Saturday, May 18, 2024

Sri Ramanand Ram S.D.J.M, Dalsingsarai, Hanuman Prasad Tiwari, Additional Sessions Judge, IIIrd Court, Samastipur must compensate the petitioner: Patna High Court

In Sunil Pandit Vs. State of Bihar, Patna High Court concluded: "As the petitioner was made to suffer a criminal trial which is not maintainable against him and he was compelled to be confined in the correctional home at different points of time. This Court is of the opinion that the petitioner should be compensated since the petitioner was made to suffer the agony and trauma of a criminal trial as well as detention in custody for taking cognizance against him by the learned Magistrate and putting him in trial in a case which is not maintainable against him, the petitioner is entitled to get compensation at the rate of Rs. 100/- each payable by the learned Judicial Magistrate, namely, Sri Ramanand Ram, S.D.J.M, Dalsingsarai- Samastipur and Hanuman Prasad Tiwari, Additional Sessions Judge, IIIrd Court, Samastipur, on 28th June 2016." 

The penultimate para of the judgement reads: Since the accused/petitioner cannot be booked for committing offence under Sections 498A and Section 4 of the Dowry Prohibition Act, he is acquitted from the charge, set at liberty and released from the liability of bail bond."

In his judgment, Justice Bibek Chaudhuri observed: "I am consciously issued the order for payment of compensation directing the concerned Judicial Officers to pay a token amount because in the instant case compensation is not assessed on the basis of the mental agony and trauma and social ignominy suffered by the petitioner due to seer lackadaisical approach of both the courts below. The amount of compensation is fixed as a token to remind the concerned Judicial Officers that before taking cognizance and also during judicial inquiry and trial, it is the bounden and obligatory duty of all the courts to go through the complaint carefully and then to take cognizance and proceed against the accused persons in accordance with law."

The criminal revision was directed against the judgment and order of affirmation passed by the Additional Sessions Judge IIIrd Court at Samastipur on 28th June 2016, in Criminal Appeal No. 46 of 2011, whereby and whereunder the appellate Court maintained the order passed by the trial court, of conviction for the offence punishable under Sections 498A of the IPC and Section 4 of the Dowry Prohibition Act and sentence of the petitioner to suffer imprisonment for three years and also to pay fine of Rs. 1,000/- with default clause for the offence under Section 498A of the IPC and rigorous imprisonment for one year with fine and default clause for the offence punishable under Section 4 of the Dowry Prohibition Act.

On perusal of the petition of complaint, on the basis of which, Complaint Case No. 172 of 2004 was registered, the Court found that the petitioner was not a relative of the husband of the complainant as provided in Section 498A of the IPC. It is clearly stated by the complainant in page 04 of the complaint that the present petitioner who was arrayed as accused no. 4 was an advisor of other accused persons.

The judgement reads: "Let a copy of this order be sent to the Registrar General, High Court at Patna for information and necessary action intimating the concerned Judicial Officers to comply with this order within three weeks from the date of communication." The Court's direction reads: "The concerned judicial officers are directed to deposit the fine amount in the Criminal Cash Section of the Chief Judicial Magistrate, Samastipur within three weeks from the date of this order." The judgement was delivered on April 18, 2024.

 

Judgements of Additional Sessions Judge-III, Muzaffarpur, Judicial Magistrate, Ist Class, Muzaffarpur perverse and illegal: Patna High Court

In Manoj Rai Vs.State of Bihar, Justice Bibek Chaudhuri of Patna High Court observed: "In the instant case, going through the lower court record as well as Judgments passed by the trial court and the appellate court, this Court is of the view that this is one of the rare cases where the examination of evidence by both the courts below were perverse."

The Court noted that "Both the courts below convicted the accused under Section 25 (1-B) (a) of the Arms Act. Practically, the penal provision was wrongly recorded by both the courts below. Section 25 (1-B) (a) states that whoever acquires, has in his possession or carries any firearm or ammunition in contravention of Section 3 shall be punishable with imprisonment for a term which shall not be less than two years but it may extend to five years and shall also be liable to fine. Therefore, for all practical purposes, both the courts below convicted the accused under Section 25 (1-B) (a). The penal provision states minimum punishment of two years. When minimum punishment is prescribed by a penal statute, the appellate court cannot pass any order of punishment less than minimum punishment prescribed by the statute. On this score also the impugned Judgment is illegal and inoperative." 

The order reads: "For the reasons stated above, I find that both the courts below acted illegally and with material irregularity in convicting and punishing the accused for the offence punishable under Section 25 (1-B) (a) of the Arms Act. It is unfortunate that the accused person/petitioner is in Correctional Home for about seven months. The petitioner be acquitted and released from the Correctional Home at once." The judgement was passed on April 18, 2024.

The criminal revision was directed against the Judgment and order dated August 16, 2016, passed by the Additional Sessions Judge-III, Muzaffarpur in Cr. Appeal No. 116 of 2008, whereby and whereunder the petitioner’s appeal was dismissed and the Judgment and order of conviction and sentence, passed by the Judicial Magistrate, Ist Class, Muzaffarpur, on November 29, 2008, convicting the petitioner for the offence punishable under Section 25 (1-B) (a) read with Section 26 of the Arms Act and sentencing the petitioner with imprisonment for a term of one year with fine of Rs. 1,000/-, in default further imprisonment for one month.

