Pathaliya Sao @ Puthaliya Sao @ Pathaliya Gupta vs The State Of Bihar

(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Heard learned counsel for the appellants and learned Additional Public Prosecutor for the State.

The two appellants in these appeals are seeking setting aside of the judgment of conviction dated 31.01.2023 (hereinafter referred to as the ‘impugned judgment’) and the order of sentence dated 17.02.2023 (hereinafter referred to as the ‘impugned order’) passed by learned Additional Sessions Judge-XVI, Patna (hereinafter referred to as the ‘learned trial court’) in connection with Sessions Case Nos. 483 of 2019/ 909 of 2019, whereby the learned Trial Court has convicted the appellants herein under Section 394 read with Section 34 of the Indian Penal Code, 1860 (in short ‘IPC’) and sentenced to undergo life imprisonment along with fine of Rs.50,000/- and in default of payment of fine, they shall further undergo simple imprisonment for two years and both the appellants were simultaneously convicted under Section 302 read with Section 34 of the IPC and sentenced to undergo life imprisonment with fine of Rs.50,000/-and in default thereof, they shall undergo simple imprisonment for two years. Both the sentences are to run concurrently.

The prosecution case, in brief, as disclosed from the fardbeyan of the informant, Shabnam Kumari, is that on 06.06.2018, the informant, along with her husband and two minor daughters, boarded the Purvanchal Express from Mohiuddin Nagar Railway Station on the strength of computerized railway tickets. They occupied a place in the general compartment of the train. At about 9:00 P.M., when the train started from Mohiuddin Nagar Railway Station, an unknown boy allegedly snatched the purse of the informant and jumped from the platform opposite the Station Master's office. The husband of the informant also jumped from the train in an attempt to recover the purse, whereupon a scuffle ensued between him and the said boy. In the meantime, the train gathered speed and she asked her husband to leave the purse and return to the train. Her husband, however, told her that he would follow them and meet them at Jasidih. Thereafter, with the assistance of co-passengers, the informant made repeated attempts to contact her husband on his mobile phone, but initially could not establish communication. Subsequently, at about 06:00AM, a call was received on the mobile number of her husband, bearing Mobile No. 9199777149. The person who answered the call allegedly disclosed that he was speaking from G.R.P., Hathidah, and informed the informant that her husband had died. On receiving the said information, the informant became shocked and, upon reaching Jasidih Railway Station, disclosed the incident to the personnel of G.R.P. Jasidih. The G.R.P. personnel, after being apprised of the communication received from G.R.P. Hathidah, put the informant and her two daughters on a passenger train. The informant thereafter reached Kiul Railway Station, from where her brother took her and her two daughters in a Scorpio vehicle to Adalpur. It was further stated by the informant that the purse allegedly snatched from her was of violet colour and contained cash of Rs.18,000/-, her husband's driving licence, UCO Bank ATM card, a Nokia mobile phone having SIM Nos. 9570216001 and 6200288289, besides other documents and articles. The mobile phone of her husband, which was in the pocket of his trousers, contained SIM Nos. 9199777149 and 7367090267. The said mobile phone was subsequently handed over by G.R.P., Hathidah to Ajay Kumar Choudhary, the cousin father-in-law of the informant.

On the basis of the aforesaid written report/fardbeyan, an F.I.R. was initially instituted against unknown persons for the offences punishable under Sections 379 and 304 IPC. Subsequently, in course of the investigation/proceedings, the offences under Sections 394 and 302 IPC were also added pursuant to the order dated 07.09.2018 passed by the learned Additional Chief Judicial Magistrate, Railway, Patna.

After investigation, police submitted chargesheet bearing Chargesheet No. 67 of 2018 dated 31.12.2018 against (1) Abhishek Kumar, (2) Pathaliya Sao and (3) Ankaj Kumar for the offences punishable under Sections 394 and 302 of IPC keeping investigation pending against the accused Chamru @ Chamo. Thereafter, supplementary Chargesheet bearing Chargesheet No. 60 of 2019 was submitted on 30.06.2019 under Sections 394 and 302 of IPC against Chamru @ Chamo.

