Patna High Court
Raju Mishra vs The State Of Bihar on 5 December, 2023
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1381 of 2017
Arising Out of PS. Case No.-17 Year-2002 Thana- BUXAR MUFFSIL District- Buxar
======================================================
Daroga Yadav, son of Mahangu Yadav, Resident of Village- Nagpura, P.S.
Simri Industrial, District- Buxar.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1437 of 2017
Arising Out of PS. Case No.-17 Year-2002 Thana- BUXAR MUFFSIL District- Buxar
======================================================
Raju Mishra, S/o Bheem Mishra, R/o Village- Sonbarsha, P.S.- Buxar
Industrial, District- Buxar.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1455 of 2017
Arising Out of PS. Case No.-17 Year-2002 Thana- BUXAR MUFFSIL District- Buxar
======================================================
Banmali Mishra, son of Rama Shankar Mishra, Resident of village- Barka
Gaon, Mansingh Patti, P.S.- Buxar Industrial, District- Buxar.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1485 of 2017
Arising Out of PS. Case No.-17 Year-2002 Thana- BUXAR MUFFSIL District- Buxar
======================================================
1. Nathuni Mishra.
2. Paspat Mishra @ Pasupati Mishra, Both are Sons of Rama Shankar Mishra,
R/o Village- Man Singh Patti, Barka Gaon, P.S.- Buxar Industrial, District-
Buxar.
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
2/19
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 1514 of 2017
Arising Out of PS. Case No.-17 Year-2002 Thana- BUXAR MUFFSIL District- Buxar
======================================================
Ram Ji Mishra, Son of Late Rajeshwar Mishra, Resident of village - Barka
Gaon, (Mansingh Patti), P.S.- Buxar (Industrial), District - Buxar.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 1381 of 2017)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate.
Mr. Kiran Kumari, Advocate.
Md. Imteyaz Ahmad, Advocate.
Ms. Vaishnavi Singh, Advocate.
Mr. Ritwik Thakur, Advocate.
For the Respondent/s : Mr. Sujit Kumar Singh, APP.
(In CRIMINAL APPEAL (DB) No. 1437 of 2017)
For the Appellant/s : Mr. Rohit Kumar Tripathi, Advocate.
For the Respondent/s : Mr. Ajay Mishra, APP.
(In CRIMINAL APPEAL (DB) No. 1455 of 2017)
For the Appellant/s : Mr. Apurav Harsh, Advocate.
For the Respondent/s : Mr. Abhimanyu Sharma, APP.
(In CRIMINAL APPEAL (DB) No. 1485 of 2017)
For the Appellant/s : Mr. Apurav Harsh, Advocate.
For the Respondent/s : Mr. Mayanand Jha, APP.
(In CRIMINAL APPEAL (DB) No. 1514 of 2017)
For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate.
Mr. Kiran Kumari, Advocate.
Md. Imteyaz Ahmad, Advocate.
Ms. Vaishnavi Singh, Advocate.
Mr. Ritwik Thakur, Advocate.
For the Respondent/s : Mr. Dilip Kumar Sinha, APP.
======================================================
CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE NANI TAGIA
ORAL JUDGMENT
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
3/19
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 05-12-2023
1. All the criminal appeals (five in number)
have been heard together and are being disposed off by
this common judgment.
2. Mr. Ajay Kumar Thakur, learned Advocate
has represented the appellants/ Daroga Yadav and Ram
Ji Mishra in Criminal Appeal (DB) Nos. 1381 of 2017
and 1514 of 2017 respectively; Mr. Rohit Kumar
Tripathi, learned Advocate has appeared for appellant/
Raju Mishra in Criminal Appeal (DB) No. 1437 of 2017
and Mr. Apurav Harsh has appeared for the
appellants/Banmali Mishra, Nathuni Mishra and Paspat
Mishra @ Pasupati Mishra in Criminal Appeal (DB) Nos.
1455 of 2017 and 1485 of 2017 respectively. The
State has been represented by Mr. Dilip Kumar Sinha,
learned APP.
