Prabhu Rai And Ors vs The State Of Bihar
2023 Latest Caselaw 5008 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                         CRIMINAL APPEAL (DB) No.421 of 2017
            Arising Out of PS. Case No.-129 Year-2009 Thana- GARKHA District- Saran
     ======================================================

1. Prabhu Rai, Son of Late Ram Adhikar Rai

2. Ashok Rai

3. Arjun Rai Both are sons of Prabhu Rai All are residents of Village-Bhuigaon, P.S. Gadkha, District-Saran, Chapra.

... ... Appellants Versus The State of Bihar

... ... Respondent ====================================================== Appearance :

For the Appellants : Mr. Ranjay Kumar Singh, Advocate Mr. Shankar Kumar, Advocate For the State : Mr. Dilip Kumar Sinha, APP For the Informant : Mr. Manoj Kumar, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)

Date : 03-10-2023

The facts of this case, notwithstanding the

consistent eyewitness account of several witnesses and

oral dying declaration of the deceased before such

witnesses, surprisingly but disquietingly, do not

commend to us that the conviction and sentence of the

appellants is justified.

2. We have heard Mr. Ranjay Kumar Singh and Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

Mr. Shankar Kumar, learned Advocates for the

appellants, Mr. Manoj Kumar, learned Advocate for the

informant and Mr. Dilip Kumar Sinha, learned APP for

the State.

3. The appellants have been convicted for the

offence punishable under Section 302 read with Section

34 of the Indian Penal Code vide judgment dated

28.02.2017 passed by the learned X th Additional District

and Sessions Judge, Saran at Chapra and by order dated

8th of March, 2017, they have been sentenced to

undergo imprisonment for life, to pay a fine of

Rs.10,000/- (ten thousand) each and in default of

payment of fine, to further suffer simple imprisonment

for six months.

4. The amount of fine has been directed to be

given to the son of the deceased.

5. The FIR of this case has been lodged by the

nephew of the deceased, viz., Shivnath Sah (P.W. 5)

who stays in a house contiguous to the house of the Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

deceased where the murder took place in the night

intervening between 25th and 26th of July, 2009.

6. In his fardbeyan statement which was

lodged by Sub-Inspector Mahesh Kumar (P.W. 10) at

the house of the deceased at about 04:45 A.M. on

26.07.2009, it was alleged that at about 12:30 in the

night intervening between 25th and 26th of July, 2009, he

and others who were sleeping along with him heard the

caterwauls of his uncle who had been sleeping in the

courtyard of his own house situated next to the house of

the informant.

7. When he along with others had arrived

there, he saw the appellants and others assaulting the

deceased by means of gupti and knife. The appellants,

on seeing the informant and others approaching them,

ran away by scaling over the wall. The deceased was still

surviving and he told P.W. 5 and others that the

appellants had attacked him by knife and gupti. The

deceased had bled profusely. The informant with the Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

help of others made attempts to take the deceased to

the hospital but shortly after the occurrence, he died.

P.W. 5 saw injuries on the chest, stomach and shoulders

of the deceased.

8. The cause of occurrence as narrated in the

fardbeyan is that the deceased had deposed against

appellant/Prabhu Rai in a Civil dispute, as a result of

which the deceased was done to death by him and his

associates.

9. With this fardbeyan of P.W. 5 having been

recorded at 04:45 A.M. in the morning of 26.07.2009,

the FIR was registered vide Garkha P.S. Case No. 129

of 2009 on 26.07.2009 at 07:45 A.M. for the offence

punishable under Section 302 read with Section 34 of

the Indian Penal Code.

10. The police after investigation submitted

charge-sheet against the appellants and the appellants

faced trial.

11. The Trial Court after having examined 14 Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

witnesses on behalf of the prosecution and three on

behalf of the defence, convicted the appellants under

Section 302 read with Section 34 of the Indian Penal

Code and sentenced them as aforesaid.

12. The Trial Court completely relied upon the

eyewitness account of P.Ws. 1 to 5 and the oral dying

declaration made by the deceased before the aforenoted

witnesses. The Trial Court also appears to have taken

note of the fact that there was a motive of appellant

Prabhu Rai to have killed the deceased along with his

associates, viz., the two appellants, both of them are the

sons of appellant Prabhu Rai.