Learned Magistrate vide order 25.02.2019 took cognizance of the offences punishable under Sections 394 and 302 IPC against all the three accused persons namely (1) Abhishek Kumar, (2) Pathaliya Sao and (3) Ankaj Kumar and committed the records to the Court of Sessions on 14.03.2019.

After supply of police papers, charges were explained to the accused which they denied and claimed to be tried, accordingly, vide order dated 19.08.2019, the charges were framed for the offences punishable under Sections 394/34, 302/34 IPC.

In course of trial, the prosecution examined as many as eight witnesses and got exhibited several documents. The lists of prosecution witnesses and the documents are given hereunder in tabular form:-

Thereafter, the statements of the accused persons were recorded under Section 313 of the Code of Criminal Procedure (in short ‘CrPC’) in which they denied the allegations and pleaded innocence.

The defence has not produced any witness or any documentary evidence.

Learned trial court, after perusal of the evidences found that although the informant had not seen that who had murdered her husband but she had seen the scuffle between her husband and the snatchers. Learned trial court found that the deceased had gone after the snatchers for getting back the purse and in the morning, she was informed by the GRP that her husband had died. The informant had identified the accused named Pathaliya Sav.

Learned trial court further found from the postmortem report that the cause of death is heavy bleeding from the injury on head and neck caused by some heavy hard and blunt object and hemorrhage and shock leading to cardio respiratory failure. Learned trial court recorded that the villagers had told that Pathaliya Sav and Ankaj Kumar used to commit loot in trains and the accused persons have also accepted their involvement in their confessional statement.

Learned trial court concluded that from the evidence of the informant (PW-5), it is crystal clear that after her purse was looted, her husband went after the snatchers, the informant has seen the scuffle between them and due to this occurrence, her husband has been killed by the accused persons Pathaliya Sav and Ankaj Kumar.

Learned trial court after considering all the facts and circumstances of the case found that the prosecution has successfully been able to prove its case against Pathaliya Sav and Ankaj Kumar. Accordingly, they have been convicted for the offences punishable under Sections 394/34 and 302/34 IPC.

Learned counsel for the appellants while assailing the impugned judgment and order has submitted that the learned trial court has committed grave error in convicting the appellants.

Learned counsel for the appellants has submitted that there are a lot of lacunae in the case of prosecution. The date of occurrence is 06/06/2018 and the FIR was lodged on 13/06/2018. Learned counsel for the appellants has submitted that a delay of 7 days in filing of the FIR is not explained adequately which creates doubt on the prosecution because the informant received the information about the death of her husband on 7^th June in the morning only.

Learned counsel has further submitted that PW-5 who is the informant in the case is the only eye witness to the snatching of her purse and not to the occurrence which led to the death of her husband. Learned counsel has further pointed out that PW-5 is also not a reliable witness because she has contradicted herself. In the fardbeyan, she has stated that there was only one mobile phone of Nokia company in the purse which was snatched away but in her deposition, she has stated that there were two mobile phones, one of Nokia company and the other of Samsung, the change in her statements make her an unreliable witness. Learned counsel has further submitted that no test identification parade was conducted in this case. The informant was not made to identify the person who was involved in snatching of her purse to the persons arrested in this case.

Learned counsel for the appellants has argued that the first I.O. in this case found nothing against the appellants and it was only the second I.O. who pointed out the names of the present appellants. Learned counsel has added to his arguments that the second I.O. in this case stated that he got the names of the appellants by some secret source/spy, and this source was not examined. Learned counsel has submitted that the non-examination of the source makes the naming of the appellants untrustworthy.

Learned counsel for the appellants has also submitted that neither the inquest report witnesses nor the seizure list witnesses have been examined. Learned counsel submits that the non-examination of such significant witnesses makes the prosecution case weak and unreliable.

