Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.60 of 1988 (Against the judgment of conviction and order of sentence dated 30.01.1988 passed by the learned 3rd Additional Sessions Judge, Muzaffarpur in Sessions Trial No.74/1987) =========================================================== 1. 2. 3. 4. 5. Md. Idris Quadri, son of Abdul Aziz. Amin Ahmad, son of Abdul Wahid. Md. Mohiuddin, son of Md. Jadey Hussain. Md. Bashir @ Bashir, son of Babeyan Mian. Md. Amanat @ Amanat Hussain, son of Saheb Jan Mian. (All are residents of village-Madho Chapra, P.S.- Karja, District- Muzaffarpur) Versus .... .... Appellant/s The State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Pramod Kumar, Advocate Mr. Ravi Bhardwaj, Advocate For the Respondent/s : Mr. Ajay Mishra, Addl.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA And HONOURABLE MR. JUSTICE AMARESH KUMAR LAL (Per: HONOURABLE MR. JUSTICE AMARESH KUMAR LAL) Date: 31-10-2013 ORAL JUDGMENT This appeal has been preferred against the judgment of conviction and order of sentence dated 30.01.1988 passed by the learned 3rd Additional Sessions Judge, Muzaffarpur in Sessions Trial No.74/1987 by which the appellants have been convicted under Sections 302/34 of the Indian Penal Code and sentenced to undergo imprisonment for life and the accused Md. Shoib has been acquitted by giving him the benefit of doubt. 2. The prosecution case, in brief, is that on the night
Legal Reasoning
Patna High Court CR. APP (DB) No.60 of 1988 dt.31-10-2013 2 between the 6th and 7th February, 1986, the accused persons committed murder of the deceased Triyugi Pandey in their village Madhopur Chhapra. This case was instituted on the basis of the fardbeyan (Exbt.6) of Choukidar Shiva Nandan Rai (P.W.4). The informant Bujhattan Rai alongwith Prabhu Rai, son of Choukidar Shiva Nandan Rai was on night round duty near Katcha Bridge on the said night. At about 11.30 to 11.45 P.M., they heard Hulla. The informant alongwith Prabhu Rai went to Darwaza of accused Md. Idrish Quadri at village Madhopur Chhapra. He found the dead body of the deceased Triyugi Pandey lying at the Darwaza of accused Md. Idrish Quadri. The family members of accused Md. Quadri and his some neighbours were found standing around the dead body. A pistol and a cartridge were found lying by the side of the dead body. The accused Md. Idrish Quadri, who was Sarpanch told the informant that the deceased Triyugi Pandey had come to commit his murder andwas knocking his door. He further told the informant that on Hulla raised by him, his neighbour Amin Ahmad came with his gun and fired at the dacoits as a result of which, the deceased sustained gun shot injury. The informant was further informed by the accused Md. Idrish Quadri that several persons had assembled on Hulla raised by him and assaulted deceased Triyugi Pandey by means of Lathi, as a result of which, he fell down at the road and from there, he was brought by the villagers to his Darwaja. Patna High Court CR. APP (DB) No.60 of 1988 dt.31-10-2013 3 3. The fardbeyan (Exbt.6) of the informant Choukidar, Bujhawan Rai was recorded by the Officer-in-charge of Karja Police Station at the Darwaza of accused Md. Idrish Quadri at 9.30 A.M. on 7.02.1986. A formal FIR (Exhibit-7) was drawn up and a case was registered under Section 304 of the I.P.C. against accused Amin Ahmad on the basis of the fardbeyan of the informant Bujhawan Rai. After investigation, charge-sheet was submitted under Sections 302 and 341/34 of the I.P.C. Cognizance was taken on 17.07.1987. The case was committed to the court of sessions vide order dated 10.07.1987. The charge was framed against the accused/appellants to which they denied and claimed to be tried. After the trial, the appellants have been convicted and sentenced, as aforesaid and the co-accused Md. Shoib has been acquitted by giving him the benefit of doubt by the learned trial court. 4. This Court is required to reappraise the evidence to consider as to whether the prosecution has been able to substantiate its charge against the appellants beyond reasonable doubt. 5. The prosecution has examined the following witnesses to prove its case : P.W.1 Ram Pravesh Pandey, P.W.2 Dr. Binod
Legal Reasoning
