Akshay Pradhan And Other vs State Of Bihar

B.B.Mangalmurti, J

Both these appeals arise out of the same impugned Judgment so they were heard together and are being disposed of by this common Judgment.

Heard learned counsel for the appellants and learned counsel for the State.

The appellants are aggrieved by the Judgment of conviction dated 20th December, 1995 and Order of sentence dated 21st December, 1995, passed

by the Sessions Judge, Singhbhum West at Chaibasa, in Sessions Trial No.362 of 1993, whereby, the appellants have been found guilty and convicted

for the offence under Sections 302 / 149 of the Indian Penal Code. Upon hearing on the point of sentence, the appellants have been sentenced to

undergo imprisonment for life for the said offence.

The prosecution case was instituted on the basis of the fardbeyan of the informant Sadashib Laguri, the brother of the deceased Guna Ram Laguri,

recorded by B.K. Pandit, Officer-in-charge, Goilkera Police Station on 21.02.1993 at about 12.30 hours in the house of the informant, wherein, he has

stated that on 20.02.1993 at about 4.30 p.m. he was in his house. His brother Guna Laguri and mother were also at home. At that time, accused

Akshay Pradhan, Ranjan Pradhan, Ramakant Pradhan, Pardeshia Pradhan, Satish Pradhan, Pankaj Pradhan, Trilochan Naik and Baikuntho Naik

came to the house of the informant. They were armed with Bhujali, sword, axe and stick and were asking about deceased Guna. When the informant

came out of his house, he saw that the accused persons have caught hold of his brother (Guna) and assaulting him and dragging towards the house of

accused Akshay Pradhan. When the informant tried to stop them, they threatened him to be killed. Out of fear, the informant remained at his house.

After some time, the informant saw that Ranjan Pradhan, Satish Pradhan, Pankaj Pradhand and Trilochan Pradhan came out of the house of Akshay

Pradhan and went towards southern side. After 15-20 minutes, he saw that they are assaulting Suleshwar Laguri and dragging him also to the house

of Akshay Pradhan. He further stated that since it became evening and many of the villagers had gone to market, so he could not inform anyone about

the occurrence due to fear. In the morning, he disclosed this fact to his cousin Markendeshwar Laguri and went to Akshay Pradhan’s house along

with his cousin. When he reached there, he saw that Guna Laguri and Suleshwar Laguri were lying dead and the house of Akshay Pradhan was

locked. Thereafter, he went to Sarpanch and told him about the occurrence then the Sarpanch also visited the place of occurrence and asked him to

report the matter to the police. Thereafter, the matter was reported to the police. It is further stated that in the month of January, Suleshwar Laguri

and Guna Laguri had killed one goat of Navin Naik and for which a village panchayati was also held in which a fine of Rs.550/- was imposed upon

Guna and Suleshwar. At that time, Akshay Pradhan and other accused had said that both were thieves and they would be killed. Thereafter, Guna and

Suleshwar had gone out of the village and had returned only 4 â€" 5 days prior to the occurrence on 20.02.1993.Â

 On the basis of the fardbeyan of the informant, Goilkera P.S. Case No.5 of 1993, corresponding to G.R. No.84 of 1993, was instituted for the

offences under Sections 147, 148, 149 and 302 of the Indian Penal Code, and investigation was taken up. After investigation, the police submitted the

charge-sheet in the case.

After commitment of the case to the Court of Session, charged were framed against the accused-appellants for the offences under

Sections    302 / 149 and 148 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were

put to trial. In course of trial, ten witnesses were examined by the prosecution, including the Investigating Officer and the doctor, who had conducted

the post-mortem examination on the dead body of both the deceased. Two defence witnesses have also been examined on behalf of defence.Â

Out of the material witnesses examined by the prosecution, the witnesses P.W.-1 Krishna Surin, P.W.-2 Ghasiram Surin and P.W.-3

Markandeshwar Laguri have turned hostile and have not supported the prosecution case. P.W.-4 Galu Purti was tendered by the prosecution. The

most important witness P.W.-5 Sadashiv Laguri, the informant of the case and the brother of the deceased Guna Ram Laguri, has turned hostile and

has not supported the prosecution case, but has stated that he was in his house when Ranjan, Ramakant, Satish, Pankaj, Trilochan, Pardeshia and

Baikunth came there holding Danda and Sota. Thereafter, they caught and took away Guna but due to fear he did not come out of the house and does

not know what happened thereafter. He was also not aware that Suleshwar was also taken by them or not. He had not disclosed to anyone about the

occurrence. He further stated that police had recorded his statement on which he had put his thumb impression. On these statements, he was declared

hostile and prosecution was allowed to cross-examine him.Â

P.W.-6 Nandi Kui is the mother of the deceased Suleshwar Laguri. She has stated that she got the knowledge of the occurrence from Rajendra

that his son Suleshwar was tied by the accused persons and Akshay, Ramakant, Ranjan, Pankaj, Pardeshia, Trilochan, Baikunth and Satish had

assaulted him. Next day morning when she went to the house of Akshay, she saw the dead bodies of Suleshwar and Guna but no one was present in

the house of Akshay. During cross-examination, she admitted that she was at Chaibasa and had not seen the occurrence.Â

