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2023 DIGILAW 655 (PAT)

Shankar Roy v. State of Bihar

2023-06-21

CHAKRADHARI SHARAN SINGH, RAJESH KUMAR VERMA

body2023
Chakradhari Sharan Singh, J.—Since all these appeals filed under Section 374(2) of the Code of Criminal Procedure (in short CrPC), arise out of the same impugned judgment of conviction and the order of sentence, they have been heard together and are being disposed of by the present common judgment and order. 2. By the impugned judgment and order dated 27.09.2008/ 01.10.2008 passed by the learned Ist Additional Sessions Judge, Banka in Sessions Case No. 1018 of 2005, arising out of Katoria P.S. Case No. 53 of 2004, GR No. 481 of 2004, the appellants have been convicted and sentenced as under:— Cr. Appeal (DB) No. 1253 (DB) of 2008 Appellant's name Conviction under Section Imprisonment Sentence Fine (Rs.) In default of fine 1. Shankar Roy 396 of the IPC RI For Life X X 397 of the IPC RI for 7 years X X 2. Shambhu Roy 396 of the IPC RI For Life X X 397 of the IPC RI for 7 years X X 3. Arun Mandal 396 of the IPC RI For Life X X 397 of the IPC RI for 7 years X X 4. Nourangi Mandal 396 of the IPC RI For Life X X 397 of the IPC RI for 7 years X X Cr. Appeal (DB) No. 1263 (DB) of 2008 Appellant's name Conviction under Section Imprisonment Sentence Fine (Rs.) In default of fine Moti Mandal 396 of the IPC RI For Life X X 397 of the IPC RI for 7 years X X Cr. Appeal (DB) No. 1343 (DB) of 2008 Appellant's name Conviction under Section Imprisonment Sentence Fine (Rs.) In default of fine Ishwar Yadav 396 of the IPC RI For Life X X 397 of the IPC RI for 7 years X X 3. PW-9 is the informant, whose fardbeyan recorded by the police on 22.05.2004 at 7:00 AM, is the basis for registration of the concerned Katoria P.S. Case No. 53 of 2004. The said fardbeyan bears the signature of the informant and his brother Akhilesh Yadav (PW-5). 4. According to the fardbeyan, the informant's son was married on 20.05.2004 and the baraat party had returned on 21.05.2004 in the morning. At about 12:00 in the night, when the females in the family were singing folk songs, 20-25 criminals entered into his house where a petromax was lighted in the courtyard. 4. According to the fardbeyan, the informant's son was married on 20.05.2004 and the baraat party had returned on 21.05.2004 in the morning. At about 12:00 in the night, when the females in the family were singing folk songs, 20-25 criminals entered into his house where a petromax was lighted in the courtyard. He saw accused Nilkanth Mandal, son of Chhedi Mandal, Naresh Mandal, son of Janki Mandal, Nourangi Mandal, son of Mohan Mandal, Doman Mandal @ Amik Mandal, son of Mahendra Mandal, Ayodhi Das, son of Pocho Das, Jaldhar Das, son of Pitho Das, Manohar Mandal, son of late Bulaki Mandal, Mukesh Mandal, son of Jageshwar Mandal, Moti Mandal, son of late Mandu Mandal, Arun Mandal, son of Jageshwar Mandal, Ravindra Mandal, son of late Chhedi Mandal, Nandu Mandal, son of Janki Mandal, Govind Das, son of Madhu Das, all residents of village Ghaghari Jore; Kuldeep Roy, son of not known, Shambhu Roy, son of Sahdeo Roy, Ugan Roy, son of Sildhar Roy, Shankar Roy, son of late Sibu Roy of village Kaithatikar; Ishwar Yadav, son of Nanhku Yadav of village Malbehri who surrounded his house and started hurling abuses. They were asking the informant and others to hand over to them all the valuables. When the informant (PW-9) and his brother Akhilesh Yadav (PW-5) protested, one of the miscreants assaulted his father on his face, left hand and right thigh with a sharp cutting weapon. The criminals assaulted Arjun Yadav (not examined) and the informant also. In the meanwhile, word spread that some occurrence of loot had taken place in the house of Dhokal Yadav (PW-1) also. The miscreants, according to the fardbeyan, took away with them jewelleries of the female inmates of the informant's house. He further alleged that the criminals thereafter went to the house of one Kishan Yadav, whereafter Kishan Yadav started raising alarm. In the meanwhile, three miscreants, namely, Nilkanth Mandal, Ishwar Yadav and Naresh Mandal rushed towards Kishan. Kishan Mandal is said to have exclaimed seeing Ishwar Yadav and asked that he too was involved in such criminal activities. Since, Kishan Yadav had identified Ishwar Yadav, Nilkanth Mandal hurled a bomb on Kishan Yadav. Kishan Yadav was blown up in the bomb explosion and died on the spot. In the meanwhile, the criminals managed to escape. Kishan Mandal is said to have exclaimed seeing Ishwar Yadav and asked that he too was involved in such criminal activities. Since, Kishan Yadav had identified Ishwar Yadav, Nilkanth