Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 1153 (PAT)

Pallo Rabidas v. State of Bihar

2014-11-20

JITENDRA MOHAN SHARMA, NAVANITI PRASAD SINGH

body2014
JITENDRA MOHAN SHARMA, J.:–The instant appeal is preferred against the judgment of conviction dated 3rd April, 1992 and order of sentence dated 8th April, 1992 passed by the learned 3rd Additional Sessions Judge, Bhagalpur in Sessions Trial No. 254 of 1989 / 915 of 1990 whereby and whereunder the sole appellant has been found guilty for committing the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life. 2. The prosecution case was initiated at the behest of Jitan Ravidas (PW 5) brother of the deceased Videshi Ravidas. Shortly stated, the prosecution case is that 7th March, 1985 was the day of Holi festival and Rajo Rabidas, a neighbour of the informant, came to his house and Poured coloured water on the wife of the informant to which the informant asked Rajo Rabidas as to why he poured coloured water on his Bhabhu (younger brother’s wife) and this annoyed Rajo Rabidas to the extent that he went back to his house and from there Rajo Rabidas came armed with Farsa, his brother Palo Rabidas (appellant) armed with dagger, Thalo Rabidas armed with spear, Tera Rabidas armed with spear, Banke Rabidas came into courtyard of the informant. Banke Rabidas ordered to kill and then Thalo Rabidas and Rajo Rabidas caught hold the elder brother of the informant namely, Videshi Rabidas and the appellant Palo Rabidas assaulted him by dagger on his left stomach and right side of the back resulting Videshi Rabidas became senseless. Tera Rabidas caught hold the informant and assaulted him by slaps. The occurrence was witnessed by Dino Rabidas, Saran Rabidas (PW 1), Sitabi Ravidas (not examined), Paran Rabidas (PW 2) and other villagers. The aforesaid accused persons also took away utensils of the informant. The injured Videshi Rabidas was brought to Bhagalpur Medical College and Hospital. The fard-beyan was recorded by Shri Shatrughan Singh, A. S. I. of Bhagalpur Medical College Hospital Police Station on 7.3.1985 at 7.00 pm (Ext. 1) on the basis of which a formal FIR was drawn. Inquest was prepared and post mortem was conducted and the post mortem report (Ext. 3) was prepared by Dr. H. I. Ansari. After investigation chargesheet was submitted and accordingly, cognizance was taken. 1) on the basis of which a formal FIR was drawn. Inquest was prepared and post mortem was conducted and the post mortem report (Ext. 3) was prepared by Dr. H. I. Ansari. After investigation chargesheet was submitted and accordingly, cognizance was taken. The case was committed to the court of Sessions where besides the appellant co-accused Rajo Rabidas and Thalo Rabidas have also faced trial but two were acquitted and the appellant was convicted and sentenced as above. 3. The defence of the appellant is that he is innocent and has been falsely implicated. 4. Learned trial Judge after conclusion of the trial found the appellant guilty for committing the offence punishable under Section 302 of the Indian Penal Code and accordingly, sentenced him to undergo imprisonment for life whereas two co-accused Rajo Rabidas and Thalo Rabidas have been acquitted. 5. In this case six witnesses have been examined including the informant and two court witnesses have been examined and on the basis of statement of court witness Kaushalya Devi the appellant has been convicted and sentenced. 6. Learned counsel for the appellant pressing this appeal has submitted that virtually the case is of no evidence but in spite of that the appellant has been convicted. All the witnesses including the informant have turned hostile and have not supported the prosecution case. During cross-examination CW 1 Kaushalya Devi has also became unreliable as according to her, she was not present at the time of occurrence. She was not an eye witness according to herself. Similar is the fate of CW 2 Uma Devi also but in spite of that the learned Trial Judge without any basis has convicted the appellant. 7. Now we are taking the evidence of PW 5, Jitan Rabidas, the informant himself. This witness has stated that he does not know as to how his brother Videshi Rabidas died and he has not seen the occurrence, resulting on the prayer of prosecution this witness has been declared hostile but there is nothing in his cross-examination done by the prosecution by which charge framed against the appellant can be proved and much less beyond shadow of reasonable doubts. 8. PW 1 is Saran Rabidas. He has also turned hostile and has not supported the prosecution case. Similar is the fate with PW 2 Paran Rabidas, PW 3 BabuLal Das, PW 4 Chhedi Rabidas. 