The case arose out of P.S. Case No.-26 Year-2002 Thana- Siwaipatti, Muzaffarpur. It was registered under Section 25(1-b)/26 of the Arms Act on the basis of a suo motu complaint filed by the Officer-in-charge of the said Police Station, namely Prem Shankar Singh. He alleged that on June 15, 2002, he along with other members of Police force and village Chowkidars went to village Koharia to conduct investigation of the Siwaipatti P.S. Case No. 26 of 2002. After completion of part investigation and search, the Police party was returning to the Police Station at about 8:30 P.M. When they were proceeding by Police Jeep towards village Ghosaut, the informant saw a person proceeding towards South with a rifle in his hand. 

The Police Officer asked him to stop, but seeing the Police party he tried to flee away. Immediately, the informant directed the members of the force, who were with him, to chase the said person. The Police party chased him and apprehended the said person. Hearing hue and cry, local people assemble at the spot.
The Police Officer/informant called two persons amongst the villagers, who were present at the spot. To witness the process of search and seizure one Mohan Paswan and Rajesh Kumar volunteered themselves. The informant conducted search of the apprehended person in presence of above named independent
witnesses and recovered one country made rifle loaded with 1.315 bore cartridge from his hand. The rifle was country made. The apprehended person could not produce any document in support of his possession in respect of the firearm. The Police Officer also seized one live cartridges of 1.315 bore from his right hand side pocket of his pant in present of the independent witnesses. 

The firearm and ammunition were seized and the accused was formally arrested. Then they returned to the Police Station and Officer-in-charge of the said Police Station submitted a written complaint against the accused, on the basis of which above named police case was registered.

The investigation was taken up by PW.5. During investigation, he examined witnesses visited the spot, send the seized firearm and ammunition to the expert to ascertain as to whether the seized material is a country made rifle or not and whether it was in working condition or not. After getting the expert’s report Police Submitted Charge-sheet. 

The Trial of the case was conducted by the Judicial Magistrate, Ist Class at Muzaffarpur and by his Judgment dated 29th November, 2008, the accused was convicted and sentenced to suffer rigorous imprisonment for two years for committing offence under Section 25 (1-B) (a) of the Arms Act. The accused was also directed to pay fine of Rs. 1,000/-, in default to suffer imprisonment for further period of one month.

The accused preferred an appeal before the Sessions Judge at Muzaffarpur. The said appeal was finally heard by the Additional Sessions Judge-III, Muzaffarpur. 

By his Judgment dated 16th August, 2016 in Cr. Appeal No. 116 of 2008, the learned Additional Sessions Judge maintained the order of conviction, modified the sentence directing that the petitioner shall suffer rigorous imprisonment for one year. The sentence of payment of find was maintained by the Additional Sessions Judge.

The order of the appellate court was under challenge in the instant revision.

The Advocate for the petitioner at the outset that the Additional Sessions Judge in the impugned Judgment mechanically affirmed the Judgment of the trial court without independent assessment of evidence on record. Therefore, the counsel for the petitioner first refers to the Judgment of the trial Court. During trial prosecution examined seven witnesses. Amongst them PW.1 is a seizure list  witness. PW.2 and PW.3 are Chowkidars, who accompanied the Police Party to the spot. The prosecution claimed that search, recovery and seizure list firearm and ammunition were made in presence of P.W.2 and P.W.3. PW.4 is the Arms expert, who examined the said firearm. PW.5 is the Investigating Officer of this case. PW.6 is the Assistant Sub Inspector of Police attached to the Siwaipatti Police Station at the relevant point of time. He received the complaint from the Officer-in-charge and registered Siwaipatti P.S. Case No. 26 of 2002. PW.7 is the informant, who was the Officer-in-charge of the Siwaipatti P.S. at the relevant point of time.

The Advocate for the petitioner pointed out that two witnesses were examined in support of defence.
He submitted with regard to evidence adduced by the witnesses on behalf of the prosecution that P.W.1 Mohan Paswan was cited as a seizure list witness by the prosecution, but during evidence he did not support the prosecution case. He stated that Police Officer obtained his signature on a blank paper at the spot on 15th June, 2002. He did not see any writing on the seizure list. No firearm or ammunition was seized from the possession of the accused in his presence. The Advocate for the petitioner submitted that PW.2 and 3, who are the Chowkidars under the Police Department also did not support the prosecution case. From their evidence it is crystal clear that they did not apprehend the accused. It appears from their evidence that when the members of the force were chasing the accused, they were sitting in Police Jeep, so they personally did not conduct any raid to arrest the accused. However, it is stated by them in course of their evidence that after apprehension, the accused was brought in front of the Police Jeep and the Officer-in-charge of the Police Station seized one firearm and two ammunitions from the possession of the accused.

The petitioner's Advocate submitted that other witnesses namely P.W.4, P.W.5 and P.W.6 are formal witnesses. They did not see the actual incident of arrest of the accused and recovery of firearm and ammunition from the possession of him. P.W.4 is an Arms expert, who opined that the seized firearm was in working condition. The firearm was produced during trial, but the trial court recorded in his Judgment
that the seized firearm was produced in two pieces. The butt of the rifle was not attached to its barrel and trigger. He pointed out that search and seizure was not supported by the independent witness. No Police Officer or Police personnel, who actually apprehended the accused was examined by the prosecution. The firearm was produced in broken condition. There is no explanation as to whether the firearm that was produced before the trial court during trial is the seized firearm, which was recovered from the accused. The prosecution did not come forward with plausible explanation as to whether the firearm was broken in
Police Malkhana or it was seized in broken condition.

