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2015 DIGILAW 950 (PAT)

Anirudh Singh v. State of Bihar

2015-07-28

DHARNIDHAR JHA, GOPAL PRASAD

body2015
DHARNIDHAR JHA, J.:–The six appeals arise out of judgment of conviction dated 11.03.2010 passed by the learned Presiding Officer, Fast Track Court No.II, Gaya in Sessions Trial No. 149 of 2009/613 of 2003 by which appellants Anirudh Singh and Dhananjay Singh were convicted of offences under Sections 302 and 201 of the Indian Penal Code and after being heard on sentence on 18.03.2010, each of them was directed to suffer rigorous imprisonment for life as also for three years on the two respective counts. As regards the other appellants, they had been convicted under Sections 302/149 and 201/34 of the Indian Penal Code and each of them was directed to suffer rigorous imprisonment under that count. The learned trial judge did not pass any substantive sentence against, appellants who were convicted under Sections 201/34 of the Indian Penal Code. 2. We have heard the batch of six appeals together and we are disposing them of by the present judgment. 3. Deceased Hari Nandan Pandey, as per the fardbeyan of his son Rakesh Pandey (PW6), was taking his meals in his house when appellant Anirudh Singh called him by his name to know as to whether he was home or not. Rakesh Pandey (PW6) stated that his sister Bibha Devi (PW5) peeped outside to find that it was not only appellant Anirudh Singh alone rather he was also accompanied by appellants Dhananjay Singh, accused Nanhku Singh and appellant Shri Kant Singh. The deceased came out of his house wrapped only in a dhoti and was told by appellant Anirudh Singh that he should accompany them up to their house. The deceased accompanied the above named accused persons right from the place in the same dhoti and he was taken to the house of accused Brij Nandan Singh. It was stated by the informant that he along with his sister Bibha Devi (PW5) followed their father to the house of the said Brij Nandan Singh to find that appellant Anirudh Singh was armed with a bhala and was telling his father that the son of the deceased, i.e., the informant had turned out into a rangdar and they were to see as to who came to save the deceased. Saying these words, it was alleged, appellant Anirudh Singh pierced a bhala into the chest of the deceased whereas other accused persons who were present there, i.e., accused Dhananjay Singh, Nanhku Singh and Shri Kant Singh dealt repeated blows with chhura which they were carrying with them on to the head of the deceased. The deceased fell down after having received the solitary blow with bhala and multiple blows with chhura on his head. Rakesh Pandey (PW6) and Bibha Devi (PW5) both attempted to intervene to save their father, but they were also assaulted and were driven away from there. The informant stated that the other accused persons named in the First Information Report including the present appellants put the deceased on a cot and lifted him to take him to Basaban Kunwar Khanda (Khanda is generally referred to a big chunk of fields located on any of the sides of the village). 4. The informant stated that his father did not come back and, as such, he along with his villagers went on a hunt for him when he found that his father was being beheaded by appellant Anirudh Singh and Dhananjay Singh by chhura and after having heard hulla, the appellants and other accused persons abandoned the trunk part of the body while leaving the place with the severed head. It was stated that a lot of villagers named in the First Information Report had also seen the occurrence who had accompanied the informant during the search for his father. 5. It appears undisputed that the incident having taken place somewhere after 8.00 P.M. in the night on 01.09.1995, no one ventured to go out of the village and to the police station to lodge the report. It was a complete lull during the whole night and as may appear from the evidence of S.I. Awadhesh Kumar Singh (PW8), he received a wireless message from the police headquarters informing him that a member of the Communist Party of India had been murdered by the Maoist wing of the same party. This information was received by PW8 at about 10.00 A.M. on 02.09.1995 and, accordingly, he left his police station with a Sub-Inspector of Police and a few Constables to verify the truthfulness of the information. 6. After reaching village Naili, he found the beheaded body of the deceased lying in the fields in Basaban Kunwar Khanda. This information was received by PW8 at about 10.00 A.M. on 02.09.1995 and, accordingly, he left his police station with a Sub-Inspector of Police and a few Constables to verify the truthfulness of the information. 