8. PW 1 is Saran Rabidas. He has also turned hostile and has not supported the prosecution case. Similar is the fate with PW 2 Paran Rabidas, PW 3 BabuLal Das, PW 4 Chhedi Rabidas. All have turned hostile and have not supported the prosecution case. All have been cross-examined by the prosecution but nothing has come by which charge framed against the appellant can be substantiated. PW 6 is a formal witness and has proved the fard-beyan as Ext. 1 and formal FIR as Ext. 2. Though this witness being an Advocate Clerk of Public Prosecutor is not aware about anything. 9. We have considered and perused the impugned judgment which reveals that during trial CW 1 with her daughter CW 2 appeared suo-moto in the court. They are not chargesheeted witness. Both claimed to be the wife and daughter of the deceased and accordingly, the court examined them as court witness no. 1 and 2. 10. We have scrutinized the evidence of CW 1 and CW 2. CW 1 during cross-examination in paragraph 10 of her evidence has stated specifically that during Holi she was in her Naihar and she came after hearing the news of murder of her husband. Thus, she is not an eye witness and at best she can be a hearsay witness. This court witness no. 1 has contracted marriage with another man after the death of Videshi Rabidas. This witness has been examined under Section 311 Cr.P.C. on 24.11.1990. CW 2 has been examined by the court after asking several questions and she has stated specifically that she has not seen the commission of murder of her father. Repeatedly CW 2 has stated that who stabbed her father has not been seen by her. She has also stated that her mother was in her Naihar. She was with her mother and after hearing the news of murder of her father she came later on. This witness has been examined on 17.6.1991 and cross-examined on 4.9.1991 whereas the statement under Section 313 Cr.P.C. of the accused persons has been recorded on 17.6.1991 itself. 11. Thus, having considered the evidence available on the record carefully and cautiously, we are of the opinion that the prosecution has miserably failed to substantiate the charge framed against the appellant. How the trial judge convicted the appellant without any evidence and much less reliable evidence is surprising. 11. Thus, having considered the evidence available on the record carefully and cautiously, we are of the opinion that the prosecution has miserably failed to substantiate the charge framed against the appellant. How the trial judge convicted the appellant without any evidence and much less reliable evidence is surprising. No court of justice can rely upon the statement of CW 1. Evidence of witnesses can be taken into consideration as a whole and it cannot be bisected or trisected. No court can rely upon the statement made in examination-in-chief after overlooking the statement made in the cross-examination. The evidence has to be taken as a whole. There was no reason to believe the statement of CWs 1 and 2 who make different statements at different times and as the statement is contradictory to each other, such a witness cannot be believed. The learned trial judge has failed to appreciate that the evidence of CWs 1 and 2 suffers from the inherent contradictions and improbabilities. CW 1 was again examined on 29.7.1991 and at that time she made a statement that her dewar had mixed something in the tea which aberated her mind at the time of her earlier deposition. CW 2 has stated that on the date of occurrence she had gone to Bhagalpur Bazar for purchasing. Both CWs 1 and 2 have not been examined by the Investigating Officer and both have appeared first time in the court and court permitted their examination. The Investigating Officer has not been examined. The doctor who conducted autopsy on the dead body of the deceased has also not been examined. Learned counsel for the appellant has submitted that non-examination of I. O. and Doctor has caused great prejudice to the appellant and it cannot be cured under Section 294 of the Cr.P.C. by mere production of the post mortem report and case diary before the trial court. 12. I am of the view that there was no satisfactory and reliable material on the record to warrant the conviction of the appellant for committing the offence under Section 302 of the Indian Penal Code. 13. In the result, the impugned judgment of conviction and order of sentence is set aside and this appeal is allowed. The appellant is set at liberty and freed from the liabilities of his bail bonds. NAVANITI PRASAD SINGH, J.:–I agree. ?