1. Ram Bachan Ram, son of Late Sheo Pujan Ram. 2. Deputy Yadav, son v. Dinara, District-Rohtas
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.834 of 2002 1. Ram Bachan Ram, son of Late Sheo Pujan Ram. 2. Deputy Yadav, son of Late Mukhram Singh. 3. Bhallu Singh, son of Gokhul Singh. All residents of village-Sarna, Police Station-Dinara, District-Rohtas. .... .... Petitioner/s 1. The State of Bihar. 2. Lala Mahto, son of Ram Kabal Mahto, resident of village-Sarna, Police Station- Versus Dinara, District-Rohtas. .... .... Opposite Party/s =========================================================== Appearance: For the Petitioner/s : Mr. Vikramdeo Singh, Adv. Mr. Dharmendra Kumar Singh, Adv. For the State =========================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. JUDGMENT Date: 27-09-2013 : Mr. Dashrath Mehta, A.P.P. Petitioners, Ram Bachan Ram, Deputy Yadav, Bhallu Singh filed instant revision against the judgment dated 12.07.2002 passed by the Sessions Judge, Rohtas at Sasaram in Cr. Appeal No.154/1990 dismissing the same which was filed against the judgment of conviction and sentence dated 05.12.1990 passed by Shri B.C. Shukla, Judicial Magistrate, 1st Class, Bikramganj in G.R. No.129 of 1983 holding the petitioners guilty for an offence punishable under Section 394 of the Indian Penal Code and sentence each of them to undergo R.I. for two years as well as also each one was fined Rs.1000/- in default thereof to undergo imprisonment of two months additionally. 2. It has been submitted on behalf of petitioners that the 2. prosecution story suffers from improbability because of the fact that being a co-villager it was not expected at the end of petitioners to pounced upon the prosecution party and will commit the offence without concealing their identity. It has further been submitted that during course of consideration of evidence the successive courts failed to appreciate material development over manner of occurrence as well as with regard to source of identification. Then it has been submitted that the occurrence happens to be of chilly winter season and so it was unexpected at the end of the prosecution party to be on road that too at midnight. Simultaneously, it was not expected at the part of petitioners to be there since before awaiting arrival of prosecution party. Then it has been submitted that during course of investigation, the Investigating Officer was not at all shown the source of identification. The lantern or torch was not seized during course of investigation. Furthermore, the nature of evidence suggest that it happens to be out and out a case of plantation. 3. At the other hand, the learned Additional Public Prosecutor while supporting the current finding submitted that the learned trial court as well as appellate court had minutely gone through the evidence on record and on account thereof, the finding and sentence recorded by learned lower court should not be disturbed during course of revisional jurisdiction. 3. 4.
Legal Reasoning
PW-3, Lalan Mahto recorded First Information Report on 13.01.1983 at about 11:45 A.M. disclosing therein that after crushing sugarcane at Koluhari, he along with his sons Laxman Mahto and Bharat Mahto were returning to his house along with a pair of oxen and as soon as reached near the house of Ghutai Yadav, Ram Bachhan Rai armed with country made gun, Bishwanath Rai armed with gun, Deputy Yadav armed with Lathi and Bhallu Singh armed with gun cordoned them and made one round of firing on account of which they became afraid. Thereafter, Bhallu Singh snatched away one wrist watch, ox from Laxman Mahto while Ram Bachan Rai snatched away another ox from Bharat Mahto. Deputy and Bishwanath took away blanket and torch from Laxman. Bharat raised alarm over which Ram Bachan assaulted him with butt of gun. Nagina Mahto, Acchuta Nand Tiwari, Dharamdeo Mahto along with others arrived at their alarm. They have disclosed the occurrence. Then had detailed the physical feature of the pair of oxen. 5. On the basis of the First Information Report, Dinara P.S. Case No. 13 of 1983 was registered whereupon investigation was taken up and after completing the same, charge sheet was submitted whereupon accused persons were put on trial and ultimately faced with its consequences. It is also evident from the record that one of 4. the co-accused Bishwanath Rai had died during trial and on account thereof proceeding against him stated. 6. It is also evident from the record that nine PWs have been examined on behalf of prosecution to support its case as well as also exhibited Exhibit-1 the First Information Report while Exhibit- 2 the endorsement made over First Information Report. Defence had also examined two DWs. 7. From the record, it is evident that PW-2 and PW-5 are formal in nature while PW-4 and PW-6 are hearsay. Therefore, the case of the prosecution rest upon the testimony of father and sons that means to say PW-1, Bharat Mahto, PW-3 Lalan Mahto, informant and PW-7 Laxman Mahto. PW-8 is Dr. Balram Prasad who had examined Bharat Mahto and PW-9 is Investigating Officer. 