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2013 DIGILAW 465 (PAT)

Anand Kishore Thakur v. State of Bihar

2013-04-08

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT Hemant Kumar Srivastava, J. Heard learned counsel for the appellants as well as learned Addl. Public Prosecutor for the State and perused the record. 2. This criminal appeal has been preferred against the judgment of conviction dated 27.6.2001 and order of sentence dated 28.6.2001 passed by learned Addl. Sessions Judge III, Madhubani in Sessions trial No. 110/1981 by which and whereunder he convicted the appellants for the offences punishable under Sections 147, 429, 380 and 149/436 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for five years for the offence punishable under Section 436 read with Section 149 of the Indian Penal Code to undergo rigorous imprisonment for one year' for each offences punishable under Sections 147, 380, 429 of the Indian Penal Code and furthermore each appellants were also sentenced to pay a fine of Rs.1000/- and in default of payment of fine they were ordered to undergo rigorous imprisonment for three months. However all the sentences were ordered to run concurrently. 3. In brief the prosecution case is that PW 8 Kari Paswan gave his fardbeyan to Sub Inspector of Khajauli police station namely C.S.P. Singh on 11.5.1975 to this effect that appellant No.1 namely Anand Kishore Thakur and his wife were robbed by some miscreants in the night of 9.5.1975 while they were returning to their home and appellant No. 1 as well as his supporters suspected that miscreants of Mohanpur village had committed the aforesaid occurrence of robbing. On 10.5.1975 at about 9 a.m. appellant No.1 accused Buchchi Thakur and Tej Narain Jha came at Mohanpur village and enquired about the above stated occurrence of robbing appellant No. 1 disclosed that he had identified one Upendra Paswan. Informant and other villagers told the aforesaid persons that guilty persons would be handed over to them but again on 11.5.1975 at about 9 to 9.30 a.m. while informant was at his house he noticed that unlawful mob of three to four thousand persons armed with deadly weapons were coming towards his village and Tej Narain Jha, Umesh Jha (appellant No.4), Anand Kishore Thakur (appellant No.1) and Bucchi Thakur were leading the aforesaid unlawful mob and Saryug Jha, Rajendra Jha and Sitaram Jha armed with bhala and other weapons were also present in the said mob. The aforesaid unlawful mob came at his village and persons who were leading to the unlawful mob ordered others to set the houses on fire and also commit loot and thereafter Tej Narain Jha made a firing. Informant as well as his villagers left their houses out of fear and fled to some distance from where they witnessed the alleged occurrence. He further stated that some persons went Babubarhi block and police station to give information about the alleged occurrence. The aforesaid persons of unlawful mob set altogether 42 houses on fire and also committed loot from the aforesaid houses. The house hold articles as well as some cattles of the aforesaid houses were burnt. He further stated that having got information regarding the aforesaid occurrence. BDO and police officials came at his village and apprehended five persons namely Matar Mandal, Jagdish Mandal. Ramfal Mandal, Bahir Rai as well as Nandlal Yadav. 4. On the basis of the aforesaid fardbeyan, Khajauli P.S. case No. 07/1975 was registered on 12.5.1975 and formal FIR was prepared on the same day and formal FIR as well as fardbeyan were put up before the Chief Judicial Magistrate on 13.5.1975 and after completion of investigation. Investigating Officer submitted charge-sheet against the appellants and several others for the offences under Sections 147, 148, 149, 341, 323, 436, 429, 379, 380 of the Indian Penal Code. The cognizance of-the offences was taken and the case was committed to the Court of Sessions in usual way. 5. Appellants and others were charged for the offences punishable under Sections 429 and 380 of the IPC whereas one accused namely Tej Narain Jha was separately charged for the offence punishable under Section 148 of the IPC and rest accused including the appellants were jointly charged for the offence punishable under Section 147 of the IPC. Similarly one co-accused Saryug Jha was separately charged for the offence punishable under Section 436 of the IPC whereas rest accused including the appellants were charged for the offence punishable under Section 436 read with Section 149 of the IPC and furthermore accused Tej Narain Jha along with accused Buchchi Thakur and appellant Nos. 1 and 4 were charged for the offence punishable under Section 109/436 of the IPC. All the above stated charges were denied by the appellants and others accused and claimed to be tried. 6. 1 and 4 were charged for the offence punishable under Section 109/436 of the IPC. All the above stated charges were denied by the appellants and others accused and claimed to be tried. 6. In course of trial prosecution examined altogether nine witnesses and the prosecution also got exhibited fardbeyan as exhibit 1. The statements of the appellants and other accused were recorded under Section 313 of the Cr PC in which they reiterated their innocence. 7. No evidence was adduced by the appellants and others in support of their defence but from perusal of statements of the appellants and other accused recorded under Section 313 of the Cr PC as well as cross-examination of prosecution witnesses it appears that the defence was total denial of the prosecution story. 8. The learned trial Court having relied upon the prosecution evidence passed the impugned judgment convicting the appellants for the offences punishable under Sections 147, 429, 380 and 149/436 of the IPC whereas by the impugned judgment of conviction appellant No.2 Saryug Jha was acquitted of the charge framed against him under Section 436 of the IPC and the appellants and• others were acquitted of the charge framed under Section 436 read with Section 149 of the IPC and accused Nandlal Yadav, Ramfal Mandal and Jagdish Mandal were acquitted of all the charges framed against them. 9. During the pendency of the trial accused Tej Narain Jha died and proceeding against him was abated and similarly during the pendency of this appeal appellant Nos. 2, 3 and 5 died and proceeding against them was abated by this Court vide order dated 21.3.2013. 