Partly allowed

Brij Behari Pandey And Ors. v. State

Jharkhand HC29 Oct 2018Cr.A(DB)/9900191/1992

Case brief

AI extract

What is this about?

Appeals against conviction under section 148 IPC arising from the 1984 shooting death of the informant's brother, where fifteen persons were tried. The court upheld the conviction of the appellants who chased the deceased, reducing their sentence, but acquitted two appellants who had no motive and were implicated on conflicting testimony.

What did the court decide?

Conviction under section 148 IPC of the appellants of Cr. Appeal No. 191 of 1992 upheld with sentence reduced to six months; Cr. Appeal No. 204 of 1992 allowed and those appellants discharged from the

Brij Behari Pandey And Ors. Vs State — Murder and Culpable Homicide | Jharkhand HC (2018)

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CRIMINAL APPEAL (DB) NO. 191 OF 1992 (P) WITH CRIMINAL APPEAL (DB) NO. 204 OF 1992(P)

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Against the judgment of conviction and order of sentence dated 04.06.1992 in Sessions Case No. 136 of 1986 passed by 4^th Additional Sessions Judge, Santhal Parganas at Dumka

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Brij Behari Pandey, son of Mangal Pandey

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Mani Pandey son of Samu Pandey

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Nagendra Pandey, son of Sarjug Pandey

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4. Ramanand Pandey, son of Shree Pandey, all residents of Village Nari Diara, Police Station Sahebganj-Moffasil, Dist. Sahebganj

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....... Appellants

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( in Cr. A. 191/1992)

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Randhir Singh son of Surya Narain Singh

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Ashok Singh son of Surya Narain Singh, both residents of village Bari Kudarjanna, Police Station and District-Sahibganj---Appellants ( in Cr. A. 204/1992)

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Vs.

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The State of Jharkhand …..... Respondent ( in both cases)

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For the Appellant : Mr. Ram Nivas Roy, Adv

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Mr. K.K. Singh, Adv. (In Cr. A. 191/1992) Mr. Gautam Kumar, Adv. Mr. Sandip Kumar Burnwal, Adv (In Cr. A. 204/1992)

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For the Respondents: Mr. Hardeo Prasad Singh, APP (In both cases)

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PRESENT

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HON'BLE MR. JUSTICE RATNAKER BHENGRA

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C.A.V. ON 27.11.2017 DELIVERED ON 29 / 10 /2018

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Ratnaker Bhengra,J : By order dated 23.11.2017 of the Division Bench, these two appeals were referred to the Single Bench for consideration. 2. Both these appeals are directed against the judgment of conviction and order of sentence dated 04.06.1992 passed by the learned 4^th Additional

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Sessions Judge, Santhal Parganas at Dumka in Sessions Case No. 136 of 1986 whereby and whereunder the appellants have been convicted for the offence under section 148 of the IPC and each of them has been sentenced to undergo R.I. for two years.

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The prosecution case, in brief, as per the Fardbeyan of the informant Brindawan Pandey, P.W. 3 is that on 22.11.1984 at about 8 a.m. the informant Brindawan Pandey and his elder brother Sarla Pandey alias Hirday Narayan Pandey (deceased) proceeded for looking after their Kalai-crops in Makhmalpur Diara. The informant’s brother was going ahead and the informant (P.W. 3) was following him. At about 8.00 a.m. while they reached near margang of Nadhi –Diara then from the northern side behind the behaya plant bushes the accused including these appellants i.e. Brij Behari Pandey, Nagendra Pandey, Jay Narayan Pandey, Tribhuwan Pandey, Ramanand Pandey, Shri Pandey, Ram Jatan Pandey, Ram Sevak Pandey, Yamuna Pandey, Saryu Pandey, Mani Pandey, all of village Nadhi Diara and Parmanand Singh, Randhir Singh and Ashok Singh of Village Bari Kudarjanna and Satya Narayan Tiwari of Village Kamal Ghorai as named in the fardbeyan armed with three nut country made pistol in their hands, suddenly appeared. Seeing them the informant and his brother due to fear started running away. The informant’s brother, namely, Sarla Pandey after crossing the margang started running away towards west and the informant started running away towards the east of the said margang. All the accused persons with a view to catch the informant’s brother Sarla Pandey started chasing him. The informant also after turning and concealing himself proceeded to see his brother. Up to the bathan of Makhmalpur the accused persons followed

