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2009 DIGILAW 611 (JHR)

State of Bihar (Now Jharkhand) v. Babulal Prasad

2009-04-27

D.K.SINHA

body2009
JUDGMENT : D.K.Sinha, J. This State Appeal is directed against the judgment and order dated 11.09.1996 passed by the 1st Additional Sessions Judge, Jamshedpur in Sessions Trial No. 442 of 1989 whereby the respondents Babulal Prasad and Surya Kant Patel @ Surya herein were acquitted from the charge framed under Sections 302/201/34 I.P.C. against them. 2. The prosecution story in short was that the informant Sub-Inspector of Police of Bistupur Police Station received a call in the mid night of 24th March, 1989 at about 2 a.m. that a dead body was lying on the flank of road towards north which led to Circuit House Area. As the place as pointed out was within the jurisdiction of Bistupur Police Station, the informant on such information immediately rushed to the pointed place and found the information true as a dead body smeared in blood was found lying with the bleeding from his injuries including from nose which appeared to be of a young man aged about 20 years. The informant further gathered that though the deceased was shot dead else but the dead body was brought and thrown in the bush in order to conceal the evidence of murder. The police registered Bistupur P.S. Case No. 88/1989 on 24.03.1989 at 4.30 a.m. on the basis of the self-statement of the informant Bhuwaneshwar Sharma against unknown. The Investigating Officer after investigation submitted charge-sheet against four accused persons viz. (1) Babulal Prasad, (2) Surya Patel (3) Ashok Nagpal and (4) Mohan Sindhi. As two of them namely Ashok Nagpal and Mohan Sindhi died at the initial stage of trial, there remained only Babulal Prasad and Surya Patel i.e. the respondents herein who were charged for the offence under Sections 302/201/34 I.P.C. and were acquitted after trial. 3. The main contention of the Appellant-State as is evident from the memo of appeal is that though all the 9 witnesses who were produced and examined on behalf of the prosecution had supported the prosecution case but the Trial Court discarded their evidence without reasoning including the testimony of P.W. 1, who was the eyewitness. 3. The main contention of the Appellant-State as is evident from the memo of appeal is that though all the 9 witnesses who were produced and examined on behalf of the prosecution had supported the prosecution case but the Trial Court discarded their evidence without reasoning including the testimony of P.W. 1, who was the eyewitness. The State-Appellant further raised the points in the memo of appeal that the Trial Court disproved the prosecution case only on the ground that some of the witnesses were not examined in the Court whose statements were recorded under Section 161 Cr.P.C. and their names did not appear in the list of witnesses. The witnesses produced and examined on behalf of the prosecution were impartial and independent in the nature and the defence failed to show any enmity with the accused so as to draw an adverse inference. The statement of P.W. 1 recorded under Section 161 Cr.P.C. was consistent with his statement recorded under Section 164 Cr.P.C. and he had substantiated his earlier statement in the Trial Court also but the trial court disbelieved credence of his such statements without rhyme and reason. According to the trial Judge the statement of P.W. 1 was contrary to the testimony of P.W. 3 hence not reliable as held by the Court though both the witnesses had corroborated the testimony of each other thereby supporting the prosecution case. Further, the statement of P.W. 1 Gurnam Singh was corroborated by the Doctor P.W. 7 who had held postmortem examination of the deceased having found corresponding gun shots injuries on the person of the deceased. Finally, it was added that the Trial Court came to an erroneous finding that non-examination of the wife of P.W. 1 and his cousin Trilochan Singh to whom P.W. 1 had narrated the occurrence first point in time caused prejudiced to the defence, but how, the Court did not explain in the judgment. 4. There are certain facts relevant to the present appeal which needs mention that after appearance of the Respondent No. 1 & 2, the appeal was admitted for hearing by the order dated 31.03.1998 and the lower court record was called for which could not be dispatched for long nine months. Yet, this appeal was heard in absence of case record on the basis of memo of appeal, impugned judgment and the arguments on behalf of the parties. 5. Yet, this appeal was heard in absence of case record on the basis of memo of appeal, impugned judgment and the arguments on behalf of the parties. 5. I find from the judgment impugned passed in Sessions Trial No. 442 of 1989 that the Trial Judge mainly relied upon the testimonies of P.W. 1 Gurnam Singh, P.W. 3 Ishwar Prasad, P.W. 5 Gurdeep Singh and P.W. 7 Dr. Yogendra Nath and partly on the statement of P.W. 9 Bhuwaneshwar Sharma, who was the Investigating Officer of the case. The Trial Judge observed that P.W. 1 Gurnam Singh, projected as the solitary eye-witness on behalf of the prosecution testified that on 23.03.1989 while he was returning from the house of P.W. 8 Jarnail Singh having his dinner, which was situated at Sonari, Jamshedpur on a cycle, he witnessed a red motorcycle and a black scooter with 5 persons near Parsi Burial ground on way back to his home at 11.30 p.m. to whom he identified. The witness further testified that while the deceased was crying “Mat Maro-Mat Maro” the accused Surya Kant and Babulal (appellants herein) had held his right arm