Patna High Court
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Patna High Court CR. APP (DB) No.61 of 1990 dt.25-10-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.61 of 1990 ======================================================== 1. Lal babu Harijan sonof Ram Autar Harijan 2. Kish Nath Manjhi son of Akil Manjhi 3. Chandrama Harijan son of Baldeo Harijan 4. Kishundeo Manjhi son of Ganeshi Manjhi] 5. Balindra Manjhi son of Jang Bahadur Manjhi 6. Vijay Harizan son of Ganesh Harijan 7. Kuer Harijan son of Sahdeo Chamar 8. Mahadeo Chamar son of Maheshwar Chamar All resident of village- Makariyar, P.S.- Siwan Muffasil, District- Siwan……………………………………………..... .... Appellant/s Versus The State of Bihar ……………………...... .... Respondent/s with Criminal Appeal (DB) No. 115 of 1990 ======================================================== Sheo Prasad Master @ Sheo Prasad Manjhi son of Bhabhuti Manjhi, resident of village0 Makariar, P.S.- Siwan Muffasil, District- Siwan .... .... Appellant/s Versus The State Of Bihar…………………………………..... .... Respondent/s ======================================================== Against the judgment of conviction and order of sentence dated 9th February, 1990 passed by Shri J. Pd. Paul, 3rd Additional Sessions Judge, Siwan in Sessions Case no. 110 of 1987. ======================================================== Appearance : (In CR. APP (DB) No. 61 of 1990) For the Appellant/s : Mr. Rajendra Narain, Sr. Advocate Mr. Umesh Kumar Roy, Advocate Mr. Kunj Bihari Sharan, Advocate For the Respondent/s : Mr. Ajay Mishra, APP (In CR. APP (DB) No. 115 of 1990) For the Appellant/s : Ms. Anju Narain, Advocate, Amicus Curiae For the Respondent/s : Mr. Ajay Mishra, APP ======================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Date: 25-10-2013 Above noted appeals have been heard together because both the appeals have arisen out of common judgment dated 9th Patna High Court CR. APP (DB) No.61 of 1990 dt.25-10-2013 2 February, 1990 passed by the learned 3rd Additional Sessions Judge, Siwan in Sessions Case No. 110 of 1987 whereby the appellants of Cr. Appeal No. 61 of 1990 (DB) were held guilty for the offence punishable under sections 147 of the Indian Penal Code and they were sentenced to undergo rigorous imprisonment for one year. The sole appellant of Cr. Appeal No. 115 of 1990 (DB) was found guilty for the offence punishable under section 302 of the Indian Penal Code and section 27 of the Arms Act and he was sentenced to undergo rigorous imprisonment for life and one year respectively. The sentences were ordered to run concurrently. 2. Initially a case was registered under sections 147, 148, 149, 324, 325, 307, 380 of the Indian Penal Code and section 27 of the Arms Act on 13.7.1986 vide Muffasil Siwan P.S. Case No. 115 of 1986. Subsequently the injured died, so section 302 Indian Penal Code was added. Fard-beyan (Ext. 9) of Md. Halim (PW 8) was recorded at 7.30 hours by PW 11 N. K. Sinha wherein he stated that his Baba Sk. Mulazim (not examined) and relative Rafijul Haque (not examined) were sleeping in the night of 12/13.7.1986. At about 1.30 AM the informant woke up and saw Mahadeo Chamar, Chandrama Harizan, Kuer Chamar, Lal Babu Chamar, Vijoy Harizan, Sheo Pd. Master, Kishundeo Manjhi, Kishnath Manjhi and Balindra Manjhi having sticks encircled the cot of the informant. They hurled abuses and indiscriminately assaulted the informant. The informant’s baba Sk. Mulazim (not examined) and the informant’s brother Md. Islan (PW 2) have come for rescue but they were also assaulted by sticks. The criminals were
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Patna High Court CR. APP (DB) No.61 of 1990 dt.25-10-2013 3 searching Nasim- son of the informant’s brother and the informant’s cousin Akhtar Hussain (PW 1) but the informant succeeded in escaping towards east of the village. While searching Nasim, the criminals entered inside his house. In the meanwhile the shot of fire was heard and cry of informant’s nephew Sk. Naimullah was also simultaneously heard. The informant rushed and knew from the wife of Sk. Sultan (PW 3) that the criminals have taken her rold gold ear ring. They have also taken some other ornaments which she was wearing. Six boxes were carried away. Sk. Akthar had the injury and he was carried to the hospital. The motive behind the occurrence was that Hazara Khatoon the wife of Ali Ahmad was very intimate with Shiv Prasad Master and that was not being tolerated. Shiv Prasad Master was asked to refrain from carrying out