Mandal hurled a bomb on Kishan Yadav. Kishan Yadav was blown up in the bomb explosion and died on the spot. In the meanwhile, the criminals managed to escape. They were claiming to be the members of a Naxal group and they were threatening of dire consequences as the informant and others were not consenting to become the members of their group. It was accordingly alleged that the said 18 miscreants looted the valuables from the houses of the informant Jagu Lal Yadav(PW-9), Dhokal Yadav (PW-1) and Kishan Yadav (the deceased) and murdered Kishan Yadav by exploding bomb. 5. The police upon completion of investigation submitted chargesheet on 30.05.2005 against Shankar Roy, Shambhu Roy, Arun Mandal, Nourangi Mandal [appellants in Criminal Appeal (DB) No. 1253 of 2008], Moti Mandal [appellants in Criminal Appeal (DB) No. 1263 of 2008] and Ishwar Yadav appellants in Criminal Appeal (DB) No. 1343 of 2008. The chargesheets were also submitted against Ugan Rai, Manohar Mandal, Kuldeep Rai, Govind Das, Nandu Mandal, Ravindra Mandal, Mukesh Mandal, Jaldhar Das, Ayodhi Das, Doman Mandal, Naresh Mandal and Nilkanth Mandal. It is noted that some of the accused persons against whom the chargesheet was submitted were not apprehended as on the date of submission of the chargesheet. Cognizance was thereafter taken of the offences based on the chargesheet and the case was committed to the court of Sessions for trial on 27.07.2005. The charges were subsequently framed by the trial court against eight persons, namely, Manohar Mandal, Ishwar Mandal, Shambhu Roy, Ugan Roy, Shankar Roy, Moti Mandal, Nourangi Mandal and Arun Mandal for commission of the offences punishable under Sections 396 and 397 of the Indian Penal Code. In the light of an order passed by the this Court in Cr. Misc. No. 22248 of 2006, the case of the absconding accused persons were separated. As these appellants denied the charge so framed against them and claimed to be tried, they were put on trial. 6. In the light of an order passed by the this Court in Cr. Misc. No. 22248 of 2006, the case of the absconding accused persons were separated. As these appellants denied the charge so framed against them and claimed to be tried, they were put on trial. 6. At the trial, ten prosecution witnesses came to be examined including the informant (PW-9), Dhokal Yadav (PW- 1) in whose house also dacoity was committed according to the prosecution's case, Akhilesh Yadav (PW-5) who had put his signature on the fardbeyan as a witness, the doctor who had conducted the postmortem examination of the deceased (PW-8) and the Investigating Officer (PW-10). The prosecution also got examined Resho Yadav(PW-4) and Kaili Yadav (PW-6). 7. Apart from the oral evidence of the prosecution's witnesses, the prosecution got exhibited documents also, e.g., signatures of the informant (PW-9) and that of Akhilesh Yadav (PW-5) on the fardbeyan, formal FIR, carbon copy of the inquest report, the postmortem report etc. 8. Upon closure of the evidence, the persons put on trial were questioned under Section 313 of the CrPC. All the accused persons answered in negative the questions so put by the learned trial court and reiterated their innocence. 9. The trial court, upon analysis of the evidence adduced at the trial, has recorded conviction of these appellants for commission of the offences punishable under Sections 396 and 397 of the IPC and has held two other persons, namely, Manohar Mandal and Ugan Rai not guilty of the charges as no witness supported their implication. 10. After the judgment of conviction dated 27.09.2008 these appellants were taken into custody and sentenced to undergo imprisonment as noted above for the charges found to have been proved at the trial by the trial court by the order dated 01.10.2008. 11. The appellants preferred these appeals against the impugned judgment of conviction and the order of sentence passed by the trial court. By an order of this Court dated 11.08.2011, the appellant Nourangi Yadav was granted bail during the pendency of Criminal Appeal (DB) No. 1253 of 2008. The appellants Shankar Roy, Shambhu Roy and Arun Mandal were also granted bail during the pendency of Criminal Appeal (DB) No. 1253 of 2008 by an order dated 19.01.2009. By an order of this Court dated 11.08.2011, the appellant Nourangi Yadav was granted bail during the pendency of Criminal Appeal (DB) No. 1253 of 2008. The appellants Shankar Roy, Shambhu Roy and Arun Mandal were also granted bail during the pendency of Criminal Appeal (DB) No. 1253 of 2008 by an order dated 19.01.2009. Appellant Moti Mandal of Criminal Appeal (DB) No. 1263 of 2008 was allowed bail by an order dated 29.07.2009 during the