State of Bihar vs Ram Chandra Singh - 2015 Supreme(Pat) 1415

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2015 Supreme(Pat) 1415

IN THE HIGH COURT OF PATNA
SAMARENDRA PRATAP SINGH and KISHORE KUMAR MANDAL, JJ.
(15.10.2015)
Govt. Appeal (DB) Nos. 29, 1013, 1050, 1113, 1117 with 1118 of 2007
Against the judgment of conviction dated 18.06.2007 and order of sentence, dated 7.7.2007, passed by Shri Shambhu Nath Mishra, 7th Additional Sessions Judge, Bhagalpur in Sessions Case No. 589 of 1991.
The State of Bihar (in 29)
Thakur Paswan & Anr. (in 1013)
Prabhash Mandal (in 1050) : Appellants
Ajab Lal Mandal & Anr. (in 1113)
Sukhdeo Mandal & Ors. (in 1117)
Subhash Mandal & Ors. (in 1118)
Vs.
Ram Chandra Singh
& Ors. (in 29) : Respondent
State of Bihar (in 1013, 1050,
1113, 1117, 1118)

Advocates:
For the Appellants : M/s Prashun Kumar Sinha (in 29), Ranjan Kumar Singh, Rajesh Kumar (in 1013), Ansul, Rajesh Kumar (in 1050), Ansul, Praveen Kumar, Chandra Mohan Jha (in 1113) Nihar Nandan Ambasta, Chandra Mohan Jha. (in 1117), Subodh Kumar Jha, Praveen Kumar, Chandra Mohan Jha, Nihar Nandan Ambasta, Chandra Mohan Jha (in 1118).
For the Amicus curie : M/s Niraj Kumar @ Sanidh, (in 20).
For the Respondents: M/s Ranjan Kumar Singh, Krishna Mohan, Praveen Kumar, Lal Bahadur Pandey, (in 29), Salahuddin Khan, Saurabh Kumar, (in 1013), Salahuddin Khan, Saurabh Kumar, Atiullah, (in 1050, 1113, 1117, 1118).
For the Informant : Mr. Atiullah (in 1013).

Subject

Criminal Judgement - Communal Violence

Act Referred

CRIMINAL PROCEDURE CODE : S.313
INDIAN PENAL CODE : S.380, S.153(a), S.295, S.302, S.149, S.436

Headnote

Indian Penal Code, 1860–Sections 302 and 302/149, 436, 436/149, 201/149, 380/149, 153A and 295/149–Murder–Common object of unlawful assembly–Conviction–Law does not prohibit registration and investigation of First Information Reports in respect of same incident in case versions are different–Role of Police has been suspicious inasmuch as local Chowkidar and Officer Incharge of local Police Station were made accused along with Sub-Inspector–Non-recording or non disclosure of actual place of hiding by witnesses during initial stage of investigation would not be a circumstance to deny their claim of having witnessed occurrence–This may be a case of faulty investigation which was tailored to happen–Recovery of dead bodies, remnants of huts as found by Investigating Agency and serological report conclusively proves place of occurrence–Delay in sending F.I.R. is not always fatal to prosecution case and same cannot vitiate trial–Even if corpus delicit is not found, still accused can be convicted if there is direct circumstantial evidence conclusively showing that victim had died and accused committed murder–Prosecution has not been able to elicit any material contradictions which may cast shadow on authenticity of evidence of witnesses–Conviction and sentence partly affirmed. (Paras 28, 29, 30, 32, 33, 34, 35, 39, 43, 51 and 52)

Code of Criminal Procedure, 1973–Section 313–Examination of accused–It would be unjust to expect from prosecution to put each and every circumstance or entire evidence of prosecution to accused (s) and seek their response–Procedure prescribed in law is to advance cause of justice and not to nab prosecution case–It would at best be a procedural flaw which would not vitiate trial particularly when no serious prejudice has been caused to accused (s)–Entire testimony need not to be put to accused. (Para 38)

A.IR. 1995 SC Vol-I 176; 2005 (1) PLJR 357; A.I.R. 1984 SC 1622–Referred.

