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2007 DIGILAW 1405 (PAT)

Nageshwar Prasad v. State Of Bihar

2007-08-24

S.N.HUSSAIN

body2007
Judgment 1. Heard learned counsel for the petitioner and learned counsel for the State. Petitioner is an accused in Ekangarsarai (Telhara) P.S. Case No. 153 of 2004 for offences punishable under sections 302/34 of the Indian Penal Code as well as Sec. 27 of the Arms Act. 2. Prosecution case, in brief, is that the informant Rakesh Kumar was Munshi (Clerk) of the deceased Braj Ballabh Sahay who was owner of a brick-kiln and at about 11 P.M. on the date of occurrence, while he was going to sleep after taking his meal, he heard four gun shots sound coming from outside the office and when he came out he saw about ten persons armed with rifle and ammunition standing there. It is also stated that on seeing them the deceased tried to escape by entering into the hut of a labourer but the accused persons caught him, dragged him out of the hut, shot him dead and fled away. Reasons of the occurrence as stated in the fardbeyan are that there was a dispute with respect to a Mandir in which the deceased had actively participated and that one Jamun Mahto was inimical to him. Four accused persons were named including the aforesaid Jamun Mahto while the names of remaining seven accused persons were not known to the informant. 3. The date of occurrence is said to be 17.6.2004, whereas, F.I.R. was lodged on 18.6.2004 and subsequently during investigation petitioner Nageshwar Prasad, son of Dahu Mahto was found to be one of the accused persons from the statements of several witnesses to the occurrence. Immediately thereafter, the petitioner filed a petition for anticipatory bail which was rejected by the learned Sessions Judge, Nalanda, on 11.10.2004 after finding that there were sufficient materials to show his complicity in the alleged occurrence. 4. Thereafter, the petitioner remained absconding and about two years thereafter the petitioner approached this court for anticipatory bail by filing Cr. Misc. No. 28480 of 2006, but on 19.7.2006 after some argument learned counsel for the petitioner expressed his desire to withdraw the case, obviously for surrendering in the court below and accordingly the said petition was dismissed as withdrawn. 5. Strangely enough less than three months thereafter another petition for anticipatory bail bearing Cr. Misc. Misc. No. 28480 of 2006, but on 19.7.2006 after some argument learned counsel for the petitioner expressed his desire to withdraw the case, obviously for surrendering in the court below and accordingly the said petition was dismissed as withdrawn. 5. Strangely enough less than three months thereafter another petition for anticipatory bail bearing Cr. Misc. No. 42424 of 2006 was filed on behalf of the petitioner on 9.10.2006 with a plea that the petitioner is an old man suffering from several ailments. Having found no sufficient ground to pass any order other than the order passed in the earlier petition for anticipatory bail, this case was also dismissed by this Court on 18.10.2006, but with an observation that if the petitioner surrenders in the court below and prays for bail, the learned court below will decide it on that very date. 6. The said order of this Court was challenged by the petitioner vide Criminal Appeal Nos. 786 and 787 of 2007 and by order dated 14.5.2007 the Hon ble Supreme Court was pleased to set aside the orders of this Court and allowed the appeals with the following directions: "We are of the opinion that keeping in view the peculiar facts and circumstances of this case, interest of justice would be sub-served if the High Court is requested to consider the matter afresh on merits. The High Court before passing the order may call for the case diaries of both the cases from the Police and the C.I.D. and pass appropriate orders. We request the High Court to consider the desirability of disposing of the matter as expeditiously as possible." 7. The said order of the Hon ble Supreme Court was sent to this Court vide letter dated 3.7.2007 whereafter this Court vide order dated 13.7.2007 called for the case diaries of both the cases from the police as well as from the C.I.D. by special messenger and a supplementary affidavit was filed on behalf of the petitioner on 2.8.2007. Although after receipt of the required case diaries, this case was listed at serial no. Although after receipt of the required case diaries, this case was listed at serial no. 747, but in view of the order of the Hon ble Apex Court, the case was directed by order dated 8.8.2007 to be listed at the top of the list of the same heading on 13.8.2007 and after some adjournments to enable learned Additional Public Prosecutor as well as the learned counsel for the petitioner to peruse the case diaries, the case was finally heard. 8. The claim of the petitioner is that from 15.6.2004 to 19.6.2004 he was hospitalised at Pratapganj (Supaul) and hence there was no question of his involvement in the alleged occurrence dated 17.6.2004 as has been noted in paragraph 6 of the supplementary case diary and that the C.I.D., after taking over the case from the District Police and after completing the investigation, found that the crime had been committed by Peoples War Group and submitted final report with respect to the petitioner and other accused persons on 30.9.2005. It is further stated that the petitioner is aged about 76 years and had undergone eye operation about nine years ago which was not successful. 