Vijay Sah and Another vs State of Bihar

Sadanand Mukherjee, J.—These appeals arise out of the common judgment passed in Sessions Trial No. 73 of 1998/ 381 of 1998 from Mushrigharari P.S. Case No. 42 of 1997 under Sections 364, 320, 201 and 120B of the Indian Penal Code, wherein and whereunder, the learned Additional Sessions Judge, Samastipur convicted accused-appellant Siya Ram Sah and Anil Kumar Rai under sections 364, 302 and 120B of the Indian Penal Code and further convicted accused Vijoy Sah and Sukhdeo Sah under Sections 302 and 120B of the Indian Penal Code and sentenced the accused-appellant Vijoy Sah and Sukhdeo Sah to undergo R.I. for life and further sentenced Anil Kumar Rai and Siya Ram Sah for rigorous imprisonment of life under sections 302 and 120B of the Indian Penal Code, sentenced both Anil Kumar Rai and Siya Ram Sah also to undergo rigorous imprisonment for ten years for the offence u/s 364 of the Indian Penal Code. All the sentences were to run concurrently.

It is relevant to mention here that accused-appellant Vijoy Sah and Sukhdeo Sah have preferred Criminal appeal which has been registered as Criminal Appeal No. 152 of 2001, Siya Ram Sah Criminal Appeal No. 158 of 2001, Anil Kumar Rai Criminal Appeal No. 191 of 2001. Earlier both the Sessions trial were amalgamated. It may not be out of place to mention that witnesses, namely, Surendra Sah (P.W. 2), Ashok Sah (P.W. 3), Shankar Sah (P.W. 4) were repeated both in Sessions Trial No. 73 of 1998 as well as 381 of 1998. Thereafter in view of amalgamation there is no repetition in the deposition of the witnesses.

The prosecution case is that on the basis of fardbeyan (Ext. 2) of Devendra Sah (P.W. 5) the case was registered against the accused persons named above. It is alleged that on 16.5.1997 at 10.30 PM Devendra Sah, the informant alongwith his younger brother Suresh Sah (deceased) were sitting at their Tea shop which was situated near flour mill at Rahimpur Radauli Chak. In the meantime, Suraj Sah went to purchase Ration articles from the grocery shop of Bhola Sah situated towards south. When Suraj Sah did not return, the informant Devendra Sah proceeded to find him out and saw his brother Suraj Sah (deceased) coming with a polythene bag containing ration articles. Suddenly a white coloured Maruti Van stopped near Suraj Sah from which two persons came out and caught hold of Suraj Sah and forced him to board the Maruti Van. The informant found the Maruti Van rushing towards north with high speed. The deceased Suraj Sah raised alarm, upon which the informant too started raising alarm and followed the Maruti Van alongwith others. The informant had identified accused Shyam Sah and Siya Ram Sah who had caught hold of Suraj Sah and used fear and force to compel him to enter into the Maruti Van. Other persons including the driver (accused Anil Kumar Rai) were also in the Maruti Van. The informant alongwith his villagers Surendra Sah, brother-in-law (Bahnoi) Shankar Sah who were sitting with others at his shop started chasing the Maruti Van and thereafter informed the town police, Samastipur orally.

They further proceeded to search out Suraj Sah. In course of search it came to the knowledge of the informant that a Maruti Van with dead body alongwith its driver had been caught and brought to Samastipur police station. Thereafter, the informant alongwith others came to the Samastipur police station where dead body of the younger brother of the informant with blood stains at the back seat of the Maruti Van bearing registration No. DNH 2460 were found and further it was found that the dead body was tagged with rubber bit, ration articles i.e., flour, grams and other articles purchased by Suraj Sah had been found scattered beside the dead body in Maruti Van. Blood and pieces of flesh were also found in the Maruti Van. The driver of the Maruti Van gave his name as Anil Kumar Rai. He also disclosed that the said Maruti Van belongs to one Umesh Rai, owner of the Maruti Van, who had good relationship with accused Shayam Sah (since declared absconder).

The prosecution case further is that there is land dispute between the informant and accused Shyam Sah, Vijoy Sah, Sukhdeo Sah, Siya Ram Sah as well as Yogendra Sah and the occurrence has taken place pursuant to conspiracy.