2004 (4) PLJR (SC) 157; 2005 Cr.L.J. 2199; (2003) 2 SCC 518; (2001) 4 SCC 18; (2010 (3) BBCJ 01 (SC); (2001) 8 SCC 311; (2008) 16 SCC 769; (2009) 12 SCC 731; 2002 (2) PLJR (SC) 305; 1997 (1) PLJR (SC) 24; (2013) 5 SCC 846; 2011 (3) Supreme 409; 2010(1) Supreme 606–Relied.

SAMARENDRA PRATAP SINGH, J.:–All the five Criminal Appeals are filed against the common judgment of conviction, dated 18.6.2007 and order of sentence, dated 7.7.2007, passed by the 7th Additional Sessions Judge, Bhagalpur in Sessions Case No.589 of 1991, whereby all the 13 appellants along with one absconding appellant, Jai Prakash Mandal were convicted under sections 302 and 302/149 of the Indian Penal Code and Section 436, 436/149, 201/149, 380/149,153A and 295/149 of the Indian Penal Code. For the offence under Section 302 and 302/149 of Indian Penal Code, the appellants have been directed to under go life imprisonment, and for the offence under section 436/149 of Indian Penal Code, they have been sentenced to under go 10 years R.I. and fine of Rs.10,000/- each and in default to under go three months additional imprisonment. However, no separate sentence was passed for the rest of the offences. The sentences were directed to run concurrently.

2. Criminal Appeal (DB) No.1013 of 2007 was preferred by Thakur Paswan and Ramchandra Singh; Criminal Appeal (DB) No. 1050 of 2007 was preferred by Prabhash Mandal, Criminal Appeal (DB) No.1113 of 2007 was preferred by Azablal Mandal and Arjun Mandal, Criminal Appeal (DB) No. 1117 of 2007 was preferred by Sukhdeo Mandal, Jaddu Mandal, Sarjug Prasad Mandal and Ramdeo Mandal, Criminal Appeal (DB) No. 1118 of 2007 was preferred by Subhash Mandal, Shiblal Mandal, Naresh Mandal and Kuldeep Mandal.

3. It is relevant to state herein that out of 14 convicts, one Jai Prakash Mandal fled on the day of judgment. During the pendency of these appeals, appellant Ramchandra Singh of Criminal Appeal No.1013 of 2007 and appellant Sukhdeo Mandal of Criminal Appeal No.1117 of 2007 died and the case as against them stood abated.

4. Another appellant namely Ajab Lal Mandal of Criminal Appeal No.1113 of 2007 made a claim of his juvenility before this Court in his appeal which was enquired into, and by order, dated 11.10.2012 passed in Criminal Appeal No.1113 of 2007, he was held juvenile in conflict with law. His trial by the learned Court below, therefore, becomes contrary to law and fictitious. On this score itself, the appeal filed on his behalf succeeds and the judgment and order of conviction and sentence recorded against him are set aside. This takes us to the next question whether the aforesaid appellant be directed to be tried afresh in accordance with the provisions contained in Juvenile Justice (Care and Protection of Children) Act. We, however, restrain ourselves from doing so for two reasons. Firstly, the occurrence was committed in the year 1989, and since then more than two and a half decades have passed and secondly, the said accused/appellant, as argued before us, has remained in care and custody of the government for more than five years. Even if the competent court finds him guilty, punishment for more than three years could not have been imposed on him at the maximum.

5. The appeals, thus, survive only on behalf of the following ten appellants:—

Appellant No.1 (A/1) Ramdeo Mandal (also referred at some places as Ramda)

Appellant No.2 (A/2) Arjun Mandal

Appellant No.3 (A/3) Prabhash Mandal

Appellant No.5 (A/5) Subhash Mandal

Appellant No.7 (A/7) Shibblal Mandal

Appellant No.8 (A/8) Naresh Mandal

Appellant No.9 (A/9) Jaddu Mandal

Appellant No.10(A/10) Sarjug Prasad Mandal

Appellant No.12(A/12) Thakur Paswan

Appellant No.14 (A/14) Kuldeep Mandal

(Serial Nos. of the accused/appellants in the judgment of the trial court has not been disturbed)

6. On the other hand, the State of Bihar has preferred appeal being Government Appeal (DB) No.29 of 2007 for enhancement of sentence awarded to appellants Ramdeo Mandal, Prabhash Mandal, Kuldeep Mandal, Ram Chandra Singh (since dead) and Jai Prakash Mandal (who absconded after the judgment).

7. Coming to the facts of the case; the dawn of 27th day of October, 1