Death Reference No. 6 of 2013, Cr. Apneal (DB) Nos. 437, 518, 769 of 2013 and Govt. Appeal (DB) No. 19 of 2013. Case: 1. The State of Bihar, 2. Pappu Bihari Vs 1. Pappu Bihari, 2. State of Bihar. High Court of Patna (India)

Case NumberDeath Reference No. 6 of 2013, Cr. Apneal (DB) Nos. 437, 518, 769 of 2013 and Govt. Appeal (DB) No. 19 of 2013
CounselFor Appellant: Rama Kant Sharma, A.K. Sinha, Rana Pratap Singh, Aaruni, Kanhaiya Prasad Singh, Rohit Kumar, U.K. Shukla, Sanjay Parasmani, Rama Kant Sharma and A.K. Sinha, Advs. and For Respondents: Manish Kumar, Rohit Kumar, A.K. Sinha, A.K. Sinha, Manish Kumar and Rohit Kumar, Advs.
JudgesV. N. Sinha and Anjana Prakash, JJ.
IssueArms Act, 1959 - Section 27; Code of Criminal Procedure, 1973 (CrPC) - Sections 161(3), 170(2), 172(1)(a), 173(5), 207, 207(3), 227, 313, 465(2); Indian Evidence Act, 1872 - Sections 107, 11, 114(e), 14, 63, 65, 65(B), 65A, 8, 9; Indian Penal Code 1860, (IPC) - Sections 302, 394; Juvenile Justice Act, 1986 [Repealed] - Section 7(a)
Judgement DateApril 30, 2014
CourtHigh Court of Patna (India)

Judgment:

Anjana Prakash, J.

1. The Appellants of Cr. Appeals 437 of 2013 and 518 of 2013 have been convicted u/s. 302, IPC and sentenced to death and also under Section 394, IPC and 27 of the Arms Act and sentenced to ten years and two years respectively with a fine of Rs. 5,000/-. Death Reference is in regard to the same Appellants. Criminal Appeal No. 379 of 2013 and Government Appeal 19 of 2013 have been preferred by the Informant against the acquittal of initial accused Kamlesh Jha. The said Judgment was delivered by the 1st Additional Sessions Judge, Darbhanga, in Sessions Trial 441 of 2011 on 9th April, 2013. The Fardbeyan of Ram Pukar Rai, P.W. 3 recorded at 8.20 P.M. at the place of occurrence, i.e. Soni Fuel Petrol Pump at Nehra, P.S.-Manigachhi, Distt.-Darbhanga, on 27.7.2011, is that on the date of occurrence, around 6.30 to 6.45 P.M. when he was checking the Diesel on the Tanker the nephew of the owner Jai Ram Choudhary i.e. Ashwani Kr. Chaudhary (deceased) and Daya Shankar Roy (deceased) were working at the reconciliation of accounts and the Nozzle man Kailash Sada (Deceased) was standing near the Nozzle. Just then on two black motorcycles, four accused persons arrived and started to get their motorcycles re-fueled., In the meanwhile, he went inside the counter having checked the Diesel and he saw the Tanker Driver (Ram Ayodhya Mahto, PW-7) talking to deceased Ashwani Kumar Choudhary. He informed Choudhary that the Tanker was emptied and that the Driver should be paid his dues. Kailash Sada (deceased) also came to the counter and told the exact details of the Petrol which had been taken by the four accused persons. He then saw the three of the four miscreants with Pistols catching hold of Kailash Sada (deceased) and taking him into the room while one of the miscreants stood outside.

2. He gives out the details of the physical description of the miscreants who were aged about 25-35 years and that one of them appeared to be of 30-32 years. One of the miscreants assaulted him on the neck and his face and felled him on the floor. On seeing this, the Tanker Driver (Ram Ayodhya Mahto, PW-7) attempted to escape but he was also assaulted with the butt of the Pistol on account of which he fell down. When Kailash Sada (deceased) tried to escape, he was shot at on the chest on account of which he was injured. The miscreants then asked for the money at which Ashwani Kumar Choudhary pointed where the money was. The miscreants then started to take the money from the drawer which probably deceased Daya Shankar Roy resisted at which he was shot at. The accused persons took away the money lying in the drawer and asked Choudhary as to where rest of the money was Choudhary replied that there was no more money but the miscreants continued to search the same. They then shot at Choudhary who fell down injured.

3. The miscreants thereafter went towards their Motorcycles and on finding a Bolero Car parked on the petrol pump, took away its papers, keys and Mobile from the Bolero Driver Sitaram Manjhi (PW-10) and fled away towards the main road. The Informant stated that none of the Motorcycles contained any number. He further narrated that Kailash Sada and Daya Shankar Ray died at the spot whereas Ashwini Kumar Choudhary and the Tanker Driver (Ram Ayodhya Mahto, PW-7) were removed to the Hospital. Later injured Ashwini Kr. Chaudhary also died. He claimed to identify the miscreants if shown again.

4. The complicity of the Accused appeared during investigation and hence a charge-sheet was submitted on 27.9.2011 against six accused i.e. (i) Pappu Bihari, (ii) Nityanand Jha (absconding), (iii) Rahul Kumar Yadav, (iv) Kamlesh Jha, (v) Raghav Kr. Jha (Juvenile), and (vi) Sonu Singh (dead). The Appellants and the acquitted accused Kamlesh Jha were thereafter put on trial.

