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2001 DIGILAW 555 (PAT)

Babulal Singh v. State Of Bihar

2001-07-10

AFTAB ALAM

body2001
Judgment Aftab Alam, J. 1. This appeal was filed about 14 years ago at the instance of 12 appellants. The order dated 1.8.1997 passed in the appeal took note of the fact that appellant No. 1 (Babulal Singh) and appellant No. 7 (Suraj Singh) were dead. The heirs of the deceased appellants did not come forward to prosecute the appeal and hence, the appeal in so far as the deceased appellants 1 and 7 were concerned stood abated. 2. This appeal is directed against judgment and order, dated 17.11.1987 passed by the 1st Additional Sessions Judge, Saharsa in Sessions Case No. 113/78. By the judgment and order coming under appeal all the 12 accused before the trial Court (including the ten appellants) were convicted under Section 396 of the Penal Code and were sentenced to undergo rigorous imprisonment for ten years. 3. The prosecution case was instituted on the basis of the fardbeyan of one Pavitra Tanti (PW 9) recorded at Salkhua PS on 4.4.1972 at 8 a.m. The fardbeyan was later forwarded to Bak hitiarpur PS where a formal FIR (Ext. 1) was drawn up and a case was instituted under Sections 147 148, 149, 323, 324, 448 and 380 of the Penal Code. Sometime later, one Tuntun Tanti. who had received injuries in that occurrence is said to have died which led to the addition of Section 396 of the Penal Code in the case. According to the prosecution case, as stated in the fardbeyan of Pavitra Tanti at about 10 in the night of April 3, 1972, 50-60 persons armed with lathi, bhala, gun, farsa, gandasa raided the house of the informant. Outside the house accused assaulted Tuno @ Tuntun Tanti, Shiva Tanti and Baldeo Tanti with lathi and bhala and caused serious injuries to them and then the accused entered into the houses of the informant, Nanhuk Tanti and Geni Lal Tanti and carried away some cash, ornaments and a number of house hold articles enumerated in the fardbeyan. 4. Outside the house accused assaulted Tuno @ Tuntun Tanti, Shiva Tanti and Baldeo Tanti with lathi and bhala and caused serious injuries to them and then the accused entered into the houses of the informant, Nanhuk Tanti and Geni Lal Tanti and carried away some cash, ornaments and a number of house hold articles enumerated in the fardbeyan. 4. The informant claimed that among the accused he was able to identify Adhik Singh, Sitaram Singh, Babu Lal Singh (deceased appellant No. 1), Rameshwar Singh (appellant No. 2), Yugal Singh (appellant No. 3), Guli @ Kishandeo Singh (appellant No. 4), Gongu Singh @ Mahendra Singh, Sarabh Singh (appellant No. 5), Suraj Singh (deceased appellant No. 7), Ram Nandan Singh (appellant No. 8), Nebi Singh (appellant No. 6), Ram Bahadur Singh, Naso Singh, Ram Sohan Singh (appellant No. 10) Bishundeo Singh (appellant No. 11) and Shiva Balak Singh (appellant No. 12). 5. Then speaking about the motive behind the alleged assault and the dacoity, the informant said that murder of one Karo Singh had taken place 7-8 years before this occurrence. The criminal case arising from the murder of Kari Singh had been opened in the Munger Court. In that case the present informant and 12 others were the accused and all the accused in this case, excepting appellant Nos. 3 and 12 were witnesses for the prosecution. The next date in that trial was 10.4.1972. The fardbeyan then went on to name certain persons as witnesses of the alleged occurrence. 6. The Police after investigation submitted charge-sheet. In the charge-sheet five accused persons namely Adhik Singh, Sitaram Singh, Rameshwar Singh, Gongu Singh @ Mahendra Singh and Jaso Singh were shown as absconding. Three others namely Nehori Singh, Padarath Singh, Ram Bilash Singh were not sent up for trial and the remaining 12 accused who were in custody were sent up for trial. The 12 accused who were sent up for trial included Prasidh Singh (appellant No. 9) though his name was not mentioned by the informant in his fardbeyan. How and at what stage the name of appellant No. 9 came to figure in this case is not clear from the materials on record. It is also not clear how and at what stage the names of Nehori Singh, Padarath Singh and Ram Bilash Singh figured in the case and why were they not sent up for trial by the police. It is also not clear how and at what stage the names of Nehori Singh, Padarath Singh and Ram Bilash Singh figured in the case and why were they not sent up for trial by the police. 7. The case was committed to the Court of Sessions by order, dated 20.5.1978 passed by the SDJM, Saharsa and finally the appellants were made to face the trial on a single charge under Section 396 of the Penal Code. 8. The prosecution examined as many as 15 witnesses. PWs 1 (Sugriw Rai), 2 (Bambhola Lal Das), 11 (Basudeo Tanti) and 15 (Kartik Prasad Singh) were purely formal PW 1 identified the First Information Report which was marked as Ext. 1, PW 2 identified the protest petition filed by the informant which was marked as Ext. 2 PW 11 submitted before the court the Pass Book which was marked as "X" for identification and PW 15 identified carbon copies of the injuries reports of Shiva Tanti (Ext. 4) and Baldeo Tanti (Ext. 4/1) PWs 5 (Bandelal Tanti), 7 (Geni Lal Tanti), 8 (Naini Lal Tanti), 10 (Kaleshwar Choudhary), 13 (Mahendra Choudhary) were tendered for cross-examination. PW 14 did not support the prosecution case and was declared hostile. The remaining witnesses, that is to say, FWs 3 (Nanku Tanti), 4 (Ramji Choudhary), 6 (Baudho Tanti), 9 (Pavitra Tanti, the informant) and 12 (Rupan Tanti) claimed to be eye-witnesses of the occurrence. Of them PWs 4 (Ramji Choudhary) and 6 (Baudho Tanti) were not named in the FIR. This leaves in reckoning PWs 3 Nanku Tanti, who is the brother of the informant, PW 9 who is the informant and PW 12 who is the cousin of the informant. 