the relationship but that has aggravated him. A few days prior to the occurrence Shiv Prasad Master has taken away a girl of the village. In the morning, the boxes were found on the bank of Sona river. The goods were scattered there. Naimullah received injury and was being treated. The fard-beyan, witnessed by PW 7, resulted into formal FIR and investigation commenced. The injured died on the date of occurrence itself, so section 302 Indian Penal Code was added. Investigation was carried, place of occurrence was investigated and statements of the witnesses were recorded. The Police found the case to be true, so the chargesheet was submitted which was the basis of the cognizance of the case. The case being triable by the court of Sessions was committed where charge under sections 307/149 of the Indian Penal Code was explained against all the nine accused namely, Patna High Court CR. APP (DB) No.61 of 1990 dt.25-10-2013 4 Mahadeo Chamar, Chandrama Manjhi, Kuar Chamar, Lal Babu Chamar, Vijay Harijan, Shiv Prasad Master @ Shiv Prasad Manjhi, Kishnath Manjhi, Damoddar Manjhi and Kishundeo Manjhi and charge under sections 302/149 IPC was explained to the appellants of Cr. Appeal No. 61 of 1990 namely, Mahadeo Chamar, Chandrama Harijan, Kuar Chamar, Lal Babu Chamar, Kishundeo Manjhi, Kisnath Manjhi, Bahadur Manjhi and Vijay Harijan whereas charge under section 302 IPC was explained to Shiv Prasad Master @ Shiv Prasad Manjhi. The accused persons pleaded their innocence, so the trial proceeded. 3. The defence of the accused persons was of false implication on account of enmity wherein Shiv Prasad Manjhi has married with Jubeda Khatoon the niece of Md. Halim and that was not being tolerated by the informant. 4. Before the trial court the prosecution has examined Ali Akhtar Hussain (PW 1), Md. Islam (PW 2), Asma Khatoon (PW 3), Anil Kumar Verma (PW 4), Bhabesh Prasad Singh (PW 5), Kasidan Khatoon the mother of the deceased (PW 6), Md. Alias (PW 7), Md. Halim (PW 8), Dr. Tribhuwan Narain Singh (PW 9) has examined the injured, Satya Narain Prasad the learned Judicial Magistrate (PW 10) and Niraj Kumar the investigating officer (PW 11). PWs 1, 2, 3, 7 and 8 are named as a witness in the fard-beyan. PWs 2, 3, 6 and 8 are injured witnesses. PW 4 has held the post mortem examination on the dead body of the deceased. PW 9 has examined Pws 2, 3, 6 and 8 and other injured persons. PW 5 has examined deceased prior to his death. 5. Besides the fard-beyan exhibited as Ext.7, the formal Patna High Court CR. APP (DB) No.61 of 1990 dt.25-10-2013 5 FIR was marked as Ext. 8, post mortem report has been exhibited as Ext.1 and inquest report as Ext. 13. 6. On behalf of the defence also Ganesh Prasad and
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Shashi Shekhar Prasad Shrivastava have been examined as DWs 8 and 9- they are formal witnesses who have proved some writings. DW 1 Rama Yadav, DW 2 Rajendra Manjhi, DW 3 Rama Ram, DW 4 Hari Prasad, DW 5 Rama Shankar Prasad, DW 6 Mahendra Chaudhary, DW 7 Kameshwar Pandey were the other witnesses who were examined on behalf of the defence. DW 4 was the officer incharge of the Police Station. 7. Learned trial court after considering the evidences on the record and after hearing the submissions, found that the prosecution has succeeded in proving the charge against the accused persons beyond the shadow of all reasonable doubts. That judgment has been assailed by the appellants and it has been submitted that Sk. Naimulah was killed in course of commission of dacoity in the village and all the accused persons have been roped in because Shiv Prasad Master had dared to marry a girl of different community which was not being tolerated by the informant and his persons. Their further defence was that the real version was reported through Complaint Case No. 66 of 1986 under section 395 of the Indian Penal Code in which PW 8 the informant Halim Mian was the accused. Their further defence was that there was no occurrence in the house of Naimullah or at the house of the informant. In fact no occurrence has taken place in the house of Asma Khatoon. Complaint petition has been brought on the record by Patna High Court CR. APP (DB) No.61 of 1990 dt.25-10-2013 6 the defence. 8. Before taking up the witnesses, it would be appropriate to go through the medical evidence. PW 9 Dr. Tribhuwan Narain Singh while being posted as Assistant Civil Surgeon, Siwan Sadar Hospital on 13.7.1986 on emergency duty has examined Md. Halim at 6.40 PM and found following injuries. (i) Swelling over the left hand, (ii) Swelling over the base of left thumb, (iii) Slight swelling on right shoulder. Injuries were simple caused by hard blunt substance and it was caused within six hours. 