IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.370 of 1989 Against the judgment and order dated 13.6.1989 passed by District & Sessions Judge, Katihar in Sessions Case No. 1 of 1985. 1. Prem Lal Sah, Son of late Shaukhi Sah. 2. Shankar Sah, Son of Sri Prem Lal Sah. Both residents of village-Haflaganj, P.O.-Sirnia, P.S.-Katihar (Muffasil), District-Katihar. .... .... Appellants Versus The State of Bihar .... .... Respondent ================================================== Appearance : For the Appellants : Mr. Raj Nandan Prasad (Amicus Curiae) For the Respondents : Miss Shashi Bala Verma, APP. ================================================== CORAM: HON’BLE MR. JUSTICE NAVANITI PRASAD SINGH & HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH *********** (Per: HON’BLE MR. JUSTICE ASHWANI KUMAR SINGH) *********** 1. The present appeal is directed against the judgment and order dated 13.6.1989 passed by learned Sessions Judge, Katihar in Sessions Case No.1 of 1985 convicting the appellants under section 302 read with 34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for life and further convicting them under section 323 read with 34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for one year. However, both the sentences have been ordered to run concurrently. 2. In this case on call when no one appeared on behalf of the appellants, by order dated 20.9.2011 Mr. Rajnandan Prasad, an Advocate, who was present in the court, was requested to assist the court as amicus curiae. He consented for the same and assisted the court when hearing was taken up. 3. The prosecution case is based on oral statement of one 2 Upendra Pandit @ Sonai Pandit (P.W.-14) which was recorded on 13.11.1983 at 9.15 a.m. by Sub. Inspector of Police, Dharichan Ram (P.W.-17). The informant alleged that on the same day at about 1 a.m. while he was sleeping together with his son, Ram Bilash Pandit (P.W.-13) aged about 12 years and daughter Parwati Kumari (deceased) aged about six years in his room he wake up as he was struck on his head and had sustained bleeding injury. He then found his daughter Parwati Kumari in a precarious condition. She was restless. She had sustained sharp cut injury over her neck resulting into profuse bleeding. His daughter whispered “Babu Babu” thrice and died instantaneously. He saw accused Shankar Sah Kasera (appellant No. 1), Prem Sah Kasera (appellant No. 2), wife of Prem Sah Kasera, Bijendra Yadav and other fleeing away from the courtyard. The informant raised alarm, upon which, his son Ram Bilash Pandit also got up and on seeing the condition of his father and sister he also started shouting. On alarm being raised, co-villagers Prahlad, Shashi Munshi, Indar Bhagat, Kritya Nand Yadav, Jagarnath Sah and others came to his house and the informant disclosed them regarding the incident of occurrence. In the meantime, the Mukhiya of the village Kirpal Sah also arrived there. The informant has alleged that the motive behind the occurrence was ongoing land dispute with the appellants and they had previously also threatened the informant and his family members to kill. The informant further alleged that the appellants were associated with Santu Bhagat, Naresh Yadav and Jagdeo yadav, who always instigated them against the informant. Thus, he suspected that the accused persons might have killed his daughter and injured him in consultation with aforesaid Santu Bhagat, Naresh Yadav and Jagdeo Yadav. The informant, thus, claimed that the accused persons in order to grab his land committed murder of his daughter and injured him. 4. On the aforesaid fardbeyan a formal first information report was 3 registered on 13.11.1983 at 7.00 p.m. being Katihar (Mufassil) P.S. Case No. 622 of 1983 under Section 302 of the Indian Penal Code. Apart from the appellants, wife of the appellant Prem Sah and one Bijendra Yadav were made accused in the F.I.R. The police took up investigation. On conclusion of investigation, charge sheet was submitted against the appellants and co-accused Bijendra Yadav. The Magistrate took cognizance of the offence and since the offence alleged was exclusively triable by the court of sessions, the case was committed to the court of sessions. Charges were framed under Section 302 read with Section 34 of the Indian Penal Code and Section 323 read with Section 34 of the Indian Penal Code against the appellants and co-accused Bijendra Yadav. The appellants did not plead guilty to the charges and claimed to be tried and thus, they were put on trial. The prosecution in order to prove its case examined altogether 17 witnesses. The appellants were held guilty of the charges but co-accused Bijendra Yadav was acquitted. 5. P.W.