2008 Supreme(Pat) 680

PATNA HIGH COURT
Mridula Mishra and Shailesh Kumar Sinha JJ.
State Of Bihar
Versus
Bahadur Yadav
Death Reference No. 2 of 2006 ;
Criminal Appeal No. 111 of 2006 ;
Criminal Appeal No. 167 of 2006 ;
Criminal Appeal No. 179 of 2006 ;
Decided On : MAY 9, 2008

Non-examination of the Investigating Officer has caused prejudice to the case of defence and an inference can be drawn against the prosecution that the Investigating Officer was not produced in spite of the fact that he was within easy reach of the prosecution and the witness was in a position to give relevant and material evidence.

Headnote:

CRIMINAL APPEAL - MURDER - SECTION 302/34 AND 379 OF THE INDIAN PENAL CODE - CONVICTION AND SENTENCE - DEATH REFERENCE - CONFIRMATION OF JUDGMENT - ISSUES - RATIO DECIDENDI - FINAL DECISION

Fact of the Case:

The prosecution case, as unfolded in fardbeyan of informant, Mahohar Paswan (P.W. 6), dated, 17th November, 1996, before the Sub-Inspector of Police, Lodipur Police Station at 09.45 p.m. is that on the same day at about 06.45 p.m., the informant, Manohar Paswan, was returning to his house. He saw a crowd near Cooperative Bhawan and also came to know that his brother, Shaligram Paswan (deceased) has been apprehended by Constables. He asked one of the Constables, Bahadur Yadav, as to why his brother has been arrested, but no reply was given by him. Shaligram Paswan, who was in custody of Police Constables, told him that his rupees three hundred have been snatched by these Guards. The informant asked Bahadur Yadav and other Guards to get his brother free. On this, the Guard told him that since his brother has made allegation of snatching of rupees three hundred by them therefore, they would not let him free rather he will be produced before "Bada Babu". The informant, thereafter, returned to his house telling the Constables that if they do not want to let his brother to go, he himself will meet the Officer-in-Charge when he comes. The informant returned to his house and after changing dress, again, proceeded for Cooperative Bhawan to see his brother. When he had moved a little distance ahead of his house, he met co-villager, Gainu Paswan (P.W. 2). Gainu Paswan informed him that a Jawan of Home Guard, who is bald headed, has shot dead his brother and his dead body is lying in front of Cooperative Bhawan.

Finding of the Court:

The Counsel for the Appellants has drawn my attention towards the Order, dated, 22nd August, 2005, passed by the Trial Court. During the pendency of trial a petition was filed by the prosecution under Section 311 of the Criminal Procedure Code for examining the Investigating Officer in the interest of justice. No objection was raised on behalf of Appellants, Bahadur Yadav and Ram Bilash Mandal but the objection was raised on behalf of Appellants Arbind Kumar Rai and Medi Paswan. Submission of the Public Prosecutor was also before the Trial Court that Investigating Officers examination is necessary to prove certain documents. Judge of the Trial Court was also of this view that examination of Investigating Officer was essential for the just decision of the case as examination report of rifle, inquest report, duty register and seizure list and also the application for the test of rifle in the hand writing of the Investigating Officer are already on record, as such, Investigating Officers examination is essential. In spite of that Investigating Officer was not examined and all these documents were proved by P.W. 8.

Issues: 1. Whether the non-examination of the Investigating Officer has caused prejudice to the case of defence? 2. Whether the Trial Court has totally over looked rather ignored the statement under Section 313 of the Criminal Procedure Code? 3. Whether the evidence on record indicates that it is not a case which come within the category of rarest of rate cases?

Ratio Decidendi: 1. In the present case wherein even the Trial Court was of the view that for just decision, examination of Investigating Officer is essential, an adverse inference can be drawn against prosecution. Investigating Officer was an important witness in the present case as on his evidence the life of an accused was hanging in balance. Due to non-examination of Investigating Officer, a part of crucial evidence has been screened from Courts scrutiny. In such case it is very unsafe to sentence an accused the extreme penalty. 2. The object of examination under Section 313 of the Criminal Procedure Code is to give the accused an opportunity to explain the case made against him and that statement can be taken into consideration for judging guilt or innocence of the accused. 3. The evidence, in the present case, shows that there was only one fire. It was not repeated though all other accused were also armed with rifle. Exh. "A" shows that the firing was made with an intention to scare the mob assembled at the place of occurrence for the safety of the Government property, like arms. So far the injury caused to the deceased, it was accidental. The evidence of the witnesses is that the barrel was put on the neck of the deceased and fired but that has not been corroborated by the medical evidence as no blackening or charring had been found at the entry point of the injury. The evidence of the witnesses also does not show that any of the accused exhorted for shooting.

Final Decision: 1. Death Reference No. 2 of 2006 is dismissed. 2. The conviction of Appellants, Bahadur Yadav, Arbind Kumar Rai and Ram Bilash Mandal needs interference. So far conviction under Section 302/34 of the Indian Penal Code is concerned, it is modified and they are convicted under Section 304 part II of the Indian Penal Code. Conviction under Section 379 of the Indian Penal Code is confirmed. The Appellant, Bahadur Yadav, is in custody since the date of occurrence. Other accused Appellants have also remained in custody for a considerable long time, as such, the sentence is modified to the period already undergone by the Appellants. They are discharged from the liability of their bail bonds. 3. Criminal Appeals No. 167 and 179 of 2006 are dismissed. 4. The conviction of Appellant, Medi Paswan, under Section 302/34 of the Indian Penal Code is set aside. He is acquitted of the charge under Section 302/34 of the Indian Penal Code, but his conviction under Section 379 of the Indian Penal Code is affirmed. The Appellant has remained in custody for more than 14½ months, he is aged about 80 years, as such, he has undergone his period of sentence for conviction under Section 379 of the Indian Penal Code. He is discharged from the liability of the bail bond. This Appeal [Cr. Appeal No. 111 of 2006 (D.B.)] is partly allowed.