Fardbeyan (Ext. 2) was recorded by the A.S.I. Town Police Station Samastipur on the next day, i.e., 17.5.1997 at 6 A.M. (Morning) at the Town P.S. Samastipur. On the basis of the aforesaid fardbeyan (Ext. 2) of the informant, Mushrigharari P.S. Case No. 42 of 1997 dated 17.5.1997 under sections 364, 302, 201 and 120B of the Indian Penal Code has been registered. After drawing up the formal F.I.R. investigation was started and at the first instance charge sheet was submitted against accused Anil Kumar Rai, whereupon, cognizance was taken and consequently the case was committed to the Court of Sessions, and Sessions Trial No. 73 of 1998 had been registered. Thereafter, charge sheet against the remaining three accused persons, namely, Vijoy Sah, Sukhdeo Sah and Siya Ram Sah have been submitted. Cognizance having been taken, the case was committed to the Court of Sessions, for which Sessions Trial No. 381 of 1998 has been registered. Accused Shyam Sah was declared absconder. Both the Sessions Trial Case No. 73 of 1998 and Sessions Trial No. 381 of 1998 were amalgamated into one case and the trial thereafter proceeded as one case after amalgamation.

In this case Vijoy Sah, Siya Ram Sah and Sukhdeo Sah had been charged with offences under sections 364, 302, 201 and 120B of the Indian Penal Code. Similarly, accused Anil Kumar Rai, has also been charged with offences under sections 364, 302,201 and 120B of the Indian Penal Code.

The defence case is that both the accused, namely, Sukhdeo Sah and Vijoy Sah was having previous land dispute with the informant and they had been falsely implicated in this case. The defence of all the accused persons is that they have been falsely implicated in this case. It appears that the defence has further indicated that this is a case of accident.

The learned trial Judge found direct evidence against accused Siya Ram Sah, Anil Kumar Rai with regard to kidnapping of Suraj Sah (the deceased) alongwith others using a Maruti Van of white colour bearing registration No. DNH 2460 in committing murder of the deceased. The learned Additional Sessions Judge also found that there is sufficient circumstancial evidence on the record that due to land dispute both Vijoy Sah and Sukhdeo Sah in conspiracy with accused Siya Ram Sah, Anil Kumar Rai, Shayam Sah (absconder) and others had committed murder of Suraj Sah after kidnapping him on the date and time of the occurrence.

It is to be seen whether on the basis of materials on records the judgment of sentence of the learned 3rd Additional Sessions Judge, Samastipur is liable to be sustained.

On the basis of material on records the learned A.P.P. has fairly conceded that in respect of accused Vijoy Sah and Sukhdeo Sah there is no cogent or reliable material on the records except that of enmity due to land dispute. It is apparent from perusal of materials on record that the conviction of these two accused persons has been mainly based on the motive of prevailing land dispute, although there is no direct evidence on record regarding commission of offences of kidnapping and murder by these accused persons.

In this regard it is worthwhile to discuss the evidence of the prosecution witnesses. The prosecution has examined altogether nine witnesses. P.W. 6 is the informant himself who is an eye witness on the point of occurrence. P.Ws. 3 and 4 are said to be eye witnesses. P.W. 5 was not a witness on the point of occurrence but with his help accused Anil Kumar Rai was caught with the Maruti Van bearing registration No. DNH 2460 in which the dead body of the deceased Suraj Sah was found. P.W. 1 and P.W. 2 who are grocery shop owners are said to be eye witnesses, turned hostile. P.W. 7 Dr. Amirul Hoda performed post mortem on the dead body of Suraj Sah. P.W. 8 Chandradip Rajak is the Investigating Officer who had investigated the case. P.W. 9 Kameshwar Bhagat, a formal witness, has proved the formal F.I.R. (Ext. 5).

The defence has examined three witnesses, namely, D.W. 1 Jagdanand Choudhary, a formal witness, who has proved the memo of Title Appeal No. 36 of 1996 (Ext. A) , D.W. 2 Sita Ram Prasad, also a formal witness, who has proved legal notice (Ext. B) and D.W. 3 Dinesh Jha, who is also a formal witness, has proved a registered Ekrarnama dated 17.7.1989 (Ext. D).

P.W. 1 Bhola Sah is the owner of the grocery shop. He has stated that Suresh Sah (the deceased) had come to his shop and purchased grocery items. After some time he heard noise. He rushed to the place of occurrence and found Suresh Sah (the deceased) missing. He has been declared hostile. Although he has stated about purchase of grocery items by Suresh Sah (the deceased) before the occurrence, his evidence does not support the prosecution case regarding kidnapping of the deceased.

