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2012 DIGILAW 214 (PAT)

Gaffor Mian v. State of Bihar

2012-02-03

AMARESH KUMAR LAL, SHYAM KISHORE SHARMA

body2012
JUDGMENT (ORAL) Per S.K. SHARMA, J.- Above named appellants have preferred the instant appeal against the judgment of conviction and order of sentence dated 7th July, 1989 passed in Sessions Case No. 72 of 1986 by the learned 2nd Additional Sessions Judge, Saharsa whereby the appellants have been found guilty under sections 302, 364 and 201 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life under section 302 IPC and rigorous imprisonment for seven years and five years under sections 364 and 201 IPC respectively. The sentences were ordered to run concurrently. 2. The informant Jagdeo Sharma (PW 13) has arrived at Nauhatta Police Station on 9.10.1983 at 6.00 AM and he has given his fard-beyan relating to an occurrence which led to registration of a case vide Supaul P.S. Case No. 184 of 1983 under sections 363 IPC against Gafoor Mian, Sakoor Mian, Banku Mian, Wasi Mian, Ishaque Mian, Muslim Mian, Manir Mian, Kaushal Mian and Yusuf Mian. The fard-beyan (Ext. 2) relates to an occurrence of 8.10.1983 when the informant was returning to his village along with his father Shree Sharma (deceased), his younger brother Brahmi Sharma (PW 10) and at about 6.30- PM on 8.10.1983 the informant and his family members were crossing by the side of Gafoor Mian. The informant noticed Shakoor Mian, Banku Mian, Ishaque Mia, Muslim Mian, Kaushal Mia and Yusuf Mian sitting on the Darwaja of Gafoor Mian Gafoor Mian requested for some talk. As soon as the informant’s father reached near Gafoor Mian, his father was tide down and dragged by Gafoor Mian, Shakoor Mian, Banku Mian, Ishaque Mian and Muslim Mian. They carried the informant’s father near Kalambagh of Gafoor Mian. The informant and his brother cried and shouted for help but the persons who were present on the Darwaja of Gafoor Mian told that no damage would be done. In the meantime Wasil Mian, Kaushal Mian and Yusuf Mian abused and ran for assaulting the informant and his brother. After running to the village the informant narrated the entire version. Villagers Laki Chand Sharma (PW 3), Moti Sharma (PW 2), Kini Sharma (PW 4), Raghubir Thakur (PW 8), Bauku Ram (PW 5) and others tried to search the informant’s father but the search remained futile. Gafoor has taken Rs. 2,000/- from the informant’s father and 10 days prior to the occurrence he took Rs. Villagers Laki Chand Sharma (PW 3), Moti Sharma (PW 2), Kini Sharma (PW 4), Raghubir Thakur (PW 8), Bauku Ram (PW 5) and others tried to search the informant’s father but the search remained futile. Gafoor has taken Rs. 2,000/- from the informant’s father and 10 days prior to the occurrence he took Rs. 5,000/- and he repeated the demand but it was not given and so the occurrence. The fard-beyan was recorded by S.I. M. N. Singh and it was witnessed by Ganesh Mahto and Mahani Sah (both not examined). This fard-beyan was forwarded to Supaul Police Station for registering the FIR and thereafter, Supaul P.S. Case No. 184 dated 10.10.1983 vide formal FIR (Ext. 1) was registered. In course of investigation, a headless, armless and neckless dead body was recovered and inquest report (Ext. 3) was prepared. On 13.10.1983 the dead body was sent for post mortem and on 14.10.1983 post mortem was performed. The witnesses were examined by the police and after investigation chargesheet was submitted. After submission of the chargesheet the case was committed to the court of Sessions where the charges under sections 364, 302, 201 of the IPC were framed and explained against five accused persons to which they pleaded their innocence and claimed to be tried. In course of trial Banku Mian died, so against him the case was abated and other accused persons faced the trial. 3. The defence of the accused persons was of false implication and also that the informant and his family members are notorious criminal of the locality and have several enemies so, there was possibility of his killing by others. It was also contended that the dead body was not identified because it was the headless, armless and neckless. Further defence is that the FIR was registered on 10.10.1983 but investigation was started on 9.10.1983. The surprising aspect of the case was that the FIR was sent on 25.10.1983 after the post mortem and inquest report was prepared. In fact the FIR is in hit of under section 162 Cr.P.C. because the investigation was carried prior to the registration of the FIR and also that the first version of the occurrence has been suppressed. 4. After analyzing the evidence on record the trial court found the appellants guilty and sentenced them accordingly. 5. In fact the FIR is in hit of under section 162 Cr.P.C. because the investigation was carried prior to the registration of the FIR and also that the first version of the occurrence has been suppressed. 4. After analyzing the evidence on record the trial court found the appellants guilty and sentenced them accordingly. 