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2008 DIGILAW 911 (PAT)

State Of Bihar v. Sanjay Tiwary

2008-07-10

ABHIJIT SINHA, SHIVA KIRTI SINGH

body2008
Judgment Shiva Kirti Singh and Abhijit Sinha JJ. 1. Although Government Appeal No. 11 of 2006 has been heard along with Death Reference and Criminal Appeal in respect of conviction and grant of death sentence to accused, Sanjay Tiwari, the judgment of acquittal relates to acquittal of nine co-accused by a separate judgment dated 9th of May, 2006 whereas accused, Sanjay Tiwari has been convicted by another judgment dated 4th of November, 2006. However, the oral evidence is same because the trial of Sanjay Tiwary had to be separated when he absconded at the stage of recording of his Statement under Section 313 Cr.P.C. His trial could make further progress when he was apprehended and remanded in this case after a few months. The only difference in respect of evidence in the two trials is availability of certain documentary evidence against Sanjay Tiwary which have been taken on record after the acquittal of other co-accused persons. Those documents are exhibits-14 and 15 series. Appellant, Sanjay Tiwary has been convicted for the offence under Section 302/34 and some other Sections of the IPC and has been inflicted with death penalty on the basis of evidence which will be indicated later which is available only against him and has no incriminating effect upon other co-accused who have been tried separately and acquitted. 2. The prosecution case as disclosed in the fardbeyan, Exhibit-4 which is the basis of First Information Report, Exhibit-8 discloses that the informant who is an employee of deceased, Nalinikant Agrawal along with another employee had gone in the usual evening hours of 19.10.2003 to deposit the sale proceeds of the petrol pump belonging to the deceased at his residence. There he found the gate of the house locked from inside. It was opened after some time by one of the domestic servants and gradually the informant learnt that some unknown criminals had entered into the house in that evening and after tying the domestic servants and a security guard provided by the police they had committed murder of the deceased, Nalinikant Agrawal and his wife in two different rooms of the house by sharp cutting instrument and had also removed articles from the house. The miscreants had managed to escape by forcibly unhinging the door plank of the door at the back of the house. The Fardbeyan was against unknown persons. The miscreants had managed to escape by forcibly unhinging the door plank of the door at the back of the house. The Fardbeyan was against unknown persons. Such gruesome murder of two aged persons in their house in the town of Bhabhua appears to have evoked some special reaction of police authorities. The Fardbeyan was recorded by Officer-in-Charge of Bhabhua P.S., Pankaj Kumar Das, P.W. 15. The Superintendent of Police, however, entrusted the investigation to Shambhu Nath Jha, Inspector of CID at Rohtas, PW-18 and the Officer-in-charge of Kudra P.S., Pawan Kumar Singh, PW-17 was deputed to assist the I.O. in investigation. It further appears that a Dog squad and experts of Finger Print Bureau, Patna were summoned who inspected the place of occurrence for finger prints and lifted several chance finger prints at the place of occurrence. In course of investigation police came to the opinion that some dissatisfied employees of the petrol pump belonging to the deceased, Nalinikant Agrawal and some other persons having greedy eyes upon his property had conspired and taken the help of some other criminals in organizing murder of the two victims whose son had already been murdered in the same town a few years earlier and whose daughters were married and lived away at different places. According to the I.O., on the materials collected during investigation some of the accused persons were arrested and eleven of them including the appellant, Sanjay Tiwary made their confessional statements before the I.O. which he claims to have recorded and which have been marked as Exhibit-10 and 10 series. Of course, the accused persons retracted from their confessions and no confessions were made either before the Judicial Magistrate or before trial court. After investigation charge sheet was submitted by the police in which the acquitted accused persons and appellant, Sanjay Tiwary pleaded not guilty to the charges and hence they were put on trial. 3. The prosecution in order to establish the charges examined altogether 22 witnesses but none of the material witnesses such as PWs-1 to 13 supported the prosecution case. They all including the informant, Baban Lal (PW-3) were declared hostile. PW-14, Dr. Ajay Kumar Manjhi and PW-16, Dr. Kaushal Kishore Prasad Srivastava are the doctors who conducted the post mortem examination of the dead bodies. PW-15, Pankaj Kumar Das, as noticed earlier recorded the Fardbeyan of the informant. They all including the informant, Baban Lal (PW-3) were declared hostile. PW-14, Dr. Ajay Kumar Manjhi and PW-16, Dr. Kaushal Kishore Prasad Srivastava are the doctors who conducted the post mortem examination of the dead bodies. PW-15, Pankaj Kumar Das, as noticed earlier recorded the Fardbeyan of the informant. PW-17, Pawan Kumar Singh is a police official who was associated with the Investigating Officer in the investigation of the case. He is also said to have obtained finger prints of all the accused persons for the purpose of this case. PW-18, Shambhu Nath Jha is the Investigating Officer. PW-19, Dr. Sudhir was also a doctor of the team which conducted the autopsy on dead bodies. PW-20, Sunil Agrawal is a relative and an employee of deceased, Nalinikant Agrawal. PW-21, Arun Kumar Sharma, a constable was the bodyguard of the deceased, Nalinikant Agrawal and PW-22, Punit Singh is a formal witness who brought the material exhibits in the court. PW-20 and 21 have not named any of the accused persons and are of no help to the prosecution. 