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2012 DIGILAW 1615 (PAT)

Md. Nayeem v. State Of Bihar

2012-12-04

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

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JUDGMENT SHYAM KISHORE SHARMA Md. Nayeem (Cr. Appeal (D.B.) No. 398 of 2006) and Md. Khursheed (Cr. Appeal (D.B.) No. 526 of 2006) have assailed the judgment of conviction dated 29.4.2006 and order of sentence dated 2.5.2006 whereby convicts/appellants were found guilty under Section 120 B read with Section 302 of the IPC and were sentenced to undergo rigorous imprisonment for life. Altogether 12 persons were put on trial. Besides these appellants the persons put on trial were Umesh Dahlan, Raju Swanakar, Sujit Swanakar, Sonu Singh, Santosh Kumar Mehta, Sanjay Swanakar, Santosh Singh, Shashi Shekhar Singh Yadav @ Shashi Singh, Santosh Kumar Singh, and Md. Babloo Yadav. These appellants were held guilty, whereas, others were acquitted by 1st Additional Sessions Judge, Saharsa in Sessions Trial No. 122 of 2005/ Sessions Trial No. 196 of 2005. 2. Fardbeyan (Ext. 6) of Amar Nath Thakur (P.W. 2) led to registration of Saharsa (Sadar) P. S. Case No. 221 of 2004 dated 29.6.2004 under Sections 302/120(B)/34 IPC and 27 of the Arms Act against Babu Jha. The informant was an employee of Rajaram Khetan (deceased) and according to him Rajaram Khetan had wholesale business of medicine in the name and style of Tirupati Agency at Mahavir Chauk. It is alleged that on 29.6.2004 Rajaram Khetan told the informant that his mother informed him on telephone that she had been threatened and a demand of Rs.50,000/- has been made in lieu of life. She suggested him to return at the earliest. In the meanwhile, Munna Singh came and detailed about the information which has been received at about 8 pm. Munna Singh again came and Rajaram Khetan after closing the shop proceeded on his motorcycle and accused Munna Singh was pillion rider on two wheeler. The informant was also going on motorcycle. Two motorcycles proceeded. The informant got down, opened the first gate and entered inside the campus to open second gate. In the meanwhile, sound of firing was heard by the informant. Rajaram Khetan raised alarm that he had been shot. The informant came back immediately and he saw a lean, thin and long statured person was escaping. The escaping person was just at some distance but he succeeded in escaping. The absconding person was Babu Jha. The informant with the help of witness brought Rajaram Khetan to the clinic of Dr. Rajaram Khetan raised alarm that he had been shot. The informant came back immediately and he saw a lean, thin and long statured person was escaping. The escaping person was just at some distance but he succeeded in escaping. The absconding person was Babu Jha. The informant with the help of witness brought Rajaram Khetan to the clinic of Dr. Isshar, who sent him to Sadar Hospital, Saharsa, but Rajaram Khetan succumbed to his injuries. A fortnight prior to the occurrence deceased was called by Babu Jha and demand of ransom was made. The fard beyan was recorded at Sadar hospital and after recording formal FIR, investigation proceeded, charge-sheet submitted, cognizance was taken and the case was committed to the court of sessions. Charge under Sections 302/34 and 120 B IPC was explained to 12 accused persons and they were charged that on 29 June 2004 at Krishna Nagar, Batraha, Police Station Saharsa and District Saharsa in furtherance of common intention committed murder of Rajaram Khetan. The accused pleaded innocence and so the trial proceeded. 3. Before trial court the prosecution has examined Anil Kumar Singh as P. W. 1, informant Amar Nath Thakur as P. W. 2, Hira Lahari as P. W. 3, Uma Shankar Khetan, father of the deceased as P. W. 4, Binit Kumar Jha as P. W. 5, Chakarbarti Prasad Keshari as P. W. 6, Krishna Kanahiya Khatan as P. W. 7, Raghav Pd. Singh as P. W. 8, Gautam Kumar as P. W. 9, Pankaj Kumar Gupta as P. W. 10, Dr. Sachidanand Roy, who held the post mortem examination upon the body of the deceased as P. W. 11, Sudhir Kumar Singh as P. W. 12, Anil Kumar Yadavendu- first Investigating Officer as P.W. 13, Ramanand Singh- 2nd Investigating Officer as P.W. 14, Satrughan Pd. Gupta as P.W. 15, and Arun Kumar Yadav as P.W. 16. 4. P. Ws. 1, 2, 3, 4 and 5 have not supported any part of the occurrence and they were declared hostile by the prosecution. P. W. 4, father of the deceased and P. W. 7 were examined as hearsay witnesses. P.W. 9 and P. W. 10 were witnesses of inquest of dead body. P.Ws. 15 and 16 are formal witnesses who have proved about cassette which was not even looked upon by the Court. P.Ws. P. W. 4, father of the deceased and P. W. 7 were examined as hearsay witnesses. P.W. 9 and P. W. 10 were witnesses of inquest of dead body. P.Ws. 15 and 16 are formal witnesses who have proved about cassette which was not even looked upon by the Court. P.Ws. 8 and P.W. 12 have been examined to show about enmity with regard to business transaction of the deceased and the doctor has been examined to show that postmortem was conducted by him. 5. Besides innocence, the defence of the accused is false implication. 6. The trial court after considering the evidence brought on record found the charge to be proved and so order of conviction was passed. 