whereas the accused Mohan Sindhi was holding the left arm of Bittu and one Sokhe fired two shots on the right side of back on Bittu. The witness pointed out that noticing his presence at the place of occurrence, the assailant Sokhe turned towards him and threatened to run away lest he with the members of his family would be eliminated. On such threatening the witness returned back to his home situated at East Plant Bustee and narrated the occurrence to his wife Sarbajeet Kaur. On the following morning while going to answer the call of nature he conveyed the occurrence also to his cousin Trilochan Singh who had been living in a separate house. The witness then went to his duty at TISCO. The police recorded his statement at about 5.00 p.m. P.W.1 Gurnam Singh admitted his statement having been further recorded under Section 164 Cr.P.C. after about 15/17 days of the occurrence when he returned back. 6. The witness then went to his duty at TISCO. The police recorded his statement at about 5.00 p.m. P.W.1 Gurnam Singh admitted his statement having been further recorded under Section 164 Cr.P.C. after about 15/17 days of the occurrence when he returned back. 6. It is relevant to mention as per prosecution case that the occurrence as alleged took place in the night of 23.3.1989 and the Investigating Officer P.W. 9 testified that on 24.3.1989 at about 12.15 p.m. the father of the deceased came to the police station and reported missing of his son Bittu by narrating that he had certain altercation with the Mohalla boys in front of his house near a betel shop in the preceding night at about 10.00 p.m. and since then Bittu did not return back. While the father of the deceased P.W. 5 was at the Police Station, the Investigating Officer P.W. 9 received a telephonic message from one Gurnam Singh (P.W. 1) narrating the cognizable offence and claiming having seen the accused committing murder by firing shots near Circuit House Area in the preceding night. As the Investigating Officer had already proceeded in the case on the information already received in relation to missing of the son of Gurnam Singh, he did not make any entry of such information in the Station Diary and also admitted having not recorded the statement of P.W. 1 Gurnam Singh at the relevant time which in my view was serious lapse on the part of prosecution. 7. The Trial Court scrutinized the evidence of P.W. 3 i.e. the “Chaukidar” of the Parsi graveyard. The witness testified that in the fateful night he was lying on the bed outside his home as he felt hot and heard the sound like firing shots but presumed to be burst of tyre. He looked towards the road out of curiosity and witnessed a motorcycle and scooter standing there with 3/4 persons. He again heard the sound of similar nature and witnessed that the scooter riders escaped, followed by the motorcycle riders. He could not identify any of the riders. The Trial Court in the judgment recorded the argument of the defence that the evidence of P.W. 3 materially contradicted the evidence of P.W. 1 in so far as the manner of occurrence was depicted. He could not identify any of the riders. The Trial Court in the judgment recorded the argument of the defence that the evidence of P.W. 3 materially contradicted the evidence of P.W. 1 in so far as the manner of occurrence was depicted. According to the testimony of P.W. 1, three of the accused including the respondents had caught hold the arms of Bittu at the relevant time while the accused Sokhe fired two shots on his back in quick succession. The testimony was assailed that had the occurrence taken place in the manner presented by P.W. 1. The “Chaukidar” (P.W.3) of the Parsi graveyard had no occasion to see the Scooter going away after the first fire like sound leaving two assailants at the scene who followed on the motorcycle after second shot was fired. 8. The Trial Court observed that there was no suggestion by the prosecution to the P.W. 9 Investigating Officer that he had either shown negligence in the investigation or tried to help the accused by not incorporating the name in his statement recorded at the first instance of P.W. 1 Gurnam Singh who had earlier informed him on telephone about the commission of murder of Bittu by the named accused persons including the respondents herein in the forwarding report with the First Information Report which was the only material against the accused and the name of P.W. 1 Gurnam Singh had no bearing in the F.I.R. though the P.W. 9 i.e. the Investigating Officer had admitted in his testimony that by that time he had received information from P.W. 1 Gurnam Singh regarding commission of murder while the father of the deceased P.W.5 was sitting at the Police Station Bistupur reporting missing of his son Bittu. The Court further observed that the statement of P.W. 1 recorded under Section 164 Cr.P.C. after 15/17days of the alleged occurrence in which he had given detailed revelation could not be proved by the prosecution. Yet, the Trial Court observed that even such statement had it been proved, could not serve to improve the situation, as in spite of the information made telephonically the Investigating Officer (P.W.9) did not record his statement at least in the station diary of the Police Station for future use and to act upon such important clue. Yet, the Trial Court observed that even such statement had it been proved, could not serve to improve the situation, as in spite of the information made telephonically the Investigating Officer (P.W.9) did not record his statement at least in the station diary of the Police Station for future use and to act upon such important clue. I find substance in the judgment when the Trial Court observed that the statement of the wife of Gurnam Singh and his cousin Trilochan Singh could have served the purpose to lend some credence to the evidence of P.W. 1 to whom Gurnam Singh had narrated the occurrence. 