Rudal Sahni vs The State of Bihar

SL.NO.,Name,"Appellant No. in Cr.App.DB

No.",Carrying

,,,in hand

1.,Prasadi Sahni,A2 in 110 of 2016,Pistol

2.,Mishri Sahni,App. in 32 of 2016,Pistol

3.,Ashok Ram,A2 in 7 of 2016,Lathi

4.,Nago Sahni,A3 in 7 of 2016,Lathi

5.,Shankar Sahni,A2 in 7 of 2016,Lathi

6.,Sukho Sahni,"Not tried, All 1 to 6 resident of

village Newdarganj, PO + PS -

Lakhisarai.",

7.,Rudal Sahni,"A1 in 110 of 2016, R/o vill. Tartar

(Mokama),� Patna�

presently� r/o Newdarganj,

Lakhisarai.",Katta

chargesheet, on the same date i.e. 29-11-2007, the learned Magistrate took cognizance of the offence and thereafter, the case of Ashok Ram (A1",,,

in Cr.App.DB No. 7/2016) was committed to the court of sessions on 18-02-2008 and thereafter it was numbered as Sessions Trial No. 287 of,,,

2008. Subsequently, charge against Ashok Ram (A1 in Cr.App.DB No. 7/2016) was framed on 01-05-2008. However, subsequently",,,

supplementary chargesheet against remaining six accused, including one Sukho Sahni (not tried) was submitted on 31-05-2009 showing all the",,,

chargesheeted accused persons as absconder. After submission of chargesheet, on 23-11-2009, all the appellants, except Ashok Ram (A1 in",,,

Cr.App.DB No. 7/2016), surrendered in the court and they were taken into custody. It is clarified that before surrender of five appellants, against",,,

Ashok Ram (A1 in Cr.App.DB No. 7/2016) chargesheet was already submitted and his case was committed to the court of sessions. The case of,,,

remaining five appellants was committed to the court of sessions on 10-06-2011 and thereafter, on 25-08-2011, jointly charge was framed against",,,

appellant Nago Sahni (A3 in Cr.App.DB No. 7/2016),� Shankar� Sahni� (A2� in� Cr.App.DB� No.� 7/2016), Mishri Sahni",,,

(Appellant in Cr.App.DB No. 32/2016), Rudal Sahni (A1 in Cr.App.DB No. 110/2016) and Prasadi Sahni (A2 in Cr.App.DB No. 110/2016)",,,

for commission of offence under Sections 302/34, 302 of the I.P.C. and Section 27 of the Arms Act. After charges were framed, on two dates",,,

firstly against Ashok Ram (A1 in Cr.App.DB No. 7/2016), which was framed on 01-05-2008 and remaining accused on 25-08-2011, the",,,

prosecution started to examine witnesses and for the first time, P.W.1 Baliram was examined as witness on 6th February, 2012.",,,

The prosecution, to establish its case during trial, examined altogether 8 (eight) witnesses. Out of eight witnesses:",,,

�P.W.4 Divakar Kumar, brother of the deceased and P.W.7 Prabhakar Kumar (informant & another brother of the deceased) were examined",,,

as eye-witnesses,",,,

P.W.1 Baliram, P.W.3 Ajay Singh and P.W.6 Ram Pravesh Singh, who were co-villagers, were examined as hearsay witnesses.",,,

P.W.2 Rajnarayan Singh is a formal witness, who had proved the inquest report, which was marked as Ext. 1 and dead body challan, which was",,,

marked as Ext. 2.,,,

P.W.5 Nandan Kumar is also a formal witness, who has proved his signature on inquest report, which was marked as Ext. 1/B and he had also",,,

claimed to identify the deceased on the basis of cloth i.e. one gamachha (xeNk), which was found on the dead body.",,,

P.W.8 Dr. Atul Kumar Mallick on 11-09-2007 was posted as Professor, Forensic Science Department, Jawaharlal Nehru Medical College and",,,

Hospital and he has examined remains of the so called dead body and he proved its report, which was marked as Ext.5. During trial, the",,,

prosecution had not produced investigating officer and as such, in absence of investigating officer, the case had proceeded and concluded.�",,,

Sri Kanhaiya Prasad Singh, learned senior counsel appearing on behalf of appellants in aforesaid appeals, after referring to entire evidence, has",,,

argued that the prosecution case appears to be not probable, particularly; in view of the fact that though informant (P.W.7) and P.W.4 Divakar",,,

Kumar, who were own brother of the deceased, had claimed to have witnessed entire occurrence, on so called time and date of occurrence i.e.",,,

