IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.255 of 1989 Against the judgment and order dated 29th May, 1989 passed by 5th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trial No. 315/83) 1.Jag Narain Pasi, Son of Sitaram Pasi, 2.Jamuna Pasi, Son of Bagethan Pasi, 3.Bagedan Pasi, Son of Bhotan Pasi. All residents of village-Bisrampur, P.S.-Sheo Sagar, District-Rohtas. .... .... Appellants Versus The State of Bihar .... .... Respondent For the Appellants : Mr. Devendra Prasad Sinha, Sr. Advocate. For the Respondent : Mr. Shivesh Chandra Mishra, APP. PRESENT HON’BLE MR. JUSTICE NAVANITI PRASAD SINGH & HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH ------------- Originally, there were six appellants to this appeal. Appellant No. 2, Sheo Murat Pasi died and his name has already been struck off and the appeal against him has abated. 2. I.A. No. 1564 of 2010 has been filed, stating that appellant no. 1, Sitaram Pasi and appellant No. 3, Natha Pasi have also died on 20.5.2009 & 28.2.2008 respectively, in support whereof death certificates have been annexed. In view of the aforesaid, appeal in respect of appellant nos. 1 and 3 stand abated. Thus, effectually the appeal is in respect of original appellant nos. 4, 5 and 6 now. 3. The appeal is against the judgment and order dated 29.5.1989 passed in Sessions Trial No. 315/83 by the learned 5th Additional Sessions Judge, Rohtas at Sasaram, whereby he has held appellants guilty Navaniti Prasad Singh & Ashwani Kumar Singh, J.J. 2 under Sections 364/34, 302/34 and 201/34 of the IPC and sentenced them to undergo R.I. for life for charges under Sections 364/34 and 302/34 IPC. They were also sentenced to undergo R.I. for three years each for the charge under Section 201/34 IPC. The sentences were ordered to run concurrently. 4. Heard the parties and perused the records. 5. The prosecution case is based on the fardbeyan of one Sona Devi (not examined) being wife of the alleged deceased Bandhu Pasi. The fardbeyan is said to have been recorded at about 1:00 pm in the night intervening 13th & 14th August, 1981 in front of residence of Bandhu Pasi. On basis of the aforesaid fardbeyan, a formal F.I.R. was registered on 14.8.1981 at 6:15 pm. The fardbeyan is witnessed by two persons, namely, Sheshnath Singh and Sachidanand Singh. None of whom has been examined. The fardbeyan has been proved as exhibit-2 by P.W.6, Lal Bahadur Singh, who is an Advocate Clerk. The case as made out in the fardbeyan is that in the evening of 13th August, 1981, Mohan Bind (a notorious criminal of the area) along with his gang members of about 35 dacoits entered the house of Bandhu Pasi husband of the informant. Mohan Bind made a categorical statement that as Bandhu Pasi had become a police informer, he would be taken and shot dead. Badhu Pasi was dragged and carried away. It is stated that Suraj Pasi, who was standing outside the house had seen the occurrence. The informant followed the miscreants. Later, in the fardbeyan, it is stated that there are several persons of her village, which included the appellants, were with Mohan Bind at that time. It appears that her husband was taken and shot. After investigation, charge sheet having been submitted. The appellants and several others were 3 charged for the offence under Sections 364/34, 302/34 and 201/34 IPC and tried. 6. The prosecution has examined in all six witnesses. Unfortunately, the Investigating Officer, the doctor who conducted the postmortem examination has not been examined nor Suraj Pasi, who is named in the F.I.R., as being present and having seen the occurrence, has been examined. P.W.-1 is a Fruit Vendor, whose deposition is of no help to the prosecution as he has not named the appellants. P.W.-2 is Hira Lal, who is declared hostile by the prosecution. P.W.-3, Ram Chela Pasi, is the brother of the deceased, who now in court claims to be an eye-witness. In his deposition, he admits that he has made no statement before the Police. P.W.-4, Suraj Pasi, he does not name any of the appellants that leaves us with Mushan Pasi. P.W. 5, Mushan Pasi, who claims to be eye witness. He happens to be brother of the deceased. In his Examination-in-Chief, he states that he and his brother Bandhu Pasi were sitting at the “Dhaba” when Mohan Bind and his Gang member came and took him away. He along with other followed some distance along with his sister-in-law, Sona Devi and Ram Chela Pasi then, on being threatened came back. He admits that they are having litigation with some of the appellants. 