4. The trial court after considering the entire materials produced during trial found that all the material witnesses have turned hostile and therefore it found no legal evidence to connect the nine acquitted accused with the offence in question and hence recorded their acquittal by the earlier judgment dated 9th May, 2006. On behalf of State no material could be shown to us which could form the basis to connect the acquitted accused with the offence. Only against accused, Ram Sevak Yadav, respondent No. 6. it was pointed out that in his confessional statement (Exhibit-10) he had disclosed to the I.O. that accused, Sanjay Tiwary had met him on 24.10.2003 and had informed him that he had deposited a some of Rs. 3 lacs out of the looted money, in the ADB branch of State Bank on that very day and he would distribute the booty after the situation became normal and this fact could be verified by conducting a raid in the house or in the bank. 5. 3 lacs out of the looted money, in the ADB branch of State Bank on that very day and he would distribute the booty after the situation became normal and this fact could be verified by conducting a raid in the house or in the bank. 5. On considering the aforesaid submission of learned Counsel for the State we find that the alleged confession by Respondent, Ram Sevak Yadav (Exhibit-10) was admittedly before the police while he was in custody as an accused and hence only a limited part of that confession can be admissible under Section 27 of the Evidence Act. In that view of the matter it is not possible to fasten the guilt of participating in the occurrence against Respondent No. 6, Ram Sevak Yadav on the basis of his alleged confession in Exhibit-10. Besides that there is no other material against Respondent No. 6 or any other respondent in Government Appeal No. 11 of 2006. In that view of the matter we are constrained to hold that the Government Appeal has no merit and it is accordingly dismissed. 6. Coming to the Death Reference in respect of accused Sanjay Tiwary and the Criminal Appeal against his conviction, it is found that there are two sets of circumstances available against this appellant. As per prosecution case noticed earlier, a co-accused, Ram Sevak Yadav had allegedly made a confessional statement before the I.O. contained in Exhibit-10 disclosing that Sanjay Tiwary had informed Ram Sevak Yadav regarding deposit of Rs. 3 Lacs out of looted money in his account in ADB Branch of State Bank and this fact could be verified by conducting a raid in the house of Sanjay Tiwary or in the concerned bank. According to the prosecution case, in view of such disclosure made by co-accused, Ram Sevak Yadav the house of the appellant, Sanjay Tiwary was raided by the police. As per evidence of PW-17, Pawan Kumar Singh, a police official, on the basis of statement of some of the accused persons the involvement of Sanjay Tiwary came to light and his house was raided from where one pass book of State Bank of India, Bhabhua was seized in which there was a deposit of about Rs. 3 Lacs and the same has been deposited after 5 to 6 days of the occurrence. 3 Lacs and the same has been deposited after 5 to 6 days of the occurrence. But from the evidence of the I.O. PW-18, Shambhu Nath Jha it is clear that during investigation he had recorded confessional statement of Ram Sevak Yadav and he proved the same as Exhibit-10. He has claimed in Paragraph-17 of his deposition that during investigation he searched the house of Sanjay Tiwary on the basis of confessional statement of Ram Sevak Yadav in presence of independent witnesses and in course of search a pass book of State Bank of India, ADB, Bhabhua bearing No. 5184 was seized which showed that Rs. 3 Lacs had been deposited on 27.10.2003. He proved the seized pass book as Exhibit-11. 7. The other circumstance which subsequently came on record after the trial of Sanjay Tiwary was separated, consists of documentary evidence in the form of Exhibit-14, a report of Government finger print expert dated 12.8.2006 and finger prints of Sanjay Tiwari contained in Exhibit-15 and 15 series. According to report of Finger Print Bureau, Criminal Investigation Department, Patna, Bihar, in respect of reference of Finger Print Bureau-F.P.B 22-L/2003 sent by Superintendent of Police, Kaimur at Bhabhua in Bhabhua Town P.S. Case No. 298/03 dated 19.10.2003, the chance finger print marked "K" found on the sun mica of extra table kept in the computer room situated to the north of inner courtyard of place of occurrence in connection with the aforesaid Bhabhua P.S. Case resembles to the specimen finger print marked "XI" which is said to be mark of the left thumb of accused Sanjay Tiwary. The points of identification have been marked on their enlarged photographs and are enumerated in the report signed by Mr. Dina Nath Chaubey, Chief State Examiner-cum-Director, Finger Print Bureau, CID, Bihar, Patna on 12.8.2006. The specimen finger print marked "XI" appears on Exhibit-15. That document further shows an endorsement that the finger prints were of accused, Sanjay Tiwary in respect of Bhabhua P.S. Case No. 298/2003 dated 19.10.2003. Such endorsement is at both the sheets of that exhibit and on the last sheet there is official stamp of Sri. D.K. Mishra, Judicial Magistrate, Ist Class, Bhabhua, Bihar who appears to have signed in support of such endorsement on 24.2.2005. Learned Chief Judicial Magistrate has granted permission for taking finger prints of Sanjay Tiwary on 23.2.2005. 