It was pointed out by the Advocate for the petitioner that the accused/petitioner examined two independent witnesses during trial. Both the witnesses stated that the accused had some dispute with the local M.L.A. Under the instruction of the local M.L.A., Police arrested him and implicated him in a false case under the Arms Act and the accused never possessed any illegal firearm and ammunition as alleged by the prosecution. 

The petitioner submitted that the prosecution failed to comply with the provision contained in Sub-section 4 of Section 100 of the Cr.P.C. There is nothing on record that before making a search, the Officer or other person about to make the search called upon the independent witnesses and respectable inhabitants of the locality in which the place to be search is situated or any other locality or of any locality if no such inhabitants of the said locality is available or is willing to a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

The Court observed: "I am not in a position to accept such contention made by the learned Advocate for the petitioner relying on Section 100 (4) of the Cr.P.C. Simply for the reason that Section 100 relates to search of a closed place or any building, warehouse etc. In the instant case search was made in open field. According to prosecution some people assembled hearing the hue and cry at the time of apprehension of the accused. Two of them were called and seizure was made in presence of them. Thus, non-compliance of
Section 100 (4) of the Cr.P.C. does not make the search and seizure of firearm illegal."

It pointed out that "the Judgment of this Court in the case of Lakhindra Rai Vrs. The State of Bihar, reported in (2007) 3 PLJR 362 is also not applicable because in the said report a decision, a Coordinate Bench has dealt with provision of Section 50 of the Narcotics Drugs and Psychotropic Substances Act, 1985, where special provisions are laid down under the Special Act as the prerequisite of search in a case under the N.D.P.S. Act. The decision of the Division Bench of this Court in Guddu Rai Vs. The State of Bihar, reported in (2012) 4 PLJR 1064 is also not applicable under the facts and circumstances of this case because in the said reported decision the Police officer failed to get the seized firearm examined by a ballisticate part. Question of examination of a firearm by a ballisticate part arises when the firearm is used for firing a shot to a person. In the instant case there was no such case of firing made out by the prosecution. 

The order records that "In Guddu Rai Vs. The State of Bihar, the Division Bench of this Court relied upon the decision of the Hon’ble Supreme court in Nachhattar Singh & Ors. vs. State of Punjab, reported in AIR 1976 SC 951, where recovery was made form the accused person and it was held by the Apex Court that the recovery ought to have been proved by examining the witnesses, who had witnessed the recovery."

The learned A.P.P. In-charge has supported the prosecution case as well as the decision rendered by the trial court and affirmed by the appellate court in course of his submission. 

The Court underlined that in the criminal revision, "it is not permissible for a revision court to examine and scan the evidence on record adduced by the prosecution and defence until and unless a gross perversity is made out against the petitioner."

The Court assigned the reasons. The trial court observed that PW.1 was did not support the prosecution case, but surprisingly held that he was present at the place of occurrence on the date and time of incident. Even assuming that P.W.-1 was present at the place of occurrence does it prove that he was a seizure witness when he specially submitted that his signature was obtained by the Officer-in-charge of the Police Station on a blank paper. It is important to note that PW.1 was not declared hostile by the prosecution. Therefore, the evidence of PW.1 ought to have been made applicable against the prosecution and it ought to have been held that search and seizure of firearm was not made in present of any independent witness.

The Court observed that "when search and seizure is made on an open filed, it may not be possible for the

Police Officer to find out independent witness. There is no harm if the search and seizure was made in presence of other Police Officers, who took part in the raid. Not a single Police Officer was examined in this case on behalf of the prosecution to support the raid and search and seizure. The Officer-in-charge, who allegedly seized a firearm did not take any signature of any of the Police Officers, who accompanied him. The Chowkidars (PW.-2 and 3) stated on oath that during apprehension of the accused they were sitting inside the Police vehicle.

The Court took note of another important aspect of the matter which is that "the Officer-in-charge did not prepare any label in respect of the seized articles. The seized firearm was not sealed at the spot or even at the Police Station without identification label and official seal of the firearm, how could P.W.-4 state in his report that the firearm, which was recovered from the possession of the accused was placed before him for examination. There is no seal and label with signature of the accused and the witnesses on the firearm and cartridges to prove that those articles were seized from the possession of the accused."  In such a backdrop, the Court's order reads: "I am not in a position to accept the report of the Arms expert in connection with this case." The Court granted  the liberty to the petitioner's advocate to act on the server copy of this Judgment.

Wednesday, May 15, 2024

Post conviction in NDPS case, Jharkhand residents are in Buxer and Ara jails, High Court to hear their appeal in August

The 84 page long judgement of the trial court by Additional Sessions Judge-VIII, Bhojpur refers to four accused persons namely, 1) Bijendra Kumar Rai (Bihar), Nav Kumar Ojha (Jharkhand), Shankar Yadav  (Jharkhand) and Pritam Lakda (Jharkhand). Notably, all the four accused persons were acquitted of conspiracy charges (Section 29 of  Narcotic Drugs And Psychotropic Substances (NDPS) Act, 1985) by the trial court. But Bijendra Kumar Rai (Bihar), the kingpin was given the benefit of doubt, and acquitted by the trial court, and the remaining three-truck owner, driver and Khalasi, the cleaner were convicted under Sections 20(b) (ii) (C) and 25 of NDPS Act, 1985. The appeal related to conviction over nine quintals of ganja came up for hearing before Patna High Court's division bench of Justices Ashutosh Kumar and Jitendra Kumar on May 9, 2024. 
 