9. The same doctor has examined Asma Khatoon- wife of Md. Sultan at 6.35 PM on that very day and has found slight swelling over the left shoulder joint. The injury was simple and caused within 24 hours of the examination. This doctor as also examined Sk. Sadique at 6.30 PM on that very day and has observed the following injury upon his person:- (i) swelling around the right shoulder elbow, (ii) Bruise of 1” diameter on the back, (iii) Slight swelling over the left leg. His injuries were simple and caused by hard blunt substance within 24 hours. 10. The doctor has examined PW 2 Md. Islam at 6.30 PM on that very day and has found two injuries upon his person:- (i) Swelling over the right shoulder, (ii) complain of pain on back. Injuries were simple caused by hard blunt substance within 24 hours. 11. The doctor has also examined PW 6 Kasida Khatoon and has found two injuries upon her person:- (i) swelling over the right wrist and (ii) swelling over the left leg. Her injuries were simple and caused by hard blunt substance. Age of injuries within 24 hours. Patna High Court CR. APP (DB) No.61 of 1990 dt.25-10-2013 7 12. The injuries were brought on the record through Exts. 5 to 5/4 and endorsement thereon vide Ext. 2/1 and 2/2. It was stated by the doctor that the injuries were possible by self inflection. This very doctor has declared Naimullah dead at 8.45 PM and post mortem was performed thereafter. 13. PW 5 while being posted as Civil Assistant Surgeon at Siwan Sadar Hospital on 17.7.1986 had operated Naimullah and has prepared bed head ticket. PW 4 has held the autopsy upon the dead body of Naimulla at 11.00 AM on 14.7.1986 and has found following anti mortem injuries:- (i) stitched wound 1”x ½” left lower side of abdomen and (ii) stitched wound right iliac region. Liver was ruptured postlatraly 2/3” x1/4” with clot and hamman blood and blood clot present in peritoneal cavity. Cause of death was hemorrhage and shock on account of fire arm. 14. Doctor’s evidence has proved that in the night of occurrence, on account of firing Naimullah has received injury which ultimately proved fatal and other persons have received simple injury which was caused by hard and blunt substance. 15. The oral evidence has come through PWs 1, 2, 3, 6, 7 and 8. PW 10 is the Judicial Magistrate who was deputed on 13.7.1986 at 7.45 AM by the learned C.J.M., Siwan for recording the statement of dying declaration of injured Naimullah but the learned Judicial Magistrate was told that the injured person was in operation theater so he could not record dying declaration but he has given his report (Ext. 6). Patna High Court CR. APP (DB) No.61 of 1990 dt.25-10-2013 8 16. The informant has stated that the occurrence was of the night and the time was between 1.00 to 1.30 AM. At that time he was sleeping at his outer house. His Baba (father) was sleeping besides him and another relative Rafijul Haque (not examined) was also sleeping. The informant’s uncle Sk. Sadique (not examined) and Islam Miyan (PW 2) were sleeping on Veramada. The informant noticed that his cot was encircled by Mahadeo Chamar, Kumar, Bijay, Lal Babu, Chandrama Harijan, Shiv Prasad Master, Kishnath, Kishundev and Balinder. All were having traditional arms like lathi. Accused persons indiscriminately assaulted the informant. When the informant’s uncle Sk. Sadique and cousin Islam Miyan came for rescue of the informant, then they were also assaulted. The accused persons were searching Nasim and Akthar. After assaulting, the accused persons went in the house of Islam. Some of the accused entered into the house, thereafter, the informant heard sound of a gun firing. Cry of Naimullah simultaneously came out. When the informant went, he had a talk with wife of Sultan (PW 3) and she told that the dacoits have taken away six bags and ear ring ornament from her. Cause of occurrence given was that Shiv Prasad Master was carrying illicit relationship with Hazra Khatoon (not examined) which was objected. Both have retorted to objection and they have asked the informant and others against advising in such matters. Second reason of the assault was that a girl of the village was carried by Shiv Prasad Master and that was protested. The informant has stated that the Officer Incharge was partisan as he has not read over the statement recorded by the informant. He has Patna High Court CR. APP (DB) No.61 of 1990 dt.25-10-2013 9 described that his fard-beyan was interpolated by the officer incharge. The informant’s relative who was sleeping beside him has been gained over by the accused persons, so he was not in a position to support the informant. In long cross-examination, the informant has stated that the occurrence was of the night but in the night Mukhiya, Sarpach and Chowkidar did not come. 17. According to the statement of the informant, he is not a witness to the assault upon Naimullah and he knew it later through others. 