Allowed

Ram Subodh Mishra and Ors. v. State of Bihar

Patna HC14 Oct 2014CR. APP (DB)/97/1992

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court set aside the trial court's conviction and acquitted the appellants of murder and covering up the crime. The court held that the prosecution failed to prove its case due to serious inconsistencies in police station diaries, uncorroborated extra-judicial confession, and implausible timelines regarding the recovery of the body.

What did the court decide?

Appeal allowed; conviction and sentence set aside; appellants acquitted of the charges; bail bonds discharged.

Ram Subodh Mishra and Ors. Vs State of Bihar — Criminal Trial and Appeal | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (DB) No.97 of 1992

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Against the judgment of conviction and order of sentence, both dated 24.03.1992, passed by Shri Sardar Bhagat Singh, First Additional Sessions Judge, Darbhanga, in Sessions Trial No. 52 of 1985/50 of 1987. 1. Ram Subodh Mishra, son of Ramashesh Mishra 2. Ram Niranjan Mishra alias Olua, son of Chalitar Mishra Both resident of village Kachhua, P.S. Kamtol, District Darbhanga. .... .... Appellants Versus State of Bihar .... .... Respondent

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=========================================================== Appearance :

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For the Appellants : Mr. Rana Pratap Singh, Sr. Advocate, Mr. Rakesh Kumar Sinha, Advocate and Mr. Aaruni Singh, Advocate.

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For the State : Mr. Ajay Mishra, A.P.P.

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=========================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH and HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA

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ORAL JUDGMENT

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(Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) Date: 14-10-2014

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The two appellants have filed this appeal being aggrieved by and dissatisfied with the judgment of conviction and order of sentence, both dated 24.03.1992 passed in Sessions Trial No. 52 of 1985/50 of 1987 by the Ist Additional Sessions Judge, Darbhanga, convicting them under Sections 302 and 201 of the Indian Penal Code (for short `I.P.C.’) and sentencing them to undergo imprisonment for

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life for offence under Section 302 of the I.P.C. and five years rigorous imprisonment each for offence under Section 201 of the I.P.C. Both sentences are to run concurrently.

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The prosecution case is based on the fardbeyan of informant Ram Charitra Mishra (P.W.7) as was recorded at about 4 am on 19.11.1984 at Kamtaul Outpost, attached to Jailey Police Station of district Darbhanga. It was, inter-alia, alleged that at about 6.30 pm on 18.11.1984 the informant’s nephew Ram Dayal Mishra had gone to Flour Mill to get wheat grinded. When he did not return till about 9 pm, the informant became apprehensive. He then went and enquired from the people. On way he met Hardev Mishra ( P.W.1), Yaswant Kumar Mishra (P.w.2), Ram Briksha Mishra (P.W.3) and Radhe Shyam Mishra (P.W.4), who told him that they had seen the nephew of the informant Ram Dayal Mishra carrying a small bag of wheat and going towards the Flour Mill. He was closely followed by the two appellants, Sukh Nandan Mishra and Kameshwar Mishra and two other accused persons, who have been acquitted. He became suspicious; inasmuch as his family and the family of accused Sukh Nandan Mishra had serious litigations for the past 35 years. Ultimately the informant decided and came to Kamtaul Outpost and reported the matter. This fardbeyan was recorded at 4 am on 19.11.1984 and it was thereafter sent to Jailey P.S. for being

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registered as an F.I.R., where it was formally registered as an F.I.R. at 8 am on the same day. Pursuant to this information, the Officer-incharge of Kamtaul Outpost then took up investigation. Prosecution alleges that the I.O. Tarkeshwar Saran (P.W.8) came to Jogiara Railway Station, where he arrested the two appellants. Prosecution case further is that the two appellants then confessed having killed deceased Ram Dayal Mishra and disclosed that they had hid his body in the den of porcupine in a field about 1 km away from the village. On their confession, the body was recovered. Inquest report was prepared, which was again endorsed and signed by the two appellants. Thereafter the body was sent for post-mortem examination and the Police concluded investigation and submitted charge-sheet against all the four accused persons, who pleaded not guilty. Hence, the trial. Upon the case being committed to the court of session, charges were framed against all of them under Sections 302/34 and 201 of the I.P.C. Upon the trial being concluded, the trial court acquitted accused Sukh Nandan Mishra and Kameshwar Mishra, while convicting the two appellants as aforementioned. Hence the present appeal by the two appellants.

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Shri Rana Pratap Singh, learned senior counsel appearing in support of the appeal, would submit that primarily the prosecution case is rested upon the evidence of last seen, coupled with

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the alleged confession, which is evident from the signatures of the two appellants on the inquest report and the statement of the I.O. that the body of the deceased Ram Dayal Mishra was recovered at their instance. The said learned senior counsel would submit that this evidence is totally unreliable and unsustainable. None of the independent prosecution witnesses had even spoken much less hinted about any extra judicial confession. It is only the Investigating Officer, who has spoken about the alleged confession leading to recovery of the body of the deceased. That itself is highly suspicious. He would further submit that recording of statement and signature of the appellants on the inquest itself cannot be believed to be correct.