-4 Parsadi Paswan has been tendered for cross- examination by the prosecution. 6. P.W.-5 Sabhapati Yadav is a formal witness, who has proved fardbeyan which has been marked as Ext.-1. He has stated that the fardbeyan was in handwriting of Dharichan Ram who was the Officer-in-Charge of Muffasil police station in the year 1993. 7. P.W.-7, Govinda Poddar is also a formal witness who has proved his signature on the seizure list prepared the Investigating Officer which has been marked as Ext.-2. It is to be noted here that this witness is resident of the village in which occurrence took place. He has been cross-examined on behalf of the appellants. In cross-examination he has stated that though he had seen blood-stains on the neck and on the cloth of the victim Parwati Kumari, he did not see any mark of blood on the cloth of the informant Upendra Pandit and his son Ram Bilash Pandit. He has also admitted that he had not seen any mark 4 of blood on the pillow kept on the cot on which the victim, the informant and the witness Ram Bilash Pandit were sleeping. 8. P.W.9, Kripalal Sah is also a formal witness. He has proved his signature on the seizure list prepared by the investigating officer which has been marked as Ext. 2/1. 9. P.W.12, Haiya Devi is wife of the informant. She is a hearsay witness. She has stated that on the date of occurrence she was not present in her house. She came to know regarding the occurrence in the next morning from Nimai Pandit (P.W.-8) who told her that her husband and daughter were killed by the appellants and co-accused Savitri Devi. She was also told that Jagdish Sah and Naresh Yadav were present at the time of occurrence and they were instrumental behind the killing of her husband and daughter. Nimai Pandit had brought her on a bicycle. When she reached her house she found her husband in an injured condition. On enquiry, he also disclosed that the appellants and co-accused Savitri Devi at the instance of Jagdeo Yadav and Naresh Yadav perpetrated the crime. She has been confronted with her previous statement recorded by the police. Her attention was drawn that she had stated before the investigating officer that she knew nothing about the occurrence to which fact she denied. It is to be noted here that the investigating officer (P.W.17) in his deposition has categorically stated that this witness in her statement under section 161 of the Code of Criminal Procedure had stated that she knew nothing about the occurrence. 10. P.W.1, Jagarnath Sah and P.W.11, Man Mohan Yadav have been declared hostile by the prosecution. 11. P.W.17, Dharichan Ram is the main investigating officer of this case. 12. P.W.15, Suresh Yadav subsequently took charge of investigation from Dharichan Ram (PW-17) and submitted chargesheet in this case. 5 13. P.W.16, Ramdeo Rai is a Medical Officer, who was posted at Sadar Hospital, Purnea at the relevant time and had conducted the postmortem examination on the dead body of Parwati Kumari at 11 a.m. on 13.11.1983. 14. Janardan Prasad Yadav (P.W.2), Jahur Mian (P.W.3), Shashi Bhushan Bhagat (P.W.6) and Nimai Chandra Pandit (P.W.8) are all hearsay witnesses. 15. P.W.2, Janardhan Prasad Yadav has stated that in the morning of 13.11.1983 he came to know from the informant (Upendra Pandit) that Parwati Kumari was killed. He has also stated that in the night he had seen the appellants Shankar Sah and Prem Sah together with Mukki Sah, Naresh Yadav, Jagdeo Yadav and others near the house of Sonai @ Upendra Pandit. 16. P.W.3, Jahoor Mian has stated that 2 ½ years ago in the night at about 10.30 p.m. while he was proceeding towards his field he had seen Shankar Sah, Mukki Sah and Prem Sah near the pond. They were talking to go to the house of Jagdeo in order to accomplish the work. He, thereafter, went to watch his field. In the morning when he returned he came to know that the daughter of the informant was killed. When he went there he found Parwati Kumari lying dead. P.W.6, Shashi Bhushan Bhagat has stated that he woke up in the night on hue and cry raised by the informant. He went there and found the daughter of the informant dead. She had sustained sharp cutting injury on her neck. On enquiry, the informant disclosed that the appellants had killed her. In cross-examination he has stated that he had not seen the actual incident of murder. He has further stated that he did not go inside the room of the house of the informant and could not assign any reason as to why the informant, his son and the daughter were sleeping in “Varandah” on the date of occurrence. 