CRIMINAL APPEAL (DB) NO.448 OF 2005 Against the judgment of conviction and order of sentence dated 29th June, 2005 passed by IVth Additional Sessions Judge, Banka in Sessions Trial No. 294 of 2003, Trial No. 513 of 2005 arising out of Katoriya P.S. Case No. 158 of 2002. ------- RAMDEO PANDIT, Son of Late Dhuni Pandit, Resident of Village Domkatta, P.S. Katoriya, District Banka. ------Appellant Versus THE STATE OF BIHAR ------Opposite Party With CRIMINAL APPEAL (DB) NO.536 OF 2005 1.KAMAL MANDAL, Son of Late Chigar Mandal 2.DHARMPAL MANDAL, Son of Late Mebi Mandal 3.CHUHA MANDAL, Son of Late Pokhan Mandal 4.UMESH MANDAL, Son of Late Chigar Mandal 5.PRAMOD MANDAL, Son of Chuha Mandal All Resident of Village Asdhari, P.S. Katoriya, District Banka. 6.GANESH RAI @ ROY, Son of Dindayal Rai, Resident of Village Khijuriya, P.S. Katoriya, District Banka. ------Appellants Versus THE STATE OF BIHAR ------Respondent --------- For the Appellant :- Mr. Brij Nandan Prasad, Adv. Mr. Janki Nandan Prasad, Adv. For the State :- Ms. Shashi Bala Verma, A.P.P. (In Cr. Appeal (DB) No. 448/2005) For the Appellants :- Mr. Ajay Kumar Thakur, Sr. Adv. Mr. Sanjay Kumar Jha, Adv. Mr. Rana Pratap Singh, Adv. Mr. Satyaveer, Adv. Mr. Rakesh Kumar, Adv. For the State :- Ms. Indu Bala Pandey, A.P.P. (In Cr. Appeal (DB) No. 536/2005) --------- 2 * * * * * P R E S E N T THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA THE HON'BLE MR. JUSTICE AKHILESH CHANDRA * * * * * Akhilesh Chandra,J. Both these appeals have been preferred by appellants aforementioned, assailing order of conviction dated 29th June, 2005 passed by learned IVth Additional Sessions Judge, Banka in Sessions Trial No. 294 of 2003/Trial No. 513 of 2005 arising out of Katoriya P.S. Case No. 158 of 2002. 2. Chuha Mandal, appellant no. 3 of Criminal Appeal No. 536 of 2005 stands convicted for the offence under Section 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 5,000/- and in default, further to undergo rigorous imprisonment for one year. Whereas, rest of the six appellants stand convicted for the offence under Sections 302, 364, 120(B) and 201 of the Indian Penal Code and have respectively been sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 30,000/- and in default, further to undergo rigorous imprisonment for three years, rigorous imprisonment for ten 3 years and to pay a fine of Rs. 10,000/- and in default, further to undergo rigorous imprisonment for two years, rigorous imprisonment for ten years and to pay a fine of Rs. 5,000/- and in default further to undergo rigorous imprisonment for one year, and further to undergo rigorous imprisonment for four years and to pay a fine of Rs. 5,000/- and in default, further to undergo rigorous imprisonment for one year. However, all the sentences are to run concurrently. 3. The prosecution case as reveal from fardbeyan, Exhibit – 3 of P.W.2 Chhedi Pandit recorded at village Domkatta at 11.30 A.M. on 15.10.2002 by Sub-Inspector Ram Prasad Ram (not examined) of Katoriya police station is that on the same day at about 9.00 A.M. when the informant was at his Bunglow alongwith his family members and his son Bal Kishore Pandit (deceased) aged about 22 years was she-goat in the Bari towards east of the house, suddenly found five persons, namely, Jodhan Mandal (whose trial was separated), Kamal Mandal, Umesh Mandal, Pramod Mandal & Ganesh Rai (appellant nos. 1 and 4 to 6 in Cr. Appeal No. 536/2005) alongwith Rifle, Gun and 4 Bomb kept in Jhola proceeded towards the house of co-villager Sukhan Pandit (deceased) to come out with him and then also over powered Bal Kishore Pandit, son of the informant and inquired from him about the murderer of Yogesh Mandal, but the unfortunate son of the informant failed to reply, then the miscreants also took him with them and proceeded away towards eastern side. The informant by dint of fear closed the door of his house and subsequently when started to proceed for police station could know that the miscreants also over powered and took with them one Bachneshwar Rai (deceased) aged about 40 years of village Lalmatiya and all went towards forest side. Reason behind the occurrence as stated is that one Yogesh Mandal brother of Jodhan Mandal (co-accused) was murdered twenty days before roughly at a distance of 1 K.M. from village Domkatta near village Lalmatiya and the miscreants were busy in enquiring about the culprits and in that sequence they abducted the three, namely, Bal Kishore Pandit, Sukhan Pandit & Bachneshwar Rai and proceeded towards the forest. The fardbeyan was witnessed by cousin of the informant, 5 Gopal Pandit, P.W. 1 on basis whereof, First Information Report, Exhibit – 4 was recorded at 4.00 P.M. on 