P.W.7 Ramti Kui is the mother of deceased Guna Ram Laguri and Jethi (Badi Maa) of deceased Suleshwar Laguri. She has stated that she was in

her house and had seen Roma and another person taking away Suleshwar and Guna but she had not seen any other person. In her cross-examination,

she has stated that on the day of occurrence she had gone to forest and after returning from the forest, she had seen the dead bodies.

P.W.8 Rajendra Laguri is the brother of deceased Suleshwar Laguri and is cousin of deceased Guna Ram Laguri. He has stated that it was

Saturday and he had gone to a pond at 12 O’clock and from there when he was returning at about 4.00 p.m. in the evening, he saw that Akshay,

Roma, Ranjan, Pardeshia, Baikunth, Pankaj, Satish and Trilochan were taking away Suleshwar and Guna and both were tied in the house of Akshay.

Thereafter, all of them assaulted both of them by lathi, danda, tangi and stones. He has further stated that after seeing this, he became fearful and fled

away from that place. After reaching to the house, he narrated the incident to his mother and brother. Next day, they went to the house of Akshay

and saw Suleshwar and Guna Ram dead at that place. He again visited to that place along with police. Police had prepared the inquest report before

him and Charan and Markendeshwar Laguri had put their signatures on the inquest report. He has proved the signatures of Charan and

Markendeshwar Laguri, which were marked Exts. 1/1 and 1/4 respectively. He has identified the accused persons in the court. During cross-

examination, he has stated that the pond was at a distance of about 3 k.ms. and between his house and pond no other house is situated. The house of

Akshay is near to his house. This witness refused to answer some of the questions put to him and stated that he has not come before the court to

answer all these questions. He further stated that he had not raised any alarm while the accused persons were taking away the deceased. He also

stated that he is not aware about the holding of Panchayati and whether both the deceased were present or not in that Panchayati. He denied the

suggestion of giving false evidence before the court.

P.W.9 is Dr. Arun Kumar, who had conducted the post-mortem examination on the dead body of the deceased Guna Ram Laguri on 22.02.1993

and had found the following ante-mortem injuries on the dead body:-

External :-Â

Blackening of skin all over body. Swollen left temporal region.

Lacerated wound ½â€​ x ¼â€​ x bone deep over right temporal region.Â

Blood clot in left ear.Â

On dissection :-Â

Head and neck :-Haematoma under scalp. Fracture of left temporal left parietal and base of skull bones. Blood and blood clots in cranial cavity. Brain

lacerated.

Chest :-Fracture of 8th, 9th, 10th and 11th, ribs of left side chest. Lungs â€" intact.

Abdomen :- Peritonial cavity full of blood. Spleen ruptured.

Stomach containing partially digested food.

Urinary bladder â€" Empty.

Perineum â€" IntactÂ

 This witness has stated that the death was caused due to hemorrhage and shock and head injury. He has further stated that the above injuries were

sufficient to cause death in ordinary course of nature. He has proved the post-mortem report of Guna Ram Laguri to be in his pen and signature which

was marked Ext.2

 This witness had also conducted the post-mortem examination on the dead body of the deceased Suleshwar Laguri on the same day and had found

the following ante-mortem injuries on the dead body:-

External :-Â

Black spots all over body. Both temporal region swollen.

Lacerated wound 1â€​ x ¼â€​ x ¼â€​ over left cheek.Â

Lower jaw deformed. Fracture of mandible present.Â

On dissection :-Â

Head and neck :-Haematoma under the scalp. Fracture of left temporal parietal bone. Laceration of brain. Blood and blood clots in cranial cavity.

Neck structured â€" Intact

Chest :-Fracture of 4th and 5th ribs of right side chest and 5th, 6th, 7th and 8th ribs of left side chest.Â

Plural cavities â€" full of blood and blood clots.Â

Laceration of both lungs.Â

Abdomen :- Structures intact. Stomach containing partially digested rice.

Urinary bladder â€" Empty.

 This witness has stated that the death was caused due to head and chest injuries He has further stated that the above injuries were sufficient to

cause death in ordinary course of nature. He has proved the post-mortem report of Suleshwar Laguri to be in his pen and signature which was

marked Ext.2/1.