The order records that the Advocates for Shankar Yadav, Pritam Lakra and Nav Kumar Ojha, the Appellants submitted that "the informant is the Investigator of this case which vitiates the entire prosecution case. It has further been submitted that none of the mandatory provisions of the NDPS Act has been complied with." The argument was submitted by the counsel for the second appellant. 
 
The High Court's order reads: "We have also been informed that the wife of another co-convict is mentally ill and, therefore, no appeal has been preferred on his behalf as yet. Apart from this, this Court has been informed that the main accused of this case has been acquitted on a specious plea which is not sustainable in the eyes of law. Though, taking into account the quantity of narcotics recovered from a vehicle of which the appellants are driver and cleaner respectively, we are not inclined to suspend their sentence presently. The prayer is rejected. However, we direct the registry to prepare the paper book urgently and get this case listed for final hearing in the second week of August commencing from 5th of August, 2024. We have said so for the reason that one of the co-convicts has still not preferred an appeal and the appellant No. 2 is a tribal student who is barely in his teens." 
 
The second appellant, a resident of Jharkhand is in Buxer jail. The first appellant is in Ara jail and is represented by Advocate Ravindra Kumar. Advocate Dr. Gopal Krishna  represents the second appellant. He also represents Nav Kumar Ojha, the third convict on humanitarian ground because he is without any legal assistance due to extreme poverty and unsound mental health of his wife. The third convict, a resident of Jharkhand is in Buxer jail as well.

Section 20 of the NDPS Act deals with punishment for contravention in relation to cannabis plants and cannabis. It states that "Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,—(a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable..."  Section 20 (ii) b of the NDPS Act states that where such contravention relates to sub-clause (b) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees. Section 20 (ii) (C) states that where such contravention relates to sub-clause (b), and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.
 
The judgement of the the Additional Sessions Judge-VIII, Bhojpur reveals that Pritam Lakra, the helper of the truck is not covered under the ambit of Section 20 (ii) (b) (C) of the NDPS Act because there is nothing on record to show that he is a cultivator of any cannabis plant or producer, manufacturer, possessor, seller, purchaser, transporter, inter-State importer, inter-State exporter or user of cannabis. It is apparent that the Additional Sessions Judge-VIII, Bhojpur committed an error in convicting him under Section 20 (ii) (b) (C) of the NDPS Act.

As to Section 25 of NDPS Act which deals with the punishment for allowing premises, etc., to be used for commission of an offence. It states that "Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence."

The High Court will hear the appeal urgently in the second week of August 2024 because "one of the co-convicts has still not preferred an appeal and the appellant No. 2 is a tribal student who is barely in his teens."  
 

Tuesday, May 7, 2024

Judgment of Additional Sessions Judge, F.T.C-V, Sheikhpura in Section 304(B) case set aside: Justice Sunil Kumar Panwar

In Kaushaliya Devi Vs. State of Bihar, Justice Sunil Kumar Panwar of Patna High Court set aside the judgment of conviction dated December 5, 2006 and order of sentence dated December 7, 2006 passed by Additional Sessions Judge, F.T.C-V, Sheikhpura. The High Court delivered the judgement on May 2, 2024. The benefits of doubt was given to the appellants. The judgement acquitted all the appellants of all the charges. The appellants were on bail all along. They were discharged from the liabilities of the bail bonds.

The appeal was filed against the judgment of conviction and order of sentence passed by Additional Sessions Judge, F.T.C-V, Sheikhpura in connection with Sessions Case No. 404 of 1998 (Trial No. 124/2006), arising out of Barbigha P.S. Case No. 35 of 1997, whereby and whereunder the appellants were found guilty and convicted for the offences punishable under Section 304(B) of the Indian Penal Code (IPC) and they were sentenced to undergo rigorous imprisonment for a period of seven years for the offence punishable under Section 304(B).

Section 304 B deals with "dowry death". It reads: "(1) Where the death of a woman is caused by any burns or bodily injury oroccurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her
husband for, or in connection with, any demand for dowry, such death shall be called dowry death, and such husband or relative shall be deemed to have caused her death. (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life." 

The prosecution case as per the F.I.R was that the informant Kapil Mahton gave a written information on March 3, 1997 to the effect that his daughter Sushila Devi (deceased) was married with Binod Mahto about three years before the date of filing the present F.I.R. After marriage, all the F.I.R named accused persons started torturing his daughter (deceased) for demand of dowry. She came many times at her parental house and narrated the same to the parents and other family members but every time, matter was consummated with the interventions of the family members of the deceased. It is further alleged that fort night prior to the complaint, the father-in-law of the deceased came to the informant’s house and informed that his daughter had fled away from her matrimonial house. The informant thereafter started searching his daughter and during search, he came to know that a lady about 25 years old had died consuming poison near bus stand. The informant went to the photo- studio shop and identified the photograph of that lady to be his daughter Sushila Devi. The informant alleged that due to torture, his daughter has committed suicide.