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the brother of the informant, namely, Sarla Pandey and there surrounded his brother from all the sides. Appellant No. 1 Brij Behari Pandey is alleged to have fired at Sarla Pandey with the pistol, as a result of which he fell down. Thereafter, brother of the informant, namely, Sarla Pandey was shot dead by firing by Jai Narayan Pandey (deceased), Tribhuwan Pandey (acquitted) and Parmanand Singh (deceased). The informant witnessed the said occurrence keeping himself concealed in the kalai-Crops field. According to the further fardbeyan of the informant , when his brother Sarla Pandey stopped crying then the accused persons fled away towards west of the Diara. Thereafter, the informant went near his brother Sarla Pandey and found him lying dead in pool of blood having received fire-arm injuries on his stomach, neck & head. Near the alleged place of occurrence Kishun Mandal (P.W. 5), Bhagwan Mandal( P.W. 1) and Shankar Mandal ( P.W. 2) were working in their fields and they are alleged to have witnessed the said occurrence. Thereafter, the informant went to his house and narrated about the incident of murder of his brother Sarla Pandey to his family members. The motive for the occurrence, as alleged by the informant was that there was old enmity with the accused persons and in the murder case of Rasbihari Pandey the brother of Brij Behari Pandey (appellant no. 1) the deceased brother of the informant, namely, Sarla Pandey was named accused for which case was going on and for that old enmity with a view to take revenge the aforesaid accused persons committed the murder of his brother Sarla Pandey.

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On the basis of the aforesaid fardbeyan of the informant a formal First Information Report was registered as Sahibganj P.S. Case No. 192 of 1984 dated 22.11.1984 under sections 147, 148, 149,341,302,IPC

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and 27 Arms Act against the accused persons. Thereafter the police after investigation, submitted charge sheet and after cognizance case was committed to the court of sessions for trial. The defence of the appellants during trial in brief, was that no occurrence as alleged by the prosecution had taken place and the deceased Sarla Pandey was done to death in different circumstances by some unknown criminals and taking the benefit of the same on account of old enmity and village politics the appellants have been falsely implicated in the present case.

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The further defence of appellant no. 1 Brij Behari Pandey and appellant no. 3 Nagendra Pandey was that they are Government servants and at the relevant time appellant no. 1 Brij Behari Pandey was posted as the Assistnat Sub Inspector of Police in Munger Police Line and was deputed to maintain law and other situation in Bakerpur on 8.11.1984 and remained on duty at the aforesaid place from 8.11.1984 to 23.11.1984 and he reported himself to the police station on 24.11.1984. Appellant Nagendra Pandey was posted as the Constable in Monger police line and on 21.11.1984 he had been deputed along with others to maintain law and order situation at Bihar State Road Transport Corporation, Bus Depot, Munger and he was on duty there up to 8.12.1984 as there was strike of the Road Transport Corporation employees during that period. In support of the aforesaid defence, the appellants examined three Defence Witnesses, namely, D.W. 1 Dhatpat Lal Das, D.W. 2 Arjun Singh and D.W. 3 Jagdish Mamjhi. 6. After conclusion of the trial, the appellants were convicted and sentenced as aforesaid. Hence, this appeal. 7. P.W. 3 Brindawan Pandey, the informant had deposed that on the day of occurrence he along with his