Kumar Mehta, P.W.3 Sri Ram Rup Singh, P.W.4 Bujhawan Singh, P.W.5 Radha Kant Pd. Singh, P.W.6 Jagdish Tiwari, P.W.7 Ram Chandra Shahi, P.W.8 Deo Lal Singh, P.W.9 Ram Adarsh Singh and P.W.10 Jhapas Rai. Patna High Court CR. APP (DB) No.60 of 1988 dt.31-10-2013 4 6. P.W.1 and P.W.3 are the eye witnesses to the alleged murder of the deceased out of the prosecution witnesses. P.W.2 has held the post-mortem examination on the dead body of the deceased. P.W.4 is the informant. P.W.5 is a witness to the inquest report (Exbt.3). He is also a witness to the seizure list (Exbt.4). P.W.6 is a formal witness, who has proved the protest petition (Exbt.5). P.W.7 is also a seizure list witness and he has proved his signature (Exbt.2/1). P.W.8 is the Investigating Officer who has also recorded the fardbeyan of the Chaukidar (P.W.4) which has been registered as Karja P.S. Case No.8/1986 and prior to it he has recorded the fardbeyan of Md. Idrish Quadari, which has been registered as Karja P.S. Case No.7 (2)/1986, which has been marked as Exbt.6/A and on the basis of which, formal FIR was drawn up which has been marked as Exbt.7/A. After investigation, charge-sheet has been submitted in this case (Karja P.S. Case No.8/1986) and he has also submitted the final form in Karja P.S. Case No.7/1986 (Ext.9) and has filed a petition for initiating a case against the appellant Md. Idrish Quadari for the offence punishable under Sections 182/211 of the I.P.C. (Exbt.10). P.W. 9 is also a formal witness who has proved the writing and signature of accused/appellant Md. Idrish Quadari (Exbt.6/1) and writing on formal FIR (Exbt.9/1). P.W.10 is also a formal witness (whose deposition is not available). 7. P.W.1 has stated that on the date of occurrence at about Patna High Court CR. APP (DB) No.60 of 1988 dt.31-10-2013 5 10.30 P.M. he was returning to his house. When he reached near the Dalan of Shoib Mian, Shoib Mian flashed torch on him and told that due to fear of thief and criminal, they are awaking. When he reached at Chapra Madho More, he saw 10-11 persons assaulting the deceased by means of Lathi and he claimed to identify Md. Idrish Quadari and Amin among the persons who were assaulting the deceased. He protested against the highhandedness of the accused persons on which accused Md. Idrish Quadari and Amin Ahmad asked other assailants of the deceased to assault him (P.W.1). Thereafter, P.W.1 went from there. It appears from his evidence that P.W.1 has strain relation with Md. Idrish Quadri. In his cross-examination, he has stated that he did not come down from the bicycle. He had asked the accused as to why they were committing the crime while he was riding on the bicycle. He has denied that he made statement before the Investigating Officer on 20.02.1986 for the first time. He has admitted that he identified the accused Amin and Md. Idrish Quadri by voice and due to darkness, he could not identify them by face. He also identified Triyugi Pandey by voice. 8. Similarly, P.W.3 has also claimed to identify the assailants and has supported the prosecution case as P.W.1. He has stated that on the date and time of occurrence, he was returning to his Patna High Court CR. APP (DB) No.60 of 1988 dt.31-10-2013 6 house. When he reached near Madhopur Chapra More near the cattle shed of Ayub Mian, he saw that some persons were assaulting a person. He identified the appellants Md. Idrish Quadri, Amin Ahmad, Md. Amanat, Md. Basir, Md. Manuddin and Md. Soib (since acquitted). He has stated that these accused persons were assaulting Triyugi Pandey with Lathi and Iron rod and identified them in the torch light. He has also stated that he protested about the action of the appellants. Thereafter, Md. Idrish Quadri asked him to move failing which he would also be killed. He has further stated that Amin Ahmad followed him to assault him. He went to his house and narrated about the occurrence to his family members and his neighbours. His statement was taken by the Investigating Officer as well as the Dy.S.P. In the morning, he came to know that Triyugi Pandey died due to assault. In his cross-examination, he has stated in paragraph 3 that his statement was recorded by the police on 7.02.1986 by the Dy.S.P. and the Investigating Officer and again his statement was recorded on 20.02.1986. He has denied the suggestion of the defence that his statement was taken by the Investigating Officer for the first time on 20.02.1986 and not on 7.02.1986 as claimed by him. In paragraph 4, he has again reiterated that his statement was recorded by the police on 7.02.1986 at about 11.00 A.M. On 7.02.1986, he went to the house of deceased and narrated about the occurrence to his father Sri Ram Kripal Pandey, who has not been examined in this case. Patna High Court CR. APP (DB) No.60 of 1988 dt.31-10-2013 7 9. P.W.4 is the informant of this case and he is a hearsay witness. He has stated that he was on the night patrolling duty, he alongwith another Chaukidar Prabhu went to the village Madho Chapra at the Darwaja of the Sarpanch Idrish Quadri where the dead body of deceased Triyugi Pandey was lying and there were several persons present. Chaukidar Sheikh Rafique (not examined) and others were present there. He has stated in paragraph 2 that Md. Idrish Quadri told him that Triyugi Pandey had come to kill him and was knocking his door and was searching the Sarpanch. Idrish Quadari raised alarm. Amin Ahmad came with gun and shot fire on the dacoit which caused injuries to Triyugi Pandey and he died. In the morning, he got recorded his fardbeyan by the police officer. He has further stated that Md. Idrish Quadari told him that the villagers assaulted Triyugi Pandey with Lathi and when he fell down, they brought the body of Triyugi Pandey at his Darwaja. In his cross-examination, he has stated that pistol and a cartridge were lying besides the dead body and the people were telling that they belong to Triyugi Pandey. 