7. Mr. Devendra Prasad Sinha, learned Senior Counsel appearing in support of the appeal submits that non-examination of I.O., non-examination of doctor has caused serious prejudice as the informant is already dead and could not be examined. He points out that the fardbeyan itself discloses that it was recorded at 1:00 pm. in the night intervening 13th & 14th August, 1981. The formal F.I.R. was registered on 14th August, 1981 at 6:15 pm. Still, it would be seen that the F.I.R. was first received in the 4 court though said to be dispatched on 15.8.1981 and 29.8.1981, that is, after 14 days. We have verified this fact from the records including order sheet of the lower court records. It is indeed surprising as to how the F.I.R. which was registered on 14.8.1981 forwarded to the court on 15.8.1981 was, in fact, received for the first time in the court on 29.8.1981 after two weeks without any explanation. 8. Mr. Devendra Prasad Sinha, learned senior counsel submits that this by itself is enough to impeach the whole prosecution case as made out from the F.I.R. He submits that had the I.O. been made available for examination, they would have had the opportunity to questioning him on this aspect. He, then, points out that the occurrence is of the night intervening 13th & 14th August, 1981. From the records, it appears that the dead body was recovered on the 22nd of August, 1981 as per the inquest report. The postmortem was done on the same day and the postmortem report, copy of which was exhibited by the prosecution and proved through an Advocate Clerk, shows that no ante-mortem injury was found. The dead body was in high state of decomposition, it could not be said as to what was the cause of death. The doctor who performed the postmortem was not examined. In our view, these facts itself caused serious prejudice to the appellants and create a doubt on the entire prosecution version. The prosecution has not given any explanation for non-examination of these two. 9. It is further rightly submitted that if one reads the F.I.R., it would be seen that the F.I.R. is in two parts. There is a definite case that Mohan Bind kidnapped for killing, Bandhu Pasi, as he had become a police 5 informer. In the second part, name of various villagers have been introduced without alleging that they were part of Mohan Bind’s Gang. 10. From deposition of the six witnesses, it would be seen that it is only P.W.-3, Ram Chela Pasi and P.W.-5, Mushan Pasi, who have named the appellants, apart from names of the appellants figuring in the fardbeyan. P.W.-3 cannot be taken into account, as in his cross- examination, he admits that he has not made any statement before the police that leaves Mushan Pasi, who happens to be brother of the Bandhu Pasi (deceased). 11. It is pointed out that in the fardbeyan lodged by the wife of the deceased though she mentions one Sarjoo Pasi to be an eye witness to the occurrence. She makes no mention of her own brother-in-laws Mushan Pasi or Ram Chela Pasi. Mushan Pasi states that he and Budhan Pasi were sitting at “Dhaba” when Mohan Bind and his Gang kidnapped Budhan Pasi, whereas the fardbeyan states that Sona Devi and her husband Budhan Pasi were in their house when Mohan Bind and their Gang came and kidnapped from the “courtyard”. This is a vital contradiction which remains un-explained. Then, Mushan Pasi states that he along with Sona Devi went after the dacoits. This is an improvement from the fardbeyan, which makes no such mention. There Sona Devi states that she alone followed them. 12. In the Examination-in-Chief, Mushan Pasi, P.W.5 accepts that there is title suit pending between some of the accused persons and his brother and it is because of that Sitaram Pasi had hired the services of Mohan Bind and eliminate Bandhu Pasi. This is a direct conflict with what 6 he stated in the fardbeyan, where the wife of the deceased had stated that Mohan Bind clearly stated that as Bandhu Pasi had become a police informer, he was taken to be killed. 13. It is, then, rightly submitted on behalf of the appellants that even so far as the F.I.R. and the postmortem report are concerned, it is an advocate clerk who is proving the same, he is not competent. 14. Be that as it may, having considered the entire evidence as noted above, we are of the opinion that the prosecution has failed to establish its case beyond reasonable doubt. May be that the incident of Mohan Bind kidnapping and killing Bandhu Pasi be true, the involvement of the appellants is not established beyond reasonable doubt. 15. In the result, we set aside the judgment and order dated 29.5.1989 in Sessions Trial No. 315/83 passed by the learned 5th Additional Sessions Judge, Rohtas at Sasaram by which the appellants have been convicted and sentenced to undergo imprisonment. The appellants, who are already on bail, are discharged from their liabilities of bail bonds. 16. The appeal, accordingly, stands allowed. (Navaniti Prasad Singh, J.) (Ashwani Kumar Singh, J.) Patna High Court, Patna The 11th August, 2011 Sanjeet/N.A.F.R.