18. PW 1 has given the similar manner of occurrence. At the time of occurrence, he was sleeping in Palani of his own Bathan. He heard the cry which was coming out from Darwaja of Halim Miyan. The accused persons were having sticks and they have been identified by him. He has named all the accused persons but he has developed the allegation when he stated that at that time Shiv Prasad Master was having gun. He stated that in the meanwhile, Naimullah came but he was shot at by Shiv Prasad Master. On account of assault Naimullah fell down. This witness in paragraph 7 of his evidence has stated that he was the first person who has given statement and the informant’s statement was recorded thereafter. Considering the evidence of PW 1, it appears that he is the first person who has given statement to Police. In paragraph 21 of his evidence, PW 1 has demolished his own evidence when he stated that at the time of occurrence the parents and wife of Naimullah were inside the house. He has stated that during night he had no occasion to meet the parents or wife of Naimullah and in the Patna High Court CR. APP (DB) No.61 of 1990 dt.25-10-2013 10 morning he met with them. He further stated that after Naimullah received injury, then nobody went near him. If this evidence (paragraph 21) is considered, then it is apparent that he is not the person who has seen the occurrence and the motive alleged was that Shiv Prasad Master was carrying out illicit relationship with Hazara Khatoon. Not only that his niece Jubeda Khatoon was taken away by one of the accused. 19. PW 2, in paragraph 3 of his evidence, has stated that Sadique was assaulted by the butt of the gun by Shiv Prasad Master. He has not identified others and he has identified only Shiv Prasad Master though all were present at that time. All were the villagers but it is not clear what was the source of identification of Shiv Prasad Master which led him to identify only him. 20. PW 3 has claimed that Shiv Prasad shot at Naimullah. She has identified Mahadev Chamar, Kuar Chamar and Krishna Dushad who were present at the time of occurrence. She has stated that none of the culprits had made any effort to conceal their identification. She has stated that Jubeda Khatoon has been married one month prior to the occurrence. She was taken away by Shiv Prasad Master. 21. The defence version is that a complaint case was lodged under section 395 of the Indian Penal Code vide Ext. D which was referred by the learned C.J.M. to the Police for registering the case but the Police exhibited hostility towards the accused persons which is clear when it has refused to register a case even after the complaint was Patna High Court CR. APP (DB) No.61 of 1990 dt.25-10-2013 11 referred to it. It is apparent that the Police was adamant to implicate the appellants, so they fabricated the evidence. It has also been submitted that independent witnesses were not examined. Even the neutral injured witnesses were not examined and only PWs 1, 2, 3, 6, 7 and 8 who were interested witnesses were examined. 22. Learned counsel for the appellants further submitted that all are the interested witnesses and they are not reliable. On the other hand learned APP submitted that the occurrence has taken place in the night at the house of the prosecution witnesses who were natural witness and at the time of occurrence it was not possible that some strangers would be there. 23. The occurrence is of the night and time mentioned is 1.30 PM. The occurrence has no doubt been proved by the prosecution as injury reports and post mortem report conclusively proved that on the alleged date and time of occurrence Naimullah was shot at and others were injured. Occurrence has been proved and now the prosecution was required to rope the accused persons with the offence. For that source of light was required to be proved beyond the shadow of reasonable doubt. The occurrence is of just past mid night but no source of identification has been mentioned in the fard-beyan. At belated stage the source was introduced by PW 6 that identification was in the torch which was lost in the hospital. There is nothing on the record to show that any complaint or any report with regard to missing of the torch was given or any complain was made to any authority. 