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2006 DIGILAW 780 (PAT)

Jainandan Singh v. State Of Bihar

2006-08-30

CHANDRAMAULI KR.PRASAD, REKHA KUMARI

body2006
Judgment CHANDRAMAULI KR.PRASAD, J. 1. Both the appeals arise out of the same judgment and. as such, they were heard together and are being disposed of by this common judgment. 2. Appellants in both the appeals were charged for offence under Section 302/149 of the Indian Penal Code. VIth Additional Sessions Judge, Munger by judg ment dated 19th of January, 1988 passed in Sessions Case No. 199 of 1981/100 of l985 found them guilty of the said offence and sentenced them to undergo rigorous imprisonment for life. 3. Aggrieved by the same, appellants have preferred the appeals. 4. Prosecution started on the basis of a written report given by PW 1 Nageshwar Rabidas before the Deputy Superintendent of Police, Jamui on 17.11.1979. According to the prosecution, on 17.11.1979 at about 9.00 a.m. the informant and his father deceased Prabhu Rabidas were at their home in the village, the Assistant Sub-Inspector of Police of Laxmipur police station Raghunandan Jha (appellant No. 1 in Criminal Appeal No. 47 of 1988), Jainandan Singh armed with gun, Rajpati Singh with farsa, Adya Singh & Binod Singh armed with lathi (appellants in Criminal Appeal No. 38 of 1988), came to the village. According to the prosecution, the Assistant Sub-Inspector of Police and Jainandan Singh hurled abuse and enquired as to where is the informants father Prabhu Rabidas and he is to be taught a lesson as he had lodged complaint against them before the Sub-Divisional Officer. According to the report they are alleged to have stated them that when they did not hesitate to pick up their Advocate Parmeshwari Singh, they are of no consequence to them. On hearing the abuses, according to the report, his father Prabhu Rabidas (deceased), his younger brother Dhano Rabidas (PW 4) and mother Phuliya Devi (PW 2) came out from the house and enquired as to for what fault they are abusing them. Thereafter Jainandan Singh, Gauri Singh and the Assistant Sub-Inspector of Police ordered to catch hold of Prabhu Rabidas, whereupon Adya Singh and Binod Singh caught hold Prabhu Rabidas, tied his hands on his back with a rope and Rajpati Singh gave a farsa blow on his arm, as a result of which he fell down. It has been further alleged that two constables, Jainandan Singh and other accused persons also assaulted Prabhu Rabidas with butts of gun, lathi, farsa and also kicked him. It has been further alleged that two constables, Jainandan Singh and other accused persons also assaulted Prabhu Rabidas with butts of gun, lathi, farsa and also kicked him. According to the written report, the informant and his family members raised alarm, whereupon the witnesses Tarun Yadav, Durga Yadav, Kunti Devi, Kapil Rabidas, Mahadeo Rabidas (PW 5) and other villagers collected and saw the incident. In the written report it was also alleged that the aforesaid persons took away Prabhu Rabidas dragging and when informant and his family members protested they were threatened that they will face the same fate as Prabhu Rabidas. In the written report it was alleged that the informant as also his mother came to Jamui to inform the Deputy Superintendent of Police and Inspector of Police and stayed till 1.00 p.m., but they came to know that they are out of Jamui. In the written report informant apprehended that his father shall be killed by the aforesaid accused persons. After the aforesaid written statement there is further mention that the informant had received information from his aunt that his father had died. On the basis of the aforesaid information, Laxmipur P.S. Case No. 7 of 1979 under Sections 147, 148, 149 and 302 of the Indian Penal Code was registered against seven accused persons including the appellants and one Gauri Singh. 5. Police after investigation submitted charge-sheet against the appellants and they were ultimately committed to the Court of Sessions to face trial. During the trial they were charged of being the members of unlawful assembly and in pursuance of common object of such assembly committing the murder of Prabhu Rabidas punishable under Section 302/149 of the Indian Penal Code. Appellants refutted the charge and claimed to be tried. 