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brother Sarla Pandey were going to see the Kalai crop in Makhmalpur Diara and when they reached near Margang as the accused who were hidden there, appeared all of a sudden armed with pistol in their hands. From his evidence, it appears that he saw the accused from a certain distance. He named the accused in his evidence. 8. P.W. 1 Bhagwan Mandal had deposed that on the day of occurrence he was in his Kalai crop field when he saw 10-15 persons chasing Sarla Pandey. He has identified three named accused namely Randhir Singh, Ashok Singh and Parmanand Singh. He has stated in cross examination that he has enmity with Permanand Singh due to landed dispute. 9. P.W. 2 Shankar Mandal deposed that on the date of occurrence he saw ten to fifteen persons chasing Sarla Pandey and among them Ashok Singh, Parmanand Singh and Randhir Singh were also seen. He identified only these three accused, other twelve accused persons who were chasing the deceased were not identified by him. He had specifically said that these three accused fired and shot the deceased dead. These three accused were not alone but along with them other accused were also chasing the deceased. As such the complicity of other twelve accused cannot be ignored.

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P.W. 5 is Kishun Mandal. He has been declared hostile. However, he had deposed that on the day of occurrence at about 8-9 a.m., he had gone near the dead body of Sarla Pandey and found some gun shot injury on his person. In his cross examination he has deposed that the informant was already there at the dead body of his brother when he reached there.

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P.W. 7 is Dr. Lalit Kumar Sinha, the then Civil Assistant Surgeon, Sadar Hospital, Sahibganj. He conducted the post mortem. He has proved the post

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mortem report marked as Ext.-2. This witness had said in his evidence that on 23.11.1984 while he was posted as C.A.S. at Sadar Hospital, Sahibganj, he held post mortem examination at 12.30 p.m. of the dead body of Sarla Pandey@ Hirdaya Narayan Pandey son of Tara Pandey of village Nadhi Diara, P.S. & District- Sahibganj. He found the following ante mortem injuries on the person:-

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(i) One gun shot wound having one apature of ½ “ in radius on the right mid portion of abdomen just above ambilicus.

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(ii) Gun shot wound with a radius of ½” just by the right side of the ambilicus of abdomen

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(iii) Gun shot wound with radius of 1/2” just below ambilicus of abdomen

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(iv) Gun shot wound with radius of 1/2” on the right upper frontal portion of the neck.

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(v) Gunshot wound with a radius of 1/2” on the left portion of the chest.

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(vi) Gunshot wound with a radius of 1/2” on the right fore head.

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(vii) Gun shot with radius of 1/2” on the right side of fore head.

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(viii) Three wounds of exit were present on the mid back portion of abdomen at left buttock.

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P.W. 8 Jogendra Mandal is a formal witness who had proved his signature marked as Ext.-7 on the inquest report.

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P.W.9 Tara Pandey, the father of the deceased, he deposed that he heard about this murder of his son Sarla Pandey from his son Brindawan Pandey. He is not an eye witness to the occurrence.

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P.W. 11 Shyam Sundar Ram is literate sepoy and a formal witness. He said that Babulal Ram, S.I. died on 30.08.1989. He has proved Ext. 3 Fardbeyan of this case, Ext.- 4 endorsement of Babulal Ram on Ext.-3. He has also proved Ext.-5 formal F.I.R. and also proved

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Ext.-6 inquest report which is in the hand writing and signature of Babulal Ram.

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P.W. 12 Ram Bilash Pandey is the brother of the informant and the deceased, who has specifically stated that he had not seen the murder in question committed but had seen only the dead body. He has proved Ext. 1/B his signature on the inquest report.

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The defence also examined three defense witnesses. D.W. 1 is Khatpat Lal Das. He has deposed that in 1984 he was posted in Munger Police Line as Assistant SubInspector of Polic. A ‘ Comman’ (marked-X) for identification was issued in the name of appellant Brij Behari Pandey. He has also proved Ext.A. the departure column and the signature of the Munshi Bishwanath Acharya. He has admitted in Paragraph-6 that the appellant Brij Behari Pandey was deputed along with three constable in village Bakerpur, where communal riot had taken place.