8. Such endorsement is at both the sheets of that exhibit and on the last sheet there is official stamp of Sri. D.K. Mishra, Judicial Magistrate, Ist Class, Bhabhua, Bihar who appears to have signed in support of such endorsement on 24.2.2005. Learned Chief Judicial Magistrate has granted permission for taking finger prints of Sanjay Tiwary on 23.2.2005. 8. Besides the aforesaid two circumstances the learned trial court has also taken into consideration the fact that appellant, Sanjay Tiwary was absconding from the date of the alleged occurrence and even on the date police official raided his house and seized a pass book. The fact that this appellant again absconded at the time of statement under Section 313 Cr.P.C. and remained at large for 7 to 8 months has also been taken into consideration as a circumstance against, Sanjay Tiwary. The relevant dates in this regard may be usefully noticed here. Appellant Sanjay Tiwary is said to have surrendered in this case on 20.2.2004. He was released on bail on 26.4.2005 and on account of his having absconded on 27.10.2005 his bail was cancelled and he could again be taken into custody on 3.5.2006 and thereafter his trial proceeded separately because by then the trial of other co-accused has already ended in acquittal. From the records it is clear that Exhibits-14-15 series were filed before the trial court by the prosecution on 17.8.2006 when the statement of accused Sanjay Tiwary under Section 313 Cr.P.C. had already been recorded on 10.7.2007. The order sheet further shows that on 18.8.2006 Additional P.P. filed a petition under Section 311 Cr.P.C. along with Hajri and that petition was considered and rejected on 30.8.2006 on account of opposition by the defence that the petition by APP was at a belated stage and would delay the disposal of the case. 9. A perusal of the aforesaid petition under Section 311 Cr.P.C. shows that the APP wanted to examine one Manoj Kumar as a witness on the ground that he had recorded a video cassette which had already been exhibited in the case. It appears that the said video cassette has been marked as material exhibit "I" and according to evidence of the I.O. it contains confessional statement of Bansi Bind and Birendra Bind recorded in the presence of S.P. and District Magistrate of Kaimur (Bhabhua). It appears that the said video cassette has been marked as material exhibit "I" and according to evidence of the I.O. it contains confessional statement of Bansi Bind and Birendra Bind recorded in the presence of S.P. and District Magistrate of Kaimur (Bhabhua). After rejecting the aforesaid petition under Section 311 Cr.P.C. on 2.11.2006, when the case was called out for argument, the report from Finger Print Bureau, CID, Bihar, Patna and thumb impressions and photographs were marked as Exhibit-14 and 15 series. The order sheet or those exhibits do not show that any objection was raised on behalf of the defence to the marking of those documents as exhibits but the list of exhibits shows that these were marked as exhibits with objection of the defence. That list of exhibits bears the signature of the trial court and on that basis it has been submitted on behalf of the Sanjay Tiwary that Exhibits 14 and 15 Series have wrongly been taken into consideration as documentary evidence by holding them to be public documents when there was objection raised by the defence. 10. A number of submissions have been advanced on behalf of Sanjay Tiwary particularly in relation to collection of finger prints from the place of occurrence and forwarding of the same to the Finger Print Bureau as well as to the collection of specimen thumb impression of this appellant said to have taken in presence of a Magistrate and its forwarding to the Finger Print Bureau. On these issues the evidence of the police officials examined as PWs-15, 17 and 18 are relevant but it would not be proper to go into details of such submissions at this stage before we consider the two major submissions raised on behalf of Sanjay Tiwary. These submissions are: (1) the report of the finger print expert and the finger prints contained in Exhibits 14 and 15 series should not have been taken on record as Exhibits without proof in view of objection raised by the defence and (2) the aforesaid exhibits as circumstances appearing against the appellant as well as the circumstance that he had absconded on two occasions as considered by the trial court were not put to this accused in course of his examination under Section 313 Cr.P.C. 11. According to learned Counsel for the appellant Sanjay Tiwary, Section 294 of the Code of Criminal Procedure provides for waving formal proof of certain documents when the genuineness of such documents is not disputed but since in the present case the exhibit list shows that objection was raised in respect of Exhibits-14 and 15 series, the court should have required these documents to be proved by the competent expert and the person who took the photographs of chance finger prints and obtained finger prints and thumb impressions of the appellant. 