24. Once the occurrence is of the night, then the duty of Patna High Court CR. APP (DB) No.61 of 1990 dt.25-10-2013 12 the prosecution becomes apparent and source of light has to be established beyond the shadow of all reasonable doubts. There is nothing on the record that electric was available or even the lantern was giving light at the time of occurrence. There is no mention of torch anywhere in the fard-beyan or the statement of the witnesses during investigation and when the prosecution found that identification was required to be proved, then it has introduced the factum of torch which was also not established. Another partisan manner of the prosecution becomes apparent on the fact that a complaint was referred to the Police under Section 156 (3) of the Cr.P.C. and the Police had duty to record the FIR but that was not done and a Judicial mandate was violated by the Police and it can safely be alleged that it was done with ulterior purposes. 25. PW 2 Md. Islam is the eye witness with regard to assault to Naimullah but he claimed to have learnt it from Aliyas and mother of deceased Kasidan Khatoon (PW 6). PW 2 has stated that he was sleeping in the house of informant and according to him, Sadique was assaulted by the butt of gun. PW 3 Asma Khatoon wife of Sultan was sleeping and has claimed to have seen Naimullah being shot by Shiv. It means that she would have been in a position to see the occurrence and identify the culprits. She has stated that the criminals have taken away the articles from the house but she has not raised any alarm. Once genesis of occurrence comes under doubt, then whole story given by the prosecution becomes doubtful. Genesis of occurrence has been gravelly doubted as there was no source of light by the time of Patna High Court CR. APP (DB) No.61 of 1990 dt.25-10-2013 13 occurrence and this fact has been left to be clarified. Not only that there are various inconsistencies in between the prosecution version and the fard-beyan recorded after six hours of the occurrence and that give s no specific role to Shiv Prasad Master. The fard-beyan was of general and specific nature but it was found that one injury has also been noted on Naimulah and that one person was excluded then the prosecution has twisted the whole case. It has come in evidence of the informant that prior to the fard-beyan he had occasion to meet with all the family members of the injured Naimullah, meaning thereby he had discussion with regard to correct nature of occurrence but it is not clear as to why such information was withheld by the prosecution in the fard-beyan. The fard-beyan is not an encyclopedia of the whole occurrence but fard- beyan must give at least fundamentals of the case. The fundamental facts of the case was giving fatal assault to Naimullah and that was left to be mentioned goes to show that facts were subsequently developed and the role of the Police in the present case was definitely partisan as there was no explanation as to why the case referred under section 156 (3) Cr.P.C. was not recorded as FIR which has been admitted by the investigating officer. There are other lacunae also with regard to manner of identification and participation of the accused persons. The manner of occurrence has been grossly doubted. Once a doubt is created with regard to manner of occurrence, role of accused and source of light, then the whole prosecution case becomes doubtful and on account of such doubt benefit of doubt has to be passed on the accused. 26. In the result, the judgment of conviction and order Patna High Court CR. APP (DB) No.61 of 1990 dt.25-10-2013 14 of sentence is set aside and these appeals are allowed. Since the appellants are on bail, they are discharged from the liabilities of their bail bonds. 27. Ms. Anju Narain has assisted this Court on behalf of appellant of Cr. Appeal No. 115 of 1990 (DB) well as Amicus Curiae. We appreciate her assistance given to this Court. Let a copy of first and last page of this judgment be handed over to her, so that she can get her prescribed fee from the Patna High Court Legal Aid Committee. (Shyam Kishore Sharma, J) (Amaresh Kumar Lal, J) Dated 25th October, 2013 Patna High Court Avin/N.A.F.R.