Wednesday, November 29, 2023

Supreme Court reverses acquittal order of Justice Dharnidhar Jha, Patna High Court in double murder accused Prabhunath Singh case

On September 1, 2023, the Supreme Court's bench of Justices S K. Kaul, Abhay S. Oka and Vikram Nath pronounced its 8 page long sentencing order in Harendra Rai v. State of Bihar after delivering its 143 page long judgement on August 18, 2023 in the case of an offence committed in the year 1995, almost 28 years old. The Court did not deem it appropriate to award death sentence to Prabhunath Singh, a political leader and a sitting Member of Parliament at the time of offence. He is a four time MP. The Court awarded imprisonment for life to him under Section 302 of Indian Penal Code (IPC) along with fine of Rs.20 lakh. He has been awarded 7 years rigorous imprisonment under Section 307 IPC along with fine of Rs.5 lacs. Both the sentences are to run concurrently. 

Justice Vikram Nath pronounced the judgment for the Bench comprising of Justices Kaul, Oka and Nath. Disposing off the Appeal, the sentencing order states that the acquittal of Prabhunath Singh recorded by the Trial Court and the High Court was reversed vide judgment dated August 18, 2023 and he was convicted under Section 302 and 307 of the Indian Penal Code, 1860. The Criminal Revision Petition was  initiated by the High Court exercising its suo motu power in the light of the minutes recorded by the Inspecting Judge of Patna Judgeship on May 4, .2009 and resolution of the Standing Committee dated July 14, 2009.

By doing so it has established the incorrectness of the 19 page long judgment and order dated February 2, 2011 passed by Justice Dharnidhar Jha, the single judge of the Patna High Court in Criminal Revision Petition No. 1345 of 2009, whereby the said Revision Petition was dismissed confirming the judgment of the Additional Sessions Judge, Fast Track Court III, Patna dated October 24, 2008 passed in Sessions Trial Nos. 469 of 2007 and 470 of 2007, acquitting Respondent Nos. 2 to 8 of all the charges. Justice Jha was seized with the judgment dated October 24, 2008 passed by the Presiding Officer, Fast Track Court III, Patna in S.T. Nos. 469 and 470 both of 2007 arising out of Panapur P.S. Case no. 62 of 1995 by which the learned trial judge acquitted the respondent nos. 1 to 7 of the charges under sections 147, 148, 302, 307/149 and 302/149 IPC and section 27 Arms Act because "the prosecution has totally failed to bring the charges home against them." Concluding his judgement and order, Justice Jha had said, "the revision petition is merit-less and the same is hereby dismissed as I could not find out any element of perversity afflicting the judgment. The view which was taken by the learned trial judge was the most probable view." The Patna fast track court had acquitted Prabhunath Singh and six others for lack of evidence in double murder case of 1995. By now it is amply clear that Supreme Court does not approve of his view and the view taken by the Additional Sessions Judge, Fast Track Court III, Patna.

The prosecution version, as recorded in the FIR in the statement of Rajendra Rai, narrated that the informant along with eight-nine other persons of his village was returning after casting their vote in the election on 25.03.1995 at around 9AM; when they reached south east of his residence, five persons came in a car armed with rifles and guns and stopped the car; Prabhunath Singh, who was the contesting candidate for Bihar People’s Party (BPP), while sitting in the car enquired as to whom all of them had cast their votes; the informant answered that they had cast their votes in favour of Janta Dal Party having symbol of Chakrachap; on hearing this, the car moved towards south and stopped at a little distance.

Prabhunath Singh opened fire from his rifle pointing towards the informant and others and thereafter the car sped away. As a result of the firing, three persons got injured. On the basis of the FIR, investigation was taken up. Inspection was made of the spot of occurrence. Three used cartridges were recovered from the place of occurrence, they were sealed and a recovery memo was prepared. The Investigating Officer recorded the statement of the witnesses. The injured were provided medical treatment, the doctor prepared the injury report and after two of the injured expired, the post-mortem reports of the two deceased persons were also prepared. Daroga Rai died soon after the incident and his post-mortem was conducted on March 26, 1995. Rajendra Rai died after about five months on 21.08.1995 and his post-mortem was conducted on August 22, 1995.