6:30 PM on 01-09-2007, without any rhyme and reason on the next date of the occurrence i.e. on 02-09-2007 at about 2:00 PM, instead of",,,

giving fardbeyan, had filed a written report before the officer incharge of the police station, in which, he had claimed that he had seen the",,,

occurrence. Sri Singh submits that the conduct of the informant appears to be not natural. According to him, if own brother of the informant was",,,

done to death in his presence, in normal course, he would have immediately rushed to the police station, but for the whole night, he kept himself in",,,

his house and on the next date, he went to the police station and filed written report. He further submits that entire prosecution case has come into",,,

cloud of doubt, since in the case, prosecution has not been able to establish place of occurrence, that too in absence of investigating officer. He",,,

submits that the so called inquest report as well as report of the doctor (P.W.8) also create serious doubt on the prosecution case. It has been,,,

argued that though according to the informant, occurrence had taken place in the evening on 01-09-2007, a completely decomposed body was",,,

shown to be recovered from the side of the river after three days from the date of the occurrence. At this stage, he has referred to the evidence of",,,

P.W.2 Rajnarayan Singh, who was a police official and had prepared inquest report. He submits that in his evidence, the P.W.2 has deposed that",,,

he had virtually prepared inquest in respect of a skeleton. It has been argued that within three days of the so-called occurrence, it was impossible",,,

to notice skeleton. At least decomposed dead body was required to be seen by the police official, but in his evidence, he stated that he had",,,

prepared inquest of a skeleton. Sri Singh has further argued that prosecution has miserably failed to establish regarding identification of the dead,,,

body. He submits that in the case, witnesses have come forward to identify the deceased by means of identifying a gamachha, which was wrapped",,,

on the neck of the dead body and under-garment of the deceased. He submits that it is improbable that a dead body can be identified by third,,,

person only with such type of cloth, which is commonly used by all the persons, otherwise no other cogent evidence was shown for identification of",,,

the dead body of the deceased. He further submits that the informant in his evidence has stated that after the occurrence in the same evening at,,,

about 9:00 PM, he informed his parents, who were at the relevant time in Delhi on a mobile phone, but he had not taken any pain to inform the",,,

police even on mobile. This is quite unnatural. On aforesaid grounds, it has been argued that prosecution has miserably failed to establish its case",,,

beyond all reasonable doubt. He has also by way of referring to Ext. 5 i.e. report of P.W.8 Dr. Atul Kumar Mallick in respect of remains of the,,,

dead body submits that though in the inquest report, it was disclosed that skeleton was recovered, but at the time when remains were received by",,,

P.W.8, these were kept in a wooden box in number of pieces. Besides this, on the bones of the so called deceased, no mark either fire-arm or any",,,

mark was noticed by P.W.8. Even on the basis of such remains, it was difficult to come to the conclusion that as to whether the skeleton was of",,,

male or female and this was the reason that P.W.8 had anatomically examined bones and thereafter, he had come to the conclusion that the bones",,,

were of a male person and in vague manner, age of the dead body was shown. On aforesaid ground, it has been argued that prosecution has not",,,

proved its case beyond all reasonable doubt, rather it was completely a case of false implication.",,,

Sri Mayanand Jha, learned Addl. Public Prosecutor, opposing the appeals, has argued that in the case, occurrence was witnessed by two",,,

persons, who were none else but brother of the deceased. By way of referring to evidence of P.W.4 and P.W.7, it has been argued that there is",,,

no inconsistency in the evidence and as such, the learned Trial Judge has rightly passed the judgment of conviction and sentence.",,,

Besides hearing learned counsel for the parties, we have minutely examined the entire materials available on record and after going through the",,,

same, prima facie, we are of the opinion that prosecution has not proved its case beyond all reasonable doubt. Before proceeding, it would firstly",,,

be necessary to examine the evidence of P.W.7, who is none else but own brother of the deceased and informant of the case.",,,

