CRIMINAL APPEAL(DB) No.82 OF 2003
With
CRIMINAL APPEAL(DB) No. 159 of 2003
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Against the Judgment of conviction dated 13.2.2003and order of
sentence dated 14th February 2003, passed by the IInd Additional
Sessions Judge, Banka in Sessions Case No. 481 of 2000
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In Criminal Appeal No. 82 of 2003
1. BHOLA PANDIT
2.KHUSHI LAL PANDIT
3. GITA DEVI………………………………………………Appellants
Versus
STATE OF BIHAR———————————————Respondent
In Cr.. APP (DB) No.159 oF 2003
KULDIP PANDIT————————————————Appellant
Versus
STATE OF BIHAR———————————————Respondent
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For the Appellants : Shri Jagdish Prasad Bhagat,
Sri D.N. TiwaryAdvocates.
For the Respondent: Sushri Shashi Bala Verma,
Additional P.P.
PRESENT
THE HOB’BLE SHRI JUSTICE DHARNIDHAR JHA
THE HON’BLE SHRI JUSTICE BIRENDRA PRASAD VERMA
B.P. Verma, J The appellants of the above two appeals have been
convicted under section 302/34 of the Indian Penal Code by the
impugned judgment of conviction dated 13.2.2003 passed in
Session Case No. 481 of 2000 by the learned 2nd Additional
Sessions Judge, Banka and they have been accordingly sentenced
to undergo R.I. for life by the impugned order of sentence dated
14.2.2003. Appellants, being aggrieved by the impugned judgment
of conviction and order of sentence, have preferred the aforesaid
two criminal appeals.
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2. The prosecution case, as unfolded by the
Fardbeyan (Ext.2) of P.W.6 Jaldhar Pandit, in short, is that the
informant and appellant Kuldip Pandit are agnates and they are
having their houses adjacent to each other. Appellant Kuldip
Pandit had put up wooden beam (Bareri) of his house on the wall
of the informant. House of appellant Kuldip Pandit had started
falling because of rain and due to its old construction, as a result of
which the house of the informant was also being damaged.
Deceased Guru Dayal Pandit, father of the informant, in order to
save his own wall cut some part of wooden beam of the accused
persons on 13.9.1999 at about 10 A.M. in the day, where-after
appellant Geeta Devi, armed with sickle, came over there and
protested. On hearing altercation appellants namely Kuldip
Pandit armed with Garasa, Bhola Pandit armed with sword and
Khushi Lal Pandit armed with Lathi came over there and asked
as to who had cut the aforesaid wooden beam ? Deceased Guru
Dayal Pandit admitted to have cut the aforesaid wooden beam
,where-after appellant Kuldip Pandit uttered that he would be also
cut in the same manner and rushed towards the father of the
informant with Garasa and other appellants were following him.
Deceased father of the informant could flee to a distance of 60 to
70 yards, but he was apprehended by the accused persons, where-
after appellant Kuldip Pandit cut the neck of deceased Gurudayal
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Pandit as a result of which he died on the spot. Thereafter all the
accused persons rushed towards the house of the informant.
While Maniya Devi, mother of the informant, had come over
Darwaja to flee from there, she was caught hold by all the four
accused persons and appellant Kuldip Pandit again killed her at
her Darwaja itself by using Garasa.
3. Aforesaid fardbeyan (Ext.2) of P.W.6 was
recorded by P.W.7 Chandrika Rajak, S.I. of Belhar P.S., giving
rise to Belhar P.S. case No. 85 of 1999 dated 30.9.1999 under
section 302/34 of the Indian Penal Code. P.W.7 has not conducted
the investigation of the present case. He has simply recorded the
fardbeyan of P.W.6 and seized the blood stained Garasa, and,
thereafter investigation was taken up by P.W.9 Jaipal Yadav.
During the course of investigation, the witnesses supported the
factum of death of deceased Gurudayal Pandit (father of the
informant-P.W.6) and deceased Maniya Devi (mother of the
informant-P.W.6). Witnesses also supported about the role
played by appellant Kuldip Pandit for committing the murder of
deceased persons. But the independent witnesses did not support
the prosecution allegation about participation of other three
appellants namely Bhola Pandit, Khusi Lal Pandit and Geeta Devi.
In the aforesaid back ground, on close of investigation charge
sheet no. 93/99 dated 30.12.1999 under section 302 of the Indian
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Penal Code was submitted only against appellant Kuldip Pandit.
