Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA ***** Criminal Appeal (DB) No.322 of 1990 ***** Against the judgment of conviction and order of sentence dated 30th of July, 1990 passed by Shri Ashok Kumar Verma, the learned 1st Additional Sessions Judge, Gopalganj in Sessions Trial No. 596/1984/32/1986. =========================================================== 1. Badshah Pandey, son of Gyani Pandey, deceased, 2. Gauri Shankar Pandey, son of Banka Pandey, 3. Saral Pandey, son of Sheopujan Pandey, deceased, 4. Narsingh Pandey, son of Sheopujan Pandey, deceased, 5. Babunand Dubey, son of Birau Dubey, deceased, 6. Sheoshanker Pandey, son of Manikchand Pandey All resident of Village – Karanpura, Police Station – Kuchaikote, District – Gopalganj. Versus .... .... Appellants The State of Bihar .... .... Respondent =========================================================== Appearance : For the Appellants : Mr. Siddharth Harsh, Advocate. Mr. Anand Kumar Mishra, Advocate. : Mr. Ajay Mishra, APP. For the Respondent =========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Date: 18-06-2013 ***** Heard learned Counsel for the appellants and learned Counsel for the State. 2. Badshah Pandey, Gauri Shankar Pandey and Sheoshanker Pandey were put on trial and found guilty along with Saral Pandey, Narsingh Pandey and Babunand Dubey (all the three now dead), by the learned 1st Additional Sessions Judge, Gopalganj on 30th July, 1990 in Sessions Trial No. 596 of 1984/32 of 1986
Legal Reasoning
Patna High Court CR. APP (DB) No.322 of 1990 dt.18-06-2013 2 under Section 302/34 and 147 of the Indian Penal Code whereby each of six accused/appellants were sentenced to undergo R.I. for life under Section 302/34 of the Indian Penal Code but no separate sentence has been awarded for committing offence under Section 147 of the Indian Penal Code. During appeal, due to death of appellants Saral Pandey, Narsingh Pandey and Babunand Dubey, the appeal against them abated and now the appeal is confined against three appellants Badshah Pandey, Gauri Shankar Pandey and Sheoshanker Pandey. 3. The fardbeyan (Ext. 2) of Raj Narain Thakur P.W. 5 given on 17.08.1981 at 05.00 a.m. disclosed about the commission of an offence which led to registration of Kuchaikot P.S. Case No. 82/1981 under Sections 147, 148, 323 of the Indian Penal Code. The formal FIR (Ext. 1) was referred and the investigation commenced. 4. The informant Raj Narain Thakur divulged that in the preceding evening at about 08.30 p.m., his dog had consumed the bread which resulted into altercation with Dharmnath Pandey. That altercation led to stabbing Dharmnath Pandey by the informant’s brother Janardan Thakur (the deceased of the present case). After stabbing Janardan Thakur was trying to escape but he was chased by villagers Karvatahi and in course of saving himself Patna High Court CR. APP (DB) No.322 of 1990 dt.18-06-2013 3 he was overpowered and caught at Dubaulia where he was assaulted by fists, slaps and sticks. As a result thereof he received multiple injuries. The villagers who assaulted were hundred in numbers. The informant had named all the accused persons were put on trial as amongst them. In course of treatment the injured died and on the prayer of the I.O. Section 302 of the Indian Penal Code was added. 5. Charge sheet was submitted, cognizance was taken and the case was committed to the court of Sessions where charges under Section 302/34 and 147 of the Indian Penal Code were explained to all the accused persons. The accused persons pleaded innocence and preferred to face the trial. Their defence was of false implication owing to bitterness. 6. Before the trial court, the prosecution examined P.W. 1 Kamla Prasad, P.W. 2 Sona Devi, P.W. 3 Kamlawati Devi, P.W. 4 Nagendra Thakur, P.W. 5 Raj Narain Thakur, P.W. 6 Ram
Legal Reasoning
Nath Prasad, P.W. 7 Jay Prakash Srivastava, P.W. 8 Mundrika Prasad and P.W. 9 Atma Ram. The defence had examined Ram Narain Lal D.W. 1 and Md. Suleman D.W. 2. The doctor has proved the post-mortem examination report (Ext. 4). The inquest report has been brought on record vide Ext. 5. The request of adding Section 302 of the Indian Penal Code has been brought on record through (Ext. 3). The defence had exhibited complaint Patna High Court CR. APP (DB) No.322 of 1990 dt.18-06-2013 4 petition of Case No. 852 of 1981, which was filed before the learned Chief Judicial Magistrate as Ext. A. Fardbeyan of Sessions Trial No. 505 of 1984 was exhibited as Ext. B and formal FIR of Sessions Trial No. 505 of 1984 was exhibited as Ext. C. The defence witnesses are not on occurrence rather they are formal witnesses. 7. The trial court after considering the evidences adduced on behalf of the accused/appellant, after perusal of the exhibits and hearing the learned counsels, came to the opinion that the prosecution had succeeded in proving the charges against the accused persons beyond shadow of all reasonable doubts. 