Dharmendra Ram vs The State Of Bihar
2023 Latest Caselaw 3969 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                 CRIMINAL APPEAL (DB) No.1025 of 2019
      Arising Out of PS. Case No.-10 Year-2015 Thana- PAWANA District- Bhojpur
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Dharmendra Ram Son of Late Mokhtar Ram Resident of Village - Kapoordihara, P.S.- Pawana, District- Bhojpur ... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Ms. Shashi Priya, (Amicus Curiae) For the State : Mr. Dilip Kumar Sinha, APP For the Informant : Mr. Shiva Shankar Prasad Singh, Adv.

Ms. Pushpendra Priyedarshi, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 23-08-2023

Since nobody had been appearing in this case on

behalf of the appellant, we have requested Ms. Shashi

Priya, learned advocate to be the Amicus to defend the case

of the appellant. She has consented for the same and has

assisted us.

2. The Informant has been represented by Mr.

Shiva Shankar Prasad Singh. On behalf of the State, Mr.

Dilip Kumar Sinha, learned APP, advanced his arguments.

3. The appellant has been convicted under Section

302 and 120(B) of the IPC and for both the charges, he Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

has been sentenced separately for life imprisonment and

fine of Rs. 50,000/- and in default of fine, to further suffer

RI for six months vide judgment and order or conviction

and sentence dated 19.07.2019 / 25.07.2019 passed in

SC/ST Case No. 626 of 2017 arising out of Pawana P.S.

Case No. 10 of 2015. The sentences however have been

ordered to run concurrently.

4. The allegation against the appellant is of having

given a hammer blow on the head of the deceased,

whereafter also stabbing him a number of times. The

deceased was stabbed by two other persons leading to his

death.

5. The FIR has been lodged by Rajendra Ram

(P.W.6) on 29.03.2015 at about 7.30 PM alleging that on

the same day at about 5.45 PM, while he was going to

Pawana Bazar for distributing milk, he saw his nephew/

Gulab Chand Ram (deceased) sitting in front of the shop of

one Ramnath Mahto (not examined) reading a newspaper.

While returning, P.W.6 saw the appellant hitting the Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

deceased with a hammer on his head as a result of which

he fell down. In the meantime, the brother of the appellant

namely Manoj Ram gave a knife blow to the deceased. One

Satish Yadav is said to have further exhorted the accused

persons to kill the deceased as despite belonging to the

cobbler community, he behaved like a wisenheimer. One

Manoj Manjil is also said to have given knife blow to the

deceased. In the meantime, many persons of the

neighborhood arrived and seeing them, the appellant and

other accused persons fled away. With the help of the

villagers, the nephew of the Informant was brought to the

clinic of one Dr. C.S. Lal where he was declared dead.

Thereafter, the dead body was brought to the house of

P.W.6. The Informant/P.W.6 asserted therefore that the

deceased had been killed because of political reasons.

6. On the basis of the aforenoted fardebeyan

statement of P.W.6, Pawna P.S. Case No. 10 of 2015

dated 29.03.2015 was registered for investigation for

offences under Sections 302, 120(B)/34 of the IPC and Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act,

1989.

7. The police after investigation submitted charge-

sheet against the appellant and others but, only the

appellant was put on trial.

8. The Trial court, after examining eight witnesses

on behalf of the prosecution, convicted and sentenced the

appellant as aforesaid.

9. Ms. Shashi Priya, learned Amicus, while

assailing the judgment of the Trial court, has submitted that

it got mislead because of the parrot like repetition of the

allegation against the appellant by all the witnesses who are

closely related to the deceased. She has further submitted

that if their deposition is analyzed deeply, it would appear

that none of them had seen the occurrence but for reasons

unknown, the appellant was framed and the allegation of

assaulting the deceased by hammer and thereafter by knife

was attributed to him.

Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

10. In support of the aforenoted contentions, the

learned Amicus has pointed out that in the cross-

examination, all the witnesses have conceded that they had

reached the place of occurrence when the deceased had

already fallen on the ground. Even in the inquest report,

the cause of death is stated to be strangulation and there

is no reference of any hammer blow by the appellant.