10. P.W.8 is the Investigating Officer who has recorded the fardbeyan (Exbt.6) of the informant and the formal FIR (Exbt.7). He has stated that he inspected the place of occurrence. The dead body of Triyugi Pandey was lying in front of the Darwaja of the appellant Idrish Quadari near Fulkaha Road at village Madhopur Chapra. There is also the house of the accused Md. Soib. He seized Patna High Court CR. APP (DB) No.60 of 1988 dt.31-10-2013 8 the part of the torn Kurta which has been marked as material Exbt.1 and he also prepared the sketch map of the place of occurrence, which has been marked as Exbt.8. In paragraph 6, he has stated that the accused Md. Idrish Quadri has lodged a case under Section 452 of the I.P.C. against the deceased Triyugi Pandey and others on 7.02.1986 and that case was also investigated by him and finding it false, the final form was submitted and he recommended for institution of a case under Sections 182 and 211 of the I.P.C. against Md. Idrish Quadari. He has further stated that after investigation, he submitted charge-sheet in the present case for the offence punishable under Sections 302, 341/34 of the I.P.C. In his cross-examination, he has stated that he has no information as to whether the final form submitted in the case lodged by Md. Idrish has been accepted by the learned Judicial Magistrate or not. The case instituted by Md. Idrish Quadri was registered as Karja P.S. Case No.7 (2)/86 and the case instituted by P.W.4 (informant) was registered as Karja P.S. Case No.8/1986. He investigated both the cases. In paragraph 9, P.W.8 has stated that on 20.02.1986, he took the statement of P.W.1 and P.W.3. He has further stated that both of them did not make any statement before him prior to 20.02.1986. 11. The evidence of P.W.1 and P.W.3 does not inspire confidence. Their evidence is full of contradictions and embellishments. They have stated that they made their statement Patna High Court CR. APP (DB) No.60 of 1988 dt.31-10-2013 9 before the Investigating Officer and other police officer on 7.02.1986, whereas, the Investigating officer (P.W.8) has specifically stated in paragraph 9 that P.W.1 and P.W.3 gave their statement for the first time on 20.02.1986. P.W.8 has stated in paragraph 10 that P.W.3 did not tell him that he was returning by bicycle and Triyugi Pandey (deceased) was being assaulted with Danda and Iron rod in his presence. 12. P.W.2 has held the post-mortem examination on the dead body of Triyugi Pandey (deceased) on 8.02.1986 at 10.30 A.M. and has found the following ante mortem injuries on his person : (i) Bleeding from mouth and nostril. (ii) Lacerated injury 1” x ½”x ½” over left eyebrow with laceration of left eye. (iii) Bruise 4” x 3” over left temporal region. On dissection extensive blood clots were present under knee. On further dissection large extra dural haemotoma was in left temporal region with fracture of left temporal bone. (iv) On dissection of chest, there was fracture of 4th to 9th ribs on both sides of chest with effusion of blood in thoracie wall. (v) Multiple small round black spots of the size of ½”cmx ½”cm. were present over back of chest and abdomen. On dissection it shows injury to skin with surrounding inflammation. In the opinion of the doctor, injuries nos. (i) to (iv) had been caused by some hard blunt substance and injury no.(v) has been Patna High Court CR. APP (DB) No.60 of 1988 dt.31-10-2013 10 caused by heated iron substance. Time elapsed since death was within 24-48 hours. The deceased died due to shock and haemorrhage. The post mortem examination report has been marked as Exbt.1. 13. It is admitted fact that Triyugi Pandey has been killed but not in the manner as suggested by the prosecution. 14. Considering the facts and circumstances stated above, it can be said that the prosecution has not been able to prove its case beyond shadow of all reasonable doubts. The appellants are entitled to get the benefit of doubts. Accordingly, the impugned judgment of conviction and order of sentence is set aside. The appellants are acquitted by giving them the benefit of doubts. They are discharged from the liability of their bail bond.
Decision
15. In the result, this appeal is allowed. (Shyam Kishore Sharma, J) (Amaresh Kumar Lal, J) N.A.F.R./V.K. Pandey/-