6. After reaching village Naili, he found the beheaded body of the deceased lying in the fields in Basaban Kunwar Khanda. PW8 would say that it had rained in the night and there was some water which had accumulated at the place where the dead body was found. He held inquest upon the dead body and prepared the inquest report (Ext.4) in presence of the witnesses. He, thereafter, recorded the fardbeyan (Ext.3) of the informant Rakesh Pandey (PW6) and took up the investigation himself. He was shown the place of occurrence and he found that there were some signs of blood which were found on the floor of the darwaza of one Virendra Singh. He recorded the statement of witnesses, sent the dead body for post-mortem examination after preparing the dead body chalaan and on account of having been transferred from the police station handed over the charge of investigation to another officer. The other officer who had investigated the case had not been examined but what appears from the record is that the charge sheet was laid in the court which ultimately resulted in the trial and the impugned judgment. 7. The defence of the appellants was that the deceased was a staunch, active member of the C.P.I. (M.L.) and on account of extreme views and activities he had earned a lot of enemies in the rival Communist Party of India and probably taking advantage of the darkness of a rainy night the deceased was done to death by his rivals. It was also suggested as if no one had seen the commission of the murder of Hari Nandan Pandey and only when his dead body was found and seen by the villagers, a hue and cry message was sent to the police station which catalyzed the arrival of PW8 at the village for holding inquest. It was also suggested that because no one had seen the occurrence, so no one had come forward for more than twelve hours to lodge a report even after the arrival of PW8. 8. Eight witnesses were examined by the prosecution out of whom PWs. 2 and 7 was the same person Naresh Singh. It was also suggested that because no one had seen the occurrence, so no one had come forward for more than twelve hours to lodge a report even after the arrival of PW8. 8. Eight witnesses were examined by the prosecution out of whom PWs. 2 and 7 was the same person Naresh Singh. The learned judge who examined PW2 as PW7 appears completely ignoring some of the provisions of the Evidence Act and, as such, appeared re-examining him in chief and then allowing him to be declared hostile. It may be pertinent to point out that Naresh Singh (PW2) had been examined in chief and after a single line of cross-examination on 19.11.2005 the hearing of that witness was adjourned. He did not turn up for cross-examination ever and in the meantime, the Court had probably passed an order expunging the evidence of PW2. Subsequently the same witness appeared before the court below and because his evidence as PW2 had been expunged, the court below proceeded to examine him as PW7. We want only to point out that the evidence of a witness is never expunged as there is no provision either in the Code of Criminal Procedure or in the Evidence Act. The evidence of a witness could be appreciated and its value may be evaluated by the court. The another fall out on account of a witness having not turned up for cross-examination could be that his evidence could be rendered inadmissible on account of having not been cross-examined by the defence. The learned trial judge who allowed the examination of PW2 as PW7 was, in our opinion adopting a hybrid procedure. The best courts which could have been adopted by the trial judge, in our opinion, was to allow the recall of PW7 which power is always vested in a court by virtue of Section 311 Cr.P.C. and Section 165 of the Evidence Act and then should have permitted the prosecutor to cross-examine him if on cross-examination by the defence any statement which was detrimental to the interest of the prosecution had come on to the record. It could be the only right procedure and no procedure could have been as per law. We, as such, treat Naresh Singh (PW7) as Naresh Singh (PW2) and we want also to point out that his evidence has to be evaluated as that of any ordinary witness. 9. It could be the only right procedure and no procedure could have been as per law. We, as such, treat Naresh Singh (PW7) as Naresh Singh (PW2) and we want also to point out that his evidence has to be evaluated as that of any ordinary witness. 9. Of the remaining witnesses, Dr. Arvind Prasad (PW1) had not indeed held post-mortem examination on the dead body of Hari Nandan Pandey, he rather gave evidence that he was acquainted with the writings of the doctor who had performed autopsy and by virtue of that evidence the post-mortem report was brought on record as Ext.1. Mani Devi (PW3) was the mother of the informant Rakesh Pandey (PW6) and PWs. 4 and 5 were the two sisters of Rakesh Pandey (PW6). No independent witness was examined by the prosecution. 