8. PW-1 had stated that after completing the crushing of sugarcane on the alleged date and time of occurrence, he along with his father and brother Laxman Mahto was returning to his house. He as well as his brother was carrying bullock while his father was carrying lantern. As soon as they reached near the house of Butai Yadav, Ram Bachan Rai, Deputy Yadav, Bhallu Singh, Bishwanath cordoned while remaining were hidden who they could not seen. Bhallu Singh had fired. Thereafter Ram Bachan Rai had also fired. Deputy Yadav began to assault his father with Lathi. Ram Bachan 5. Rai began to snatch bullock from him which he resisted and on account thereof, Ram Bachan Rai assaulted him with butt of gun and thereafter snatched away bullock. Bhallu Singh snatched bullock from Laxman Mahto. Deputy Yadav and Bishwanath snatched away blanket, torch and wrist watch from Laxman Mahto. They began to raise cry over which his co-villager Nagina Mahto, Acchuta Nand Tiwari, Dharamdeo Mahto along with others came whom they disclosed the occurrence. He had also sustained injury by way of fracture of shoulder. As per his cross-examination para-9, on the alleged date of occurrence he was only 11 years old. In para-11 he had stated that two rounds of firing were made. He had further identified the place of occurrence under para-12, on North house of Mahgu Singh South of Butai Yadav, West house of Ram Prasad Singh, East Bichun Ram. In para-13 he had stated that there are so many houses around the place of occurrence. In para-18 he had stated that first of all the accused persons indulged in snatching from Laxman which took 5-6 minutes. Then they began to snatch from him which also took 5-10 minutes and then the accused persons gone to his father and the scuffle took place 8-9 minutes with him. In para-22 he had stated that accused persons were not tying Galmocha. In para-22 he had stated that his father was assaulted due to which he fell down. Even then he was assaulted. His brother as 6. well as he himself was assaulted by the accused persons 2-3 minutes. In para 29 he had stated that they have chased the accused persons along with villagers for 10 minutes. Accused persons were fleeing while they were chasing and during said course, the distance in between was 5-20 yards at different occasion. About 30 persons were chasing accused. The accused persons fled away along with bullock. In para 28 he had said that bullock will cover a kilometer an hour. In para 28 he had stated that they have shown Lantern to Darogajee but Darogajee did not seize. In para 46 to 51 happens to be the contradiction. 9. PW-3 had stated that after crushing sugarcane while he along with his two sons Laxman Mahto and Bharat were returning carrying two bullocks and reached near the house of Butai Yadav, Ram Bachan Rai, Bishwanath, Deputy Yadav, Bhallu Singh cordoned them. Ram Bachan Rai was armed with the gun while Bishwanath was armed with small gun, Bhallu Singh was armed with big gun while Deputy Yadav was armed with Lathi. Ram Bachan Rai, Bhallu Singh began to fire. Accused persons snatched away one ox, wrist watch, blanket from the possession of Laxman Mahto. Another ox was snatched away by Ram Bachan Ram while Bhallu Singh had snatched away wrist watch. Blanket was taken away by Deputy Yadav, while Bishwanath had taken torch. Bhallu 7. Singh had snatched away another bullock from Bharat Singh which was resisted by Bharat and on account thereof Ram Bachan Ram gave butt blow over clavicle of Bharat resulting its fracture. While the accused persons were going on with the occurrence, they raised alarm over which Nagina Mahto, Acchuta Nand Tiwari, Dharamdeo Mahto came who have seen the accused persons taking away the bullock and the articles. They have identified the accused in torch light. Having been flashed by himself as well as accused persons. On following morning they have gone to Police Station and got the FIR registered. During cross-examination at para-8 he had stated that all the accused persons are his co-villager The accused persons first of all snatched away the oxen as well as articles and thereafter assaulted Bharat as he raised alarm. In para-12 he had stated that none of them chased the accused persons. In para-11 there happens to be contradiction. 