CRIMINAL APPEAL(DB) No.82 OF 2003 With CRIMINAL APPEAL(DB) No. 159 of 2003 ----------- Against the Judgment of conviction dated 13.2.2003and order of sentence dated 14th February 2003, passed by the IInd Additional Sessions Judge, Banka in Sessions Case No. 481 of 2000 ------- In Criminal Appeal No. 82 of 2003 1. BHOLA PANDIT 2.KHUSHI LAL PANDIT 3. GITA DEVI………………………………………………Appellants Versus STATE OF BIHAR---------------------------------------------Respondent In Cr.. APP (DB) No.159 oF 2003 KULDIP PANDIT------------------------------------------------Appellant Versus STATE OF BIHAR---------------------------------------------Respondent ------------- For the Appellants : Shri Jagdish Prasad Bhagat, Sri D.N. TiwaryAdvocates. For the Respondent: Sushri Shashi Bala Verma, Additional P.P. P R E S E N T THE HOB’BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE BIRENDRA PRASAD VERMA B.P. Verma, J The appellants of the above two appeals have been convicted under section 302/34 of the Indian Penal Code by the impugned judgment of conviction dated 13.2.2003 passed in Session Case No. 481 of 2000 by the learned 2nd Additional Sessions Judge, Banka and they have been accordingly sentenced to undergo R.I. for life by the impugned order of sentence dated 14.2.2003. Appellants, being aggrieved by the impugned judgment of conviction and order of sentence, have preferred the aforesaid two criminal appeals. - 2 - 2. The prosecution case, as unfolded by the Fardbeyan (Ext.2) of P.W.6 Jaldhar Pandit, in short, is that the informant and appellant Kuldip Pandit are agnates and they are having their houses adjacent to each other. Appellant Kuldip Pandit had put up wooden beam (Bareri) of his house on the wall of the informant. House of appellant Kuldip Pandit had started falling because of rain and due to its old construction, as a result of which the house of the informant was also being damaged. Deceased Guru Dayal Pandit, father of the informant, in order to save his own wall cut some part of wooden beam of the accused persons on 13.9.1999 at about 10 A.M. in the day, where-after appellant Geeta Devi, armed with sickle, came over there and protested. On hearing altercation appellants namely Kuldip Pandit armed with Garasa, Bhola Pandit armed with sword and Khushi Lal Pandit armed with Lathi came over there and asked as to who had cut the aforesaid wooden beam ? Deceased Guru Dayal Pandit admitted to have cut the aforesaid wooden beam ,where-after appellant Kuldip Pandit uttered that he would be also cut in the same manner and rushed towards the father of the informant with Garasa and other appellants were following him. Deceased father of the informant could flee to a distance of 60 to 70 yards, but he was apprehended by the accused persons, where- after appellant Kuldip Pandit cut the neck of deceased Gurudayal - 3 - Pandit as a result of which he died on the spot. Thereafter all the accused persons rushed towards the house of the informant. While Maniya Devi, mother of the informant, had come over Darwaja to flee from there, she was caught hold by all the four accused persons and appellant Kuldip Pandit again killed her at her Darwaja itself by using Garasa. 3. Aforesaid fardbeyan (Ext.2) of P.W.6 was recorded by P.W.7 Chandrika Rajak, S.I. of Belhar P.S., giving rise to Belhar P.S. case No. 85 of 1999 dated 30.9.1999 under section 302/34 of the Indian Penal Code. P.W.7 has not conducted the investigation of the present case. He has simply recorded the fardbeyan of P.W.6 and seized the blood stained Garasa, and, thereafter investigation was taken up by P.W.9 Jaipal Yadav. During the course of investigation, the witnesses supported the factum of death of deceased Gurudayal Pandit (father of the informant-P.W.6) and deceased Maniya Devi (mother of the informant-P.W.6). Witnesses also supported about the role played by appellant Kuldip Pandit for committing the murder of deceased persons. But the independent witnesses did not support the prosecution allegation about participation of other three appellants namely Bhola Pandit, Khusi Lal Pandit and Geeta Devi. In the aforesaid back ground, on close of investigation charge sheet no. 93/99 dated 30.12.1999 under section 302 of the Indian - 4 - Penal Code was submitted only against appellant Kuldip Pandit. The other three appellants were not sent up for trial. However, by order dated 3.1.2000, learned C.J.M disagreed with the police report and took cognizance against all the accused persons under section 302/34 of the Indian penal Code and the case was committed to the court of session for trial. 