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2001 DIGILAW 192 (PAT)

Deo Kishore Mishra v. State Of Bihar

2001-03-01

A.K.SINHA, R.N.PRASAD

body2001
Judgment R.N.Prasad, J. 1. Both the appeals arise out of judgment and order dated 30.6.1994 passed by the Sessions Judge, Bhojpur at Arrah in S.T. No. 428/86, they have been heard together and are being disposed of by this judgment. The appellants in both the cases have been convicted for the offence under Section 396 of the Indian Penal Code and sentenced to undergo imprisonment for life. 2. One Ratanjay Mishra, the informant, gave his fardbeyan on 10.11.1985 at 10.15 p.m. in the Sadar Hospital, Arrah that at about 7 p.m., he, his cousin Sanjay Mirhsa, his uncle Jagat Narain Mishra were sitting at the door of their house. At about 7.30 p.m., Bishundeo Mishra and Deo Kishore Mishra armed withgun and Krishna Mishra armed with pistol came along with 20-25 unknown persons. Bishundeo Mishra ordered to assault and loot the articles of the house. Deo Kishore Mishra, Krishna Mishra and unknown persons tried to enter into the house. His uncle Jagat Narain Mishra obstructed the entry on which Deo Kishore Mishra fired causing injury to Jagot Narain Mishra who fell down on the ground. Thereafter, Krishna Mishra and 10-12 unknown persons entered into the house. While they were entering, he and his cousin Sanjay Mishra caught one unknown person but they were assaulted with lathi and pasuli causing injury on his head, finger of left hand and shoulder. His cousin Sanjay Mishra also sustained injury on his head and fell down. In the meantime, Arun Mishra came from the outside and when he reached near the door, Bishundeo Mishra fired which hit on his chest due to which he fell down. Some time thereafter, he heard sound of 5-6 firings in the court-yard. Binay Kumar Mishra and Ramawati Devi also sustained injuries. His brother Binay Kumar Mishra disclosed that Krishna Mishra fired causing injury. The dacoits looted clothes, ornaments and utensils from the house and ran away towards south of the village. Description of the culprits was also given by the informant. One of the culprits were called as Punjabi. During commission of dacoity, no people of the village came. However, after the dacoits ran away, the villagers Ramiya Mishra, Mahendra Mishra, Sajan Mishra, Nirmal Kumar Mishra, Ram Naresh Mishra, Jagdish Mishra and others came and they took his uncle Jagat Narain Mishra to the hospital. However, he died on way to the hospital. 3. During commission of dacoity, no people of the village came. However, after the dacoits ran away, the villagers Ramiya Mishra, Mahendra Mishra, Sajan Mishra, Nirmal Kumar Mishra, Ram Naresh Mishra, Jagdish Mishra and others came and they took his uncle Jagat Narain Mishra to the hospital. However, he died on way to the hospital. 3. On the aforesaid fardbexjan, a formal First Information Report was drawn, investigation was taken up and on conclusion of the trial, charge-sheet was submitted against eight persons. The Court on receipt of charge-sheet took cognizance and committed the case to the Court of Sessions for trial. The trial Court convicted the appellants as indicated above but acquitted rest of the persons who were facing the trial. 4. The defence of the appellants was that they were innocent and were falsely implicated in the case out of enmity. 5. The prosecution in support of its case examined 22 witnesses, out of whom, PW 1 has proved fardbeyan and the formal First Information Report. PWs 6 & 7 are witnesses to the seizure of some articles which were found at the place of occurrence. PW 8 is witness to the inquest. PWs 11 & 20 who were judicial officers, have been tendered. PW 17 has also been tendered. PW 14 has been declared hostile. PWs 18 & 19 are also witnesses to the seizure of the articles. PW 12 is also judicial officer who recorded the statement of PW 14 under Section 164 of the Code of Criminal Procedure. PW 21 is the Chief Judicial Magistrate and he held test identification parade of the suspects. PW 22 is the Executive Magistrate. He held test identification parade of stolen articles. PW 9 is part Investigating Officer. PW 10 is doctor who held post mortem over the dead body. PW 15 identified the stolen articles. PW 16 is doctor who examined the injured witnesses PWs 2, 4 & 5 and one Ramawati Devi. PW 2 is the informant and claimed to be eye witness to the occurrence.PWs 3,4,5 & 13 are witnesses to the occurrence. 6. The defence has also examined four witnesses. DWs 1, 3 & 3 have been examined to show that appellants were busy in annual shradh. DW 4 proved station diary entry No. 144 dated 10.11.1985 and station diary entry No.145 dated 11.11.1985, Exts. D & D/l respectively. 7. 6. The defence has also examined four witnesses. DWs 1, 3 & 3 have been examined to show that appellants were busy in annual shradh. DW 4 proved station diary entry No. 144 dated 10.11.1985 and station diary entry No.145 dated 11.11.1985, Exts. D & D/l respectively. 7. The factum of dacoity in the house of the informant is not in dispute. The dispute is with regard to participation of the appellants. PWs 3, 4 & 5 claimed to be eye-witnesses to the occurrence. PW 9 is the Investigating Officer. However, he did not record the statement of PWs 3, 4 & 5 who were injured. He investigated the case at the initial stage. The appellants are neighbours of PW 2, the informant in whose house dacoity was committed. On the date of occurrence, there was annual shradh in the house of Deo Kishore Mishra which is adjacent to the house of the informant. PW 3 claimed to have seen the occurrence but he named only Bishundeo Mishra as one of the persons participating in the dacoity. However, his attention was drawn to the statement made before the police that he did not state before the police the Bishundeo Mishra fired causing injury on his person and suggestion was given that he implicated him