pendency of the appeal. Appellant Ishwar Yadav was also allowed bail during the pendency of Criminal Appeal (DB) No. 1343 of 2008 by an order dated 21.09.2012. When these appeals were taken up for final hearing on 30.11.2022, there was no representation on behalf of the appellants. As the appellants were availing the benefit of suspension of sentence during the pendency of the appeal and were on bail, under the orders of this Court, their bail bonds were cancelled by this Court by an order dated 30.11.2022 with direction to the Superintendent of Police, Banka to take them into custody and produce them in Banka jail. The Court had further ordered that it will consider appointing an Amicus Curiae to present their cases before this Court in case they were unable to engage lawyer(s) of their own choice. 12. A report has been submitted by the Superintendent of Police, Banka informing this Court that all the appellants have been taken into custody and are serving sentence in Banka jail. In the meanwhile, learned counsel for the appellants appeared when the matter was taken up by this Court on 04.01.2023. The appeals have accordingly been heard on merits. 13. We have heard Mr. Baxi S.R.P. Sinha, learned Senior Counsel appearing on behalf of the appellants in all the three appeals, Mr. Abhimanyu Sharma, learned Additional Public Prosecutor for the State in Criminal Appeal (DB) No. 1253 of 2008, Mr. Dilip Kumar Sinha, learned Additional Public Prosecutor for the State in Criminal Appeal (DB) No. 1263 of 2008 and Ms. Shashi Bala Verma, learned Additional Public Prosecutor for the State in Criminal Appeal (DB) No. 1343 of 2008. 14. Mr. Baxi S.R.P. Sinha, learned senior counsel appearing on behalf of the appellants has submitted that the informant (PW-9) himself has not supported the prosecution’s case in his deposition at the trial and has accordingly been declared hostile at the instance of the prosecution. 14. Mr. Baxi S.R.P. Sinha, learned senior counsel appearing on behalf of the appellants has submitted that the informant (PW-9) himself has not supported the prosecution’s case in his deposition at the trial and has accordingly been declared hostile at the instance of the prosecution. He has drawn our attention to the deposition of the informant (PW-9) in paragraph 5, wherein he has stated that his fardbeyan was not read over to him and he had not disclosed the name of any person as an accused of the crime to the Officer-in-Charge of the police station other than Ishwar Yadav. In his cross-examination he flatly denied that he had disclosed the names of accused Nilkanth Mandal, Naresh Mandal, Nourangi Mandal, Doman Mandal, Ayodhi Das, Jaldhar Das, Manohar Mandal, Mukesh Mandal, Moti Mandal, Arun Mandal, Ravindra Mandal, Nandu Mandal, Govinid Das, Kuldeep Rai, Shambhu Rai and Shankar Rai. He also deposed that he was not able to read and he had just put his signature on the fardbeyan. He identified the appellant Ishwar Yadav who was present in court. He also deposed in his cross-examination that his fardbeyan was not recorded by the Officer-in-Charge of the police station and he was merely made to put his signature. Thereafter his statement was never recorded by the police officer during the course of the investigation. There was a suggestion made to the informant (PW-9) during the cross-examination about the dispute between him and the appellant Ishwar Yadav in respect of certain financial transaction for which a Panchayat was also held and out of animosity his name (Ishwar Prasad) was being mentioned in his evidence, to which he denied. In response to a court question the informant deposed that he had never attended any school and he knew how to put his signature, only. 15. Two facts emerge from the evidence of the informant (PW-9). Firstly, that he did not support the contents of the fardbeyan and the accusation against the persons named in the FIR other than the appellant Ishwar Yadav who, according to him, was one amongst the criminals who had committed the crime. Secondly, in the last paragraph of the fardbeyan it is mentioned that he himself had read the fardbeyan and put his signature in the presence of other villagers and witness Akhilesh Yadav (PW-5). Secondly, in the last paragraph of the fardbeyan it is mentioned that he himself had read the fardbeyan and put his signature in the presence of other villagers and witness Akhilesh Yadav (PW-5). The informant’s specific deposition that he had not attended any school and was not able to read and was thus illiterate, casts a serious doubt on the veracity of the fardbeyan, which is the basis for registration of the FIR. 16. Akhilesh Yadav (PW-5), the witness to the