Kailash Thakur @ Ram Kailash Sharma v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL APPEAL (DB) No.411 of 2019 Arising Out of PS. Case No.-28 Year-2011 Thana- PARIHAR District- Sitamarhi ====================================================== 1.

Kailash Thakur @ Ram Kailash Sharma Son of Jagdish Thakur Resident of Village- Birrakh, P.S.- Sursand, District- Sitamarhi. 2.

Sanju Devi W/o Kailash Thakur @ Ram Kailash Sharma Resident of Village- Birrakh, P.S.- Sursand, District- Sitamarhi. ... ... Appellant/s

Versus

The State of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s :

Mr. Ajay Kumar Thakur, Advocate Ms. Vaishnavi Singh, Advocate For the Respondent/s :

Mr. Sujit Kumar Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD and HONOURABLE MR. JUSTICE SOURENDRA PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD) Date : 02-04-2025 Heard Mr. Ajay Kumar Thakur, learned counsel assisted by Mrs. Vaishnavi Singh, learned counsel for the appellants and Mr. Sujit Kumar Singh, learned Additional Public Prosecutor for the State.

2. The appellants in this case are seeking setting aside of the judgment of conviction dated 20.02.2019 (hereinafter referred to as 'the impugned judgment') and the order of sentence dated 27.02.2019 (in short 'the impugned order') passed by learned Sessions Judge, Sitamarhi (in short 'the

2/22 Trial Court') in Sessions Trial No. 463 of 2014 arising out of Parihar P.S. Case No. 28 of 2011. By the impugned judgment and order the learned Trial Court has been pleased to convict the appellants for the offences punishable under Sections 302/34 and 201/34 of the Indian Penal Code (for short 'IPC') and they have been ordered to undergo life imprisonment and pay a fine of Rs. 5,000/-. In default of payment of fine, the appellants shall further undergo imprisonment for a period of one month.

Prosecution Case

3. The prosecution case is based on the fardbeyan of Rambharos Mukhiya who is the father of the deceased Mahendra Kumar. In his fardbeyan recorded on 26.04.2011 at 09.15 AM at Barhi College, the informant who has been later on examined as P.W. 5 has made the following statements : "My name is Ram Bharos Mukhiya, age 42 years, son of Shri Mohan Mukhiya, Police Station Parihar Sursand, District- Sitamahi. I, today, on 26-04-2018, Tuesday morning at 9.15 AM, giving a statement near Jawaharlal Nehru Memorial College, to the S.H.O, Parihar Police Station beside the dead body of deceased son Mahendra Mukhiya @ Mahendra Kumar that out of three sons, his youngest son was

3/22 Mahendra Kumar. This year he had given Matriculation examination. My wife Radha Devi is a candidate of Mukhiya of Gram Panchayat Barari. My son Mahendra Kumar (deceased) had gone to sleep after taking dinner, at his darwaza. In my Baithka, my father Munilal, second son Dhirendra and nephew Govind Kumar (14 years) son of Shambu Mukhiya, were also used to sleep, in early morning I went to Sitamarhi. Today, upon receiving information, when I reached to the place of occurrence, saw my son lying dead. I believe that due to election rivalry, under conspiracy, my son was called and was throttled to death and then his dead body was thrown near the college with an intention to conceal the evidence."

4. On the basis of the fardbeyan a police case giving rise to Parihar P.S. Case No. 28 of 2011 dated 26.04.2011 was registered under Sections 302/201/120(B) of the IPC. After completion of investigation, police submitted a chargesheet on 24.03.2014 whereupon the learned jurisdictional Magistrate took cognizance of the offences under Sections 302, 201 read with 34 IPC on 10.07.2014. Upon finding that the case would be triable by a Court of Sessions, records were committed to the Court of sessions where charges were

4/22 explained to both the appellants. The appellants denied the charges and claimed to be tried.

