Gaya v. The State of Bihar
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.457 of 1990 ======================================================== 1. Rameshwar Yadav 2. Bilash Yadav 3. Krishna Yadav 4. Dayal Yadav, All sons of Ramdeo Yadav 5. Krishna Paswan 6. Chandradeo Paswan 7. Basant Paswan 8. Indradeo Paswan, All sons of Gobardhan Paswan, All are resident of Village Pranpur, P.S.- Paraiya, District – Gaya. .... Appellants Versus The State of Bihar .... .... Respondent with Criminal Appeal (DB) No. 468 of 1990 ======================================================== 1. Raju Paswan son of Deoratan Paswan 2. Deoratan Paswan son of Nanhak Paswan 3. Madan Paswan son of Moti Paswan 4. Bhuneshwar Paswan son of Tannu Paswan All are resident of Village Pranpur, P.S. -Paraiya, District- Gaya. .... .... Appellants Versus The State of Bihar.... ======================================================== Both the above appeals are against the judgment of conviction and order of sentence dated 21.09.1990 passed by Sri Prasanta Kumar Sarkar, 4th Additional Sessions Judge, Gaya in Sessions Trial No.48 of 1988/218 of 1988. ======================================================== .... Respondent Appearance : For the Appellants:Mr.Krishna Prasad Singh,Sr.Advocate M/s Durgesh Nandan,Rakesh Kumar Sinha, Meena Singh and Ramnath Saran, Advocates For the Respondent: Mr.Ajay Mishra, Addl.P.P. ======================================================== CORAM: HONOURABLE MR.JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Date: 12-12-2013 --------------- Since both the above appeals have arisen Patna High Court CR. APP (DB) No.457 of 1990 dt.12-12-2013 2 out of one judgment, they have been heard together and they are being disposed of by this common judgment. 2. During pendency of the appeals, appellant no.4 Raja Paswan of Cr.Appeal (DB) No.468 of 1990 died, so the appeal on his behalf has abated. 3. Both the above appeals have been filed against the judgment of conviction and order of sentence dated 21.09.1990 passed in Sessions Trial No. 48 of 1988 by 4th Additional Sessions Judge, Gaya convicting the appellants under Sections 364 and 302/34 of the Indian Penal Code and sentencing each of them to undergo imprisonment for life under both the counts. The sentences were ordered to run concurrently. By the said judgment, two accused namely, Krishna Sao and Jagdish Paswan have been acquitted. 4. Initially a case under Sections 147,148, 149, 364 and 341 of the Indian Penal Code and 27 of the Arms Act was registered on the basis of fardbeyan (Ext.4) of Ram Ratan Prasad (P.W.10) which was recorded at 7.30 A.M. on 09.02.1987 at village Paranpur, P.S.Paraiya, District Gaya by ASI Tabakkul Roy in which the informant has stated that his brother Ramdhani Prasad (hereinafter to be referred to “deceased no.2”) and villager Ganesh Prasad (hereinafter to be referred to “deceased no.1”) along
Facts
Patna High Court CR. APP (DB) No.457 of 1990 dt.12-12-2013 3 with Shiv Kumar Prasad (P.W.4-declared hostile) had been to deposit the bill of electric consumption at Gaya. On that date, at about 5.30 P.M. when the informant was guarding his khesari crops, a loud sound was heard. The informant rushed towards his village and saw that Ramdhani Prasad, deceased no.2 and Ganesh Prasad, deceased no.2 were being taken by thrashing them near the house of Gaya Paswan (not examined) towards northern side by Laldeo Paswan alias Bhageran of village Karma (since acquitted in another trial), Ram Autar Yadav, Deyal Yadav, Bilas Yadav, Krishna Yadav, Rajwa Paswan, Madan Paswan, Bhuneshwar Paswan, Krishna Paswan, Chandradeo Paswan, Basant Paswan, Indradeo Paswan, Deo Ratan Paswan and Raju Paswan and other 10 to 12 unknown persons who were variously armed with traditional weapons as well as rifle, gun, Pasuli and Lathi. The informant (P.W.10), Naresh Yadav (P.W.11), Harkhu Yadav (P.W.9) and Shiv Kumar Prasad (P.W.4) cried but the accused persons succeeded in taking the said two persons. After cry, villagers Kishori Mahto, Arjun Mahto and others reached there. The accused persons were chased but due to firings by the accused persons, the informant and others had to retreat. It was alleged that Laldeo Paswan and others were carrying extremists outfit which was being protested by deceased