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2014 DIGILAW 664 (PAT)

Ramchandra Sao v. State of Bihar

2014-06-17

ANJANA PRAKASH, DHARNIDHAR JHA

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JUDGMENT (Per: HONOURABLE JUSTICE SMT. ANJANA PRAKASH) The appellant Subhash Sao of Criminal Appeal No. 321 of 1991 has been convicted under Section 120(B) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life, whereas Appellants Ramchandra Sao, Dholan Sao @ Udai Shanker Sao, Shyam Sao and Biru Sao have been convicted under Sections 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. In addition, Appellant No. 2 has also been convicted under Section 120(B) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life by a Judgment dated 17.7.1991 passed by the Additional Sessions Judge-VIII, Patna, in Sessions Trial No. 1010 of 1989. 2. The case of the Prosecution according to the Informant Gopendra Prasad, PW-13, is that on 27.2.1989, Ashok Kumar, PW-4, came to his house and told him that while his brother deceased Rajendra Sao was coming on his Auto Rikshaw, he was pulled out by four persons and, thereafter, taken away to the field nearby. His dead-body was recovered on the same day at the intervention of the Police. A case against unknown was instituted on such information. 3. During Trial, the prosecution to prove its case, examined as many as 15 witnesses. While PW-2, N.K. Singh, is the Doctor who had held the postmortem examination of the deceased. PW-3, Upendra Prasad, PW-6 Raghunandan Prasad, PW-9 Dileshwar Prasad and PW-14 Bachchu Prasad are formal witnesses, who have proved the inquest report, the First Information Report and the Fardbeyan. There are some witnesses who had appeared as witnesses to the actual occurrence whereas the rest of them have corroborated circumstantially that the Appellants were present which shall be discussed now. 4. PW-1, Banarsi Prasad Yadav, was a Tempo Driver, who allegedly had seen the occurrence and saw the accused persons pulling out the deceased, after which his dead-body was recovered. He identifies the accused persons in Court. It is relevant to point out herein itself that even though, the occurrence is said to have taken place on 27.2.1989, his evidence was recorded on 26.5.1990 i.e. about 1 and 1/2 years later and, therefore, his evidence on the point of identification, does not appear very credible. He identifies the accused persons in Court. It is relevant to point out herein itself that even though, the occurrence is said to have taken place on 27.2.1989, his evidence was recorded on 26.5.1990 i.e. about 1 and 1/2 years later and, therefore, his evidence on the point of identification, does not appear very credible. More so, had he been an eye witness to the occurrence, he would have been summoned to attend the Test Identification Parade just as the Investigating Officer summoned PW -4 for the same. Moreover his attention was drawn to the fact that his evidence was recorded 7-8 months after the occurrence. In Paragraph 18, even though he knew the family of the deceased yet he did not inform anyone about the same. In fact, he states that after he had seen the occurrence, he went home which is a very unnatural conduct of a person who had seen the deceased a well-known person being dragged out of the Auto Rikshaw. 5. PW-4, Ashok Kumar, is the Tempo Driver on whose Tempo the deceased had been seated and pulled out from the same and had names the present Appellants. Surprisingly, despite the same, he was asked to attend the Test Identification Parade which was meaningless in view of the fact that admittedly Appellant Subhash Sao was well known to him. 6. PW-5, Mahesh Thakur, stated that on the night of 27.2.1989 at about 8:00-8:15 P.M. he had gone to ease himself when he saw the accused persons assaulting the deceased and also heard a sound of firing. Surprisingly, he stated that he did not disclose this fact to anyone. Further, he accepted hat he used to live only 1 K.M. away from the house of deceased Rajendra Sao but neither did he disclose the fact of being an eye witness to anyone nor to the family members. His attention was drawn to the fact that he had been examined after eight months of the occurrence. At this point, it would be relevant to point out to the evidence of the Investigating Officer, PW-15 who stated in Paragraph 13 that he had examined this witness on 6.10.1989. 7. PW-7 Savitri Devi @ Janki Devi is a petty shopkeeper who stated that about 2-3 days earlier to the occurrence, she had over heard a conversation between the accused who were speaking despairingly about the deceased. 8. 7. PW-7 Savitri Devi @ Janki Devi is a petty shopkeeper who stated that about 2-3 days earlier to the occurrence, she had over heard a conversation between the accused who were speaking despairingly about the deceased. 8. PW-8, Laxmi Narayan, stated that on the night of 27.2.1980 while he was going to ease himself, he had seen the accused persons emerging from the shadow in a very agitated condition. On the next day, he had heard rumour that the deceased had been killed. He accepts that he was examined 2 or 3 days after the said occurrence. His antecedent appears to be, that on 2 occasions, he had been sent to Jail custody in serious cases of dacoity. 9. PW-10, Ashok Kumar, is the nephew of the deceased who stated that on the date of occurrence, Ashok, PW-4, came and informed them about the occurrence. He states that it was on account of rivalry between the deceased and the accused persons over the level of business that the present occurrence had taken place. 10. PW-11, Sneh Lata Devi, is the wife of the deceased who gave out the motive of the occurrence that it was on account of land dispute that this occurrence had taken place and also of the same dispute over business and that the deceased used to tell her that he apprehended danger from the accused persons. 11. PW-12, Binay Ranjan Govind, was a Magistrate who conducted the Test Identification Parade of Subhash Sao in which Ashok Kumar, PW-4, attended and identified him. As discussed earlier, this has no relevance since it is accepted by P.W.4 that he knew Subhash Sao well, being his neighbour. 12. PW-13, Gopendra Prasad, is the Informant who apart from the factum of occurrence has not testified on any particular aspect of the case where the complicity of the present Appellants would go. 13. PW-15 is the Investigating Officer who in Paragraph-13 has stated that he has examined the widow of deceased PW-11 on 27.7.1989, PW-1 Banarsi Prasad Yadav on 11.9.1989, PW-8 Laxmi Narain on 6.10.1989 and PW-3 Mahesh Kumar also on 6.10.1989. 14. On an analysis of the occurrence, it appears that PW-7, Savitri Devi, PW-10, Ashok Kumar and PW-11, Sneh Lata Devi have been examined to prove their case of conspiracy against the accused persons. 14. On an analysis of the occurrence, it appears that PW-7, Savitri Devi, PW-10, Ashok Kumar and PW-11, Sneh Lata Devi have been examined to prove their case of conspiracy against the accused persons. However, as pointed out above, their evidence is fit to be rejected for the very simple reason that their statements being belated, do not appear reliable. Moreover, the motive has given out that PW-10 and PW-11 are contrary to each other. 15. As for direct material, PW-1 Banarsi Prasad Yadav, who is said to have identified the Appellants in Court also has been discussed above. Since the accused were never put on Test Identification Parade and firstly, identified after about 1 and 1/2 years in Court the aspect of identification of a sole accused present in the dock also does not inspire confidence. 16. PW-5, Mahesh Kumar, who also appears as an eye witness to the actual evidence, is not trustworthy for the very reason that had he been an eye witness he would have disclosed about the same at the earliest instance and not after 8 months. His evidence for this reason is fit to be rejected. The next direct evidence by way of identification of Appellants by PW-4 is also irrelevant in view of the discussion above. 17. In the result, the Appeal is Allowed. The order of conviction and sentence dated 17.7.1991 passed against the Appellants in connection with Sessions Trial No. 1010 of 1989 by the Additional Sessions Judge-VIII, Patna, is, hereby, set aside. 18. The Appellants are discharged from the liabilities of their respective bail bonds.