8. P.Ws. 1, 6 and 9 are formal witnesses. P.W. 1 has proved the formal FIR (Ext. 1), P.W. 6 has proved Ext. 3 which is an application of Jay Prakash Shrivastava, the officer-in-charge and P.W. 9 has proved Ext. 5, the inquest report of the deceased. 9. P.W. 2, the mother of the deceased has stated that there was quarrel between Harkesh, Janardan Thakur and Dharmraj Pandey upon which Janardan Thakur inflicted a knife blow upon Dharmraj Pandey which caused instantaneous death. The villagers thereafter chased her sons Raj Narain Thakur and Janardan Thakur. Harkesh succeeded in running away. Janardan Thakur and Raj Narain Thakur entered inside her house. Janardan Patna High Court CR. APP (DB) No.322 of 1990 dt.18-06-2013 5 Thakur went on the roof of her house and jumped outside and succeeded in running away but thereafter she could not see as to what happened to him. She had not supported any part of the allegation against any of the accused and thereafter she was declared hostile. Therefore, the evidence of P.W. 2 was of no help to the prosecution. 10. P.W. 3 has stated that on a Sunday, Janardan Thkaur came running to her house and police immediately came and caught Janardan Thakur who was later on killed. She had also stated that she saw the police personnel catching Janardan Thakur involving one S.I. and some constables. She had not named any of the accused as the persons who have committed any overt act or chasing or assaulting. She has described the police personnel as suspicious. Therefore, evidence of P.W. 3 is of no help to the prosecution. 11. P.W. 4 was declared hostile at the outset and thereafter he had divulged that he has not stated anything to the I.O. regarding the occurrence. 12. The most important witness of the case is the informant P.W. 5. He has stated that there was a quarrel between Dharmnath Pandey and Janardan Thakur. Dharmnath Pandey was assaulted by Janardan Thakur with a knife as a result of which he Patna High Court CR. APP (DB) No.322 of 1990 dt.18-06-2013 6 succumbed to that injury. Thereafter villagers chased Janardan Thakur and Harkesh. Janardan Thkaur thereafter, jumped out of the house with the help of bamboo and ran away to village Dubaulia to the house of her Bua (father’s sister). Therefore, this witness is not a witness of the occurrence and has stated that the appellants assaulted Janardan Thakur with fists, slaps and Lathi. It was a huge mob which was causing assault. He had specifically stated that he has not seen that who has caused injury to Janardan Thakur. Therefore the evidence of informant P.W. 5 is of no help to the prosecution as he had not supported the charge of causing any overt act which led to death of Janardan Thakur. 13. There is no other witness who had stated anything about the occurrence. The I.O. P.W. 7 had deposed that he was informed at Kuchaikot police station by Chowkidar that a person in village Karnpura has been grievously injured. He rushed to Karnpura and found hundred of persons surrounding the house of Raj Narain Thakur. He noticed many persons bringing Janardan Thakur and thereafter he was caught by the S.I. Janardan Thakur could not speak anything so statement of Raj Narain Thakur (informant, P.W. 5) was taken which led to registration of the FIR. Janardan Thakur was sent to hospital but the injuries proved fatal. He thereafter completed the paraphernalia after preparation of the Patna High Court CR. APP (DB) No.322 of 1990 dt.18-06-2013 7 inquest report. 14. P.W. 8 Dr. Mundrika Prasad had found some injuries upon the persons of the deceased. 15. The total evidence after being scanned are not even pointing out any accusing finger against any of the accused so far as it relates to charge of assault which led to his death. Even the most material witness had not claimed to be a witness of the occurrence. The present case is based upon the direct evidence but no witness has come to state anything so far it relates to charge against any of the accused. Mother of the deceased was the most important witness and she has not claimed to be an eye witness of killing. Similarly the informant – brother of the deceased has also not pointed any accusing finger to any of these accused persons. Hence, there is no witness at all who has said anything about any role of any of the accused. In fact, this is a case of no evidence and if the entire evidence is analyzed then it can be safely held that there is no evidence at all which could link the accused with the charge. 16. In the background of the discussion made above the charge against any of the accused/appellant is not proved.
Decision
In the result, the judgment of conviction and order of sentence is set aside. The appeal is allowed. The appellants are already on bail Patna High Court CR. APP (DB) No.322 of 1990 dt.18-06-2013 8 hence they are acquitted of the charges and discharged from the liabilities of their respective bail bonds. (Shyam Kishore Sharma, J.) N.A.F.R. KKSINHA/- (Amaresh Kumar Lal, J.)