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2017 DIGILAW 1489 (PAT)

Damodar Rai v. State of Bihar

2017-11-18

RAVI RANJAN, S.KUMAR

body2017
JUDGMENT : S. Kumar, J. None had appeared on behalf of appellants on 11.11.2017 as such this Court had appointed Mr. Animesh Kumar Mishra, Advocate to assist the Court as Amicus Curiae on behalf of appellants. The State is represented by learned APP. Heard the parties. 2. This Criminal Appeal is directed against the judgment of conviction dated 02.03.1994 and order of sentence dated 07.03.1994 passed by 1st Additional Sessions Judge, Banka in Session Trial No. 479 of 1993 convicting the appellants under Section 302/34 of I.P.C. and 27 of the Arms Act and sentenced to undergo rigorous imprisonment for life and for two years under section 27 of the Arms Act. Both the sentences shall run concurrently. 3. Prosecution case is based on fardbeyan of informant Subhash Chandra Barnwal recorded on 07.12.1992 at 8.15 PM in which it has been stated that informant alongwith his deceased brother Bal Krishna Barnwal at about 5.00 PM was going to his village on a motorcycle and a villager Shyam Sunder Barnwal was accompanying them. Deceased brother was driving the motorcycle and when they reached near Barua river the informant and the villager stepped down from the motorcycle to cross the sand river and his brother was crossing the river on the motorcycle. His brother stopped there and told informant and co-villager to proceed ahead and he will attend the call of nature near the river side. 4. At the time of crossing the river the informant and his co-villager saw three unknown persons near a stone. However, they proceeded ahead and when informant and covillager came near the house, he heard the cry of his brother and he alongwith other villagers proceeded towards the river. He heard the sound of firing and when he reached near the river he saw his brother lying injured in pool of blood and saw three unknown persons fleeing away. They tried to chase them but they escaped. Three pairs of Hawai Chapal was left behind by the accused persons. Informant came to know from owner of beetle shop namely Binod Kumar Sah, who disclosed that Damodar Roy alongwith two or three persons had arrived in his beetle shop. Police immediately arrived at the place of occurrence and fardbeyan of informant was recorded, upon which FIR was registered and after investigation police submitted charge sheet against appellants. 5. Informant came to know from owner of beetle shop namely Binod Kumar Sah, who disclosed that Damodar Roy alongwith two or three persons had arrived in his beetle shop. Police immediately arrived at the place of occurrence and fardbeyan of informant was recorded, upon which FIR was registered and after investigation police submitted charge sheet against appellants. 5. Altogether six witnesses have been examined on behalf of prosecution. PW-1 is Manish Kumar Barnwal, PW-2 is Dilip Kumar Barnwal, PW-3 is Ashok Kumar Barnwal, PW-4 is informant, PW-5 is the Investigating Officer, Shankar Dyal Singh and PW-6 is the doctor who conducted postmortem. 6. PW-1 has stated in his deposition that on the date of occurrence he was sitting on the side of river alongwith PW-2 at about 5.30 PM. Three persons were sitting on a stone on the eastern side of the river and they surrounded the deceased and one accused having beard fired from his pistol on the right chest of deceased. 7. PW-2 has deposed that he reached the place of occurrence soon after the occurrence and found deceased was killed by accused and saw them fleeing away from the place of occurrence. 8. PW-3 is Ashok Kumar Brnwal who in his examination-in-chief has stated that on the date of occurrence at about 5.30 PM he was walking near the Panchayat Bhawan of his village. His younger brother told him that Bal Krishna Barnwal has gone towards river to attend the call of nature. Soon thereafter he heard the cry of Bal Krishna Barnwal and heard two sounds of firing as he moved ahead and saw Bal Krishna Agarwal dead. On the eastern side of the river, he saw Damodar Rai, Rajendra Rai and one unknown person fleeing away. Rajendra Rai was wearing Kurta Pajama and had also kept beard. Dilip, Manish, Subhash were also present there. On the date of occurrence, he saw the accused thrice. Damodar Rai used to purchase from his shop and Rs. 5000/- was due against him and Bal Krishna Barnwal asked him to pay the dues. Upon which Damodar Rai threatened to kill. 9. In his cross-examination he has stated that police has recorded his statement in the night on the day of occurrence. He had disclosed the name of Damodar Rai and Rajendra Rai to the police. 5000/- was due against him and Bal Krishna Barnwal asked him to pay the dues. Upon which Damodar Rai threatened to kill. 9. In his cross-examination he has stated that police has recorded his statement in the night on the day of occurrence. He had disclosed the name of Damodar Rai and Rajendra Rai to the police. He does not remember if he had said to anyone about threatening given by Damodar Rai. In absence of deceased Bal Krishna Barnwal, he used to look after the shop. He had heard the cry of his elder brother from 30-35 gaj, when he reached the place of occurrence, he saw 3 persons there, whose name he has already disclosed. Damodar Rai is his neighbour, Rajendra Rai is not his neighbour. He had seen Rajendra Rai for the first time. He saw three persons fleeing away from distance of 30-35 gaj. He saw them from behind. 