out of enmity but he denied. PW 4 disclosed the names of the appellants in his evidence in the Court that they participated in the commission of dacoity. However, attention was drawn to the statement made before the police that he did not name any of the dacoits before the police rather he claimed to identify the culprits by face which he denied. Similarly, PW 5 disclosed the names of the appellants in the Court as participants in the occurrence. However, his attention was drawn to the statement made before the police that he did not name any of the culprits rather he stated that he would identify the culprits by face. Suggestion was also given that he implicated the appellants out of enmity but the witness denied. Learned counsel for the appellants after going through the case diary vehemently argued that the witness did not disclose the name of any of the appellants before the police. In the Court, for the first time, they named the appellants out of enmity. Suggestion was also given that he implicated the appellants out of enmity but the witness denied. Learned counsel for the appellants after going through the case diary vehemently argued that the witness did not disclose the name of any of the appellants before the police. In the Court, for the first time, they named the appellants out of enmity. Learned counsel for the State, however, could not be able to controvert the submission of learned counsel for the appellants after going through the record of the case. However, he submitted that disclosure of the name for the first time in Court is sufficient to convict the appellants. In this regard, it would be pertinent to mention herein that the appellants are neighbours of the informant, PW 2. Their houses are situated near the house of the informant. In such a situation, if their name was not disclosed at the earlier stage, disclosure of name by them in the Court, in our view, will be fatal to the prosecution case. Moreover, the Investigating Officer, who recorded their statement, has not been examined in this case which, in our view, has caused serious prejudice to the case of the defence. 8. PWs 2 & 13 also claimed to be eye-witnesses to the occurrence. PW 13 gave his fardbeyan at 9.30 p.m., but no case was instituted on his fardbeyan. The defence has brought the said fardbeyan on the record as Ext. A/1. In the fardbeyan, the witness PW 13 categorically stated that he had seen the occurrence of commission of dacoity but he did not identify any person. He admitted that the appellants are neighbours. In the Court, PW 13 reiterated that appellants were known and neighbours nd he stated in clear words that he did not recognise any culprit. PW 13 is none else but grand father of PW 2 the informant. PW 2 gave his fardbeyan in the Sadar Hospital, Arrah at 10.15 p.m. in which he named the appellants as participants thereof. The natural course was that if at all he had identified the appellants while committing dacoity, he would have disclosed the name of these appellants to the people collected there or inmates of the house including PW 13 but PW 2 has categorically stated in his evidence that many persons came at the place of occurrence b.ut he did not disclose about the occurrence to any one. The conduct of PW 2 on this ground itself creates suspicion about the veracity of disclosure of the names of the appellants. Moreover, from the evidence of PW 2 itself, it appears that there was enmity between the informant and the appellants from before. It has been disclosed by the witnesses that dacoity was committed in the house of one Jagdish Mishra who was own brother of grand father of PW 2 in which his father, the deceased, and witness Sanjay were made accused and appellant Deo Kishore Mishra was witness. There were other enmities which have been disclosed by PW 2. Therefore, apparently it appears that there was enmity between the informant and the appellants. The defence case is that they have falsely been implicated out of enmity. It has been admitted by PW 2 that on the day of occurrence, there was annual shradh in the house of Deo Kumar Mishra. DWs 1, 2 & 3 have been examined to show that these appellants were busy in the shradh at the relevant time of occurrence. Search was made in the house of the appellants but nothing mcrirninating article was found. PW 2 further stated in his evidence that he did not raise alarm when the dacoits came. In the circumstances as discussed above, it appears that the evidence of PW 2 is also not wholly trustworthy. If the Court would have come to the conclusion that evidence of PW 2 is wholly trustworthy then there was no difficulty in upholding the conviction of the appellants but since we have come to the conclusion that their evidence is not wholly trustworthy and there is no other evidence to corroborate his evidence, it is not safe to sustain the judgment and order of conviction and sentence. It would not be out of place to mention herein that mitialfardbeyan was of PW 13. Therefore, subsequent fardbeyan of PW 2 is hit by Section 162 of the Code of Criminal Procedure and the same cannot be treated as First Information Report. 9. Thus, on consideration as discussed above, we find that conviction and sentence awarded by the trial Court cannot be sustained. Accordingly, both the appeals are allowed. The judgment and order of conviction and sentence are hereby set aside. Appellant No. 1 Deo Kumar Mishra in Cr. Appeal No. 344/94 is in jail. 9. Thus, on consideration as discussed above, we find that conviction and sentence awarded by the trial Court cannot be sustained. Accordingly, both the appeals are allowed. The judgment and order of conviction and sentence are hereby set aside. Appellant No. 1 Deo Kumar Mishra in Cr. Appeal No. 344/94 is in jail. He is directed to be released forthwith if not required in any other case. The remaining appellants are discharged from the liability of their bail bonds.