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2013 DIGILAW 435 (PAT)

Anil Singh v. State of Bihar

2013-04-02

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT Hemant Kumar Srivastava, J. Heard learned counsel appearing for the appellant as well as learned Additional Public Prosecutor for the State and perused the record. 2. This criminal appeal has been preferred against the judgment of conviction dated 14.02.2001 and order of sentence dated 20.02.2001 passed by 1st Additional Sessions Judge, Banka in Sessions Case No. 228 of 1989 by which and whereunder he convicted the sole appellant for the offence punishable under Section 364 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a term of ten years. The learned 1st Additional Sessions Judge, Banka by the impugned judgment acquitted other accused namely, Fulo Singh and Bhagwan Singh of the charge framed against them. 3. The brief fact, which lies to file this criminal appeal is that Chowkidar Arsadi Paswan reported to officer-in-charge of Dhoraiya police station on 10.05.1988 that on the same day at about 06:00 a.m. to 07:00 a.m. some passersby informed him that dead body of a male having bullet injury was lying in Mauza Bhusar Bahiyar and having got the aforesaid information he reached there and found the dead body of a male, Several persons had assembled there but no one could identify the aforesaid dead body. 4. On the basis of aforesaid statement of Chowkidar, Arsadi Paswan, Dhoraiya P.S. Case No. 44 of 1988 under Section 302 of the Indian Penal Code was registered against unknown person. 5. In course of investigation the inquest report of dead body was prepared and after post-mortem examination of dead body photographs of dead body were taken and clothes of deceased were also seized. No person came to claim the dead body and accordingly the dead body was disposed of by the police. In course of investigation PW 1, Surya Narain Singh and Ram Chandra Singh of village Bora P.S. Sanokhar district Bhagalpur went to Dhoraiya police station and identified the photographs as well as clothes of the dead body. Ram Chandra Singh disclosed that the aforesaid photographs and clothes were of his son namely Rabindra Singh. The aforesaid Ram Chandra Singh gave a written petition (Exhibit-1) to officer-in-charge of Dhoraiya police station stating therein that his son. Ram Chandra Singh disclosed that the aforesaid photographs and clothes were of his son namely Rabindra Singh. The aforesaid Ram Chandra Singh gave a written petition (Exhibit-1) to officer-in-charge of Dhoraiya police station stating therein that his son. Rabindra Singh was taken away by Anil Singh (appellant) on the alleged date of occurrence and at the time of leaving the house his son was wearing white full shirt and dhoti and furthermore he stated in his written petition that Dhori Singh (PW 8) had seen the appellant in the company of deceased. Rabindra Singh taking breakfast in Sanhaula village and apart from aforesaid Dhori Singh, Upendra Singh and Tiro Singh had also seen the appellant in the company of the deceased. Furthermore he stated in his written petition that he had some land dispute with Fulo Singh and the appellant was close friend of the aforesaid Fulo Singh. He suspected in his written petition that appellant and aforesaid Fulo Singh committed the murder of his son. The aforesaid written petition was given by Ram Chandra Singh on 22.05.1988. 6. After completion of investigation police submitted charge-sheet against the appellant and co-accused, Fulo Singh as well as Bhagwan Singh for the offence punishable under Sections 302/34 of the Indian Penal Code. The cognizance of the offence was taken and the case was committed to the Court of Sessions in usual way. 7. The appellant and other two accused namely Fulo Singh as well as Bhagwan Singh were put on trial and accordingly, they were jointly charged for the offence punishable under Sections 302/34 of the Indian Penal Code. The appellant and other accused denied the charge and claimed to be tried. 8. In course of trial prosecution examined altogether twelve witnesses out of whom. PW 1 Swya Narain Singh has been declared hostile on the prayer of prosecution. This witness has stated nothing in respect of the alleged occurrence. Although his attention was drawn towards the statement recorded by the Investigating Officer under Section 161 of the Cr PC but he denied to have made the statement before the police. 9. PW 3 is wife of deceased. PW 4 is brother in, law of deceased. PW 3 and PW 4 claimed before the trial Court that appellant had come to the house of deceased prior to the alleged occurrence and took away the deceased from his house. 