5. In course of trial, the prosecution examined as many as 11 witnesses and brought on record several exhibits which were marked on behalf of the prosecution as well as the defence. The description of the witnesses and the list of documents available on the record as per the paper book are being mentioned herein after in a tabular form : List of prosecution witnesses PW 1 Rohit Kumar PW 2 Shivsharan Thakur PW 3 Govind Kumar PW 4 Radha Devi PW 5 Rambharos Mukhiya PW 6 Raju Kumar Mishra PW 7 Animesh Chandra Gyani PW 8 Dr. Chandra Bhushan Prasad PW 9 Shyamlal Prasad PW 10 Md. Sandul Nadaf PW 11 Shircharan Mukhiya List of exhibits Exhibit-1 Seizure list signed by Shiv Sharan Thakur Exhibit-2 Photograph of Khusboo Kumari Exhibit-3 Signature of Rambharosh Mukhiya on fardbeyan

5/22 Exhibit-3/1 Signature of Ramdayal Sah on fardbeyan Exhibit-3/2 Signature of Gajendra Raut on fardbeyan Exhibit-4 Fardbeyan Exhibit-5 Carbon copy of inquest report Exhibit-6 to Exhibit 6/1 Seizure list Exhibit-7 Sketch map Exhibit-8 CDR Report Exhibit-9 Formal FIR Exhibit-10 Signature of Dr. C.B.

Prasad in post-mortem Report Exhibit-11 Malkhana Register Exhibit-12 Signature of Sadul Nadaf in seizure list Exhibit-13 Signature of Shiv Charan Mukhiya in inquest report Exhibit-13/1 Signature of Jitendra Kumar in inquest report Exhibit-14 Signature of Shiv Charan Mukhiya in seizure list Exhibit-15 Signature of Shiv Charan Mukhiya in seizure list Exhibit-16 Signature of Shiv Charan Mukhiya in seizure list

6/22 List of exhibits on behalf of defence Exhibit-A Protest petition Exhibit-B Signature of Pawan Kumar in seizure list Findings of the Learned Trial Court

6. The learned Trial Court having analysed the oral as well as the documentary evidences on the record recorded a finding that by hatching a conspiracy, the deceased was called and when the deceased went inside the room of the daughter of the accused persons, all the accused persons jointly caught the deceased and throttled her. It has been further recorded that the injuries which were sufficient in ordinary course of nature to cause death were inflicted upon the deceased in a per-planned manner. The Trial Court held that the murder was committed in a cruel, cowardly and calculated manner. Love affair was not relished and the anger has been manifested by the parents in senseless fashion. It is for this reason that the accused personsparents have been held liable for conviction under

7/22 Sections 302 and 201 IPC.

Submissions on behalf of the appellants

7. Mr. Ajay Kumar Thakur, learned counsel for the appellants has assailed the impugned judgment on various grounds. At first instance his submission would be that the whole prosecution case is based on the hearsay statement of Govind Kumar (P.W 3). The informant (P.W 5) is not an eye witness to the occurrence. He has stated that he had left his house in the morning of 25th April in connection with some necessary work at Sitamarhi. The occurrence took place in the mid night of 25-26th April, 2011. The informant got information with regard to the occurrence over telephone from his sister-in-law (Sunita) (not examined) that the dead body of his son was lying near the college. On getting this information the informant went near the Barahi College and found that the dead body of his son Mahendra Kumar was lying north to the college gate and west to the road. It is pointed out that the informant has himself stated that when he came back to his house

8/22 then he got information from Govind (P.W. 3). It is, thus, submitted that even the informant has admitted in his evidence that his narration of the occurrence is what he heard from Govind (P.W 3).

8. Learned counsel submits that from the fardbeyan of the informant it would appear that his son Mahendra Kumar had gone to sleep after taking dinner, at his darwaza. The informant claimed that in his Baithka, his father, second son Dhirendra and nephew Govind Kumar used to sleep. He got information about the occurrence then he came to the place of occurrence and found his son lying dead. In his fardbeyan the informant expressed his belief that because his wife was contesting Mukhiya election, on account of the election rivalry his son was called and was throttled to death and then his dead body was thrown near the college with an intention to conceal the evidence.

