Paltu Kumar Pandit @ Surendra ... vs The State Of Bihar
2023 Latest Caselaw 3262 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    CRIMINAL APPEAL (DB) No.1355 of 2018
        Arising Out of PS. Case No.-58 Year-2010 Thana- KHARHAGPUR District- Munger
     ======================================================

Shankar Pandit S/o Lali Khiju Pandit, Resident of Village-Dhundhaladeh, P.S.-Kharagpur, Distirct-Munger.

                                                                     ... ... Appellant
                                 Versus
     The State Of Bihar                                ... ... Respondent

====================================================== with CRIMINAL APPEAL (DB) No. 1337 of 2018 Arising Out of PS. Case No.-58 Year-2010 Thana- KHARHAGPUR District- Munger ====================================================== Narayan Pandit S/o Late Hari Pandit, Resident of Village- Dhundhaladeh, P.S.- Kharagpur, District- Munger.

                                                                     ... ... Appellant
                                          Versus
     The State Of Bihar                               ... ... Respondent

====================================================== with CRIMINAL APPEAL (DB) No. 1338 of 2018 Arising Out of PS. Case No.-58 Year-2010 Thana- KHARHAGPUR District- Munger ====================================================== Paltu Kumar Pandit @ Surendra Kumar Pandit @ Ramkumar Pandit S/o Nago Pandit @ Nageshwar Pandit, Resident of Village- Dhundhaladeh, P.S.- Kharagpur, District- Munger.

                                                                     ... ... Appellant
                                 Versus
     The State Of Bihar                               ... ... Respondent

====================================================== with CRIMINAL APPEAL (DB) No. 1341 of 2018 Arising Out of PS. Case No.-58 Year-2010 Thana- KHARHAGPUR District- Munger ======================================================

1. Nago Pandit S/o Late Khiju Pandit,

2. Jogi Pandit, S/o Late Thakur Pandit,

3. Bhuneshwar Pandit, S/o Lakhan Pandit,

4. Umesh Pandit, S/o Late Gaini Pandit,

5. Bigan Pandit, S/o Late Thakur Pandit, All are resident of Village-

Dhundhaladeh, P.S.- Kharagpur, District- Munger.

... ... Appellants Versus Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

The State Of Bihar ... ... Respondent ====================================================== with CRIMINAL APPEAL (DB) No. 1370 of 2018 Arising Out of PS. Case No.-58 Year-2010 Thana- KHARHAGPUR District- Munger ====================================================== Bibhishan Pandit Son of Hari Mohan Pandit, resident of Village- Ghughla Dih, P.S.- Gangta Kharagpur, District- Munger.

                                                                        ... ... Appellant
                                              Versus
       The State Of Bihar                        ... ... Respondent

====================================================== Appearance :

       (In CRIMINAL APPEAL (DB) No. 1355 of 2018)
       For the Appellant/s  :    Mr.Binod Kumar, Advocate
       For the Respondent/s :    Mr. Bipin Kumar, APP
       (In CRIMINAL APPEAL (DB) No. 1337 of 2018)
       For the Appellant/s  :    Mr.Binod Kumar, Advocate
       For the Respondent/s :    Mr. Bipin Kumar, APP
       (In CRIMINAL APPEAL (DB) No. 1338 of 2018)
       For the Appellant/s  :    Mr.Binod Kumar, Advocate
       For the Respondent/s :    Mr.Bipin Kumar, APP
       (In CRIMINAL APPEAL (DB) No. 1341 of 2018)
       For the Appellant/s  :    Mr.Binod Kumar, Advocate
       For the Respondent/s :    Mr.Bipin Kumar, APP
       (In CRIMINAL APPEAL (DB) No. 1370 of 2018)
       For the Appellant/s  :    Mr.Ajit Kumar Singh, Advocate
       For the Respondent/s :    Mr. Bipin Kumar, APP

====================================================== CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH and HONOURABLE MR. JUSTICE CHANDRA PRAKASH SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

Date : 26-07-2023

Heard learned counsel for the appellants and learned A.P.P.

for the State.

2. By the judgment of conviction dated 05.09.2018 and the

order of sentence dated 07.09.2018/13.09.2018 passed by Sri

Tribhuvan Nath, Additional Sessions Judge-1st-cum-Special Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

Judge (SC/ST and POCSO Act), Munger in Sessions Trial No.