no.2 and 1 and Patna High Court CR. APP (DB) No.457 of 1990 dt.12-12-2013 4 due to that they have taken away both of them. The investigation commenced and on the next day, the dead bodies of the aforesaid two persons were recovered. Inquest reports of both the deceased were prepared, the dead bodies were sent for autopsy, the blood which was near the dead bodies was seized and seizure lists were prepared which have been marked as Exts. 9 and 9/1. Post mortem reports were obtained which are Ext.2 and 2/1. The place of occurrence was investigated into and statements of witnesses were recorded. The fardbeyan dated 09.02.1987 resulted into a formal F.I.R.(Ext.6) on 10.02.1987 at 1.00 A.M. and it was sent to Court on 11.02.1987. After completion of investigation, charge sheet was submitted and cognizance was taken. Thereafter case was committed to the court of sessions where charges under Sections 364 and 302/34 of the Indian Penal Code were framed against 15 accused persons. Charges were explained to the accused persons to which they pleaded innocence. Hence trial proceeded. 5. The defence of the appellants was of complete denial of the charges and was of false implication due to enmity. 6. Before the trial court, the prosecution in order to prove its case has examined 14 witnesses. P.W.1 Dhirendra Kumar Pandey, a Judicial Magistrate Patna High Court CR. APP (DB) No.457 of 1990 dt.12-12-2013 5 who conducted test identification parade, P.W.2 Dr.Arjun Singh who held autopsy over the dead bodies of both the deceased, P.W.3 Banbari Yadav who has been declared hostile, P.W.4 Shiv Kumar Prasad, an FIR named witness who has also been declared hostile, P.W.5 Arjun Prasad, a formal witness and signatory of inquest reports, P.W.6 Kishori Mahto, an FIR named witness who has been declared hostile, P.W.7 Devnandan Yadav who has also been declared hostile, P.W.8 Shiv Ratan Yadav, brother of deceased no.2 was examined as an eye witness, P.W.9 Harakhdeo Yadav has also been examined as an eye witness, The informant P.W.10 claims to be an eye witness, P.W.11 Naresh Yadav, an FIR named witness and brother of deceased no.1 has been declared hostile, P.W.12 Ram Bilash Mahto is another formal witness of inquest who has been declared hostile, P.W.14 Tabbakul Roy is the first Investigating Officer of the case and P.W.13 Lalan Prasad Singh is the second Investigating Officer. 7. The learned 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, whereas, accused Krishna Sao and Jagdish Paswan were not found guilty and both of Patna High Court CR. APP (DB) No.457 of 1990 dt.12-12-2013 6 them were acquitted, as stated above. 8. Learned counsel for the appellants has submitted that it has come during evidence that Daroga and one another person were brutally injured due to assault by the accused persons but no doctor was examined by the prosecution which goes to show that the case has been fabricated. It has also been submitted that accused Laldeo Paswan, who was declared absconder during investigation, surrendered subsequently and faced trial against whom it was alleged that he was instrumental in kidnapping the victims has been acquitted in Sessions Trial No. 53 of 2003/511 of 1998 on 21.07.2003. Further submission is that the blood which was seized during investigation was not sent for chemical examination as stated by the Investigating Officer, so it was very difficult to say that the seized blood was of human or not. It has also been submitted that it has come in evidence of the prosecution that both the deceased had gone to deposit the electric consumption bill but there was no enquiry about that. It has been argued that the consistent case of the prosecution is that both the victims were dragged like a cattle but no dragging mark was found anywhere in the way. 9. This Court is required to reappraise the evidences on record to see as to whether there was Patna High Court CR. APP (DB) No.457 of 1990 dt.12-12-2013 7 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 account, it would be appropriate to discuss the evidence of the doctor who conducted post mortem on the dead bodies of both the deceased. P.W.2 Dr.Arjun Singh was posted as Tutor in Anugrah Narain Medical College, Gaya on 10.02.1987 and at 3.15 P.M. on that day, he conducted post mortem examination on the dead body of Ganesh Prasad (deceased no.1) and has found following ante- mortem injuries: (i) Multiple bruises over right side of face and neck. (ii) Incised wound over left parieto- occipital region 4”x1/2”x bone deep. (iii) (iv) (v) Bruise 2”x 1”over left arm. Dislocation of right elbow joint. Both legs bones (Tibia & fibula) are fractured (compound). On dissection : the doctor found the stomach empty and lungs congested. The injuries were caused by hard and blunt substance except injury no.