Kathari Ahir And Anr vs State
2023 Latest Caselaw 2811 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    CRIMINAL APPEAL (DB) No.270 of 1995
     ======================================================

1. Sri Kishun Thakur son of Sita Ram Thakur

2. Ram Lal Mahto son of Butan Mahto, both resident of village Narhi, Police Station Kailwar, District Bhojpur ... ... Appellants Versus The State of Bihar ... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 301 of 1995 ====================================================== Hariman Ahir @ Hariman Yadav son Chandraman Ahir, resident of village Narhi, Police Station Koilwar, District Bhojpur ... ... Appellant Versus The State of Bihar ... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 307 of 1995 ====================================================== Lallan Mahato son of late Jatul Mahato, resident of village Narhi, Police Station Narhi Chandi (Koilwar), District Bhojpur ... ... Appellant Versus The State of Bihar ... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 337 of 1995 ======================================================

1. Bishundhari Dusadh son of Late Mangaru Dusada

2. Yogendra Dusadh son of Aganu Dusada, both are residents of village Narhi, P.S. Koilwar, District Bhojpur ... ... Appellants Versus The State of Bihar ... ... Respondent ====================================================== Appearance :

(In CRIMINAL APPEAL (DB) No. 270 of 1995, 301 of 1995, 307 of 1995 and 337 of 1995) For the Appellants : Mr. Ajay Kumar Thakur, Advocate Mr. Rakesh Kumar Sinha, Advocate Mr. Surjbansh Roy, Advocate For the Respondent : Mr. Abhimanyu Sharma, APP ====================================================== Patna High Court CR. APP (DB) No.270 of 1995 dt.05-07-2023

CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH and HONOURABLE MR. JUSTICE CHANDRA PRAKASH SINGH C.A.V. JUDGMENT (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

Date : 05-07-2023

Heard the learned counsel for the appellants and learned

counsel for the State.

2. These criminal appeals arise out of same judgment of

conviction and order of sentence, hence they have been heard

together and are being disposed of by this common judgment.

3. The criminal appeals have been preferred against the

judgment of conviction and the order of sentence dated 28.08.1995

passed by Shri Damodar Prasad, learned 1st Additional Sessions

Judge, Arrah in Sessions Trial No.297 of 1980 arising out of

Koilwar (Chandi) P.S. case No.3(1) of 1979, whereby and

whereunder the appellants Sri Kishun Thakur and Ram Lal Mahto

of Criminal Appeal (DB) No.270 of 1995 have been convicted

under Sections 147 and 302/149 of the Indian Penal Code (referred

to 'I.P.C.') and sentenced to undergo rigorous imprisonment for

one year under Section 147 of I.P.C. and rigorous imprisonment

for life under Sections 302/149 of I.P.C. The Trial Court also

convicted the appellant Hariman Ahir @ Hariman Yadav of

Criminal Appeal (DB) No.301 of 1995, appellant Lallan Mahato of Patna High Court CR. APP (DB) No.270 of 1995 dt.05-07-2023

Criminal Appeal (DB) No.307 of 1995 and appellants Bishundhari

Dusadh and Yogendra Dusadh of Criminal Appeal (DB) No.337 of

1995 under Sections 148 and 302/149 of I.P.C. and sentenced to

undergo rigorous imprisonment for two years under Section 148 of

I.P.C. and undergo rigorous imprisonment for life under Sections

302/149 of I.P.C. All the sentences have been directed to run

concurrently.

4. The prosecution case, as per the fard beyan of informant

Chandeshwar Singh recorded on 04.01.1979 at 5:00 a.m. before

the Officer Incharge of Koilwar Police Station in front of the

house of Ram Kareshan Singh (deceased) is that, in the preceding

evening i.e. on 03.01.1979 at about 6:30 p.m., while he was

sitting at the darwaja of Sripati Singh, his co-villager Kathari Ahir

armed with pistol, Sukhal Ahir armed with garasa, Hariman Ahir

armed with bhala, Ramakant Dusadh armed with katta, Ramautar

Dusadh armed with pistol, Bishundhari Dusadh armed with katta,

Yogendra Dusadh armed with bhala, Chandrika Dusadh armed

with pistol, Ram Lal Mahto armed with lathi, Srikishun Thakur

armed with lathi, Jarishri Kahar armed with garasa, Lallan Mahto

armed with farsa and other accused persons armed with deadly

weapons were raising slogans "Enclab Naxalbari Jindabad" and

were moving towards north. The informant identified all the Patna High Court CR. APP (DB) No.270 of 1995 dt.05-07-2023