13. At the trial, one of the three sons of the

deceased, viz., Jay Prakash Sah was examined as P.W.

1. Be it noted that the other two sons of the deceased

have not been examined even though according to the

prosecution case, they had also arrived on learning about

the killing of their father.

14. P.W. 1 has claimed to have seen the actual Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

act of assault from a distance. On that account, he has

supported the version of P.W. 5 and has testified to the

fact that when all of them reached near the deceased,

the appellants ran away. He has also asserted that

efforts were made by him and others to stop the

bleeding by tying the wounds with cloth. The police had

arrived at the scene of occurrence after about 2 to 3

hours and the mosquito net, inside which the deceased

was sleeping on a cot, the mattress and blood stained

earth were seized by the police.

15. Inquest was prepared but he never signed

on the inquest.

16. What is noticeable is that he has made a

categorical statement in paragraph-14 of his deposition

that for the first time, he gave his statement to the

police after about three to four days of the occurrence.

However, he has denied that at the time of occurrence,

he was at Hyderabad and had come to his village home

on being telephonically asked by P.W. 5 on 26.07.2009 Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

to come back to his home as his father had been

murdered.

17. The Investigating Officer (P.W. 10) of this

case (there are three Investigating Officers but P.W. 10

had recorded the FIR and had proceeded with

investigation), however, denies that P.W. 1/Jay Prakash

Sah ever made any statement before him claiming

himself to be an eyewitness to the occurrence.

18. On the contrary, he has stated that before

him, P.W. 1/Jay Prakash Sah had conceded that his

cousin P.W. 5/Shivnath Sah had informed him on his

mobile telephone on 25.07.2009 that his father had

been murdered and that he should come back to his

home as early as possible. He had also told the

Investigating Officer (P.W. 10) that he along with his

two brothers worked for livelihood at Hyderabad in a

cable manufacturing company.

19. The presence of P.W. 1/Jay Prakash Sah,

therefore, at the place of occurrence at the time when Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

the assault was made is rendered extremely doubtful.

The fact that he did not make the fardbeyan being the

son of the deceased; did not sign the fardbeyan lodged

by his cousin P.W. 5/Shivnath Sah and did not also put

his signature on the inquest report further confirms that

he had come back home only after three to four days,

when for the first time he made statement before the

police.

20. On P.W. 1/Jay Prakash Sah being

discredited on this account, the major part of the

deposition of P.W. 5/Shivnath Sah is also rendered

doubtful.

21. Before we analyze his deposition, it would

be appropriate to follow the pecking order in discussing

about the witnesses.

22. Sunil Sah, another nephew of the

deceased, has been examined as P.W. 2, who has also

narrated the same story as P.W. 5/Shivnath Sah but in

his cross-examination, he has said that when he along Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

with others reached the place of occurrence, the

deceased was about five yards away from the cot on

which he was sleeping and within five minutes he died.

He has also stated that there was no time for putting the

deceased to any First Aid or for bandaging his wounds

for stopping the bleeding for preventing any neurogenic

shock.

23. This statement assumes importance, which

shall be discussed later, in the context of the deceased

having made an oral dying declaration before P.Ws. 1 to

5.

24. Satyanarayan Sah (P.W. 3), who is the

own brother of the deceased, but separate in mess and

business, has claimed to have reached the place of

occurrence after about five to six minutes of the halla

raised by the deceased. When questioned regarding his

having identified the assailants/appellants, he told the

Trial Court that none of the appellants had concealed

their faces.

Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

25. However, the mother of the informant,

viz., Tetari Devi (P.W. 4) had a somewhat different story

to narrate. We, however, noticed the candor with which

she has spoken about the Civil dispute between her,

Satyanarayan Sah, Dharamsheela Devi (wife of

Satyanarayan Sah) and Sunil Sah with appellant Prabhu

Rai.

26. From her statement, it becomes very clear

that in fact, appellant no. 1 had Civil dispute with P.Ws.

2 to 5 and not with the deceased for appellant/Prabhu

Rai and his associates to have executed the murder of

the deceased, even if it be assumed that he had deposed

against the cause of the appellants in that Civil dispute.