P.W. 2 Surendra Sah whose name occurred as witness of the occurrence also had turned hostile and he has denied having stated before the police having seen kidnapping of the deceased by the accused persons. This witness also has turned hostile. Therefore, the evidence of this witness does (sic--not?) support the prosecution case in its material particular.

P.W. 3 Ashok Sah, the full brother of the deceased has been examined as P.W. 3 in Sessions Trial No. 73 of 1998 and as P.W. 4 in Sessions Trial No. 381 of 1998, however, has been referred to as P.W. 3 in the trial court judgment. P.W. 3 Ashok Sah who is said to be an eye witness of this occurrence, has stated about the occurrence that on the date and time of occurrence he was at the tea shop of the deceased. He had seen the deceased going out from his shop for purchasing ration items but the deceased did not return. This witness alongwith Devendra Sah (P.W. 6) and others went out to see Suraj Sah and he had seen accused persons both Shyam Sah and Siyaram Sah taking away the deceased by white coloured Maruti Van. This witness alongwith the informant and others chased the Maruti Van and they informed the police. He has further stated that the said Maruti Van used for kidnapping of the deceased was found alongwith its driver at Samastipur police station. His further evidence is that he found the dead body and the driver inside the Maruti Van at the police station. At night they returned to their village and in the morning they reached the police station and fardbeyan of the informant was recorded in the morning. It further appears from the evidence of P.W. 3 that this witness, Devendra Sah, the informant and Shankar Sah, brother-in-law of the deceased had chased the Maruti Car and had informed the police that his brother has been abducted and thereafter he learnt that the aforesaid Maruti Van had been caught and kept at the police station. The driver of the car had stated about ownership of the car, owner of the car being Umesh Rai who is friend of accused Shayam Sah.

P.W. 4 Shankar Sah who is brother-in-law of Suraj Sah (the deceased) had also stated about kidnapping of Suraj Sah (the deceased) in his evidence. He has stated that 3 to 4 persons had dragged the deceased inside the car and he also identified Shayam Sah and Siyaram Sah. He also supports the version of P.W. 3 that the car was chased and further he has stated that in the night itself they had informed the police about kidnapping. His evidence further goes to show that they having learnt about recovery of Maruti Car had gone to the police station and found the dead body, Maruti car and the driver at the police station.

Among the eye witnesses P.W. 6 is the informant Devendra Sah who has supported his fardbeyan in his examination-in-chief. He is the most important witness in this case as he is the informant. He had seen the kidnapping of deceased who is his full brother alongwith other witnesses when Suraj Sah was returning after purchase of grocery items in polythene bag. His evidence is that he had seen two accused persons coming out from the car and dragging Suraj Sah inside the car. In his fardbeyan he had identified both Shyam Sah and Siyraram Sah, but in his evidence he had identified only one person and he has stated that apart from two persons who had dragged the deceased there were other persons in the Maruti Van. He has stated about the story of chase of the Maruti Van by Shankar Sah (P.W. 4), Surendra Sah (P.W. 2) and others in the night itself. He has also stated that in the night itself the police was informed and after information given to the police they had gone out for search of the deceased and in the meantime having learnt that one Maruti car with dead body was lying at the police station, they came to the police station and found the deceased Suraj Sah tied at the back seat with rubber bit. The informant (P.W. 6) also found profuse bleeding from the injury of the deceased. This witness has stated that the occurrence was a result of conspiracy in which Shyam Sah, Yogendra Sah, Vijoy Sah, Sukhdeo Sah, Umesh Rai and Anil Kumar Rai had taken part as there was land dispute between Shyam Sah, Yogendra Sah, Vijoy Sah and Sukhdeo Sah with informant and the deceased. He has deposed that at the police station the driver Anil Kumar Rai had stated that the owner of the Maruti Van, namely, Umesh Rai would be knowing about the details of other accused persons. The informant has also indicated that there was good relationship between Umesh Rai and Shyam Sah. In his cross-examination this witness has clearly indicated that he had not seen accused Siyaram Sah dragging the deceased inside the car but he had seen Shyam Sah. He has stated about land dispute with Yogendra Sah who happens to be the father of accused Vijoy Sah. However, this witness in his cross-examination has supported the incident but he has denied that he had ever stated the name of Siyaram Sah the accused before the police rather he has categorically stated that he had stated the name of Shayam Sah before the police. It may by repeated here that accused Shyam Sah is absconding. The evidence of this witness has given a death blow to the prosecution case as he has not identified the main accused in the case, namely Siyaram Sah.