15.10.2002 and sent to the Court on next day i.e. 16.10.2002. Police after investigation submitted charge-sheet against altogether fourteen persons including the appellants. After taking cognizance, case was committed to the Court of Sessions, where the trial proceeded against all the fourteen, but subsequently trial of one of the named accused Jodhan Mandal had to be separated since in custody, but was sent to the Chief Metropolitan Magistrate, Kolkata but six more persons also facing trial absconded at the stage of recording their statements under Section 313 of the Code of Criminal Procedure, compelling their trial to be separated at its fag end. Ultimately only seven persons were left to face trial till it is concluded, who on finding guilty stand convicted and sentenced in the manner aforementioned giving rise to the present two appeals. Former is preferred by one single appellant, namely, Ramdeo Pandit, whereas latter has been preferred by remaining six appellants, out of whom appellant no. 6, namely, Ganesh Rai is 6 still languishing behind the bars. The rest six are enjoying the privilege of bail by different orders of this Court. 4. In order to substantiate the case prosecution has produced documentary evidence vide exhibits: (Exhibit – 1 Postmortem report of Bal Kishore Pandit, Exhibit – 1/1 Postmortem report of Bachneshwar Rai, Exhibit – 1/2 Postmortem report of Sukhan Pandit, Exhibits – 2/2 to 2/5 Signature of witnesses nos. 17 & 18 on the xerox copy of death verification report, Exhibit – 3 Written statement, Exhibit – 4 First Information Report, Exhibits – 5 to 5/2 Carbon copy of death verification report, Exhibit – 6 Attested statement of Jodhan Mandal, Exhibit – 7 Challan, Exhibit – 8 Order-sheet, Exhibit – 9 Sanha, Exhibits - I to I/6 Photo and Exhibit(mark as) - X Photo), and examined altogether twenty two witnesses, out of whom P.W. 3 Huro Pandit, P.W. 6 Singheshwar Pandit @ Sidho Pandit, P.W. 7 Anirudha Pandit, P.W. 8 Jahaju Pandit, P.W. 9 Manoj Pandit, P.W. 10 Mohan Pandit, P.W. 14 Narayan Pandit, P.W. 15 Kari Devi, P.W. 17 Prem Das & P.W. 19 Ram Prasad Pandit have been declared hostile by the prosecution as majority of them did not support the prosecution version. Only P.W. 17 Prem Das, a 7 tractor driver, vehicle of whom was used to carry the dead-body from the places of recovery to the postmortem house after proving Exhibits – 2 to 2/2 was declared hostile and in fact there is nothing in their evidence worth consideration. P.W. 13 Bharat Rai, P.W. 16 Tetu Rai on recovery have identified the dead-bodies. P.W. 18 Bipin Kumar Gupta, who is a photographer, took photographs of the dead-bodies etc., after recovery and also proved such photographs as Exhibit – X for identification and his signatures on inquest reports as Exhibits – 2/2 to 2/5 and P.W. 22 Kailash Paswan, Assistant Sub-Inspector of police has proved Exhibit – 9, Sanha Entry No. 243 dated 15.10.2002 and thus the prosecution witnesses numbers 3, 6, 7, 8, 9, 10, 14, 15, 17 & 19 are formal in nature and there remains nothing more relevant for consideration. Out of the remaining P.W. 1 Gopal Pandit, P.W. 2 Chhedi Pandit, P.W. 5 Mala Devi, P.W. 11 Anita Devi, P.W. 12 Agya Devi are the witnesses of the occurrence, whereas P.W. 20 Tikadhar Pandit is an witness of happenings on the eve of occurrence and P.W. 4 Dr. Amit Kumar, the medical officer hold autopsy on the body of 8 the three deceased, proved Exhibits – 1 to 1/2 and P.W. 21 Shri Kant Mandal, the Investigating Officer and the person proving rests of the Exhibits are the only witnesses, whose testimony needs consideration and discussion. 5. The defence neither produced any documentary nor oral evidence, but from the trend of cross-examination and suggestions given to the witnesses, their defence is false implication due to previous enmity and from the cross-examination of the witnesses, declared hostile by the prosecution and whose attention have been drawn towards their earlier statement under Section 161 of the Code of Criminal Procedure. It further appears from evidence of P.W. 19 Ram Prasad Pandit that another motive behind the occurrence is purchase of a land by the informant. P.W. 2, which was under negotiation by the appellant Ramdeo Pandit, but in-fact there is no legal evidence in support of such motive on record. It also reveals as prosecution case that, on the eve of occurrence, some of the co-accuseds had contacted with Ramdeo Pandit, sole appellant 9 contacted with Ramdeo Pandit, sole appellant of Criminal Appeal No. 448 of 2005 and on getting some clues from him regarding the involvement of the victims (deceased) in the killing of Yogesh Mandal, brother of co- accused Jodhan Mandal abducted them just to take revenge. 