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D.W. 2 is Arjun Singh, constable no. 387, he has proved the ‘ comman’ , which was marked as Ext. B. He has also proved Ext.-C which is in the hand writing of Munshi Sri Ganesh Singh, Ext.-D the guard register and Ext-D/1 which is in the hand writing of constable Kapil Deo Das has also been proved by this witness.

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D.W. 3 is Jagdish Manjhi. He deposed that appellant no. 3 Nagendra Pandey was on duty with him from 21.11.1984 to 8.12.1984. He had proved the ‘ Comman’ which is in the hand writing of Ganesh Munshi which was marked as Ext.-E. He has specifically stated that they were on duty at Munger Bus Depot.

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ARGUMENTS ON BEHALF OF APPELLANTS

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It is submitted by the learned counsel for the appellants that from the prosecution case itself, it is evident that the informant was not the eye witness of the

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actual assault on the person of his brother Sarla Pandey, but the trial court wrongly relied on his evidence, which was contradictory and was not corroborated by other two eye witnesses, namely, P.Ws. 1 and 2.

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It is further submitted that the informant P.W. 3 had given a go-by to his earlier version in the Fardbeyan where he has said that all the 15 accused persons surrounded his brother Sarla Pandey ( deceased), then appellant Brij Behari Pandey shot at his deceased brother first and thereafter he was shot at by accused Jai Narayan Pandey, accused Tribhuwan Pandey and Parmanand Singh, where as in his deposition in the court he has categorically said that all the accused persons killed his brother by revolver. However, he has omitted the names of four accused persons and named only 11 persons, out of 15 persons, whom he had named in the Fardbeyan.

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Learned counsel submitted that informant in his evidence before the court had said in clear words that when his brother Sarla Pandey (deceased) fell down he was at a distance of 1 ½ miles and in view of his this evidence, it is highly improbable that he had seen the real assault on the person of his brother, even then the trial court has placed much reliance on his evidence, which is full of contradictions and is omnibus and general in nature.

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Learned counsel further submitted that two alleged eye witnesses, namely, P.Ws. 1 and 2 have given altogether a different version. P.W. 1 Bhagwan Mandal in his evidence has said that he heard the sound of firing and saw deceased Sarla Pandey falling down. He was surrounded by several persons who started firing on him. He has further said that he saw accused (1) Randhir Singh, (2) Ashok Singh and (3) Parmanand Singh firing

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by their pistol on Sarla Pandey. He had identified only three persons aforementioned and had not named the present other appellants nor had he claimed to identify them, although he is the co-villager of the appellants. 23. Learned counsel further submitted that the evidence of P.W. 2 Shankar Mandal is similar to the alleged eye witness P.W. 1, who has also said that out of the accused persons, he identified accused Parmanand Singh, Ashok Singh and accused Randhir Singh as the persons who had fired at the deceased and killed him. He did not identify the other appellants in any manner.

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In this connection, it is stated that the these two eye witnesses, namely, P.W. 1 and 2 are the groupmen of the informant P.W. 3. They have got their lands adjacent to each other. According to them they had enmity with the aforesaid accused Parmanand Singh, Ashok Singh and Radhir Singh with regard to land and at the relevant time proceeding under section 145 Cr.P.C. and other cases were going on between these witnesses and aforesaid three accused persons. Similarly, P.W. 3 the informant Brindawan Pandey has enmity with these appellants since informant’s deceased brother Sarla Pandey was an accused in a murder case of brother of the appellant Brij Behari Pandey and the informant and his family were harbouring grudge since long. The informant ( P.W. 3) has admitted that some of the appellants were in police service and has further admitted that the appellants Brij Behari Pandey and Nagendra Pandey are his uncle and brother.