P.W. 3, P.W. 4 and P.W. 6 are the witnesses on the point of kidnapping. There is no denying the fact that there is no witness in this case who had seen commission of murder rather the defence has advanced the theory of accident by pointing out the injuries on the person of the deceased which is being discussed hereinafter. Although P.W, 3, P.W. 4 and P.W. 6 are eye witnesses who had claimed to have informed the police at Samastipur police station, but they had denied that F.I.R. was lodged in the night. They had seen the dead body of the deceased in the Maruti car at the police station in the night itself but F.I.R. was lodged at the police station in the morning at 6 A.M. on the next day, i.e., 17.5.1997. This is a vital omission which discredits the prosecution. P.W. 6 the informant did not identify the main accused, namely, Siyaram Sah whom he named in the fardbeyan.

Thus, there appears to be vital contradiction in the evidence of the informant with reference to his fardbeyan and the informant is the main witness in the case has contradicted both P.W. 3 and P.W. 4 who had supported the case of kidnapping by both Shyam Sah (absconder) and Siyaram Sah.

In this context the factum of information lodged before the police and the investigation taken up by the Investigating Officer (P.W. 8) is a matter which need be taken into consideration during appraisal of evidence. P.W. 8 Chandradeo Rai the I.O. of Police Station Mushrigharari received the fardbeyan of Devendra Sah, the informant from Samastipur police station on 17.5.1997. He had inspected the place of occurrence and had given the description of place of occurrence, seized the Maruti Van bearing registration No. DNH 2460 from Samastipur police station. He had found blood, flour, gram scattered on the foot steps of Maruti Van of white colour. He brought the driver alongwith Maruti Van to Mushrigharari police station as the place of occurrence falls within the jurisdiction of Musharigharari. It is worthwhile to note that although it is stated by the aforesaid witnesses that Samastipur police station was informed at night but no information has been lodged and it was only in the morning that the fardbeyan was lodged at the Samastipur police station. Thus, the delay on the part of the prosecution in recording the F.I.R. has not been explained in the instant case. No police officer of Samastipur P.S. has been examined to indicate that at night itself the information was given by the witnesses and there is no denial of the fact that this Maruti Van was caught and brought to the Samastipur Police Station alongwith the dead body in the night. In this connection it may be mentioned that P.W. 5 is not an eye witness to the incident but vital witness on the point of seizure of Maruti Van at village Mathurapur at 10.30 A.M. On the date and time of the occurrence when the Maruti Van was coming speedily at his village while a ''Barat party'' was passing, at that point of time this witness had seen that the break of Maruti Van had suddenly failed as a result of which the dead body from the back portion of the said Maruti Van came out and he alongwith others had caught the said driver from his Maruti Van. The other persons chased the Maruti Van which was fleeing away taking advantage of the crowd of a Barat party on the way. The driver was caught and accused driver Anil Kumar Rai was handed over to the police. P.W. 5 identified Anil Kumar Rai, the accused in the dock who was caught with white coloured Maruti Van. It was in his presence that the inquest report was prepared by the police. The police arrived and took charge of Maruti Van. So far seizure of Maruti Van alongwith driver is concerned, there appears to be no contradiction. The seizure list (Ext. 4) had been proved by the I.O. It appears that so far as inquest report is concerned, P.W. 5 has stated that the inquest report was prepared in his presence. It is worthwhile to note that the said inquest was prepared at Samastipur police station. P.W. 5 is the witness to the inquest but the report of inquest has not been exhibited in this case. P.W. 5 had not identified any of the accused persons except driver Anil Kumar Rai. It appears that the prosecution has not pursued the investigation in proper manner. The prosecution has not cared to prove the inquest report as an exhibit and the investigation proceeded in a slipshod manner.

The defence has taken a plea that this is a case of accident. In this connection the medical evidence deserves to be taken into consideration. P.W. 7 examined the dead body on 17.5.1997 at Samastipur Sadar Hospital and found the following ante mortem injuries and post mortem injuries:--

(1) The following were the ante mortem injuries:--

(a) Loss of 4th paretial bone, occipital bone with loss of brain matter and vipress fracture of frontal bone 7" x 5" x brain cavity deep. Blood was mingled with hair and clotted.