(ii) which was caused by sharp cutting weapon- may be by Patna High Court CR. APP (DB) No.457 of 1990 dt.12-12-2013 8 pasuli. The said P.W.2 has also held post mortem examination on the dead body of Ramdhani Prasad (deceased no.2) on the same day at 2.50 P.M. and found following ante mortem injuries: (i) Incisors and premolars teeth of both upper and lower jaw broken and mouth is filled with blood clots. (ii) Incised wound 2 ½”x1/4” over right mandibular region (Jaw bones) romuds- cutting mandibular bone also. (iii) Lacerated wound 1”x1/2” muscle deep over right side of neck. (iv) Bruise (multiple) over right upper part of chest with fracture of 3rd to 8th rib on both sides. (v) Both legs (tibia & fibula) are fractured just above ankle joint. (vi) Piercing wound right iliac fossa 2”x1/2”x cavity deep(lower abdomen). The death of both the deceased in the opinion of the doctor was due to shock and haemorrhage. The injuries were caused within 12 to 36 Patna High Court CR. APP (DB) No.457 of 1990 dt.12-12-2013 9 hours which goes go show that the caught persons were killed at the time as alleged by the prosecution. 11. Once it has been established that two persons were killed, then the prosecution was required to prove that the killing was by the accused/appellants alone. 12. The witnesses examined can be identified to be in different categories. P.W.11, P.W.9, P.W.3 and P.W.4 who had gone to deposit the electric consumption bill with the victims, are the witnesses whose names have been mentioned as eye witnesses. P.W.8 Shiv Ratan Yadav(brother of deceased no.2) has also been examined although his name does not show as eye witness in the FIR. P.Ws.3, 4, 6, 7 and 11 have been declared hostile. Names of P.Ws.4, 6, 9 and 11 are named as eye witnesses in the fardbeyan. P.Ws. 5 and 12 are witnesses of the inquest. Therefore, P.Ws.8 to 10 are the material witnesses. 13. P.W.1 on 25.03.1987 i.e. after one and half months of the occurrence has held test identification parade in which P.W.9 Harakhdeo Yadav has identified Krishna Sao. P.W.9 was examined in court and has stated that he saw Ramdhani and Ganesh were being taken by the accused persons while he was cleaning his utensils in the river. Accused Laldeo (since acquitted) and Raja told P.W.9 to stop Patna High Court CR. APP (DB) No.457 of 1990 dt.12-12-2013 10 cleaning and accompanied them. This witness was threatened. P.W.4 Shiv Kumar Prasad was made to return and was directed to send Banwari Yadav,P.W.3. Twenty five to twenty six persons were seen coming running from east and they were having gun, rifle, three nut etc. This witness has named Madan Paswan, Raju Paswan, Bhuneshwar Paswan, Krishna Paswan, Chandradeo Paswan, Basant Paswan and Indradeo Paswan. Others were unknown. Deceased no.1 and deceased no.2 were got encircled and were taken towards vacant place. On cry of this witness, the villagers came and Darogo Yadav (not examined), Chamari Yadav (not examined), Komal Yadav(not examined), Banwari Yadav and others were amongst them. Darogo Yadav was assaulted on his head by the butt of gun and on account thereof his head was broken. There is no injury report of Daroga Yadav nor Daroga Yadav has been examined as prosecution witness. This witness has given specific statement that the blood was fallen but the Investigating Officer has not found any blood. In further examination, this witness has stated that in test identification parade one person was identified by him and that identification was due to threat of police. That identified person Krishna Sao has been acquitted by the court below. The evidence of P.W.9 creates doubt on the conduct of the Investigating Officer because this witness has stated Patna High Court CR. APP (DB) No.457 of 1990 dt.12-12-2013 11 that the identification of one person in TIP was on the threat of police. The evidence of this witness has not been accepted to be correct and accused Krishna Sao was acquitted. Therefore, the evidence of P.W.9 does not inspire any confidence. 