12. On the other hand learned Counsel for the State and learned Counsel appearing for daughter of the deceased (since the informant turned hostile the counsel representing daughter of the deceased was permitted to address the court) submitted that Section 294 of the Cr.P.C. is general provision in respect of general documents whereas Section 293 of the Cr.P.C specifically relates to reports of certain Government Scientific Expert and it provides for use of any documents purporting to be a report under the hand of a Government Scientific Expert to whom this section applies, in relation to any matter or thing duly submitted to him for examination or analysis, as evidence in any proceeding under the Code of Criminal Procedure and hence Exhibit-14 being a report of such scientific expert and the related photographs and specimen being part of such report were rightly used by the trial court as evidence in the trial without any formal or other proof of such report or document. It was highlighted that under Sub-section-2 of Section 293 it is the discretion of the court to summon and examine any such expert if it thinks fit to issue summons for examination of such expert and since in this case the trial court did not find any good reason to summon and examine the finger print expert, there was no illegality in using the report of the expert relating to finger prints as evidence in the trial. 13. Exhibit-14 and the documents submitted therewith contained not only the report of the finger print expert but also photographs of finger prints allegedly taken at the place of occurrence as well as specimen finger prints of the appellant. 13. Exhibit-14 and the documents submitted therewith contained not only the report of the finger print expert but also photographs of finger prints allegedly taken at the place of occurrence as well as specimen finger prints of the appellant. When there was objection to admission of such documents on behalf of the accused-appellant, the trial court had to be careful in exercise of its power under Section 293 and there was a requirement to be satisfied that the report was in respect of matter or things "duly submitted" to the expert for examination/analysis and report. In view of objection raised by the accused, the trial court, in the facts of the case ought to have summoned the expert and examined him to be satisfied that the photographs and specimen etc had been duly submitted to the Finger Print Bureau and such expert should have been examined not only to satisfy the court but also to meet the objection raised on behalf of the accused to taking of such documents on record as documentary evidence. Apparently, the trial court has erred in not applying its mind to such aspect of the matter and in ignoring the objection of the accused to admission of Exhibits-14 and 15 series as documentary evidence. The error of the trial court needs to be corrected. 14. The second issue raised on behalf of the appellant, Sanjay Tiwary that his examination under Section 313 Cr.P.C. was conducted prior to admitting Exhibits-14 and 15 series in evidence and these circumstances could not be explained by him also appears to have substance. It is further found that the trial court failed to perform its duty under Section 313 Cr.P.C in a proper manner because of its failure to put all the circumstances appearing against the accused Sanjay Tiwary for any possible explanation. Particularly, the circumstance that he had absconded at the initial stage of investigation and also at the later stage needed to be put to this accused in clear terms. This failure of the trial court also needs to be corrected. 15. Particularly, the circumstance that he had absconded at the initial stage of investigation and also at the later stage needed to be put to this accused in clear terms. This failure of the trial court also needs to be corrected. 15. In view of the aforesaid discussions and findings, we are called upon to decide what should be the proper course of action for this Court when it has been found that the trial court has itself erred in not summoning the finger print expert and in not examining the accused properly under Section 313 Cr.P.C. On behalf of State and on behalf of daughter of the two deceased it has been submitted that both the aforesaid lapses noticed by this Court are failures on the part of the trial court itself and not latches on the part of the prosecution and hence the objection on behalf of the accused-appellant that the matter should not be remanded for filling up lacunae in the prosecution case has no application in the facts of the case and the matter is fit either for ordering additional evidence of expert and re-examination of the accused under Section 313 Cr.P.C or to be sent down for limited retrial to cure the errors of the trial court by examining the expert and by further examination of