6. Now, on consideration of rival contentions and on basis of materials available on record, it is to be determined in these appeals, whether the prosecution has been able to substantiate the charges against the appellants beyond any shadow of reasonable doubt or findings of the trial court needs any interference. 7. Before dealing with other materials, Exhibit – 9, Sanha Entry No. 243 recorded at 10.30 A.M. on 15.10.2002 appears relevant for consideration. It goes to show that one Bhim Pandit (not examined) son of Ram Prasad Pandit of village Domkatta, P.S. Katoriya alongwith other villagers arrived at police station and just informed the police authority that some armed miscreants have surrounded village Domkatta from east, any untowards incident may take place. The 10 authorities on recording such statement immediately rushed towards village Domkatta. This goes to show that police was informed about some gatherings, anticipating some untowards happenings, compelling the police party to rush and arrive at village Domkatta, where as per Exhibit – 3, the fardbeyan of P.W. 2 Chhedi Pandit was recorded at about 11.30 A.M. by Sub-Inspector, Ram Prasad Ram (not examined), but P.W. 2, the informant who in his examination-in-chief tried to state about the occurrence, while saying that at about 9.00 A.M. his son Bal Kishore Pandit (deceased) had gone to tie she-goat at a short distance from the house. Appellant no. 1 Kamal Mandal arrived at his door, went near his son and when he (son) responded his call, said Kamal Mandal asked him to accompany up to a place where some persons have been assembled to inquire something from him and while the victim was proceeding with appellant no. 1 Kamal Mandal, four armed persons concealing their face also arrived at the door compelling this witness to go inside the house, who on coming out found that the miscreants have already entered into forest with his son. He 11 returned back and learnt that the miscreants have also abducted other two victims. The dead-bodies of all three victims could be recovered from the forest fourteen days thereafter. In Court, he could identify only appellant no. 1 Kamal Mandal, but refused to identify rest of the co-accused whether present or under representation. In cross- examination in paragraph – 3, he says that some of the person concealing their face was in police uniform. On hue and cry he went inside the house and came out only after about half an hour, remained in the village till 4.00 P.M. He could learnt from P.W. 1 Gopali about the abduction of remaining two victims and also brings the fardbeyan, Exhibit – 3 under grave doubt while saying that he went to the police station in the evening alongwith villagers, informed about the occurrence and also put his left thumb impression (L.T.I) on his recorded statement and further in his cross-examination in paragraph – 7. When on recall, in paragraph – 6 in his examination- in-chief, described himself as the informant of the case and police had recorded his fardbeyan. He says that prior to him, Gopali 12 (P.W. 1 an other eye-witness) had gone to police station, where he made his statement and if it is so, the very fardbeyan, Exhibit – 3, lost its sanctity under law contemplated under Section 154 of the Code of Criminal Procedure, as it is evident from Exhibit – 3, that it is the statement of this P.W. 2, recorded at about 11.30 A.M. at village Domkatta itself, but in his examination in Court, he said nothing about such recording of his statement in village rather contrary to it, he states that his statement was recorded at police station in the evening and prior to him, P.W. 1 had already gone to police station and made statements before the police authorities. This part of statement of this informant finds support from the statement of P.W. 1 Gopal Pandit also. 8. Gopal Pandit P.W. 1 has come to say that at about 8.00 A.M. while he was ploughing his field behind the house and Ram Prasad Pandit P.W. 19, was taking out the Cow from the house, suddenly his daughter, Sulochana Kumari (not examined) informed her father that police is calling. He sought advice from this witness, who voluntarily came 13 out to have some conversation with the police and found that though some persons were there at his door in police uniform, but they were in fact not police men. Out of whom, co- accused Jodhan Mandal asked about P.W. 19 and subsequently about victim Sukhan Pandit and thereafter, appellant Kamal Mandal went to the house of Sukhan Pandit and took him in the garb of some queries and appellant Pramod Mandal at the relevant time showing Bomb, the miscreants had gone inside the house of Ram Prasad