As Prabhunath Singh was avoiding the arrest, nor was he surrendering as he was the member of the ruling party. The District Magistrate, considering the amount of influence being yielded by the accused, found that it was not feasible to conduct the cases in District Saran at Chapra and hence recommended the transfer of all the six cases to Hazaribagh. In all these cases Prabhunath Singh was an accused. The transfer was approved by the High Court. However, later in the year 2000, upon re-organization of the State of Bihar, as Hazaribagh fell in the State of Jharkhand, the present trial was transferred to District Bhagalpur in Bihar. After 11 years that charges could be framed by the Trial Court on March 26, 2006 against all the accused for offences under various Sections of IPC. On October 24, 2008, the Trial Court acquitted all the accused in both the Sessions Trials bearing no. 469 of 2007 and 470 of 2007. There was no challenge to the judgment of acquittal by the State.  

In its judgement, the Court takes note of the blunder committed by Prabhunath Singh in getting the court witness, Lalmuni Devi, mother of deceased Rajendra Rai abducted ten days before the date fixed for recording her statement. This led to filing of a Habeas Corpus Petition Cr.WJC No. 717 of 2006, Harendra Rai Versus State of Bihar before the High Court. A report submitted by the Inspecting Judge as a result of an unruly incident which occurred in the Trial Court on the date Lalmuni Devi-deposed before the Trial Court and another report of the Inspecting Judge commenting upon the judgment of acquittal by the Trial Court. The Supreme Court records: "the trial proceeded but again in a most shabby manner, not even complying with the directions of the High Court. The Special Public Prosecutor for the State, instead of getting the witnesses examined before the Court, filed affidavits on their behalf reiterating their earlier statements." 

The Division Bench of Patna High Court which included Justice S.P. Singh had three materials before it namely affidavit of Lalmuni Devi, her statement recorded by the Magistrate on November 20, 2006, the reports of Dr. D,N. Gautam, Additional Director General of Police dated November 30, 2006, December 16, 2006 and January 22, 2007 and the enquiry report by Justice C.K. Prasad, the Inspecting Judge, Bhagalpur dated February 21, 2007. It had rejected the submissions of teh Advocate General and Vindhya Kesari Kumar, senior counsel appearing for Prabhunath Singh as being without any substance or merit.

It emerged that Lalmuni Devi had been abducted along with her husband by Dina Nath Singh (brother of Prabhunath Singh) and Chotelal, MLA from Parsa. She was asked by the abductors to change her statement and if she would not do the same, then Prabhunath Singh would kill her other son (Harendra Rai) as well. She also described how she was taken to Court room where the incident took place in which the men of Prabhunath Singh assaulted her son, daughter-in-law and son-in-law who wanted to take her with them. The Judge was sitting in Court and in his presence her family members were assaulted but the Judge said nothing. She was also threatened that she would also be killed. She was again taken by Prabhunath Singh and his men from the Court on November 3, 2006. She also stated that she had not given any statement on November 3, 2006 and only her thumb impressions were taken as she was frightened and afraid that she might lose her other son, daughter-in-law and son-in-law who were being continuously assaulted. It was after three-four days that she reached her home. She also narrated in her statement in the enquiry report about the working of Prabhunath Singh and that he was again preparing to get her abducted. Dr. D.N. Gautam, the Additional Director General of Police, had condemned the report of D.I.G., Saran range, Chapra in his report. He had concluded the report by observing that the investigation of the two cases was quite casual and the supervision and control of the investigation was also pitiable. He had also recorded the statements of Lalmuni Devi and Rama Rai which was again reproduced in the order and the same is not being repeated as it is more or less the same as recorded above. Dr. Gautam in his report also commented that the sequence of events started only after the application under Section 311 CrPC was allowed and Lalmuni Devi was called as a court witness on November 3, 2006. 

It may be recalled that when CRLMP. No. 5711, the Special Leave to Appeal (Criminal) was filed in the Supreme Court in 2012 arising from the judgement and order of Patna High Court dated December 2, 2011 in CRRP No.1345/2009 (Harendra Rai v. State of Bihar, upon hearing the bench of Justices H. L. Dattu and C. K. Prasad passed an order saying, "List before a Bench of which Hon’ble Mr. Justice C.K.Prasad, is not a Member". 

