Allowed

Kartik Sada and Ors. v. State of Bihar

Patna HC19 Mar 2015CR. APP (DB)/53/1993

Case brief

AI extract

What is this about?

This second appeal challenged convictions for murder and robbery based on attempted proof of common intention. The High Court found material infirmities in evidence, noting failure to retrieve the weapon, discrepancy between medical report and prosecution weapon theory, and inconsistent timelines. Consequently, the appeal was allowed, and accused persons were acquitted.

What did the court decide?

Appeal allowed, convictions and sentences set aside, accused acquitted.

Kartik Sada and Ors. Vs State of Bihar — Murder and Culpable Homicide | Patna HC (2015)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Criminal Appeal (DB) No.53 of 1993

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(Against the judgment of Conviction and order of Sentence dated 20.1.1993 passed by Shri R.C. Shrivastava, Sessions Judge, Darbhanga in S.T. No.186/1991 amalgamated with Sessions Trial No.62 of 1992, arising out of Kusheshwar Asthan P.S. Case No.66 of 1990)

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===========================================================

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1.Kartik Sada son of Raghunath Sada

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Pathlu Sada son of Ghuran Sada

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Sardan Sada son of Gulhi Sada

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Jhari Sada son of Dhiro Sada

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All resident of Village Samaura, P.S. Kusheshwar Asthan, District Darbhanga

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.... .... Appellants

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Versus

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The State of Bihar .... .... Respondent

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

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For the Appellant/s : Mr. Ajay Kumar Thakur, Advocate

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Mr. Imteyaz Ahmad, Advocate

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For the Respondent/s : Mr. Ajay Mishra, Addl. P.P.

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Mr. Prabhat Kumar, learned Counsel as Amicus Curiae

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=========================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI

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and

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HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH) Date: 19-03-2015

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It appears from the order, dated 22.05.1997, that

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appellant, Kartik Sada, died during pendency of the appeal.

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2. In that view of the above, the appeal, as against the accused, Kartik Sada, stands abated.

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3. The appeal by the remaining appellants is directed against the judgment and order of conviction, dated 20.01.1993, passed in Sessions Trial No. 186 of 1991 amalgamated with Sessions Trial No. 62 of 1992, whereby the

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Patna High Court CR. APP (DB) No.53 of 1993

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learned Sessions Judge, Darbhanga, has convicted all the appellants under Sections 302 and 380 read with Section 34 of the Indian Penal Code and sentenced them to undergo imprisonment for life under Section 302 read with Section 34 of the Indian Penal Code. They have been further sentenced to undergo rigorous imprisonment for one year under Section 380 of the Indian Penal Code, both the sentences having been directed to run concurrently. Further-more, appellant Jhari Sada has been also convicted under section 302 read with Section 109 of the Indian Penal Code and the appellant Kartik Sada under Section 302 of the Indian Penal Code.

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4. The prosecution’s case, as made out in the fardbeyan of Ram Sogarath Sada, son of Late Ram Sharan Sada of Village Samoura, P.S. Kusheshwar Asthan, district Darbhanga, recorded by A.S.I. J. Ram, Banta O.P., at Darbhanga Medical College and Hospital, Darbhanga, on 28.11.1990, at 12.15 PM, is, in short, as follows:-

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On 25.11.1990, at about 6.30 P.M., Kartik Sada, Pathlu Sada, Sharawan Sada and Jhari Sada assaulted informant’s father, Ram Sharan Sada. According to the informant, Pathlu Sada handed over a farsa to accused Kartik Sada, who, in turn, struck a blow on the head of the informant’s father, which caused cut

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Patna High Court CR. APP (DB) No.53 of 1993

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injuries on his father’s head. Thereafter, Sharawan Sada assaulted the informant’s father with a lathi and the accused persons took away goods worth Rs.5,000/- from the informant’s father’s shop. The incident had occurred as the informant’s father had refused to give articles on credit from their shop. The occurrence was claimed to have been witnessed by Gohal Sada, Parmeet Sada (not examined), Bhikhu Sada (not examined) and others. The informant carried his injured father to Kusheshwar Asthan Hospital and from there, he was referred to the Darbhanga Medical College and Hospital, Darbhanga. In course of treatment, the doctor, on 28.11.1990, informed the informant that his father had died. Consequent to the death of his father, the informant gave his fardbeyan to ASI J. Ram of Banta O.P., at Darbhanga Medical College and Hospital, Darbhanga., at 12.15 PM, on 28.11.1990, giving rise to Kusheshwar Asthan P.S. Case No.66 of 1990, dated 28.11.1990, under Section 302/34 of the Indian Penal Code against all the four accused persons aforementioned. After investigation, the Police submitted charge sheet , under Sections 302/109/380/34 of the Indian Penal Code, against all the accused persons. Cognizance was taken and the case was committed to the

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Patna High Court CR. APP (DB) No.53 of 1993

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Court of Session for trial. All the accused were tried under Sections 302 and 380 of the Indian Penal Code. Accused Kartik Sada was additionally charged under Section 109 of the Indian Penal Code. The accused persons pleaded not guilty and claimed to be tried.