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On the other hand, Shri Ajay Mishra, learned A.P.P. submits that the appellants having confessed and the dead body having been recovered pursuant to their confession, the confession to the extent of leading to recovery of the dead body is relevant and admissible in evidence and that being so the trial court did not commit any error in convicting the appellants. This is primarily a dispute, which this Court has to resolve.

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Having heard the parties and perused the entire records, we find that the contention as raised on behalf of the appellants has to succeed. The reasons are thus.

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The prosecution in order to establish its case has

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examined nine witnesses. P.W. 1 Hardev Mishra is mentioned in the F.I.R. as being one of the persons, from whom the informant came to know that his nephew Ram Dayal Mishra was being closely followed by the two appellants and two other persons while he was going to get wheat grinded. In his deposition before the Court, though this witness states having seen the deceased being followed by four named persons but he does not say about having disclosed this fact to the informant or having met the informant in this regard. Similar is the situation when we come to P.W. 2 Yaswant Kumar Mishra.

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Then we come to P.W.3 Ram Briksh Mishra, who, apart from stating that he had also seen the deceased being closely followed by the four persons aforementioned, he remained with the informant all through. He proved his signature on the inquest report (Ext. 3) in support of his being present when the body was recovered out of the den of porcupine. Curious to note that he does not even whisper a word about any extra judicial confession made by the appellants much less about the fact of discovery or recovery of the dead body of the nephew of the informant upon the facts disclosed by the appellants. We would like to notice one significant statement made by P.W.3. The inquest report is Ext. 3. It is said to have been drawn up at 9 am on 19.11.1984. P.W. 3 is a witness to the inquest report. In his deposition, he clearly admits having signed it but at 1 pm. This is

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evident from the statement in paragraph 22 of his cross-examination. Therefore, a suggestion had been made immediately thereafter that, in fact, he had signed the inquest report only at the Police Station in the evening. This is significant when we come to the evidence of the Investigating Officer-Tarkeshar Saran (P.W.8).

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We then have P.W. 4-Radhe Shyam Mishra. His statement is also on the same line of P.W.1 and P.W.2. He also does not make any mention about any confession made by the appellants.

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We then have P.W.5-Ram Lakhan Mishra, who is a seizure list witness. He was present when the dead body was brought up out of the den of porcupine, but as noted above, he does not talk of any confession and how the Police and others reached the place, where the dead body was found. We then have P.W.6- Ram Krishna Mishra, who is tendered.

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We then have P.W. 7- Ram Charitar Mishra, who is the informant, the own uncle of the deceased Ram Dayal Mishra. He has given his deposition in chief in a very great detail and his crossexamination is also equally long and detailed. The first thing, we would like to notice, is that in his cross-examination, he makes an admission, which is of some consequence. He states that having got his fardbeyan recorded at Kamtaul Outpost, he walked back home. When he reached his home, he was told by ladies that the Police had

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come and had arrested the two appellants and recovered the body and left. We must bear in mind that the fardbeyan was recorded at 4 am. Therefore, it is evident that the arrest and recovery of the dead body was in the early hours of the morning itself. This is important because when we look to the sequence of events as disclosed by the Investigating Officer, they don’t match at all. The other important piece of evidence disclosed by this witness (informant) is that, admittedly, there was long standing family dispute as between the informant’s family and that of Sukh Nandan Mishra, who, though charged, has been acquitted. He is not even alleged to be the person, who had made any confession or signed any document. He was later in the day arrested from his house in the village itself. Another important admission made by him is that after the Investigating Officer arrested the appellants and recovered the body, he did not come to the house of the informant to take his further statement nor did he ask the informant to identify the body.

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Then we may discuss the evidence of P.W.9 Dr. Ashok Kumar Yadav, who conducted the post-mortem report. There is nothing of much significance except the fact that the post-mortem report itself discloses that the dead body had been received in Darbhanga Medical College Hospital Mortuary for post-mortem at 5 pm on 19.11.1984. This is of some significance. The dead body was

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found badly cut and the post-mortem was conducted at about 12 noon on 20.11.1984.

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Now we come to the all important witness i.e. P.W.8 Tarkeshwar Saran, who was the I.O. He is of importance because if his evidence is discarded then the only evidence, we have on behalf of the prosecution, is that at about 6.30 pm on 18.11.1984 some persons had seen the deceased returning from a Flour Mill closely followed by the four accused persons including the two appellants. It was a road frequently used, but beyond that there is no other evidence implicating the accused persons. None of other witnesses have even whispered about any confession or any statement of the accused persons leading to the discovery or recovery of the dead body even though all along most of them were present.