7. This Court is required to see as to whether the prosecution has been able to prove; first that Rajaram Khetan was murdered on the date and time of occurrence, and second that if so then by whom. 8. With regard to first proposition it has been noted about killing of Rajaram Khetan. The evidence of doctor P.W. 11 has to be looked into. On 30.6.2004 P. W. 11 was posted at Sadar Hospital Saharsa as Medical Officer and on that date at about 6.15 A.M. he did post-mortem on the dead body of Rajaram Khetan and found one external injury which was one circular lacerated wound size ½” x ½” on the left lower region of the left back of chest. After opening of the chest one bullet was found on the middle of the chest wall under the skin below the right nipple and preserved and sealed. The death was within 12 hours of the examination. The bullet which was excavated from the chest, was handed over to the police and it was produced in course of evidence. The doctor’s evidence has proved that Rajaram Khetan was killed. Almost killing was on the time as suggested by the prosecution. This has been proved by the prosecution by postmortem report conclusively. The medical examination also suggests death of Rajaram Khetan by using firearm which is not under challenge. Once it has been proved that Rajaram Khetan was killed then the prosecution was required to prove and establish that killing was by the accused and accused alone and for that the evidence has to be scanned through. 9. P. W. 2 is the informant. Once it has been proved that Rajaram Khetan was killed then the prosecution was required to prove and establish that killing was by the accused and accused alone and for that the evidence has to be scanned through. 9. P. W. 2 is the informant. He declined that he has given any statement before the police. He has merely identified his signature. No doubt, this witness has been declared hostile but his evidence is only to the extent that he has given information to the police regarding death of Rajaram Khetan. Other witnesses P.Ws 1, 3 and 5 have also not supported any part of the occurrence and they have been declared hostile. 10. First set of witnesses are hostile witnesses. Now about second set it can be said that the prosecution has tried to prove the charge. They were P.Ws. 4 and 7. P. W. 4 and P.W. 7 have given similar version of the occurrence. P. W. 4 has stated that he has received information through P.W. 2 that Babu Jha and Munna Singh had opened fire and killed Rajaram Khetan. That was the version received by the father of the deceased just after the occurrence. No name of the accused has been stated. P. W. 7 has also not received any information regarding killing by the accused/appellants. There was no evidence at all from which any inference could have been drawn against these accused persons in any manner associated with conspiracy which led to killing of Rajaram Khetan. 11. The first investigating officer P. W. 13 while deposing has stated that he made enquiry about the participation of Md. Khursheed (in Para 19), but nobody stated about anything. Similarly about Md. Nayeem also he has stated that nobody has stated about him. This investigating officer has investigated the case upto 27.12.2004 i.e. about six months of the occurrence. Thereafter, P. W. 14 resumed investigation and he submitted charge-sheet. If his evidence is scrutinized properly, then also it is apparent that nobody has stated about participation of these accused/appellants before him. P. W. 14 has relied upon the testimony of P.W. 3 that he has narrated about the role of accused, but P.W. 3 while deposing in the Court has stated that he has not named any person at any stage. P. W. 14 has relied upon the testimony of P.W. 3 that he has narrated about the role of accused, but P.W. 3 while deposing in the Court has stated that he has not named any person at any stage. Therefore, the information received by P.W. 14 on the basis of statement of P.W. 3 cannot be relied upon for the purpose of conviction. 12. Learned counsels for the appellants have submitted that there was no material at all to presume presence of the accused persons at the place of occurrence as none of the witnesses has stated anything about that. It is also submitted that so far as conspiracy is concerned, these appellants have not conspired with others and that led to killing. Further submission is that if conspiracy of these appellants was considered then it should be at par with other ten acquitted persons and the case of these accused/appellants was not distinguishable from the case of other 10 accused persons, who have been acquitted. 13. We have heard learned counsels for the appellants and the State. 14. The prosecution has been able to prove only that Rajaram Khetan was killed by means of solitary bullet injury in the night of 29.6.2004. The prosecution has utterly failed to prove that these two persons were at all involved in hatching any conspiracy which led to elimination of Rajaram Khetan. The evidence brought on record to rope in the accused/appellants, is grossly inadequate and insufficient and cannot be relied upon for proving the charge that these two appellants have hatched conspiracy with others which caused death of Rajaram Khetan on the date and time of the occurrence for which they were charged. The evidence of the prosecution which was sought to be relied upon by it was conversation of co-accused which was not also properly investigated into. Tap was not even heard by the trial court so it was not proper to relied upon unheard tap conversation regarding order of conviction. 15. In that view of the matter, we find that the prosecution has not been able to prove its charge against any of the appellants beyond shadow of all reasonable doubts. Once doubt is created, then the benefit of it has to be passed on to the accused/convicts. 16. In the result, impugned judgment of conviction and order of sentence is set aside. Both the appeals are allowed. Once doubt is created, then the benefit of it has to be passed on to the accused/convicts. 16. In the result, impugned judgment of conviction and order of sentence is set aside. Both the appeals are allowed. The appellants of both the appeals are acquitted of the charge. The appellants are in custody and they are directed to be released forthwith, if not wanted in any other case.