The other three appellants were not sent up for trial. However, by
order dated 3.1.2000, learned C.J.M disagreed with the police
report and took cognizance against all the accused persons under
section 302/34 of the Indian penal Code and the case was
committed to the court of session for trial.
4. Charge was framed against all the appellants
under section 302/34 of the Indian Penal Code on 4.1.2001. The
appellants denied the charge and claimed to be innocent and their
false implication in the present case. According to them no
occurrence in the manner, as alleged, has ever taken place and the
entire prosecution version is full of concoction and fabrication.
5. In order to prove its case, the prosecution has
examined 9 witnesses , out of them P.W.1 Binay Kumar Pandit ,
son of the deceased persons and brother of the informant, P.W.2
Rina Devi, wife of the informant , P.W.4 Janardan Pandit , P.W.5
Bhagwatia Devi as also P.W.6 Jaldhar Pandit ,the informant,
claimed to be eye witnesses of the occurrence in question. P.W.3
Baldeo Pandit is a hear say witness. P.W.8 Dr. Shiva Narayan
Singh is Civil Assistant Surgeon, who was posted at Banka Sadar
Hospital at the relevant time and had conducted postmortem
examination on the dead body of the deceased Gurudayal Pandit as
also of Maniya Devi and aforesaid postmortem reports have been
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marked as Ext.6 and 6/1 respectively. As stated earlier P.W.7
Chandrika Rajak was S.I. of Police, who recorded fardbeyan
(Ext.2) of P.W.6 and seized blood stained Garasa of the accused
Kuldip Pandit. P.W.9 Jaipal Yadav is the I.O. of the case.
6. From the side of appellants neither any defence
witness nor any documentary evidence was produced in support of
their defence version.
7. Shri Jagdish Prasad Bhagat, Learned counsel
appearing on behalf of the appellants took us to the evidence of
witnesses and submitted that the prosecution has not been able to
prove the entire manner of occurrence and further P.O. has not
been conclusively proved and, therefore, the appellants are entitled
to have a benefit of doubt and are entitled to be acquitted by this
Court. Alternatively, it was submitted that even according to the
eye witness account of P.Ws.4 and 5, who are the independent
witnesses in the present case, the participation of appellant Bhola
Pandit, Khushi Lal Pandit and Geeta Devi in the occurrence in
question is not established and only Kuldip Pandit can be said to
have committed the crime in question. By referring to postmortem
report of deceased persons vide Ext.6 and 6/1, it was submitted
that though appellant Khushilal Pandit and Geeta Devi are alleged
to have assaulted on chest of deceased Gurudayal Pandit , but no
corresponding injuries were found on his body and this creates
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grave doubt about the manner of occurrence as also about the eye
witness account of the prosecution witnesses.
8. Sushri Shashi Bala Verma, Learned Addl. P.P.
appearing on behalf of the State, submitted that the prosecution
has been able to prove its case beyond all reasonable shadow of
doubts and on the basis of some minor contradictions either in
ocular evidence of the prosecution witnesses or in the medical
evidence of doctor the accused persons cannot be acquitted.
9. In order to appreciate the rival submissions
made on behalf of the parties, it is necessary to examine the
evidence of the witnesses available on record.
10. It is relevant to mention here that though the
case was instituted under section 302/34 of the Indian Penal Code
and all the four appellants were named in the FIR as accused, but
on close of investigation accusations against the appellants Bhola
Pandit, Khushi Lal Pandit and Geeta Devi were found to be false
and they were not sent up for trial. Charge sheet was submitted
only against the appellant Kuldip Pandit under section 302 of the
Indian Penal Code.