In complete contretemps with the statement of P.W.

3/Satyanarayan Sah, she has stated that she had seen

the assailants having covered their faces. Though she

has denied the suggestion that she did not tell the

Investigating Officer (P.W. 10) about the actual role

played by each of the appellants in killing the deceased, Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

but P.W. 10/I.O. has stated in paragraph-18 of his

cross-examination that P.W. 4/Tetari Devi never talked

about the manner of occurrence and the specific role

played by each of the appellants to him.

27. She, thus, also stands completely

discredited so far as her presence at the time of the

occurrence is concerned.

28. This takes us to the deposition of the

informant (P.W. 5), who also has conceded in his cross-

examination that the parcel of land which was conveyed

by one Yogendra Singh in favour of his mother and his

uncles, viz., the prosecution witnesses in this case was

later in point of time than the same land having been

conveyed by one Birendra Singh in favour of wife of

appellant/Prabhu Rai.

29. He could not remember the names of the

villagers, hundreds of whom, according to him, had

assembled immediately after the occurrence at the house

of the deceased. In paragraph 37 of his cross- Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

examination, he has said that after the assault, the

deceased came out of the courtyard on his own, which

statement appears to be a complete exaggeration.

30. He has denied at the trial that he had not

taken the names of the appellants before Ibne

Ali/Dafadar (P.W. 14), who was the first person who was

informed about the occurrence by him, who in turn had

informed the police station, whereafter the police party

had arrived at the house of the deceased. Ibne Ali (P.W.

14), however, has confirmed during the trial that P.W.

5/Shivnath Sah never took the names of the appellants

as the assailants of the deceased. He had only told him

in the night intervening between 25th and 26th of July,

2009 that the criminals had killed his uncle.

31. Though the Investigating Officer (P.W. 10)

has claimed that Ibne Ali/Dafadar telephonically

informed him about the occurrence and the names of the

appellants as well, but such statement cannot be

believed in face of the clear deposition of P.W. 14, who Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

was never informed about the names of the assailants

by P.W. 5/Shivnath Sah.

32. The deposition of two other witnesses, viz.,

Sambhu Sah and Kangres Sah (P.W. 6 and 11

respectively) also throws light on the case. Sambhu Sah

(P.W. 6) is also one of the nephews of the deceased,

who hails from the family-line of P.W. 5/Shivnath Sah.

He too has confirmed at the trial that a same plot of land

was sold by Yogendra Singh, brother of Birendra Singh

in favour of Tetari Devi, Satyanarayan Sah and Sunil

Sah, which was earlier sold to the wife of

appellant/Prabhu Rai by the brother of Yogendra Singh,

viz., Birendra Singh. Birendra Singh and Yogendra Singh

are own brothers.

33. Kangres Sah (P.W. 11) claims to have

learnt about the occurrence from P.W. 5/Shivnath Sah

immediately after the deceased was killed. He has given

the details of the family-tree and has stated that the

three sons of the deceased, viz., Jay Prakash Sah (P.W. Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

1), Surrendra and Arun (not examined) work at

Hyderabad in a cable company and out of the three sons

only P.W. 1/Jay Prakash Sah was present at the place of

occurrence. He had also signed on the inquest report

which was prepared. With respect to the Civil dispute, he

too agreed that a Title suit was pending between P.Ws.

2 to 5 and appellant/Prabhu Rai.

34. The main Investigating Officer (P.W. 10)

did not investigate about the Civil dispute between the

parties and relied upon the statement of the witnesses

that because the deceased had deposed in a Civil case

against the interest of appellant/Prabhu Rai, therefore,

he had been killed. He had also not investigated about

the papers of alibi of appellant/Prabhu Rai, which was

given to him during the course of investigation and he

had also received instructions from superior police

officers for investigating the aforesaid defence of

appellant/Prabhu Rai.

35. The dead body was subjected to post- Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

mortem examination by Dr. Sambhu Nath Singh (P.W.