12/2013 arising out of Kharagpur P.S. case No. 58/2010/C.S.

No. 2441/2013 whereby and whereunder the appellant Shankar

Pandit (Cr. Appeal No. (D.B.) No. 1355 of 2018) and the

appellant Paltu Kumar Pandit @ Surendra Kumar Pandit @

Ramkumar Pandit (Cr. Appeal (D.B.) No. 1338 of 2018) have

been convicted for the offences under Sections 302/149 of the

Indian Penal Code (hereinafter referred to 'I.P.C.') and sentenced

to undergo rigorous imprisonment till death and a fine of Rs.

50,000/- and in default of payment of fine, they have been

directed to further undergo additional simple imprisonment for

six months. It was further directed that the period of custody

undergone by the appellants during the course of trial shall be set

off under the provisions of Section 428 of the Cr.P.C. Further,

by the judgment of conviction dated 05.09.2018 and the order of

sentence dated 18.09.2018 passed by Sri Tribhuvan Nath,

Additional Sessions Judge-1st-cum-Special Judge (SC/ST and

POCSO Act), Munger, in Sessions Trial No. 12A/2013, arising

out of Kharagpur P.S. case No. 58/2010/C.S. No. 2441/2013, the

appellant Narayan Pandit (Cr. Appeal (D.B.) No. 1337 of 2018),

appellants Nago Pandit, Jogi Pandit, Bhuneshwar Pandit, Umesh

Pandit and Bigan Pandit (appellants in Cr. Appeal (D.B.) No. Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

1341 of 2018) and appellant Bibhishan Pandit (Cr. Appeal (D.B.)

No. 1370 of 2018) have been convicted for the offences under

Sections 302/149 of the I.P.C. and sentenced to undergo rigorous

imprisonment till death and a fine of Rs. 50,000/- and in default

of payment of fine they have been directed to further undergo

additional simple imprisonment for six months. It was further

directed that the period of custody undergone by the appellants

during the course of trial shall be set off under the provisions of

Section 428 of the Cr.P.C.

3. The prosecution case, as per the written report of

informant, namely, Ghanshyam Pandit is that on 01.03.2010 at

about 8:30 p.m. after taking meal, the informant along with

family members was going to sleep in the meantime his

neighbour Pintu Kumar Pandit called informant's father namely

Kailash Pandit to open the door. Then he called informant's

younger uncle Ramnath Pandit to open the door for taking

medicine. Informant's mother Pancha Devi opened the door and

as soon as the door was opened, the accused persons including

the appellants along with 7-8 unknown persons in uniform

having S.L.R., Rifle, Farsa and sword in their hands entered into

informant's house and tied both hands of informant's father and

took towards south after assaulting him. The family members of Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

the informant along with others started crying and followed the

accused persons. The accused persons took informant's father in

front of the house of Bichcho Shaw and on the orders of Narayan

Pandit, Shankar Pandit beheaded the informant's father and

closed the family members of the informant in the house of

Mukesh Yadav. The accused persons threatened that if any one

would disclose the incident, then whole family will be killed. The

informant saw the whole occurrence by hiding him inside the

bamboo bushes. After killing the informant's father, the accused

persons went towards west raising slogan 'Maowadi Zindabad'

and left the place of occurrence. The informant and family

members, out of fear, hid themselves in the house. In the next

morning, the informant also got information that accused persons

had also killed the Chowkidar Kamleshwari Pandit by beheading

him and two purchas were left at the place of occurrence in

which it was written in red ink that the same punishment will be

given to the spy of the police. On the basis of written report of

the informant, Kharagpur P.S. case No. 58/2010 was registered

under sections 147, 148, 149, 302, 379, 121A, 122, 124A of the

Indian Penal Code and Sections 10 and 13 of U.A.P.A. Act.. The

police after investigation submitted charge-sheet against the

appellants. The cognizance of the offence was taken by the Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

learned jurisdictional Magistrate and thereafter the case was

committed to the Court of Sessions. Charges were framed against

the appellants on which they pleaded not guilty and claimed to be

tried.

4. During the trial, in order to substantiate the charges

against the accused persons, the prosecution examined as many

as ten witnesses, namely, PW1 Pancha Devi, PW2 Teepu Pandit,

PW3 Ghanshyam Pandit (informant), PW4 Baijnath Pandit, PW5

Mukesh Kumar, PW6 Shobha Devi, PW7 Shamshad Ali, PW8

Manish Kumar Anand, PW9 Chandrika Prasad and PW10 Md.