4. Charge was framed against all the appellants under section 302/34 of the Indian Penal Code on 4.1.2001. The appellants denied the charge and claimed to be innocent and their false implication in the present case. According to them no occurrence in the manner, as alleged, has ever taken place and the entire prosecution version is full of concoction and fabrication. 5. In order to prove its case, the prosecution has examined 9 witnesses , out of them P.W.1 Binay Kumar Pandit , son of the deceased persons and brother of the informant, P.W.2 Rina Devi, wife of the informant , P.W.4 Janardan Pandit , P.W.5 Bhagwatia Devi as also P.W.6 Jaldhar Pandit ,the informant, claimed to be eye witnesses of the occurrence in question. P.W.3 Baldeo Pandit is a hear say witness. P.W.8 Dr. Shiva Narayan Singh is Civil Assistant Surgeon, who was posted at Banka Sadar Hospital at the relevant time and had conducted postmortem examination on the dead body of the deceased Gurudayal Pandit as also of Maniya Devi and aforesaid postmortem reports have been - 5 - marked as Ext.6 and 6/1 respectively. As stated earlier P.W.7 Chandrika Rajak was S.I. of Police, who recorded fardbeyan (Ext.2) of P.W.6 and seized blood stained Garasa of the accused Kuldip Pandit. P.W.9 Jaipal Yadav is the I.O. of the case. 6. From the side of appellants neither any defence witness nor any documentary evidence was produced in support of their defence version. 7. Shri Jagdish Prasad Bhagat, Learned counsel appearing on behalf of the appellants took us to the evidence of witnesses and submitted that the prosecution has not been able to prove the entire manner of occurrence and further P.O. has not been conclusively proved and, therefore, the appellants are entitled to have a benefit of doubt and are entitled to be acquitted by this Court. Alternatively, it was submitted that even according to the eye witness account of P.Ws.4 and 5, who are the independent witnesses in the present case, the participation of appellant Bhola Pandit, Khushi Lal Pandit and Geeta Devi in the occurrence in question is not established and only Kuldip Pandit can be said to have committed the crime in question. By referring to postmortem report of deceased persons vide Ext.6 and 6/1, it was submitted that though appellant Khushilal Pandit and Geeta Devi are alleged to have assaulted on chest of deceased Gurudayal Pandit , but no corresponding injuries were found on his body and this creates - 6 - grave doubt about the manner of occurrence as also about the eye witness account of the prosecution witnesses. 8. Sushri Shashi Bala Verma, Learned Addl. P.P. appearing on behalf of the State, submitted that the prosecution has been able to prove its case beyond all reasonable shadow of doubts and on the basis of some minor contradictions either in ocular evidence of the prosecution witnesses or in the medical evidence of doctor the accused persons cannot be acquitted. 9. In order to appreciate the rival submissions made on behalf of the parties, it is necessary to examine the evidence of the witnesses available on record. 10. It is relevant to mention here that though the case was instituted under section 302/34 of the Indian Penal Code and all the four appellants were named in the FIR as accused, but on close of investigation accusations against the appellants Bhola Pandit, Khushi Lal Pandit and Geeta Devi were found to be false and they were not sent up for trial. Charge sheet was submitted only against the appellant Kuldip Pandit under section 302 of the Indian Penal Code. 11. In the Fardbeyan (Ext.2) of P.W.6 the allegations of killing the deceased Gurudayal pandit and deceased Maniya Devi are mainly against the appellant Kuldip Pandit. According to the prosecution case murder of deceased Gurudayal Pandit had - 7 - taken place in the field of one Sachidanand Lal. P.W.9 Jaipal Yadav (I.O.) in paragraph 2 of his deposition has given a description of aforesaid P.O. According to which one Lalu Pandit, father of P.W.4 and husband of P.W.5, was having his house adjacent west to the aforesaid P.O. Therefore, p.w.4 and 5, who are the eye witnesses of the alleged occurrence and are having their house just west of the alleged P.O., are