accused persons in the light of torch flashed by the accused. The

informant alongwith Sripati Singh, Gupteshwar Singh, Bharat

Singh and others also followed them. The accused persons

reached the house of Ramdeo Singh. It has been further stated

that Kathari Ahir and Sukhal Ahir climbed on the roof of the

house of Ramdeo Singh and they were dismantling tiles. They

also set fire in the southern side of the house of Ramdeo Singh.

All the accused persons surrounded the house of Ram Kareshan

Singh from all sides and they were raising hulla and abusing

Ramdeo Singh. They were saying Ramdeo Singh to come out

from the house, otherwise his whole family would be eliminated.

The informant and others forbade the accused persons, who were

Nexalites, from doing such act. Thereupon, the accused persons

also chased them with a view to kill and opened four rounds of

fire. The informant and others left the place out of fear and

reached near his house and raised hulla to assemble, as the

Naxalites had surrounded the house of Ram Kareshan Singh and

they have set fire in the house and were also killing the inmates of

the house. The informant alongwith others again went near the

house of Ram Kareshan Singh, but because of indiscriminate

firing made by Naxalites, none of them reached the house of Ram

Karesan Singh. Thereafter, the informant saw the accused persons Patna High Court CR. APP (DB) No.270 of 1995 dt.05-07-2023

and 50-60 other criminals running away from the house of Ram

Kareshan Singh towards north. The informant and others went

inside the house of Ram Kareshan Singh, but they did not find

anyone inside the house. They also found blood stains on the wall

of the house. All the articles of the house were disturbed.

Thereafter, the informant alongwith other villagers searched Ram

Kareshan Singh and his family members in nearby places, but no

trace was found. The informant and others wanted to inform the

police, but they heard noise of firing from all sides and hence, the

matter was reported to the police in the next morning at about

5:00 a.m. on 04.01.1979. The reason of the occurrence is old

enmity between Ramdeo Singh and Srikishun Mahto and there

was also litigation between the parties.

5. On the basis of aforesaid fardbeyan of informant

Chandeshwar Singh, an F.I.R. bearing Koilwar (Chandi) P.S. case

No.3(1) of 1979 was registered and investigation was taken up.

After investigation, charge sheet was submitted whereafter

cognizance was taken by the jurisdictional Magistrate and

thereafter, the case was committed to the Court of Sessions.

Charges were framed against the appellants to which the

appellants pleaded not guilty and claimed to be tried. Patna High Court CR. APP (DB) No.270 of 1995 dt.05-07-2023

6. During trial, the prosecution examined altogether nine

witnesses, namely, Chandeshwar Singh-informant (P.W.1), Bharat

Singh (P.W.2), Gupteshwar Singh (P.W.3), Ramdatt Singh

(P.W.4), Dr. K.B. Sahay (P.W.5), Hari Shankar Singh (P.W.6),

Uma Pati Singh (P.W.7), Dipa Singh (P.W.8) and Kailash Prasad-

Investigating Officer (P.W.9). In support of its case, the

prosecution has also produced exhibits as Ext.1 (fardbeyan),

Exts.2, 2/1 (signature of Gupteshwar Singh on inquest report),

Exts.3 to 3/2 (postmortem reports), Exts.4 to 4/2 (inquest reports)

and Ext.5 (F.I.R.). The defence has not produced any oral or

documentary evidence in support of its case. After conclusion of

the trial, the learned Trial Court convicted and sentenced the

appellants in the manner as indicated above.

7. Learned counsel for the appellants has submitted that the

judgment of conviction and order of sentence suffers from several

infirmities that have been overlooked by the learned trial Court

and, therefore, the impugned judgment is not sustainable in the

eyes of law. It has been argued that the prosecution has miserably

failed to prove the place of occurrence beyond reasonable doubts.