9. As against this it is significant to note whom the prosecution failed to examine and what it did not produce before the court; neither the Investigating Officer nor the Doctor(s) who examined Tuntun Tanti or conducted post-mortem on his body were examined as witnesses nor was the post-mortem report of Tuntun Tanti produced in court. The omission to examine the Investigating Officer and the Doctor (s) and the failure to produce the post-mortem report of Tuntun Tanti appears to have seriously weakened the prosecution case. 10. At this stage it would be proper to indicate certain broad features of this case in the light of which the prosecution case is to be tested. 11. The omission to examine the Investigating Officer and the Doctor (s) and the failure to produce the post-mortem report of Tuntun Tanti appears to have seriously weakened the prosecution case. 10. At this stage it would be proper to indicate certain broad features of this case in the light of which the prosecution case is to be tested. 11. It is an admitted position that there was a long history of hostilities between the informant and the member of the prosecution party on the one hand and the accused-appellants on the other hands. This fact is not only indicated in the fardbeyan itself but witness after witness including the informant PW 9 himself, admitted this position. In the statements of prosecution witnesses there are references to many cases between the two sides. In paragraph 5 of the deposition of the informant PW 9 there is reference to atleast three cases. One is the murder trial of Kapildeo Singh in which the informant and number of prosecution witnesses were the accused and the accused appellants in this case were the prosecution witnesses. The murder trial of Kapildeo Singh had opened at that time and the next date fixed in the trial was April 10, 1972, when this occurrence took place in the night of April 3. 1972. In that situation it is difficult to imagine any motive for the accused- appellants in this case (who were the prosecution witnesses in the murder trial of Kapildeo Singh) to commit dacoity in the house of the informant and his other family members who were the accused in the murder trial of Kapildeo Singh but there seems to be sufficient motive for the informant to falsely implicate the accused who were about to depose against him in a murder trial in a case of dacoity committed by some unknown culprits. 12. Then there was a proceeding under Section 145 of the Cr PC over a piece of land in which the final order was passed in favour of one of the accused and against the informant. 13. Apart from these two cases there is also a reference to a case of dacoity instituted by one of the accused in which the informant and other prosecution members were named as accused. 14. Having regard to the history of act in hostilities between the two sides, the chances of false implication cannot be absolutely ruled out. 13. Apart from these two cases there is also a reference to a case of dacoity instituted by one of the accused in which the informant and other prosecution members were named as accused. 14. Having regard to the history of act in hostilities between the two sides, the chances of false implication cannot be absolutely ruled out. 15. Coupled with this is the circumstance that certain persons who were not named in the fardbeyan were later added in the category of accused. For example, Prasid Singh (appellant No. 9) and others who though later added accused were not sent up for trial in the charge-sheet submitted by the police. This is indicative of the fact at the time of investigation the prosecution party was above wrongly naming some persons as accused. 16. In this background the non-examination of Investigating Officer and the Doctor (s) and the failure to produce the medical report assumes greater significance. Appellants were completely denied the opportunity to take benefit of any omissions or contradictions in the statement of prosecution witnesses made before the court and before Investigating Officer. Though not admissible evidence, from the case diary it appears that Investigating Officer had not found any objective sign indicative of the commission of the dacoity in the house of the informant. Had the Investigating Officer examined appellants would have got this fact formally brought on record before the court and derived full advantages from it. It therefore, appears to me that the appellants in this case were seriously prejudiced by the non-examination of the Investigating Officer and the Doctor(s) and the non-production of the post-mortem report. 17. In these facts and circumstances of the case I feel that it will not be wholly safe to sustain conviction of the appellants. The appellants might have been the culprits committing the offence as alleged by the prosecution but whether they were in fact the culprits is the question and there is a legal gap between might have been and were which, in this case, the prosecution is unable to cover. 18. I would, therefore, consider it more prudent to give the appellants the benefit of doubt and to hold that the prosecution failed to bring home the charge of Section 396 against the appellant, I, accordingly, set aside the judgment and order passed by the trial Court and acquit the appellants of the charge. 18. I would, therefore, consider it more prudent to give the appellants the benefit of doubt and to hold that the prosecution failed to bring home the charge of Section 396 against the appellant, I, accordingly, set aside the judgment and order passed by the trial Court and acquit the appellants of the charge. The appellants are discharged from the bail bonds submitted by them. 19. In the result, this appeal is allowed.