8) on 26.07.2009 at 10:30 A.M. He had found several

injuries on the person of the deceased. There were four

incised wounds and one lacerated wound. The incised

penetrating wounds were on the right side of the chest;

below the left axilla; on the left forearm and in the right

side of chest. All such injuries were cavity deep and

dangerous to life. The lacerated wound was found on the

right leg. The lungs and the liver, on dissection of the

body, was found to be ruptured. The death according to

P.W. 8/ Dr. Sambhu Nath Singh was the composite

result of the injuries suffered by him. The death was

accelerated because of the resultant haemorrhage and

shock. The time fixed for death was 8 to 24 hours

before the post-mortem examination.

36. Could the deceased have made a detailed

statement before P.Ws. 2 to 5 that he was assaulted by

the appellants by means knife and gupti is the question

which beckons an answer.

Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

37. An oral dying declaration could be, even

without corroboration, the basis for conviction but not

when the same is found to be doubtful or untrustworthy

of reliance.

38. There is a different sanctity to such

statement as it is the last of the statements of the

deceased under the expectation of death and no chances

of survival. It is based on the doctrine nemo moriturus

praesumitur mentire. However, before relying on such

oral dying declaration, the evidence needs to be critically

analyzed and sifted to churn out the truth of the matter.

39. In Paniben vs. State of Gujarat

reported in (1992) 2 SCC 474, the Hon'ble Supreme

Court, after taking into account several judgments on

the issue has formulated certain broad features which

are in a way a test for affirming the veracity of such

dying declarations, be it oral or written.

40. There is no rule of law or prudence, the

Hon'ble Supreme Court asserts, that the dying Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

declaration cannot be acted upon without corroboration,

but the Courts must be satisfied that such declaration is

true and voluntary; that the deceased had the

opportunity of seeing his assailants; that he was in a fit

mental and physical health to narrate about the incident

and that such statements do not have such infirmity

which would make it difficult to be accepted as a reliable

piece of evidence.

41. The caution to be exercised by the Courts

do not fall in the category of bog standard for evaluating

evidence but something more. Special care has to be

taken when interested; related and partitioned witnesses

claim to have heard the dying declaration. The Courts

have also to find out whether there was any animus

against the accused which goaded the witnesses to claim

that they had heard the dying declaration. Unless the

declaration passes the muster and crosses this litmus

test, it cannot be relied upon solely for convicting an

accused.

Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

42. With this legal proposition in mind, we

have tested the deposition of the witnesses.

43. We have found that P.W. 1 cannot be

relied upon as he was not present at the place of

occurrence. The informant (P.W. 5) has made

contradictory statements at the trial. He had gone to

Ibne Ali, the Dafadar (P.W. 14) in the dead of the night

with the information that criminals had killed the

deceased and that he should inform the police. On such

information, P.W. 14, accompanied by two other

Dafadars, who have not been examined, came to the

place of occurrence and informed the police. P.W. 14 is

emphatic enough that immediately after the occurrence,

the names of the appellants were not disclosed to him

even when he had called the police.

44. There is yet another peculiarity in this case,

namely, the prosecution not exhibiting the Station Diary

Entry No. 661 of 2009 which was registered on the

information of P.W. 14 to S.I. Mahesh Kumar (P.W. 10). Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

This indicates that the names of the assailants were not

available to the police when it has visited the house at

04:45 in the morning of 26.07.2009 before the

fardbeyan was recorded. The witnesses, therefore, got

plenty of time to ponder over and turn their gaze

towards the appellants with whom P.Ws. 2 to 5 had

definite axe to grind. A plot of land which was earlier

acquired by appellant/Prabhu Rai in the name of his wife

from one of the co-sharers of the property was later

attempted to be obtained by P.Ws. 2 to 5 by a separate

sale-deed by the brother of the original vendee. At the

trial, P.W. 5 had assured the Court that he shall bring on

record the Title documents of the land in question, which

he conveniently failed to do so and which fact has been

recorded by the Trial Court in his judgment.

45. These discrepancies, firstly, points towards

the falsity of the claim of the appellants to have seen

the occurrence; and secondly, to a complete absence of

motive on the part of the appellants to eliminate the Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

deceased with whom there was no litigation whatsoever

and that the story was very conveniently spun by the

P.Ws. 2 to 5 about the deceased having made a

statement before him.

46. The deceased had received four incised

wounds which were cavity deep and there was copious

blood-loss.