5. Now this Court is required to see as to whether the prosecution has been able to prove its case against the appellants named above beyond the shadow of all reasonable doubts or not. 6. In order to prove its case, the prosecution has examined 14 witnesses. They are Sudhir Kumar Verma (PW 1), Moti Sharma (PW 2), Lakhi hand Sharma (PW 3), Kino Sharma (PW 4), Barku Ram (PW 5), Nathu Mahto (PW 6), Raghubeer Thakur (PW 7), Chotkan Sharma (PW 8), Rajdeep Sharma (PW 9), Brahmi Sharma (PW 10), Brahma Nath Singh (PW 11), Dr. Ramdeo Jha (PW 12), Jagdeo Sharma (PW 13) and Krit Narain Labh (PW 14). 7. PW 1 is a formal witness and has proved the writing upon the formal FIR. PWs 2, 4, 5, 6 and 7 have not supported the prosecution case and they were cross-examined after they were declared hostile. PW 3 was tendered by the prosecution. PW 8 was given up by the prosecution. PW 9 is the son of the deceased. According to PW 8, he was at his house and he knew about the occurrence there. Therefore, this witness has not accompanied the deceased or other witnesses and he is a hearsay witness. He is an accused of a case of dacoity which was lodged prior to the present case. He has not explained as to whether his father was an accused of a case of dacoity or not. This witness is of no help to the prosecution because he is a hearsay witness. 8. PWs 10 and 13 are the two material witnesses who have been brought by the prosecution to support its case. PW 10 in his oral evidence has stated that 4 years prior to his deposition, he was returning from Bazar by the side of the house of Gafoor Mian. Gafoor Mian requested the informant’s father to come to him and as soon as the informant’s father went there, he was over powered and carried towards Kalambagh. PW 10 in his oral evidence has stated that 4 years prior to his deposition, he was returning from Bazar by the side of the house of Gafoor Mian. Gafoor Mian requested the informant’s father to come to him and as soon as the informant’s father went there, he was over powered and carried towards Kalambagh. This witness and his brother followed to some distance but they could not keep following. This witness returned with his brother and told about the occurrence to the witnesses. Thereafter, a search was made and in course of search headless body was found at Koshi Bandh. Trunk had no head, arm or leg but it was identified on the basis of thread carrying key which was used in opening the informant’s father’s box. According to him, the informant and his brother have not gone to jail in any case. He was unaware as to whether his father had gone to jail in the past or not. 9. PW 13 has supported the version of his brother (PW 10) and has stated that his father was over powered and taken towards Kalambagh and thereafter, he was made to disappear. Subsequently his dead body was found. This witness has come for giving evidence from the jail (PW 13 paragraph 9). He stated that his father has visited the jail on many occasions in the past. His brother Rajdeep (PW 9) was also arrested in connection with a case of dacoity. 10. PW 12 has conducted the post mortem examination on 13.10.1983 at 10.30 PM. The dead body was of Shree Sharma. The head, arm and legs were missing. From the evidence of the doctor it is apparent that the post mortem of the dead body was performed and the dead body was definitely not in a position to be identified because its head, arm and legs were missing but the remaining part of the body was carrying a thread which was having a key. The key (material Ext. 1) was identified by the son of the deceased. The key was seized by the Investigating Officer and the lock of the deceased was opened and it was found that the key was of the lock which was opened. Therefore, it is very relevant evidence and it can be said that the dead body was of non-else but it is of the informant’s father namely, Shree Sharma. The key was seized by the Investigating Officer and the lock of the deceased was opened and it was found that the key was of the lock which was opened. Therefore, it is very relevant evidence and it can be said that the dead body was of non-else but it is of the informant’s father namely, Shree Sharma. The Investigating Officer has testified this fact while deposing as PW 11. 11. The aforesaid evidences have been brought on record by the prosecution. The learned counsel for the appellant has submitted that it is stated by the Investigating Officer that he has proceeded for Police Station on 9.1.1983 from the place of occurrence (PW 11 paragraph 12). The diary was written on 9.10.1983 and it was transmitted on 10.01.19893. The Investigating Officer visited the place of occurrence and reached to the place of occurrence. There was no progress in investigation between 10.10.1983 and 11.10.1983. On 12.10.1983 also no witness came. The evidence of Investigating Officer is specific that the investigation was started on 9.10.1983 but it is on the record that the First Information Report was registered on 10.10.1983. It means that the investigation of the present case was started prior to the registration of the case and on what basis the investigation has