IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.27 of 1989 (Against the judgment and order dated 10th January, 1980 passed in Sessions Trial No. 37 of 1986 by Sri Anirudha Prasad Choudhary, the learned 2nd Addl. Sessions Judge, Madhepura). ========================================================== 1. Bhumi Mandal, son of late Sundar Mandal 2. Awadh Lal Mandal, son of late Raghu Nath Mandal 3. Bisundeo Mandal, son of late Jiblal Mandal All residents of village-Kathautia, P.S.-Murliganj in the district of Madhepura .... .... Appellants Versus The State of Bihar .... .... Respondent ========================================================== Appearance : For the Appellants : Mr. P.C. Agrawal, Advocate, A.O.R. No.1706 (Amicus Curiae) For the Respondent : Ms. 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) ********** When this appeal was called out for hearing, Mr. Ambika Bhagat, the learned counsel whose name appears on record on behalf of the appellant submitted that he has no instruction in the matter and the client had taken away the brief long back from him. He expressed his inability to appear on behalf of the appellants in order to press the appeal. 2. At this stage, a request was made by us to Mr. P.C. Agrawal, an advocate present in the Court to appear in the case as Amicus Curiae. Mr. Agrawal accepted the request of the Court and appeared as Amicus Curiae in this case. 2 3. The appellants have challenged the judgment and order dated 10th January, 1989 passed in Sessions Trial No. 37 of 1986 by Sri Anirudha Prasad Choudhary, the learned 2nd Additional Sessions Judge, Madhepura, whereby they have been convicted for the offence punishable under Section 302 and 364 of the Indian Penal Code and sentenced to undergo R.I. for life and R.I. for five years respectively for each of the offence. The trial court has ordered that both the sentences would run concurrently. 4. The prosecution case is based on oral statement of Deep Narayan Yadav (P.W.-6) which was submitted to the Officer-in-Charge of Murliganj police station at about 11.20 p.m. It is alleged that on 19th June, 1980 at about 9 a.m., the appellants came to the house of the informant and asked his father Munar Yadav (since deceased) to come to the door of appellant no. 1 Bhumi Mandal as the Mukhiya of the local Gram panchayat had called him for panchayati. Upon this, the informant Deep Narain Yadav and his father Munar Yadav went together with the appellants to the door of appellant no. 1 Bhumi Mandal, which was at a distance of about 1 km. from the house of the informant. On reaching there, the informant found accused (i) Rajendra Mandal, (ii) Satto Mandal @ Satya Narayan Mandal, (iii) Prabodh Mandal @ Subodh Mandal, (iv) Chunni Mallah, (v) Tarani Mallah, (vi) Sukal Mallah, (vii) Bindeshwar Mandal, (viii) Siyaram Mandal, (ix) Ram Autar Mandal, (x) Kulpit Mandal, (xi) Banarsi Mandal, (xii) Akal Mandal and (xiii) Gonar Mandal present there but, the Mukhiya was not seen there. The informant’s father finding the Mukhiya absent started retreating from there but all the accused persons present there caught hold of him. They tied his hands and feet and started assaulting him by Danda, fists and slaps. On seeing this, the informant started shouting and went 3 back to his house. He told regarding the incident to (P.W.-5) Vishwanath Yadav, Jagdeo Yadav (not examined), (P.W.-4) Chunni Yadav, Arjun Yadav (not exmined), (P.W.-8) Badri Prasad Yadav and others and went back to the door of appellant no. 1 Bhumi Mandal together with them. But the accused persons drove them away. Thereafter, the informant claims that he went again at 4 p.m. at the place of occurrence and found his father dead. He was found tied with a guava tree. His hands and feet were also tied. Thereafter, several co- villagers assembled there. The Mukhiya had also come. The motive assigned for causing alleged offence is said to be a dispute relating to theft of maize crop of the appellant Bhumi Mandal by the deceased Munar Yadav a year back, for which a quarrel had taken place between Bhumi Mandal and deceased. 5. The fardbeyan of the informant was recorded by (P.W.-10) Nurul Hasan Ansari who was an Assistant Sub-Inspector, posted in Murliganj police station at the relevant time. On the basis of the fardbeyan, a formal F.I.R. was drawn by P.W.