Learned Additional Public Prosecutor for the State has opposed the appeal. It is submitted that learned trial court has examined the evidences available on the record meticulously and found the involvement of the appellants in the commission of the offence. Hence, the impugned judgment and order need no interference of this Court.

Heard learned counsel for the appellants and learned Additional Public Prosecutor for the State as also perused the trial court’s records in both the appeals.

The solitary eye witness who is also the star witness of the present case is Shabnam Kumari (PW-5). In course of the travel on 06.06.2018, she claims her presence in the Purvanchal Express. She has stated that she had to get down from the train at Jasidih Railway Station. She was traveling with her two daughters and her husband Gautam Kumar Chaudhary (the deceased). She was in the general class of the bogie and she was sitting by the side of the door of the train. According to this witness, the occurrence took place in between 12-01 O’ clock when the train reached near Rampur Dumra Railway Station. According to this witness, one boy snatched her purse and started fleeing away, behind him the husband of the informant started chasing him. According to this witness, both of them had a physical quarrel, in the meantime, the train started running. The informant claims that she had seen that 4-5 persons were quarreling with her husband. Her husband told her to reach Jasidih as he would be coming from behind.

The informant reached Jasidih Railway Station whereafter she was trying to make a call on the mobile number of her husband from the mobile of another passenger but no response was coming. In the morning, she could get a response from the mobile number of her husband and the person who took the call told her that he was a GRP Hathidah Jawan, he also informed that her husband had died. The informant claims that she contacted GRP, Jasidih and she had a talk with the people in GRP Hathidah. The GRP Jasidih got her seated in a passenger train and she was received by her brother at Kiul Railway Station. She was not in a balanced mental condition. She was taken to her house. Then, she has given the description of the occurrence. She has stated that her husband had two mobiles, one was of Nokia N6 and the second mobile was of Samsung company.

We have noticed that in paragraph ‘2’ of her deposition, in examination-in-chief she claims to have identified the accused who were in custody. She has stated in paragraph ‘3’ that the written statement given by her is in the pen of her father-in-law Aditya Kumar. This written information is Exhibit ‘1’. In course of her cross-examination on behalf of the accused Abhishek Kumar (not before this Court), she has stated that during investigation, no T.I. parade of the accused persons were done but she claims to have seen the accused persons. The defence suggested this witness that her husband had died due to accident while trying to board on the train.

We have noticed that in this case, while the deposition of PW-5 was going on, accused Pathaliya Sao threatened that since he was innocent if he is convicted then he can do anything with the court. He is said to have made a statement that he committed the occurrence but no one can do anything to him. The learned trial court has recorded that the accused Pathaliya Sao was also trying to disturb the proceeding of the Court. The Court ordered to take them to Hazat. On behalf of these accused, namely, Pathaliya Sao and Ankaj Kumar who are the appellants before this Court, no cross-examination has been done. The learned Trial Court has simply recorded that no advocate appeared on behalf of the other accused persons to cross-examine. With this observation the witness was discharged. At first instance, we find that these appellants have been deprived of an opportunity to cross-examine the prosecution witness. The anger shown by Pathaliya Sao in the dock cannot be taken as a plausible reason to deprive him of cross-examining the informant. The learned court did not take any step to provide legal aid to the accused who were unrepresented.

We have noticed that in this case, the occurrence took place on 06.06.2018 between 12-01 O’ clock in the night hours. The informant has stated that one boy snatched her purse and he started fleeing away, therefore, there was little time for the informant to see the face of the boy who had snatched away the purse of the informant from outside. The informant was sitting beside the door of the train. Her husband had got down from the train and then he had indulged in quarrel with the boy, in the meantime, the train started but the informant claims that she had seen from the train that 4-5 persons were quarreling with her husband. She nowhere claimed in her written information that she had identified the boy or she can identify the boy. The railway police has registered an Unnatural Death Case No.5 of 2018 on 07.06.2018 itself. The seizure list of the articles found near the dead body of the deceased was prepared on 07.06.2018 itself which has been marked as Exhibit ‘2’. The seizure list witnesses, namely, Mintu Kumar and Subodh Das have not been examined in course of trial.