9. PW 3 is wife of deceased. PW 4 is brother in, law of deceased. PW 3 and PW 4 claimed before the trial Court that appellant had come to the house of deceased prior to the alleged occurrence and took away the deceased from his house. PW 2 Krishnadeo Singh is maternal father in law of the deceased and this witness stated that father of the deceased had come to his house in search of deceased and he accompanied the father of the deceased to village Bora where PW 3 disclosed about the alleged occurrence. This witness also stated that he along with others had gone to Dhoraiya Police Station where photographs and clothes of deceased were shown to him and others and this witness prepared a written petition (Exhibit-1) and on the aforesaid written petition. Ram Chandra Singh put his thumb impression. 10. PW 5 is father in law of deceased and this witness stated that PW 3 disclosed before him that appellant took away her husband. 11. PW 6 is also a hearsay witness and this witness stated that PW 3 had disclosed this fact that appellant took away her husband. This witness has also been declared hostile. 12. PW 8 Dhori Singh has been declared hostile. Although the attention of this witness was drawn towards his statement recorded under Section 161 of the Cr PC but he denied to have made any statement before the police. 13. PW 7 is resident of village Bhusar and stated that he had heard the sound of firing in the night of alleged occurrence and when in the morning he went at the field of Sita Ram Ravidas he found a dead body and police seized one empty cartridge from there. This witness has stated nothing against the appellant. Similarly PW 9 stated that he saw a dead body lying in a field but this witness has also stated nothing against the appellant. Similarly PW 10 stated that his brother in law was taken away on the alleged date of occurrence and Suresh, Yogendra, Ganauri Mandal disclosed before him that appellant and two others committed the murder of his brother in law. Admittedly this witness is hearsay witness. 14. PW 11 (wrongly mentioned as PW 10) is a doctor who conducted post-mortem examination on the corpus of deceased and found gun shot injuries on his person. 15. Admittedly this witness is hearsay witness. 14. PW 11 (wrongly mentioned as PW 10) is a doctor who conducted post-mortem examination on the corpus of deceased and found gun shot injuries on his person. 15. PW 12 is a formal witness who has proved the first information report as Exhibit-3. 16. The statements of appellant and other two accused were recorded under Section 313 of the Cr PC in which they reiterated their innocence. No evidence was adduced on behalf of the appellant and other accused in support of their defence but from perusal of statements of the appellant and other accused recorded under Section 313 of the Cr PC as well as trends of cross-examination of prosecution witnesses it appears to me that the defence of the appellant and other accused was total denial of prosecution story as well as their false implication on account of previous enmity and land dispute. 17. The learned trial Court having relied upon the testimonies of PW 3 and PW 4 as well as other materials available on the record passed the impugned judgment of conviction and order of sentence in the manner as stated above. 18. Learned counsel appearing for the appellant challenged the impugned judgment of conviction and order of sentence arguing that the learned 1st Additional Sessions Judge based his finding only on the basis of surmises and conjectures and as a matter of fact there was no legal and cogent evidence availably against the appellant to connect him in the alleged crime. He further submitted that 1st Additional Sessions Judge having considered the similar evidence acquitted the two co-accused whereas convicted the appellant without any basis. 19. On the other hand learned Additional Public Prosecutor supported the impugned judgment of conviction and order of sentence submitting that PW 3 and PW 4 claimed that it was appellant who took away deceased from his house on the alleged date of occurrence and later on, the dead body of deceased was found lying in a field and furthermore. PW 7 stated that on the alleged date of occurrence he heard the sound of firing and later on, the dead body of deceased was recovered. 20. PW 7 stated that on the alleged date of occurrence he heard the sound of firing and later on, the dead body of deceased was recovered. 20. As I have already stated that only PW 3 and PW 4 have stated that appellant took away the deceased from his house on the alleged date of occurrence and except the aforesaid two witnesses, none of the prosecution witness has claimed to have seen the appellant taking away the deceased. 