Notably, Justice C.K. Prasad was the Inspecting Judge of the judgeship who called for reports and ordered an enquiry in the matter of "newspaper report about the fracas created in the Court of 7th Additional Sessions Judge, Bhagalpur while the court proceedings were going on" in the case pertaining to Prabhunath Singh. After a thorough and painstaking enquiry, Justice Prasad gave a report on February 21, 2007 noting the circumstances in which the trial arising from Masrakh (Panapur) P.S. Case No.62 of 1996, that should normally have taken place at Chapra, was first transferred to Hazaribagh and when as a result of the bifurcation of the State Hazaribagh fell in Jharkhand, it was brought to Bhagalpur. After taking into account the reports submitted by the District and Session Judge, the 7th Additional Sessions Judge, the Public Prosecutor, statements of witnesses and the report of Dr. D.N. Gautam to whom he entrusted the enquiry. In his report Justice Prasad found and held that “I do not have the slightest hesitation in endorsing the reports of the District and Sessions Judge, Bhagalpur as also the Additional Director General of Police that the witness Lalmuni Devi was not produced under proper security. She was frightened and under heavy stress prior to her examination. She was intimidated inside the Court room prior to her examination.  She was not normal and the Court atmosphere was highly tensed and abnormal. The materials on record led him to conclude that evidence of Lalmuni Devi cannot be said to have been voluntarily made. I am of the considered opinion that had the Presiding Officer of the Court exercised little discretion, this untoward incident ought not have taken place. The Presiding Officer of the Court having found that the witness was not looking normal and, in fact, looking frightened and having not been produced under proper security, he ought to have taken these facts seriously and prevented deflecting the Court of Justice. The direction of this Court to record evidence cannot be construed to mean that the Court was obliged to record her statement despite the fact that she was produced without proper security. I am of the opinion that the Presiding Officer of the Court had also failed miserably in the matter."

The said Habeas Corpus Petition was decided by the Division Bench of the Patna High Court on March 13, 2007. The charges could be framed only on May 26, 2006 by the Presiding Officer of Fast Track Court II, Bhagalpur. By order passed by the High Court in Cr.W.J.C. No. 717 of 2007, the trial was again transferred from Bhagalpur to Patna with five directions which are contained in paragraph 2 of the impugned judgment. After the judgement, the actual proceedings started on June 13, 2008 before the Trial Court at Patna. The trial was re-heard and the witnesses who had been examined by the Additional Sessions Judge, Bhagalpur were also recalled or reproduced for their evidence.

Notably, the Trial Court did not find it necessary to summon the Investigating Officer. Ten witnesses were examined by the prosecution in support of the charges but the I.O. of the case or the officer who had recorded the fardbeyan of one of the deceased Rajendra Rai, was not examined. Rajendra Rai (informant) who had died in Patna Medical College Hospital (PMCH) and the doctor who had held postmortem examination, i.e., Dr. B.D. Prasad, a doctor of PMCH was not examined.

Lalmuni Devi's second statement was recorded on September 29, 2008. After the incident on 25.03.1995 at about 9 A.M., the three injured were taken to the State Hospital Camp, Panapur. The Fard Bayan was registered on the oral statement given by one of the injured (later deceased) Rajendra Rai as recorded by Sub-Inspector N.N. Thakur at 10.30 AM. The said Fard Bayan was signed by the injured Rajendra Rai, two witnesses Narendra Singh, Sanjiv Kumar Singh and by the officer in-charge, Panapur Police Station, Camp Panapur. The Fard Bayan also bears the endorsement of Sub-Inspector N.N. Thakur forwarding it to the Police Station In-charge Masrakh under Sections 147, 148, 149, 307 IPC and Section 27 of the Arms Act for registering the report. Contents of the Fard Bayan have already been reproduced in the earlier part of this judgment. On its basis, FIR was registered at P.S. Panapur as Case No. 62 of 1995 on March 26, 1995. The FIR contains endorsement of various authorities and Courts of its perusal. It also bears the endorsement that Section 302 IPC was added on March 30, 1995. 

The Supreme Court refers to Latin Maxim “qui facit per alium facit per se” means "he who acts through another, acts himself" to conclude that the abduction was the work of Prabunath Singh.