11. During the trial, all the witnesses including

P.W.6 have tried to embellish the prosecution case by

narrating that after giving the hammer blow, the deceased

was also assaulted by knife by the appellant. Perhaps for

the reason of only the injuries on the person of the

deceased being fatal in nature and the injury on head being

simple in nature, which might having been caused by fall of

a human being on a hard surface, such an assertion was

made by the prosecution.

12. Lastly, it has been submitted that it appears to

be rather surprising that if the appellant had executed the

crime, which act of his was witnessed by common relatives, Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

he would surely have been apprehended. On the contrary,

the records disclose that he was arrested from a public

transport after about two months of the occurrence. The

question, therefore, which remains unanswered is where did

he go and how was he allowed to escape from the village.

13. Additionally, it has also been submitted that

the Investigating Officer has completely botched up the

investigation but has very candidly admitted that he did not

seize any blood-stained earth or the cot on which the body

was found to be lying and that he did not enquire from any

one of the independent witness about the occurrence.

14. All these facts, Ms. Priya contends, taken

together would only lead to a conclusion that somehow or

the other, the appellant has wrongly been framed in this

case; the reasons for such false implication however

remaining unknown.

15. As opposed to the aforenoted contentions, Mr.

Dilip Kumar Singh for the State and Mr. Shiva Shankar

Prasad Singh for the Informant have submitted that in a Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

case where all the witnesses have, in unison, narrated

about the specific overt act made by the appellant, which

ultimately led to his death, there is no question of any

doubt about the appellant having killed the deceased. Mr.

Singh has further submitted that it may be good to doubt

but it should not be extended to doubting everything and

such doubts would then be rendered meaningless.

16. The theory that it would be advisable to leave

many guilty persons free but not a preferable idea to

convict an innocent, is wearing thin in the country of its

origin viz. England.

17. During the cross-examination, when the

witnesses talked about their having reached the P.O. when

the deceased had already fallen down, they only meant that

they had seen the occurrence from a distance but only after

the accused persons left the scene, they came to the exact

spot where the deceased was done to death. Under such

circumstances, merely because the Informant had missed to

state about the knife blow by the appellant in the FIR, the Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

entire prosecution case cannot be rendered unworthy of

reliance.

18. In the absence of any real motive for falsely

framing the appellant, there is no use of any whataboutery

as to why the appellant would kill the deceased even when

both are directly related to each other and have no bad

blood between them.

19. On these grounds, Mr. Singh has urged that

the judgment and order of conviction and sentence be not

interfered with.

20. We have given our anxious consideration to

the arguments advanced on behalf of the parties and have

also gone through the deposition of each of the witnesses

to test the correctness of the prosecution version. Laxman

Ram (P.W.1) in his cross-examination has clearly stated

that after hearing the noise at the P.O., he reached there

but only to find the deceased having fallen on the ground.

He had seen that the deceased was hit in his head and the

deceased had already died.

Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

21. The reason for the P.W.1 to be present at the

place of occurrence was his job as a labourer, who had to

unload gunny bags. He has admitted of being a member of

the banned MALE Party. The deceased according to him

was also a member of MALE but, sometimes earlier to the

occurrence, he was expelled from the Party. The appellant

also, P.W.1 states, is a member of MALE Party. According

to him, at the place of occurrence, the earth was smeared

with blood, which had turned black because of passage of

time.

22. A suggestion was given to him that perhaps

the deceased had misappropriated party funds and

therefore the axe-man of the Party may have killed him

but, he expressed his ignorance about the same. From his

deposition, it appears that he has not seen the occurrence

or else he would not have found the blood on the earth to

have blackened with the passage of time. He, the appellant

and the deceased were members of MALE Party. The

deceased had been expelled from the party. This may lead Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

to a supposition that perhaps the cause of murder was the

misappropriation of party funds by the deceased. What is to

be examined is whether the task to eliminate the deceased

was given to the appellant and his associates or the MALE

Party had chosen their own axe-man to kill the deceased

and the appellant has only wrongly been framed.