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Learned Counsel further submitted that from the discussions of the evidence of these three interested and inimical witnesses, it is crystal clear that P.Ws 1 and 2 are on inimical terms with the Singh named accused persons and the informant ( P.W. 3) is on inimical terms

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with the Pandey named accused persons and all of them taking the benefit of the alleged murder of Sarla Pandey which actually occurred in different manner at different place implicated the appellants and others in the present case after due deliberation and consultation with each other at a belated stage. The occurrence is said to have taken place at 8.30 a.m., whereas the Fardbeyan was lodged at about 6 p.m., after about 10 hours. No explanation for such delay was given by the prosecution in lodging the fardbeyan or F.I.R. 26. Learned counsel further submitted that the prosecution has also not produced the Investigating Officer of the present case, namely, Babu Lal Ram, who recorded the fardbeyan of the informant and did the investigation of the case. None examination of the Investigating Officer has also caused great prejudice to the case of the appellants and many contradictory materials falsifying the prosecution allegation were thus not brought on the record.

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Learned counsel further submitted that the occurrence allegedly took place at about 8.30 a.m. but no intimation was given to police till evening and police has come at their own to the village on the basis of information received through Superintendent of Police, Sahebganj at 3.30 p.m. upon which sanha was lodged and proceeded towards place of occurrence. There is no explanation for lodging the FIR after delay of about 10 hours, however the trial court has justified the delay as referred in para 15 of judgement that it might be due to the sorrow of death as reason for delayed reporting which is merely on surmises and conjectures. 28. The learned counsel submitted that the information which was received by the O.C. Sahebganj about the cognizable offence and set the law in motion should have

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been treated as first information report, however, the police reached to the place of occurrence and then obtained the statement of Brindawan Pandey and treated it as First Information Report.

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Learned counsel submitted that according to P.W. 3 at para 14 who had killed the deceased could not be seen by the P.W. 3 and except this witness no other witnesses named these appellant, thus presumption cannot be raised against the accused either in fact or in law.

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Learned counsel submitted that the statement of P.W. 3 suffered from improbability and is not free from suspicion in the back drop of enmity with accused persons and its non corroboration by P.W. 1 and 2 with regard to participation of other accused persons, except Randhir Singh, Ashok Singh & Parmanand Singh, hence the statement of P.W. 3 lacks credence & reliability.

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Learned counsel submitted that the P.W. 1 & 2 identified these appellants as villagers but not as assailants or chasers, and the alleged occurrence took place in day time.

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Learned counsel for the appellants relied on the following judgments to support his case.-

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i. C.M. Sharma Vs. State of Andhra Pradesh (2010)15SCC1

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ii. Govindaraju @ Govinda Vs. State by Sriramapuram Police State and another, (2012)4SCC 722and

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iii. Arun Kumar Choudhary Vs. State of Bihar, 2015

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(3) East Cr. C 190

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Learned counsel submitted that the occurrence took about 32 years back and the appellant faced a prolong trial and suffered the trauma of uncertainty. Jai Narayan Pandey & Parmanand Singh who were convicted under section 302/34 of the IPC has already died and the

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appellant who are alive were convicted under section 148 of the IPC for two years. Tribhuwan Pandey, Ram Sewak Pandey, Satya Narayan Tiwary & Ram Jatan Pandey were acquitted. D.W. 1, 2 & 3 were examined on the point that Brij Bihari Pandey and Nagendra Pandey both were on duty and documents were exhibited without objection.

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Learned counsel while not admitting the guilt of the appellants has also submitted that the case is of the year 1984 and about 34 years have already been spent in trial and appeal and they have suffered all the related hardships, therefore some mercy may be given while deciding the case.