the accused-appellant. In other words, they have prayed for exercise of power by this appellate court under Section 391 of the Code of Criminal Procedure so that further evidence may be brought on record under directions of this Court and in the alternative it was also submitted on behalf of the State and learned Counsel for the daughter of the two deceased that the case may be sent down for retrial in order to do justice to both the prosecution as well as the defence because the finger print report and the connected documents have been submitted quite late after the accused had already been examined under Section 313 Cr.P.C. On the other hand, learned Counsel for the appellant, Sanjay Tiwary has seriously objected to any order for additional evidence or retrial of the accused on the ground that such an order will give a chance to the prosecution to fill up the lacunae which according to the defence exist in the matter of proving by satisfactory evidence as to who took the photographs of chance finger prints at the place of occurrence and when and by whom the specimen finger prints of the accused were collected. According to learned Counsel for the appellant-accused no case has been made out for additional evidence also on account of failure of the prosecution to examine the expert and to put relevant circumstances to the accused under Section 313 Cr.P.C and due to such lapses of prosecution the appellant deserves to be acquitted. 16. It will serve no useful purpose to refer to a large number of judgments cited by the parties in respect of scope of Section 293 Cr.P.C. and the effect of omission to put relevant circumstances to the accused under Section 313 Cr.P.C. as the law on these points is quite clear. Under Section 293 Cr.P.C. if the Court has exercised its discretion properly on relevant facts and circumstances then the report of the expert can be used as evidence without calling for the expert. But as discussed earlier, in the facts of the case, after objection raised by the defence, the trial court ought to have summoned the expert. Under Section 293 Cr.P.C. if the Court has exercised its discretion properly on relevant facts and circumstances then the report of the expert can be used as evidence without calling for the expert. But as discussed earlier, in the facts of the case, after objection raised by the defence, the trial court ought to have summoned the expert. So far as Section 313 Cr.P.C. is concerned, judgments are clear that the circumstance not put to the accused cannot be used against him but then the appellate court has further responsibility of looking into the facts and finding out whether any prejudice has been caused to the accused or not and in case of necessity, the appellate court can also put questions to the accused or his counsel for seeking explanations. This is evident from judgment of the Apex Court in the case of State (Delhi Administration) V/s. Dharampal 2003 SCC (Cri) 1012. In case of Rautu Bodra V/s. State of Bihar 1999 SCC (Cri) 1319 the Apex Court in context of Section 313 Cr.P.C. held that circumstances not put to the accused must be excluded from consideration. But it further observed that considering the ghastly nature of the crime the matter required a consideration for remanding the matter to the trial court after setting aside the conviction of the accused, for further and proper examination under Section 313 Cr.P.C. and then proceed with the trial from that stage. Such option was however not exercised in that case in view of the fact that more than 15 years had elapsed and the appellants had served more than four years of imprisonment. 17. On the basis of aforesaid judgments of the Apex Court and power of the appellate court available under Section 386 of the Cr.P.C. we are of the considered view that in the facts of the case the judgment of conviction against appellant, Sanjay Tiwary and the death sentence awarded to him need to be set aside only for the purpose of remitting the matter to the trial court for a limited retrial from the stage of considering prayer of the prosecution to bring on record Exhibits-14 and 15 series as documentary evidence on behalf of the prosecution. The trial court will apply its mind to the said prayer of the prosecution in the light of observation in this judgment and for taking the documentary evidence on record it may order for summoning the experts or other related officials as witnesses for the prosecution. After these documents are brought on record and the experts are examined the trial will proceed as per law and the accused would be again examined under Section 313 Cr.P.C. in which all the circumstances appearing against him must be put to him to seek whatever explanation he may have to offer in respect of such circumstances. Thereafter the trial court shall decide the trial by a fresh judgment and order in accordance with law. 18. Accordingly, the judgment and order under appeal relating to Sanjay Tiwary are set aside. In the result, Cr. Appeal No. 1169 of 2006 is allowed in part to the extent indicated above and the trial of Sanjay Tiwary is remitted back to the trial court to be conducted from the stage pointed out above. As a result the Death Reference No. 9 of 2006 in respect of Sanjay Tiwary is answered in negative. As discussed earlier the Government Appeal No. 11 of 2006 stands dismissed.