9 that has preceded the fardbeyan. PW.9 is attesting witness of the inquest report. Therefore, he had occasion to be present before the Investigating Officer prior to recording the fardbeyan but it is not specific as to why his name was not shown as witness of the occurrence in the fardbeyan. P.W.4 and P.W.9 claimed to have seen the actual occurrence committed by the accused persons but they have not given the name of the accused persons to the investigating Officer. The omission of giving the name of P.W.9 as witness in the fardbeyan casts serious doubt on the veracity and reliability of P.W.9 as a witness of the occurrence. The fardbeyan has excluded the possibility of presence of any other witness than P.W.1. Mahendra Pandey, P.W.9 is the cousin of the informant but he was not named as witness and later on he became a witness of the occurrence. The investigating Officer has not recorded the statement of P.W.9 and P.W.4 in the night of the occurrence even though they were present at the place of occurrence. It is on the 21 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 22 next day, their statements were record.
19. Another fact which has come on the record is of absence of blood at the place of occurrence. If a person is fired upon and killed, then the copious blood is bound to be present there. In the present case, the blood was not seized even blood stained clothes were not seized by the Investigating Officer. There was no reason as to why blood stained earth was not seized. The defence has come that no blood was present near or around the place of killing. The Investigating Officer must have seized the blood even if it was found to be present at the place of occurrence. Non-seizure of blood from the place of occurrence or not sending it for chemical examination was the circumstance which was to be explained by the prosecution but the prosecution has miserably failed to fill up thus gap. The informant has named Dharmraj Singh @ Dhanraj Singh as a person who was present at the place of occurrence but that Dhanraj Singh was not examined as prosecution witness rather he has been examined as D.W.2 whose 22 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 23 version does not support at all the prosecution.
20. If the entire circumstances are analyzed, then it is apparent that the prosecution has miserably failed to explain as to in what manner and at the same time and the same place of occurrence Diwakar Narain Ojha was killed. There is no explanation as to why inquest has preceded the fardbeyan, P. W.9 was not named as witness in the fardbeyan which was recorded after preparation of inquest report in which he has signed as a witness, meaning thereby that he was present before the Investigating Officer but has not stated about the occurrence. The version of the witnesses is that there was a cry that dacoits have come. The prosecution has relied upon the sole testimony of the informant as P.W.9 cannot be relied upon but the informant in his evidence has not explained as to in what manner Diwakar Narain Ojha was killed. He has not explained as to from where cot was arranged. The Investigating Officer also has not performed his duty as he has not made any seizure which should have been done. Non- 23 Patna High Court CR. APP (DB) No.429 of 1990 dt.21-08-2013 24 explanation of death of Diwakar Narain Ojha by the prosecution casts a serious doubt as to whether it has come with correct version or not. A doubt has been created on the prosecution version of the occurrence. Once a doubt is created, then the benefit of the same has to go in favour of the accused. Thus, the appellants deserve acquittal.
21. In the result, the judgment of conviction and order of sentence is set aside. The aforesaid four appeals are allowed. The appellants of all the four appeals are acquitted of the charges. Since the appellants are on bail, they are discharged from the liabilities of their respective bail bonds.
22. Since the appeals have been allowed, there is no need of discussion on the point of juvenility of some of the appellants. (Shyam Kishore Sharma, J) (Amaresh Kumar Lal, J) Patna High Court, Patna Dated,the 21st August,2013 Tahir/-(NAFR) 24