3. The appellants have been convicted under
Sections 302/149 of the Indian Penal Code, vide
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
4/19
judgment dated 31.10.2017 passed by the learned
Presiding Officer, Fast Track Court-I, Buxar, in Sessions
Trial No. 09 of 2008 arising out of Buxar (M) P.S. Case
No. 17 of 2002. By order dated 31.10.2017, they have
been sentenced to undergo R.I. for life each, to pay a
fine of Rs.50,000/- each, which shall be recovered
from the self or ancestral properties, moveable or
immovable, of the convicts.
4. The case history is rather queer. Eight
persons were made accused in the FIR lodged by P.W.
1/Guput Mishra @ Gupteshwar Mishra, who is the
brother of the deceased.
5. A person who was not named in the FIR,
viz., Ashok Mishra, was only charge-sheeted and put on
trial initially.
6. Against other accused persons who were
named in the FIR, no charge-sheet was submitted. After
the examination of seven of the witnesses on behalf of
the prosecution against afore-noted Ashok Mishra, who
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
5/19
also stood trial for the second time along with
appellants, the Trial Court summoned the seven
appellants herein to face trial.
7. A de novo trial began where twelve
witnesses were examined at the trial, leaving few of the
witnesses who had earlier deposed, viz., Bachan Mishra,
who has signed the FIR and some others.
8. The Trial Court, after having examined the
witnesses afresh, acquitted Ashok Mishra but convicted
the appellants. It may also be noted that Bharath Rai
and Akhilesh Mishra, two of the accused persons died
during the pendency of the Trial and hence their names
were expunged.
9. The fardbeyan was lodged by P.W. 1 on
20.01.2002
at about 08:00 AM at the place of
occurrence which is village Barkagaon under Buxar
Industrial Police Station.
10. It has been alleged that in the
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
previous night when P.W. 1 along with P.Ws. 2, 3 and
others were sleeping in the thatched house, Nathuni
Mishra (deceased) got up in the night to urinate. He
heard the whispering sound of people talking nearby.
Out of fear and curiosity, he woke up P.Ws. 1, 2, 3
and others and came out of the thatched house.
P.Ws. 1, 2 and 3 also followed him. They did not find
anybody in and around the thatched house. Nathuni
Mishra (deceased), thereafter, proceeded further
despite his being attempted to be restrained by P.Ws.
1, 2 and 3. Perforce, P.Ws. 1, 2 and 3 also followed
him. After they had travelled for a distance of about
two hundred yards, all of them including P.W. 1 saw
that eight persons had assembled beneath a tree.
Nathuni (deceased) proceeded further when he was
caught by the appellants and on the orders of Bharath
Rai (since dead), appellant/Ram Ji Mishra fired from
his weapon, putting the muzzle of the weapon close to
the chest of the deceased, leading to his
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
instantaneous death. The deceased while dying, took
the name of Ram Ji Mishra and Bharath Rai. Many
persons of the neighbourhood also arrived on the call
of P.Ws. 1, 2 and 3. The cause of occurrence as
stated in the fardbeyan was old enmity and conspiracy
to kill the deceased.
11. On the basis of the aforenoted
fardbeyan/statement of P.W. 1, Buxar (M) P.S. Case
No. 17 of 2002, dated 20.01.2002 was registered for
investigation for the offences under Sections 302,
120(B), 34 of the IPC.
12. As noted above, the police after
investigation submitted charge-sheet against some of
the persons, but later the appellants were summoned to
face Trial along with the known FIR accused/Ashok
Mishra (who has since been acquitted) under Section
319 of the Cr.P.C.
13. We have heard the learned Advocates
for the appellants and learned APP for the State.
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
14. After having perused the records in
some detail, it appears that none of the three witnesses
who claimed to have seen the occurrence, viz., P.Ws. 1,
2 and 3 have made any correct statement before the
Trial Court. The FIR itself discloses that the occurrence
had not taken place in the manner in which it has been
narrated. If the appellants had gathered beneath a tree
at about two hundred yards from the thatched house
where P.Ws. 1, 2 and 3 were sleeping, their talk would
not be heard by somebody sleeping in thatched house.
That the appellants were not near the visible distance
from the thatched house is also clear from the
deposition of the witnesses as also in the FIR.