Mustafa. The prosecution has also produced exhibits namely,

Ext. 1 written report, Ext. 2 and 2/1 (inquest reports), Ext. 3 and

3/1 (post-mortem reports) The defence has also produced two

witnesses in support of its defence viz. DW1 Babu Lal Pandit

and DW2 Chunchun Pandit. The defence has also produced

exhibits viz. Ext. A certified copy of charge-sheet of Kharagpur

P.S. case No. 195/04 and Ext. B certified copy of judgment of

Sessions Trial No. 209/2001. Thereafter, the statements of the

appellants were recorded under section 313 of the Cr.P.C and

after conclusion of the trial, the learned trial Court convicted the

appellants in the manner stated above.

Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

5. Learned counsel for the appellants submitted that the

judgment of conviction 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. The

learned trial court has not appreciated the evidence brought on

record by the prosecution properly. It has been contended that the

prosecution has miserably failed to prove the place of occurrence

to the satisfaction of the court, in the light of the material

contradiction between the deposition of the prosecution witnesses

and the documentary evidence brought on record. It has been

argued that the presence of informant and the wife of deceased at

the alleged place of occurrence is also doubtful, taking into

account the testimony of other witnesses. It has been further

argued that there is no evidence whatsoever to show that the

appellants were properly identified by the Informant or other

witnesses, as there is no whisper of any source of identification

in the deposition of any of the prosecution witnesses.

Furthermore, the learned counsel for the appellants asserts that

there is unreasonable delay in lodging of the FIR in connection

with the present case. Another argument advanced by the learned

counsel for the appellants is that the learned trial Court has also

failed to appreciate that during trial, the prosecution has not Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

produced the Investigating Officer, who conducted the

substantive investigation, as a prosecution witness and no

explanation in this regard has been put forth, which has caused

prejudice to the appellants. Therefore, it has been argued that on

these scores of the judgment of conviction, assailed in the present

appeal, be set aside, the appellants be acquitted of the charges

and set free from custody.

6. Learned A.P.P. appearing for the State, on the other hand,

has rebutted the arguments advanced by learned counsel for the

appellants. It has been submitted that the judgment of conviction

and order of sentence under challenge require no interference as

the prosecution has been able to prove the case beyond all

reasonable doubts. It has been contended that the witnesses have

been consistent in their depositions and there does not remain

any lacuna in case of the prosecution. The minor inconsistencies

in the testimony of the witnesses cannot be a ground to reject

their evidence as a whole. Further, it has been submitted that non-

examination of the Investigating Officer would per se not make

the appellants liable for acquittal and there has been no

demonstration of any prejudice which has been caused to the

appellants. Moreover, there is no unreasonable delay in lodging

of the FIR. So far as the non-revelation of source of identification Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

by the prosecution witnesses is concerned, the same has not been

controverted by the learned A.P.P. However, it has been

submitted that the appellants could have been identified when

they allegedly entered the house.

7. 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 established the place of

occurrence beyond all reasonable doubt?

(II)Whether the prosecution has been able to establish

beyond all reasonable doubts the presence of PW 1 and PW 3 at

the place of occurrence at the time when the alleged occurrence

has taken place?

(III) Whether the non-disclosure of any source of

identification by the prosecution especially when alleged

occurrence is said to have taken place at 8:30 pm at night casts

doubts on the prosecution's case?

(IV) Whether the non-examination of investigating

officer who has carried the substantive investigation has caused

prejudice to the trial of appellants?

Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

(IV) Whether the delay in instituting the FIR on the

written statement of the informant (PW 3) casts doubt on the case

of the prosecution?

8. In order to deal with the first issue, we have given our

anxious consideration over the deposition of PW 1 (mother of the

informant) and PW 3 (informant). It is found that PW 3 in his

deposition as well as in written report has stated that appellants

had beheaded his father (deceased) in front of the house of one,

Bichcho Shaw. However, in cross-examination, he has further

clarified that the incident had taken place on the road located in

the west adjacent to the house of Bichcho Shaw. Further, PW 1 in

her deposition also confirmed that the beheading had taken place

at the aforementioned place of occurrence. However, in sharp

contradistinction to such testimony of PW 1 and PW 3, it has

been deposed by PW 2 that the alleged occurrence has taken

place at his doorstep. Thus, it is apparent that there is severe

inconsistency in the testimony of PW 1 and PW 3 on one hand

and PW 2 on the other hand with regard to the place of

occurrence. Moreover, both PW 1 and PW 3 have explicitly

stated in their deposition that the Investigating officer seized the

blood from the stated place of occurrence. However, despite their

assertions, there is no seizure list on record that specifically Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

indicates wherefrom the blood was allegedly seized.