14. The informant is P.W.10 and he has stated that at 5.00 P.M. he was guarding his Khesari crops. After hearing unusual sound this witness had proceeded towards house of Gaya Paswan where he saw both the deceased and others including Laldeo (since acquitted), Rameshwar, Deoratan, Rajwa, Madan, Raju Paswan, Krishna Paswanm, Chanardeo, Basant, Krishna Yadav, Dayal Yadav and some other persons. All were having lathi, gun, pasuli who were mercilessly assaulting Ramdhani and Ganesh and were saying that they would kill them like dogs. This witness further stated that accused persons were taking the caught persons towards Churi Pahar by assaulting them. The accused persons were being requested by both the caught persons not to do so. The accused persons were followed by Shiv Kumar Prasad, P.W.4 (declared hostile), Banwari Yadav,P.W.3 (declared hostile) and Devnandan Yadav, P.W.7 (declared hostile). This witness has also stated that he was assaulted by Madan and Rajwa by the butt of the guns but there is no injury report on the record and there is no Patna High Court CR. APP (DB) No.457 of 1990 dt.12-12-2013 12 investigation upon this point. It has also been alleged that the informant was being asked to join the extremist’s outfit and when that was not done, this witness (informant) and deceased nos. 1 and 2 were targeted and that was the reason which led to killing. On the next morning at 6.00 A.M. the dead bodies of Ramdhani and Ganesh were found. The Investigating Officer has been examined as P.W.14 but he has stated that he arrived in the P.O. village at 10.30 A.M. and at that time he saw the dead bodies and thereafter he prepared inquest reports and dead bodies were sent for autopsy. Here the time given by the informant has varied too much by the time given by the first Investigating Officer. The first Investigating Officer has examined the witnesses and has investigated into the case till 11.02.1987 and on that date i.e. 11.02.1987 he had handed over the charge meaning thereby the investigation was done only for a day as the offence was committed in the night of 09.02.1987 and FIR was registered on 10.02.1987 and the first investigating Officer handed over the charge of investigation to second I.O. on the next day. The evidence of Second Investigating Officer is that he has not made any investigation on his part. The second Investigating Officer (P.W.13) in paragraph 7 of his evidence has stated that he took charge of Patna High Court CR. APP (DB) No.457 of 1990 dt.12-12-2013 13 investigation on 11.02.1987 and submitted chargesheet on 03.05.1987 but he has not even inspected the place of occurrence and recorded the statement of any witness meaning thereby there was no investigation. He further stated in his evidence that he has not obtained any material with regard to investigation nor has taken statement of any person. The sum and substance of the Investigating Officer is that the investigation was carried out only for a day i.e. on 10.02.1987 and thereafter there was no investigation. The motive was not investigated into. Once the motive is alleged, then it was to be investigated. The informant in his fardbeyan has not stated that the extremists were asking him to join their extremists outfit rather according to fardbeyan extremists were pressurizing deceased nos. 1 and 2 to join their outfit but in evidence the informant has come out with a fresh case that he was being given threat to join their outfit. The clear motive was that two persons were picked out for disobeying the command of the extremists to join their outfit though the informant was present, he could have been carried away with deceased nos. 1 and 2.
Legal Reasoning
materials on record, we are of the view that there is nothing on the record to show that the prosecution has been able to prove the charges against the Patna High Court CR. APP (DB) No.457 of 1990 dt.12-12-2013 18 appellants beyond the shadow of all reasonable doubts. As such the benefit of doubt goes in favour of the appellants. Accordingly, the appellants deserve to be acquitted.