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ARGUMENTS OF STATE

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Learned counsel for the State had argued that this case has to be seen in the back ground of enmity between the parties. He had argued that first and foremost the informant Brindawan Pandey and his deceased brother Sarla Pandey, particularly Sarla Pandey the deceased had enmity with the opposite side particularly the appellant no. 1 Brij Behari Pandey because it was alleged that Sarla Pandey had murdered or was responsible for the death of Rasbehari Pandey the brother of appellant no. 1 Brij Behari Pandey. The other accused or appellants herein were also intent with Brij Behari Pandey and his family to seek revenge on the informant and his family, particularly Sarla Pandey the deceased and this is the background in which the entire matter has to be considered. He argued that from the evidence of the informant it is clear that it is in corroboration with his fardbeyan and from the fardbeyan it is easily made out that the accused persons including the appellants herein had chased both the brothers from a certain point, and after sometimes they had only chased Sarla Pandey which is in line with the enmity that has existed due to

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the murder of Rasbehari Pandey. There is direct allegation made by the informant against Brij Behari Pandey, Jai Narain Pandey (now dead) and Tribhuwan Pandey, (acquitted) and one Parmanand Singh (now dead) to have fired the shot. This witness ( P.W. 3) had even after being separated from his brother followed his brother from a distance and then watched from a certain distance to see the murder of his brother take place. He only concealed himself out of fear from the large numbers of accused persons. Therefore, he is reliable and trustworthy witness and he has taken the name of the accused or the appellants herein and for the criminal acts they are responsible for. He had in his evidence and also in his fardbeyan indicated that from the agricultural fields nearby or adjacent other person had also seen the incidents. These other persons who had seen the incidents are P.W. 1 who is Bhagwan Mandal and P.W. 2 who is Shankar Mandal, and these two persons have also deposed that they had seen 10-15 persons chasing Sarla Pandey and also seen him fall after being shot.

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Learned counsel has then referred to the evidence of the doctor and pointed out injury no. 1 to 7 have been indicated as gunshot injuries and injury no. 8 has been indicated as there being three wounds of exit present on the mid back portion of abdomen at left buttock. Learned counsel therefore says that the injuries fully support the kind of assault that has been indicated in the evidence of the informant as well as P.W. 1 and P.W. 2. Counsel has also argued that unfortunately the Investigating Officer has passed away and he was not examined during trial, however, given the evidences of the informant, P.W. 1, P.W. 2 and the evidence of the doctor, the ocular evidence is fully corroborated by the medical evidence and therefore convictions under section 148 IPC is fully made

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out. He has also said that the ingredients of section 148 IPC is fully made out because initially fifteen accused have been put on trial and it has been indicated that at least four of them has used fire arms and they had been chasing after the deceased victim together so the offence under section 148 IPC is therefore, fully made out and therefore conviction and sentence of the learned trial court below should be fully upheld.

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FINDINGS

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Having heard both counsels having gone through the records of the case, having gone through the evidences and in the facts and circumstances, it is observed that first and foremost an occurrence had taken place and the occurrence is the death of the deceased who was one Sarla Pandey. Initially, fifteen persons were put on trial and two of the accused Jai Narayan Pandey and Parmanand Singh were convicted under section 302/34 of the IPC. Accused Tribhuwan Pandy, Ram Sevak Pandey, Satya Narayan Tewary and Ram Jatan Pandey for lack of evidence were not held guilty and acquitted. All the remaining eleven accused persons were convicted under section 148 IPC. Jai Narayan Pandey , Saryu Pandey, Jamuna Pandey and Sri Pandey were appellants in Cr. Appeal No. 191 of 1992(P) and their names were deleted by order dated 02.11.2017 of a Division Bench of this Court as they died. They are no longer part of this appeal. In Cr. Appeal No. 204 of 1992, by order dated 02.11.2017 name of appellant Parmanand Singh was deleted as he also died.