17. P.W.8, Nimai Chandra Pandit has also stated in line with P.W.6 in his examination-in-chief. In cross examination when it was suggested that in his statement before police he had stated that neither he knew nor any one 6 disclosed him name of the assailants he simply replied that he did not remember that fact. 18. Thus, it appears that none of the aforesaid witnesses had actually seen the commission of crime. The hearsay witnesses apart from Haiya Devi (P.W.12) are consistent in saying that they came to know regarding name of the accused persons involved in the crime from the informant, Upendra Pandit. None of them have stated that Upendra Pandit had also received any injury. 19. P.W.6 and P.W.8 have stated that the informant told them that the alleged murder was committed by the appellants and none else. 20. What remains to be noticed now is deposition of Ram Bilash Pandit (P.W.13), who admittedly is brother of the deceased and son of the informant and Upendra Pandit (P.W.14) who is informant himself. P.W.-13 has stated in examination-in-chief that in the night of the occurrence he was sleeping together with his father and sister on the same cot in “Varandah” of the house. He woke up when his father cried “Mara Mara”. Apart from the appellants, he saw Savitri Devi, Mukki Sah, Naresh Yadav and Jagdeo Yadav fleeing away. His father had sustained injury on his head whereas his sister had sustained injury on her neck and it was profusely bleeding. She whispered “Babu Babu” thrice and died instantaneously. He has also stated that prior to the occurrence appellant Premlal Sah had organized a meeting near his field. In cross examination he has stated that there are two rooms in his house. They used to sleep in “Verandah” in summer season. At the time of occurrence it was winter. He has further stated when he woke up, he found Shankar Sah, Prem Sah, Savitri Devi, Naresh Yadav and Jagdeo Yadav towards east of the “Verandah” and when he raised “Hulla” they fled away. He has also stated that on alarm being raised several persons had assembled near the place of occurrence. They were twelve in number. When his attention was drawn towards his previous statement made to police in which he had stated that he 7 had saw three persons fleeing away on cry of his father but could not identify them, he denied to have made such statement before the police. He has further stated that he did not see co-accused Bijrendra Yadav at the time of occurrence. He also admits that Mukki Sah was arrested in this case. Let it be noted here that when the investigating officer (P.W.17) was examined, he has categorically stated that Ram Bilash Pandit (P.W.-13) in his statement recorded under section 161 of the Code of Criminal Procedure had stated that on alarm raised by his father he woke up and noticed three persons fleeing away but could not identify them. 21. The informant is P.W.14. He has stated that on the date and time of occurrence while he was sleeping together with his son and daughter on the same cot, some one hit him by “Bhujali” (a sharp cutting weapon). He sustained injury on his head. He woke up and found that neck of his daughter was slit. She whispered “Babu Babu” thrice and died. He stated that he saw the appellants in “Verandah” and Mukki Sah, Naresh and Jagdeo in the courtyard. Savitri Devi was also near the door. He saw them fleeing away. He chased them and raised alarm. Several persons came at the place of occurrence. He named Shashi Munshi, Prahlad Bhagat, Jagannath Sah, Inder Bhagat, Nimai Pandit, Krityanand Yadav, Manorath Das, Raghunandan Bhagat, Sidheshwar Bhagat and Kripalal Mukhiya among the persons, who came on hue and cry raised by him. He has further stated that Mukhiya informed the police on phone. The Chaukidar went to the police station. A police officer came at the place of occurrence. He saw the dead body and recorded his fardbeyan. 22. The informant was cross-examined. In his cross-examination he has stated that he was sleeping in “Verandah” of northern room. His son and daughter were sleeping together with him on the same cot. On being assaulted he shouted “Chor Chor”. On his hue and cry witnesses came. The moment he stood up, the miscreants fled away. He and his son chased them. The 8 investigating officer came in the morning and recorded his oral statement. He had given name of Mukki Sah as an accused in his fardbeyan. Mukki Sah was arrested in the night and the investigating officer took him to police station but he was let off. He has further stated that in the oral statement recorded by police he had not disclosed name of Bijendra Prasad Yadav as one of the accused. One Narain Prasad, a Mukhiya came immediately after arrival of investigating officer. The investigating officer called him near the door of Jagarnath Sah (P.W.1) after arrival of Narain Mukhiya and took him inside the room. The investigating officer took his thumb impression on five blank