most competent witnesses to say about the manner of assault upon the deceased Gurudayal Pandit. P.W.4 Janardan Pandit in paragraph -1 of his deposition has stated that appellant Kuldip Pandit had alone cut the neck of deceased Gurudayal Pandit in the field of Sachidanand and thereafter he alone committed the murder of deceased Maniya Devi. In paragraph -7 at page 18 of the paper book he has categorically deposed that appellant Kuldip Pandit was alone at the P.O. and other appellants were not present there. Similarly P.W.5 Bhagwatia Devi, wife of Lalu Pandit and mother of P.W.4, has deposed in paragraph 1 of her deposition that appellant Kuldip Pandit cut the neck of the deceased Gurudayal Pandit,as a result of which he died and thereafter appellant Kuldip Pandit went to the house of P.W.6 and killed the deceased Maniya Devi there. In her cross-examination in paragraph-6 of her deposition, she has stated that it was the appellant Kuldip Pandit alone responsible for the killing of deceased Gurudayal Pandit and his wife deceased - 8 - Maniya Devi and other appellants did not participate in the commission of the crime in question. 12. P.W.1 Binay Kumar Pandit, son of the deceased, has tried to support the entire prosecution case, but in paragraph -1 of his deposition he has stated that appellant Kuldip Pandit cut the neck of his father by sword , which is contrary to the consistant case of the prosecution that the appellant Kuldip Pandit assaulted the deceased Gurudayal Pandit by Garasa and not by sword. P.W.2 Rina Devi, wife of the informant, has also tried to support the prosecution version. Admittedly P.W.3 Baldeo Pandit is a hear say witness having heard about the killing of deceased persons by Kuldip Pandit from one Lalu Pandit . In absence of examination of Lalu Pandit, the evidence of P.W.3 cannot be relied upon. P.W.6 Jaldhar Pandit, the informant, has not only tried to support rather tried to improve the prosecution version by stating that appellant Khushilal Pandit was armed with Khanti fitted Lathi, though in the fardbeyan he had stated that he was armed with Lathi only. According to him apart from Kuldip Pandit appellant Khushi Lal Pandit and appellant Geeta Devi also assaulted the deceased Gurudayal Pandit by their respective weapons on his chest. However, according to him primal role for committing the murder of the deceased persons was played by appellant Kuldip Pandit. - 9 - 13. The statements of the aforesaid witnesses have been contradicted and falsified by the deposition of I.O. namely P.W.9 Jaipal Yadav . In his cross-examination, on his attention being drawn, P.W.9 in paragraph 4 stated that P.W.1 Binay Kumar Pandit had disclosed the name of appellant Kuldip Pandit alone as the person who had killed the deceased, and P.W.1 had not disclosed the name of other accused persons to have participated in the assault. In paragraph 5 of his deposition, P.W.9 has stated that P.W.2 Rina Devi had not stated before him that all the accused persons had assaulted the deceased Gurudayal Pandit. In paragraph 7 of his cross-examination, P.W.9 has deposed that P.W.5 Bhagwatia Devi had named only appellant Kuldip Pandit as assailant of the deceased and she had claimed to have seen the occurrence by her own eyes. Similarly in paragraph 8 of his deposition, P.W.9 at page 47 of the paper book has deposed that P.W.6 had disclosed the name of appellant Kuldip Pandit alone to have killed the deceased persons. He had not disclosed the name of other appellants to have assaulted the deceased Gurudayal Pandit by their respective weapons. 14. From the discussion of the ocular evidence of the eye witnesses, referred to above, it is apparent that witnesses have consistently stated about the role of Kuldip Pandit for killing the deceased Gurudayal Pandit and Maniya Devi. P.W.1, P.W.2, - 10 - P.W.4, P.W.5 and P.W.6 all have consistently stated that appellant Kuldip Pandit firstly killed the deceased Gurudayal Pandit in the field of Sachidanand Lal and thereafter killed Maniya Devi at the Darwaja of the informant, while she was attempting to flee away from there. However, about participation of other three appellants in the crime in question, there are contradictory evidence. P.Ws 4 and 5 have clearly stated that other three appellants namely Bhola Pandit, Khushi Lal Pandit and Geeta Devi had not participated in the crime in question. Though P.Ws 1, 2 and 6 have tried to support the prosecution case that even these appellants had played some role for committing the crime in question, but their evidence stands falsified and contradicted by the evidence of I.O. (P.W.9), as according to him the aforesaid witnesses had not disclosed before him about the role played by these three appellants for committing the crime in question. 