Ram Das And Anr vs State Of Bihar

In aforesaid two appeals, all the three appellants were tried together, convicted and sentenced in Sessions Trial No. 43 of 1997/Trial No. 634 of 2012

and as such, both appeals were taken up together and are being disposed of by this common judgment.

By judgment dated 04-02-2013 passed by Sri Ashok Kumar, learned Adhoc Additional District & Sessions Judge 2nd, Bhagalpur (hereinafter

referred to as ‘Trial Judge’), Puran Das (appellant no. 2 in Cr.Appeal DB No. 271/13) was convicted for commission of offence under Section

302 of the Indian Penal Code, 1860 (hereinafter referred to as “I.P.C.â€) and Section 27 of the Arms Act, 1959 (hereinafter referred to as

“Arms Actâ€), whereas, Ram Das (appellant no. 1 in Cr.Appeal DB No. 271/13) and Raj Kumar Das (sole appellant in Cr.Appeal DB No.

207/13) were convicted for commission of offence under Sections 302/34 of the I.P.C. By order dated 21-02-2013, Puran Das (appellant no. 2 in

Cr.Appeal DB No. 271/13) was sentenced to undergo imprisonment for life under Section 302 of the I.P.C. and imposed a fine of Rs. 10,000/- (ten

thousand) and in default of payment of fine, he was directed to further undergo rigorous imprisonment for one year as well as under Section 27 of the

Arms Act, he was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 10,000/- (ten thousand) and in default of

payment of fine, he was directed to further undergo rigorous imprisonment for one year. Both sentences were directed to run concurrently. Similarly,

Ram Das (appellant no. 1 in Cr.Appeal DB No. 271/13) and Raj Kumar Das (appellant in Cr.Appeal DB No. 207/13) were sentenced under Section

302/34 of the I.P.C. to undergo imprisonment for life and to pay a fine of Rs. 10,000/- (ten thousand) each. In default of payment of fine, both

appellants were directed to further undergo rigorous imprisonment for one year.

Short fact of the case is that on 24-05-1995 at 13.00 hrs. (1:00 PM), Sub-Inspector of Police B.N. Singh (not examined) of Sabour Police Station

recorded fardbeyan of one Putul Devi (P.W.4), wife of deceased Sadanand Das @ Saudha Das of village Naya Tola Nadiyama, P.S. - Sabour,

District â€" Bhagalpur. The fardbeyan was recorded outside the door of informant in village Naya Tola (Nadiyama). In the fardbeyan, the informant

stated that in preceding night i.e. 23-05-1995 after taking meal, she was sleeping in her inner courtyard with her mother-in-law Surti Devi and gotini

(wife of brother of her husband) namely Laxmi Devi (P.W.2). Her husband Sadanand Das @ Saudha Das (deceased) was sleeping in cSBdk (outside

house in open land) on a cot. At about 10.00 in night, she awoke after hearing sound of firing. Her mother-in-law and gotini also awoke and at the

same time, she noticed that 8-10 persons from southern side intruded into courtyard. Amongst them, she could identify one of her co-villager namely

Puran Das (appellant no. 2 in Cr.App.DB No. 271/13), who was carrying a long barrel gun in his hand, and from the backside of the said gun, he gave

blow on her head. Thereafter, her head was ruptured and blood started oozing out. The miscreants after entering into the courtyard were lighting

torch-light and in the said torch-light, her mother-in-law and gotini, besides Puran Das (app.2 in Cr.App.DB No. 271/13), also identified Ram Das

(app.1 in Cr.App.DB No.271/13) and Raj Kumar Das (sole app. in Cr.App.DB No. 207/13). However, she could not identify other miscreants. The

miscreants after entering into the courtyard destroyed the container of grains prepared by soil and took bag of her husband, which her husband for the

purposes of his medical profession had kept and accused persons fled away towards eastern side. Thereafter, the informant with her mother- in-law

and gotini came out from the house and went to cSBdk (outside house in open land) and she noticed that her husband Sadanand Das (deceased) was

lying dead in the pool of blood. She claimed that her husband was killed by giving gun shot injury by aforesaid named accused (appellants) and 8-10

unknown accused persons. The reason for the occurrence was described by the informant that there was land dispute in between her husband and

Puran Das (app.2 in Cr.App.DB No. 271/13) relating to 1½ bigha of land, which was continuing since long. This was the reason that Puran Das

(app.2 in Cr.App.DB No. 271/13), Ram Das (app.1 in Cr.App.DB No. 271/13) and Raj Kumar Das (app.in Cr.App.DB No. 207/13) with 8-10 other

unknown accused persons had killed her husband by giving fire-arm injury. The said fardbeyan was signed by the informant.