sheets of paper. He has gone to the extent of saying that Bijendra Prasad Yadav, a co- accused, who was tried together with the appellants, was falsely implicated in this case. He has denied the suggestion that his wife had fled away with Inderlal Yadav. He has also denied the suggestion that he was not sleeping together with his son and daughter in the “Verandah” of the house in the night of occurrence. When attention was drawn to his previous statement recorded by the police, he denied that he had stated before the police that he was sleeping inside the room. He has also denied that he had not stated before the police that someone struck him by “Bhujali”. He has further denied the fact that he had not stated before the police that he had seen the appellants in the “Verandah” of the house. 23. I may notice here certain important facts with respect to deposition of P.W.14. In his examination-in-chief itself he has named Mukki Sah, Naresh Yadav and Jagdeo Yadav, who are alleged to have been seen by him in the courtyard at the time of occurrence apart from appellants Shankar Sah and Prem Sah. Neither Mukki Sah nor Naresh Yadav nor Jagdeo Yadav have been made accused in the first information report nor they have been sent up for trial in the chargesheet nor they have been summoned under section 319 of the Code of Criminal Procedure. Another important factor is that the 9 informant has himself doubted the fardbeyan by saying that he did not name Bijendra Yadav as an accused in this case and the investigating officer had taken his thumb impression on five blank sheets of paper. Thus, the informant has let off one of the named accused Bijendra Yadav in his deposition. It is also to be noted here that the informant has alleged that on hue and cry being raised by him apart from others Shashi Munshi, Prahlad Bhagat, Inder Bhagat, Krityanand Yadav, Manorath Das, Raghunandan Bhagat and Sidheshwar Bhagat came to his house immediately after the occurrence. These witnesses have not been examined in course of trial. It may further be noted that one “Chaukidar” is also said to have arrived at the place of occurrence and “Chaukidar” went to the police station. The identity of Chaukidar has not been disclosed by the informant and no Choukidar was examined by the prosecution in course of trial. The informant has admitted in his cross-examination that he had dispute relating to land with the appellants from before the occurrence. 24. The informant, though, claims to have sustained injury by “Bhujali”, the prosecution has not brought on record any medical report in this regard. 25. Learned counsel for the appellants at this stage has rightly brought to the notice of the court the fact that a report regarding commission of a cognizable offence was already given to the investigating officer, who at the relevant time was also acting as Officer-in-Charge of Katihar Mufassil Police Station on 13.11.1983 at 4.30 p.m. by Chaukidar, Nakshatra Paswan and the investigating officer had proceeded to the place of occurrence from the police station after receipt of information that the daughter of the informant had been murdered. The investigating officer thereafter reached and inspected the place of occurrence, prepared the inquest report, seized blood stained earth, blood stained old white “Saree” and other articles. He prepared dead body Challan and sent the dead body of the deceased Parwati Kumari together with 10 Constable, Ram Pakan Singh and Ghulat Paswan for postmortem examination to Sadar Hospital, Purnea. He, thereafter, recorded the fardbeyan and sent the same for institution of first information report. A formal first information report was thereafter drawn by the Officer-in-Charge of the Police Station namely, P.P. Karn. The fardbeyan recorded in the pen and signature of S.I., Dharichan Ram has been marked as Ext.1. The signature of Govind Poddar and Kripalal Sah on the seizure list has been marked as Ext.2 and 2/1 respectively. The postmortem report has been proved and marked as Ext.3. The seizure list has been proved and marked as Ext.4 and the formal first information report has been proved and marked as Ext.5 in course of trial. It is to be noted here that neither the “Chaukidar” Nakshatra Paswan nor the Chowkidar Rampakan Singh and Ghulat Paswan, nor the officer incharge, P.P.Karn have been examined on behalf of the prosecution in course of trial. Even the dead body Challan which is said to have been prepared by Dharikchan Ram (P.W.17) has not been brought on record. The importance of this aspect would be discussed hereinafter. 