In his evidence, P.W.7 stated that on the date and time of occurrence i.e. 6:30 PM on 01-09-2007, he alongwith his brother Divakar Kumar",,,

was returning from Lakhisarai to his village and when he reached Gorhitola, then he noticed that his brother Kamlakar Kumar @ Chintu Singh was",,,

moving ahead of them and he was intercepted by all the aforesaid appellants, who were armed with pistol, katta & lathi and thereafter, he (Chintu)",,,

was assaulted by Ashok Ram by means of lathi. The said assault was given by lathi on his head, whereafter, he fell down. The accused persons",,,

subsequently by dragging him taken to northern side and loaded him on a boat. Subsequently, his brother while tried to oppose, Prasadi Sahni (A2",,,

in Cr.Appeal DB No. 110/16) gave shot from pistil, Rudal Sahni (A1 in Cr.Appeal DB No. 110/16) gave katta blow on his neck, whereby his",,,

brother fell down and died. The accused persons by using filthy language said that the victim had died and they decided to divide the dead body in,,,

pieces and to throw it in the river. After witnessing all the occurrence, the informant with his brother P.W.4 returned back to his village and after",,,

two hours with villagers, he again arrived at the place of occurrence, but no trace of his brother was found and on the next date, he went to the",,,

police station and got an application written by another person, which was read by him and thereafter he put his signature. He also identified his",,,

signature on the written report, which was marked as Ext. 1. In his cross-examination in paragraph 3, he disclosed that the report was written by",,,

one Neeraj Kumar, however; without any explanation, the said Neeraj Kumkar was not examined as a witness, whereas, P.W.7 in paragraph 15",,,

has categorically stated that he is literate and he had studied up-to Intermediate, but no reason has been assigned as to why the written report was",,,

prepared by another person. In paragraph 26 of his cross-examination, he deposed that at the time of occurrence, his mother and father were not",,,

in the village and in his house, he informed all regarding the occurrence. He clarified that even after hearing about the occurrence, wife of Chintu",,,

(deceased) did not go to the place of occurrence nor she left the house. He further clarified that on the date of occurrence, his mother and father",,,

were in Delhi, who were informed on mobile phone on 01-09-2007 at 9:00 PM. In paragraph 31 of his cross-examination, he clarified that on 02-",,,

09-2007 at 2:00 PM, he gave written report to the police. In paragraph 33, he accepted that the wife of deceased Chintu was not produced",,,

before the police, whereas, he denied the suggestion that the informant with his another brother P.W.4 Divakar Kumar, due to dispute of partition,",,,

had killed his another brother Chintu and this was the reason that they did not produce wife of the deceased for her examination.,,,

On going through the evidence of P.W.7, this fact is clear that the informant has not given any explanation as to why on the date of occurrence,",,,

he did not inform the police, whereas, in the evening on mobile he informed his parents, who were at Delhi, regarding the occurrence and on the",,,

next date at 2:00 PM, he filed a written report before the police. Such conduct of the informant, who was own brother of the deceased, creates",,,

serious doubt in the mind of the court.,,,

Similarly, P.W.4 Divakar Kumar, who was also full brother of the deceased and informant, has deposed that he had seen the occurrence and",,,

in paragraph 23, he claimed that he identified the deceased by noticing gamachha on the dead body. However, nothing was indicated as to what",,,

was the other thing to identify the dead body, as of his brother. This witness in paragraph 56 of his cross-examination has said that his brother",,,

Chintu was involved in a murder case and he remained in jail also. This suggests that the deceased was also having criminal antecedent. P.W.4 has,,,

also proved his signature on the inquest report, which was marked as Ext. 1/A.",,,

Accordingly, on examination of evidence of two so called eye-witness, one thing has not been clarified by the prosecution as to why after",,,

noticing the occurrence on 01-09-2007 at 6:30 PM, they did not immediately inform the police, rather they kept themselves in the house for whole",,,

night and on the next date at 2:00 PM, written information was given by the informant side regarding the occurrence. In the case, prosecution has",,,

not given any explanation as to how within three days of the occurrence, once a dead body was recovered in completely decomposed condition,",,,

even the informant, who is own brother, was not in a position to identify the dead body, as dead body of his brother and this was the reason that",,,

P.W.4 said that he could identify the dead body only by noticing gamachha on the dead body. In such a short time, there was no reason to notice",,,

such decomposed body. There is conflict in between the evidence of inquest witness as well as evidence of doctor, who examined the remains of",,,

the dead body. Inquest witness i.e. P.W.2 has stated that it was only a skeleton, whereas P.W.8 has deposed that bones were kept in a wooden",,,

box, which was received in hospital, that too on 11-09-2007, whereas, as per the prosecution case, inquest report was prepared on 04-09-2007.",,,

No explanation has been given by the prosecution as to why the remains were received in the hospital on 11-09-2007, whereas, inquest was",,,

prepared on 04-09-2007. This again creates serious doubt on the prosecution case.,,,

At this juncture, it would be necessary to notice what was noticed by the P.W.8 Dr. Atul Kumar Mallick, who was posted in the Forensic",,,