Arguments
15. Learned counsel appearing on behalf of the appellants has submitted that main accused Laldeo was not initially apprehended but subsequently apprehended Patna High Court CR. APP (DB) No.457 of 1990 dt.12-12-2013 14 and put on trial but no evidence came against him, so he has been acquitted on 21st July, 2003 in Sessions Trial No. 53 of 2003/511 of 1998 by Additional Sessions Judge VI, Gaya. Laldeo was shown as accused no.1. The case of these appellants were better than that of accused Laldeo Paswan. It has also been submitted that non-presence of any blood mark anywhere in the way goes to show that the occurrence was not committed in the manner as alleged. 16. On the other hand, learned Additional P.P. has submitted that the acquittal of accused Laldeo Paswan and others will not help the appellants as Laldeo Paswan was acquitted in different case. Further submission is that seized articles were not sent for chemical examination which violates the manner of investigation but for that the prosecution case cannot be doubted. Non-presence of any injury upon the informant and others is also not fatal. 17. Though 14 prosecution witnesses have been examined but amongst them many independent witnesses have been declared hostile as they have not supported the prosecution case. It is a common phenomena that independent witnesses are reluctant in deposing the true version of the prosecution. So on this ground, the evidence of other prosecution witnesses cannot be doubted. The evidence is to be weighed and not be Patna High Court CR. APP (DB) No.457 of 1990 dt.12-12-2013 15 counted. In the present case, the statement in fardbeyan has been elaborated subsequently by the informant while he was deposing in court. In fardbeyan, the informant has not stated that he was being pressurized to join the extrermists outfit but he included himself in the category of deceased nos. 1 and 2 and he could not explain as to why he was left in the fardbeyan. From the evidence, it is apparent that that no step was taken by the accused persons to catch the informant but he has put himself in the same category of deceased nos. 1 and 2. 18. The consistent case of the defence which was apparent from the trend of the cross examination was that deceased nos.1 and 2 were found absent from the village as they had not returned to the village on 09.02 1987 after they left village Paranpur. 19. The prosecution case is based upon the testimony of only three witnesses. They are P.Ws. 8,9 and 10. The prosecution case is in two fold. One is abduction and second is murder. So far as the charge of murder is concerned, there is no evidence at all. Even P.Ws. 8 to 10 have not said a single word about commission of murder and the prosecution has retreat upon the circumstantial evidence for proving the charge under Section 302/34 of the Indian Penal Code. The prosecution has drawn inference from the act of Patna High Court CR. APP (DB) No.457 of 1990 dt.12-12-2013 16 abduction as according to prosecution, the abduction was for liquidation of deceased nos. 1 and 2. The abduction of deceased nos. 1 and 2 has taken place at 5.00 P.M. on 09.02.1987 and the dead bodies were recovered in the morning of day following. The injuries found on the persons of the deceased were definitely not in the term with the allegation of dragging and thorough beating. 20. P.W.9 has stated in paragraph 12 of his evidence that when he was cleaning his utensils in the Jamuni river, Raziya Devi, daughter-in-law of Ramji Mahto, daughter-in-law of Babloo Mahto and wife of Kishori were also cleaning their utensils and at that time abductors took deceased nos. 1 and 2 and these were the important and natural witnesses but they have not been examined. P.W.9 has further stated in paragraph 16 of his evidence that Rajesher was sent to inform police with instruction that unknown persons have kidnapped deceased nos. 1 and 2. Investigating Officer has not stated that he has received any information through any Rajesher regarding manner of assault which was elaborated by the informant that he has seen the victims being assaulted by lathi and gun but the doctor has not found any corresponding injury by the weapon as alleged. Therefore, the manner of occurrence has not been established at all. Non- Patna High Court CR. APP (DB) No.457 of 1990 dt.12-12-2013 17 examination of the doctor who treated the injured is another circumstance which goes to establish the fact that the prosecution has not come with a clean case. The motive has also not been established. The motive is not always required to be proved, if motive is alleged, then it was to be established. Further more, on the same charge Laldeo has been acquitted. Non- presence of blood mark anywhere at the place of occurrence from which place the victims were taken away goes to show that the manner of occurrence has not been stated truthfully. These are the vital circumstances which could have been elaborated by the prosecution. If that was not done, then it can be said that the investigation was perfunctory. The case could not have been investigated in a single day i.e. 10.02.1987 and thereafter there is nothing to show the manner in which the investigation was carried out. Only to fulfill their ambition chargesheet was submitted without collecting evidence. Such investigation cannot be accepted to be enough to prove the charge against the accused persons. 21. After hearing learned counsel for the parties and after taking into consideration the entire
Decision
22. In the result, the judgment of conviction and order of sentence passed against the appellants is set aside and both the appeals are allowed. The appellants are acquitted of the charges. They are discharged from the liabilities of their respective bail bonds. (Shyam Kishore Sharma, J) (Amaresh Kumar Lal, J) Patna High Court, Patna Dated, the 12th December,2013 Tahir/-(NAFR)