A perusal of the seizure list (Exhibit ‘2’) would show that it was prepared on 07.06.2018 at 8:30 A.M. near the railway line and from the full pant pocket of the deceased, one Samsung company Mobile No.9199777149 was seized.

The inquest report was also prepared on 07.06.2018. The two witnesses to the inquest report are (1) Amarnath Kumar and (2) Mukesh Kumar, who are residents of village Rupas Baj, under Bachhwara Police Station in the district of Begusarai. The inquest report mentions Rail PP Hathidah UD Case No.5 of 2018 dated 07.06.2018, time 08:12 hours. The two witnesses to the seizure list have not been examined in course of trial. The body was sent for post mortem on the same day and the post mortem was also conducted on 07.06.2018 (Exhibit ‘8’). The post mortem report (Exhibit ‘8’) reads as under:-

We have noticed from the deposition of Ajay Kumar (PW-1) that on 07.06.2018 at 06:30 A.M., he got a telephone call from the mobile of the deceased Gautam Kumar, the GRP Hathidah informed him that the holder of the mobile has met an accident and has died. On this information, he reached there and found that the dead body was lying on a stretcher at Platform No.1. The head was chopped off from the root of the neck. He identified the dead body of Gautam Kumar. In paragraph ‘2’ of his deposition, he says that later on, he came to know about the occurrence from the wife of the deceased. He has stated that he had not seen the occurrence.

Jitendra Ray (PW-2) is the brother-in-law (wife’s brother) of the deceased. He had got information on 07.06.2018 from his father that Gautam Kumar had met an accident. At that time, he was in Lakhisarai and after getting information, he reached Hathidah Station where he met the GRP Officer Incharge. He was told that near Rampur-Dumra Station, a body of a passenger which was chopped off from the root of the neck was lying. This witness was asked to identify the dead body. After sometime, the dead body was brought to a local train at Hathidah Railway Station, then this witness identified the dead body. At that very time, some villagers from his village also reached.

Here, this Court finds that even as this witness claims to have identified the dead body which was lying near the railway line, he is neither inquest report witness nor he is a seizure list witness. Nobody from his village is a witness to these documents which were prepared on 07.06.2018 at 08:12 and 08:15 AM.

According to this witness, the Badababu of GRP informed him that his sister and her two children are also coming. This witness reached Kiul Station and received the sister and the two children and took them to his house through a Scorpio vehicle. From the deposition of PW-2, it is evident that the informant (PW-5) and her two daughters were picked up from Kiul Station itself by PW-2 and they were taken to his house. Thus, PW-5 and her two daughters had not reached Hathidah Police Station. It is highly doubtful that PW-2 had gone to Hathidah and identified the dead body. The informant had not told the occurrence which took place in the night to her father or her brother (PW-2) immediately or during the whole night even as she has stated that she had taken mobile phone from one of the passengers and had made call on the mobile phone of her husband. She claims to have received the information about the death of her husband from a GRP Jawan in the morning, but prior to that at 06:30 A.M. itself PW-1 claims to have received the information that there was an accidental death of the person who is the holder of the mobile. PW-2 has stated that he came to know about the occurrence from his sister on way to his house.

This Court, therefore, finds that despite knowledge of the occurrence which had taken place, neither the informant (PW-5) nor her brother (PW-2) lodged any F.I.R. PW-5 has though stated to have received the information about the death of her husband but in her examination-in-chief, she does not say that she had informed about the occurrence of snatching of her purse to the GRP Jawan during her telephonic talk. It is, therefore, evident that despite having so many opportunities available to PW-5 and subsequently even to PW-2, the occurrence which took place between 12-01 O’clock in the night near Rampur-Dumra Station was not brought to the notice of the GRP, Hathidah. The conduct of the informant (PW-5) in not giving any information in this regard to her father and brother for the whole night of 06.06.2018, even though, she claimed to have made a call on the mobile phone of her husband using mobile phone of one of the passengers, creates doubt over the prosecution story. There is no independent witness to the snatching of purse occurrence or to the quarrel between husband of the informant and the miscreants.