-10 Nurul Hasan Ansari on 20.6.1980 under Sections 302 and 364 of the Indian Penal Code against 16 accused persons named in the F.I.R. He himself took up investigation of the case. 6. As noted above, the fardbeyan was recorded in the police sation at 11.20 a.m. on 20.6.1980 and immediately, thereafter, the formal F.I.R. (Exhibit- 4) was drawn. The Investigating Officer proceeded to the place of occurrence. He found the dead body of Munar Yadav beneath the guava tree in front of the door of Satto Mandal. Both his hands and feet were found tied. The inquest report was prepared by the Investigating Officer at 12.45 p.m. on 20.6.1980. The inquest report was witnessed by (P.W.-3) Laxman Yadav, who was Mukhiya of the Gram Panchayat and who has been tendered by the prosecution 4 and Raghunath Mandal (not examined). The inquest report has been proved by P.W.-9 Krit Narain Yadav and marked as Exhibit-2, who is one of the sons of the deceased Munar Yadav. Column-7 of the inquest report contains circumstances giving rise to suspicion of foul play, column-9 contains opinion of witnesses as to cause of death and column-10 contains opinion of Police Officer as to cause of death. In all these columns, the reason given for the murder has been assigned that the deceased was caught red-handed by the villagers while committing theft of she-goat from ‘Gohal’. A scuffle took place between him and the villagers in which he sustained injuries, as a result of which, he died. 7. The dead body of the deceased was sent for post mortem examination to the Sadar Hospital, Madhepura where Dr. B.N. Mishra (P.W.-11), who was a Civil Assistant Surgeon conducted the post mortem examination on the dead body of the deceased at 5 p.m. on 21.6.1980. He found the following injuries on the dead body:- (i) Abrasion ¼” x ¼” over front of right leg; (ii) Abrasion ¼” x ¼” knuckle of left index finger; (iii) Multiple bruises over back of the body right lower portion in an area 10” x 8”. On dissection of the dead body, fracture of left 3rd to 5th ribs anterior near the mid-line causing rupture of the left lungs and ante mortem blood was found in the left pleural space containing about two pounds of blood in quantity. According to the doctor, the death had been caused by shock and haemorrhage from the rupture of the left lung caused by broken ribs. The injuries were sufficient to cause death in the ordinary course of nature and the time elapsed since death was about 36 hours at the time of post mortem. The 5 injuries were all ante mortem injuries. 8. P.W.-10 Nurul Hasan Ansari conducted the investigation, inspected the place of occurrence, recorded the statement of witnesses and on conclusion of investigation submitted charge sheet in this case. All the 16 named accused persons were sent up for trial. The learned Magistrate took cognizance of the offence and committed the case to the Court of Sessions for trial. All the 16 accused persons were charged for the offence under Sections 302 and 364 of the Indian Penal Code. They did not plead guilty to the charges framed against them and claimed to be tried. Accordingly, the trial commenced. 9. In course of trial altogether 11 witnesses were examined on behalf of the prosecution in support of the charges. Out of the 11 witnesses so examined as noted above, P.W.-10 Nurul Hasan Ansari is the Investigating Officer of the case and P.W.-11 Dr. B.N. Mishra had held post mortem examination on the dead body of Munar Yadav. 10. P.W.-1 Nilesh Paswan is the Choukidar, who had brought the dead body of Munar Yadav to Madhepura Sadar Hospital for post mortem examination. He is a formal witness. P.W.-9 Krit Narain Yadav is the son of the deceased, who had identified the dead body before the doctor. He is also a formal witness. 11. P.W.-2 Awadh Lal Yadav is cousin of the informant. Though, his name is not given in the fardbeyan of the informant, he claims to be one among the person who went together with the informant immediately after the informant came from the place of occurrence when his father was being assaulted. He has stated that he went together with P.W.-4 Chunni Yadav, Arjun Yadav (not examined), Vishwanath Yadav (P.W.-5) and Deep Narain Yadav (P.W.-6) to 6 the house of Bhumi Mandal. He found the deceased tied with a guava tree with his hands and feet also being tied. He was being assaulted by the appellants and Pramod Mandal and Chandranan Mandal. He further stated that all of them came back and in the morning when he went to the place of occurrence, he found Munar Yadav dead. In cross-examination, this witness has stated that appellant no. 1 Bhumi Mandal had told him 4-5 days prior to the occurrence that the deceased Munar had taken away his maize crop. He has further stated that at the time of occurrence when he went near the door of appellant no. 1, he could see only 5-6 persons present there. According to him, in the night of the occurrence, the brother, wife, nephew and sons of the deceased had also gone to see Munar Mandal. He has also admitted that Munar Yadav was in the habit of committing theft. 