9. The claims of most of the accused persons are based on alibi and out of them the claim of the petitioner is that he was hospitalised from 15.6.2004 to 19.6.2004 in a remote and little known hospital at village Pratapganj in the district of Supaul although he is a resident of village Narainpur in the District of Nalanda, whereas, the place of occurrence is village Teka Bigha Tand in the district of Nalanda, where there are better places for treatment. Furthermore, in support of his claim the petitioner has produced merely a certificate of a general Physician of village Pratapganj (Supaul) dated 9.6.2004 (Annexure 3) which showed that he was having only diarrhoea, nausea and pain in abdomen which falsifies his statement that he was hospitalised during that period. Thus, the said alibi does not inspire confidence at this stage and has to be verified during trial. 10. Thus, the said alibi does not inspire confidence at this stage and has to be verified during trial. 10. The aforementioned case was initially investigated by the District Police of Nalanda which found the allegations against the four named and seven unnamed accused persons of the F.I.R. including the petitioner to be true on the basis of the statements of the eye witnesses as well as the statements of other witnesses which were circumstantial evidence and also the clear case of enmity between the parties. Subsequently on the order of the Director General of Police the investigation of the case was taken up by the C.I.D. and during its investigation two witnesses allegedly said that they did not recognise the assailants. On the said ground and also on the assumptions that the murder was committed by members of Peoples War Group, as per the report published in the daily newspaper Dainik Jagran in which the Group claimed responsibility for the same and that the accused persons were implicated due to previous enmity, the C.I.D. held the case to be false and submitted its report accordingly. 11. If there was a previous enmity between the parties, it equally can be the reason for the murder, specially when there is absolutely no reliable evidence to show that the murder was committed by any extremist organisation and on the basis of a mere newspaper report such presumption cannot be held to be valid. No doubt, some witnesses have subsequently denied recognising the assailants, but nonetheless there are several other witnesses, who have fully supported the prosecution at every stage. Statement of an eye witness Mahendra Singh is mentioned in paragraph 7 of the case diary, which is supported by other witnesses in paragraphs 12, 14 and 15 of the Police case diary and they never changed their statements. All of them specifically named the petitioner as one of the assailants. Furthermore, the post mortem report in paragraph 53 of the case diary shows that the deceased was brutally murdered by inflicting ten injuries. Hence, complicity of the petitioner cannot be prima facie discarded at this stage in view of the materials on record. 12. The aforesaid aspects of the matter are quite apparent from the case diary of the C.I.D. as well as the case diary of the District Police also. Hence, complicity of the petitioner cannot be prima facie discarded at this stage in view of the materials on record. 12. The aforesaid aspects of the matter are quite apparent from the case diary of the C.I.D. as well as the case diary of the District Police also. Considering the entire facts and circumstances of the case as aforesaid as well as the reports of the District Police and the C.I.D., the Director General of Police by his order dated 22.7.2006 (Annexure 11) concluded that the case be charge-sheeted against four named and seven unnamed accused persons for offences punishable under sections 302/34 of the Indian Penal Code as well as Sec. 27 of the Arms Act. The learned court below has also taken cognizance of the offences against the accused persons including the petitioner after rejecting the final report submitted by the C.I.D. 13. So far the question of the alleged ailment of the petitioner is concerned, this matter of anticipatory bail has to be considered on merits only as per the above-mentioned order of Hon ble the Apex Court. However, the petitioner has produced some prescriptions of 2005 and reports of NCCT and CECT (Non-Ionic) show that both cerebral hemispheres were normal, both basal gangila, internal capsules and thalami were normal, venticular system and basal cisterns were also normal, brain stem and cerebellum were normal and no abnormal parenchymal or meningeal enhancement was noted nor any mass effect or midline shift was seen, nor any focal lesion was seen and the petitioner had the only problem of drooping eyelid. These documents do not show any serious ailment nor any fresh prescription or certificate has been filed on behalf of the petitioner. Hence, this plea of the petitioner is also not tenable. 14. In the aforesaid facts and circumstances, I do not find any merit in this petition for anticipatory bail, which is, accordingly, dismissed.