10. Learned counsel for the appellant Nos. 1 and 4 assailed the impugned judgment of conviction and sentence order arguing that prosecution has specifically asserted motive of the alleged occurrence and it was stated by PW 8 in exhibit 1 that two days prior to the alleged occurrence appellant No. 1 and his wife were robbed by some unknown miscreants and in retaliation to the aforesaid robbery, the appellants as well as three to four thousand people attacked his village and burnt several houses on fire. Learned counsel for the appellants submitted that in course of trial not a single prosecution witness has stated about the above stated motive. Learned counsel for the appellants submitted that in course of trial not a single prosecution witness has stated about the above stated motive. He further submitted that exhibit appellant No. 1 fardbeyan of PW 8, is not a substantive piece of evidence and therefore, it is apparent that prosecution could not succeed to prove the motive of the alleged occurrence. He further submitted that no doubt prosecution is not always bound to prove the motive but when the prosecution has specifically, alleged the motive of the alleged occurrence in exhibit 1 prosecution was duty bound to prove motive of the alleged occurrence and failure on the part of the prosecution to prove motive of the alleged occurrence was fatal to the prosecution case. Learned counsel for the appellants further submitted that PW 8 has admitted at para 12 of his cross-examination that after alleged occurrence, he rushed to the police station but no body was present in the police station and after that he gave his statement to the BDO, Babubarhi block who recorded his statement and took his thumb impression on the aforesaid statement but the prosecution did not bring the aforesaid statement on the recorded apart from this, BDO was also not examined and. therefore, non-production of previous statement of PW 8 as well as non-examination of the concerned BDO was .fatal to the prosecution case because non-production of first statement of PW 8 in respect of alleged occurrence has caused serious prejudice to the appellants. He further submitted that except prosecution witness No.8, not a single witness has named the appellants in course of trial and. therefore in the aforesaid circumstance, the appellants are entitled to get benefit of doubt. He further submitted that Investigating Officer as well as other official witnesses were not examined on behalf of the prosecution and e apart from this not a single material exhibit was produced before the Court in course of trial. So the above stated facts are also fatal to the prosecution case. 11. On the other hand learned Addl. Public Prosecutor appearing for the State supported the impugned judgment of conviction and sentence order arguing that almost all material witnesses have supported on the point of occurrence and so far as participation of the appellants in the alleged crime is concerned. PW 8 has specifically stated that appellant Nos. 11. On the other hand learned Addl. Public Prosecutor appearing for the State supported the impugned judgment of conviction and sentence order arguing that almost all material witnesses have supported on the point of occurrence and so far as participation of the appellants in the alleged crime is concerned. PW 8 has specifically stated that appellant Nos. 1 and 4 had participated in alleged crime and therefore the prosecution successfully proved its case beyond all shadow of reasonable doubts and the learned trial Court has rightly convicted and sentenced the appellants. 12. As I have already stated that altogether nine prosecution witnesses were examined in this case but except PW 8 not a single prosecution witness has named appellant Nos. 1 and 4. So far as PW 8 is concerned PW 8 (informant) supported the alleged occurrence and claimed to have identified the appellants and others at the time of alleged occurrence but no specific overt act against the appellants was attributed by PW 8. Moreover at para 12 of his cross-examination PW 8 has admitted that after alleged occurrence he went to police station where he did not find any police official and thereafter he narrated the entire incident to BDO. Babubarhi block who recorded his statement and took his thumb impression. 13. Admittedly the aforesaid BDO was not examined by the prosecution nor Investigating Officer of this case was examined. 14. The learned trial Court has dealt with the aforesaid point at para 9 of the impugned judgment and came to the conclusion that non-production of the previous statement as well as non-examination of the aforesaid BDO was not fatal to the prosecution case and PW 8 being illiterate person gave the aforesaid statement under some misconception and confusion but in my view the above stated finding of the learned trial Court is only on the basis of surmises and conjectures and non-production of previous statement of PW 8 as well as non-examination of the aforesaid BDO. Babubarhi was fatal to the prosecution case because the appellants could not get an opportunity to clarify the above stated ambiguity. 15. Admittedly, Investigating Officer has also not been examined nor any burnt material was produced before the learned trial Court in course of trial and, in my view, non-examination of the Investigating Officer was also fatal to the prosecution case. 16. 15. Admittedly, Investigating Officer has also not been examined nor any burnt material was produced before the learned trial Court in course of trial and, in my view, non-examination of the Investigating Officer was also fatal to the prosecution case. 16. Admittedly except PW 8 not a single witness has come forward to depose against appellant Nos. 1 and 4 and, therefore, in my view, appellant Nos. 1 and 4 are entitled to get benefit of doubt. 17. On the basis of the aforesaid discussions, I feel no hesitation to hold that the prosecution could not succeed to prove its case beyond all shadow of reasonable doubts. 18. Thus, this criminal appeal is allowed and the impugned judgment of conviction and sentence order in respect of appellant Nos. 1 and 4 are, hereby, set aside. Both the above stated appellants are on bail. They are discharged from the liabilities of their bail bonds. Appeal allowed.