(b) Multiple bruise and abrasion of different size and shape of chest with fracture of 7th and 8th ribs on left side and fracture of 8th and 9th ribs on the right side all organs were pain, heart was empty.

There were however several post mortem injuries of bruises, lacerations and abrasions.

The post mortem report has been proved as Exhibit-3.

It is important to note here that there was only two ante mortem injuries, whereas, several post mortem injuries. It appears from perusal of the post mortem report that it has been opined by the doctor that the cause of death was shock and haemorrhage caused by above mentioned ante mortem injuries by hard and blunt substance such as rod, hammer etc. and fracture. It appears that the post mortem injuries have occurred due to dragging. The defence has taken advantage of post mortem injuries indicating that death was caused by an accident.

Be that as it may, the evidence of the prosecution should prove the prosecution case on its own and it is well settled that in such cases the court would be justified in separating chaff from the grains and then act upon the grain, but in this case the grain and chaff is so intermixed that it is difficult to separate the grain from the chaff.

In the connection it is worthwhile to notice the evidence of the defence witnesses and the defence documents are mainly on the point of enmity between the parties. Accused Vijoy Sah and Sukhdeo Sah have been made accused in this case but no evidence can be found against them. It appears that the prosecution has not been able to prove the case of conspiracy against these accused persons. It has already been indicated that none of the eye-witnesses had named accused Vijoy Sah to be among the persons who were in the Maruti Car.

In this connection defence has led evidence by examining three witnesses. Ext. A is memo of appeal of Title Appeal No. 33 of 1996 pending in the court of District Judge, Samastipur which is between father of accused Vijoy Sah and Sukhdeo Sah against the informant and others. The father of accused Siyaram Sah relinquished his claim over the land which is subject matter of dispute in between the parties to the father of the informant through Ext. D ''Ekrarnama Ladvi'' while trial of the case was going on. Although trial court has explained this document to the advantage of the prosecution, in no way, the prosecution case is strengthened by this relinquishment deed as the informant has denied participation of accused Siya Ram Sah in the occurrence, the prosecution has to prove their own case, and in view of the discussion above, prosecution cannot seek the aid of defence document to show the mala fides of its key-witness, i.e. the informant in controverting the prosecution at a subsequent stage. Ext. B is legal notice sent by Yogendra Sah, father of accused Vijoy Sah, Sukhdeo Sah to prove enmity between the parties. The aforesaid legal notice had been sent demanding consideration amount of the sale deed executed by Yogendra Sah in favour of Jangilal Sah. Ext. C is registration receipt through which legal notice Ext. B had been sent. Thus, all the aforesaid D.Ws. 1, 2 and 3 are formal witnesses.

The aforesaid discussions on the evidence in this case clearly indicate that although the prosecution has advanced the cause and motive behind the occurrence in the commission of murder of Suraj Sah being land dispute between the parties, i.e., between Vijoy Sah and Sukhdeo Sah on the one hand and family of the deceased on the other, but the case of conspiracy has not been established by any reliable or cogent evidence nor motive has been proved although there appears to be some evidence against accused Anil Kumar Rai who was caught with white coloured Maruti Van where the dead body was found but in absence of reliable evidence on the point of kidnapping and murder and since the role of other accused persons has not been established by the prosecution the conviction of accused Anil Kumar Rai cannot be sustained independently of other co-accused as the case against accused Anil Kumar Rai also has not been proved by the prosecution beyond reasonable doubt. In this case, grain and chaffs are so inter mixed that this Court would not be justified in separating grains from the chaff on the face of omissions and contradictions in the evidence discussed above.

In the aforesaid facts and circumstances of the case the prosecution has not been able to prove the case beyond reasonable doubts. Accordingly, the conviction and sentence on the appellants. Vijoy Sah, Sukhdeo Sah, Siyaram Sah and Anil Kumar Rai are set aside. The accused Anil Kumar'' Rai is in jail custody, therefore, we direct that the appellant Anil Kumar Rai be set at liberty forthwith unless not required in any other case. The accused-appellants Vijoy Sah, Sukhdeo Sah and Siyraram Sah were on bail. Their bail bonds are ordered to be discharged.

These appeals are allowed accordingly.

Manohar Lal Visa, J.

I agree.