12. When we see the deposition of P.W.-2, we find that though the informant has claimed 16 persons to be present at the time of occurrence, he could see only 5-6 persons present there. Another important thing which we notice here is that the informant has clearly stated in the fardbeyan that it was Vishwanath Yadav, Jagdeo Yadav, Chunni Yadav, Arjun Yadav and Badri Prasad Yadav who accompanied him immediately after the occurrence, when he went to the place of occurrence immediately after his father was detained. The informant did not take name of (P.W.-2) Awadh Lal Yadva, as a person who had accompanied him, in the fardbeyan. P.W.-2 has also named Pramod Mandal and Chandranan Mandal as persons who were found present at the place of occurrence while assaulting the deceased when the visited the house of appellant no. 1 Bhumi Mandal. Neither the informant has named Pramod Mandal or Chandranan Mandal in the F.I.R. nor the Investigating Officer 7 submitted charge sheet against them. They were not even put on trial. Thus, it would be apparent that even for the purposes of investigation, the police did not believe him and that is why Pramod Mandal and Chandranan Mandal whose name is taken by P.W.-2 have not even been charge sheeted or put on trial. 13. P.W.-3 Laxman Yadav is Mukhiya of the Gram Panchayat concerned. He has been tendered by the prosecution. He was cross-examined by the defence. In cross-examination, he has admitted that the deceased is a thief by profession. He was caught red-handed by the villagers while committing theft of she-goat. He was a terror of the Panchayat and he was lynched to death by a mob of villagers. He has thus not supported the motive aspect of the prosecution case. 14. P.W.-4 Chuni Yadav has been named by the informant in the fardbeyan as a person who went together with him on his call after he saw assault upon his father at the hands of the accused persons. In chief Chuni Yadav has confined the allegation of assault against the appellants only. When his attention was drawn in cross-examination regarding his previous statement made before the police, he stated that his statement was recorded by police in which he had disclosed that he saw the appellants assaulting the deceased. When P.W.-10 Nurul Hasan Ansari, the Investigating Officer was confronted with the previous statement of this witness, he contradicted P.W.-4 Chuni Yadav by saying that he had not made any such statement before him in course of investigation that he had seen the appellants Bhumi Mandal and Awadh Lal Mandal and Bishundeo Mandal assaulting the deceased by Danda, fists and slaps. 15. P.W.-5 Vishwanath Prasad Yadav who is also named in the fardbeyan by the informant has also been tendered by the prosecution. 8 16. P.W.-6 Deep Narain Yadav is the informant. He has not only reiterated the facts stated in the F.I.R. but has also introduced name of P.W.-2 Awadh Lal Yadav as one of the person who accompanied him at about 9 p.m. in the night of occurrence when his father was detained and was being assaulted and he came back to the village and went again together with some of the witnesses. He has proved his signature on fardbeyan, which has been marked as Exhibit-1. He has also proved signature of Arjun Prasad Yadav on the fardbeyan which has been marked as Exhibit-1/1. In his chief, he has stated that in order to report the incident, he proceeded for the police station at 9 a.m. on 20.6.1980. He reached at the police station at about 11-11.15 a.m. on 20.6.1980 and, thereafter, his fardbeyan was recorded. In cross-examination, he has stated that all the 16 accused persons named in the F.I.R. had indulged in assault upon his father. He first went to the house of Bhumi Mandal alongwith his father at about 9 p.m. His father was detained there. He came back shouting and crying for help. He continued in the village for 10-12 minutes and again went to the place of occurrence with the co-villagers whose names were given in the fardbeyan. The second time when he went to the place of occurrence, he found his father tied with the guava tree. By that time, his father was already dead. All the 16 accused persons were present there. When they saw the accused persons coming towards them, they fled away. The second time, when they came back to the village it was about 10 p.m. He, thereafter, remained in his ‘Tola’ till he proceeded for the police station. He has stated that Murliganj police station was 3 miles away in northern direction from his house. There was a road leading to Murliganj police station from near his house. Though, P.W.