6. Prosecution in support of its case had altogether examined six witnesses. Out of whom PW 3 Bindiya Devi and PW 6 Siya Devi have not supported the case of the prosecution and have been declared hostile. PW 1 Nageshwar Rabidas is the son of the deceased and informant of the case. PW 2 Fuliya Devi is the wife of the deceased. Out of whom PW 3 Bindiya Devi and PW 6 Siya Devi have not supported the case of the prosecution and have been declared hostile. PW 1 Nageshwar Rabidas is the son of the deceased and informant of the case. PW 2 Fuliya Devi is the wife of the deceased. PW 4 Dhano Rabidas is another son of the deceased and PW 5 Mahadeo Rabidas is another witness of the locality Neither the Investigating Officer nor the doctor who had conducted the post-mortem examination have been examined nor the postmortem report has been placed on record. 7. Appellants pleaded not guilty and claimed to have been falsely implicated in the case due to enmity. However, no defence witness has been examined. 8. PW 1 Nageshwar Rabidas has broadly supported the case of the prosecution in his evidence and stated that all the appellants variously armed came to the village and started abusing them threatening that they did not take much time to pick up Parmeshwar Singh, no time will be taken to pick up the deceased. According to this witness, his father protested, whereupon the Assistant Sub-Inspector of Police appellant Raghunandan Jha and appellant Jainandan Singh ordered to catch hold of the deceased, at which Adya Singh and Binod Singh tied his hands on the back and appellant Rajpati Singh assaulted him on his shoulder by farsa. Sustaining the injuries the deceased fell down, whereupon appellant Jainandan Singh assaulted him by butt of the gun on his waist and shoulder. According to his evidence, appellant Raghunandan Jha and the constables assaulted him by Rule and butt of the rifle respectively and the deceased became unconscious. Thereafter according to the prosecution, the Assistant Sub-Inspector of Police and constables of the home guard took him dragging. This witness had also stated that he and his family members followed them but when the constables threatened to kill them, they went to Jamui and gave written report to the Sub-Divisional Officer. In the cross-examination this witness has admitted previous enmity on account of land dispute between his family and the appellants. 9. PW 2 Fuliya Devi is the wife of the deceased and mother of the informant and in the deposition she has narrated the whole prosecution case as alleged, but no where stated that her husband was taken away by the appellants. 9. PW 2 Fuliya Devi is the wife of the deceased and mother of the informant and in the deposition she has narrated the whole prosecution case as alleged, but no where stated that her husband was taken away by the appellants. However, she had stated that her husband became unconscious while being taken away at the door of one Thakuri Yadav where from the Assistant Sub-Inspector of Police and constables put him on a bullock-cart and took him to the Police Station. According to this witness, her husband died on way to the Police Station. 10. PW 4 Dhano Rabidas, another son of the deceased, in his deposition had narrated the prosecution case as alleged, but according to this witness his father died in the hospital. 11. PW 5 Mahadeo Rabidas had also supported the case of the prosecution as alleged. He has stated in his evidence that he saw the accused persons, variously armed going towards the house of the deceased and when he went to the house of the deceased on hulla, he saw him fallen on ground with bleeding injuries. He had also stated that the Assistant Sub-Inspector of Police and constables were taking away the deceased dragging him. However, in his cross-examination he had admitted that he could not know the name of the police constables and the Assistant Sub-Inspector of Police till date. 12. The trial Court placing reliance on the evidence of PW 1 Nageshwar Rabidas, PW 2 Fuliya Devi, PW 4 Dhani Rabidas and PW 5 Mahadeo Rabidas held that the prosecution has been able to prove its case beyond all reasonable doubt and accordingly convicted and sentenced the appellants as above. 13. Mrs. Anjana Prakash, Senior Advocate, appears on behalf of the appellants in Criminal Appeal No. 38 of 1988, whereas appellants of Criminal Appeal No. 47 of 1988 are represented by Mr. Rana Pratap Singh, Senior Advocate. They contend that factum of death has not been proved. They submit that neither the post-mortem report has been brought on the record nor the doctor who had conducted the post-mortem examination has been examined. They contend that there is no evidence on record to show that the deceased had died or for that matter his dead body has been removed by the appellants. In absence thereof they contend that the conviction of the appellants can not be allowed to stand. They contend that there is no evidence on record to show that the deceased had died or for that matter his dead body has been removed by the appellants. In absence thereof they contend that the conviction of the appellants can not be allowed to stand. In support of their submission, reliance has been placed on a Division Bench judgment of this Court in the case of Shiva Balak Rai and Others V/s. State of Bihar. 