23. We have examined the deposition of witnesses

keeping into account the aforenoted inference also which

can very well be gathered from the deposition of P.W.1,

which has been noted above.

24. Bhushan Ram (P.W.2), a distant relative of

the deceased, has categorically stated in the cross-

examination that he went to the place of occurrence only

after he heard Hulla and found the deceased having died

because of the injury received by him. He only found three

stab injuries on the person of the deceased. By the time he

had reached near the deceased, he was already dead. The

clothes of the deceased were blood drenched. In his

presence, the police had come; the blood stained clothes Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

were taken by the Investigating Officer; and a seizure list

was also prepared in his presence.

25. From his deposition, two things come to the

fore: firstly, that he reached at the place of occurrence only

after the murder had been executed and that he was not

making a correct statement for the reason that the I.O. in

his deposition has clearly conceded that he did not seize

any blood stained clothes or earth from the place of

occurrence. Similarly, Santosh Kumar (P.W.3) also claims

to have gone to the place of occurrence after he heard the

noise coming from the place of occurrence. Only after he

reached near the place of occurrence, did Laxman Ram

(P.W.1), Jairam Das (P.W.4), Agnu Ram (not examined),

Ajit Ram (P.W.5), Gajendra Prasad (not examined) and

many other villagers arrived.

26. From a deeper analysis of P.W.3, it would

appear that none of these aforenoted three persons also

had seen the occurrence as they had arrived at the P.O.

later than P.W.3, who himself had not seen the occurrence. Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

27. All the aforenoted witnesses have testified to

the fact that there was no specific enmity between the

parties. P.W.3 also was given the suggestion that the

deceased had misappropriated the party fund which he

denied.

28. Similarly, Jairam Das (P.W.4) had also

reached the place of occurrence only after the deceased had

already fallen down on the ground because of the injuries

received by him. Ajit Kumar, who is the son of the

deceased, claims to have seen the occurrence from Pawna

Chowk and reached the P.O. only thereafter. When he

reached the P.O., he had found his father lying on the

ground with three to four stab injuries. It appears from the

record that Pawna Chowk is about 50 members from the

P.O., from where it would have been really difficult for any

person to have seen every part of the attack in detail,

specially when the timing of occurrence is in the evening of

the month of March.

Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

29. We have further found from the deposition of

the Informant/P.W.6 that he along with his associates had

brought the injured/deceased to the clinic of Dr. C.S. Lal

who declared him dead. Dr. C.S. Lal has not been

examined. Did he offer any medical aid in the meanwhile?

Was the patient brought to his clinic dead or alive? These

were necessary questions which would have been answered,

had Dr. C.S. Lal been examined or even interrogated by the

police during course of investigation. P.W.6 perhaps is the

only witness who has alleged that the appellant had enmity

with his son. If this is correct, then the deceased was not

the target.

30. P.W.6 is also not sure whether the deceased

had filed a case earlier. However, by stressing on his

memory, he deposed that perhaps the case ended in

compromise. Would the enmity continue after the

composition of the case is the question that troubles us,

specially in the context of the reason or the motive, either

for killing the deceased or for falsely accusing the appellant. Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

Quite interestingly, P.W.6 has come out with another

reason which may perhaps have goaded the appellant to

have committed the offence.

31. The mother of the appellant is the sister of

P.W.6 with whom P.W.6 does not enjoy any good

relationship. Precisely for this reason, he was suggested

that the sister of P.W.6 had sought her respective share in

the family property. Though P.W.6 never answered straight

to the suggestion but, admitted that he could not have

brought his sister to the witness-stand for deposing against

the appellant.

32. Now to the metier part of the defence of the

appellants viz. the ante-mortem injuries leading to the

death of the deceased Dr. Kripa Shankar Choubey (P.W.7)

had conducted the postmortem on the deceased on

30.03.2013. He found a lacerated injury of ½" X ½" which

is only superficially skin deep on the left parietal region.