10. We were referred to the important evidences of the witnesses by the learned counsel appearing on behalf of the appellants in the appeals and what appears to us is that the silence which was maintained by the informant or his family members or for that matter any independent person of the village is one circumstance of the case which has engaged our attention to the most. There are many other features of the case which have equally engaged our attention, like, the First Information Report recital was that it was Rakesh Pandey (PW6) the son of the deceased who had become a thorn in the flesh of the accused persons but the deceased was killed instead. The First Information Report also states that the serious enmity existed between the parties in connection with a particular land which was described in the First Information Report. When the deceased was taken away by Anirudh Singh, Dhananjay Singh and Shri Kant Singh, it was not only the informant but his sister Bibha Devi (PW5) was also following him. The informant stated that while his father was being given blows by the accused by chhura on his head and he and his sister resisted, they were beaten and driven out. The informant stated that while his father was being given blows by the accused by chhura on his head and he and his sister resisted, they were beaten and driven out. If at all Rakesh Pandey (PW6) was a thorn as painful as appears from the First Information Report in the flesh of the accused persons, we do not see as to why he could have been spared by the accused persons and his father, who did not appear bearing any direct enmity against the accused persons would be killed by firstly, giving a blow with bhala and then by multiple blows with chhura to him. This part of the prosecution story has not gone well with us and, as such, has prompted us to go deeper in holding enquiry by perusing the evidence in the light of the fardbeyan. 11. The informant and his sister had been driven away and thereafter, as per his fardbeyan, he had run into the village to solicit some support from his villagers so as to coming again to the place to go out in search of his father and in that course he claimed to have reached the field where he saw his father being beheaded. We feel that the beheading of the dead body and before that the lifting of the deceased by putting him on a cot was already mentioned in the First Information Report and it was also mentioned that the accused persons had taken him away was very clearly witnesses by PW6 and his sister PW5. Then, why should the informant mention a particular line in the fardbeyan that on account of his father having not come back in the night, he along with some of his villagers set out on search of the deceased. When he and his sister had already been driven away and they had seen the deceased being carried away on a cot then where was the question of the deceased being expected to come back home. We treat this line as an important statement made by the informant so as to explaining away not only the delay but also for claiming himself to be eye witness to that part of the occurrence which related to the beheading of his father. We treat this line as an important statement made by the informant so as to explaining away not only the delay but also for claiming himself to be eye witness to that part of the occurrence which related to the beheading of his father. We begin under an assumption that neither PW6 nor his sister PW5 had been a witness to that part of the occurrence which related to the beheading of Hari Nandan Pandey by the accused persons. The above inference of ours gets more cemented by the fact that the beheading could have been somewhere in the night and within a few hours of 8.00 P.M. when the deceased had been taken away from his house because the general experience in such matters informs us that offenders who indulge in a crime of the present class do not wait for a particular time to arrive and rather after accomplishing the job they take to their heels very quickly and if the occurrence is taking place in night most of its part occur in confidence. It was a dark rainy night as appears stated by Mani Devi (PW3), the mother of PW6 and the wife of the deceased (PW3, Paragraph-6). Our experience of dark rainy nights further informs us that it is a dreadful scenario for anyone to venture out of ones house. If the informant was mustering his courage as much as to go out with his sisters and with his villagers to find out his father, we could not find any reason as to why he should not venture out in reaching the police station to inform the police. The police was never informed during the night and till it had arrived at the place of occurrence at 10.00 A.M. when PW8 had received the information not from the villagers rather from the police headquarters and that too through a wireless message. PW8 along with his Sub-Inspector of Police came to the site where the dead body was lying and his arrival at that place at 12.00 A.M. on 02.09.1995 is not disputed. Rakesh Pandey (PW6) has also stated in paragraph-48 of his evidence that before he had given his fardbeyan, PW8 had arrived at the place where the dead body of his father was lying. Rakesh Pandey (PW6) has also stated in paragraph-48 of his evidence that before he had given his fardbeyan, PW8 had arrived at the place where the dead body of his father was lying. The silence which we have referred to in some early part of the judgment was still continuing not only at the time when PW8 had arrived at the place where the dead body was lying, but appears continuing for half an hour more because as per PW8 he had arrived at 12.00 A.M. and after he had held inquest just after his arrival, i.e., at 12.00 A.M. he recorded the fardbeyan (Ext3) of PW6 at 12.30 A.M. The document Ext.4, inquest report, is testimony to that