-2 Awadh Lal Yadav did not disclose his relation with the informant and deceased, the 9 informant in cross-examination admits that P.W.-2 Awadh Lal Mandal was his uncle. He has denied the suggestion that the deceased was killed by villagers after being caught red-handed committing theft of she-goat. 17. When we closely scrutinize the deposition of witness, we find inherent contradiction in his statement. The informant has stated in the fardbeyan that when he went alongwith villagers immediately after the occurrence the accused persons were assaulting his father. He came back along with co-villagers and again went to the place of occurrence at about 4 a.m. on 20.6.1980 and, then, he found his father dead. But, in cross-examination, he has stated that when he went back alongwith villagers immediately after 9 a.m. on 19.6.1980 his father was already dead and tied with a guava tree. All the 16 accused persons named in the F.I.R. were present there. He does not say that he went again at the place of occurrence at about 4 a.m. on 20.6.1980. He states that he continued in his ‘Tola’ till 9 a.m. on 20.6.1980 and he proceeded for the police station at 9 a.m. on 20.6.1980. The evidence of the informant (P.W.-6) in court is materially inconsistent with what he has stated in the fardbeyan. The informant has further been contradicted by the Investigating Officer. 18. The attention of the informant was drawn towards his previous statement made before the police. The informant has stated that he has stated before the police that when he went to the place of occurrence together with Arjun Prasad Yadav, Bishwanath Prasad Yadav, Chuni Yadav and Jagdeo Yadav at the door of the appellant no. 1 Bhumi Mandal, he found the accused persons assaulting his father. When the I.O. was confronted with this part of the statement of the informant, he has categorically stated that no such statement was made by the informant before him in course of investigation. The Investigating Officer has 10 further stated that the informant had not told him that he went together with the other witnesses near the door of appellant Bhumi Mandal at 4 a.m. Thus, we find the informant to be an unreliable witness. 19. Curiously enough P.W.-7 Sita Devi, wife of the deceased Munar Yadav has also been tendered by the prosecution. Similarly, P.W.-8 Badri Prasad Yadav has also been tendered by the prosecution. 20. As noted above, P.W.-9 Krit Narain Yadav, son of the deceased Munar Yadav is a formal witness. He has proved the inquest report, which has been marked as Exhibit-2 in this case. He has also proved the dead body challan which has been marked as Exhibit-3. He claims to have taken the dead body together with Choukidar and a Constable to the hospital for post mortem examination. 21. As noted above, P.W.-10 Nurul Hasan Ansari had recorded the fardbeyan, prepared the inquest report, conducted the investigation of the case and submitted charge sheet on conclusion of the investigation. In cross- examination, he admits that in course of investigation he came to know that Munar Yadav is a renowned criminal. He admits that though he had seized blood from the place of occurrence but neither the seizure list has not been produced in the court nor the blood, so seized, was sent for scientific test. The material exhibit was also not produced in court in course of trial. We have already take note of injuries found on the person of the deceased by P.W.-1 B.N. Mishra in post mortem examination. He has proved post mortem report, which has been marked as Exhibit-6 in the case. 22. The accused persons were examined under Section 313 of the Code of Criminal Procedure. A common question was put to all the 16 accused persons 11 that on the pretext of panchayati the deceased Munar Yadav was called at the door of the appellant Bhumi Mandal and all the accused persons detained him, tied his hands and feet and further tied him with a guava tree. They all assaulted him by Danda, fists and slaps, as a result of which the deceased sustained injuries and died. However, the trial court on appreciation of evidence acquitted 13 of the accused persons who were put on trial together with the appellants, giving them benefit of doubt but, convicted and sentenced the appellants in the manner stated above. 