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
(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."

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