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The Investigating Officer states that about 4 am on 19.11.1984 the informant (P.W.7) along with village Dafadar had come to Kamtaul Outpost. He gave a statement, which was duly recorded. Statement having been recorded, he proceeded for investigation having sent the fardbeyan to Jailey Police Station for being registered as an F.I.R. He has proved the fardbeyan and the F.I.R., which is registered at 8 am at Jailey Police Station. He has admitted in his cross-examination that he did not know the accused persons from before but he states that from Kamtaul Outpost, he

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straightway went to Jogiara Railway Station, where he arrested the two appellants. Who identified them and why he went to the Railway Station, he does not disclose. He then states that after arresting them the two appellants were taken to Jailey Police Station, where both of them made independent confessional statements, which are Exts. 6 and 6/1, in which they disclosed how the four of them had killed the deceased and how they carried the dead body and hid it in the den of porcupine about 1 km away from the village. Based on this confession, the Police then goes to village Kachchua and recovered the dead body. The inquest report is prepared showing recovery of the body at 9 am and the body is then sent for post-mortem examination. On the inquest report, one of the appellants was made to write that it was at his instance that the body was recovered and other appellant was made to sign the same.

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In order to establish their innocence, the defence had requisitioned the station diaries in relation to both Kamtaul Outpost and Jailey Police Station, they being marked as Exts. F’ and F/1’. Our attention has been drawn to the entries made therein. First we would refer to the entries of the relevant dates and time in relation to Kamtaul Outpost station diary. It makes no mention in respect of any arrest much less of the two appellants in the present case. When we refer to the station diary of Jailey Police Station, we find that the

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F.I.R. is registered at 8 am at Jailey Police Station, but the appellants are shown to have been arrested and brought to Jailey Police Station at about 6 pm on 19.11.1984 and left there to be sent to court on the next date. Further station diary would show that though the fardbeyan was registered at 8 am on 19.11.1984, it is sent to the court only on the next morning i.e. 20.11.1984, along with these two appellants.

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Mr. Rana Pratap Singh, learned senior counsel for the appellants, points out that the Investigating Officer states that confession was recorded at Jailey Police Station in the morning after he had taken the two appellants having arrested them there. If we look at the confession, it states that the confession is being recorded at about 6.30/7 am at Jailey Police Station, but when we see the station diary of Jailey Police Station, we find that the appellants, for the first time, were brought there at about 6 pm on that day. This raises serious doubt as to when and where this extra judicial confession was recorded. What is more significant is that there is no independent witness signing this confession. As per the prosecution, the confession was first recorded and then pursuant thereto the dead body of the deceased was recovered. If the accused were brought to Jailey Police Station only in the evening then how was it possible for them to have made the confession and signed the inquest report in the morning hour itself.

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We then have the evidence of P.W. 3 Ram Briksha Mishra as noted above, who states that he had, in fact, signed the inquest report at 1 pm and not at 9 am as stated in the inquest. This raises serious doubt as to the authenticity of the story set up by the prosecution.

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We may further note that pursuant to the alleged confession and recovery of the dead body, the dead body was sent for post-mortem examination and was received at Darbhanga Medical College Hospital Mortuary at about 5 pm on 19.11.1984. This presupposes that the appellants had already been arrested by them because it was their confession, which led to the recovery of the body, but there is no explanation as to why the appellants were not forwarded to the Chief Judicial Magistrate during the entire day. They were so forwarded only on the next day having remained in custody for almost 24 hours. Prosecution has no explanation for this.

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Thus, seen we have no explanation from the prosecution as to why the Police straightway went to the Railway Station. How and on whose identification they were able to arrest the two appellants because the Investigating Officer admits that he did not know the appellants. Then if confession was made by the two appellants at Jailey Police Station, why is there no such entry in the Police station diary at Jailey of having been arrested and produced

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there and confession being recorded there. Then why has no independent witness even mentioned that there had been a confession and it is pursuant to the confession that the dead body was recovered. The inquest report, though shown to be prepared at 9 am, is said to have been signed by P.W.3 Ram Briksha Mishra at 1 pm and the inquest was then got signed by two appellants, which is highly unusual and improbable. Why were the appellants kept in detention for the whole day and the whole night? Why were they not sent for remand on that date though body was sent and received for postmortem in the Hospital on the same day? Why was the F.I.R. and the appellants produced for remand only on the next morning. None of these questions have been answered by the prosecution. The appellants, as per the record of Jailey Police Station were produced at Jailey Police Station for the first time at 6 pm on 19.11.1984, which is inconsistent with the story set up by the prosecution. The confession is said to have already been recorded at Jailey Police Station in the morning itself.

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Thus, having considered these evidences, we are unable to persuade ourselves to hold that the prosecution has succeeded in proving its case beyond all reasonable doubts. The advantage, thus, would go to the appellants. The prosecution has left a number of important unresolved doubts.

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In the result, this appeal is allowed and the judgment of conviction and order of sentence, both dated 24.03.1992, passed by the trial court are set aside. The appellants are acquitted of the charges levelled against them and they are discharged from the liability of their bail bonds.

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(Navaniti Prasad Singh, J)

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MPS/U T

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(Jitendra Mohan Sharma J)

Ram Subodh Mishra and Ors. v. State of Bihar

Case brief

What is this about?

What did the court decide?

Ram Subodh Mishra and Ors. v. State of Bihar

Case brief

What is this about?

What did the court decide?

What the court decided

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