23. From the evidence on record, we notice that though the alleged occurrence is said to have taken place on 19.6.1980 at 9 p.m., the incident was reported to the police at 11.20 a.m. on 20.6.1980. There is inordinate delay in institution of the F.I.R. The evidence is that the village was connected with road and there were several persons who had seen the occurrence. In such circumstance, there is no explanation as to why there was inordinate delay in institution of the F.I.R. The F.I.R. witnesses namely Jagdeo Yadav and Arjun Prasad Yadav, who are said to be present at the time of occurrence, were not examined by the prosecution. There is no explanation given on behalf of the prosecution for their non-examination in course of trial. The Mukhiya of the gram panchayat Laxman Yadav (P.W.-3) and wife of the deceased Smt. Sita Devi (P.W.-7) have been tendered by the prosecution. Another important witness Badri Prasad Yadav who is named in the F.I.R. has also been tendered. All the three tendered witnesses were important for the prosecution. In our view, tendering witnesses for cross-examination without being examined in chief affects the credibility of the prosecution case. 24. We further find that the informant had named 16 accused persons who 12 assaulted the deceased. He did not allege anything specific against any of the accused. But, P.W.-2 Awadh Lal Yadav who is admittedly related to the informant states that only five accused persons were present at the place of occurrence. Out of the five persons named by him, two have not even been sent up for trial. For the reasons assigned hereinabove, we find neither P.W.-2 nor the informant are reliable witnesses. Their evidence is mutually destructive to each other. 25. We further find that Chuni Yadav (P.W.-4) has been contradicted by the Investigating Officer in material particular. In his previous statement recorded by the Investigating Officer, he had not named the appellants as assailants. We further find that the defence version seems to be more probable. The Investigating Officer had prepared the inquest report immediately after registering the F.I.R. In the inquest report, the opinion of witnesses and the opinion of police officer has been recorded regarding the circumstances of the crime and cause of death. In all the columns of the inquest report meant in this regard, it has been entered that the deceased was killed by villagers in scuffle after he was caught red-handed committing theft of a she-goat. The defence of the appellants is also the same. If this was a fact, then, the question which would have arisen is as to who, the villagers were, who had caused the murder of the deceased. No doubt, nobody has a right to kill a person even if he is apprehended while committing a crime. But, that in itself could not mean that it was the appellants who were responsible for the alleged killing. It was for the prosecution to establish its case beyond reasonable doubt that the appellants were the persons responsible for causing the death of the deceased. We find that there is no reliable evidence in this regard. 13 26. We may also notice that the evidence on record is common as against all the 16 accused persons. The trial court on the basis of the same material acquitted 13 of the co-accused persons who faced trial together with the appellants. There was no distinguishing feature available on record on the basis of which the appellants could have been convicted. There is no appeal pending against the acquittal of 13 other co-accused persons arising out of the same judgment. Thus, the judgment and order of acquittal in case of the 13 other co- accused persons has attained finality. 27. Thus, from perusal of the evidence on record and after hearing the parties, we are of the view that the prosecution has not been able to prove its case beyond reasonable doubt. We find it difficult to uphold the judgment of court below. In the result the judgment and order under challenge is, hereby, set aside. The appeal stands allowed. The appellants, who are already on bail, are discharged from the liabilities of their bail bonds. 28. We appreciate the sincere effort of Mr. P.C. Agrawal, learned counsel for the appellants who has argued the case as Amicus Curiae. The Legal Services Authority of Patna High Court is directed to make payment of Rs.1500/- to the learned counsel for the appellants for one day’s argument. (Navaniti Prasad Singh, J.) The Patna High Court The 30th November, 2011 Sanjeet/NAFR (Ashwani Kumar Singh, J.) (Navaniti Prasad Singh, J.)