5. Before proceeding any further, this Court at this juncture would think it important to discuss a relevant point since it has an important bearing on this case.

6. The order-sheet of the Chief Judicial Magistrate dated 13.10.2011 notes the fact that four copies of Police papers were attached with the case record but the three co-accused persons i.e. Kamlesh Jha, Pappu Sah @ Pappu Bihari and Rahul Kumar Yadav and their learned counsels refused to receive them. The case was then notified for commitment without compliance of Section 207 Cr.P.C.

7. When the matter was posted before the Sessions Judge, Darbhanga, a petition under Section 7(a), J.J. Act was filed on behalf of Rahul Kumar Yadav. On 28.11.2011, the matter was finally disposed off considering the documents and the fact that earlier the Chief Judicial Magistrate, Darbhanga, had refused such an application. On the same day the Trial Court sought to give the Police papers to Kamlesh Jha, Pappu Bihari and Rahul Yadav but they and their respective counsels once again refused to receive the same.

8. On 30.11.2011, an application under Section 227 Cr.P.C. was filed on behalf of Kamlesh Jha and the Prosecution counsels were partially heard on the point of charge.

9. On 7.12.2011, two petitions were filed on behalf of the Appellant Rahul Yadav, copies of which were served upon the Additional Public Prosecutor. One of the petitions was to the effect that the Investigating Officer had annexed the relevant documents as required under Section 173(5) Cr.P.C. but material exhibits, the statements of witnesses separately were essential in the light of Sections 170(2) and 172(1)(a) Cr.P.C. which was not made available in the Court. The grievance was that the case had been committed to the Court of Session without compliance of Section 207 Cr.P.C. and, therefore, further proceeding was illegal.

This was opposed by the Additional Public Prosecutor who pointed out that the Chief Judicial Magistrate had attempted to serve the Police papers but the Accused had refused to accept the same.

It was then noted by the Trial Court that all essential documents were available with the records and hence the prayer of Rahul Yadav was rejected. Finally, on 24.1.2012, the three accused were charged and the Prosecution witnesses were summoned.

10. On 2.2.2012, PW-1 Kamlesh Rai, appeared in Court but the accused Kamlesh Jha, Rahul Yadav and Pappu Bihari who were present in Dock, refused to affix their signature in the margin of order sheet. They also refused to cross-examine the said witness on the ground of awaiting orders of the High Court. On the same day, an application for transfer of the case was filed before the Trial Court which was forwarded to the District & Sessions Judge.

11. On 3.2.2012, an application was filed by the Appellant Rahul Kumar Yadav that certain irregularities had been committed before charges were framed but the Court rejected the petition on the ground that it had no power to review its own order. He also observed that if at all if it was felt at a later stage that charges required amendment it would be done at the relevant time.

12. On 6.2.2012, the Trial Court received a direction from the Sessions Judge on the transfer petition to proceed in the matter in accordance with law.

13. On 10.2.2012, the counsel for the Defence stated that he intended to file a revision against the order dated 3.2.2012 and, hence, would not cross-examine PW-1. The Trial Court was of the view that the accused persons were purposely trying to delay the Trial and discharged PW-1.

14. On 14.2.2012, an application under Section 465(2), was filed on behalf of Kamlesh Jha to keep the Trial in abeyance till mandatory requirements under law are followed and no prosecution witness be examined on the grounds mentioned in the petition. On the said date, all the three accused persons had appeared but they refused to sign on the margin of the order sheet. PW-2 Sanjeev Kumar Chaudhary appeared on the said date and was examined and cross-examined in part by the counsel appearing on behalf of Pappu Bihari and the matter was adjourned for a further date.

15. On 22.2.2012, a petition was filed on behalf of the Appellant Pappu Bihari to allow him to withdraw his prayer on the grounds mentioned in the petition and as prayed for on behalf of the learned counsel of Pappu Bihari, PW-2, was not further cross-examined and consequently discharged.

16. On 14.2.2012, a petition under Section 465(2) Cr.P.C. was filed that the accused persons had not been given Police Papers and the provision of Section 207(3) Cr.P.C. had not been complied with hence, charge was erroneous. Once again, the Court rejected such a petition on the ground that earlier such a prayer had been considered and rejected by orders dated 7.1.2012 and 16.1.2012. It also observed that despite efforts by the prosecution to serve the Police Papers the provision could not be complied with because the accused/their Lawyers had refused to accept the same. It also held that charges had been framed on the materials available in the case record.

17. On the same day a petition was filed on behalf of the accused Kamlesh Jha and Appellant Rahul Yadav, praying therein to stay the examination of Prosecution Witness No. 3 Ram Pukar Rai, but the Trial Court went ahead with his examination. Once again, the accused persons and the learned Lawyer declined to cross-examine the witness on the ground that Trial was defective. The witness was then discharged without cross-examination.

18. On 3.3.2013, a fresh petition was filed on behalf of Kamlesh Jha to keep the Thai in abeyance till receipt of the decision of Supreme Court and High Court. The Trial Court once again rejected it on the ground that earlier such a prayer had been rejected. On the same date PW-4, Hari Krishna Singh, was examined in-chief but the Defence counsel and the accused persons refused to cross-examine him where after the witnesses were discharged. The order-sheet also reveals that the accused persons refused to sign on the margin of order-sheet.

19. It appears that on 17.3.2012, PW-5, Amit Kumar Mandal and PW-6, Shyam...

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