Pandit, co-accused Jodhan Mandal had a Gun, whereas appellant Kamal Mandal had Rifle. There was assemblage of about 8-10 miscreants, out of whom he could identify appellants, Kamal Mandal, Pramod Mandal and two other co- accuseds, Jodhan Mandal and Shankar Mandal, they took with them the victim Sukhan Pandit. This witness ran towards the hosue of P.W. 2 and from there cross the river and on return, he could know about the abduction of other two victims, then at the instance of villagers went to police station to inform. He further says that about fifteen days after dead-bodies of the victim could be recovered, in Court, he could identify only two of the appellants, 14 Kamal Mandal and Pramod Mandal besides co- accused Shankar Mandal and Jodhan Mandal with a further claim to identify two co-accused on representation, but refused to identify appellants, Umesh Mandal, Ganesh Rai and Ramdeo Pandit besides co-accused Santosh and Dharmpal Mandal. In cross-examination, he further stick on informing the police in the same evening about the occurrence and arrival of higher authorities in the night and further, he asserts that he put his signature on the statement given by him and only, thereafter, police arrived at the place of occurrence. He further, asserts that he stayed with the police for two days, but never met with P.W. 1 Gopal Pandit. In this way, he withdrew himself from his status of solitary witness on fardbeyan, Exhibit – 3. In his examination-in-chief, he is silent about playing such role and in cross-examination, he himself becomes as informant. In paragraph – 6 also he has said that immediately, after returning from river side on getting information about the abductions, he went to inform the police. These two witnesses completely demolishes Exhibit – 3 as fardbeyan 15 of P.W. 2, which is the very foundation of the prosecution case and if the very basis of prosecution case lost its sanctity under law as contemplated under Section 154 read with Section 162 of the Code of Criminal Procedure, there remains nothing as case of the prosecution. 9. Mala Devi P.W. 5 widow of one of the victim Sukhan Pandit has come to say that at about 8.00 A.M. while she was at his house and her husband was at the door, 5-6 miscreants arrived and asked him to accompany as something was to be inquired. She also followed her husband till out of village, Singho Pandit P.W. 6 and Mathuri Pandit (not examined) were sitting at their door, her husband was forced to sit in between these two, where co-accused Shankar Mandal assaulted him by legs and Jodhan Mandal caused some injuries by pointed portion of Gun and thereafter, Shankar Mandal dragged him from some distance while assaulting and ultimately asked this witness that her husband needs water, she provided him water and thereafter, brought her husband to the house. In same breath, she said that appellant Kamal Mandal 16 besides co-accused Jodhan Mandal, Shankar Mandal, Dharmpal Mandal and Ram Swarup Mandal etc. had brought her husband from the house. In Court, she could identify only appellants Umesh Mandal and Ganesh Rai besides other accused persons, but failed to recognize appellants Pramod Mandal and Chuha Mandal, but if this witness herself has brought back her husband as stated in examination-in-chief, aforementioned, and is silent about any subsequent event with him. The testimony of this witness also cannot be of any help to the prosecution, rather it is contrary to its version as contained in doubtful Exhibit – 3. 10. Anita Devi P.W. 11, widow of one of the victim Bachneshwar Rai of village Lalmatiya has come to say that at the relevant time, she was at her door alongwith her mother-in-law, P.W. 12 and other family members. Appellants Ganesh Rai, Kamal Mandal, Pramod Mandal besides accused Shankar Mandal, Santosh Mandal, Jodhan Mandal and Brahmdeo Pandit started taking away her husband, who was pleading innocence, she followed him for some distance, but on chiding by appellant Ganesh Rai and accused Santosh, she returned 17 and her husband was carried towards forest and fifteen days, thereafter, his dead-body could be recovered alongwith others, but this is unfortunate that in Court, she did not claim to identify any of the accused persons. Almost, similar is the position of Agya Devi, P.W. 12, mother of the victim Bachneshwar Rai. She though claimed to identify the accused persons present in Court, but when opportunity was provided her to go nearer and recognize, then she failed to do so by stating that she has bad eye-sight and in cross examination accepted that his eye-sight is bad from last 15-16 years. Thus, this witness is also of no avail to the prosecution and statement of both is not trustworthy. 