47. We have great doubts whether he would

have been in a position to speak about the names of

assailants when P.Ws. 2 to 5 came near him. According

to one of the witnesses, there was no time for even

putting bandage to the wound for preventing blood-loss.

The deceased had died instantaneously.

48. On the other hand, there is also a lurking

doubt that the appellants may have been targeted by

P.Ws. 2 to 5 as the case of the appellant/Prabhu Rai was

stronger than that of P.Ws. 2 to 5.

49. A Civil dispute also existed between the

witnesses and the deceased. We have but no idea Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

whether such dispute was so cantankerous as to propel

the murder of the deceased at the hands of the

witnesses themselves. This suggestion to the witnesses,

therefore, appears us to be a far fetched.

50. What we intend to say is that the oral

dying declaration claimed to have been heard by P.Ws. 2

to 5 appears to us to be doubtful.

51. A word about related and partition

witnesses also would be important for analyzing their

evidence with greater circumspection. Without any

circumlocution, the Hon'ble Supreme Court in C.

Mangesh and Ors. vs. State of Karnataka (2015) 5

SCC has settled the law that the evidence of

related/partitioned witness should be viewed with care

and the Court should proceed to find whether there are

any discrepancies in their deposition which would

adversely strike the Court in accepting their version as

genuine. The Courts are also required to see whether the

story disclosed by them is probable and while doing so, a Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

Court has to take into account all the circumstances

available in the case. Mere consistency of accusation in

the deposition of witnesses is not the only test.

52. In this circumstance, the deposition of

P.Ws. 2 to 5 appear to us to be agenda-driven and with

a purpose; against a particular enclave, with the central

content being to frame the appellants.

53. To tie the strings together, we have found

that (a) P.W. 1 had given statement, despite his claim of

remaining in the house at the time of the occurrence,

after four days to the police. He had not signed either

the fardbeyan or the inquest report;

(b) P.Ws. 2 to 5 have made contradictory

statements about the physical health of the deceased

and their having seen the appellants committing the act

and retreating;

(c) the oral dying declaration claimed to have

been heard by P.Ws. 2 to 5 is rendered doubtful;

(d) the prosecution not bringing on record the Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

Station Diary Entry No. 661 of 2009 which was the first

version; and the deposition of Dafadar (P.W. 14) who

was personally informed by the informant (P.W. 5)

about the occurrence with no names of the assailants of

the deceased. It may be noted here that the house of

P.W. 5 according to P.W. 14 was only one kilometer

away, and therefore, he was the first person to have

been told about the occurrence by P.W. 5.

54. For these grounds, we find the conviction

of the appellants to be absolutely unjustified and the

sentence to be not condign.

55. We must state that appellant no. 1/Prabhu

Rai has been kept bound over for the last 13 years,

whereas appellants no. 2 and 3 (Ashok Rai and Arjun

Rai respectively) also have remained in jail for quite a

long time up till now. Even though after the passage of

13 years of appellant no. 1 remaining in jail, his

sentence was suspended, but for some technical reason

i.e. inadvertently incorrect mentioning of Sessions Trial Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

Number in the memo of appeal, appellant no. 1/Prabhu

Rai has not yet been released.

56. The Sessions Trial No. 626 of 2010

appearing in memo of appeal should be read as

'Sessions Trial No. 696 of 2010'.

57. We set aside the conviction of all the

appellants in Sessions Trial No. 696 of 2010 new

369/2014, arising out of Garkha P.S. Case No. 129 of

2009 and G.R. No. 2536 of 2009 and acquit them of all

the charges.

58. Since all the appellants are in jail, they are

directed to be released forthwith from jail, if not

detained or wanted in any other case.

59. The appeal stands allowed.

60. Let a copy of this judgment be dispatched

to the Superintendent of the concerned Jail forthwith for

compliance and record.

61. The records of this case be returned to the

Trial Court forthwith.

Patna High Court CR. APP (DB) No.421 of 2017 dt.03-10-2023

62. Interlocutory application/s, if any, also

stand disposed off accordingly.

(Ashutosh Kumar, J)

( Alok Kumar Pandey, J) Saurabhkrsinha/ krishna-

AFR/NAFR                AFR
CAV DATE                NA
Uploading Date          05.10.2023
Transmission Date       05.10.2023