On the basis of said fardbeyan, on 24-05-1995 at 5:00 PM, a formal F.I.R., vide Sabour P.S. Case No. 118 of 1995, was registered for offence

under Sections 302/34 of the I.P.C. and Section 27 of the Arms Act against all the three appellants and 8-10 unknown accused persons. During

investigation, one of the accused Raj Kumar Das (app.in Cr.Appeal DB No. 207/13) was apprehended and thereafter, on 30-09-1995, chargesheet

against all the three appellants was filed showing appellant Puran Das and Ram Das (both appellants in Cr.App.DB No. 271/13) as absconder.

Thereafter, the learned Chief Judicial Magistrate, Bhagalpur on 12-01-1996 took cognizance of the offence and case was committed to the court of

sessions on 10-01-1997 and it was numbered as Sessions Trial No. 43 of 1997. On 17-12-2007, charge was jointly framed under Sections 302/34 of

the I.P.C. and Section 27 of the Arms Act against aforesaid three appellants.

During trial, to establish its case from the prosecution side, altogether seven witnesses were examined. Out of them, P.W.2 (Laxmi Devi) wife of

brother of the deceased and P.W.4 (Putul Devi) wife of deceased were examined as eye- witness to the occurrence. P.W.1 (Rajendra Das) brother

of the deceased and P.W.3 (Sundar Mandal) are hearsay witnesses. P.W.6 (Keshav Kumar Singh) is a formal witness, who has proved signature on

seizure list and inquest report. Dr. Haider Imam Ansari, who conducted post-mortem examination on the dead-body of deceased, was examined as

P.W.7, whereas, Sri Tej Narayan Biswas (P.W.5), who was at the relevant time officer incharge of Sabour Police Station, had taken charge of

investigation from first investigating officer on 22-08-1995 and thereafter, he submitted chargesheet as per direction of the superior officer.

After completion of the prosecution evidence, on 09-04-2012, statement of accused under Section 313 of the Code of Criminal Procedure, 1973

(hereinafter referred to as “Cr.P.C.â€) was recorded, in which, they claimed to be innocent and they were falsely implicated. They also claimed to

examine defence witness and as such, one defence witness, namely, Rajeshwar Mandal was examined as D.W. 1 and a plea of alibi was taken on

behalf of the appellant Puran Das (Cr. Appeal DB No. 271 of 2013).

Smt. Pravina Kumari, learned counsel for the appellants, after referring to entire evidence, has argued that it was a case of out-and-out false

implication due to old animosity. She submits that appellants and informant side were own pattidar and amongst them, land dispute was going on since

long, which has already been admitted by the informant as well as P.W. 2 Laxmi Devi. It has further been argued that on examination of evidence of

two so-called eye-witnesses, it is evident that none had seen the occurrence and after the husband of the informant was done to death, the case was

fabricated in the next morning and all the appellants were arrayed as accused. According to learned counsel for the appellants, in this case, non-

examination of the main investigating officer has seriously prejudiced the case of appellants, since in the case, neither place of occurrence were

specifically established in absence of investigating officer nor the appellants could get any opportunity to get contradiction in respect of evidence of

prosecution witnesses given in the court and their statement recorded under Section 161 of the Cr.P.C. during investigation. She further submits that

the prosecution case is itself not believable, in view of the post-mortem examination report, which indicated that the deceased was having multiple fire-

arm injuries, however, none of the so-called eye-witnesses have said that in the occurrence, number of firing was shot. On aforesaid ground, a prayer

has been made that it is a case of clean acquittal and alternatively it has been argued that the appellants may be extended the benefit of the doubt

since prosecution has not been able to establish its case beyond all reasonable doubt.

Sri Ajay Mishra, learned Addl. Public Prosecutor has opposed the aforesaid appeals and he tried to justify the judgment of conviction and sentence,

however it was difficult for him to support the prosecution case in its totality.