11. Tikhar Pandit P.W. 20 is brother of victim Sukhan Pandit come to say that while he was near a tree at the relevant time four persons inquired from him about his brother and specifically denies any happenings. A day before, he claims to identify appellants, Kamal and Pramod besides co-accused Jodhan and Shankar. In Court and in cross-examination, he says that he was near the tree for about an hour and just after 18 seeing arrival of some persons, he left the village and went to police station, knows nothing more. So, in fact this witness also cannot be relied upon. 12. Dr. Amit Kumar, the Medical Officer P.W. 4 conducted autopsy on the three dead-bodies recovered from forest side and proved Exhibits – 1 to 1/2 and found the following injuries upon the respective dead- bodies:- External appearance (on the dead-body of Bal Kishore Pandit) – A Gamchha (Towel) was found tied on the lower part of the neck encircling the neck horizontally and completely. On dissection of the wound-Thyroid cartiledge, survical bones were found fractured. Skin of hands and feet comes of with nail like a gloove maggots and flies running all over the body. Muscles all over the body was detached from the bone. According to the Doctor the cause of death is asphyxia due to strangulation. Time since death about two weeks. External Appearance (on the dead-body of Bachneshwar Rai) – Body is in advance decomposed position. Skin of hands and feet comes of with nail like a gloove. Skin shoftened, muscle shoftened maggots and flies were running all over the body. An incised wound size 5” x 4 ½” X body deep on the lower part of the front of the neck. On dissection of the wound underlying tissues, blood vessels, bones were severely cut. The above injury was caused by 19 heavy sharp cutting weapon. Cause of death is hemorrhage and shock due to above mentioned injury. Time since death about two weeks. External Appearance (on the dead-body of Sukhan Pandit) – A Gamachha (Towel) was found tied on the lower part of the neck below the thyroid cartiledge encircling the neck horizontally and completely. On dissection of the wound thyroid cartiledge, survical bones were found fractured. Skin of hand and feet comes of with nail like gloove. Magots and flies were running all over the body. Muscles all over the body were detached from the bones easily. Cause of death asphyxia due to strangulation. Time since death about two weeks. 13. No doubt, from the statement of the Doctor it can be said that the three deceased were treated badly and were succumbed to their injuries and died, but in absence of any connecting evidence with the appellants, they cannot be held guilty for doing so. 14. Shrikant Mandal the Investigating Officer, P.W. 21 whose conduct appears getting appreciation from the trial court has proved the remaining exhibits, except Exhibit – 9, the sanha proved by Assistant Sub-Inspector, Kailash Paswan P.W. 22, no doubt, could be able to get the dead-bodies of three missing persons from the forest area. As stated on 20 basis of Exhibit – 6, extra judicial confession of co-accused Jodhan Mandal in presence of Local Circle Officer (not examined) and also got photographs etc. carried the dead-bodies on a tractor of P.W. 17 Prem Das, but said co-accused Jodhan Mandal is not before us nor this witness could be able to give any explanation and remove the grave doubts created against the very first information to the police, i.e. fardbeyan, Exhibit – 3. 15. On basis of materials discussed above, learned counsels representing the appellants have rightly submitted that Exhibit – 3 cannot be considered as fardbeyan and in absence of the very prosecution case, the appellants deserves an order of acquittal. Apart from such submissions, we find substance in the submissions made on behalf of the appellants that none of the prosecution witnesses is consistent and able to bring home the charges against either of the appellant. 16. In view of the discussions made above, we find ourselves unable to upheld order of conviction and sentence passed by the court below, accordingly, both the appeals 21 stand allowed and the appellant, namely, Ramdeo Pandit (in Cr. Appeal (DB) No. 448/2005) and Kamal Mandal, Dharmpal Mandal, Chuha Mandal, Umesh Mandal, Pramod Mandal, (appellant nos. 1 to 5 in Cr. Appeal (DB) No. 536/2005) are set free from the liabilities of their respective bail-bonds furnished on their behalf, whereas appellant no. 6, namely, Ganesh Rai @ Roy (in Cr. Appeal (DB) No. 536/2005), who is in custody, be set at liberty forthwith, if not required to be detained in any other case. (Akhilesh Chandra, J.) Shyam Kishore Sharma, J.- I agree. (Shyam Kishore Sharma, J.) Patna High