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2014 DIGILAW 1133 (PAT)

Harinandan Sao v. State of Bihar

2014-11-17

JITENDRA MOHAN SHARMA, NAVANITI PRASAD SINGH

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NAVANITI PRASAD SINGH, J.:–These two appeals by the four appellants is against the judgment of conviction and order of sentence dated 12.05.1992 passed by the Additional sessions Judge II, Munger in Sessions Trial No 67 of 1990 whereby all the four appellants have been convicted for offence punishable under Sections 302/34 of Indian Penal Code (IPC) and sentenced to rigorous imprisonment for life. 2. It may be noted that appellants Arun sao and Harinandan Sao are brothers and appellants Tuintun sah and Nepali Sah are brothers. They have been charged with committing murder of Tarni Sao and his son Suresh Sao being the husband and son respectively of the informant Anchhi Devi (PW 1) whose daughter is Pabitri Devi (PW 2). 3. In order to establish the prosecution case, prosecution has examined nine witnesses but has not examined the Investigating Officer (IO) who conducted the investigation. PW 9 Bishundeo Prasad is the IO who merely submitted chargesheet. PWs 7 and 8 are the two doctors who conducted the post mortem examination of Tarni Sao and Suresh Sao, the two deceased. In their evidence, there are only two important facts to be noted. Firstly, that both the deceased were brutally assaulted on the head. There were multiple injuries resulting in their death and that doctors do not rule out the possibility that injuries were caused were of lathi. The second aspect is that both had their bladders and stomach empty though they are supposed to have been killed at about 4 am which apparently is not consistent to prosecution case that they have taken their meals before they went to sleep at about 12.30 pm at night. 4. The prosecution case is based upon the Fardbayan of PW 1 Anchhi Devi recorded at about 5 am in the morning of 05.11.1989 which was the night of “Chath”. It is, inter alia, alleged that the informant’s husband and son, after taking their meals, had gone to sleep in the hutment made on the roof of the house at about 12-12.30 at night. At about 4 am, on 05.11.1989, this witness heard the cry of her son. She came out of the house and found the four appellants allegedly descending from the roof by the bamboo ladder. They then brutally assaulted her husband. She then went on the roof and found her son killed having been brutally assaulted. At about 4 am, on 05.11.1989, this witness heard the cry of her son. She came out of the house and found the four appellants allegedly descending from the roof by the bamboo ladder. They then brutally assaulted her husband. She then went on the roof and found her son killed having been brutally assaulted. The motive is some past rivalry. Upon the Fardbayan being lodged with the ASI of Piri Bazar Outpost, inquest was prepared which has been brought on record. It may be noted here that if one refers the inquest, as prepared in respect of the husband of the informant Tarni Sao, it shows that his dead body was found on the cot outside in front of his house on the road and that of his son on the roof of the house on a cot. Police, upon investigation having submitted chargesheet against the four appellants, the case was committed to the Court of Session and the appellants, having pleaded not guilty, were tried and convicted. 5. In course of trial, as noted earlier, prosecution has examined nine witnesses. PWs 7 and 8 are doctors who performed the post mortem examination. PW 9 Bishundeo Prasad is the IO who submitted chargesheet but did not conduct any investigation. PWs 3 and 6 being Raghunandan Sah and Dhaneeshwar Sao have been declared hostile. That leaves us with the informant Anchhi Devi (PW 1), her daughter Pabitri Devi (PW 2), Upendra Prasad (PW 4) and Dhirendra Prasad (PW 5). 6. PW 4 Upendra Prasad and PW 5 Dhirendra Prasad are Advocate Clerks. They are virtually formal witnesses. One proves the signature of Bishundeo Prasad, the Officer-in-charge (PW 9) on the first information report (FIR) though admits that he is not privy to the said document. The other proves the handwriting of ASI P Singh which is the fardbayan. Again, he is not privy in any manner to the document. 7. In this connection, we may note with anguish as to how the Court allowed these two witnesses to take stand at all. They are mere roving witnesses (Sankat Mochan witnesses). How they were at all competent to take the stand as a witness and to prove the said exhibits is not understood? Why the Court permitted them is also not understandable? The sooner this practice ends, the better it is. They are mere roving witnesses (Sankat Mochan witnesses). How they were at all competent to take the stand as a witness and to prove the said exhibits is not understood? Why the Court permitted them is also not understandable? The sooner this practice ends, the better it is. The documents proved by them that is Exhibits 2 and 3 are, thus, inadmissible in evidence as they were not competent to take the stand at all. 8. That leaves us with only two other witnesses that is the informant Anchhi Devi (PW 1) and her daughter Pabitri Devi (PW 2) and the whole prosecution case hinges upon their evidence. 9. PW 1, as noted above, is the wife of the deceased Tarni Sao and the mother of the second deceased Suresh Sao and is the informant. She states that she was observing the “Chath” rituals. Her husband and her son were sleeping on the roof. She and her daughter were sleeping in a room in the ground floor. In the evening, one Bali Singh of Bariarpur had come and had enquired about some case from her husband. He had said that he would return in the evening but he did not come. At about 4 am, the informant heard the shouts of her son. She came out and saw the four appellants coming down from the bamboo ladder from the roof of her house. She then climbed up and found her son injured and her husband dead. She then states that her daughter had also seen the appellants coming down and run out. In the cross-examination, she admits that her Angan is also the Angan of appellant Nepali Sah. She states that she had disclosed to the police that she had seen the appellants coming down from the bamboo ladder. In paragraph-7, she admits that she had given statement in course of investigation that she had seen both her husband and her son lying injured on the roof. At the end of cross-examination, she reasserts this fact. She admits that she had stated to the police that her daughter had seen the miscreants as well. She denies having made statement to the police in course of investigation that it was in fact Bali Singh who was responsible for killing her son and her husband. At the end of cross-examination, she reasserts this fact. She admits that she had stated to the police that her daughter had seen the miscreants as well. She denies having made statement to the police in course of investigation that it was in fact Bali Singh who was responsible for killing her son and her husband. She admits knowing that police