The case was registered against the appellants and others under Sections 498(A), 306/34 of the IPC. After completion of the investigation, charge-sheet was submitted and thereafter cognizance was taken and the case was committed to the Court of Sessions for trial.

During the course of trial, altogether twelve witnesses were examined on behalf of the prosecution.

The appellants' counsel submitted that appellants was innocent and they were falsely implicated in this case since they happens to be the mother-in-law and father-in-law of the deceased. The prosecution claimed demand of dowry and torture for non-fulfillment of the dowry demand but they failed to produce any evidence with regard to any torture or demand of dowry prior to the date of occurrence. The informant claimed that soon after the marriage, his daughter was tortured for non-fulfillment of dowry demand but he had not filed any complaint regarding the torture and demand of dowry before any authority nor any panchayati was held in this regard which suggests that a concocted story was implanted to falsely implicate the appellants in this case.

The Court observed that "most of the prosecution witnesses are either highly interested or hearsay witnesses." It also noted that "the prosecution has also failed to prove that the deceased died within seven years of her marriage as the date of marriage has not been mentioned in the F.I.R."

The Court records that "from perusal of the records and on going through the evidences, it appears that none of the prosecution witnesses have seen the occurrence and most of the witnesses are related to the informant and are highly interested witnesses. The prosecution has not brought on record any proof with regard to the torture and demand of dowry prior to the death of the deceased. The husband of the deceased had also not been made accused. Whatever have been stated by the witnesses in their examinations-in-chief was not contradicted in absence of evidence of Investigating Officer. The right of bringing on record the contradictions in the statement of witnesses made before the Investigating Officer is a very valuable right of the accused and by showing that, the witness has made improvements or has given evidence, which contradicts his earlier statement, the accused is able to satisfy the Court that the witness is not reliable witness." 

The Court observed: "It is also pertinent to mention here that in order to establish the offence under Section 304(B) of the Indian Penal Code, the prosecution is obliged to prove that death of a woman is caused by burns or bodily injury or occurs otherwise than normal circumstances and such death occurs within seven years of her marriage and if it is shown that soon before the death she was subjected to cruelty or harassment by her husband or any relative of her husband, such harassment and cruelty must be in connection with any demand of dowry." 

It further observed" "If the prosecution proves the aforesaid circumstances then the presumption under Section 113-B of the Evidence Act will operate. Such presumption is rebuttable and the onus to rebut shifts on the accused persons. It is evident that there is nothing on record to show that soon before the death, there was any demand or torture by the appellants which is a necessary ingredient to bring the accused under Section 304-B of the Indian Penal Code. Section 304-B of the Indian Penal Code clearly says that in case of abnormal death, if it is shown that soon before the death, she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with demand of dowry, such death can be called dowry death. It is evident from the discussions made that necessary ingredient has not been established by the prosecution to bring the case within the ambit of Section 304-B of the Indian Penal Code." 

The Court pointed out that "If the prosecution fails to establish the aforesaid ingredient then presumption under Section 113-B of the Evidence Act does not apply and in such case the burden does not shift to the accused persons to rebut the presumption under the law. Since the ingredient of Section 304-B is absent on the record, in my view, the appellants cannot be convicted under Section 304-B of the Indian Penal Code."

The judgement concluded that "it is evident that the circumstantial evidence which has been brought on record, as discussed above, is not sufficient to come to a conclusion that the appellants committed dowry death due to non-fulfillment of dowry demand. It is well established rule of law that in case of circumstantial evidence, chain must be complete to establish the guilt of the accused persons. Hence, the prosecution has failed to establish its case beyond the shadow of all reasonable doubts and the appellants are entitled to get the benefits of doubt."


Monday, May 6, 2024

Judgement of Adhoc Additional Sessions Judge, F.T.C.-II, Bhojpur in 1987 case of dacoity set aside: Justice Rajesh Kumar Verma

In Banshidhar Sing Vs. State of Bihar, Justice Rajesh Kumar Verma of Patna High Court set aside the judgement of Adhoc Additional Sessions Judge, F.T.C.-II, Bhojpur.  The appellant was  acquitted from all the charges levelled against him. The Court's direction reads: "Let the appellant be set free at once, if he is not warranted in any other case." In its judgement dated May 6, 2024, the appeal filed by the appellant was allowed. 

It was pending in the High Court since January 2013. It was one of the 26386 are 10 to 20 years old cases pending in the Court. Notably, a division bench of the Court had acquitted 8 convicted persons by judgment dated May 6, 1993 in Jagnarayan Singh and Others Vs. State of Bihar, a related case. The genesis of the both cases was the same. The judgement in the case was delivered exactly 31 years after the acquittal of 8 persons.  In Patna High Court, a total of 3058 cases are over 30 years old,   

The appellant was convicted under Section 396 of the Indian Penal Code (IPC) and was sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.5,000/- by the sentence dated December 18, 2012  trial Court pursuant to the judgment dated December 17, 2012. The prosecution case was that an armed dacoity was committed in the house of the informant situated in village Basantpur, Ara Muffasil, Bhojpur on November 22, 1987 in night. A number of dacoits armed with big Double Barrel Guns, Gun and Small country Pistols broke open the door, entered in the house and looted properties worth Rs. 40,000/. Visheshwar Rai, informant's grandfather told him that his brother Bhola Rai fell down due to bullet shot. Bhola told that “Kameshwar Singh shot fired him". Bhola was shot dead.