15. If this were so, there was no necessity
of moving further deep in the village unarmed. The
movement of P.Ws. 1, 2 and 3, therefore, appears to
be a story spun by the prosecution in order to make the
aforesaid witnesses as eyewitnesses to the occurrence.
16. Later during the trial, the same thing
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
was repeated by P.Ws. 1, 2 and 3, P.W. 2 being the
brother of the deceased whereas P.W. 3, a nephew of
the deceased. P.Ws. 2 and 3 also followed suit and saw
the deceased being fired at by appellant/Ram Ji Mishra.
17. The aforenoted witnesses have not
spoken of either having retreated or challenging the
accused persons or about chasing them. There is long-
standing enmity between the parties. The enmity is not
directed against one particular individual, much less
against the deceased. The entire family was within the
firing distance of the appellants. If enmity was the
reason for the occurrence, the appellants would not
have been content by firing one shot, killing the
deceased. It is not the case of the prosecution that the
P.Ws. 1, 2 and 3 hurried back or hid themselves or
pleaded with the appellants not to harm them. If they
are to be believed, they remained there at the P.O. and
the appellants after executing the murder of Nathuni,
moved away.
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
18. The occurrence is said to have taken
place at 10:30 in the night. On being specifically
questioned, P.Ws. 1, 2 and 3 have said that they did
not inform any one of the neighbours for the reason of
night and there being no apprehension of any mishap.
19. This is understandable as the
witnesses did not arm themselves before coming out of
the thatched house.
20. The story has another fault-line. If the
appellants had assembled somewhere near the house
where the deceased along with others were sleeping,
they would not have waited there, expecting the target
and the witnesses to arrive near them.
21. Were they waiting for the opportune
time to attack?
22. If that be so and if the witnesses are
believed, then perhaps the deceased himself took up
the gauntlet of challenging the appellants or else, there
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
would have been no reason for all of them to go near
the firing range of the appellants who were spotted
from a distance and some of them had noticed that
they were armed to the teeth.
23. This fault line makes the prosecution
version absolutely doubtful.
24. To be more specific, (I) the
congregation of the appellants at a place which is two
hundred yards away from the house; (II) the appellants
not coming forward but waiting in ambush; (III) the
witnesses hearing the whispering sound when nobody
was in and around the house and absolute confidence
that nothing untowards is to happen and (IV) P.Ws. 1,
2 and 3 led by the deceased, moving out of the house
unarmed, make the entire story unbelievable.
25. To top it up, without any challenge,
only the deceased was shot at. Nobody else was hurt
even in a minor way. They did not even run away for
their lives.
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
26. What does all this signify?
27. The only inference, the learned
Advocates have argued is that an occurrence had taken
place in which the deceased had died of gun-shot.
However, who had killed him was not known to anyone
of the witnesses, much less the informant.
28. For coming to this conclusion, the
learned Advocates have pointed out that there is
nothing on record to indicate that the police was
informed about the occurrence in the night. P.Ws. 1, 2
and 3 claim to have stayed back at the P.O. with the
dead body lying in the open field. One of the witnesses
has said that the local chowkidar was informed about
the occurrence in the night but the chowkidar informed
the police only in the next morning. There is nothing on
record also to come to any definite finding that
chowkidar had communicated this fact to the police.
29. Whether the police came on its own on
learning that a dead body is lying in the field in a
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
particular village or was specifically informed about the
occurrence in which the name of the assailants were
known, remains completely in dark.
30. Unfortunately, the chowkidar who was
examined in the first instance was left out and he has
not been examined as a witness in the present case.
31. Did the chowkidar actually know about
the name of the assailant(s)? This could have been
known only if chowkidar would have come to the
witness-stand.
32. Testing the prosecution case with
another lens, we have also found that the Investigating
Officers have been absolutely brief about the
occurrence, in their examination-in-chief. One of the
Investigating Officers, who perhaps had investigated the
case for a long time, did not even care to go to the
place of occurrence or confront other villagers who had
seen the dead body for eliciting correct information.
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
33. Additionally, it appears to be rather
surprising that if the occurrence had taken place in the
night somewhere below a tree in an open field, one
would always care to know about the source of light for
identifying the appellants.