Furthermore, upon examining Ext.2 (inquest report), it becomes

evident that the indicated place of occurrence is a Kaccha Road

located to the west, adjacent to the house of one Kishun Shaw.

Thus, considering the facts of this case as indicated above, the

place of occurrence remains smeared in doubts. Such a

fundamental defect casts reasonable doubts as to the genuineness

of the prosecution's case. In this regard, it would be pertinent to

take note of the decision of the Hon'ble Supreme Court passed in

the case of Syed Ibrahim versus State of Andhra Pradesh,

reported in (2008) 10 SCC 601, wherein it has been held that

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

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

In view of the facts and circumstances of the case and

considering the legal position as discussed above, we are of the

considered opinion that the prosecution has not been able to

prove the place of occurrence beyond all reasonable doubts.

Accordingly, the first issue is decided in negative.

9. In order to deal with the second issue as formulated

above, we have carefully perused Ext-1, which is written report

given to police, wherein informant has narrated that the deceased

was done to death by the appellants. It has been clearly stated Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

therein that the family members of the deceased followed the

accused as they were taking away the deceased near the house of

one Bichcho Shaw where they murdered him and thereafter, they

forcefully confined family members in the house of one Mukesh

Yadav. Further, it states that informant (PW3) witnessed the entire

incident from a hiding spot in the bamboos adjacent to the place

of occurrence. However, in contrast to this account, PW 2, in his

cross-examination has categorically stated that the incident took

place at his doorstep and none of the family members of the

deceased were present at the time of occurrence. The informant

(PW 3), deceased's wife (PW 1) and other family members

arrived at the place of occurrence half an hour after the incident.

Thus, we find that there is clear contradiction regarding the claim

of PW 1 and PW 3 being present at the place of occurrence during

the time of incident. Moreover, we have taken note of the fact that

the evidence of Mukesh Yadav was not brought on record, nor of

the neighbors whose houses were situated between the

informant's house and the alleged place of occurrence. Therefore,

based in the facts and circumstances discussed above we are of

the considered opinion that the prosecution has not been able to

prove the presence of the informant (PW 3) and deceased's wife Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

(PW 1) at the alleged place of occurrence beyond reasonable

doubts.

Accordingly, the second issue is decided in negative.

10. With regard to third issue as formulated above, upon the

perusal of entire material available on record it has come to fore

that the occurrence has taken place at 8:30 pm night on

01.03.2010. However, PW 3 (informant) in his written

information to police has explicitly named the appellants as well

as 7-8 other unknown accused persons as being involved in the

incident. Similarly, PW 1, has also deposed the name of

appellants during her testimony. However, it is important to note

that the PW 1 and PW 3, who contend to be the eyewitnesses to

the alleged occurrence, have not disclosed any source of light

through which they identified the appellants. It is found that

prosecution has neither brought on record anything nor given any

explanation as to how the appellants were identified in absence of

any source of light. This omission raises questions about the

reliability and accuracy of their identifications. Furthermore, it is

found that PW 1 has claimed that the appellants' faces were not

covered, whereas PW 5 and PW 6 have deposed that the accused

persons had their faces covered. Thus, it can be safely gleaned

that there is apparent inconsistency and contradiction in the Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

evidence of prosecution witnesses. Moreover, there is no whisper

of identifying the appellants through their voices made. Also,

during the course of trial, informant (PW 3) in his evidence has

explicitly stated that no test identification parade was conducted.

This further casts doubt on the credibility of the identifications

made by PW 1 and PW 3. At this juncture, we would gainfully

rely on the decision rendered by the Hon'ble Supreme Court in

the case of Ram Narain Singh versus State of Punjab (1975) 4

SCC 497, wherein the Hon'ble Apex Court observed the

following:

"On the day of the occurrence i.e. October 2, 1972, it would be quite dark at 8-00 P.M. and unless there was some light burning in the house it would be difficult for the witnesses to have identified the assailants and to have given such a graphic description of the occurrence... ... There also the accused could not be identified because there is no evidence of any witness to show that any light was burning there, nor does any of the eye witnesses say that he had identified the accused by voice. For these reasons, therefore, we are convinced that even accepting the prosecution case at its face value, if the occurrence took place at 8-00 P.M. the possibility of mistake in identification cannot be excluded in the present circumstances."