A written information was submitted only after six days of the occurrence against unknown persons.

It further appears that in course of investigation, the first I.O. (PW-6) claims to have got an information about the involvement of one Abhishek Kumar. He came to know about the involvement of Abhishek Kumar after taking out the CDR of the mobile phone of the deceased, from this CDR he came to know that the mobile phone of the deceased was being used by Abhishek Kumar after inserting his own SIM. The mobile call detail report of the deceased has not been proved in course of trial. The first I.O. (PW-6) claims that from possession of Abhishek Kumar, he seized Nokia company’s mobile N6 model which was having IMEI No. 356029083947407, Abhishek Kumar was using the said mobile by inserting SIM no. 7488860460. He has proved the seizure list of the mobile which has been marked Exhibit ‘3’. On perusal of Exhibit ‘3’, we find that it talks of seizure of Jio company mobile and not a Nokia N6 mobile. It is, therefore, evident that the first I.O. (PW-6) made a false statement in course of trial that he had seized the mobile phone of the deceased. We have noticed that according to the informant (PW-5), the deceased was carrying two mobiles, one was of Nokia N6 and another one was Samsung. We also find that the two seizure list witnesses, namely, Arvind Paswan and Jitan Paswan have not been examined in course of trial and the seizure list does not contain their parentage and address. This is how the first I.O. (PW-6) has discharged his duties as an Investigating Officer of the case.

We further noticed that so far as Abhishek Kumar who is not before this Court is concerned, had not made any statement implicating these two appellants. The implication of these two appellants and the manner in which they have been implicated may be found from the deposition of Md. Zafrullah Khan (PW-7), who is the second I.O. of this case. He took charge of the investigation on 07.07.2018 from S.I. Udeshwar Soren (first I.O.). He perused the case diary which was received from the first I.O., he also perused the supervision note and the observations thereon. He had added Sections 394 and 302 IPC and had filed an application in the learned Railway Court to add these two sections. In course of investigation, he did not examine a single witness. This fact he has admitted during cross-examination on behalf of the accused Ankaj Kumar. In paragraph ‘2’ of his examination-in-chief, PW-7 has stated that he got to know from the spy that dreaded criminals, Chamru @ Chamo, Ankaj Kumar and Pathaliya Sao were seen together on the date and time of occurrence. They are involved in commission of the crime in train and on many occasions, they have been sent to jail. PW-7, therefore, assumed that these three persons were involved in the commission of crime. He came to know that after the occurrence Chamru @ Chamo had gone to meet Abhishek Kumar to sell the looted mobile of the deceased. He has given the criminal antecedents of these accused persons and, thereafter, he has stated that on 27.09.2018, he came to know from the Railway Protection Force that Ankaj Kumar has been arrested and was brought to the police station. On this information, he went to Mokama and recorded confessional statement of Ankaj Kumar in paragraph ‘104’ of the case diary. I.O. (PW-7) claims that in his confessional statement, the accused Ankaj Kumar took name of Pathaliya Sao and Chamru @ Chamo. Thereafter, this I.O. (PW-7) recorded confessional statement of Pathaliya Sao and submitted charge-sheet against Abhishek Kumar, Pathaliya Sao and Ankaj Kumar after obtaining order from the senior police officer. He proved the charge-sheet (Exhibit ‘5’).

In course of his cross-examination, this I.O. (PW-7) has admitted that he had not recorded the statement of any witness in course of investigation. In paragraph ‘5’, he had recorded that he had not got identified any of the accused by the informant. He was suggested by the defence that there was no proof of involvement of accused Ankaj Kumar which this witness denied. On behalf of Pathaliya Sao, when PW-7 was cross-examined, the defence suggested him that his statements were on the basis of only hearsay talks. In course of his cross-examination, PW-7 has admitted in paragraph ‘27’ that on the basis of the confessional statement, he had not found any evidence in course of investigation against Pathaliya Sao.