Furthermore, there is absence of any material on the record to

suggest the manner in which the deceased persons were done to

death. In order to buttress this contention, the attention of this Patna High Court CR. APP (DB) No.270 of 1995 dt.05-07-2023

Court has been drawn towards the deposition of the prosecution

witnesses to assert that none of the prosecution witnesses are

eyewitnesses to the alleged occurrence. The learned counsel for

the appellants has further contended that the prosecution has also

failed to prove the presence of any luminous object that would

serve as a source of identification of the appellants. It has further

been pointed out that as per the fardbeyan, the incident had taken

place on 03.01.1979 at 06:30 p.m. when there would be complete

absence of any source of light at any of the disputed place of

occurrences. As such, under the facts and circumstances of the

given case, it would be very difficult to state with certainty that it

were the appellants herein that were involved in the said incident

and no one else. Hence, it has been contended that there are

severe lacunae in case of the prosecution and the chain of

circumstances do not unerringly point towards the guilt of the

appellants. Therefore, it is argued that the findings of the learned

trial Court are bad in law, wrong on facts, bereft of legal

reasoning, devoid of merit and the judgment of conviction is fit to

be set aside.

8. Learned APP for the State, on the other hand, has

submitted that the judgment of conviction and order of sentence

under challenge require no interference as the prosecution has Patna High Court CR. APP (DB) No.270 of 1995 dt.05-07-2023

been able to prove the case beyond all reasonable doubts. It has

been contended that the prosecution witnesses have remained

consistent in the testimony during the course of trial. Moreover,

minor contradictions in the testimony of the witnesses cannot be a

ground to reject the testimony as a whole. It has been argued that

P.W. 3 had made a specific deposition that he saw deceased

persons being beaten, cut and thrown. As such, there does not

remain any hiatus in the chain of circumstances and that guilt of

the appellants has been satisfactorily proved by the evidence

adduced during the course of trial and there is no infirmity in the

judgment of conviction of the learned trial Court.

9. After hearing the arguments advanced by the learned

counsels appearing for the parties and upon thorough examination

of the entire material available on the record, the following issues

arise for consideration in the present appeal:

(I) Whether the prosecution has been able to establish the place of occurrence beyond all reasonable doubts?

(II) Whether the prosecution has successfully proved the manner of occurrence in which the deceased was done to death?

(III) Whether the non-production as an exhibit material of the torch has caused prejudice to the appellants?

Patna High Court CR. APP (DB) No.270 of 1995 dt.05-07-2023

(IV) Whether the sufficient evidence has been adduced by the prosecution to prove the connecting chain of circumstances which unerringly point towards the guilt of the appellants?

10. With reference to issue no. I, it is found that there are

material inconsistencies and uncertainties regarding the place of

occurrence in the present case. It has been stated in the fardbeyan

that the miscreants entered the house (hereinafter referred as 'P.O.

1'), and came out in a short while later blood stains were found

on the wall of the said house. In this regard, it is noteworthy that

it has been deposed by P.W. 9 (Investigating Officer) that he

found blood stains on the wall of verandah and sign of fire arm in

the eastern room. It has also been deposed by the Investigating

Officer that he found blood stain in the courtyard, a portion of

which was found to be daubed. We have taken note of the fact

that the said stains or marks were neither seized nor sent for

examination by the Forensic Science Laboratory so as to establish

whether the blood was of an human being and particularly of the

deceased persons. Also, there is no evidence on record to suggest

the seizure of any bullet shell from the said P.O. 1. Moreover, the

P.O. 1 also becomes doubtful in light of the fact that the informant

in the fardbeyan specifically states that when he entered the house

soon after the incident, he found no one inside the said house. As Patna High Court CR. APP (DB) No.270 of 1995 dt.05-07-2023

such, the prosecution has failed to adduce any evidence to prove

that the deceased persons were done to death at P.O. 1. It is

furthermore apparent from perusal of the material available on the

record that on the same day at 11:30 a.m., the dead bodies of

deceased Ram Karehsan Singh, his son (Ramdeo Singh), and his

wife were found near Railway Line (hereinafter referred as 'P.O.