Besides hearing, we have examined entire evidence on record and after going through the entire evidence, prima facie, we are of the opinion that

prosecution has not been able to establish its case beyond all reasonable doubt. However, before proceeding, it is necessary to notice at least evidence

of so- called eye-witnesses, who are none else but one is wife of deceased i.e. Putul Devi (P.W. 4) informant and another is wife of brother of

deceased Laxmi Devi (P.W. 2).

P.W. 4, Putul Devi, who had put her signature on the fardbeyan, to the reasons best known to the court below, was allowed to prove entire

fardbeyan, whereas, she has not at all stated as to whether she was conversant with the writing of the scribe of the fardbeyan. In the case, it is

evident that fardbeyan was recorded by one Sub-Inspector of Police, Sri B.N. Singh, who has not been examined, as prosecution witness. This

witness has proved her signature on the fardbeyan, which was marked as Ext. 1/1. In her evidence, P.W. 4 in paragraph â€" 1 of her examination-in-

chief, has stated that in the night of the date of occurrence, after hearing sound of firing, she alongwith her gotni Laxmi Devi (P.W. 2) and her

mother-in-law, Surti Devi awoke and thereafter, they sat inside their house itself. From the southern side of her house, 10 miscreants intruded,

amongst them, she could identify three accused persons i.e. all the appellants. She further deposed that all the three appellants were carrying gun in

their hand and from backside of gun, they gave blow on her head causing serious injury and thereafter, blood started oozing out. She further stated that

after assaulting her, all the three accused persons fled away. She further stated that when she with her mother-in-law and gotini came out of her

house, they saw that her husband Sadanand Das was lying dead on cot. He had received multiple injury and blood was coming out from his mouth and

nose. In paragraph -2, she stated that accused persons were her xksfr;k (gotiyas) and between her husband and accused persons, land dispute was

going on. In the next morning, police reached her house and recorded fardbeyan, on which, she put her signature and her signature was got marked as

Ext. 1/1 and she also proved entire fardbeyan, which was marked as Ext. 1. In paragraph -7 of her cross-examination, she stated that she did not get

any medical assistance in respect of her injury and accepted that after receiving injury, blood had fallen on the road and her cloth was soaked with

blood.

P.W. 2, Laxmi Devi, who has also claimed to be an eye-witness to the occurrence like P.W. 4, has stated that in the night of the occurrence, she

was in the inner courtyard with the informant (P.W.4) and her mother-in-law Surti Devi. She deposed that in her house, all the three appellants with

12-14 accused persons entered. Firstly, all the three appellants jointly fired on Sadanand Das, whereby, he fell down and died. Thereafter, accused

persons assaulted her younger daughter Pinku Kumari. In paragraph -3, she deposed that appellant Puran Das by the butt of the gun gave blow on

head of her gotini Putul Devi (P.W. 4), by which, she received injury on her head and she further deposed that accused had killed the deceased due to

land dispute.

P.W. 1 Rajendra Das has simply said that he heard about the occurrence and also that the deceased was done to death by the appellants and

other 8-10 unknown persons.

P.W. 3 Sundar Mandal has stated that after the occurrence, he heard that Sadanand Das was murdered and he was murdered due to fire-arm

injury, however; he has not claimed as to how he had come to know about the occurrence as well as involvement of the accused persons.

Dr. Haider Imam Ansari on 25-05-1995 had conducted post-mortem examination on the dead body of the deceased and found following injuries:-

“(i) fire-arm wound entering on right side neck 2â€​ x 1 ½â€​, with black and inverted margin.

(ii) fire-arm wound of entry on bridge of nose and left side orbital bone size 2â€​ x 2â€​.

(iii) fire-arm wound of entry on left side face, left eye and temporal area of head breaking mandible facial bone frontal and temporal nasal bone.

(iv) fire-arm wound of exit on left-over clabuclar area with fracture of left side 1 ½â€​ x 1â€​.

(v) fire-arm injury on right hand little finger with blackening and laceration 1 ½â€​ x 1 ½â€​

On dissection injury no. ii & iii are communicating each other trachea, oesophagus and vertebra were lacerated. The brain matter contained pillets

which were removed and sent to I.O.

Weapon â€" fire-arm

Cause of death - haemorrhage and shock.

Time since death - within 36 to 48 hrs.â€​

He further proved the post-mortem report, which was marked as Ext. 5.

On examination of the evidence of P.W. 7 (doctor) as well as post-mortem report, it is evident that on the person of the deceased, there were

multiple fire-arm injuries. However, in the prosecution evidence, particularly the evidence of so-called eye-witnesses, it has not come as to whether

how many shots were fired in the occurrence. Simply, it was deposed, as if, they awoke after hearing the sound of firing.