After going through the deposition of the I.O. (PW-7), we have no iota of doubt that it is a case of false implication of Ankaj Kumar and Pathaliya Sao. Abhishek Kumar is not before us so we are refraining from saying anything in his respect. The I.O. (PW-7) has acted in a most irresponsible manner and even as he had not recorded statement of any witness during investigation, on mere information said to have been received from spies, he implicated Ankaj Kumar and Pathaliya Sao. He himself admits that there was no material collected on the basis of the confessional statements. There is no evidence to connect these persons with Abhishek Kumar. We have already noticed that the first I.O. (PW-6) made a false statement regarding recovery of mobile phone of the deceased from Abhishek Kumar.

This is an unfortunate case where a train passenger while travelling with his family has been murdered. The post mortem report available on the record discloses that his head was chopped off from the root of the neck, there were lacerated wound on right shoulder size 4 cm x 4 cm and lacerated wound on the root of the neck. We have no doubt that this seems to be a case of murder but then the question arises as to whether there is any direct or circumstantial evidence to connect these two appellants with the present crime.

From the discussions made hereinabove, it is evident that in course of investigation, the two I.Os. had not collected any material so as to connect these two appellants with the crime. The F.I.R. was lodged after seven days of the occurrence for no plausible explanation. At no point of time earlier the informant claimed that she can identify the accused. Police arrested the accused persons immediately after lodging of the F.I.R. and in any case within two months of the occurrence, but no T.I. parade was conducted. We understand that T.I. parade in itself may not be a substantive piece of evidence and in an appropriate case non-holding of the T.I. parade may not prove fatal to the prosecution, but in the facts of the present case where the occurrence took place in the dead of night between 12-01 O’clock in between the railway stations and the informant had little time to see the face of the boy who had snatched her purse and was fleeing away, there is no independent witness to the occurrence, therefore, the identification of the accused directly in the dock after more than three years would not be safe to sustain the conviction of the appellants. This gains importance in the particular facts of this case where this Court has noticed that both the I.Os. have acted irresponsibly and the second I.O. in fact implicated the appellants without their being any evident in their possession. He had not examined a single witness.

In ultimate analysis, we set aside the impugned judgment of conviction and order of sentence dated 31.01.2023 and 17.02.2023 respectively passed by learned Additional Sessions Judge-XVI, Patna in connection with Sessions Case Nos.483 of 2019/ 909 of 2019.

The appellants are acquitted of all the charges, in want of any evidence. Since the appellants are in custody, they shall be released forthwith, if not wanted in any other case.

These appeals stand allowed.

Before we part with this judgment, we would record once again that it is an unfortunate case where a murder has taken place but the actual culprit could not get punishment. In the case of State of Gujarat versus Kishanbhai and Others reported in (2014) 5 SCC 108 (paragraphs ‘19’, ‘22’ and ‘23’), the Hon’ble Supreme Court has taken note of this aspect of the matter while acquitting the accused in a murder case. We reproduce paragraphs ‘19’, ‘22’ and ‘23’ hereunder for a ready reference:-

We are of the opinion that the manner in which the two I.Os. (PW-6 and PW-7) have conducted the investigation of this case and they were able to take approval of the senior officers for filing the charge-sheet would be required to be reviewed by a team of senior police officers.

We direct the Director General of Police, Bihar to constitute a three members committee of senior police officers of repute to take a view on the manner in which the investigation was done by the two I.Os. and based on that report take an appropriate view of the matter in administrative side within a period of three months from the date of receipt/production of the copy of this Judgment.

The action taken in this regard be informed to the appellants. The appellants shall be at liberty to pursue the matter.

Let a copy of this judgment together with the records of Trial Court be sent down to the learned Trial Court.

A copy of the judgment be also sent to the office of the Director General of Police, Bihar.