15. P.W.8 Dr. Shiva Narayan Singh had held autopsy on 30.9.1999 on the dead body of the deceased Gurudayal Pandit and deceased Maniya Devi . Post mortem reports have been marked as Ext.6 and 6/1 respectively. The postmortem report of deceased Gurudyal Pandit is quoted herein below : (a) Incised wound of size 2” x ½” x ½” on the occipital area. (b)Incised wound of size 2.1/2” x ½” x ½” on the left parietal area of the scalp. - 11 - (c)Incised wound on the neck cutting of the structures of the neck causing amputation of the head from the neck. (d) Incised wound 2”x ½” x ½” on the left scapular area. (e)Little finger of left hand amputated from its proximal phalanx. Cause of death;- shock and haemorrhage due to above mentioned injuries. The postmortem report of deceased Maniya Devi was as follows: (i)Incised wound of size 3”x 1½” x deep to survical vertebra cutting the skin , blood vessels , nerves, muscles on the left side of the neck. (ii)Incised wound of the size 2” x 1” x deep to baccal cavity cutting the left chunk with mandible. (iii)Incised wound size 1½” x 2” x ½” on the right palm. Cause of death;- shock due to above mentioned injuries. 16. According to the prosecution case appellant Khushi Lal Pandit is alleged to have assaulted deceased Gurudayal Pandit on his chest either by lathi or by Khanti fitted lathi. Similarly appellant Geeta Devi is said to have assaulted the deceased Gurudaual Pandit on his chest by sickle. On scrutiny of the postmortem report of deceased Gurudayal Pandit, it is apparent - 12 - that there was no injury found on his chest. However, the allegation of assault against the appellant Kuldip Pandit of cutting the neck of the deceased persons by Garasa has been fully supported. Thus it is apparent that the allegation of assault against the appellant Khushi Lal Pandit and appellant Geeta Devi by their respective weapons does not find support even from the postmortem report of the deceased. 17. Thus on examination of ocular evidence of witnesses and medical evidence of doctor, it is apparent that the prosecution has succeeded in establishing beyond all reasonable shadow of doubt that appellant Kuldip Pandit killed the deceased Gurudayal Pandit and his wife deceased Maniya Devi and, therefore, no interference in the judgment of conviction and order of sentence, so far appellant Kuldip Pandit is concerned, is at all warranted. 18. For the reasons stated above judgment of conviction and order of sentence passed against appellant Kuldip Pandit , are hereby affirmed and the appeal filed on his behalf is dismissed. 19. However, on examination of ocular evidence of witnesses and medical evidence of doctor participation of other three appellants namely Bhola Pandit, Khushi Lal Pandit and Gita Devi appears to be doubtful and they are entitled to have the - 13 - Patna High Court The 20th April,2010 Rahman(NAFR) benefit of doubt. Admittedly P.W. 4 and 5, both independent eye- witnesses, have completely ruled out the participation of these three appellants in the murder of the deceased persons. Other three eyewitnesses namely P.W.1, 2 and 6, though tried to support the prosecution allegation against these three appellants also, but their evidence stands contradicted and falsified by the evidence of P.W.9 (I.O.) Further more the postmortem report-Ext. 6 does not support the manner of assault as attributed to the appellant Khushi Lal Pandit and Geeta Devi. In view of the aforesaid contradictory ocular and medical evidence available on record, these three appellants are entitled to have the benefit of doubt and are entitled to be acquitted from the charge levelled against them on that ground. Therefore, judgment of conviction and order of sentence passed against them are hereby set aside. They are acquitted from the charge levelled against them. The appeal filed on their behalf is allowed. They are on bail, therefore, they are discharged from the liabilities of their bail bonds. (Birendra Prasad Verma, J) Dharnidhar Jha, J. I agree. (Dharnidhar Jha, J) - 14 -