P.W. 6 Keshav Kumar Singh is the formal witness and had proved his signature on seizure list as well as inquest report.

In this case, main investigating officer was not examined, however; the officer in-charge of Sabour Police Station, who took the charge of the

investigation in the month of August 1995, has been examined as P.W. 5 and he proved signature of one of the police officer on formal F.I.R., which

was marked as Ext. 2 and he has also proved inquest report, which was marked as Ext. 3. On examination of inquest report, it is evident that inquest

was prepared at the place, where the deceased was done to death i.e. on the cot near the cSBdk (baithka) outside the house of the informant. P.W. 5

has only filed chargesheet against the accused persons, however; he has not recorded statement of any witness, which has come in paragraph - 4 of

his cross-examination. Meaning thereby that the police officer, who arrived at the place of occurrence and recorded fardbeyan, prepared seizure list

and inquest report, was not examined nor any plausible explanation has been given by the prosecution. In absence of non-examination of the

investigating officer in a case, where there is evidence of doubtful nature, certainly non-examination of the investigating officer can be considered as

fatal for the defence.

On examination of the evidence of P.W. 2 as well as P.W. 4, who have claimed to be eye-witnesses, there is no whisper as to whether both of the

witnesses had seen exactly as to how the deceased was done to death. They had only stated that they had seen the aforesaid three appellants and

both the witnesses have deposed that in the occurrence, the appellant Puran Das (in Cr.App.DB No. 271/13) gave blow from the backside of the gun

on the head of the informant causing ruptured injury on the head of the informant. However, in the evidence of the so-called eye-witness P.W. 4, it

has come that she did not get herself examined by the doctor. At this juncture, it was necessary to examine the evidence of investigating officer as to

whether he had noticed any injury on the person of the informant or not, however during trial the investigating officer, who recorded statement of

witnesses under Section 161 of the Cr.P.C., has not been examined.

On examination of evidence of informant/P.W. 4 it is evident that after hearing sound of firing she awoke and noticed appellants with other

miscreants coming inside courtyard. Thereafter appellant/Puran Das gave blow from the ‘butt’ of gun and thereafter accused fled away.

Meaning thereby that firstly husband of this informant was gunned down thereafter accused entered into the courtyard and assaulted the informant.

This appears to be not believable. If due to old land dispute in the night appellants with other 8-10 accused persons had finished the husband of the

informant by fire arm injury, in a normal situation for accused/appellants there was no need to come inside courtyard for giving injury to wife of the

deceased (P.W. 4) and leave her to depose against them. Moreover it is case of the informant /P.W. 4 that she did not show her injury and received

any medical aid.

Considering the fact that old land dispute in between the informant side and appellants side was going on and both were pattidars, there is every

possibility that in a case of no evidence, after the occurrence, the appellants might had been fabricated by the prosecution. However, in absence of

exact positive evidence, we may not record any finding to this effect, but fact remains that prosecution has not been able to establish its case beyond

all reasonable doubt.

Accordingly, by way of extending benefit of doubt, it is necessary to interfere with the judgment of conviction and sentence and as such, the

Judgment of conviction and sentence dated 04-02-2013 and 21-02-2013 respectively passed in Sessions Trial No. 43 of 1997/Trial No. 634 of 2012

(arising out of Sabour P.S. Case No. 118 of 1995) by Sri Ashok Kumar, learned Adhoc Additional District & Sessions Judge 2nd, Bhagalpur is hereby

set aside and both the appeals i.e. Cr.Appeal (DB) No. 271 of 2013 and Cr.Appeal (DB) No. 207 of 2013 are allowed.

Both appellants in Cr. Appeal (DB) No. 271 of 2013 i.e. Ram Das and Puran Das are in custody and as such, in view of setting aside the

judgment of conviction and sentence, it is necessary to issue direction of release of both of them forthwith. Accordingly, it is directed to release both

appellants i.e. Ram Das and Puran Das in Cr.Appeal (DB) No. 271 of 2013 forthwith, if not required in any other case.

The appellant Raj Kumar Das (in Cr. Appeal (DB) No. 207 of 2013) is on bail and in view of the fact that his appeal has been allowed, he is

discharged from the liability of his bail-bond.

Both the aforesaid appeals are allowed.