Section 396 of IPC deals with "Dacoity with murder" It reads: "If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or [imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

The genesis of case lies in the FIR bearing Ara Muffasil P.S.Case No.125 of 1987 which was registered on November 23, 1987 based on the fardbeyan of informant, namely, Ram Dular Yadav against 9 named accused persons including the appellant. The prosecution after completion of investigation, chargesheet against eight accused persons (except the appellant) was submitted on February 23, 1988 which stated that the appellant was as absconder and the cognizance was taken for the offence punishable under Section 396 of Indian Penal Code. The case was committed for split trial by separating the case of this appellant, Yogendra Singh and other suspects against whom the investigation was still going on and accordingly S.Tr.No.436 of 1988 was registered. The 8 accused persons were convicted by the judgment dated March 19, 1990 passed by the 7th A.D.J., Ara and each accused were sentenced to undergo rigorous imprisonment for life. The convicted eight accused persons preferred Cr.Appeal before the Patna High Court vide Cr. Appeal No. 179 of 1990 (D.B.) (Jagnarayan Singh and Others Vs. State of Bihar). The Division Bench of the Court after hearing the parties had acquitted all the 8 convicted persons by allowing the appeal vide order/judgment dated May 6, 1993.

The Investigating Officer filed a petition before the Court concerned to the separate trial on February 23, 1988 for the permission to continue further investigation and the same was accorded by the C.J.M., Ara vide order on the same day. The supplementary Charge-sheet vide Charge-sheet dated November 15, 1989 was submitted under Section 396 of I.P.C. against the appellant. The case was committed for sessions trial. The appellant pleaded his innocence in respect to contents of the charge as framed. The trial of the appellant commenced. The prosecution examined two witnesses. The evidence of the prosecution had been closed on July 20, 2012. The statement of appellant accused was recorded on July 24, 2012 under Section 313. The appellant stated about his innocence and totally denied the allegation regarding alleged occurrence and the appellant adduced the judgment passed by the Division Bench of this Court in Cr.Appeal No. 179 of 1990 arising out from Sessions Trial No. 436/1988.

The appellant's counsel submitted that the defence raised the contention that both examined witnesses are full brother and also interested witnesses, the other witnesses mentioned in the Fardbeyan are not examined, an injured person namely Bhushan Yadav also has not been examined, which casts serious doubt on the prosecution version, Investigating Officer and Doctor of the case are not examined, in absence of medical report, a case U/S 396 of IPC cannot be proved as the cause of death of Bhola Rai has not been proved , the document of the case of Session Trial No. 436/1988 cannot be admissible permissible as evidence in this case, and in Cr. Appeal No. 179/1990. The High Court acquitted the other accused person of this case and also observed that the Fardbeyan is ante-dated, and the identification of the accused person as participants in the alleged dacoity by the eye witnesses who are all of the same family does not inspire confidence, and the entire prosecution came has no leg to stand but the learned trial court gave weightage of the plea as advanced by the prosecution in response to the aforesaid contention of the defence. 

The appellant's counsel submitted that both the witnesses are belonging to same family. The explanation of injury caused to Bhola Rai, Bhushan Yadav and son-in-law of Bhola could not be substantiated by the evidence of the prosecution witnesses and in the facts and circumstances, the investigating officer of the case who had taken part in the investigation and submitted the charge sheets was necessitated for the purpose of corroboration the location and situation of the house of the informant but the Investigating Officer was not examined in the present case and further corroboration in the present case with respect to postmortem of alleged deceased is required, which test amounts the examination of doctor who conducted the postmortem for proper explanation of the injury but the Doctor was not examined in the present case and in view of the aforesaid, the inquest seizure list and postmortem report have not been proved and it would cause prejudice to the appellant.

The counsel for the appellant relied upon the judgment of the Supreme Court in the case of Munna Lal Vs. State of Uttar Pradesh, reported in 2023 SCC OnLine SC 80. The paragraph Nos.-28,39 and 40 of the said judgment reads: 

“28. Before embarking on the exercise of deciding the fate of these appellants, it would be apt to take note of certain principles relevant for a decision on these two appeals. Needless to observe, such principles have evolved over the years and crystallized into ‘settled principles of law’. These are:
(a). Section 134 of Indian Evidence Act, 1872, enshrines the well-recognized maxim that evidence
has to be weighed and not counted. In other words, it is the quality of evidence that matters and not the
quantity. As a sequitur, even in a case of murder, it is not necessary to insist upon a plurality of witnesses
and the oral evidence of a single witness, if found to be reliable and trustworthy, could lead to a
conviction.
(b). Generally speaking, oral testimony may be classified into three categories, viz.:
 (i) Wholly reliable;  (ii) Wholly unreliable; (iii) Neither wholly reliable nor
wholly unreliable. 

The first two category of cases may not pose serious difficulty for the court in arriving at its conclusion(s).
However, in the third category of cases, the court has to be circumspect and look for corroboration of any material particulars by reliable testimony, direct or circumstantial, as a requirement of the rule of prudence.
(c). A defective investigation is not always fatal to the prosecution where ocular testimony is found credible and cogent. While in such a case the court has to be circumspect in evaluating the evidence, a faulty investigation cannot in all cases be a determinative factor to throw out a credible prosecution version.
(d). Non-examination of the Investigating Officer must result in prejudice to the accused; if no prejudice is caused, mere non-examination would not render the prosecution case fatal.