21. PW 3 stated that on the alleged date of occurrence appellant came at her house and took away her husband. She further stated that her husband did not return till evening and after that she went to the house of the appellant and enquired about her husband but appellant did not give any satisfactory answer to her. She further stated that Dhori Mandal informed her that he had seen the appellant and co-accused Fulo Singh in Sanhaula market taking breakfast. She further stated that her father and other relatives went in search of her husband and after 10 to 12 days she went to Dhoraiya police station where she identified the clothes and photographs of dead body of her husband. 22. PW 4 stated only to this extent that on 09.05.1988 at about 01:00 p.m. his brother in law was taken away by the appellant and did not return till night whereupon he along with his sister (PW 3) went to the house of appellant to enquire about the deceased but appellant did not give any satisfactory answer and in course of search on 22.05.1988 he went to Dhoraiya police station where he identified photographs and clothes of deceased. The attention of this witness was drawn by the defence at para 3 of his cross-examination and this witness stated that he had made statement before the police to this effect that his brother in law was taken away by the appellant. Admittedly Investigating Officer of this case was not examined by the prosecution in course of trial and on account of non-examination of Investigating Officer the appellant could not get an opportunity to bring the contradiction of PW 4 on the record because before the Investigating Officer PW 4 had stated that having got information about the alleged occurrence from his sister he came to the house of his sister. Therefore in the aforesaid circumstance PW 4 also appears to be a hearsay witness. 23. According to prosecution case the deceased was taken away on 09.05.1988 and his dead body was recovered on 10.05.1988. Furthermore it is prosecution case that PW 3 as well as her other family members went to Dhoraiya police station on 22.05.1988 and identified clothes and photographs of deceased. Admittedly between 09.05.1988 to 22.05.1988 PW 3 as well as other witnesses never disclosed the name of appellant nor the manner in which the deceased was taken away by the appellant and for the first time father of the deceased on 22.05.1988 gave written petition (Exhibit-1) to officer-in-charge of Dhoraiya police station. 24. The statement of appellant has been recorded under Section 313 of the Cr PC but no question regarding taking away the deceased by the appellant was put to him at the time of recording his statement under Section 313 of the Cr PC. Admittedly charge under Section 364 of the Indian Penal Code was not framed and the learned trial Court framed charge under Section 302/34 of the Indian Penal Code. Although a person can be convicted for the minor offence if the charge has been framed against him for major offence but in the instant case admittedly no question regarding the factum of kidnapping and abduction was put to appellant in his statement recorded under Section 313 of the Cr PC and it is well settled principle of law that if circumstances and materials against the accused emerged in course of trial and the said circumstances and materials are not brought to the notice of an accused the accused cannot be convicted and his entire trial would be vitiated. Therefore in view of the aforesaid dictum of law; in my view the appellant could not have been convicted under Section 364 of the Indian Penal Code because the evidence, which had come against the appellant in course of trial was not placed before him while recording his statement under Section 313 of the Cr PC. 25. Therefore in view of the aforesaid dictum of law; in my view the appellant could not have been convicted under Section 364 of the Indian Penal Code because the evidence, which had come against the appellant in course of trial was not placed before him while recording his statement under Section 313 of the Cr PC. 25. On the basis of aforesaid discussions it is clear that except the testimony of PW 3 there is nothing on the record to connect the appellant in the alleged crime and so far as the testimony of PW 3 is concerned the same also appears to be doubtful because for the first time she opened her mouth when she as well as other witnesses identified the photographs of deceased after 12 to 14 days of the alleged occurrence. 26. On the basis of aforesaid discussions. I am of the opinion that prosecution could not succeed to prove its case beyond all shadow of reasonable doubts and the appellant is entitled to get benefit of doubt. 27. Thus this criminal appeal is allowed and the impugned judgment of conviction dated 14.02.2001 and order of sentence dated 20.02.2001 are hereby set aside. The appellant is on bail. He is discharged from the liabilities of his bail bonds. Appeal allowed.