The conclusions recorded in the judgement is based on analysis of the evidence in the light of the legal position which is as follows:
a) Fard Bayan of Rajendra Rai, which was later converted into an FIR, is admissible in evidence and is to be read as a dying declaration or his last statement.  
b) The tainted investigation shows the high-handedness of the accused-Prabhunath Singh, who was a powerful person, being a sitting M.P. of the Ruling Party.
c) The prosecution had established, even through the hostile witnesses, that the date, time, and place of incidence as given in the Fard Bayan of Rajendra Rai were fully established. The only issue was with regard to the identity of the assailants.
d) The post-mortem reports, show that the death of Rajendra Rai and Daroga Rai was homicidal in nature. The medico legal reports supported the prosecution’s story to the extent that the injuries were caused by a fire arm, which proved fatal for two out of the three injured.
e) Adverse inference against the accused is drawn in view of their subsequent conduct.
f) Judicial notice is taken of the judgment in the Habeas Corpus petition dated July 13, 2007 regarding the conduct of the accused, the investigating agency, the Public Prosecutor and the Presiding Officer conducting the trial.
g) The two administrative reports of the respective judges, who were constitutional functionaries, also have to be given due credence and cannot be ignored outright regarding the conduct of the accused, public prosecutor and the Presiding Officer conducting the Trial.
h) The statement of Lalmuni Devi is found to be reliable, and the Courts below wrongly discarded it on the ground that it was hearsay and tutored.
i) The dying declaration and the statement of Lalmuni Devi fully establish that it was Prabhunath Singh, who had caused the injuries from his firearm weapon, which proved to be fatal for two out of the three injured and also caused injury to the third surviving injured, namely Lalmuni Devi.
j) Prabhunath Singh is thus liable to be convicted under Sections 302 and 307 IPC for committing culpable homicide amounting to murder and attempt to murder.
k) The rest of the accused, although named in the chargesheet after due investigation, since their names were not reflected either in the Fard Bayan of the deceased Rajendra Rai (dying declaration) or in the statement of CW-1, therefore, their acquittal is not disturbed.

The judgement concluded that the accused-respondent no.2 is convicted under Sections 302 and 307 IPC for the murders of Daroga Rai and Rajendra Rai and also for attempt to murder of injured Devi. The Secretary, Department of Home, State of Bihar and the Director General of Police, Bihar were directed to ensure that Prabhunath Singh was taken into custody and produced before the Court for hearing on the question of sentence in view of Section 235 of Criminal Procedure Code on September 1, 2023. On Auguts 25, 2023, Prabhunath Singh was permitted by the Court to appear virtually through video conferencing for hearing on question of sentence, instead of the physical appearance. His prayer to permit him to appear virtually was allowed considering his health conditions and the fact that he was already undergoing life sentence in another murder case. His Crl.M.P.No.169246 of 2023 was allowed for him present virtually from jail.

The sentencing order dated September 1, 2023 observes that Section 357 of the Code of Criminal Procedure, 19732 provides that whenever fine is imposed as a sentence, the Court may while passing the judgment, order the whole or in part of the fine recovered to be applied as per clauses (a) to (d) of sub-section (1) thereof. Clause (a) provides for defraying the expenses incurred in the prosecution. We are not inclined to grant any such expenses to the State considering the fact that the State in fact did not prosecute the case fairly, rather throughout assisted the accused. Clause (b) and (d) also will have no application, however, under clause (c) considering the conduct of accused no.2, further the mental, physical, and financial damages suffered by the victim’s family, the two deceased and the injured, we direct that the fine awarded to be paid as damages in the following manner:
a) We award damages of Rs.10 lacs each to the legal heirs of two deceased Rajendra Rai and Daroga Rai. The Trial Court will get a preliminary enquiry conducted with regard to the legal heirs of the two deceased and the amount will be disbursed to the legal heirs as per the law of Succession.
b) Similarly, the amount of fine awarded under section 307 IPC of Rs.5 lacs would be disbursed in the same manner by the Trial Court to the victim if she is alive and if not, to her legal heirs.

It also directed that "Considering the conduct of the State as noticed in the judgment dated August 18, 2023 and also the amount of trauma and harassment faced by the victim’s family, we are of the view that in addition to the damages awarded under section 357 CrPC further compensation be awarded under section 357-A CrPC. The State of Bihar will compensate the legal heirs of the two deceased and the injured if alive otherwise her legal heirs in the like amount of the fine Criminal Appeal No. 1726 of 2015 awarded above i.e. Rs.10 lacs each to the legal heirs of the deceased Rajendra Rai and Daroga Rai and Rs.5 lacs to the injured Smt. Devi or her legal heirs, as the case may be. The amount so deposited will be disbursed in the same manner as provided above for disbursement of the damages under section 357 CrPC."

It further directed that the amount of fine and compensation is to be deposited with the Trial Court within two months from today failing which the same shall be got recovered as arrears of land revenue by the Trial Court.

The compliance report is to be submitted to the Supreme Court by the Trial Court within four months. The Registry is required to circulate the compliance report within the time allowed and the matter is going to be listed with office report for directions.


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