10. PW-4 Subhash Chandra Barnwal (informant) has stated in his examination-in-chief that on the date of occurrence he, deceased Bal Krishna and Shyam Sunder all three proceeded towards Nawadih on motorcycle. Bal Krishna was riding motorcycle and when they reached near Barua river then he saw three person sitting on a rock of whom one had beard and two other persons were sitting there. Bal Krishna dropped us on the eastern side of the river and proceeded alone with motorcycle and crossed the river. They also crossed the river on foot then Bal Krishna told them that he is going to river side to attend the call of nature and he also saw the three persons coming towards west and as they were about to reach their home he heard cry of Bal Krishna and went towards the river and heard two sounds of firing and when he reached on the bank of river, he saw Bal Krishna was dead and a bullet had hit his right chest. On the eastern side of the river, he saw three persons fleeing away including the person who was wearing Kurta Pajama and had kept beard. His name was Rajendra Ram. Damodar Rai was also one of person who was fleeing away. Dilip, Manish and Kapil were present there before he reached. He had opportunity to see both the persons in Suwalkol village. He alongwith Manish and Ashok have gone Suwarkol village with Daroga and identified both of them. His name was Rajendra Ram. Damodar Rai was also one of person who was fleeing away. Dilip, Manish and Kapil were present there before he reached. He had opportunity to see both the persons in Suwalkol village. He alongwith Manish and Ashok have gone Suwarkol village with Daroga and identified both of them. Ashok told the name of one accused as Rajendra Rai. Deceased had one grocery shop in Nawadih from where Damodar Rai used to purchase goods on credit and Rs. 4000- 5000/- had become due and deceased asked to pay the debt on which Damodar Rai threatened to kill him. 11. In his cross-examination he has stated that accused Damodar Rai was taking goods on credit for last 2 years. His father has informed about it. He had no personal knowledge about it. Shyam Sunder is his Phupha. He reached the place of occurrence, running and after him Ashok reached and thereafter some villagers came. At that place river is 20-25 gaj broad. On the eastern side, he saw the accused fleeing away from a distance of 1520 gaj, we did not chase him. He had stated before Daroga that three persons were present there before they arrived at the place of occurrence. 12. PW-5 the Investigating Officer has stated that he heard the news of killing of Bal Krishna Barnwal near the river and after making entry in the station diary he rushed towards the place of occurrence. He has stated that there was no sign of any blood. He reached the place of occurrence at about 8.15 PM and recorded the fardbeyan. 13. The counsel for the appellants has submitted that the time of occurrence was 5.30 PM on 07.12.1992 and sun sets at 5.00 PM and nothing has been stated on behalf of witnesses any means of identification of the accused persons as by that time there is darkness. It has been further argued that there was no independent witnesses to support the case of prosecution and all the witnesses examined are related and interested witnesses and conviction cannot be based on their testimony in absence of any corroboration by independent and other reliable evidences. It has been further argued that there was no independent witnesses to support the case of prosecution and all the witnesses examined are related and interested witnesses and conviction cannot be based on their testimony in absence of any corroboration by independent and other reliable evidences. PW-4 informant has stated in his deposition that PW-1 to PW-3 arrived at the place of occurrence after the accused persons escaped, as such no credence can be given to the evidence of PW 1 to PW-3 as they are not the eye witnesses. It has been submitted that dispute and enmity with the accused appellants and informant is an admitted fact and as such they have been falsely implicated in this case on account of enmity. The evidences of PW-1 to PW-4 are not consistent and there is material discrepancy and contradiction in their evidence. There is difference in the statement made by witnesses before the Investigating Officer under section 161 of Cr.P.C., 1973 and their deposition made during the trial. All the witnesses have stated that deceased was lying in pool of blood but no blood was found or seized by the Investigating Officer from the place of occurrence. The identification of the accused appellants by the witnesses from a considerable distance and when there was darkness at the place of occurrence