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6. The prosecution, in order to establish its case, examined altogether 9 witnesses. PW 1 (Gohal Sada) and PW 2 (Kithu Sada) turned hostile, PW 3 (Bali Sada), PW 4 (Subodhi Devi), PW 5 (Jagroop Sada) and PW 6 (Ram Sogarath Sada), the informant, have claimed to be eye witness of the occurrence. PW 7 (Anwar Suleman) is the Investigating officer of this case. PW 8 (Dr. Akhauri Rabindra Kishore) is an Assistant Professor in the Department of Forensic Medicine, Darbhanga Medical College and Hospital, Darbhanga, who conducted post mortem examination on the dead body of the said deceased. PW 9 (Jaglal Ram) is the then Assistant Sub-Inspector of Police, Benta Outer Post, who had recorded the fardbeyan of the informant, on 28.11.1990, at 12.15 PM, at Darbhanga Medical College and Hospital, Darbhanga.

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7. The case of the accused, in the light of the statements recorded under Section 313 of the Code of Criminal Procedure, was complete denial of the occurrence.

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Patna High Court CR. APP (DB) No.53 of 1993

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The learned trial Court, on consideration of the materials, convicted the appellants as noticed above. Being aggrieved, the appellants have preferred this appeal on following, amongst others, grounds:-

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a) Ocular evidence does not tally with the findings recorded in the post mortem report and the opinion of the doctor;

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b) The prosecution, in their evidence before the court, has given go by to the earlier version recorded in the First Information Report;

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c) Even the place of occurrence has been shifted;

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d) No information, in respect of alleged offence, was given to Kusheshwar Asthan police station from 25.11.1990 till 12.15 P.M. on 28.11.1990, which makes the prosecution’s case highly doubtful;

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e) The number of police case was inquisitively mentioned in the inquest report, which was prepared at 11.45 PM, on 28.11.1990, though the fardbeyan was recorded halfan-hour later at 12.15 P.M.; and

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f) Out of 3 (three) FIR named witnesses, 2 (two) were not examined and only one witness i.e. PW 1 (Gohal Sada) was examined, who, too, did not support the prosecution’s case.

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8. On the other hand, the prosecution, in order to support its case as stated earlier, has examined 9 (nine) witnesses. Two of these witnesses, namely, PW 1 and PW 2 (Gohal Sada and Kithu Sada respectively) have turned hostile.

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Patna High Court CR. APP (DB) No.53 of 1993

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The prosecution has examined PW 3, PW 4 and PW 5, apart from the informant (PW 6), as eye witnesses.

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9. PW 3 (Bali Sada), claiming to be an independent witness, has deposed that on the fateful day, at about 6.30 PM, he was in his house and, on hearing hulla , he proceeded towards south of the house of Domi Sada, where he saw three accused persons, namely, Pathlu Sada, Kartik Sada and Sardan Sada and, in the meantime, accused Pathlu Sada brought a f arsa (sharp-edged weapon) and handed it over to accused Kartik Sada, who hit on the head of Ram Saran Sada by means of farsa. Consequently Ram Saran Sada fell on the ground, whereupon accused Sardan Sada hit him by l athi and after assaulting him, all the accused persons, namely, Pathlu Sada, Kartik Sada and Sardan Sada rushed to the shop of Ram Sharan Sada and made good their escape with articles kept there. P.W.3 has also deposed that he learnt that the occurrence had taken place for one bidi , because the informant’s father had refused to give the article ( bidi ) on credit. This witness (P.W.3) has further deposed that he carried, along with Jagroop Sada (PW 5), Gohal Sada (PW 1) and Kerhat Sada (not examined), the injured father of the informant to the State Dispensary at Kusheshwar Asthan and from there, the injured was taken to Darbhanga Medical

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Patna High Court CR. APP (DB) No.53 of 1993

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College and Hospital, Darbhanga, where he was admitted for treatment, but he died after three days.