10. PW-7 is Laxman Mahto who had stated that on the alleged date and time of occurrence while they were returning after crushing sugarcane carrying a pair of oxen and as soon as reached near house of Butai Yadav, they saw Ram Bachan Rai, Bishwanath, Deputy Yadav and Bhallu Singh who cordoned them. He had seen them in the torch light. Bhallu Singh had fired. Bhallu had snatched away his wrist watch as well as one Ox. Blanket and torch were 8. snatched by Deputy Yadav Bishwanath. Ram Bachan Rai snatched another ox frm Bharat Singh and during course thereof Ram Bachan Rai had assaulted with the butt of gun on account of which his clavicle got fractured. Bhallu Singh, Ram Bachan Rai, Bishwanath were armed with gun while Deputy Yadav was armed with lathi. Deputy Yadav had assaulted his father with lathi. On hue and cry Nagina Mahto, Acchuta Nand Tiwari, Dharamdeo Mahto came followed with large number of persons, then thereafter they chased the accused persons, however Ram Bachan Rai during course of fleeing had fired. As such, they left chasing out of fear. He further disclosed that they have chased in the torch light which were in the hands of witnesses. During cross-examination at para-6 there happens to be contradiction. He had also stated that at that very time, apart from torch, his father was carrying lantern. The accused persons were chased up to 200 yards. He further disclosed that he wa not assaulted. 11. PW-9 is the Investigating Officer. He had identified the place of occurrence in para-3 of his deposition the barren land lying in East to the house of Mahesh Mahto being a Chaurasta. He had identified the place of occurrence as, East house of Buchan Rai, West house of Mahesh Singh, South house of Mahesh Singh, North house of Mahagu Singh. During cross-examination at para-4 he had 9. stated that he had not found the sign of hoof of animal at the place of occurrence. He also disclosed that no material was found regarding commission of occurrence at that very place. In para-5 he had clearly stated that no lantern or torch was shown to him during course of investigation. In the same para there happens to be contradiction with regard to witness Bharat Mahto. In para-6 there happens to be contradiction with regard to informant and in para-7 he had confirmed the contradiction with regard to witness Laxman. It is also evident from that paragraph that he had not seen the Kolhuara during course of investigation. 12. PW-8 is the doctor who had found following injury over the person of Bharat whom he examined on 13.01.1983. i) Fracture of the left clavicle (collar bone) with restricted movement of left shoulder joint. In the opinion of the doctor, injury was grievous caused by hard and blunt substance. 13. The doctor during cross-examination had admitted that this injury may be caused by fall. 14. Apart from the material contradiction which has been accepted by the PW-9, the Investigating Officer, it is apparent that source of identification has been introduced by different witness in different way which has not been approved by the Investigating Officer because of the fact that the lantern was not even produced 10. before him during course of investigation. It is also apparent that there happens to be inconsistency with regard to place of occurrence when the evidence of PW-9, para-2 is taken together with the evidence of PW-1 paragraph 12. It is also apparent from the evidence of PW-1 as well as PW-7 that they have chased the accused persons along with the villagers having thirty in number but surprisingly enough the accused could not been apprehended that too when they were carrying the bullock. The gap in between during course of chase is significant to note. PW-1 and PW-3 did not speak while PW-7 had spoken that during course of chasing accused persons fired one round. Contrary to it the PW-1 and PW-3 stated that two rounds of firing were made at the place of occurrence itself. Furthermore, from the evidence of PW-1, it is apparent that none of the accused persons have tried to conceal their face who were none else than co-villager. It is also evident from the evidence of PW-7 that they have chased the accused persons in the torch light having with the villagers which neither the PW-1 and PW-3 had supported nor PW-4 as well as PW-6 had divulged. All these developments with regard to source of identification is found totally absent in the First Information Report which was registered after at least 12 hours from alleged time of occurrence. In the background of the material contradiction as well as 11. introduction of theme of lantern as well as torch for the purpose of identification which is not at all found supported by the evidence of PW-9, the Investigating Officer it looks disastrous to accept blatantly the evidence of witnesses so far manner of identification is concerned. Apart from inconsistency appearing amongst the PWs with regard to manner of occurrence. Consequent thereupon, the successive judgments are set aside. Petition is allowed. Petitioners are on bail hence are discharged from its liability. (Aditya Kumar Trivedi, J.) PATNA HIGH COURT DATED, THE 27th day of Sep., 2013 PRAKASH NARAYAN/ A.F.R.