11. In the Fardbeyan (Ext.2) of P.W.6 the allegations
of killing the deceased Gurudayal pandit and deceased Maniya
Devi are mainly against the appellant Kuldip Pandit. According
to the prosecution case murder of deceased Gurudayal Pandit had
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taken place in the field of one Sachidanand Lal. P.W.9 Jaipal
Yadav (I.O.) in paragraph 2 of his deposition has given a
description of aforesaid P.O. According to which one Lalu Pandit,
father of P.W.4 and husband of P.W.5, was having his house
adjacent west to the aforesaid P.O. Therefore, p.w.4 and 5, who
are the eye witnesses of the alleged occurrence and are having
their house just west of the alleged P.O., are most competent
witnesses to say about the manner of assault upon the deceased
Gurudayal Pandit. P.W.4 Janardan Pandit in paragraph -1 of his
deposition has stated that appellant Kuldip Pandit had alone cut
the neck of deceased Gurudayal Pandit in the field of Sachidanand
and thereafter he alone committed the murder of deceased Maniya
Devi. In paragraph -7 at page 18 of the paper book he has
categorically deposed that appellant Kuldip Pandit was alone at
the P.O. and other appellants were not present there. Similarly
P.W.5 Bhagwatia Devi, wife of Lalu Pandit and mother of P.W.4,
has deposed in paragraph 1 of her deposition that appellant Kuldip
Pandit cut the neck of the deceased Gurudayal Pandit,as a result of
which he died and thereafter appellant Kuldip Pandit went to the
house of P.W.6 and killed the deceased Maniya Devi there. In her
cross-examination in paragraph-6 of her deposition, she has stated
that it was the appellant Kuldip Pandit alone responsible for the
killing of deceased Gurudayal Pandit and his wife deceased
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Maniya Devi and other appellants did not participate in the
commission of the crime in question.
12. P.W.1 Binay Kumar Pandit, son of the
deceased, has tried to support the entire prosecution case, but in
paragraph -1 of his deposition he has stated that appellant Kuldip
Pandit cut the neck of his father by sword , which is contrary to the
consistant case of the prosecution that the appellant Kuldip Pandit
assaulted the deceased Gurudayal Pandit by Garasa and not by
sword. P.W.2 Rina Devi, wife of the informant, has also tried to
support the prosecution version. Admittedly P.W.3 Baldeo Pandit
is a hear say witness having heard about the killing of deceased
persons by Kuldip Pandit from one Lalu Pandit . In absence of
examination of Lalu Pandit, the evidence of P.W.3 cannot be
relied upon. P.W.6 Jaldhar Pandit, the informant, has not only
tried to support rather tried to improve the prosecution version
by stating that appellant Khushilal Pandit was armed with Khanti
fitted Lathi, though in the fardbeyan he had stated that he was
armed with Lathi only. According to him apart from Kuldip Pandit
appellant Khushi Lal Pandit and appellant Geeta Devi also
assaulted the deceased Gurudayal Pandit by their respective
weapons on his chest. However, according to him primal role for
committing the murder of the deceased persons was played by
appellant Kuldip Pandit.
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13. The statements of the aforesaid witnesses
have been contradicted and falsified by the deposition of I.O.
namely P.W.9 Jaipal Yadav . In his cross-examination, on his
attention being drawn, P.W.9 in paragraph 4 stated that P.W.1
Binay Kumar Pandit had disclosed the name of appellant Kuldip
Pandit alone as the person who had killed the deceased, and P.W.1
had not disclosed the name of other accused persons to have
participated in the assault. In paragraph 5 of his deposition, P.W.9
has stated that P.W.2 Rina Devi had not stated before him that all
the accused persons had assaulted the deceased Gurudayal Pandit.
In paragraph 7 of his cross-examination, P.W.9 has deposed that
P.W.5 Bhagwatia Devi had named only appellant Kuldip Pandit as
assailant of the deceased and she had claimed to have seen the
occurrence by her own eyes. Similarly in paragraph 8 of his
deposition, P.W.9 at page 47 of the paper book has deposed that
P.W.6 had disclosed the name of appellant Kuldip Pandit alone to
have killed the deceased persons. He had not disclosed the name
of other appellants to have assaulted the deceased Gurudayal
Pandit by their respective weapons.
14. From the discussion of the ocular evidence of
the eye witnesses, referred to above, it is apparent that witnesses
have consistently stated about the role of Kuldip Pandit for killing
the deceased Gurudayal Pandit and Maniya Devi. P.W.1, P.W.2,
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P.W.4, P.W.5 and P.W.6 all have consistently stated that appellant
Kuldip Pandit firstly killed the deceased Gurudayal Pandit in the
field of Sachidanand Lal and thereafter killed Maniya Devi at the
Darwaja of the informant, while she was attempting to flee away
from there. However, about participation of other three appellants
in the crime in question, there are contradictory evidence. P.Ws 4
and 5 have clearly stated that other three appellants namely Bhola
Pandit, Khushi Lal Pandit and Geeta Devi had not participated in
the crime in question. Though P.Ws 1, 2 and 6 have tried to
support the prosecution case that even these appellants had
played some role for committing the crime in question, but their
evidence stands falsified and contradicted by the evidence of I.O.