There were, however, four fatal knife injuries on the torso

of the deceased. The cause of death was opined to be Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

profuse hemorrhage, leading to shock and death. The time

of death was fixed at 6 to 24 hours from the time of

postmortem examination, which fits in the prosecution

module. The stab injuries were all found to be on the vital

organs viz. lungs, heart, stomach and left kidney.

33. In the cross-examination, the Doctor has

categorically stated that the simple injury on the parietal

region of the deceased could have been resulted because of

fall on the ground as well. He has specifically stated that

the injury on the head is not the contributing factor to the

death of the deceased. The death was because of the stab

injuries.

34. The I.O. of this case has rightly been alleged

to have mishandled the investigation.

35. In his cross-examination, without batting an

eyelid, he states that he did not record the statement of

any independent person nor did he recover the weapons of

assault. Even persons, whose houses or shops fell in the

area around the P.O., were never examined by him. But Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

why? This is not the way in which investigation is made. He

has even gone to the extent of saying that he did not

recover any incriminating substance from the place of

occurrence nor did he take in his possession the blood

stained clothes. The I.O. has also not seized the cot on

which the deceased was found to be lying upon.

36. From a conspectus of the deposition of all the

witnesses, it therefore appears to us that none of them

have seen the occurrence.

37. We have wondered for quite sometime as to

what could have been the reason for killing the deceased.

There appears to be some force in the suggestion of the

Amicus that because of the deceased having purloined the

party funds, he may have been killed. However, the killing

appears to have been done by somebody which was not

seen by any one of the witnesses. All the important

witnesses have been or are existing members of MALE

Party. Except for P.W.6/Informant, nobody has spoken

about any bad-blood between the parties. Why would then Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

the appellant, for no cause, kill the deceased. Similarly, it

could be questioned as to why at all, the relatives would

falsely accuse the appellant.

38. These are difficult questions to answer.

39. Mere consistency, which is so lurid in detail of

the witnesses, would not contribute to the quality of the

evidence; rather it demonstrates the lack of it. In the effort

of the prosecution to come out with a consistent case, the

witnesses have only shown that they have been tutored or

that they have only repeated what P.W.6 had to say to

them.

40. There is yet another aspect of the matter. The

inquest report suggest that the witnesses present there

including Ajit Kumar (P.W.5), who is the son of the

deceased, only spoke of stab injuries.

41. Thus, it would not be too far off the line to

infer that only when it was found that there was an injury

on the head of the deceased also, that the story of hammer

attack by the appellant was introduced. Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

42. But these inferences are only in the realm of

speculation. Nonetheless, it does create doubt about the

witnesses having seen the appellant committing the crime

and the appellant having actually committed the crime. The

appellant therefore deserves the benefit of doubt.

43. We have also found that the Trial court has

convicted the appellant under Section 120B of the IPC.

44. In the absence of trial of any other associates

of the appellant and lack of any evidence under Section 10

of the Evidence Act, we find such conviction also to be

based on no material whatsoever.

45. For the aforenoted reasons, we set aside the

judgment and order of conviction and acquit the appellant

of all the charges levelled against him.

46. The appellant/Dharmendra Ram is in custody.

He is directed to be set at liberty forthwith unless his

detention is required in any other case.

47. The appeal stands allowed.

Patna High Court CR. APP (DB) No.1025 of 2019 dt.23-08-2023

48. Let a copy of this judgment be dispatched to

the Superintendent of the concerned Jail forthwith for

compliance and record.

49. The records of this case be also returned to

the Trial Court forthwith.

50. Interlocutory application/s, if any, also stand

disposed off accordingly.

51. Before parting with, we record our

appreciation for the hard and intelligent work done by the

Amicus. She be paid Rs. 2,500/- towards her professional

fee by the Patna High Court Legal Services Authority.

(Ashutosh Kumar, J)

( Alok Kumar Pandey, J) rishi/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          30.08.2023
Transmission Date       30.08.2023