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10. PW 4, Subdhi Devi, wife of deceased Ram Saran Sada, has deposed, in her evidence, that on the fateful day, at about 6.30 PM, she was in her courtyard along with her husband, she heard hulla at the shop, which was run by her son, i.e., the informant, and she saw accused Kartik Sada quarreling with her son, Ram Sogarath Sada, and when her husband, i.e., deceased, rushed to the shop/place of occurrence and tried to intervene, Kartik Sada called his associates, whereupon the other three accused persons arrived, caught hold of her husband and they dragged her husband to the courtyard of Domi Sada, where accused Pathlu Sada brought a farsa and the accused Kartik Sada took hold of the farsa and hurled it on the head of her husband, who fell on the ground and, thereafter, accused Jhari Sada and Sardan Sada assaulted her husband by lathi . The accused persons, thereafter, went to the shop of her son and departed with articles kept there. People carried her husband to Kusheshwar Asthan Hospital and, from there, he was taken to Darbhanga Medical College and Hospital, Darbhanga, where, in course of treatment, he died after four days.

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11. PW 6 (Ram Sogarath Sada), the informant,

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Patna High Court CR. APP (DB) No.53 of 1993

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who is son of the deceased, Ram Saran Sada, has deposed that the occurrence took place on the fateful day at 6 PM, which was a Sunday, he was at the shop and, in the meantime, Kartik Sada came and asked for bidi and after giving bidi , when he (PW 6) asked for price of the bidi, accused Kartik Sada got annoyed and an altercation was started with him (PW 6). In the meantime, according to P.W. 6, Jhari Sada, Pathlu Sada and Sardan Sada also came there and when the informant’s father came to settle the matter, all the four accused persons dragged his father near the courtyard of Domi Sada and, upon instigation by co-accused, Jhari Sada, to kill informant’s father, Pathlu Sada brought a farsa and gave it to accused Kartik Sada, who struck with the help of farsa on the head of the informant’s father, his father fell down and became unconscious, blood started oozing out from his head and thereupon, Jhari Sada and Sardan Sada assaulted the informant’s father by means of lathis and that all the accused persons went to the informant’s shop and looted articles worth Rs.5,000/- and when the accused persons dispersed, the informant brought his injured father to the shop and took him to Kusheshwar Asthan Hospital, where his wound was stitched and he was referred to the Darbhanga Medical College and Hospital, Darbhanga, where he died, on the 4^th

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Patna High Court CR. APP (DB) No.53 of 1993

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day, i.e. on 28.11.1990. It is in the evidence of PW 6 that his statement was recorded as fardbeyan (Exhibit 2) in the Darbhanga Medical College and Hospital, Darbhanga.

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12. PW 5 (Jagroop Sada) is the uncle of the deceased. He has deposed that on the fateful evening, he was sitting in the courtyard along with the deceased and his wife and, on hearing hulla raised from the shop of the informant, all the three of them rushed to the shop, he saw four accused had caught deceased Ram Saran Sada and were taking him towards the house of Domi Sada. Accused Jhari Sada instigated others to kill the deceased, whereupon Pathlu Sada brought farsa and gave the same to accused Kartik Sada, who struck, with the farsa, on the head of Ram Sharan Sada and as a result thereof, the latter sustained injuries and bleeding started. When the deceased fell on account of injuries, Jhari Sada and Shrawan Sada assaulted him by lathis and, thereafter, all of them went to the shop of the informant and took away articles lying there.

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13. To support the ocular evidence, the prosecution examined Dr. Akhauri Rabindra Kishore as (PW 8). The doctor has deposed that on 28.11.1990, at 01.30 PM, he did perform post mortem examination on the dead body of the deceased, Ram Sharan Sada, and found rigor mortis present all over the

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Patna High Court CR. APP (DB) No.53 of 1993

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four limbs. Besides rigor mortis , the doctor found following ante mortem injuries on the dead body:-

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ante mortem

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“(i) one stitched wound 2” long was detected over left frontal prominence of the head. On removal of the stitches, the underlying tissues were found infiltrated with blood and blood clots. The margins were found lacerated.

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(ii) One bruise 3” x 2” was detected over middle of the head at anterior fontanels. The whole scalp tissues were found infiltrated with blood clots. On removal of the scalp tissues, a 2” diameter depressed, commuted fracture was present in the middle of skull bone. The pieces of the fractured bones were found buried in the brain matter after meninges were torn. A big subdural and extradural haemotoma was present covering this brain .”