fardbeyan, has simply proved this signature on the fardbeyan marked as Exhibit-1. He deposed at the trial that the contents of the FIR were not read over to him. The fardbeyan, according to the prosecution’s case, was recorded by Raj Kishore Baitha (PW-10), who was the Officer-in-Charge of the police station. The Investigating Officer in his deposition has mentioned four places of occurrence, first being the house of Dhokal Yadav (PW-1) in whose house the accused persons had entered crossing the boundary wall. Though, PW-1 has not supported the prosecution’s case at all, he has not been declared hostile. The second place of occurrence has been described as the house of Resho Yadav (PW-4) and the third place of occurrence, the house of the deceased Kishan Yadav. Fourth place of occurrence is the place where the deceased Kishan Yadav was killed by explosion of bomb. It is noteworthy that the time of receipt of information at the police station has been mentioned as 7:00 AM on 22.05.2004. In his cross-examination, the IO deposed that he had proceeded for the hospital at 6:30 AM based on some rumour. 17. Resho Yadav, whose house has been described as the second place of occurrence, has been examined as PW-4. He does not appear to be an eye-witness to the occurrence from his deposition. According to his deposition, he had sustained injury caused by explosion of bomb when he was sleeping and thereafter he had become unconscious and only after he regained consciousness he learnt that Kishan Yadav was murdered and valuables were looted by 50-60 persons. He also deposed at the trial that no one had disclosed anyone’s name. PW-4, Resho Yadav also did not support the prosecution’s case. He has submitted that only two witnesses of the occurrence of dacoity, namely, Kaili Devi (PW-6) and Pachiya Devi (PW-7) have supported the prosecution’s case. He also deposed at the trial that no one had disclosed anyone’s name. PW-4, Resho Yadav also did not support the prosecution’s case. He has submitted that only two witnesses of the occurrence of dacoity, namely, Kaili Devi (PW-6) and Pachiya Devi (PW-7) have supported the prosecution’s case. PW-6, however, said to have identified accused Nilkanth and Naresh who are not before this Court in the present set of appeals. According to her, the criminals had masked their faces. PW-7 in her deposition identified Nourangi, Ishwar, Naresh, Nilkanth and Doman with the light of petromax as the source of identification. 18. Mr. Baxi has argued that Kamlesh Yadav (PW-3), son of Resho Yadav (PW-4) claimed in his evidence that he had identified the accused persons. Contrary to the evidence of PWs-6 & 7, he deposed that the faces of the criminals were not masked. He has accordingly submitted that the prosecution cannot be said to have proved the charges against the appellants beyond all reasonable doubts. 19. Learned Additional Public Prosecutors representing the State, on the other hand, have submitted that the prosecution’s witnesses are reliable and trustworthy. They contend that the finding of conviction recorded by the trial court should not be interfered with merely on the ground that the informant and some other witnesses did not support the prosecution's case. They have argued that PWs-3, 5 and 7 have fully supported the prosecution’s case. They have argued that PWs- 3, 5 and 7 have fully supported the prosecution’s case as the eye-witnesses and the victims of the crime. They contend that the evidence of the eye-witnesses are corroborated by the medical evidence to the extent the same relates to the death of the deceased by explosion of bomb. 20. We have perused the impugned judgment and order of the trial court as well as the original records of the case received from the court below. We have given our thoughtful consideration to the rival submissions advanced on behalf of the parties. It is manifest on close reading of the evidence on record that the prosecution miserably failed to prove that the fardbeyan of the informant, as recorded by the SHO-cum-Investigating Officer (PW-10) is the correct version of the facts which were disclosed by the informant to the SHO regarding the occurrence. The informant has been declared hostile at the instance of the prosecution. The informant has been declared hostile at the instance of the prosecution. He has deposed unequivocally in his evidence that he had identified only Ishwar Yadav [appellant in Criminal Appeal (DB) No. 1343 of 2008]. 