Therefore, applying the aforesaid view of the Hon'ble

Supreme Court in the given facts of the case, we reach to the

conclusion that in the absence of revelation of any source of Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

identification by the prosecution, the evidence with regard to

identification of the appellants is not sufficient so as to connect

the appellants to the said offence. Besides, with appellants they

are not on cordial terms, and relations between them are

admittedly inimical. Therefore, false implication of the

appellants, on mere suspicion cannot be entirely ruled out.

Accordingly, the third issue is decided in affirmative.

11. Adverting to the fourth issue at hand, a thorough

examination of the case records reveals a significant omission on

the part of the prosecution. It is evident that the Investigating

Officer, who conducted the substantive investigation, has not

been examined in this case. Instead, PW 7 and PW 8, who

conducted the formal investigation, have been presented as

witnesses. However, in the facts of the present case, the darkness

surrounding the place of occurrence, the collection of blood

samples, holding of test identification parade and other crucial

aspects would have been dispelled if the examination of the

Investigating Officer had been conducted. It is germane to the

issue at hand to underscore the pivotal role of the Investigating

Officer in establishing the place of occurrence and circumstances

surrounding the occurrence through the presentation of evidence,

including searches and seizures, and statements of the key Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

witnesses. It is pertinent to note that examination of the

investigating officer enables the accused's significant right to

highlight contradictions in the statements made by witnesses

during the investigation, as recorded by the Investigating Officer.

This right holds considerable weight, as it allows the defense to

effectively demonstrate that the witness has provided inconsistent

testimony compared to their earlier statements before the

Investigating Officer. Thus, by not examining the Investigating

Officer who has carried the substantive investigation, an essential

aspect of the investigation has been overlooked, which could

have a significant impact on the outcome of the trial. However,

we must also highlight that non-examination of investigating

officer in every case will not result in the vitiation of the trial

when accused is not likely to suffer any prejudice. Nonetheless,

in certain circumstances, where the non-examination of the

investigating officer has seemingly caused prejudice to the

appellants, it can significantly affect the prosecution's case. In

the present case, the circumstances indicate that the prosecution

has attempted to suppress certain material witnesses, including

the Investigating Officer, without providing any reasonable

justification. In the case of State Of Karnataka versus Bhaskar

Kushali Kotharkar And Ors., (Cr. Appeal no. - 498 of 1998) the Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

Hon'ble Supreme Court while highlighting the importance of

examination of Investigating Officer, observed:

"It is true that as a part of fair trial the investigating officer should be examined in the trial cases especially when a serious sessions trial was being held against the accused. If any of the prosecution witnesses give any evidence contrary to their previous statement recorded under Section 161 Cr. P.C. or if mere is any omission of certain material particulars, the previous statement of these witnesses could be proved only by examining the investigating officer who must have recorded the statement of these witnesses under Section 161 Cr. P.C."

We also put reliance on the decision rendered by Hon'ble

Supreme Court in the case of Ravishwar Manjhi v. State of

Jharkhand, reported in (2008) 16 SCC 561, wherein the Hon'ble

Apex Court in paragraph 27 has held as follows:

"27. The investigating officer in a case of this nature should have been examined. His examination by the prosecution was necessary to show that there had been a fair investigation. Unfortunately, even no site plan was prepared. There is nothing on record to show as to the exact place where the occurrence had taken place. It is stated that the house of the parties is divided by a road. If that be so, it was all the more necessary to pinpoint the exact place of occurrence to ascertain who was the aggressor."

Therefore, applying the aforesaid proposition of law as held

by the Hon'ble Supreme Court in the given facts of the case, we

reach to the conclusion that in the present case, the non-

examination of the Investigating Officer, who conducted the Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

substantive investigation, undeniably prejudiced the accused, as

the actual place of occurrence remains unverified, and the

accused have been deprived of the opportunity to challenge the

credibility of the prosecution witnesses through questioning of

the Investigating Officer. Therefore, in our considered opinion,

the failure to examine the Investigating Officer in this case

constitutes a significant flaw that has caused prejudice to the case

the appellants.