fact that inquest was held at 12.00 A.M. on 02.09.1995 and the report was prepared at that time by PW8. PW6 the informant himself also stated that he had given his statement to PW8 at 12.30 A.M. Prabha Devi (PW4) yet another sister of Rakesh Pandey (PW6) stated in paragraph-12 that she was very well present at the place where the dead body of her father was lying and as may appear from the evidence of Bibha Devi (PW5), a five thousand strong mob of villagers had assembled there. We have all the reasons to assume that the villagers must have trickled down to the place where the dead body was lying right from the time the news of Hari Nandan Pandey's dead body being found in a particular field had spread amongst the villagers. The evidence of PW5 or that of PWs. 3 and 4 do not point out any reason as to why they were in spite of being present there at the place of finding the dead body, had not given their statements to PW8 so as to initiating the investigation of the case. 12. If no information is given prior to the holding of the inquest by a police officer to him in spite of some good amount of time being spent by him at the place where he had found the dead body, then the inferences could be two fold. The first inference could be that no one had come forward to lodge the report because no one had indeed seen the occurrence. The first inference could be that no one had come forward to lodge the report because no one had indeed seen the occurrence. The second inference which could be raised under the circumstance could be that the informant was not telling the real story to the police and he had purchased time by not reporting the incident to the police so as to weaving out a story which he was to present subsequently to the police. We have both the inferences available to us from the above fact that no one was willing to inform PW8 in spite of his arrival for half an hour as to who indeed had committed the murder of Hari Nandan Pandey and in what manner leaving aside the reason behind it. 13. Evidences come from interested persons, like, Mani Devi (PW3) the wife of the deceased, Prabha Devi (PW4) the daughter of the deceased who was never citing as a witness in the First Information Report and Bibha Devi (PW5) who was named in the First Information Report and who was also said to have peeped out of the house to find out the three accused persons standing there who took away the deceased with them. There was a very categorical statement made in the fardbeyan and we also suppose it to be true that if indeed the incident of the magnitude had occurred in the village, it could have aroused the sentiments of the villagers who must have come out either in protest against the incident or in support of the informant. The informant stated that he had set out from his house after his father had not come back home in the night itself to find out as to where he was and he had seen his father being beheaded. At that particular moment he was having in his company a good number of his villagers. No one came to tell the trial court that the story which was propounded by the informant had indeed been witnessed by him. The submission of the counsel that in spite of the dead body being found out early on 02.09.1995, no report was lodged indicated towards no clue being in the knowledge of any of the villagers including the family members of the deceased. The submission of the counsel that in spite of the dead body being found out early on 02.09.1995, no report was lodged indicated towards no clue being in the knowledge of any of the villagers including the family members of the deceased. It was argued that the dead body itself was a testimony to that fact that the incident had not taken place on 01.09.1995 in the night at any particular point of time because the post-mortem report in spite of there being no evidence of the doctor was itself indicative of the fact that the decomposition had started which clearly indicated that the time of carrying Hari Nandan Pandey could be somewhere quite ahead of 8.00 P.M. on 01.09.1995. We see merit in the submission which we have also examined after looking to Ext.1 the post-mortem examination report which suggests that the deceased could have been murdered ahead of the time which was alleged by the prosecution. In our opinion, it was for this reason that the informant asserted that he had gone in search of his father because he had not come home. This particular line suggested to us that the deceased could have gone out for any other purpose and had not come back home and the informant and his family members out of anxiety had searched for him to find out the dead body but still did not move to lodge the report as they had not formulated the story. 14. For the foregoing reasons, we find merit in the batch of appeals which are hereby allowed. The appellants in the six appeals are acquitted of the charges they had been held guilty of. All the appellants except Anirudh Singh are on bail. They shall stand discharged from the liabilities of their bail bonds. Appellant Anirudh Singh of Cr. Appeal (DB) No. 373 of 2010 is in custody, he shall be released forthwith, if not wanted in any other case.