21. It is peculiar to note that the fardbeyan contains the names and addresses of all the accused persons. The accused persons were not the co-villagers of the informant. There is no evidence forthcoming that the prosecution’s witnesses had occasion to know the names of the appellants, their parentage and respective places of their residence. PW-10 in his evidence deposed that he had learnt about the occurrence and proceeded for the hospital at 6:30 AM. The first version of the information, which the IO had received, is not there on record. What information was actually received and from whom, which had required the SHO to proceed for the hospital at the first instance is a fact which is crucial and goes to the root of the matter. 22. Coming to the fourth places of occurrence as narrated by the IO in his evidence, we opine that the occurrence said to have taken place in the house of Dhokal Yadav (PW-1) cannot be said to have been proved in view of the evidence of PW-1 himself who in his evidence deposed that he did not have any knowledge about any occurrence. He has not been declared hostile. The second place of occurrence is said to be the house of Resho Yadav (PW-4). PW-4 is not an eye-witness to the occurrence. He is apparently a hearsay witness as would appear from his deposition. He learnt about the occurrence after he had regained consciousness. Though in his examination-in-chief he claimed that he had identified Ishwar Yadav, Naresh Mandal, Mati Mandal, Nourangi Mandal with the aid of lantern and their voices but in his cross-examination he admitted that he had not seen any one’s face because of the smoke caused by explosion of bomb. The only witness who supported the occurrence at the second place is PW-3 (the son of PW-4). His deposition will have to be seen with circumspection as contrary to the depositions of PWs-6 & 7, he claimed that the faces of the criminals were not masked as this witness and the persons named by him were on talking terms. The only witness who supported the occurrence at the second place is PW-3 (the son of PW-4). His deposition will have to be seen with circumspection as contrary to the depositions of PWs-6 & 7, he claimed that the faces of the criminals were not masked as this witness and the persons named by him were on talking terms. He, however, identified Nilkanth Mandal, Doman Mandal, Naresh Mandal, Ayodhi Das, who are not the appellants before this Court. He, however, identified Shankar Roy, Shambhu Roy and Nourangi Mandal who are the appellants herein. According to him, Doman Mandal had assaulted his father. There is no specific overt act alleged against these appellants in the deposition of PW-3. It is significant to note that PW-3 also deposed that in the morning he learnt that dacoities were committed in three other houses. PW-3, thus, cannot be treated to be the witness to the occurrence at any place other than his residence. On the one hand, he deposed that his father Resho Yadav (PW-4) was assaulted by Doman Mandal, there is no such evidence of PW-4 (Resho Yadav) in his deposition. 23. Third place of occurrence is the house of Kishan Yadav. According to the prosecution's case, as disclosed in the fardbeyan, Kishan Yadav was killed by Nilkanth Mandal. There is no evidence adduced at the trial that appellant Ishwar Yadav had any role in killing of the deceased Kishan Yadav. We do not find any evidence on record to prove murder of the deceased Kishan Yadav in the process of committing dacoity, which is an essential ingredient to constitute an offence punishable under Section 396 of the Indian Penal Code. 24. In any event, as the prosecution suppressed the initial version of the occurrence as reported to the police and the contents of the fardbeyan have not been proved rather become doubtful, in view of the depositions of the informant (PW-9) and the witness to the fardbeyan (PW-5), the entire case of the prosecution comes under the shadow of doubt. Situated thus, the benefit of doubt shall have to be given to the appellants. The appellants deserve acquittal by giving them benefit of doubt, in our opinion. 25. Situated thus, the benefit of doubt shall have to be given to the appellants. The appellants deserve acquittal by giving them benefit of doubt, in our opinion. 25. Accordingly the impugned judgment of conviction and the order of sentence dated 27.09.2008/ 01.10.2008 passed by the learned Ist Additional Sessions Judge, Banka in Sessions Case No. 1018 of 2005, arising out of Katoria P.S. Case No. 53 of 2004, GR No. 481 of 2004 are set aside. The appellants are acquitted of the charge of commission of the offences punishable under Sections 396 and 397 of the Indian Penal Code, by giving them benefit of doubt. 26. The appeals are accordingly allowed. 27. The appellants are in jail custody. Let them be released forthwith, if they are not required in any other case. Rajesh Kumar Verma, J.—I agree.