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There is one aspect that taken in the light of the records of the case and the evidences that have been brought on record is that it is difficult to deny that the occurrence had not taken place. Particularly in the back ground of the evidence of P.W. 7, who is Dr. Lalit Kumar

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Sinha. In his postmortem report, he has pointed out seven gunshot wounds running from injury no. 1 to injury no. 7 of various sizes and dimensions but basically pertaining to the radius or dimensions of bullet and injury no. 8 is indicated as three wounds of exit being present on the mid back portion of abdomen at left buttok. Even at a first glance of this injury report, one is shocked at the number of gunshot wounds that have been inflicted upon the body or the person of the deceased. In the injury no. 1 and injury no. 2 and injury 3 and injury no. 8 there is reference to wounds being on the abdomen, injury no. 4 is indicated to be on the upper frontal portion of the neck. Injury no. 6 and 7 are indicated as being on the right side of the forehead and injury no. 5 is indicated on the left portion of the chest. A first glance of the injury itself shockingly brings to mind the intention with which the shots and bullets were fired, they are all on vital parts of the body and even one of them would have been fatal but the injuries have been numbered as 1 to 8. With so many injuries the evidence of the prosecution witnesses P.W. 1,2 and 3 appear to be true that more than one person had fired and that is why there are so many bullet or gunshot wounds. Taken with the aforesaid gunshot wounds that have been indicated in the post mortem report and noting that enmity has been admitted because of the alleged murdered of Rasbehari Pandey the brother of the appellant Brij Behari Pandey, the circumstances indicate that there was sufficient cause for the kind of injury and murder that has taken place. Informant Brindawan Pandey is in fact the star witness and from his fardbeyan and his deposition, a combined reading of which indicated that the two brothers had set out together and deceased Sarla Pandey was walking ahead of him and when they had

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reached at a certain point suddenly the accused including the remaining appellants herein had emerged from the bushes and some of them were also armed with country made pistols. It is said that both the brothers started running and that they were being chased by 1015 persons and this has also been disclosed in the evidence of P.W. 1 and P.W. 2. This aspect of the crime scenario is apparent and has been attested through the evidence P.W. 3, 1 and 2. It is not difficult to imagine the scenario when the brothers encountered about 10-15 persons some of them armed with pistol and the immediate natural reaction of course is to flee which they do and they start running and after some times the brothers get separated, in sense that they start run in different directions, almost in opposing directions, in fact it is said by P.W. 3 that they started running in east and west directions, with the accused persons including the remaining appellants chasing Sarla Pandey. This aspect of the crime scenario also appears to be true because the enmity primarily persisted between Sarla Pandey (now deceased) and appellant Brij Behari Pandey and his family, therefore, he also with other accused and remaining appellants chased Sarla Pandey. The deposition of P.W. 3 Brindawan Pandey that he followed from a distance concealing himself and watched the accused is also not very difficult to believe because they had fled and P.W. 3 must have realized what was going to happen to his brother and it would have been a very-very brave person and in fact may be unwisely brave to try to intervene in the matter when what was going to happen was already forgone. Therefore he watches from a distance and he says he has seen four of the accused firing gunshots and the firing is also said to have taken place as per the evidence of P.W. 1 and P.W. 2. One

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thing is certain that even from the distance that P.W. 3 was and even from the distance which P.W. 1 and P.W. 2 were at the gunshots would have been heard. Though, from a distance it may be difficult to make out as to who actually was firing the gunshots. On the other hand, the persons or the accused persons allegedly responsible for the firing of the guns have either died during the pendency of the appeal or charge was not framed against them under section 302 of the IPC by the trial court. So that leaves the other accused or the remaining appellants who are alleged to have chased the deceased and who are said to have formed unlawful assembly bringing it within the purview of section 148 of the IPC and for which they have been convicted and sentenced.