been started has not been clarified by the prosecution. The Investigating Officer has not explained as to what led him to investigate the case on 9.10.1983 when the FIR was registered on 10.10.1983. Definitely the material which was available on 9.10.1983 has not been brought on record and it can be said that the present FIR is hit by sections 161 and 162 of the Cr.P.C. This fact has to be considered in a very special circumstance which has come up before this Court. The FIR has to be transmitted to the Court forthwith. According to section 157 Cr.P.C., mandate of law would clear that immediately after the FIR is recorded and the Police Officer comes in possession of the FIR, he has to transmit the copy of the FIR to the nearest cognizance taking Magistrate forthwith. ‘Forth with’ means that no unreasonable delay should be caused in sending it. According to section 157 Cr.P.C., mandate of law would clear that immediately after the FIR is recorded and the Police Officer comes in possession of the FIR, he has to transmit the copy of the FIR to the nearest cognizance taking Magistrate forthwith. ‘Forth with’ means that no unreasonable delay should be caused in sending it. The purpose of sending the FIR to the Court without delay is that the Magistrate taking cognizance must be kept aware with the progress of the investigation and if necessary the Magistrate may issue any direction if the situation so warrants. Therefore, this is mandatory requirement of law that the FIR registered must be sent without delay to the Magistrate who has to take cognizance. If delay is caused then it should be explained. No doubt the delay may be caused if the circumstances so caused but such delay must be properly explained. The FIR has been registered at Supaul. The Magistrate was at Supaul, therefore, the Magistrate was not at such distance where it was not possible for the I. O. to send the FIR. The delay of a day or two days would have been considered but the delay here is of 16-17 days and no explanation has been given by the prosecution. This delay is coupled with the material fact which has come on record that the investigation was started on 9.10.1983. The material which was available before the I. O. which led to start of investigation has not been brought on record. It has come in evidence of I. O. (PW 11 paragraph 14 ) that the deceased was a Dosier bearing no. A/78 and was a District seater of Crime Investigation Department. He was accused in several cases. Deceased Shree Sharma and his sons who are witnesses here were the terror in the locality. This fact has come through non-else but through the Investigation Officer and so the argument of the defence that the deceased might have been done away by others becomes relevant considering the conduct of the deceased himself. The Investigating Officer cannot be exonerated from his responsibility of the improper investigation and non-explanation of circumstances which led to abnormal delay in sending the FIR to the Court. The situations have been bungled up and prosecution has not come cleanly. The Investigating Officer cannot be exonerated from his responsibility of the improper investigation and non-explanation of circumstances which led to abnormal delay in sending the FIR to the Court. The situations have been bungled up and prosecution has not come cleanly. The prosecution witnesses from 1 to 8 are all the persons who are family members and none have supported any part of the occurrence. It is generally seen that the independent witnesses are not willing to support the case. It is not the case that PWs 1 to 8 are witnesses of the occurrence rather they have come to know through the informant, his brother and others but they have not supported the prosecution case while they were deposing. This itself shows that PWs 1 to 8 were not at all aware with any development which has led to disappearance of Shree Sharma. 12. Considering the evidence brought on record, it is apparent that the real version has not been brought on record, since there is no explanation as to why the investigation was started on 9.10.1983 when the FIR was registered on 10.10.1983. There is no material that what led to initiate investigation on 9.10.1983 and the abnormal delay of 16-17 days in sending the First Information Report to the Court and also the conduct of the witnesses and the deceased. It is the prosecution who has made up its case and has not come with clean version. Accordingly, we hold that the prosecution has not been able to prove its case beyond the shadow of all reasonable doubts. 13. In the result, this appeal is allowed. The judgment of conviction and sentence is set aside. The appellants are acquitted of from the charges levelled against them and they are discharged from the liabilities of their bail bonds. 14. Mrs. Putul Sinha, Advocate appointed as Amicus Curiae has assisted this court in this appeal, and thus, she is entitled to get prescribed remuneration from the Patna High Court Legal Services Committee. Let a copy of first and last page of this judgment be handed over to her for needful. Appeal allowed.