2'). It is noteworthy that P.W. 9 (Investigating Officer) has

specifically deposed in para no. 3 that he found the dead body of

Ram Kareshan Singh between poll no. 583/14 and 583/15 and the

dead body of his son (Ramdeo Singh) on the same railway line

between poll no. 584/3 and 584/4. The dead body of the wife of

Ram Kareshan Singh was found in the sugarcane field of one

Indradeo Singh, (hereinafter referred as 'P.O. 3'). At this juncture,

it is worth consideration that no witness (save and except PW 3)

has deposed during the course of trial that he saw the offence

being committed at any of the above disputed place of

occurrences. There is complete failure on part of the prosecution

to adduce any evidence so as to prove the place at which the

deceased persons were done to death. The assertion of the

informant that the incident took place at P.O. 1 becomes doubtful

in light of the fact that the dead bodies were found at P.O. 2 and

P.O. 3, and no witness (save and except PW 3) has made any Patna High Court CR. APP (DB) No.270 of 1995 dt.05-07-2023

statement to the effect that he saw three dead bodies being carried

away from the house. Moreover, no trail of blood has been found

in the path between P.O. 1, P.O. 2 and P.O. 3. It is furthermore

noteworthy that P.W. 9 has stated that he found a huge quantity of

blood at P.O. 3. We have also taken into consideration that

though P.W. 3 has deposed that he saw the deceased persons

being beaten, cut and thrown at the P.O. 2, but such statement of

PW 3 becomes doubtful in light of the fact that the incident has

been stated to have taken place on 03.01.1979 at 06:30 p.m.,

when there would be absence of any natural light that would

facilitate the identification in the present case. Thus, we are of the

considered opinion that there exists reasonable doubts as to the

place of occurrence in the present case. In the case of Syed

Ibrahim versus State of Andhra Pradesh, reported in (2008) 10

SCC 601, it has been held by the Hon'ble Supreme Court that

where the place of occurrence itself has not been established, it

would not be proper to accept the version of the prosecution.

In light of the discussions made above, the issue no. I is

decided in the negative.

11. With reference to issue no. II, it is found that no eye

witness has been brought on record by the prosecution to testify

regarding the manner in which three deceased persons were done Patna High Court CR. APP (DB) No.270 of 1995 dt.05-07-2023

to death. In the instant case, though the P.W. 3 has made a specific

deposition in para no. 2 that he saw that the body of deceased

persons were being cut, killed and thrown near railway line. But

such testimony becomes doubtful in light of the fact that the P.W.

3 has further deposed in para no. 2 and 5 that he cannot say as to

which of the accused has committed the alleged offence and the

night was dark. In light of the facts and circumstances of the case,

the contention of PW 3 becomes highly doubtful and cannot be

relied upon as a gospel truth. In criminal law, loose, contradictory,

and uncorroborated statements cannot be relied upon, much less

than forming the basis of conviction. The statement of witnesses

must be free from blemish and devoid of any ambiguity,

uncertainty, and loopholes. However, in the present case, the

prosecution has failed to adduce cogent and reliable evidence to

prove the manner in which the deceased persons were done to

death.

Accordingly, the issue no. II is decided in the negative.

12. With reference to issue no. III, it is found that the

incident is said to have taken place on 03.01.1979 at 06:30 p.m.

where there would be complete absence of any source of light.

Also, it is quite manifest that no prosecution witness has made

any statement about the presence of any source of light at any of Patna High Court CR. APP (DB) No.270 of 1995 dt.05-07-2023

disputed places of occurrence. Moreover, the Investigating

Officer has also not found any torch during the course of

investigation. Though the PW 4 contends to have seen the

incident in torch light, but the said torch has not been produced

during the course of investigation or during trial. In light of the

factual matrix as discussed above, the non-production of the torch

as exhibit material casts severe doubts regarding the contention of

the prosecution witnesses of having seen the incident.

Accordingly, the issue no. III is decided in the affirmative.