9. Learned counsel submits that the informant has himself admitted in his examination-in-chief that the reason behind the occurrence on account of election

9/22 rivalry as disclosed in his fardbeyan was based on suspicion. It is submitted that the informant (PW 5) has stated in paragraph '13' of his deposition that whatever information he received from Govind Kumar about the occurrence, he has made the same statement in the Court. He had not seen the occurrence from his own eyes.

10. It is pointed out that the informant had submitted a protest petition before the learned Magistrate. The defence has got exhibited the said protest petition on its behalf which has been marked as Exhibit- 'A' for the defence. PW 5 has admitted in paragraphs 14, 15, 16 and 17 of his deposition about the contents of the said protest petition. In the protest petition, Govind Kumar was not made a witness and a completely different reason behind the occurrence has been shown. According to the case of the informant in the protest petition, one Pawan was having an illicit relationship with the girl and the deceased Mahendra had also started developing relationship with her where

10/22 after the said girl was hating Pawan and because of this reason Pawan had developed enmity with the deceased. According to the statement in the protest petition, it was Pawan who had a talk with the deceased at 8.30 P.M. on 25.04.2011, where after, Pawan came to the house of the deceased, talked to him separately, thereafter, the deceased got ready and moved along with said Pawan, where after he did not return in the night. It is submitted that from the evidence of P.W. 5 it is crystal clear that the whole prosecution case which was initially brought about in the fardbeyan was not getting support from the further statements of the informant and the witnesses, it is for this reason the attention of the prosecution witnesses were drawn towards their previous statements before the police which they denied but when the main I.O (PW 7) came to be examined, he has contradicted the statement of P.W 3, P.W 4 and P.W 5 in paragraphs 24, 25 and 26 of his deposition.

11. Learned counsel submits that so far as the evidence of the most important witness of the

11/22 prosecution namely, Govind Kumar (PW 3) is concerned, the same would not be reliable as it is evident from his deposition that he was examined by police after two days of the occurrence. He claims to be an eye-witness but he did not inform the family members of the deceased immediately after the occurrence. He has clearly stated in his deposition that he did not know that who had given telephonic call to the deceased. Learned counsel points out that the evidence of PW 3 is self contradictory. In paragraph '4' of the deposition he has stated that he was not regularly sleeping with the deceased. In paragraph '18' of his deposition PW 3 has stated that in friendship Mahendra was not staying in the house of Pawan intermittently. He has further stated that who had given call to Mahendra is not known to him but in the night of occurrence he had received a phone call. The defence suggested this witness that Mahendra, Rohit and Pawan were close friends, this witness has admitted in paragraph 19. In paragraph 20 of his deposition PW 3

12/22 was suggested that all the friends were attracted towards the girl and at the instance of Pawan, Mahendra had gone to the house of the said girl where under a conspiracy with Pawan got him murdered and then his dead body was thrown by the Scorpio vehicle of Pawan. The witness denied this suggestion. However, it is evident from the complaint recorded in the protest petition of the informant that informant had also come out with this story in his protest petition.

12. Learned counsel submits that all other witnesses are hearsay witnesses and they have claimed that they came to know about the occurrence from Govind Kumar. The submission is that Govind was not aware that who had given the call to the deceased in the said night, the statement of the other witnesses that Govind had told them that it was this girl who had given him a telephone call would not inspire confidence.

13. It is lastly submitted that the whole prosecution case is based on surmises and conjectures.

13/22 The medical evidence which has been brought on record clearly suggests that the deceased was brutally assaulted, several injuries have been found on his body which would not support the prosecution case that he was killed by throttling. On this ground, the submission is that the prosecution has not been able to prove his case beyond all reasonable doubt. In his submissions, The Trial Court judgment is liable to be set aside and the appellants are required to be acquitted.