did not file chargesheet against Bali Singh and she states that she did not file any protest petition. She admits that an enquiry had been conducted by the District Collector which was conducted by one Chandrika Prasad Singh who had made enquiries and submitted a report. She had been examined by the said Chandrika Prasad Singh in that enquiry. In her cross-examination, she then suddenly changes the story. She states that her daughter had not climbed on the roof and in fact her husband was found dead on the road but she had not seen him being killed. She states that her husband and her son were sleeping on separate cots but when she had gone up, she found her husband’s cot vacated. She saw from there her husband lying dead on the side of the road. She then alleges that she had identified the persons in the light of the torch which was with her daughter. She states that her daughter had gone to a well nearby to fetch some water and she was carrying a torch. She admits that she had not shown the torch to any police official nor disclosed the same. The torch is still with her and has not been seized. This is the evidence of the so-called eye witness and the informant. If we see the evidence carefully, we find that she is not sure herself as to where she had seen the dead body of her husband. In the first part, she maintains that he and her son both were found dead on the roof where they had gone to sleep. Then she says that she found her husband lying dead on the roadside outside the house. She states that she had seen the four appellants coming down through the bamboo ladder. She identifies them with the torch light being shown by her daughter who had gone to the well to fetch water. 10. Then she says that she found her husband lying dead on the roadside outside the house. She states that she had seen the four appellants coming down through the bamboo ladder. She identifies them with the torch light being shown by her daughter who had gone to the well to fetch water. 10. Having considered the matter, in our view, either this witness is totally confused making her evidence completely unreliable or she is deliberately speaking lies. The true incident is not being projected. If we see the inquest report, it would appear that the dead body of her husband was found in front of the house of Gulo Sah on the road and that of her son on the roof. Inspite of this, she makes both statements that is having seen both the bodies on the roof and then having seen husband’s body outside the house on the road. She has said that they were both sleeping on the roof. Therefore, it was for her to explain how his body was found on the roadside. She fails to do so. When we come to identification, no source of identification has been shown to the police or seized by the police. What is then said by her that in the torch light held by her daughter from the well, she was able to identify the persons. The ladder was unfortunately in the Angan of the house that is the interior part. The well, we will see, is situated at quite some distance across the road and far away from the house. It has not been shown by the prosecution that from the well any other person could have thrown light from the torch in such a manner to see the appellants. We cannot rely upon the evidence of PW 1. 11. We come to PW 2 who is the daughter of the deceased. She states that at 4 am in the morning, on the eve of Chath, she had gone to a well. She states that the well is only about 20 yards away from the house but admits that there is a road in between and there are some agricultural plots also in between. She states that at 4 am in the morning, on the eve of Chath, she had gone to a well. She states that the well is only about 20 yards away from the house but admits that there is a road in between and there are some agricultural plots also in between. This confusion or her deliberate statement is exposed when we have the defence witness who clearly brings out that the well is 100 to 150 yards away from the house across the road and after some agricultural plots in between. From there, being able to shine the torch and see the incidences, identify the persons, we think, is quite impossible. Chath is the sixth day from new moon’s day and it is the dark night. That apart, it being the eve of Chath festival, at 4 am even though it is winter, the village must be alive because of the morning rituals which take place with the rising of the sun. It is surprising that no one was seen by this witness as she says. No other independent witness was there at that time which is strange. She now deposes that she saw her father jumped from the roof and he was then assaulted. She saw the four appellants climbed down the ladder which is quite impossible because the ladder was in the Angan of the house. She is again questioned with regard to the source of identification. She also admits that it was not seized by the police. She admits that she had not seen any one killing either her father or her brother but her mother had seen. Another important thing is that she states that her father and brother had their dinner and gone to sleep on the terrace at about 12-12.30 in the night. This incidence is of 4 am. The post mortem report shows that their bladders were empty. Their stomachs were empty. That is a material contradiction. It could not be so if they had their dinner and then gone to sleep. She admits that the well is about 100 yards away from the house but maintains that she had seen everything in the torch light which was neither shown to the police nor seized by the police. There is nothing to establish the source of identification. 12. She admits that the well is about 100 yards away from the house but maintains that she had seen everything in the torch light which was neither shown to the police nor seized by the police. There is nothing to establish the source of identification. 12. This is all the evidence that is against the appellants and regrettably, based on this evidence, the trial Court has chosen to convict the appellants. We regret our inability to agree with the judgment of the trial Court. We need not go into the defence evidence though DW 1 is a material witness inasmuch as he was the village Chowkidar on the date of occurrence. He clearly states that when at about 4 am in the morning, he was going to the pond nearby where Chath Puja had to be performed in the morning, he found the dead body of Tarni Sao lying on the road in front of the house of Gulo Sah (DW 2). He then woke up Gulo Sah who is DW 2 and then had come and woken the informant (PW 1), thus, setting up a totally different story and sequence of events. It is he who had gone to the Thana, informed the police and the police came thereafter. This is not challenged by the prosecution in any manner. That being so, we are unable to accept the story of the prosecution. 13. For the reasons aforesaid, we cannot sustain the judgment and order of the trial Court which is, accordingly, set aside. We allow the appeal. The appellants are on bail. They are freed from the liabilities of their bail bonds. ?