1986 BLJR 782 : 1986 East Cr C 700 (Pat), and our attention has been drawn to paragraph 10 of the judgment, which reads as follows : True it is that the post-mortem report is available on the record of the trial Court. The post-mortem report has not been legally brought on the record as the doctor, who performed autopsy, was not examined. It. therefore, follows that there is no evidence before the Court to hold that Sanaullah Mian died as a result of the injuries caused to him by Lathi, Farsa and Spade. It further shows that there is no corroborative medical evidence in support of the oral allegations made against the appellants that they caused injuries to the deceased." 14. Mr. Lala Kailash Bihari Prasad. Additional Public Prosecution, submits that in bringing home the charge of offence under Section 302/149 of the Indian Penal Code, homicidal death has to be proved and he contends that the very suggestion made by the appellants that the deceased died else-where, clearly shows that the appellants have not disputed the factum of death. In this connection, he has drawn our attention to the suggestion made to PW 4 Dhano Rabidas in paragraph 5 of his cross-examination where he denied the suggestion that the deceased was killed else-where. 15. Having appreciated the rival submission, I find substance in the submission of the learned counsels for the appellants. 16. None of the witnesses examined in support of the case of the prosecution have seen the deceased being murdered in their presence. PW 1 Nageshwar Rabidas and PW 2 Fuliya Devi have stated in their evidence that after the assault the victim Prabhu Rabidas was taken away by the appellants dragging and they followed him to some distance, but thereafter retracted and went to Jamui. PW 1 Nageshwar Rabidas and PW 2 Fuliya Devi have stated in their evidence that after the assault the victim Prabhu Rabidas was taken away by the appellants dragging and they followed him to some distance, but thereafter retracted and went to Jamui. PW 2 Fuliya Devi had not seen the appellants murdering her husband and she had stated that at about 8.10 p.m. she learnt that her husband had died in the Police Station. PW 4 had stated in his evidence that the deceased died in the hospital. None of them have stated that the dead body of the deceased got disappeared by the appellants. Thus, there is nothing on the record either in the form of oral and documentary evidence that Prabhu Rabidas met a homicidal death. 17. It is well settled that a murder is merely a particular form of culpable homicide and for the offence of murder culpable homicide is sine qua non but not vice versa. In the absence of post-mortem report and the evidence of the doctor, who had conducted the post-mortem report and the witnesses examined not even saying that the deceased died on account of assault, it is difficult to hold that the deceased died homicidal death. In my opinion in the absence of proof of homicidal death, the conviction of the appellants cannot be allowed to stand. 18. Before I part with the case I must express my deep sense of anquish for the cavaliar manner in which the trial has been conducted. It is said that Court possesses wisdom to dig out truth, but this theory has its own limitation, I am certainly of the opinion that as few of the accused persons in the case are police personnel, nobody took interest to prosecute them honestly. At one point of time I was inclined to remit the matter back for trial of the appellant denovo but taking into account the fact that the occurrence had taken place on 17.11.1979, I am not inclined to charter that course. 19. As the prosecution has not been able to prove at all that the deceased died a homicidal death, I am constrained to set aside the impugned judgment of conviction and sentence. 20. In the result, the appeals are allowed and the judgment of conviction and sentence is set aside. Appellants are on bail. They shall be discharged of their bail bonds. 20. In the result, the appeals are allowed and the judgment of conviction and sentence is set aside. Appellants are on bail. They shall be discharged of their bail bonds. Rekha Kumari, J. 21 I agree.