13. With reference to issue no IV, it is apparent from perusal

of entire material available on the record that the prosecution has

not adduced any direct or circumstantial evidence to prove the

involvement of appellants in the said incident. Also, time elapsed

since death, as estimated by the doctor in the post mortem report

goes to show that the deceased died much earlier than the alleged

time of occurrence as per the fardbeyan. Furthermore, the incident

is alleged to have taken place on 03.01.1979 at about 06:30 p.m.

and the F.I.R. in connection with the said incident was lodged on

04.01.1979 at 05:00 a.m. Thus, evidently there is substantial

delay of 10 to 11 hours in lodging the F.I.R. when the distance

between the place of occurrence and police station was only of 9

km. With delay, F.I.R. not only gets bereft of the advantage of Patna High Court CR. APP (DB) No.270 of 1995 dt.05-07-2023

spontaneity, but danger of the introduction of a colored version or

exaggerated story also weeps in. Such conduct on part of the

prosecution is completely in teeth of the established jurisprudence

of criminal procedure which requires that F.I.R. should be lodged

without undue and unreasonable delay. Moreover, this Court has

also taken note of the fact that the informant of this case has

turned hostile. Though the informant in the fardbeyan contends

that the said incident took place in his presence, nonetheless, he

deposed during the course of trial that on the concerned date, he

was not present at village Narhi. Rather he went to his Sasural at

village Jaganpur and on 05.01.1979 he came to know about the

murder of the deceased persons. Furthermore, this Court has also

taken note of the fact that as per the fardbeyan, specific allegation

for setting the house on fire was made upon Jaishri Kahar and

Kathari Ahir while other prosecution witnesses deposed that they

saw Jaishri Ahir and Ramakant Dusadh were setting the house on

fire. No material whatsoever has been adduced by the prosecution

so as to establish the causative link between the actus reus and the

conduct of the appellants herein. The prosecution has failed to

adduce sufficient evidence to prove the connecting chain of

circumstances as to form inference about the guilt of the

appellants. At this juncture, it would be relevant to take note of Patna High Court CR. APP (DB) No.270 of 1995 dt.05-07-2023

the decision passed in the case of Santosh @ Bhure versus State

(G.N.C.T) of Delhi, Criminal Appeal No. 575 of 2011, where in

para no. 86, the three judges Bench of the Hon'ble Supreme Court

has observed that:

"We have no hesitation in holding that the prosecution has failed to prove a chain of incriminating circumstances as to conclusively point out that in all human probability it was the two accused or any one of them, and no one else, who had committed the murder... ... In a nutshell, it is a case where the prosecution failed to elevate its case from the realm of "may be true" to the plane of "must be true" as is indispensably required for conviction on a criminal charge."

Accordingly, the issue no. IV is decided in the negative.

14. The truth is the guiding star in the entire judicial

process. Truth alone has to be the foundation of justice. We at all

levels must seriously engage ourselves in the journey of

discovering the truth. It is the duty of the prosecution to prove the

case beyond reasonable doubts by establishing that the chain of

evidence unerringly point towards the guilt of the appellants and

no other hypothesis is possible. However, in the present case,

there are several latches on part of the prosecution and there is

absence of concrete material to make out a foolproof case against Patna High Court CR. APP (DB) No.270 of 1995 dt.05-07-2023

the appellants. The prosecution has failed to hold the evidentiary

strings sufficiently tight, so as to sustain the conviction of the

appellants. As such, in our considered opinion, the dark clouds of

suspicion looming large on the story of the prosecution have

poured down heavily to wash all the dust ridden allegations.

15. Therefore, we are of the considered opinion that the

conviction of the appellants is not sustainable in the eyes of law.

The criminal appeals stand allowed and the judgment of

conviction and the order of sentence dated 28.08.1995 passed by

Shri Damodar Prasad, learned 1st Additional Sessions Judge,

Arrah in Sessions Trial No.297 of 1980 arising out of Koilwar

(Chandi) P.S. case No.3(1) of 1979 are set aside.

16. Since the appellants of all the criminal appeals are on

bail, they are discharged from the liabilities of their respective

bail bonds.

(Sudhir Singh, J)

( Chandra Prakash Singh, J)

Narendra/-

AFR/NAFR                AFR
CAV DATE                22.06.2023
Uploading Date          06.07.2023
Transmission Date       06.07.2023