P.W.10, Braj Kishore Pandit is the Investigating Officer of the case who has stated that on 21.02.1993 he was posted as Officer-in-Charge of

Goilkera Police Station and at 10.30 a.m. in the morning he got a slip from Sarpanch Narottam Pradhan about two dead bodies lying near the house of

Akshay Pradhan. He made sanha entry and at 11.00 a.m. he proceeded for its verification along with other police personnel. He reached the house of

Akshay Pradhan at about 12.00 noon and found the dead bodies of two persons in the aangan of Akshay Pradhan which were the dead bodies of

Guna Ram Laguri and Suleshwar Laguri. He has stated that he had recorded the fardbeyan of Sadashib Laguri (P.W.5). The fardbeyan was proved

as Ext.3. He also proved Inquest Reports of both the dead bodies on which witnesses had put their signatures which have been marked as Exts. 1/1 to

1/4. He has stated that the place of occurrence is aangan of Akshay Pradhan where blood and stone were found. After returning to the police station,

on the basis of fardbeyan, formal F.I.R. was drawn. He proved the same to be in his hand writing and signature which was marked as Ext.5. He sent

both the dead bodies for post-mortem to Sadar Hospital, Chaibasa and after completing the investigation, submitted charge-sheet in this case.

 The prosecution has taken the contradictions from this witness relating to witnesses Krishna Surin, Ghasiram Surin, Markandeshwar Laguri and

Sadashib Laguri. During cross-examination he stated that Narottam Pradhan, the Sarpanch had informed him about the murder of two persons but the

name of deceased were not written and this information was received on 21.02.1993 at 10.30 a.m. but he had not recorded the statement of the

Dalpati nor the statement of Sarpanch Narottam Pradhan. He had reached the house of Akshay Pradhan at 12.00 noon and had found two dead

bodies.

The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein they have denied the evidence brought against

them.

The defence has also examined two witnesses.

D.W.1 is Multu Pradhan. He has stated that he is resident of Puni Pada village and Akshay Pradhan is his brother-in-law. Ranjan Pradhan and

Ramakant Pradhan are his nephews. He has stated that his marriage was solemnized three years ago on Friday but he does not remember the date of

marriage. The food were served on Saturday and Sunday on the occasion of his marriage and all the three accused persons along with their families

had come to his village by bullock-cart to participate in the marriage and they returned on Monday/Tuesday. After four days of his marriage, he heard

that something has happened in the house of Akshay, although at the time of occurrence all the three were present in his house. During cross-

examination he stated that Tula village is three stations earlier to his village but he could not state the distance in miles. He heard in the village that

murder has been committed in the house of Akshay. He denied the suggestion that all the accused persons were not in his house.

D.W.2 Sahdeo Pradhan has stated that D.W.1 Multu Pradhan is his co-villager and Akshay Pradhan is brother-in-law of Multu Pradhan. He also

knows the sons of Akshay but he does not know their names. He further stated that in the month of February between 18th and 19th the marriage of

Multu Pradhan was solemnized in which Akshay Pradhan with all his family members had come to his village. They had come two days before the

marriage and they returned after reception. At the time of marriage this witness was also present in the village. The reception started on 20th evening

from 5.00 p.m. and it continued till 21st. On 21st after taking breakfast, they returned. He recognized Akshay and his two sons Ranjan and Ramakant

in the court. During cross-examination, he stated that there is no documentary evidence of the marriage of Multu. After 2 â€" 4 days of the marriage

of Multu, he got the knowledge about the present case. He denied the suggestion that he is deposing false. In reply to the court question, he stated that

distance between his village and Kula village is 25 miles. Earlier they were travelling by train but for the last one year bus facility has also started.

On the basis of the evidence on record, the Trial Court below has found the appellants guilty, and convicted and sentenced them for the offence

under Sections 302 / 149 of the Indian Penal Code.

Learned Senior counsel for the appellants and learned counsel appearing on behalf of another set of appellants have submitted that the impugned

Judgment of conviction and Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, as the main witness i.e., P.W.-

5 Sadashib Laguri, the Informant of the case and the brother of the deceased Guna Ram Laguri had turned hostile and has not supported the

prosecution case. Learned counsel submitted that the prosecution case is based on the fardbeyan of Sadashib Laguri (P.W.5) who has turned hostile

and other prosecution witnesses P.W.-1 Krishna Surin, P.W.-2 Ghasiram Surin and P.W.-3 Markandeshwar Laguri also became hostile, P.W.-4 Galu

Purti was tendered by the prosecution, P.W.6 Nandi Kui is a hearsay witness and P.W.7 Ramti Kui is also not an eye witness, therefore, the

prosecution case is heavily dependent upon P.W.8 Rajendra Laguri, brother of deceased Suleshwar Laguri and cousin of deceased Guna Ram Laguri,

who had seen the occurrence and had supported the case of prosecution. He further submitted that other prosecution witnesses have not corroborated

the evidence of P.W.8. Even the name and presence of P.W.8 Rajendra Laguri does not find place in the fardbeyan lodged by his brother P.W.5

Sadashib Laguri. This witness has also refused to answer some relevant questions during his cross examination, therefore, inference can be drawn

against this witness. The evidence of Investigating Officer is also not supportive to the prosecution case as he got the information from the Sarpanch

of the village and on that very basis he had made Sanha entry but statements of Sarpanch or Dalpati were not recorded by him during investigation.