Accordingly, the fourth Issue is decided in affirmative.

12. Now coming to the fifth issue, which is regarding delay

in lodging of the F.I.R. upon the written report of the informant.

It is found that the F.I.R. in connection with the present case was

lodged on 02.03.2010 at about 01:00 p.m., whereas the incident

took place on 01.03.2010 at 8:30 p.m. Thus, virtually there is 16

hours delay in lodging of the F.I.R. The police station was

situated at a distance of 13 kms. from the place of occurrence.

Considering the fact that there is prevailing enmity between the

parties, such delay raises suspicion when there is no explanation

whatsoever coming forth from the prosecution. It is well

established that there should be promptness in lodging of the

F.I.R to obtain the earliest information regarding the incident and

to make the investigation just and fair and to avoid any possible Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

foul play. Such delay often results in concoction and

embellishment of the occurrence. Thus, it is necessary for the

prosecution to satisfactorily explain such delay to withhold the

court to draw suspicion. At this juncture, it would be pertinent to

take note of the decision of the Hon'ble Supreme Court passed in

the case of Bhagaloo Lodh v. State of U.P., reported in (2011) 13

SCC 206, wherein the Hon'ble Apex Court in paragraph 27 has

held:

"10. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case there is some delay in filing the FIR, the complainant must give explanation for the same. In absence of such an explanation, the delay may give presumption that allegations/accusations were false and had been given after thought or had given a coloured version of events. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. (Vide Sahib Singh v. State of Haryana [(1997) 7 SCC 231 : 1997 SCC (Cri) 1049 : AIR 1997 SC 3247] ; Gorige Pentaiah v. State of A.P. [(2008) 12 SCC 531 : (2009) 1 SCC (Cri) 446] and Kishan Singh v. Gurpal Singh [(2010) 8 SCC 775 : (2010) 3 SCC (Cri) 1091 : (2010) 3 SCC (Civ) 583 : AIR 2010 SC 3624] .)"

In the light of the discussions made above, this Court is of

the view that such unreasonable delay as aforesaid casts dark

clouds of suspicion and is certainly fatal to the case of the

prosecution.

Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

Accordingly, the fifth Issue is decided in affirmative.

13. In light of the legal position as discussed above and on

the basis of the findings arrived at on the issues formulated

above, we are of the considered opinion that the conviction of the

appellant is not sustainable in the eyes of law and the prosecution

has failed to prove its case beyond all reasonable doubts.

14. Accordingly, all these appeals are allowed. The

judgment of conviction dated 05.09.2018 and order of sentence

dated 07.09.2018/13.09.2018 passed by Sri Tribhuvan Nath,

Additional Sessions Judge-1st-cum-Special Judge (SC/ST and

POCSO Act), Munger in Sessions Trial No. 12/2013 arising out

of Kharagpur P.S. case No. 58/2010/C.S. No. 2441/2013 and

judgment of conviction dated 05.09.2018 and order of sentence

dated 18.09.2018 passed by Sri Tribhuvan Nath, Additional

Sessions Judge-1st-cum-Special Judge (SC/ST and POCSO Act),

Munger, in Sessions Trial No. 12A/2013, arising out of

Kharagpur P.S. case No. 58/2010/C.S. No. 2441/2013, are set

aside.

15. Since all the appellants viz. appellant Shankar Pandit (in

Cr. Appeal No. (D.B.) No. 1355 of 2018), appellant Paltu Kumar

Pandit @ Surendra Kumar Pandit @ Ramkumar Pandit (in Cr.

Appeal (D.B.) No. 1338 of 2018), appellant Narayan Pandit (in Patna High Court CR. APP (DB) No.1355 of 2018 dt.26-07-2023

Cr. Appeal (D.B.) No. 1337 of 2018), appellants Nago Pandit,

Jogi Pandit, Bhuneshwar Pandit, Umesh Pandit and Bigan Pandit

(in Cr. Appeal (D.B.) No. 1341 of 2018) and appellant Bibhishan

Pandit (in Cr. Appeal (D.B.) No. 1370 of 2018), are in jail

custody, they are directed to be released from custody forthwith,

if not wanted in any other case.

                                                   (Sudhir Singh, J)


Pankaj/-                                    ( Chandra Prakash Singh, J)
AFR/NAFR                AFR
CAV DATE                05.07.2023
Uploading Date          26.07.2023
Transmission Date       26.07.2023