26. When Dharichan Ram (P.W.17) was cross-examined he has admitted the fact that he had received information regarding murder of the deceased at the police station from Nakshatra Paswan. A station diary entry was made on such information. Curiously enough the station diary entry has not been brought on record. In other words, from the first information report on which the police proceeded to investigate the case has been suppressed and withheld deliberately by the prosecution. P.W17 has further admitted that he had inspected the place of occurrence at the instance of “Chaukidar” Nakshatra Paswan. He has further admitted that after receipt of information at about 4.30 a.m. on 13.11.1983 he reached at the place of occurrence at 6 a.m., i.e. within 90 minutes of receipt of information. He admits that he had prepared seizure list of the materials like blood stained “Saree”, blood stained “Motia” (bed 11 sheet) and blood stained earth but did not mention time in the seizure list. He also admits that there are certain cuttings in the seizure list. The material exhibits so seized were neither produced in the court nor sent for chemical examination. P.W.17 further admits that though he had prepared inquest report, the same was not available. we may note here that non-production of station diary entry (sanha), inquest report, material exhibits seized and admitted cuttings over the seizure list which was prepared without mentioning time thereon caused serious doubt upon the veracity of the prosecution case. It is reiterated that the investigation officer has contradicted the statement of P.W.13, Ram Bilash Pandit by saying that Ram Bilash Pandit had not taken name of the persons, who were seen by him at the time of occurrence while fleeing away. It appears that after conducting major part of investigation P.W.17 was transferred and he handed over charge of investigation to investigation officer, Suresh Prasad (P.W.15), who conducted investigation thereafter and submitted chargsheet in this case. 27. P.W.15 has stated that he recorded statement of witnesses, Man Mohan Yadav (P.W.11), Janardan Prasad Yadav (P.W.2) and Jahur Mian (P.W.3). There is nothing much to be discussed about P.W.15. As stated above, he has simply submitted chargesheet in this case. He did not even inspect the place of occurrence as has been admitted by him in his cross-examination. 28. Learned counsel appearing on behalf of the appellants has, thus, submitted that the prosecution has tried to implicate the appellants in a false case after due consultation and deliberation as admittedly they were on inimical term. Allegedly the occurrence took place at about 1 a.m. on 13.11.1983. The information regarding murder of daughter of the informant was duly given to the investigation officer (P.W.17) at 4:30 a.m., who at the relevant time claims to be acting as an officer incharge of the concerned police station. Since information was neither vague nor cryptic, the same should have been treated 12 as the first information report. The prosecution has deliberately suppressed the initial report made to the Police. The Investigating Officer (P.W. 17) admits that on receipt of such information a Sanha entry was made but the said Station Diary Entry has also not been brought on record. P.W.-17, the investigating officer has admitted that on reaching the place of occurrence it was Nakshatra Paswan (Choukidar) who took him to the place where the dead body of Parwati Kumari was lying. Thus, it can safely be presumed that it was Nakshatra Paswan who reported regarding commission of a cognizable offence at the Police Station. He accompanied the Investigating Officer (P.W. 17) to the place of occurrence from the Police Station and it was at his instance he inspected the place of occurrence, prepared the dead body challan, inquest report, seizure list etc. and sent the dead body for post-mortem examination together with two Chowkidars. It is submitted on behalf of the appellants that when all these happened the informant, Upendra Pandit (P.W. 14) or his son Ram Bilash Pandit (P.W. 13) was not even present at the place of occurrence. They are neither seizure list witnessed nor they accompanied with dead body of the deceased, Parwati Kumari. There was no reason for Investigating Officer who admittedly had reached at the place of occurrence at 6.00 a.m. in the morning to have waited for more than three hours to record purported fard-beyan of the informant which admittedly was recorded at 9.15 a.m. on 13.11.1983. Learned counsel for the appellants, thus, submits that the aforesaid fard-beyan was as a matter of fact a statement recorded in course of investigation of the case and the same should not have been treated as first information report since the informant has put his thumb impression on it. The first information report thus, would be hit by Section 162 of the Code of