9. The Trial Judge discussed Ext. A/1 i.e. the forwarding report dated 03.04.1989 whereby the respondents were forwarded before the Court with the memo of evidence contending that they had enmity with the deceased prior to the alleged occurrence and the members of the family of the deceased had expressed suspicion against the complicity of all the four accused persons. It was added that they were in the habit of extorting money and nobody dared raising voice against them and finally that the deceased was seen in the company of the accused in the night of 23.03.1989 till 11.00 p.m. The Trial Court pertinently raised, if the informant-cum-Investigating Officer had really received information regarding participation of the accused in the alleged murder on telephone from P.W. 1 disclosing the name of the assailants, the fact ought to have been incorporated in the memo of evidence with the forwarding report of the police. Absence of reference with regard to information supplied by the P.W. 1 in the forwarding report, in the opinion of the Trial Judge had given rise to inference that the statement of P.W. 1 was recorded much after 03.04.1989 when he returned back. 10. The statement of the father of the deceased P.W. 5 is of the relevance only to the extent that he claimed having seen all the four accused including the respondents playing cards in the night at about 9.30 p.m. on 23.03.1989 near his house and by the side of the Tea Stall of P.W. 6 where Bittu (since deceased) was found sitting and watching the accused persons playing cards. P.W. 5 testified that he then persuaded his son Bittu to have his dinner but Bittu replied that he would come later. P.W. 5 testified that he then persuaded his son Bittu to have his dinner but Bittu replied that he would come later. P.W. 6 i.e. the owner of the Tea Stall corroborated this part of the statement of P.W. 5 that Bittu was watching the game of cards being played by the accused persons before he closed his Tea Stall. The father of the deceased P.W. 5 Gurdeep Singh further testified that he again went there and asked his son at about 10.30 p.m. but found his son Bittu proceeding on a red coloured motorcycle sitting as a pillion along with Surya Kant Patel @ Surya behind him and it was driven by Mohan Sindhi. His repeated call did not make heed to his son Bittu who was sitting in the middle. He claimed having further witnessed a black scooter following the said motorcycle with the accused Babulal and Ashok Nagpal @ Sokhe sitting on the scooter. He awaited his son Bittu all around night in the house and when he did not return, the witness went to Bistupur Police Station in the morning of 24.03.1989 and reported the police about the missing of his son. However, on the information received that a boy had been murdered in the previous night near the Circuit House Area, Jamshedpur and the dead body was taken to Government Hospital, Sakchi for the postmortem, the witness was persuaded and he visited the hospital with the Police Inspector and identified the dead body as also the slipper which belonged to his son Bittu. 11. The Trial Judge scrutinized the statement of P.W. 5 in the light of the statement of the Investigating Officer P.W. 9 who testified that P.W. 5 came to the Police Station for the first time on 24.03.1989 at 12.15 noon along with his son Swarn Singh and communicated that his another son Ravinder Singh @ Bittu had certain altercation with the boys of Mohalla in the preceding night at about 10 O’clock and had not since then returned back home. The Investigating Officer in his testimony stressed that P.W. 5 had given information only with regard to the missing of his son and did not express any suspicion against anybody and according to the Trial Judge, if the stock of the facts could be taken together, the testimony of P.W. 5 regarding departure of his son Bittu with the accused in the manner presented by the witness could not be corroborated. The statement of P.W. 6 was also not supportive as in his cross-examination that he fairly admitted that his statement claiming having seen the deceased Bittu watching the game of cards being played by the accused persons in the preceding night was revealed for the first time in the Court long after the alleged occurrence and such revelation was not made before the police at the first instance. Such delayed statement in the Trial Court after long time loses its reliability and credibility and therefore, having no relevance. 13. In view of the evidence of the important witnesses produced on behalf of the prosecution before the Trial Court, I am in agreement with the Trial Judge who held that the prosecution has not been able to prove the charge under Sections 302/201/34 I.P.C. against any of the respondents herein beyond all reasonable doubts and pursuant to such observation the respondents Babulal Prasad and Surya Kant Patel @ Surya were rightly acquitted on according them benefit of doubt. The Counsel for the State-Appellant failed to show any ground to call for interference in the judgment of acquittal impugned recorded in favour of the respondents. 14. I find that there is no substance in the appeal and accordingly this Government Appeal arising out of the judgment of acquittal recorded by the 1st Additional Sessions Judge, Jamshedpur, East Singhbhum in Sessions Trial No. 442 of 1989 is dismissed.