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14. In the opinion of the doctor, the injuries were caused by hard and blunt substance, which may be caused by the blunt edge of farsa . According to the doctor, injury no.1 was simple and injury no.2 was grievous in nature and was dangerous to life. In his opinion, death was caused due to concussion, hemorrhage and shock within 12 to 24 hours from the time of post mortem examination.

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15. On the strength of the ocular evidence, the

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Patna High Court CR. APP (DB) No.53 of 1993

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post mortem report and evidence of PW 7, learned Additional Public Prosecutor submits that it is evident that all the accused persons, with common intention, killed Ram Saran Sada and looted articles from his shop and, as such, they have rightly been convicted under Section 302 read with Section 34 and 380 of the Indian Penal Code. He further submits that accused Pathlu Sada brought farsa and instigated Kartik Sada to kill the deceased and, as such, he has rightly been found guilty under Section 302 read with Section 109 of the Indian Penal Code also and as accused Kartik Sada gave fatal blow on the head of the deceased, he was rightly convicted under Section 302 of the Indian Penal Code.

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16. We find that though the victim was severely assaulted in the evening of 25.11.1990, no report was made to the police till 12.15 PM on 28.11.1990. Nothing has been brought on record to show as to whether the doctor, who treated the injured at State Dispensary, at Kusheswar Asthan or at Darbhanga Medical College and Hospital, Darbhanga, informed the police about the incident or not.

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17. However, it has rightly been argued by the learned Additional Public Prosecutor that the prosecution’s case cannot be brushed aside only on the ground that the doctors, attending on the injured, failed to inform the police

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Patna High Court CR. APP (DB) No.53 of 1993

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about the incident unless and until the evidence suffers from material infirmities as well. We find that the medical evidence do not corroborate the ocular version of the occurrence that the deceased was assaulted by farsa (a sharp cutting weapon) as the doctor, who conducted the post mortem examination, clearly opined that the injury on the head was caused by hard and blunt substance. The prosecution has tried to explain that the accused might have been assaulted with the blunt edge of the farsa . The submission of the prosecution is only to be noted to be rejected as none of the witnesses has deposed that the deceased was assaulted by blunt edge of the farsa . Further-more, we also find that the defence has rightly argued that the fardbeyan was recorded on 28.11.1990 at 12.15 PM, but the case number was mentioned in the inquest report at 11.45 PM on 28.11.1995, i.e., even prior to recording of the fardbeyan of the informant. Further-more, the earlier version, narrated in the fardbeyan, with respect to the place of occurrence, has been given a go by in the evidence adduced at the trial as the occurrence took place, according to the First Information Report, at the shop of informant, but the witnesses claim that the occurrence took place on the south of the courtyard of Domi Sada, which place is at a distance of about 25 yards north to the shop. The Investigating officer

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Patna High Court CR. APP (DB) No.53 of 1993

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(PW 7), who proved the fardbeyan , which was recorded in the hand-writing of J. Ram, Asstt. Sub-Inspector of Police of Benta OP, has deposed that he found some blood on the ground and also on the Narkat (straw) on the south of the courtyard of Domi Sada.

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18. Besides this, we find that the weapon ( farsa ) used by the accused to kill the deceased was not retrieved. PW 5, Jag Roop Sada, the only independent witness examined in the case, does not take the name of Jhari Sada, one of the accused, who is said to have been instigating others to kill the deceased, Ram Sharan Sada.

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19. In view of the discussions held above, we do not find that the prosecution has been able to prove its case beyond all the reasonable doubt.

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20. Situated thus, we are clearly of the view that in the facts and attending circumstances of the present case, all the four appellants ought to have been accorded, at least, benefit of doubt.

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21. In the result and for the forgoing reasons, we allow this appeal. The impugned order of conviction of the accused-appellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offences,

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Patna High Court CR. APP (DB) No.53 of 1993

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which they stand convicted of, and they are hereby acquitted of the same under benefit of doubt.

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22. So far as accused-appellants are concerned, they are already on bail. Their bail bonds are hereby cancelled and their sureties shall stand discharged.

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23. Let the Amicus Curiae be paid a fee of Rs.

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5,000/-.

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24. Registry shall, forthwith, send a copy of this judgment and order to the learned trial Court along with the Lower Court Records.

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(Samarendra Pratap Singh, J.)

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I. A. Ansari, J. : I agree.

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(I. A. Ansari, J.)

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KHAN/Anand

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U √ T √

Kartik Sada and Ors. v. State of Bihar

Case brief

What is this about?

What did the court decide?

Kartik Sada and Ors. v. State of Bihar

Case brief

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