Science Department in the hospital on 11-09-2007. P.W.8 has deposed that on 11-09-2007, he had received a sealed wooden box and on the",,,

same date, he had examined highly decomposed incomplete remains of dead body for its examination. In paragraph � 2, he stated that on",,,

anatomical examination of bones, he could notice that remains of dead body was of a human being. For the purpose of establishing sex of the said",,,

remains, he stated as follows:-",,,

��(i) Skull: Large and heavy with rough surface for muscular attachments, Glabella and fronto-nasal junction prominent, Orbits squarish with",,,

rounded margins, frontal and parietal eminences not prominent, nestroid processes large and blunt.",,,

�(ii) Mandible � Large, heavy with rough surfaces, chin squarish. Body of mandible wide, angle of mandible averted",,,

�(iii) Hip Bones- Large and heavy with rough surfaces, greater sciatic notch deep is narrow, obtuatorforamina oval, Ischial tuberosities inverted.",,,

�(iv) Sacrum- Large and heavy, long and narrow with uniform curvature all around its surface. Sacral promontory prominent, More than 2 �",,,

sacral. Vertebra form sacro-iliac articulation.,,,

�(v) Long Bones- Available lung bones large and heavy with rough surfaces and marked bending.�,,,

Again for ascertaining age, the bones were examined in following manner:-",,,

��(i) Mandible:- All 16 teeth are present. Angle of mandible is slightly more than 90�. Mental foramina are above middle of body of,,,

mandible. These features are seen beyond 30 years.,,,

�(ii) Skull � Basispohenoid and basiocciput have fused which occurs by 20-22 years. The inner table shows partial closure of suture of skull.,,,

The outer table shows initiation of closure of saggital suture in the posterior third. These features are seen within 30-35 years.,,,

(iii) Hip bones- Triradiate cartilage has completely ossified which occurs by 15 years. Iliac crests and Ischial tuberosities have fused at their,,,

respective sides, which is seen beyond 21-22 years.",,,

(iv) Sacrum- All five pieces of sacral vertebra have ossified with each other which is seen beyond 25 years of age.,,,

�(v) Long bones- Epiphysis of all available long bones have fused with their respective diaphysis which is seen beyond 18-19 years of age.,,,

�(vi) Injuries- No ante-mortem injury could be found on the available bones as well as one soft tissue at the time of preliminary examination,,,

through the soft tissues were highly decomposed.�,,,

Thereafter, the doctor assessed the age of the said body in between 30 to 35 years. In paragraph 9 of his cross-examination, he clarified that on",,,

either of the bones, there was no mark of fire-arm injury nor any injury by katta. He reiterates in his cross-examination that body was highly",,,

decomposed and it was in how many pieces, he had not written. In paragraph 14, he further clarified that the dead body was kept in box in",,,

number of pieces and all the bones were of one human being and after examination, he could not notice the reason for the death.",,,

The entire prosecution case may not be believed in its entirety in absence of investigating officer. In absence of investigating officer, the",,,

prosecution has miserably failed to establish the place of occurrence also. In absence of establishing place of occurrence, the manner of occurrence",,,

has also not been proved beyond all reasonable doubt. Though, P.W.1, P.W.3 and P.W.6, who were co-villagers, had claimed to be hearsay",,,

witness and those witnesses have deposed that they were informed by informant and P.W.4. Since the evidence of P.W.4 Divakar Kumar and,,,

informant/P.W.7 Prabhakar Kumar itself does not inspire confidence, there is no reason to place reliance on the evidence of hearsay witnesses.",,,

In view of facts and circumstances, particularly the fact that prosecution is silent on giving belated information to the police, non-explanation of",,,

proving place of occurrence, contradictions in the evidence of inquest witness, evidence of doctor, who examined remains of the dead body, and",,,

non-examination of the investigating officer, we are of the opinion that prosecution has not proved its case beyond all reasonable doubt.",,,

Accordingly, by way of extending benefit of doubt, it is necessary to interfere with the judgment of conviction and sentence in respect of appellants",,,

of the aforesaid appeals.,,,

Accordingly, the judgment of conviction dated 10.11.2015 and order of sentence dated 20.11.2015 passed by Sri Ravindra Singh, learned",,,

Additional District & Sessions Judge � II, Lakhisarai in Sessions Trial No. 287 of 2008 {arising out of Lakhisarai P.S. Case No. 420 of 2007)",,,

is hereby set aside and all the aforesaid three appeals are allowed.,,,

All the appellants are in custody and since their conviction and sentence has been set aside, they are directed to be released forthwith, if not",,,

required in any other case(s).,,,