makes the identification doubtful. The doctor who has been examined on behalf of prosecution has stated that the nature of injury sustained by deceased, most of the bleeding took place inside the body and as such the statement of witnesses that they saw deceased in pool of blood is not trustworthy and their evidence cannot be relied upon. It has been submitted that all the witnesses examined on behalf of prosecution are related witnesses and there are no independent witnesses to support the prosecution version and there being admitted enmity between informant and appellants, there false implication cannot be ruled out. According to Investigating Officer, three pairs of Hawai Chapal were seized from the place of occurrence but same were not produced as material exhibit without any valid explanation makes the case of prosecution doubtful. According to Investigating Officer, three pairs of Hawai Chapal were seized from the place of occurrence but same were not produced as material exhibit without any valid explanation makes the case of prosecution doubtful. In the fardbeyan itself the informant had admitted old enmity between the deceased and informant's family, as such in such a situation when the identification itself is doubtful and there is no independent corroboration supporting the case of prosecution, appellants cannot be held to be guilty on the basis of evidence of family and interested witnesses who were on inimical terms with informant and his family. 14. The trial court has disbelieved the evidence of PW- 1 and PW-2 and has held that there were material contradiction in their evidence. They stated new facts before the court about which they had not stated before the police. The I.O. in his statement has stated that these witnesses did not state before him that persons having beard fired upon deceased. PW-4 informant in his FIR had stated that he saw three unknown persons on the western side of river, although Damodar Rai (appellant) was known to him but he did not named him, although he saw them from near distance and in sufficient light. He claimed to recognize Damodar Rai (appellant) at the time of fleeing away on the other side of river when there was darkness as such his identification becomes doubtful. The beetle shop owner who said to informant that Damodar Rai had come to his shop alongwith 2-3 unknown persons of whom one was wearing Kurta Pajama having beard but he was not examined by the prosecution. Informant has named the appellants on the basis of information received by said beetle shop owner Binod Kumar Sao and his brother Ashok Barnwal on the basis of suspicion only. Binod Kumar Sao has not been examined by the prosecution nor Shyam Sunder Barnwal who was accompanying the deceased and informant has been examined. In the FIR informant has stated that they had chased the accused however, in their deposition before the court they have denied chasing the accused. Only one bullet injury has been found on the chest of deceased, however, witnesses have deposed about hearing of two firing. In the FIR informant has stated that they had chased the accused however, in their deposition before the court they have denied chasing the accused. Only one bullet injury has been found on the chest of deceased, however, witnesses have deposed about hearing of two firing. The witnesses have stated that they saw accused fleeing from the other side of river that is eastern side which makes the distance 30-35 gaj and it is very difficult to believe that in such a short span of time they crossed the river after killing and fled away. The accused/appellant have been implicated in this case on suspicion only on saying of beetle shop owner Binod Kumar Sao and brother of informant Ashok Barnwal as they had seen appellants on that day but their presence in the village is not unusual as they were frequent visitors and also used to purchase the goods from the shop of deceased. Suspicion however may be strong but cannot be substitute of proof. 15. After hearing the parties and considering the materials available on record, this Court finds that prosecution has not been able to establish the charges against appellants beyond reasonable doubt and as such, their conviction under Section 302/34 and 27 Arms Act cannot be sustained and is accordingly set aside. 16. As a result, the judgment of conviction dated 02.03.1994 and order of sentence dated 07.03.1994 passed by 1st Additional Sessions Judge, Banka in Session Trial No. 479 of 1993 convicting the appellants under Section 302/34 of I.P.C. and 27 of the Arms Act and sentenced to undergo rigorous imprisonment for life and for two years under section 27 of the Arms Act is set aside and appellants are acquitted of the charges. Since both the appellants are on bail, as such they are discharged from liability of their bail bonds. 17. Mr. Animesh Kumar Mishra, who appeared in this case on behalf of appellants as Amicus Curiae appointed by this Court the legal services authority is directed to pay remuneration to Animesh Kumar Mishra, Advocate in terms of circular issued and prevalent practice.