34. According to the claim of the
prosecution, it was a moon-lit night and the deceased
and P.W. 1, both, were armed with torches. Those
torches were never asked for nor did P.W. 1 hand those
over to the investigating agency. Apart from this being
a major lapse in the investigation, it also suggests that
nothing of the kind as narrated by P.W. 1 had ever
happened.
35. It is difficult to digest the fact that the
dead body would be allowed to be kept in the open in
the night and the police would arrive only at 08:00 A.M.
in the next day when the fardbeyan of P.W. 1 was
recorded in great detail.
36. The place of occurrence perhaps is the
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
field of Bachan Mishra, who had counter-signed the FIR.
Very conveniently, he has not been made a witness in
this case. It clearly gives an impression that the dead
body was spotted in the field of Bachan Mishra and,
therefore, he also proceeded along with P.W. 1, to
lodge a fardbeyan blaming the appellants for the reason
of the old enmity.
37. The witnesses have spoken about the
enmity running between the families since 2001 when
the members of the prosecution party were made
accused in a murder case and there was a counter
version of the occurrence as well.
38. If the allegations were correct, the
appellants would have faced the trial in the first
instance. They have been summoned to face the trial
only after seven witnesses were examined when only
one person, viz., Ashok Mishra with no charge against
him, so far as FIR is concerned, also having been put
on trial.
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
39. The learned Advocates, therefore, urge
that the story is absolutely different.
40. A very strong suggestion was given to
all the witnesses that the deceased, in the past, was
charged of cattle duffing. In fact, there is a specific
charge of the appellant having charged Rs.10,000/- for
returning a cow which he had stolen from one Badri
Mishra.
41. Was the deceased killed in that
transaction? In that case, the allegation should have
been directed towards Badri Mishra and not the
appellants. But since P.Ws. 1, 2 and 3 had not seen the
occurrence, they in a concerted way have chosen to
remonstrate by blaming the appellants, especially Ram
Ji Mishra.
42. With only P.Ws. 1, 2 and 3 claiming to
be the eyewitnesses, we are absolutely surprised at the
prosecution not bringing up any independent person of
the village who would have seen the dead body and
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
would have known about any rumour about the
occurrence.
43. On the contrary, the father-in-law of
the deceased and a friend of his father-in-law have
been examined at the trial as P.Ws. 4 and 5, who have
been candid enough to state that they have come to
know about the occurrence only through the mouth of
P.W. 1.
44. As noticed by us and referred to
above, the three Investigating Officers have nothing
else to provide except that they had recorded few
paragraphs of the case diary and that no specific efforts
were made by any one of them to come to the truth.
45. If out of eight persons named in the
FIR, only one person (not named in the FIR) was put on
trial and later, he was acquitted and the appellants
having faced the trial on being summoned under
Section 319 of the Cr.P.C., the investigation definitely
appears to be bizarre.
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
46. That no clothes were seized; the
weapon of assault was not seized; the appellants are
villagers and neither the chowkidar having been
examined nor the I.O. recording the fardbeyan giving
any clue as to what was the information received in the
police station for them to arrive at the place of
occurrence, the entire story remains under wraps and
the truth has not been unravelled.
47. It is really unfortunate that such a
casual and cavalier approach has been adopted by the
Investigators, as a result of which, the attempt of P.Ws.
1, 2 and 3 to anyhow frame the appellants in this case
has became successful. This is highly lamentable. We
need not say any further.
48. The appellants are required to be given
benefit of doubt.
49. For the reasons aforenoted, the
judgment is set aside and all the appellants are
acquitted of the charges levelled against them.
Patna High Court CR. APP (DB) No.1381 of 2017 dt.05-12-2023
50. The appeals stand allowed.
51. Since all the appellants are on bail,
their liabilities under the bail bonds are cancelled.
52. Let a copy of this judgment be
dispatched to the Superintendent of the concerned Jail
forthwith for compliance and record.
53. The records of this case be returned to
the Trial Court forthwith.
54. Interlocutory application/s, if any, also
stand disposed off accordingly.
(Ashutosh Kumar, J)
(Nani Tagia, J)
manoj/saurav-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 06.12.2023
Transmission Date 06.12.2023