Therefore, the prosecution could not establish the case beyond all reasonable doubts as most of the witnesses have been declared hostile. Learned

counsel lastly submitted that there is discrepancy in the time of the occurrence. As per fardbeyan, accused persons had taken away the deceased at

about 4.30 p.m. whereas P.W.8 Rajendra Laguri, in his examination-in-chief, has stated that while he was returning from pond at about 4.00 p.m. in

the evening he saw the accused persons taking away the deceased, but in his cross-examination, in Paragraph 24, he has stated that he was returning

from the pond at 12.00 p.m. and he saw the incident. Therefore, there are contradictions in the time of occurrence also. Learned counsel accordingly

submitted that in the facts of this case, the appellants were entitled to the benefits of doubt.Â

Learned A.P.P. appearing on behalf of State has opposed the prayer and submitted that although the informant, who is brother of one of the

deceased, has turned hostile, but another brother P.W.8 Rajendra Laguri has supported the prosecution version which was fully corroborated by the

evidence of the Investigating Officer and the Doctor. Learned counsel further submitted that it is not the quantity of the witnesses but the quality of

the evidence is to be taken into account and witnesses have proved that these accused persons were taking away both the deceased persons and later

on their dead bodies were found from the aangan of the house of appellant Akshay Pradhan. Learned counsel accordingly submitted that there is no

illegality in the impugned Judgment of conviction and Order of sentence.

Considering the above submissions of both sides and on perusal of the lower court records and upon scrutiny of the evidences adduced on behalf

of the prosecution, it appears that most of the prosecution witnesses have turned hostile and one witness P.W.4 Galu Purti was tendered and P.W.6

Nandi Kui is hearsay witness. Even the P.W. 7 Ramti Kui, mother of one of the deceased is also not an eye witness. Therefore, the only witness

remains is P.W.8 Rajendra Laguri, who claims himself to be an eye witness. The fardbeyan given by one of the brother does not show the presence

of another brother Rajendra Laguri (P.W.8) which is not a normal conduct. The defence has tried to create doubt about the time of commission of

murder as in the fardbeyan the time is 4.30 p.m., but as per the timing given by P.W.8 Rajendra Laguri in his examination-in-chief is that he went to

pond at 12.00 noon and from there he returned at 4.00 p.m. and then he saw the accused persons taking away both the deceased, but during cross-

examination although the question put to him was whether his mother had accompanied him today or not, even after the translation made to

understand him this question, he replied differently that he returned from the pond at 12.00 noon and saw the incident. We have also perused the case

diary and find that this witness had not stated about the assault made by appellants to both the deceased, so this witness has made some improvement

in his evidence before the Court. This witness has also refused to answer some of the questions and replied that he has not come to answer all these

questions which also create doubt on the credential of this witness. The Investigating Officer has specifically replied that he had not recorded the

evidence of Sarpanch on whose slip the law was put into motion by making sanha entry. He further volunteered that he did not think it necessary to

record his statement. P.W.9 Dr. Arun Kumar, who had conducted post-mortem examination on the dead bodies of Guna Ram Laguri and Suleshwar

Laguri, which have been proved as Ext. 2 and 2/1 respectively, proved the death of both the persons but the prosecution could not bring on record any

eye witness who could establish the prosecution case that who had exactly committed the offence of murder. Therefore, in such circumstances, we

are of the considered view that the prosecution could not be able to prove the case beyond all reasonable doubts and defence had been able to create

doubts on several counts. The prosecution has heavily dependent upon P.W.8 but the manner in which this witness refused to answer during

crossexamination, cannot be ignored. In this situation, we come to the conclusion that the appellants deserve the benefits of doubt.

In the above circumstances, the impugned Judgment of conviction dated 20th December, 1995 and Order of sentence dated 21st December, 1995,

passed by the Sessions Judge, Singhbhum West at Chaibasa, in Sessions Trial No.362 of 1993, convicting and sentencing the appellants, for the

offence under Sections 302 / 149 of the Indian Penal Code, are hereby set aside. The appellants Akshay Pradhan, Ramakant Pradhan, Ranjan

Pradhan, Pradesia Pradhan, Baikuntho Naik and Trilochan Naik are given the benefits of doubt and they are acquitted of the charges. All the above

named appellants are on bail. They are discharged from the liabilities of their respective bail bonds.Â

Both these appeals are accordingly allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of

this Judgment.