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Regarding the appellants in Cr. Appeal No. 204 of 1992 or the remaining appellants there is no allegation on these two appellants in the FIR as to have committed any major act such as firing from the gun as has been attributed to Jai Narayan Pandey, Tribhuwan Pandey, Brij Behari Pandey and Parmanand Singh. Allegations regarding Randhir Singh, Ashok Singh also being assailants and of shooting with pistol has been made by P.W. 1, Bhagwan Mandal and also by P.W. 2 or Shankar Mandal. We noted that in the original FIR or the fardbeyan this is not what has been attributed to these appellants. It is no where in the evidence that these two appellants had the kind of enmity against Sarla Pandey the deceased which was between the informant’s family and the family of appellant Brij Behari Pandey, because it was allegedly the brother of Brij Behari Pandey who had been murdered by Sarla Pandey the deceased and brother of informant. Therefore, these two appellants Randhir Singh and Ashok Pandey having no motive were wrongly implicated in the case. From the evidences also it

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has come that rather there was land disputes existing between P.W. 1 and P.W. 2 with Randhir Singh, Ashok Singh and Parmanand Singh, so the enmity was with these two witnesses and it can therefore even be said because of enmity they have been also named in their depositions.

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Therefore, bearing in mind regarding the conflicting evidences as has been indicated in the fardbeyan and depositions of P.W. 3 as against the deposition of P.W. 1 and P.W. 2, concerning the role of appellant Randhir Singh and Ashok Singh, some benefit of doubt may be extended particularly in the light of what has emerged that they did not have any direct enmity with the informant’s family. Regarding the other appellant in Cr. Appeal No. 191 of 1992 this Court thinks that the evidence of P.W. 3, Brindawan Pandey who is a star witness is adequate as given the manner of death that has taken place and what he has described in the fardbeyan and in his deposition there is eye witness as well as circumstantial witness to conclude that the surviving appellants are also part of the mob that were chasing Sarla Pandey, (the deceased) though they had not indulged in firing the gunshots and for which other accused had already been convicted. I hold that the remaining appellants that is Brij Behari Pandey, Mani Pandey, Nagendra Pandey and Ramanand Pandey are convicted for the offence under section 148 IPC.

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Regarding the defense of alibi taken by Brij Behari Pandey and Nagendra Pandey, the learned court below has considered the claim in depth, and had sought certain documents, which the accused were not able to produce, and hence rejected their defense of alibi. I also see no reason to disturb this finding.

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Regarding the cases stated, C.M. Sharma (supra),

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Govindaraju @ Govinda (supra) and Arun Kumar Choudhary (supra), the point on evidence may not be so comparative as to disregard the evidence in the cases on hand. Therefore, prior enmity, is admitted, the informant’s evidence is corroborated by the evidence of the doctor. Further P.W. 1 and P.W. 2 have also supported that the deceased was being chased by 10-15 persons.

¶105

Accordingly, the order of conviction and sentence dated 04.06.1992 passed by the 4^th Additional Sessions Judge, Santhal Parganas at Dumka in Sessions Case No. 136 of 1986 whereby and whereunder the appellants of Cr. Appeal No. 191 of 1992 have been convicted for the offence under section 148 of the IPC is upheld. Regarding the sentence of the appellants, based on the mitigating circumstances, prayed for, the sentence is modified and reduced to six months, any period already undergone by them to be deducted from the same. Accordingly, Cr. Appeal No. 191 of 1992(P) is dismissed with the above modification in sentence. Accordingly, appellants’ bail bonds are cancelled. Learned court below is directed to take steps for compelling their arrest to serve out the remaining period of custody.

¶106

Accordingly, in view of the aforesaid reasonings, the Cr. Appeal No. 204 of 1992 (P) is allowed. The appellants of Cr. Appeal no. 204 of 1992(P) are discharged from the liabilities of their bail bonds.

¶107

( Ratnaker Bhengra,J.)

¶108

Jharkhand High Court, Ranchi Dated 29 / 10 /2018

¶109

Sharda/NAFR

Brij Behari Pandey And Ors. v. State

Case brief

What is this about?

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Brij Behari Pandey And Ors. v. State

Case brief

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