Submissions on behalf of the State

14. The appeal has been contested by Mr. Sujit Kumar Singh, learned Additional Public Prosecutor for the State. It is submitted that the learned Trial Court has rightly appreciated the entire evidences on the record.

15. Learned Additional Public Prosecutor submits that the evidence of P.W. 3 in this case would show that he is an eye witness to the occurrence as he was accompanying the deceased to the house of the appellants. It is submitted that the informant had initially made a statement that his son had been killed

14/22 on account of election rivalry because his wife was contesting Mukhiya election but in course of investigation it was revealed that the victim boy was called to the house of the girl where her parents had killed him and his dead body was found near the college. So far as the statement of the informant (P.W. 5) in the protest petition (Exhibit-A) is concerned, learned Additional Public Prosecutor submits that despite Exhibit- 'A' the evidence of the prosecution witnesses are to be examined independently and Exhibit- 'A' would not make any dent in the evidence of the prosecution.

Consideration

16. Having heard learned counsel for the appellants and the learned Additional Public Prosecutor for the State as also upon perusal of the Trial Court records, this Court finds that in this case the fardbeyan of the informant (P.W 5) has given rise to the case in question. In his fardbeyan P.W. 5 has stated that his son used to slip in the 'baithka', with his father, second son

15/22 and the nephew Govind Kumar. The father and the second son of the informant have not been examined in this case. Govind Kumar who is the nephew of the informant has been examined as P.W. 3, he claims to be an eye witness of the occurrence but it is evident from the statement of the wife of the informant (P.W. 4) that Govind Kumar (P.W. 3) came to her at 11 A.M and then he disclosed about the occurrence to her and the villagers. Govind Kumar had informed Radha Devi (P.W.4) and the villagers that Mahendra had been killed by Rambilash Thakur, Kailash Thakur, Jagdish Thakur, Sanju Devi Manju Devi and Khusboo by throttling him. Govind had also informed that about 11 AM in the night a phone call of Khsboo had come to Mahendra where upon Govind had gone with Mahendra with a syringe to the house of Pawan in village Birrakh. It is evident from the evidence of Govind (P.W. 3) that he did not know who had given telephone call to Mahendra. This fact he has clearly stated in paragraph 18 of his deposition. There is no electronic evidence on

16/22 this point. Thus, the fact that Khsboo had given a telephone call to Mahendra has not been proved by the prosecution. The statement of the other prosecution witnesses that they had come to know it from Govind would not inspire confidence of the Court. This Court further finds that in the fardbeyan the informant (P.W. 5) has stated that his wife was contesting Mukhiya election and because of the election rivalry, under a conspiracy his son was called and then he was throttled to death. In course of investigation the whole prosecution story has changed. The prosecution has come out with a case that the deceased had been in an affair outside marriage with the daughter of the appellants, the daughter of the appellants had given a telephone call to the deceased and thereafter the deceased had gone to her house and there he was killed by the appellants. There is no independent evidence to support this story developed by the prosecution at a belated stage. Police has shown to have recovered a photograph of the daughter of the appellants from the tin box in the house of the deceased

17/22 but the main I.O (P.W. 7) has deposed in paragraph 19 of his deposition that he had not got done the verification of the photographs. The I.O had not mention the boundary of the house of the deceased from where the box was recovered. He could not say that in which direction village Birak is situated from Barahi. This Court is of the opinion that the claim of the prosecution that photograph of the girl was recovered from the tin box in the house of the deceased would neither inspire confidence nor it leads to conclude that the deceased was killed in the house of the appellants. There is no eye witness to the actual killing of the deceased and the manner of occurrence as disclosed by Govind to the witnesses are not corroborated from the injuries found on the body of the deceased. In this regard the evidence of the doctor (P.W. 8) would be relevant to take note of. The following injuries were found on the body of the deceased :- "(i) Abrasion over left chick 3"x 2", abrasion over nose each 1/2"x 1/4",

18/22 lacerated wound on lower and upper lip 1"x 1/4" on soft-lips. Multiple abrasion over right chest of different sizes On opening of skull cranium intact, Brain matter congested and opening of neck trachea intact and congested. On opening of thorax with lungs intact and (illegible) Heart intact, right chamber filled with dark blood. Left chamber empty. On opening of abdominal cavity all abdominal vesra intact and congested. Stomach contains semi digested food particles. Urinary bladder partially filled.