(P.W.9), as according to him the aforesaid witnesses had not
disclosed before him about the role played by these three
appellants for committing the crime in question.
15. P.W.8 Dr. Shiva Narayan Singh had held
autopsy on 30.9.1999 on the dead body of the deceased Gurudayal
Pandit and deceased Maniya Devi . Post mortem reports have
been marked as Ext.6 and 6/1 respectively. The postmortem
report of deceased Gurudyal Pandit is quoted herein below :
(a) Incised wound of size 2″ x ½” x ½” on the
occipital area.
(b)Incised wound of size 2.1/2″ x ½” x ½” on the
left parietal area of the scalp.
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(c)Incised wound on the neck cutting of the
structures of the neck causing amputation of the
head from the neck.
(d) Incised wound 2″x ½” x ½” on the left
scapular area.
(e)Little finger of left hand amputated from its
proximal phalanx.
Cause of death;- shock and haemorrhage due to
above mentioned injuries.
The postmortem report of deceased Maniya Devi was
as follows:
(i)Incised wound of size 3″x 1½” x deep to
survical vertebra cutting the skin , blood vessels ,
nerves, muscles on the left side of the neck.
(ii)Incised wound of the size 2″ x 1″ x deep to
baccal cavity cutting the left chunk with
mandible.
(iii)Incised wound size 1½” x 2″ x ½” on the right
palm.
Cause of death;- shock due to above mentioned
injuries.
16. According to the prosecution case appellant
Khushi Lal Pandit is alleged to have assaulted deceased Gurudayal
Pandit on his chest either by lathi or by Khanti fitted lathi.
Similarly appellant Geeta Devi is said to have assaulted the
deceased Gurudaual Pandit on his chest by sickle. On scrutiny of
the postmortem report of deceased Gurudayal Pandit, it is apparent
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that there was no injury found on his chest. However, the
allegation of assault against the appellant Kuldip Pandit of cutting
the neck of the deceased persons by Garasa has been fully
supported. Thus it is apparent that the allegation of assault against
the appellant Khushi Lal Pandit and appellant Geeta Devi by their
respective weapons does not find support even from the
postmortem report of the deceased.
17. Thus on examination of ocular evidence of
witnesses and medical evidence of doctor, it is apparent that the
prosecution has succeeded in establishing beyond all reasonable
shadow of doubt that appellant Kuldip Pandit killed the deceased
Gurudayal Pandit and his wife deceased Maniya Devi and,
therefore, no interference in the judgment of conviction and order
of sentence, so far appellant Kuldip Pandit is concerned, is at all
warranted.
18. For the reasons stated above judgment of
conviction and order of sentence passed against appellant Kuldip
Pandit , are hereby affirmed and the appeal filed on his behalf is
dismissed.
19. However, on examination of ocular evidence
of witnesses and medical evidence of doctor participation of other
three appellants namely Bhola Pandit, Khushi Lal Pandit and Gita
Devi appears to be doubtful and they are entitled to have the
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benefit of doubt. Admittedly P.W. 4 and 5, both independent eye-
witnesses, have completely ruled out the participation of these
three appellants in the murder of the deceased persons. Other
three eyewitnesses namely P.W.1, 2 and 6, though tried to support
the prosecution allegation against these three appellants also, but
their evidence stands contradicted and falsified by the evidence of
P.W.9 (I.O.) Further more the postmortem report-Ext. 6 does not
support the manner of assault as attributed to the appellant Khushi
Lal Pandit and Geeta Devi. In view of the aforesaid contradictory
ocular and medical evidence available on record, these three
appellants are entitled to have the benefit of doubt and are entitled
to be acquitted from the charge levelled against them on that
ground. Therefore, judgment of conviction and order of sentence
passed against them are hereby set aside. They are acquitted from
the charge levelled against them. The appeal filed on their behalf
is allowed. They are on bail, therefore, they are discharged from
the liabilities of their bail bonds.
(Birendra Prasad Verma, J)
Dharnidhar Jha, J. I agree.
(Dharnidhar Jha, J)
Patna High Court
The 20th April,2010
Rahman(NAFR)
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