(e). Discrepancies do creep in, when a witness deposes in a natural manner after lapse of some time, and if such discrepancies are comparatively of a minor nature and do not go to the root of the prosecution story, then the same may not be given undue importance.”

The counsel for the appellant pointed out that the genesis of the Cr. Appeal No. 179/1990 which arose from the S.Tr.No. 436 of 1988 (arising out of Ara Muffasil P.S.Case No.125 of 1987)  was the fardbeyan as recorded and upon the same FIR was registered. The genesis of the S.Tr.No.22 of 1990 was the same as the Fardbeyan upon which the same FIR has been registered and the judgment passed in the trial is under challenge in the present Cr. Appeal No. 38/2013. The Division Bench of the High Court held that the said fardbeyan is ante dated and further impeached the credibility of the identification of the named accused in the FIR which also includes this appellant. 

The Court recorded that "the judgment passed in Cr. Appeal No. 179 of 1990 would operate as estoppel in regard all finding which are essential to sustain the judgment and both prosecution witnesses are not trustworthy witnesses and so the prosecution has failed to prove the case beyond reasonable doubt."



Friday, May 3, 2024

Justice Vipul Pancholi led bench sets aside judgement of Additional Sessions Judge, Rosera (Samastipur) in murder case

In Kanchan Kumari v. State of Bihar, the bench of Justices Vipul M. Pancholi and Chandra Shekhar Jha set aside the judgement of Additional Sessions Judge, Rosera (Samastipur) which convicted the appellants Ravindra Kumar @ Lalo and Kanchan Kumari for the offences punishable under Sections 302/34 and 302/120B of the Indian Penal Code (IPC) and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each and in default of payment of fine, the appellants Ravindra Kumar @ Lalo and Kanchan Kumari have to undergo RI for four months. The appellants were also convicted for the offences punishable under Sections 201/34 of the IPC and sentenced to undergo RI for four years and to pay a fine of Rs.2000/- each and in default of payment of fine, the appellants have to undergo RI for one month. All the sentences were to run concurrently. The judgement of the division bench of the High Court was authored by Justice Pancholi was delivered on April 19, 2024.

The informant Binod Kumar gave a written complaint wherein Manoj Kumar (younger brother of the informant) and Mukesh Kumar (brother-in-law of Manoj Kumar) had been living at his house since long. On September 17, 2016, Mukesh Kumar (deceased) received a phone call and went outside. As a dance programme was organized on the occasion of Vishwakarma Puja at Basauna Chowk, the informant did not pay attention as to where he had gone. The informant got information through phone that dead body of Mukesh Kumar is lying in the water beside the road ahead of Utkramit Madhya Vidyalaya, Pakahi. The dead body was brought to Shahpur Chowk.

The written complaint given by the informant had given the names of four accused and also pointed out the motive for committing murder of deceased Mukesh Kumar. 

The judgement of the Patna High Court recorded that it was surprising that after preliminary investigation the investigating agency exonerated the said four persons who were named in the FIR and only on the basis of secret information given by the informer, all the present appellants have been implicated

Admittedly, there was no eye witness to the occurrence in question. The case of the prosecution rested on circumstantial evidence. 

Notably, none of the prosecution witnesses deposed against the appellants-accused except the Investigating Officer. None of the prosecution witnesses had seen the appellants lastly in company with the deceased. Even the weapon, i.e., the knife, which was recovered from the house of one of the appellants, was not sent for necessary analysis to FSL. The said aspect is admitted by the Investigating Officer.

The Trial Court had convicted the appellants only relying upon the deposition given by the Investigating Officer. The prosecution failed to complete the chain of circumstance from which it can be established that the appellants have killed the deceased despite which the Trial Court has passed the impugned judgment of conviction and order of sentence. 

The case of the prosecution was that as the deceased Mukesh Kumar was having love affair with one of the appellant Kanchan Kumari, with the help of the other two co-accused the deceased Mukesh Kumar has been killed. However, the prosecution has failed to prove by leading cogent evidence before the Court that Kanchan Kumari, the  appellant was having relation with the deceased. The said aspect has been admitted by the Investigating Officer.

The High Court re-appreciated the entire evidence led by the prosecution before the Trial Court. It would emerge from the record that there is no eye witness to the occurrence in question and case of the prosecution rests on circumstantial evidence. It noted that as per the deposition given by the Investigating Officer, on the basis of secret information given by the informer of the police, it was revealed that the deceased Mukesh Kumar was having love affair with Kanchan Kumari, one of the appellants and all the appellants in connivance with each other killed the deceased. 

The prosecution failed to examine the witness with a view to prove that deceased Mukesh Kumar was
having love affair with Kanchan Kumari, one of the appellants. It emerges that the prosecution failed to prove the motive on the part of the accused to commit the alleged offences

Admittedly it is a case of circumstantial evidence. It is well settled that in case of circumstantial evidence, it is the duty of the prosecution to complete the chain of circumstance from which it can be established before the Court that the appellants/accused have committed the alleged offences. 