Time elapsed since death and P.M. held within 24 hours.

In my opinion the case of death was due (illegible) arising saffocation asphyxiasion leaded to Cr failure as a result above stated Injury."

17. We find from the evidence of the doctor (P.W

8) that the deceased had suffered abrasions over various parts of his body, lacerated wound on liver and upper lips and then multiple abrasion over right chest. Thus, what Govind (P.W. 3) informed to the mother of the

19/22 deceased (P.W 4) was not a correct statement and he cannot be believed as an eye witness.

18. It is equally important to take note of the fact that while the investigation was going on, the informant P.W. 5 himself filed a protest petition in the Court of learned jurisdictional Magistrate. In his protest petition he did not name Govind Kumar (P.W 3) as a witness. Bare perusal of Exhibit- 'A' would show that the whole prosecution story has become doubtful on the face of the disclosures made in the protest petition by none else then the informant himself. When the informant came to be examined in course of trial, the defence took it as an opportunity to get the protest petition exhibited as a defence documents and at the instance of defence it has been marked as Exhibit-A. Attention of P.W. 5 was drawn towards various statements recorded in the protest petition (Exhibit-A) and the informant has admitted in paragraph '17' of his deposition that in the protest petition he had got it written that the daughter of the appellants is student of high school with whom

20/22 Pawan had an illicit relationship for a long time and the son of the informant had also started developing relationship with her. The informant had further got it written in the written statement that his son Mahendra (deceased) was stealthily giving money to the daughter of the appellants and then the daughter of the appellants had started hating Pawan because of which Pawan had developed enmity. This Court further finds that in paragraph 18 of his deposition P.W. 5 has stated that on 25.04.2011 which was a Monday, at about 08.30 PM Pawan had given a call to the deceased over telephone and thereafter Pawan had come to the house of the deceased with whom the deceased went after getting ready and thereafter he did not return. We find that the informant was suggested by the defence that his son was killed because of the rivalry in the love affair and it was Pawan and his father who had killed Mahendra and that the dead body was thrown near college. The informant though denied this suggestion but to this Court it is evident from Exhibit- 'A' that as per allegation there in

21/22 Pawan had developed rivalry with Mahendra on account of the said affair as both had been developed affair with the girl. Pawan has not been either made accused or examined in this case.

19. In ultimate analysis of the entire evidence on the record, we are of the considered opinion that the learned Trial Court has not considered the effect of the vacillating stand of the informant, the change in the prosecution story and the fact that Govind Kumar (P.W.

3) cannot be put in the category of a wholly reliable witness. In our opinion, conviction based on the evidence of P.W. '3' would not be safe. All other witnesses are only hearsay witnesses. Keeping in mind these materials, we are of the opinion that the impugned judgment and order of the learned Trial Court are liable to be set aside and the appellants are entitled to get acquitted of the charges giving them benefit of doubt.

20. The impugned judgment of conviction dated 20.02.2019 and the order of sentence dated 27.02.2019

22/22 passed by learned Sessions Judge, Sitamarhi in Sessions Trial No. 463 of 2014 arising out of Parihar P.S. Case No. 28 of 2011 are accordingly set aside.

21. Appeal is allowed.

22. The appellants are in incarceration/jai, hence, they shall be released forthwith, if not wanted in any other case.

23. The Trial Court Records with a copy of the judgment shall be sent down to the learned Trial Court for record.

(Rajeev Ranjan Prasad, J) (Sourendra Pandey, J) Vikash/Prakash AFR/NAFR NAFR CAV DATE N/A Uploading Date 12.04.2025 Transmission Date 12.04.2025