The he doctor who had conducted post-mortem on the dead body of the deceased found seven injuries out of which six are sharp cut wound. He opined that death was due to hemorrhage and shock caused by above mentioned injuries. He stated that if the knife blow is given, there would be a penetrating wound and he did not find any penetrating wound on the dead body of the deceased. 

The Court observed: "though the Investigating Officer collected the CDR of the concerned mobile phones and produced before the Court, the certification under Section 65B of Evidence Act was not produced before the Court." 

It also observed that "in the case of circumstantial evidence, motive assumes importance. In the present case, as discussed hereinabove, the prosecution has failed to prove the motive on the part of the appellants to kill the deceased by leading cogent evidence before the Trial Court. The medical evidence also does not support the case of the prosecution. Thus, from the aforesaid evidence, it can be said that only on the basis of the confessional statement of the accused and the CDR of the mobile phones, the appellants have been convicted by the Trial Court."

The judgement concluded: "we are of the view that the prosecution has failed to prove the case against the appellants beyond reasonable doubt despite which the Trial Court has passed the impugned judgment of conviction and order of sentence against the appellants. Hence, the same is required to be quashed and set aside." 

The direction of the Court reads: Since appellants, namely, Ravindra Singh @Ravindra Kumar @ Lalo and Kanchan Kumari in Criminal Appeal (DB) No.98 of 2019 and Criminal Appeal (DB) No.291 of 2019 respectively are in jail, they are directed to be released from custody forthwith, if their presence is not required in any other case." It also directed that Bipin Prasad Singh @ Bipin Singh, the appellant, in Criminal Appeal (DB) No.1480 of 2018 who is on bail, is discharged from the liabilities of his bail bonds.

 

High Court sets aside judgement of Additional Sessions Judge-VI-cum-Special Judge, POCSO Act, Nalanda in "a case of a gun-shot marriage"

Patna High Court's bench of Justices Ashutosh Kumar and Jitendra Kumar set aside the judgment and order of conviction by Additional Sessions Judge-VI-cum-Special Judge, POCSO Act, Nalanda and acquitted Prabhas Singh, the appellant of the charges leveled against him. 

The victim had lodged the written report addressed to the Officer-in-Charge of Mahila Police Station, Biharsharif on October 24, 2019, which led to the registration of Mahila P.S. Case No. 175 of 2019 on the same day under Sections 376, 313, 506 and 34 of the I.P.C. and Section 6 of the POCSO Act, 2012. 

Section 376 of IPC provides punishment for rape. The offender is "punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine." 

Section 313 deals with punishment for the offence of "causing miscarriage without woman's consent" . The offender is punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." It is non-bailable and triable by a Court of Session.

Section 506 deals with the punishment for criminal intimidation. The offender is punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 

Section 34 deals with acts done by several persons in furtherance of common intention.

Section 6 of POCSO Act provides" punishment for aggravated penetrative sexual assault". The offencer is punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death. The fine imposed is required to be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim.

The Court has recorded that "no effort was made by the Investigator to know about the age of the victim, especially at the time of the first encounter, when she had become pregnant." The age came to light from the the matriculation certificate of the victim, which showed her date of birth to be April 1, 2003. It emerged that the victim was a 16 year old minor when she had met the appellant for the first time and had continued with her relationship for a very long time during her minority. 

The marriage was performed after the offence of rape was lodged. The Court observed: "Prima facie, it appears to be a case of a gun-shot marriage and, thereafter, that marriage having failed for some reason or the other." The Court inferred that "the victim having voluntarily accepted the matrimonial relationship with the appellant and staying in her matrimonial home for three years, which fact was clearly admitted by her in her deposition before the Trial Court and there being no investigation about the minority of the victim, we do not find it to be a case of rape." It pointed out that "there is no proof of the fact that the relationship was consummated when the victim was only a minor and had not crossed over the date of majority." The Court concluded, "we find the accusation against the appellant to be unworthy of complete reliance. We, therefore, cannot put our imprimatur to the opinion arrived at by the Trial Court."

The Court observed that "the victim had a field day when she approbated and reprobated, depending upon her equation with the appellant and his family members." It has recorded that "the victim has herself stated under Section 164 Cr.P.C. as also before the Trial Court that she got married to the appellant,  it was an important fact to have been disclosed before the Investigator as also before the Trial Court. The very factum of marriage and the victim staying in her matrimonial home for more than two years would have made the allegations absolutely false."

The Court has noted that the victim "has also admitted that she became pregnant because of the association with the appellant, but when the appellant refused to marry her, she lodged a case. After the case was lodged, the appellant married her and she was happily residing in her matrimonial home."

The judgement notes that "all the while that she made statement before the Magistrate under Section 164 Cr.P.C. and in her deposition before the Trial Court, she had referred to the appellant as having plighted his troth to her. There was obviously love relationship between the victim and the appellant."

The Court's direction reads: "the appellant/Prabhas Singh is in jail, he is directed to be released from jail forthwith, if his detention is not required in any other case."

Notably, there is a glaring proofing error in the opening sentence of the judgement. It reads: "The sole appellant/Prabhas Singh has been convicted for the offence under Section 376 (3) of the Protection of Children from Sexual Offences Act, 2012." Instead of referring to Section 376 (3) of the IPC, it inadvertently refers to POCSO Act. The fact is that there are only 46 Sections in the POCSO Act.  Section 376 (3) of IPC which was inserted in 2018 states that "Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub-section shall be paid to the victim."